Bombay High Court
Pradip Vishwanath Jagtap vs The State Of Maharashtra And Anr on 10 October, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2024:BHC-AS:40862-DB
P.H. Jayani 2.CONF02.24.doc
HEMANT IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CHANDERSEN CRIMINAL APPELLATE JURISDICTION
SHIV
CONFIRMATION CASE NO. 02 OF 2024.
Digitally signed by
HEMANT
CHANDERSEN SHIV The State of Maharashtra
Date: 2024.10.15
18:03:37 +0530 (Through Shahapur Police Station) .... Appellant
vs.
Pradip Vishwanath Jagtap
Age - 35 yrs, Occu-Service,
R/o.Shirgave Mala, Yadrav,
Tal. Shirol, Dist. Kolhapur. .... Respondent/Accused
WITH
CRIMINAL APPEAL NO. 431 OF 2024
Pradip Vishwanath Jagtap
Age - 35 yrs, Occu-Service,
R/o.Shirgave Mala, Yadrav,
Tal. Shirol, Dist. Kolhapur. .... Appellant.
vs.
(1) The State of Maharashtra
(Through Shahapur Police Station
in C.R.No. 153/2018) ....Respondent
(2) Abhishek Shripati Airekar
Age : Major, 23 years,
R/o. Behind Parvati Industries, Yadrav,
Tal. Shirol, Dist. Kolhapur. ....Orig. Complainant
Mrs. P.P. Shinde, APP for the State.
Mr. Kedar J. Patil a/w. Mr. Sachin Y. Mane, Mr. Pratik Tare, Ms. Sakshi
Kadam, Mr. Jitesh Mundwa, Mr. Madan Bhosale, Mr. Prajay Kutkar and
Mr. Rahul Shrigure for the Appellant in APEAL/431/2024 and for the
Respondent in Conf./02/2024.
1/55
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P.H. Jayani 2.CONF02.24.doc
CORAM : REVATI MOHITE DERE &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 11th JULY, 2024
PRONOUNCED ON : 10th OCTOBER, 2024
JUDGMENT:
[PER- SHYAM C. CHANDAK, J.]
1) Sole accused Pradip Vishwanath Jagtap was charged and tried for
the offence punishable under Sections 302 of the Indian Penal Code in
Sessions Case No.06 of 2019, for committing murder of 4 persons. The trial
Court at Jaysingpur, District Kolhapur vide impugned judgment and order
dated 22nd and 26th March, 2024 has held the Appellant guilty of the charge
and opined that the case falls in "rarest of rare" category, and hence awarded
capital punishment. In terms of mandate of Section 366(1) of the Code of
Criminal Procedure, the learned Additional Sessions Judge, has submitted
the proceedings to this Court for confirmation vide Criminal Confirmation
Case No.2 of 2024. Being aggrieved by the same impugned judgment and
order of conviction and sentence, the accused has also preferred an appeal
bearing Criminal Appeal No.431/2024, mounting a challenge to the finding
of guilt, as well as to the nature and proportionality of punishment.
2) Heard elaborate submissions made by learned APP
Mrs.P.P.Shinde for the State-Respondent and learned Advocate Mr. Kedar
P.H. Jayani 2.CONF02.24.doc
Patil, for the accused-Appellant, considered the factual aspect, evidence led
before the trial Court, impugned judgment, as well as various
pronouncements cited by the learned counsel for the Appellant in support of
his contentions. Also heard both sides exhaustively on the point of
imposition of appropriate sentence. Perused the record.
3) The prosecution case is as under :-
3.1) That, Chhaya Airekar was mother, Sonali Ravan and Rupali
Jagtap were sisters and Rohit was brother of first informant PW6-Abhishek
Airekar ('Chhaya', 'Sonali', 'Rupali', and 'Rohit', for short). The incident
occurred on 06th October, 2018, in the house of PW6-Abhishek, i.e., room
No.8 in Shirgave Chawl, at Yadrav. At the time of incident, Sonali was
staying with PW6-Abhishek, for delivery purpose. PW12-Sanavi is daughter
of Rupali, born from her first husband. After divorce from her first husband,
Rupali and PW12-Sanavi were residing with PW6-Abhishek. Thereafter,
Rupali got married with the accused and they were blessed with a son,
Ganesh. Rupali and accused were working in Jubilee Process Company and
Bahubali Company, respectively.
P.H. Jayani 2.CONF02.24.doc
3.2) That the accused was always suspecting the character of Rupali
and quarreling with her, and hence Rupali was residing with PW6-Abhishek,
alongwith the accused. Despite the same, the accused used to suspect the
fidelity of Rupali and quarrel with her on account of the same. The accused
was also following Rupali to her workplace and keep watch on her.
3.3) On 30th September, 2018 Rupali went to work in the night shift.
Then, the accused went there and by calling Rupali outside, he assaulted her.
Immediately, Rupali came home and disclosed the said incident to her family
members. In turn, PW6-Abhishek and his family members gave an
understanding to the accused not to assault Rupali. At that time, the accused
went away carrying his son Ganesh with him. Next day, in the morning, the
accused returned and dropped Ganesh home. On 03 rd October, 2018 the
accused came home and by calling Rupali outside the house, quarreled with
her and went away.
3.4) On 05th October 2018, at about 08:00 p.m., the first informant
was preparing to go for work. At that time, the accused was arguing with
Rupali. It being routine, PW6-Abhishek ignored them and went for his
work. At about 11:30 p.m., again quarrel occurred between accused and
P.H. Jayani 2.CONF02.24.doc
Rupali, which was settled by PW8-Jagdish Sankpal, Police Patil . On 06th
October 2018, at about 04:30 a.m., one Vikram came to PW6-Abhishek and
informed that his mother, brother and sisters have been assaulted. Instantly,
informant rushed home. At that time, he saw that PW12-Sanavi was crying
there and his mother was lying on the bed in an injured condition and both
his sisters and brother Rohit lying on the floor with injuries on their person.
3.5) On inquiry, PW12-Sanavi disclosed that, after PW6-Abhishek
went for his work in the night, the accused was demanding mobile phone
from Rupali, to which the latter resisted. This led the couple to enter into a
quarrel. Therefore, Sonali intervened. However, the accused pushed Sonali
and went away snatching the mobile phone. Thereafter, they all slept.
However, suddenly she heard screams of her mother Rupali. Therefore, she
woke up with fright. At that time, she saw that the accused was assaulting
Rupali by means of a wooden log. Then, the accused assaulted Sonali and
Rohit on their head with the same weapon and caused them bleeding
injuries. Lastly, the accused assaulted Chhaya on head. PW12-Sanavi further
disclosed that, thereafter she came out of the house and shouted, pursuant
to which their Neighbour Meher didi came there. Seeing her, the accused
fled away from the rear door of the house. Chhaya died on the spot. The rest
P.H. Jayani 2.CONF02.24.doc
three injured were taken to the hospital. However, Sonali was declared as
brought dead. Rohit and Rupali were admitted in the ICU, however medical
intervention could not save them as they died shortly after being shifted
there. Thereafter, the informant lodged the First Information Report at
(Exh.86) and C.R.No.153 of 2018 was registered against the accused at
Shahapur Police Station, District Kolhapur for the offence punishable under
Section 302 of the Indian Penal Code.
3.6) Police visited the spot. PSI Yadav seized the blood stained quilts,
pillows, clothes etc. found at the spot, took samples of the blood found there
and recorded the spot panchanama (Exh.47). Then police recorded the
Inquest Panchnamas (Exhs.14, 30 to 32, respectively) of the bodies of
Chhaya, Sonali, Rupali and Rohit. All four dead bodies were subjected to
post-mortem examination. The blood stained clothes on the respective dead
bodies were seized. PSI Mujawar arrested the accused on 6 th October, 2018.
On 7th October, 2018 police seized the CCTV footage of 'Ingres and Egress'
of the accused at his work place in the night intervening 5th and 6th October.
3.7) On 8th October 2018, the accused made a disclosure statement
(Exh.16) that he is ready to produce the weapon of the offence. Then, the
P.H. Jayani 2.CONF02.24.doc
accused led the police and panchas to Shirgave Mala, Yadrav, and there he
recovered the wooden log (MO1), which was hidden under the bushes.
Police seized the same under recovery panchnama (Exh.17). During
investigation again, on 11th October 2018, the accused gave one more
disclosure statement at (Exh.21) that, he would show his blood stained
clothes which he had worn at the time of incident and led the police and
panchas to one factory owned by Rajgopal Chhaparwal. There, the accused
produced his t-shirt and pant stained with blood from a bag hanging on a
hook. The police seized the clothes under recovery panchnama (Exh.22).
3.8) PW24-API Harugade, I.O. recorded the statement of witnesses
from time to time and obtained the statement of certain witnesses recorded
under Section 164 of the Criminal Procedure Code. He collected the
postmortem reports. He referred the muddemal articles, blood samples, etc.
to RFSLs, Kolhapur and Pune, for C.A. and D.N.A. examinations.
3.9) On completion of the investigation it was revealed that, the
accused committed the murder of the four persons. Therefore, PW24-API
Harugade submitted charge-sheet before the Judicial Magistrate First Class,
Jaysingpur, who complied with Section 207 of Cr.P.C. and committed the
P.H. Jayani 2.CONF02.24.doc
case to the Court of Sessions, as the offence under Section 302 was
exclusively triable by Court of Sessions.
4) The learned trial Court framed the charge. The accused pleaded
not guilty to the charge and claimed to be tried. In order to bring home the
guilt of the accused, the prosecution has examined following 24 witnesses.
Name of witnesses Details on which examined.
PW1-Rahul Tatyaso Parit Panch- seizure of clothes of the deceased.
PW2-Vaishali Vijay Pawar Panch- Inquest Panchnama of Chhaya.
PW3-Sham Janardhan Kamble Panch- disclosure statement of accused leading to
recovery of wooden log.
PW4-Shrikant Shivaji Kamble Panch- disclosure statement of accused leading to
recovery of his blood stained clothes (hostile).
PW5-Santosh D. Gound Panch- seizure of the CCTV footage.
PW6-Abhishek Shripati Airekar First informant.
PW7-Gundurao Piraji Bhosale Watchman, Manpasand Textile Process.
PW8-Jagdish Bhupal Sankpal Police Patil
PW9-Sunil Babaso Mane Panch- disclosure statement of accused leading to
recovery of his blood stained clothes.
PW10-Rupesh Cousin of PW6-Abhishek to whom PW12-Sanavi
Sambhaji Airekar disclosed the incident.
PW11-Raju Maruti Gaikwad Brother of first wife of accused (hostile).
PW12-Sanavi Pradip Jagtap Eye witness (minor).
PW13-Mahadev Krishna Spot panch
Kamble
PW14-Zubeda Alam Pathan Neighbour of the deceased and accused.
PW15-Amit Police Constable- he deposited DNA samples at
Chandrakant Bhore FSL, Pune.
PW16- Dr. Smita Medical Officer, IGM, Ichalkaranji, who examined
Dhananjay Mahadik accused.
PW17-Gurunath Police Naik- he deposited Muddemal Objects,
P.H. Jayani 2.CONF02.24.doc
Balwant Chavan blood samples etc. at RFSL, Kolhapur.
PW18-Tahirnaksha Police Constable- he deposited sample nail
Shahajahan Shaikh clippings of accused at FSL, Pune.
PW19-Dr. Ravikant Medical Officer, IGM, Ichalkaranji--
Raghunath Terwade post-mortem of Chhaya.
PW20-Dr. Prabhakar Medical Officer, Civil Hospital, Sangli-- post
Rajaram Patil mortem of Sonali, Rupali and Rohit.
PW21-Maruti Somappa Gavali PSO- Station Diary entries and registration of
crime
PW22-Vikas Jagannath Bhujbal PI in-charge CCTNS. He gave certificates under
Section 65B of the Evidence Act in respect of
station diary entries in CCTNS.
PW23-Irgonda Satgonda Patil PI, Shivaji Nagar, Initial investigation Officer.
PW24-API Sanjay A. Harugade Investigation Officer
5) After the prosecution closed its evidence, statement of the
accused under Section 313 of the Cr.P.C. recorded. The defence of the
accused was of total denial and false implication.
6) On appraisal of the prosecution evidence in the light of
submissions made by learned APP and learned Advocate for the accused, the
trial Court held the accused guilty of the four murders and awarded him
with death penalty.
7) Learned APP Mrs. Shinde representing the State strongly
submitted that, there is sufficient, cogent and reliable, direct as well as
circumstantial evidence. That, on the strength of said evidence, the
prosecution has proved that, the accused has committed four murders; that
P.H. Jayani 2.CONF02.24.doc
the murders had been committed in a planned manner and with an intent to
eliminate the entire family; but PW6-Abhishek escaped only because he was
at his work place. Learned APP submitted that the assault was at night time
when the four murdered were asleep and in a defenseless condition. She
submitted that all of them were forcefully assaulted on their head by the
accused with a heavy wooden log. That out of said four, three were women
i.e. a mother and the two young sisters, Rupali and Sonali. Rohit was aged 17
years and Sonali was a mother of an infant. According to the learned APP,
even though, the accused had a dispute with only Rupali, he took the lives of
three other innocent namely, Chhaya, Sonali and Rohit. As such the murders
were brutal and merciless. She submitted that the cold-blooded act of the
accused not only shook the very psyche of PW12-Sanvi, a 10-year-old, but
also deeply affected the public throughout the entire Kolhapur district.
Learned APP further submitted that the evidence indicates that, after the
murders the accused hardly showed any remorse or repentance for he killed
his near and dear ones, on account of a trivial matter. As such, there is not
even a bleak chance that, the accused would reform if the impugned
sentence is converted to life imprisonment. Therefore, according to learned
A.P.P., said sentence of death is justified and need not be interfered with.
P.H. Jayani 2.CONF02.24.doc
8) Learned Counsel Mr. Patil for the accused-Appellant submitted
that, even though the incident occurred at 3 am, it was registered in the
station diary entry at about 14.00 hours and the crime was registered at
about 19.00 hours, on the next day. Thus, there is a 16 hours delay in
registration of said crime, which is not explained.
8.1) He submits that, the room was completely dark, when the
incident occurred and that, at that time PW12-Sanvi was sleeping. He
submitted that looking at the nature of assault, PW12-Sanvi undoubtedly,
must have panicked and in such a mental state, it is impossible for a small
child aged 10 years like PW12-Sanvi, to courageously remain at the
scene/spot of the incident, observe the assault closely, and identify the
assailant. He submitted that to the contrary, being frightened, PW12-Sanvi
immediately ran out of the house. He submits that, according to PW14-
Zubeda, immediately after the incident she saw the accused standing near a
water tank, in front of the room of incident, however, there was no light
where the accused was allegedly standing, near the tank. Thus, it is apparent
that, PW14-Zubeda, lied to the Court that, she saw the accused as above,
immediately after the incident.
P.H. Jayani 2.CONF02.24.doc
8.2) He submits that, there is discrepancy in the evidence of PW12-
Sanvi and PW14-Zubeda. Initially PW12-Sanvi stated that, the accused
escaped on a motorcycle, but in cross-examination she admitted that, the
accused escaped from the back side door. However, evidence of PW14-
Zubeda indicates that, the accused fled from the front side of the room.
Learned counsel submits that this discrepancy is sufficient to hold that, the
aforesaid two witnesses had not seen the accused while assaulting the victims
and nor immediately thereafter. Further, he submits that looking at the
quality of the evidence of PW12-Sanvi, she appears to be a tutored witness,
therefore, it would be risky to act upon her evidence.
8.3) He submits that, PW4-Shrikant Kamble, panch to the disclosure
statement of the accused leading to recovery of his blood stained clothes has
turned hostile and that the said witness admits that, he did not go out of the
police station. This fact makes the clothes recovery doubtful. The recovery
of the wooden log is from an open place, which was easily accessible to all
and as such the said disclosures and recoveries are neither admissible in
evidence nor reliable.
8.4) In view of the above submission, learned Advocate for the
accused submits that, there is a reasonable doubt about the truthfulness of
P.H. Jayani 2.CONF02.24.doc
the prosecution story and therefore the accused, is entitled for acquittal by
giving him benefit of doubt. To accept this, he has relied upon following
decisions :
Naresh vs. State of Haryana1
Jasobanta Sahu vs. State of Orissa2
Pradeep vs. State of Haryana3
Rahul vs. State of Delhi4
Sarwan Singh Rattan Singh vs. State of Punjab5
Rajesh and Anr. vs. State of Madhya Pradesh6
Ramanand vs. State of Uttar Pradesh7
8.5) In the alternate, he submits that looking at the submissions
made by and on behalf of the accused before the trial Court on the point of
sentence, his socio-economic condition, the period he has served in jail till
date, there being no adverse report about conduct of the accused in the jail,
this is a fit case to commute the death penalty to life imprisonment. Learned
counsel cited the following decisions, in support of his submission.
Bachan Singh vs. State of Punjab8
Machhi Singh and Ors. vs. State of Punjab9
1 (2023) 10 SCC 134
3 2023 SCC Online SC 777
4 (2023) 1 SCC 83
5 1957 SCC Online SC 1
6 2023 SCC Online SC 1202
7 2022 SCC Online SC 1396
8 AIR 1980 SC 898
9 AIR 1983 SC 957
P.H. Jayani 2.CONF02.24.doc
Rameshbhai Chandubhai Rathod vs. State of Gujarat10
Santoshkumar Shantibhushan Bariyar vs. State of Maharashtra11
Ramnaresh & Ors. vs. State of Chandigarh12
Sangeet & Anr. vs. State of Haryana13
Madan v/s. State of Uttar Pradesh14
Prakash Dhawal Khairnar (Patil) v/s. State of Maharashtra State of
Maharashtra v/s. Sandeep alias Babloo Prakash Khairnar (Patil) 15
Proof of culpable homicide amounting to murder :
9) Considering the charge held against the accused, first and
foremost the prosecution is duty bound to prove that the death of Chhaya,
Sanvi, Rupali and Rohit was homicidal. The evidence indicates that,
immediately after the incident PW23-Sr. PI Patil sent the body of Chhaya
for postmortem and PW6-Abhishek removed the injured Sonali, Rupali and
Rohit to the Civil Hospital by ambulance but soon the three died there. The
defence has admitted the Inquest Panchanamas and has not disputed that,
PW19-Dr. Ravikant Terwade conducted the postmortem examination of
Chhaya; that PW20-Dr.Prabhakar Patil held the postmortem examination of
Sonali, Rupali and Rohit; that they noticed the grievous injuries stated in the
10 (2011) 2 SCC 764
11 (2009) 6 SCC 498
12 AIR 2012 SC 1357
13 (2013) 2 SCC 452
14 2023 SCC OnLine SC 1473
15 (2002) 2 SCC 35
P.H. Jayani 2.CONF02.24.doc
respective postmortem report; and that they gave the postmortem reports,
accordingly (Exhs.69, 73, 76 & 79). In fact, it is not in conflict from the
accused side that, the death of the four deceased is homicidal. Yet, as we are
seized with the question of confirmation of the death penalty and, that the
accused has also impugned the sentence as unwarranted, we deem it proper
to reproduce the injuries suffered by the four deceased because it would aid
in getting an insight as to the intention as well as the brutality with which
the homicidal deaths have been caused. This exercise would also assist to
answer the significant question viz., whether the death penalty should be
upheld or not.
10) The assertion of PW19-Dr. Terwade linked with the postmortem
report (Exh.69) indicates that, Chhaya had suffered the following injuries.
External Injuries :
1) Incised wound over left parieto occipital region of scalp, size 22
cm x 11 cm, comminuted fracture of skull; Brain matter expelled
out from skull vault; Brain matter contains skull bone pieces;
The injury was red in colour.
2) Incised wound over left parietal region of scalp, below
injury No.1 and 5 cm from ear, size 7cm x 10 cm, muscle and
bone deep with fracture of skull; The injury red in colour.
P.H. Jayani 2.CONF02.24.doc
3) Hematoma over left arm medial aspect with size 5 cm x 4 cm red
in colour.
4) Palatable comminuted partial occipital region on left side.
Internal injuries :
1) Hematoma over left parietal region of scalp, size 7 cm x 6 cm,
blackish red in colour.
2) Hematoma over occipital region of scalp, size 8 cm x 6 cm,
blackish red in colour.
10.1) PW19-Dr. Terwade deposed that, all above injuries were ante-
mortem injuries. He opined that, the injuries are possible by heavy, sharp or
cutting edged object; that, the said injuries were sufficient in the ordinary
course of nature to cause death; that, the cause of the death was hemorrhagic
shock due to the injuries to the vital organ. He has deposed that, he took
samples of blood and sternum of the Chhaya and gave it to police. That, the
aforesaid injuries are possible by the wooden log.
11) The evidence of PW20-Dr.Patil along with the postmortem
report (Exh.73) revealed that, Sonali had suffered the following injuries.
P.H. Jayani 2.CONF02.24.doc
External Injuries :
1] cut wound at right parietal region 7 cm x 1 cm bone deep.
2] cut would at occipital region 6 cm x 1 cm bone deep.
3] cut would at right frontal region 2 cm x 1 cm.
4] abrasion at right shoulder 3cm x 0.5 cm.
5] abrasion at right wrist 4 in number each of size 0.2 cm x 0.1 cm.
Internal Injuries :
1] Scalp haematoma over right parietal region 6 cm diameter.
2] fracture of 5 cm depressed type, antero posterior over right
parieto temporal bone.
3] fracture of 12 cm zigzag in coronal plane over occipital bone.
4] Subdural haematoma of defused type over right hemisphere.
11.1) PW20-Dr.Patil deposed that, the injuries stated in column
Nos.17 and 19 were ante mortem, grievous in nature and fatal and that the
said injuries were sufficient in the ordinary course of nature to cause death.
The cause of death was intracranial bleeding due to the head injury.
12) The evidence of PW20-Dr.Patil coupled with the postmortem
report (Exh.76) disclosed that, Rupali had suffered the following injuries.
External Injuries :
1) CLW- at right parieto frontal region 9 cm x 0.5 cm bone
deep, oblique.
2) cut wound at right temporoparietal region posterior to injury
No.1 above, size 4cm x 1 cm bone deep.
3) cut wound over right temporal region behind right ear, size
4 cm x 0.5 cm bone deep.
4) cut wound at right partial region 4 cm x 0.5 cm bone deep.
P.H. Jayani 2.CONF02.24.doc
Internal Injuries :
1) scalp haematoma at right frontal region 3 cm diameter.
2) fracture of right temporoparietal bone L shape, vertical 9 cm and
horizontal 6 cm.
3) fracture of base of skull present.
12.1) PW20-Dr. Patil opined that, the injuries mentioned in column
Nos.17 and 19 were ante mortem, grievous in nature and fatal and that the
said injuries were sufficient in the ordinary course of nature to cause death.
The cause of death was intracranial bleeding due to head injury.
13) The evidence of PW20-Dr.Patil alongwith the postmortem
report (Exh.79) revealed that, Rohit had suffered following injuries.
External Injuries :
1) cut wound over right parietal region, oblique, 9 cm x 0.5 cm,
bone deep.
2) cut wound anterior to injury no. (1), 4 cm x 0.5 bone deep.
3) laceration over right ear 2 cm.
Internal Injuries :
1) Scalp haematoma over right parietal region 5 cm diameter.
2) fracture of 18 cm zigzag in coronal plane over parietal bones.
3) fracture of 6 cm in coronal plane posterior to fracture No.1
over right parietal bone.
13.1) PW20-Dr. Patil opined that, the injuries were ante mortem,
grievous in nature and fatal and that the said injuries were sufficient in the
P.H. Jayani 2.CONF02.24.doc
ordinary course of nature to cause death. The cause of death was intracranial
bleeding due to head injury.
14) According to PW20-Dr. Patil, the injuries noted in the
postmortem reports (Exhs.73, 76 & 79) are possible by hard and sharp
edged weapon. In his opinion the said injuries are possible by the Wooden
log MO1. He has deposed that, he collected the blood, hairs and bone
samples of deceased Sonali, Rupali and Rohit and gave it to the police.
15) In so far as the cross-examination of PW19-Dr. Terwade and
PW20-Dr. Patil is concerned, nothing material has been elicited so as to
record a variance in their testimonies. Therefore, it is safe to rely upon the
said expert evidence. From the said evidence it is obvious that, the injuries
sustained by the four deceased were caused by inflicting immensely forceful
blows with the object stated by both the experts and as such, there can be no
doubt that, the said injuries were inflicted with an intention to cause death.
In view thereof, we conclude that, the deaths of Chhaya, Sonali, Rupali and
Rohit constitute culpable homicide amounting to murder as defined in
Section 300 of I.P.C.
Abhishek's family and the accused were residing together :
16) Now coming to the material incriminating evidence against the
P.H. Jayani 2.CONF02.24.doc
accused. The accused has admitted the relationship of PW6-Abhishek with
the four deceased; that PW12-Sanavi is daughter of Rupali, from her first
husband; that Rupali was divorced from her first husband; that therefore,
Rupali and PW12-Sanavi were residing with PW6-Abhishek. However, the
accused has disputed that Rupali was married to him. Yet, the accused has
admitted that Ganesh is his biological child from Rupali. The accused has
not challenged the evidence of PW12-Sanvi and PW14-Zubeda that, at the
time of incident he, Rupali, and Ganesh were residing with PW6-Abhishek;
that Sonali had come to stay with PW6-Abhishek for her delivery purpose.
The accused has not disputed the evidence of PW14-Zubeda that, at the
time of the incident she, her husband Alam and daughter Mehar were
residing at Shirgave mala. Therefore, mere denial by the accused in his
statement under Section 313 of Cr.P.C. that he was not residing with PW6-
Abhishek, is of no avail. Hence, we hold that, at the time of incident all the
aforesaid family members including the accused were residing together in
the room/house where the incident had occurred.
Prelude of the incident :
17) The evidence of PW12-Sanavi Jagtap is that, at the relevant time
her mother Rupali used to talk with someone on phone; that the accused did
not like it; and that Rupali and accused used to quarrel on account of mobile
P.H. Jayani 2.CONF02.24.doc
phone. PW6-Abhishek has also deposed that the accused was suspecting on
Rupali as she was talking on mobile phone and, that the accused used to
threaten and assault Rupali. PW10-Rupesh Airekar has deposed that
Chhaya was his aunt and her children were his cousin; that relations between
accused and Rupali were not good; that Chhaya used to inform him that the
accused was suspecting Rupali's character, as she was talking on mobile
phone and used to assault her. PW14-Zubeda also testified that, there used
to be frequent quarrels between the accused and Rupali because the later
would often talk on her mobile phone.
17.1) PW6-Abhishek has deposed that, on 30th September 2018, at
about 08:00 p.m., when Rupali was returning home from work, the accused
assaulted her, therefore, Chhaya and Sonali gave the accused an
understanding, however the accused did not listen and continued suspecting
Rupali's character. He deposed that on 03rd October 2018, there was quarrel
between the accused and Rupali.
17.2) The aforementioned evidence of the four is consistent that, as
Rupali was regularly talking on phone with some person, the accused did not
like that and on that account, he was suspecting Rupali's character, that he
P.H. Jayani 2.CONF02.24.doc
used to quarrel with her and threaten and assault her. Said evidence is
corroborated by the report (Exh.35). Nothing has come in the cross-
examination of the aforesaid four witnesses to disbelieve their said claim.
They have no reason to falsely depose the said facts. Hence we hold the
same.
18) PW6-Abhishek has deposed that, on 05th October 2018, at
about 08:00 p.m., he was to go for work in the night shift; that at about
09:00 p.m., quarrel took place between accused and Rupali on account of
the accused snatched Rupali's mobile phone when she was talking on the
phone, however, the dispute was settled. This evidence is supported by the
report (Exh.35) and testimony of PW12-Sanavi that, on 05th October, 2018
at about 08:00 p.m., while Rupali was talking on phone, the accused took
the mobile phone from Rupali and started leaving; that therefore, Sonali
held the collar of the accused; that the accused gave a jerk to Sonali and ran
away; and that, thereafter PW6-Abhishek went to his work.
18.1) PW12-Sanavi has deposed that, after the aforesaid quarrel they
all eat and slept in the house; that, at about 11:00 p.m., someone knocked
the door; that therefore, Rupali called to PW8-Jagdish Sankpal, Police Patil
who came there; at that time, the accused was near her house; that the Police
P.H. Jayani 2.CONF02.24.doc
Patil took the mobile phone of Rupali and the accused and told the latter to
go away; that then the accused and Police Patil went away and they all slept.
This assertion is consistent with the evidence of PW8-Jagdish Sankpal that,
on 05th October 2018, at about 11:30 p.m., Namdeo Shirgave informed him
on phone that, the accused and the four deceased were quarreling; that
within short time, he went there and saw them quarreling; that therefore, he
and others intervened; that the quarrel was on account of the accused
suspected that Rupali was talking on mobile, hence, he advised the
quarreling parties to lodge a report, but they declined giving an excuse that it
was a domestic dispute and they will resolve it. This evidence also find aid
from the evidence of PW14-Zubeda that, in the night of the incident, when
she and Mehar returned home from work at about 11:30 p.m., her husband
Alam told her that Rupali was talking with someone on mobile phone and it
led to a quarrel between the couple. This is very natural on the part of Alam,
as he was expected to see the said quarrel. The aforesaid testimonies hardly
met an adequate challenge in the cross-examination. It seems very natural.
Therefore, it is safe to rely upon the same. Accordingly we hold that, just 2/3
hours before the murders, there was quarrel between Rupali and the accused
on account of Rupali was regularly talking on mobile phone and therefore
the accused suspected her character.
P.H. Jayani 2.CONF02.24.doc
Direct evidence as to the murders :
19) On the crucial aspect of the murders, PW12-Sanavi has deposed
that, at about 03:00 a.m., the accused opened the latch and came inside the
house; that then, the accused assaulted Rupali by means of a wooden log;
that she woke up due to its noise; then she saw that the accused assaulted
Chhaya, Sonali and Rupali on their head by the same wooden log; then the
accused ran away on a motorcycle. She has deposed that Chhaya died on the
spot and the other injured were removed to Sangli hospital, however, soon
they also expired. This evidence did not meet requisite contest in the cross-
examination so as to brush the same aside. It is corroborated by PW12-
Sanavi's statement under Section 164 of Cr.P.C. at (Exh.45). Looking at the
facts and circumstances of the case, it is apparent that PW12-Sanavi is a
natural witness of the incident because she being a child, aged 10 years, she
was expected to be in the company of her mother Rupali. In fact PW12-
Sanavi has successfully withstood the cross examination and thus, has passed
all the test to accept her evidence as a reliable child witness. Hence, the claim
of PW12-Sanavi that she witnessed the accused assaulting the four deceased
is worthy of reliance.
19.1) The conclusion from the prelude makes it evident that, as Rupali
was regularly talking on phone with someone, the accused did not like that.
P.H. Jayani 2.CONF02.24.doc
As a result, he used to frequently quarrel with Rupali and assault her. For the
same reason there was quarrel between Rupali and accused at 8:00 p.m. and
11:00 p.m. prior to occurrence of the incident in which other deceased were
also involved. Therefore, it is probable that the accused would develop
anger against all the deceased including Rupali and the said anger would
lead the accused to assault them. Thus, the conclusion as to the prelude
strengthens the testimony of PW12-Sanavi, on the point of the assault.
19.2) As held above, the accused, Rupali and PW12-Sanavi were
residing with PW6-Abhishek' family. The accused has not satisfactorily
explained as to why PW12-Sanavi would falsely deposed against him that he
committed the murder of four. Except the accused, no other person had any
dispute or quarrel with Rupali, Chaya, Sonali and Rupesh, immediately
before their murder. Therefore, the question does not arise of any other
person committing their murder, nor it was the defence of the accused.
Thus, on this count also, the said testimony of PW12-Sanavi cannot be
rejected.
Evidence as to conduct of witnesses and accused:
20) Evidence of PW12-Sanavi clearly indicates that, immediately
P.H. Jayani 2.CONF02.24.doc
after the incident she went to her neighbour Mehar didi and informed the
incident to her and one shopkeeper. Looking at the age of PW12-Sanavi at
the time of incident, it is natural that on witnessing the terrorising and heart
rending incident she would get frightened and therefore she would rush to
the neighbour to get some help and inform the incident to them.
20.1) Evidence of PW14-Zubeda bespeaks that, after the dinner she
slept and her husband Alam was watching TV; that, after some time, she
heard a sound of smacking (फटाफट) and crying of Sanavi. This is highly
probable as rooms of PW14-Zubeda and accused were adjacent to each
other. PW14-Zubeda has deposed that, initially she alone went to the room
of the accused; that, at that time, she saw that the accused was having a
wooden log in his hand and he was standing near a water tank; that, Sanavi
was holding Sonali's baby and she was crying; that, then she, her husband
and daughter Mehar went inside the said room and saw the four injured
there; that her husband asked Sanavi as to the assailant on which she replied
that, it is the accused; that, they informed the incident to Mali mama, who
called the police. Lastly, she has proved her statement under Section 164 of
Cr.P.C. (Exh.53).
P.H. Jayani 2.CONF02.24.doc
20.2) PW6-Abhishek has deposed that, at about 04:30 a.m. of 6th
October, his friend Vikram came to his work place and informed about the
incident; that immediately, he rushed home riding on Vikram's bike; that,
when he reached home he saw that, PW12-Sanvi and Ganesh were present
in the house; that Chhaya was lying dead on a cot; that Sonali, Rupali and
Rohit were lying there with injuries on head. He has deposed that, at that
time PW12-Sanavi informed him that at about 3.00 a.m. the accused came
home and assaulted the four deceased by means of wooden log; that he was
intending to kill her; that therefore, she lifted Ganesh (Sonali's son) and
went to the neighbour's house; then he promptly lodged the report
(Exh.35). Further, he has proved his statement under Section 164 of Cr.P.C.
(Exh.36).
20.3) The evidence of PW8-Jagdish Sankpal, Police Patil is that, at
about 05:00 a.m. to 05:30 a.m. of 6 th October, Namdeo Shirgave called and
informed him, that again there was a quarrel, Rupali, Sonali and Rohit were
injured and they have been taken to the Hospital. Lastly, he has proved his
statement under Section 164 of Cr.P.C. (Exh.39).
20.4) PW10-Rupesh Airekar has deposed that, on 06 th October 2018,
his cousin Sunil Airekar informed him the incident on phone; that he went
P.H. Jayani 2.CONF02.24.doc
to the spot and saw the scene of the crime; that PW12-Sanvi told him that
the accused assaulted Chhaya, Sonali, Rupali and Rohit and ran away.
20.5) The aforesaid evidence of the PW14-Zubeda, PW8-Jagdish
Sankpal, PW12-Abhishek and PW10-Rupesh Airekar are consistent. The
said testimonies are corroborated by their statement under Section 164 of
Cr.P.C. (Exhs.36, 39 and 53). It is common experience that on getting
knowledge or information of such a serious incident, any normal person
would react as the aforesaid witnesses reacted when they perceived/knew
about the incident. Similarly, it is foreseeable that, PW12-Sanavi would
disclose the incident to her close relatives and neighbour at the very first
encounter with them, post incident.
21) In the above context it is significant to note that PW14-Zubeda
has candidly stated that, after perceiving the incident when she first went to
the room of the accused, the latter was standing near the water tank and he
was holding a wooden log. Said water tank was in front of the room of
accused, as PW14-Zubeda admitted . The accused failed to explain as to why
he was standing there at such an abnormal time in the night, holding an
unwanted object in hand. On the contrary, if the accused was innocent, he
was expected to be in the room to attend all the deceased who were seriously
P.H. Jayani 2.CONF02.24.doc
injured and get them prompt medical, which he regrettably did not. That
apart, the accused also not tried to immediately report the incident to police
and surprisingly, outsiders had to do that for him. This is quite unnatural of
the accused. Hence, the aforesaid evidence is reliable that, on getting
information of the incident, the said four witnesses rushed to the spot and
PW12-Sanavi informed them the incident and that, the accused assaulted
the four deceased as above. Thereafter, PW6-Abhishek lodged the prompt
report (Exh.35) ruling out the possibility of concocting a story and false
implication of the accused in the crime.
Absence of accused at his work place :
22) The evidence of PW7-Gundurao clearly indicates that, at the
relevant time he and the accused were serving in Manpasand Textile process,
Yadrav. This fact is admitted by the accused in his statement under Section
313 of Cr.P.C. Even though PW11-Raju Gaikwad turned hostile, he has
deposed that the accused was working in Manpasnad company and this
evidence remained unchallenged by the accused. PW7-Gundurao has
deposed that, on 05th October 2018, he was on night duty on the east side
gate of the company; that at about 08:00 p.m., the watchman on duty Mr.
Chougule gave him the report of day duty; that on that day, the accused had
done the day duty; that the accused again came for the night duty at about
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09.00 p.m.; that entry to that effect was taken in the 'Ingress and Egress'
register; that the accused had gone out of the company and he returned at
about 02:30 a.m. The accused has admitted the aforesaid facts in his
statement under Section 313 of Cr.P.C. with a distinction that, he returned
to the work place at about 02:00 a.m. The accused did not explain as to
where he had gone out of the company. Therefore, and considering the other
evidence it is safe to presume that, the accused had gone to his house to
commit the murders.
Other circumstantial evidence :
23) The evidence indicates that, after getting the information of the
incident from PW8-Jagdish Sankpal and others, PW23-Sr. PI Patil, Shivaji
Nagar Police Station, Ichalkaranji visited the spot for initial investigation,
because jurisdictional police officer PW24-API Harugade was on leave.
PW23-Sr. PI Patil instructed PSI Yadav to record the spot panchnama.
PW13-Mahadeo Kamble, spot panch has testified that, police inspected the
spot and seized several blood stained quilts, pillows, clothes, school
uniforms, chappals, broken bangle pieces etc. MO24 to MO35, from the
spot; that police also sealed the samples of the blood found on the spot; that
police recorded the spot panchanama (Exh.47). PW10-Rupesh Airekar also
stated that police prepared the spot panchanama in his presence.
P.H. Jayani 2.CONF02.24.doc
24) PW23-Sr. PI Patil has testified that, PSO Gawali recorded the
report (Exh.35) of PW1-Abhishek; that, he seized the blood samples and
clothes MO7 to MO24 of the deceased under panchanama (Exhs.11 and
29); that, PSO Gawali arrested the accused vide arrest Panchanama
(Exh.95); and that he gave the letter (Exh.97) to obtain a DNA kit. There is
nothing on record to disbelieve the aforesaid evidence.
Disclosure statement and recoveries :
25) PW3-Sham Kamble and PW24-API Harugade have testified
that, on 8th October 2018, the accused gave a disclosure statement (Exh.16)
in presence of him and two panchas; that thereafter, the accused lead them to
village Shirgave Mala, Yadrav; that there, the accused produced the wooden
log MO1 from bushes; and that PW24-API Harugade seized the same under
recovery panchnama (Exh. 17). PW12-Sanavi identified the said wooden log
as the weapon of the offence.
25.1) PW9-Sunil Mane has testified that, on 11th October 2018 the
accused gave a disclosure statement (Exh.21) in his presence, co-panch and
the police that, he would show and produce his clothes; that, then the
accused led them to certain factory and there the accused produced his
P.H. Jayani 2.CONF02.24.doc
clothes i.e., t-shirt article MO3 blue jeans MO4 from one bag. PW24-API
Harugade has also deposed the said fact but with slight variation. However,
nothing turns on it looking at the evidence as a whole. Therefore, there is no
hurdle to accept the disclosure (Exh.21) and the recovery of the clothes
(Exh.22).
C.A. and D.N.A. Reports :
26) The evidence of PW17-PHC Gurunath and PW24-API
Harugade joined with letter (Exh.62) proves that, on 19th October 2018,
PW17- PHC Gurunath carried the MOs and blood samples seized from the
spot, the clothes of the deceased persons, the clothes of the accused and their
blood samples to the R.F.S.L., Kolhapur and deposited the same there.
26.1) From the evidence of PW15-PC Amit Bhore and PW24-API
Harugade coupled with the letters (Exh.55 & 56), it has been proved that on
11th October, 2018 PW15-PC Amit Bhore received the sealed D.N.A.
samples of the four deceased and accused; that he carried the same and
deposited at the RFSL, Pune on 12th October, 2018.
26.2) Evidence of PW16-Dr. Smita Mahadik shows that, she took
sample nails clippings of the accused and forwarded it to PW23-Sr. PI Patil
P.H. Jayani 2.CONF02.24.doc
along with query reply letter dated 15th October 2018 (Exh.60), answering
the queries asked by the police vide letter (Exh.59). From the evidence of
PW18-PC Shaikh and PW24-API Harugade, it has been proved that on 1st
November 2018, PW18-Shaikh received the sealed sample nail clippings of
the accused from PW24-API Harugade; that he carried the same to the
R.F.S.L. Pune and deposited it there under a forwarding letter (Exh.64).
27) Now about the C.A. and D.N.A. Reports (Exh.122 to 130). The
said reports indicate that, the D.N.A. of the blood on found on certain
muddemal objects (MOs) matched with the D.N.A. of the four deceased. Its
details are as under :
Sr. Description {All samples referred below are subject to samples referred by
No. RFSL Pune ML Case No.DNAp-931/18}
1. DNA profile obtained from Ex.1 - nails cutting of Pradip Jagtap (RFSL Pune
ML Case No.DNAp-1006/18) matched with DNA profile obtained from Ex.1
blood of Pradip Jagtap
2. DNA profile obtained from blood stained Quilt MO24-Ex.1; blood stained
Pillow MO29-Ex.6; blood stained Blouse of Chaya MO9-Ex.16 matched with
DNA profile obtained from Ex.9 Sternum of Chaya
3. DNA profile obtained from blood stained Quilt MO25-Ex.2; blood stained
Quilt MO27-Ex.4; blood stained Pillow MO28- Ex.5; blood stained Frock
(school uniform)MO32-Ex.9; scrapping-Ex.11; blood stained small cloth
piece-Ex.12; blood stained small cloth piece -Ex.14; blood stained Gown of
Sonali MO13-Ex.18; blood stained peticoat MO14-Ex.19 matched with DNA
profile obtained from Ex.5 and Ex.6 Sternum of Sonali
4. DNA profile obtained from blood stained Quilt MO26-Ex.3; blood stained
Pillow MO30-Ex.7; blood stained Pillow MO31- Ex.8 matched with DNA
profile obtained from Ex.7 and Ex.8 Sternum of Rupali
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5. DNA profile obtained from blood stained frock (school uniform) MO33-
Ex.10; Scrapping -Ex.15; blood stained full shirt of Rohit MO21-Ex.22;
scrapping from wooden log MO1-Ex.23; blood stained half T-shirt of accused
MO3-Ex.24; blood stained full jeanspant of accused MO4 -Ex.25 matched
with DNA profile obtained from Ex.3 and Ex.4 Sternum of Rohit
6. Mixed DNA profile obtained from blood stained small cloth piece - Ex.13;
blood stained top of Rupali MO17 -Ex.20; blood stained leggings MO18 -
Ex.21 matched with DNA profile obtained from Ex.5 and Ex.6 Sternum of
Sonali and Ex.7 and Ex.8 Sternum of Rupali
7. Mixed DNA profile obtained from blood stained peticoat of Chaya MO10 -
Ex.17 matched with DNA profile obtained from Ex.3 and Ex.4 Sternum of
Rohit and Ex.9 Sternum of Chaya
27.1) Thus, it is evident that the DNA of the blood collected from the
spot, muddemal objects like quilts, pillows etc. and clothes of the deceased
persons matched with the DNA samples of the deceased persons, as above.
Another significant factor to be noted is that, the DNA of the blood found
on the wooden log (MO1) matched with the DNA sample of deceased
Rohit, whose DNA matches with the DNA of three other deceased persons.
The end result of the above is that only accused is responsible for all the
murders, concealment of his blood stained clothes and the weapon of the
offence.
Failure of accused to give probable explanation :
28) In case of Munna Kumar Upadhaya vs. State of Andhra
Pradesh16, in paragraph 76, the Supreme Court has observed that, if the
16(2012) 6 SCC 174
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accused gave incorrect or false answers during the course of his statement
under Section 313 Cr.P.C., the Court can draw an adverse inference against
him. In the present case, we are of the considered opinion that the accused
has not only failed to explain his conduct, in the manner in which every
person of normal prudence would be expected to explain but had even given
incorrect and false answers. Therefore, the Court not only draws an adverse
inference, but such conduct of the accused would also tilt the case in favour
of the prosecution. The accused also failed to explain the blood on the
recovered wooden log and the clothes. In conclusion, failure on the part of
the accused to give probable explanation is one more circumstance against
him.
Appropriate Sentence :
29) In view of the forgoing discussion, the crucial question that
arises for consideration is, what would be an appropriate sentence in this
Appeal? Undoubtedly, punishment should be proportional to the offender's
culpability and the crime. The trial Court held the accused guilty of the
charge on 22nd March 2024, and adjourned the case to 26th March 2024 for
hearing the accused and the A.P.P. on the point of sentence, in compliance of
the mandate of Section 235 (2) of the Code. After such hearing on 26th
P.H. Jayani 2.CONF02.24.doc
March 2023, the trial Court pronounced the impugned sentence holding
that the offence is of such kind that it falls in the exceptional category of
'rarest of rare case', warranting capital punishment. To reach this conclusion,
the trial Court considered facts and circumstances of the case in the light of
the guiding factors and parameters laid down in Bachan Singh (supra) and
Machhi Singh (supra) and noted that, thereafter, time and again, Hon'ble
Supreme Court affirmed the need of death penalty in brutal and heinous
crimes. In this background, the trial Court evaluated the 'Aggravating and
Mitigating' circumstances, and convicted and sentenced the accused as stated
aforesaid in para 1 of the Judgment.
30) No case of this kind is complete without reference to the
decision of the Hon'ble Supreme Court in cases of Bachan Singh (supra) and
Machhi Singh (supra). However, it would be beneficial to have a look to
the different parameters and guiding factors laid down by the Hon'ble
Supreme Court in the field. We may hasten to add that always precedents
would serve as a guiding factor, but, the Courts have to decide the quantum
and nature of punishment depending on peculiar facts of the case.
31) In case of Santosh Kumar (supra), the Hon'ble Supreme Court
has held that the nature, motive, impact of crime, culpability, quality of
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evidence, socio-economic circumstances, impossibility of rehabilitation are
some of the factors, the Court may take into consideration while dealing
with such cases.
32) In case of Rajendra Pralhadrao Wasnik vs. State of
Maharashtra17, it is observed that, if the evidence is proved by circumstantial
evidence, ordinarily, death penalty would not be awarded.
33) In case of Deepak Rai vs. State of Bihar 18, the Hon'ble Supreme
Court noticed the shift in sentencing policy after elucidating the perceptible
difference between Section 367(5) of the Code of Criminal Procedure, 1898
and Section 354 (3) of the present Code, 1973. Additionally, the Apex
Court has referred to case law on the subject of death penalty and quoted the
following passage from Bachan Singh (supra) interpreting Section 354 (3) of
the Code :-
"(a) The normal rule is that the offence of murder shall be punished
with the sentence of life imprisonment. The Court can depart from
that rule and impose the sentence of death only if there are special
reasons for doing so. Such reasons must be recorded in writing
before imposing the death sentence.
(b) While considering the question of sentence to be imposed for
the offence of murder under Section 302 of the Penal Code, the
Court must have regard to every relevant circumstance relating to
17 (2019) 12 SCC 460
18(2013) 10 SCC 421
P.H. Jayani 2.CONF02.24.doc
the crime as well as the criminal. If the Court finds, but not
otherwise, that the offence is of an exceptionally depraved and
heinous character and constitutes, on account of its design and the
manner of its execution, a source of grave danger to the society at
large, the Court may impose the death sentence."
34) In case of Bachan Singh (supra), the Apex Court observed that
special reasons means exceptional reasons founded on exceptionally grave
circumstances relating to the crime and the criminal. Further, it is held that,
relative weight has to be given to aggravating and mitigating circumstances,
which are interlaced. Broad exemplifying guidelines have been laid down
emphasizing that death penalty is an extreme penalty to be imposed only in
rarest of rare crimes.
35) In case of Machhi Singh (supra), the following categories of
crimes were delineated to possibly fall in this extreme category, but with the
caution that the said factors are not inflexible, absolute or immutable, but
only indicators :-
"I. Manner of commission of murder -
(i) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as to
arouse intense and extreme indignation of the community. For
instance, (i) when the house of the victim is set aflame with the
end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or
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cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body
is dismembered in a fiendish manner.
II. Motive for commission of murder -
When the murder is committed for a motive which evinces total
depravity and meanness. For instance when (a) a hired assassin
commits murder for the sake of money or reward (b) a cold-
blooded murder is committed with a deliberate design in order
to inherit property or to gain control over property of a ward or
a person under the control of the murderer or vis-à-vis whom
the murderer is in a dominating position or in a position of
trust, or (c) a murder is committed in the course of betrayal of
the motherland.
III. Anti-social or socially abhorrent nature of the crime -
(a) When murder of a member of a Scheduled Caste or
minority community, etc. is committed not for personal reasons
but in circumstances which arouse social wrath. For instance
when such a crime is committed in order to terrorize such
persons and frighten them into fleeing from a place or in order
to deprive them of, or make them surrender, lands or benefits
conferred on them with a view to reverse past injustices and in
order to restore the social balance.
(b) In cases of 'bride burning' and what are known as 'dowry
deaths' or when murder is committed in order to remarry for
the sake of extracting dowry once again or to marry another
woman on account of infatuation.
IV. Magnitude of crime -
When the crime is enormous in proportion. For instance when
multiple murders say of all or almost all the members of a
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family or a large number of persons of a particular caste,
community, or locality, are committed.
V. Personality of victim of murder -
When the victim of murder is (a) an innocent child who could
not have or has not provided even an excuse, much less
aprovocation, for murder (b) a helpless woman or a person
rendered helpless by old age or infirmity (c) when the victim is a
person vis-à-vis whom the murderer is in a position of
domination or trust (d) when the victim is a public figure
generally loved and respected by the community for the services
rendered by him and the murder is committed for political or
similar reasons other than personal reasons.
36) In case of Ramnaresh (supra), the Supreme Court has observed
that cumulative effect of aggravating and mitigating circumstances has to be
considered and it may not be appropriate for the Court to give importance to
one of the classes under a particular head, ignoring the classes under the
other head for balance and equilibrium is required. The Apex Court after
analyzing aggravating and mitigating circumstances enunciated the
principles as under :-
(1) The Court has to apply the test to determine, if it 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.
P.H. Jayani 2.CONF02.24.doc
(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 considerations.
(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.
37) In the decision Shankar Kisanrao Khade vs. State of
Maharashtra19 the Hon'ble Supreme Court again referred a large number of
cases on either side, that is, where the death sentence was upheld/awarded or
where it was commuted; and pointed out the requirement of applying 'crime
test', 'criminal test' and 'rarest of rare test'. On referring certain earlier
decisions, the Hon'ble Supreme Court stated the aggravating circumstances
(crime test) and the mitigating circumstances (criminal test) in paragraph 49
of the decision, thus :
"49. In Bachan Singh and Machhi Singh cases, this Court laid
down various principles for awarding sentence: (Rajendra
Pralhadrao case, SCC pp. 47-48, para 33)-
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
19 (2013) 5 SCC 546
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in the commission of another serious 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 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
P.H. Jayani 2.CONF02.24.doc
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 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 appreciate the
circumstances of his criminal conduct.
(5) The circumstances 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
sole eyewitness though the prosecution has brought home the
guilt of the accused."
38) In case of Rajendra Wasnik (supra), in paragraphs 45 and 47, the
Hon'ble Supreme Court observed and held as follows :
"45. The law laid down by various decisions of this Court clearly
and unequivocally mandates that the probability (not possibility
P.H. Jayani 2.CONF02.24.doc
or improbability or impossibility) that a convict can be reformed
and rehabilitated in society must be seriously and earnestly
considered by the Courts before awarding the death sentence.
This is one of the mandates of the "special reasons" requirement
of Section 354 (3) CrPC and ought not to be taken lightly since
it involves snuffing out the life of a person. To effectuate this
mandate, it is the obligation on the prosecution to prove to the
Court, through evidence, that the probability is that the convict
cannot be reformed or rehabilitated. This can be achieved by
bringing on record, inter alia, material about his conduct in jail,
his conduct outside jail if he has been on bail for some time,
medical evidence about his mental make-up, contact with his
family and so on. Similarly, the convict can produce evidence on
these issues as well.
*** ***
47. Consideration of the reformation, rehabilitation and
reintegration of the convict into society cannot be over
emphasised. Until Bachan Singh (supra), the emphasis given by
the Courts was primarily on the nature of the crime, its brutality
and severity. Bachan Singh placed the sentencing process into
perspective and introduced the necessity of considering the
reformation or rehabilitation of the convict. Despite the view
expressed by the Constitution Bench, there have been several
instances... where there is a tendency to give primacy to the
crime and consider the criminal in a somewhat secondary
manner. As observed in Sangeet vs. State of Haryana (2013) 2
SCC 452. "In the sentencing process, both the crime and the
criminal are equally important." Therefore, we should not forget
that the criminal, however ruthless he might be, is nevertheless a
human being and is entitled to a life of dignity notwithstanding
his crime. Therefore, it is for the prosecution and the Courts to
determine whether such a person, notwithstanding his crime,
can be reformed and rehabilitated. To obtain and analyse this
information is certainly not an easy task but must nevertheless be
P.H. Jayani 2.CONF02.24.doc
undertaken. The process of rehabilitation is also not a simple one
since it involves social reintegration of the convict into society.
Of course, notwithstanding any information made available and
its analysis by experts coupled with the evidence on record, there
could be instances where the social reintegration of the convict
may not be possible. If that should happen, the option of a long
duration of imprisonment is permissible."
39) In case of Manoj Pratap Singh vs. State of Rajasthan 20, the
Hon'ble Supreme Court considered the earlier decisions and made certain
observation, which are helpful as guiding factor. The relevant observations
stated in paragraphs 76, 77 and 80 read as follows :
"76. The Court also stated that 'special reasons' in the context of
Section 354(3) CrPC would obviously mean 'exceptional
reasons', meaning thereby, that the extreme penalty should be
imposed only in extreme cases in the following terms: - (Bachan
Singh vs.State of Punjab (1980) 2 SCC 684)
"161. ....The expression "special reasons" in the context of this
provision, obviously means "exceptional reasons" founded on the
exceptionally grave circumstances of the particular case relating
to the crime as well as the criminal. Thus, the legislative policy
now writ large and clear on the face of Section 354 (3) is that on
conviction for murder and other capital offences punishable in
the alternative with death under the Penal Code, the extreme
penalty should be imposed only in extreme cases."
77. After taking note of various circumstances projected before
it, which could be of mitigating factors, and while observing that
the scope and concept of mitigating factors in the area of death
penalty must receive a liberal and expansive construction, the
Court proceeded to uphold the constitutional validity of Section
354 (3) CrPC, with the observations that the legislature had
20(2022) 9 SCC 81
P.H. Jayani 2.CONF02.24.doc
explicitly prioritised life imprisonment as the normal
punishment and death penalty as being of exception, and with
enunciation of rarest of rare doctrine in the following words : -
(Bachan Singh vs.State of Punjab (1980) 2 SCC 684)
"209.....It is, therefore, imperative to voice the concern that
Courts, aided by the broad illustrative guide-lines 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."
.....
80. The Court also explained the relevant propositions of
Bachan Singh (supra) and the pertinent queries for applying
those propositions in the following terms : - (Machhi Singh v.
State of Punjab (1983) 3 SCC 470)
"38. In this background the guidelines indicated in Bachan
Singh case will have to be culled out and applied to the facts of
each individual case where the question of imposing of death
sentence arises. The following propositions emerge from Bachan
Singh 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
P.H. Jayani 2.CONF02.24.doc
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
have 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.
39. In order to apply these guidelines inter alia the following
questions may be asked and answered:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and calls
for a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which
speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances
in the light of the aforesaid proposition and taking into account
the answers to the questions posed hereinabove, the
circumstances of the case are such that death sentence is
warranted, the Court would proceed to do so."
40) Recently, in case of Manoj & Ors. vs. State of Madhya Pradesh21,
after considering various decisions in line on the subject of death penalty, the
Hon'ble Supreme Court observed as below :
"223. The decades that followed, have witnessed a line of
judgments in which this Court has continually taken judicial
notice of the in-congruence in application of the 'rarest of rare'
test enunciated in Bachan Singh, and therefore, tried to restrict
imposition of the death penalty, in an attempt to strengthen a
principled application of the same.
224. This aspect was dealt with extensively in Santosh Kumar
Satishbhushan Bariyar vs. State of Maharashtra (2009) 6 SC 49
21 (2023) 2 SCC 353
P.H. Jayani 2.CONF02.24.doc
where the Court articulated the test to be a two-step process to
determine whether a case deserves the death sentence - firstly,
that the case belongs to the 'rarest of rare' category, and secondly,
that the option of life imprisonment would simply not suffice.
For the first step, the aggravating and mitigating circumstances
would have to be identified and considered equally. For the
second test, the Court had to consider whether the alternative of
life imprisonment was unquestionably foreclosed as the
sentencing aim of reformation was unachievable, for which the
State must provide material.
*****
227. Recently, while considering a review petition, this Court in
Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12
SCC 460 held that Bachan Singh had intended the test to be
'probability' and not improbability, possibility or impossibility of
reformation and rehabilitation as a mandate of Section 354(4)
Cr.P.C. The Court analysed numerous earlier precedents, noting
that evidence by the state on this has been sparse and limited,
but was essential for the Courts to measure the probability of
reform, rehabilitation and reintegration. The Court located this
requirement in the right of the accused, who regardless of being
ruthless, was entitled to a life of dignity, notwithstanding his
crime. While this process is not easy, it was noted that the
neither is the process of rehabilitation since it involve
reintegration into society. When this is found to be not possible
in certain cases, a longer duration of imprisonment was instead
permissible.
*****
232. This Court in Rajesh Kumar v. State (2011) 13 SCC 706
again reiterated that brutality in itself, was not enough to impose
death sentence - the accused was convicted for murder of two
children who offered no provocation or resistance to the brutal
and inhuman fashion in which the accused committed the crime,
however, it was held that due consideration to the mitigating
circumstances of the criminal still had to be given. Evidence had
to be placed on record by the State, demonstrating that he was
P.H. Jayani 2.CONF02.24.doc
beyond reform or rehabilitation, the absence of which was a
mitigating circumstance in itself. The High Court had merely
noted that he was a first time offender and had a family to take
care of - which this Court noted was a very narrow and myopic
view on the mitigating circumstances.
233. Therefore, 'individualised, principled sentencing' - based
on both the crime and criminal, with consideration of whether
reform or rehabilitation is achievable (held to be 'probable' in
Rajendra Pralhadrao Wasnik), and consequently whether the
option of life imprisonment is unquestionably foreclosed -
should be the only factor of 'commonality' that must be
discernible from decisions relating to capital offences. With the
creation of a new sentencing threshold in Swamy Shraddananda
(2), and later affirmed by a constitution bench in Union of India
v. Sriharan (2016) 7 SCC 1, of life imprisonment without
statutory remission (i.e., Article 72 and 161 of the Constitution
are still applicable), yet another option exists before imposition
of death sentence. However, serious concern has been raised
against this concept, as it was upheld by a narrow majority, and is
left to be considered at an appropriate time.
*****
241. In Santosh Bariyar, making observations on nature of
information to be collected at the pre-sentencing stage, this
Court further observed that :
"56. At this stage, Bachan Singh (1980) 2 SCC 684 informs the
content of the sentencing hearing. The Court must play a
proactive role to record all relevant information at this stage.
Some of the information relating to crime can be culled out from
the phase prior to sentencing hearing. This information would
include aspects relating to the nature, motive and impact of
crime, culpability of convict, etc. Quality of evidence adduced is
also a relevant factor. For instance, extent of reliance on
circumstantial evidence or child witness plays an important role
in the sentencing analysis. But what is sorely lacking, in most
capital sentencing cases, is information relating to characteristics
and socioeconomic background of the offender. This issue was
also raised in the 48th Report of the Law Commission."
P.H. Jayani 2.CONF02.24.doc
41) In case of State of M.P. vs. Munna Choubey & Anr. 22, the
Hon'ble Supreme Court observed that, "..., undue sympathy to impose
inadequate sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law and society could not
long endure under such serious threats. It is, therefore, the duty of every
court to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc. This position
was illuminatingly stated by this Court in Sevaka Perumal vs. State of Tamil
Naidu 1991 (3) SCC 471."
42) Having regard to the aforementioned judicial pronouncements
and taking an indication therefrom, we have revisited the facts of the case.
We have broadly considered the 'aggravated and mitigating' circumstances
emerged from the evidence on record. We have also examined the possibility
of reformation and considered the factors which are relevant to be
considered to decide the question of sentence.
Aggravated circumstances :
i) Brutality of crime :
ii) Pre-mediated and pre-planned attack :
iii) Absence of provocation :
22 (2005) 2 SCC 710
P.H. Jayani 2.CONF02.24.doc
iv) Victims were Defenceless :
v) Victims and accused were close relatives :
vi) Victims were female and minor :
vii) Motive : Frequent quarrels between accused and Rupali on account of
the latter regularly talking on phone with some person, which accused did
not like.
Mitigating circumstances :
a) At present the accused is aged 35 years.
b) The accused was doing labour to earn livelihood. This indicates that,
he belongs to poor socio-economic conditions or deprived class.
c) The prosecution has not submitted any proof of the level of education
of the accused. Considering the facts of the case, the accused does not seem
much literate.
d) There were no criminal antecedents against the accused.
e) The prosecution has not filed any report indicating that conduct of the
accused in the jail, is improper or objectionable.
f) It cannot be said that, the accused would be a menace or, threat to and
incompatible with harmony in the society, if the death sentence is brought
down to life imprisonment.
g) In our considered view, it cannot be held that, sentence of life
imprisonment would be completely inadequate and would not meet the
P.H. Jayani 2.CONF02.24.doc
ends of justice.
h) Before the trial Court the accused has stated that, he has children from
his first marriage but there is no one to look after them. However, the
prosecution has not submitted any report in that regard.
i) The prosecution has proved its case on the basis of only one eye
witness.
43) The learned trial Court has not considered the aforestated
mitigating circumstances. In the cited case of Madan (supra) 6 persons were
murdered by giving gun shots, on account of political rivalry. The role
attributed to all the accused persons was similar i.e., firing of gun shots and
indiscriminately indulged in the said firing. Hence, the trial Court imposed
the capital sentence on the Appellants. However, one accused was sentenced
to life imprisonment. The High Court on the basis of the same evidence,
partly allowed the Appeal of the Appellant - Sudesh Pal and sentenced him
to undergo life imprisonment. However, the High Court confirmed the
death penalty of the Appellant - Madan for the additional factor that, he
was already awarded life imprisonment in another case. After considering the
earlier judgments in the field, the Hon'ble Supreme Court in paragraph 81
of the said decision held that :
P.H. Jayani 2.CONF02.24.doc
" 81. It can thus be seen that the Court found that there might be
certain cases wherein the Court may feel 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 subject to remission which normally works out to a term
of 14 years would be grossly disproportionate and inadequate. The
Court held that the Court cannot be 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. It has been held that 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 has been
held that the Court would be entitled 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. ".
In this background, in paragraph 97, the Hon'ble Supreme Court
observed that, if the judgment of the High Court is maintained, it
would lead to an anomalous situation. Whereas, Appellant - Sudesh
Pal would be entitled for consideration of his case for remission and pre-
mature release on completion of a particular number of years in
accordance with the relevant number of years, Appellant - Madan will
have to face death penalty. Therefore, the Hon'ble Supreme Court
partly allowed the Appeals filed by the Appellant - Madan and
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confirming his conviction under Section 302 of IPC, his death penalty
was converted into imprisonment for a fixed term of 20 years including
the period already undergone, without remission.
43.1) In the cited case of Prakash Khairnar (Patil) (Supra), said
Appellant - Prakash Khairnar along with his 17 year old son allegedly
gunned down his mother, brother, brother's wife, brother's three
children (two daughters and a son), giving them gunshots. The
Appellant was a Senior Scientific Assistant and having no criminal
tendency. Murders were committed as the Appellant's brother was not
partitioning the alleged joint property. Hence, it was held that, it cannot
be said to be rarest of the rare cases. As a result, the Hon'ble Supreme
Court converted the death sentence to life imprisonment with a
direction that the Appellant shall not be released from prison unless he
has served atleast 20 years of imprisonment.
44) Having regard to these reported cases and the balance between
the aggravated and mitigating circumstances noted in forgoing paragraph 42,
we are of the considered view that the present case would fall in the middle
path as laid down in Madan (supra) and various other decisions of the
Hon'ble Supreme Court. We find that the interest of justice would be met by
P.H. Jayani 2.CONF02.24.doc
converting the death penalty into life imprisonment i.e., actual
imprisonment for a period of 25 years without remission.
45) In view thereof, the Confirmation Case No.02 of 2024 is liable
to be answered in negative and the Criminal Appeal No. 431 of 2024
deserves to be partly allowed. Hence, the following order :-
ORDER
(i) Confirmation Case No.02 of 2024 is answered in the
negative.
(ii) Criminal Appeal No. 431 of 2024 is partly allowed.
(iii) The conviction of the Appellant-Pradip Vishwanath Jagtap.
under Section 302 of the Indian Penal Code is confirmed.
However, death penalty on the Appellant is converted into
imprisonment for a fixed term of 25 years, including the
period already undergone, without remission;
(iv) In other words, the case of Appellant-Pradip Vishwanath
Jagtap would not be considered for pre-mature release unless
he completes the actual sentence of 25 years.
SHYAM C. CHANDAK, J. REVATI MOHITE DERE, J.
