Madhya Pradesh High Court
In Reference vs Jitendra Purviya on 17 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:17991
CRRFC No.07 of 2022 & CRA No.9132 of 2022
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
CRIMINAL REFERENCE NO.07 OF 2022
IN REFERENCE
Versus
JITENDRA PURVIYA
Appearance:
Shri Manas Mani Verma - Public Prosecutor for the reference-petitioner.
Shri Atul Anand Awasthy - Senior Advocate assisted by Shri Kaustubh
Tiwari and Shri Narendra Sharma - Advocate for the respondent.
CRIMINAL APPEAL NO.9132 OF 2022
JITENDRA PURVIYA
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Atul Anand Awasthy - Senior Advocate assisted by Shri Kaustubh
Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 17-04-2025
18:59:43
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CRRFC No.07 of 2022 & CRA No.9132 of 2022
2
Tiwari and Shri Narendra Sharma - Advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent-State.
Reserved on : 24.10.2024
Pronounced on : 17.04.2025
JUDGMENT
Per: Justice Vivek Agarwal
The criminal appeal and the criminal reference have been filed being
aggrieved of the judgment of conviction dated 15.09.2022 and sentence
dated 19.09.2022 passed by learned Additional Session Judge, Bareli,
District Raisen in S.T. No.46 of 2019, convicting the accused Jitendra
Purviya with Death penalty for offence under Section 302 of IPC (4 counts)
and with three years imprisonment under Section 25(1-b)(a) of the Arms
Act with fine of Rs.1000/- with default stipulation of R.I. for two months.
He is also convicted under Section 27 of the Arms Act with R.I. for five
years, fine of Rs.1,000/- with default stipulation of two months R.I.
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2. Brief facts of the present case are that the appellant is guilty of
causing homicidal death of his wife Sunita, father Jalam Singh, mother Sharda
and son Siddhant @ Shivyansh.
3. As per the prosecution story, on 16.05.2019 complainant Ranjana
Bai (PW-1) lodged a Dehati Nalishi to the effect that on 16.05.2019 at about
1.30 - 2.00 a.m., she along with her son Sourabh and husband Ramji were
sleeping in the courtyard of their house. In the neighbourhood, her uncle-in-law
Jalam Singh was residing with his family. In that house, Jalam Singh, his wife
Sharda Bai, Daughter-in-law Sunita Bai, grandson Siddhant @ Shivyansh and her
brother-in-law (Devar) Jitendra Purviya were sleeping. At about 1.30 - 2.00 a.m.
she heard sound of fire arm in the courtyard of her uncle-in-law when she and her
son Saurabh got up. They heard cries of Sunita Bai for saving them as Jitendra
was beating them armed with a gun and an axe. They immediately reached the
place of the incident and saw Jalam Singh and Sharda Bai stepping in to save
Sunita, then Jitendra had beaten them and caused injuries to them. When
complainant stopped Jitendra, then he ran to attack her, she ran for her life along
with her son. But in the process Jitendra had hit Sourabh i.e. her son on his left
hand with the handle of the axe. Jitendra had hit axe on the head of Shivyansh
when neighbourer Ratan Singh was woken up, then on his raising an alarm
neighbourers gathered but in the meanwhile Jitendra after concluding the assault
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escaped with his gun and an axe. Sharda Bai and Sunita were already dead
whereas Jalam Singh and Shivyansh were grievously injured.
4. On the basis of said Dehati Nalishi, FIR registering Case Crime
No.241 of 2019 was registered under Section 302 and 307 of IPC.
5. Shri Atul Anand Awasthi, learned Senior Advocate for the
petitioner, in his turn, submits that appellant is innocent, he has been falsely
implicated. Place of the incidence is an open courtyard and in the postmortem
report no gunshot injuries were found on the body of any of the injured/deceased
persons.
6. It is submitted that all the three witnesses namely, Ranjana Bai (PW-
1), informant, is wife of Ramji (PW-11), and mother of Saurabh (PW-2) and
they being all related witnesses, their testimony cannot be accepted as such
without corroboration.
7. Reading from the spot map Ex.P-2, it is submitted that the place of
the incident is on the west of the courtyard of witness Ranjana Bai (PW-1). House
of Jalam Singh is also on the west of the house of Ranjana Bai (PW-1). No gate is
shown in the spot map to permit Ranjana Bai (PW-1) to witness the incident
taking place in the courtyard of Jalam Singh and, therefore, the spot map belies
the story of Ranjana Bai (PW-1) being the eye witness. Referring to Ex.P-40,
FIR, it is submitted that Ratan Singh is a hearsay witness.
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8. It is submitted that, in the present case, firstly, appellant is innocent
and secondly, his case is not the rarest of rare cases where death penalty be
maintained. It is submitted that learned Additional Sessions Judge overlooked the
fact that when accused appellant came back from his fields his father had already
died and the wife was in some objectionable position, therefore, the incident took
place. There was no motive of causing death of four persons. There was no ill-
will of the accused with the deceased persons and it is a case of sudden
provocation where witnessing the wife in an objectionable position appellant got
provoked and due to sudden provocation incident took place, therefore, the
conviction should not be under Section 302 of IPC but under Section 304 Part-II
IPC.
9. Learned Government Advocate Shri Manas Mani Verma, for the
State, submits that there is no illegality in the impugned judgment. It's a
gruesome murder of four persons which has been committed by the appellant.
Gruesome murder of four close relatives being father, mother, wife and son is
nothing but a perverse act which does not call for any leniency.
10. It is also submitted that the theory of witnessing wife in an
objectionable position when the appellant came from his fields as put forth by
Shri Atul Anand Awasthy is not made out from the record, therefore, impugned
judgment of conviction and sentence be maintained as such.
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11. After hearing learned counsel for the parties and going through the
record, Dehati Nalishi was recorded at the instance of Ranjana Bai (PW-1) i.e.
Ex.P-1. It was promptly recorded at 5.30 am on 16.05.2019 only. It is a named
report against Jitendra s/o Jalam Singh.
12. On the basis of this Dehati Nalishi, FIR Ex.P-40, was recorded
registering case Crime No.241 of 2019 at 11.51 am. Ex.P-2 is a crime detail form
and spot map. Statements of Kamlesh Singh Purviya were recorded vide Ex.P-3,
on 16.05.2019 itself. Naksha Panchayatnama is Ex.P-4, in which it is clearly
mentioned that in the opinion of the Panch, Sunita Bai, died because of assault in
the hands of Jitendra causing injuries on her face and head.
13. Similarly, Naksha Panchayatnama, Ex.P-5, makes a mention of
death of Sharda Bai on account of assault by Jitendra on her neck and face.
14. Naksha Panchayatnama of Jalam Singh is Ex.P-10 where it is
mentioned that in the opinion on the Panch, death of Jalam Singh took place due
to fire arm injury. This is signed by Shiv Kumar (PW-13) and Naveer Singh (PW-
14). Postmortem report of Jalam Singh is Ex.P-21, in which it is mentioned that
death was due to shock and hemorrhage, as a result of craniofacial and neck
injury. Death was antemortem, homicidal in nature and could have been possibly
caused by heavy, hard and blunt object/blow/impact. Injury sufficient to cause
death in ordinary cause of nature. Pre-MLC of Jalam Singh is Ex.P-17, prepared
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by Dr. Sushma Adhikari (PW-16) at Civil Hospital, Bareli, District Raisen
wherein again it is mentioned that there is history of gunshot injury on upper mid
forehead area at home around 1.30 am.
15. Dr. Sushma Adhikari (PW-16) conducted Pre-MLC of Shivyansh,
aged about 7 years, at Civil Hospital, Bareli, District Raisen, and found that there
was history of gunshot injury to the right side of head, at home around 1.30 am on
16.05.2019. Patient was referred to Higher Centre. There were lacerated wounds
2 in number (i) 1cm x 0.06 cm x Bone deep, irregular margin, clotted blood
present around wound area and face, bleeding absent. Site near right ear tragus,
seems to be entry wound; (ii) 1 cm x 0.4 cm x Bone deep. Clotted blood + around
wound and body, seems to be exit wound. Both primarily suggestive of gunshot
injury. Advice X-ray of skull.
16. In the postmortem report of Sunita, Ex.P-18, proved by Dr. Shajan
G. Murugan (PW-17). There was a deep incised wound (like chop wound) 3inch
x 0.5 inch x bone deep, clotted blood + near right orbital area due to hard and
sharp object with force. Complete disfiguration of orbit, mandible, TM joint,
nasal bone, teeth and jaw socket etc. and internal fracture seen on exploration.
(2) Deep incised wound (like chop wound) right side of scalp - tempero
parietal area (a) 2.5 x 1.5 inch x bone deep, fracture of skull bone seen, open #,
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due to hard and sharp object with force, (b) LW 1 inch x 0.5 inch x bone deep,
near by above wound, due to hard and blunt object with force.
(3) On left tempero-parietal area, (i) incised wound 1.5 x 0.5 inch,
continuous with incised wound of left pinna 1 inch x 0.4 inch cut, clotted blood
present injury due to hard and sharp object.
(4) On left occipito-lateral are 2 LW + NT (a) LW 1.5 inch x 0.5 inch on
occipito-lateral area, clotted blood due to hard and blunt object with force, (b)
LW 1 inch x 0.5 inch, just 3 inches above 1st LW.. due to hard and blunt object
with force.
(5) Bruise on left shoulder area, 0.5 x 0.5 cm HBO simple, mid chest 0.5 x
0.2 cm bluish black bruise HBO simple.
All the injuries were ante mortem in nature and severe enough to cause
immediate death. Injuries to head and face was opined to be caused by a hard and
sharp object with force. The cause of death is due to injuries to head and face,
resulting in severe hemorrhage and injury to brain matter leading to shock and
death. Death of deceased was termed to be unnatural and homicidal in nature.
17. Similarly postmortem report of Sharda Bai is Ex.P-19, proved by Dr.
Shajan G. Murugan, ( PW-17).
(1) Deep incised wound (like chop wound), injury on left eye orbital area 3
inch x 0.5 inch x bone deep. Blood from both mouth and nostrils (body swab
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prepared from site to rule out suspicion of gunshot injury. X-ray skull also done.
Injury was caused with hard and sharp object.
(2) On occipital area of scalp - (a) Deep incised wound (like chop wound,
6 inch x inch x bone deep clotted blood around, (b) 3.5 inch x 1.5 inch x bone
deep, clotted blood, around just inch below the 1st wound, margins irregular.
(3) Back of nape of neck 3 inch x 0.5 inch x bone deep, left lateral side of
neck, clotted blood + around. Due to hard and sharp object.
(4) LW 1 inch x 0.5 inch on left anterior chest.
Doctor found that all the injuries were ante mortem in nature and severe
enough to cause immediate death. Injuries to head and neck were caused using a
hard and sharp object with force and hard and blunt object with force
respectively. Death was caused due to injuries on head, face and neck, resulting in
severe hemorrhage and injury to brain matter, leading to shock and death, death
was unnatural and homicidal in nature.
18. Postmortem report of Shivyansh is Ex.P-20, proved by Dr. Smt.
Kelu Girewal, PW-18, who found the following injuries:-
(1) Surgical stitched wound present on frontal region of length 4 cm x 4 cm
above the right eye.
(2) 2 Surgical stitched wound present on right parietal region of length 3
cm x 4 cm x 4 cm to each other.
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(3) On opening of surgical stitched wound near ear measuring 4 cm, the
head was full of blood and when the parietal imminence of the head was cut and
drilled, then fracture in several parts was observed on the head which was moving
in the front and towards the left hand side measuring 17cm whereas size of the
hole was 7 x 8 cm. Right side of the brain was extremely soft and damaged. Signs
of subdural and subarachnoid hemorrhage was present and there was clotting.
Doctor opined that there was history of gunshot injuries. Shivyansh died
because of cardio-respiratory failure as a result of head injury and its
complications duration of death was within 24 hours since postmortem
examination.
19. Dr. Priyamvanda Kurveti (PW-19) has clearly stated that in regard
to Jalam Singh no definite opinion could be given as to whether the gunshot
injury was there or not and she had asked the authorities to corroborate it with
circumstantial evidence. She mentioned that death had occurred due to shock on
account of injuries to head, face and neck probably caused with heavy, hard and
blunt object with force. This witness stated that during postmortem she did not
found any injury of sharp object. In paragraph 9, she stated that it is not possible
to definitely say as to whether there was a gunshot injury or not but on her own
stated that it can be due to that reason or for other reason because no bullet or
'pellet'(chharra) was recovered inside the body but she still made a mention for
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examination of gunpowder on the swab obtained from the wounds on the chin
and forehead.
20. Thus, it is evident from the record that the postmortem report of
Jalam Singh, Ex.P-21, makes a mention of the fact that his death is homicidal in
nature. Similarly, Ex.P-17 is Pre-MLC of Jalam Singh, which makes a mention of
history of gunshot injury and, therefore, body swab from area of wound was
seized and duly sealed, thereafter, handed over to police concerned for FSL
report, as is evident from Ex.P-17 proved by Dr. Sushma Adhikari (PW-16).
21. Similarly for Shivyansh, Dr. Sushma Adhikari (PW-16) recorded
that he too had a history of gunshot injury on right side of head, at home, and had
preserved a body swab from area of both wounds, seized, duly sealed, handed
over to police concerned for FSL report.
22. Postmortem report of deceased Sunita Bai w/o Jitendra Singh is
Ex.P-18 and it is mentioned that all the injuries are ante mortem in nature and
were severe enough to cause immediate death. It is also mentioned that death of
the deceased is unnatural and mode of death seems to be homicidal in nature.
23. Postmortem report of Sharda Bai w/o Jalam Singh is Ex.P-19, in
which it is mentioned that all the injuries were ante mortem in nature and were
severe enough to cause immediate death. The death of the deceased was unnatural
and mode of death seems to be homicidal in nature.
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24. Postmortem report of Shivyansh is Ex.P-20 and in the opinion of
Doctor, death was due to cardio-respiratory failure, as a result of head injury and
its complications. It is further mentioned that duration of death is 24 hours, when
postmortem examination was conducted, it was a case of prior hospitalization
with signs of surgical intervention, therefore, Dr. Smt. Kelu Girewal (PW-18)
opined that primary examination report and report of the treating doctor should
also be taken into consideration to finalize the case.
25. Thus, it is evident that death of all the four victims is homicidal in
nature and was unnatural as opined by the concerned Doctors.
26. On the basis of the opinion of the Doctor, vide Ex.P-35, Article 'M'
is the swab from the face of deceased Sunita, whereas Article 'N' is the swab
from the wounds of deceased Shivyansh and, Article 'O' is the swab from the
body of deceased Jalam Singh.
27. Vide Ex.P-37, Article 'M' was opened and identified as Ex.SW1,
Article 'N' as Ex.SW2 and Article 'O' as Ex.SW3.
28. In Ex.SW1 which is the swab from the face of deceased Sunita.
Presence of lead metal was not found.
29. Similarly in SW3 which is the swab from the wound of Jalam Singh,
on chemical examination, presence of lead was not found. However, in relation
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to Ex. SW2, swab obtained from the body of deceased Shivyansh, presence of
lead was found to be positive.
30. Thus, it is evident from Ex.P-37 proved by K.S. Kukati, T.I. (PW-
20), it is evident that death of Shivyansh could have been caused due to use of
fire arm as presence of lead is found to be positive and this is the opinion of the
expert that since swab Ex.SW2 contains micro particles of lead, therefore, that
injury was caused with projectile of lead metal.
31. Similarly, vide Ex.P-38, which is the report of the Regional Forensic
Science Laboratory, Bhopal, human blood was found on Articles 'A', 'B', 'C'
(sample of soil collected from the spot), 'D' (piece of Niwar), G1, G2 and G3,
respectively, saree, blouse and petticoat of deceased Sharda, H1, H2 and H3, saree,
blouse and petticoat of deceased Sunita and I1 and I2 i.e. pant and shirt of accused
Jitendra, on Article 'J' an axe recovered from Jitendra, K1 is pant of Shivyansh
and K2 shirt of Shivyansh. It has also come on record that blood group on Article
D, I1 and I2 is of AB blood group.
32. Thus, it is evident that the blood group which was found on the
Niwar obtained from the spot where Shivyansh was found, as is evident from
Ex.P-36, contained same blood group as was found on pant and shirt of the
accused Jitendra.
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33. It has also come on record that vaginal swab of deceased Sunita was
collected vide Article 'L' and no human sperms were found on Article 'L'.
34. Statement of Shankar Singh Purviya is Ex.P-6, which was taken on
17.05.2019. Recovery of a Katta was made from Jitendra on 20.05.2019 vide
Ex.P-7, this recovery was made from under the soil near the tubewell of Tiwari
Govind and has been identified as a countrymade gun of 315 bore containing a
used cartridge. On the cover of the cartridge it was mentioned as KF-8mm.
Statements of Ramji Purviya (PW-11) were recorded on 28.06.2019 vide Ex.P-8,
and that of Shiv Kumar Purviya (PW-13) on 18.05.2019.
35. Vide Ex.P-43, K.S. Mokati (T.I.), had sent the seized arm from the
possession of the accused Jitendra Purviya for examination in the hands of
Armourer Branch, Raisen.
36. Arms Moharrir (PW-23) gave his report Exhibit P-54 and after
examining the seized Katta reported that it was functional and it was possible to
fire from the said 'Katta' with the cartridge recovered from the said 'Katta'
bearing mark of burn and K.F. a cartridge of 315 bore, made up of Brass and
Copper, this arm was received in a sealed cover.
37. Vide Ex.P-44, K.S. Mukati (T.I.) had made a communication to the
Superintendent of Police, Raisen asking to grant him permission through the
District Magistrate, Raisen for prosecution of Jitendra Purviya under Section
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CRRFC No.07 of 2022 & CRA No.9132 of 2022
25/27 of the Arms Act. Permission was granted by the District Magistrate, Raisen
on 27.07.2019 vide Ex.P-45 proved by Shri K.S. Mukati (PW-20).
38. Exhibit P-47, is the spot map prepared by team of FSL experts and
proved by IO of the case (PW-20). Shri K.S. Mukati (PW-20) in paragraph 47
has categorically denied the suggestion that house of Jalam Singh is on the other
side of the house of Ranjana Singh and there is 'sar' (place to tie up the cattle) in
between. It is categorically stated by him that both the houses are adjoining to
each other. Thus, suggestion made by Shri Atulanand Awasthy that there is no
common place between the two houses is not correct, for Ranjana (PW-1) to
approach the house of the accused, is not made from the record. In fact, in his
statements under Section 313 of Cr.P.C. appellant Jitendra Purviya while
answering question No.3 has admitted that house of Ranjana Bai (PW-1) is
adjacent to the house of the accused and, therefore, this suggestion made by Shri
Atul Anand Awasthy in terms of the admission of the accused in reply to answer
to questions No 2 and 3 put to him by the learned Sessions Judge is not made out.
39. Ranjana (PW-1) and Sourabh (PW-2) have corroborated the
prosecution story and have stated that they had seen accused Jitendra causing
assault and in fact Sourabh (PW-2) was hit by him with the help of an axe. They
have also stated that Jitendra used to consume cannabis and used to be in an
intoxicated state. As per Exhibit P-38, report of the FSL, human blood was found
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on article I -1 pant, I-2 shirt, recovered from and at the instance of Jitendra. It has
also come on record that I-1 and I-2 contained blood of 'AB' blood group so also
Article D which is a piece of 'Niwar' recovered from the cot of Shivyansh.
40. Appellant Jitendra pleaded his ignorance saying that he has been
falsely implicated on account of land dispute but the defence failed to prove
existence of a land dispute or that any of the family members were in a
compromising position giving rise to a cause for sudden and grave provocation.
Admittedly, husband of PW-1 (Ranjana) was not keeping good mental health.
Her children were minor and therefore, the land was being looked after by
Jitendra only. Suggestion to this witness and PW-2 that report was lodged at the
dictates of brother of PW-1 and maternal uncle of PW-2 as they wanted their
separate share be carved out for Ranjana Bai (PW-1), could not be proved to be
true so to falsely implicate Jitendra. In fact, it has come on record that as husband
of Ranjana Bai (PW-1) and father of Sourabh (PW-2) was handicap their land
was taken care of by the appellant only.
41. The trial Court has clearly noted that the circumstantial evidence
proves the prosecution story and is supported by the evidence of the witnesses
who were present there and memorandum of the accused. This piece of evidence
both disclosed on memorandum under Section 27 of the Evidence Act and given
by the eye witnesses PW-1 and PW-2 is corroborated in the light of the Division
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Bench decision of this Court in the case of Hameer Singh and Other v. State of
MP, AIR OnLine 2021 MP 828 (DB) wherein it is held that there are three
species of mens rea in culpable homicide: first, an intention to cause death;
second, an intention to cause dangerous injury; and third, knowledge that death
is likely to happen.
42. It has come on record that prosecution has proved beyond reasonable
doubt, homicidal death of four persons, namely, Jalam Singh, Sharda Bai,
Shivyansh and Sunita Bai. It has also come on record that in the ballistic report
(Exhibit P-37) in the swab of deceased which was marked as Ex. SW2 (Article
'N') contained lead metal and it has also come on record that lead which was
found on the bullet was found on the head of Shivyansh. Dr. Sushma Adhikari
(PW-16) proved that there was a gunshot hole behind the earlobe of Shivyansh.
43. Dr. Sushma Adhikari (PW-16), has clearly mentioned that injury
No.1 on the body of Jalam Singh was a lacerated wound measuring 3x2 cm with
irregular margins on forehead.
44. Dr. Sushma Adhikari (PW-16) had sealed the body swab for FSL
report. She categorically stated that except for injury behind the ear of Shivyansh,
there was no other injury and it could not have been said with surety as to
whether they were caused due to gunshot or not.
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45. Dr. S. Murugan (PW-17) had categorically stated that injuries to
Sunita Bai were caused with hard and blunt object with force and were sufficient
in normal course to cause death. She died because of hemorrhage and injuries to
the brain. The death was unnatural and homicidal in nature.
46. Similarly body of Sharda Bai W/o Jalam Singh was also found to
contain deep incised wound (chop wound) on left eye orbital area measuring 3x
0.5 inches caused by hard and sharp object with force. This injury too was
unnatural and homicidal in nature.
47. Dr. (Smt.) Kelu Girewal (PW-18) had conducted postmortem on the
body of Shivyansh. Surgery Department of Hamidia Hospital had given
intimation in regard to gunshot injury. She stated in paragraph 5 of her cross-
examination that during postmortem, no bullet was found in the body of
Shivyansh but said on her own that it was taken out.
48. Dr. Priyamvanda Kurveti (PW-19) conducted postmortem on the
body of Jalam Singh and she had collected remnants on a swab and had given it
for forensic examination.
49. Thus, the injuries caused were sufficient in ordinary course of nature
to cause death. We have noted that Dr. Shajan G. Murugan (PW-17) in his cross-
examination admitted that the injuries which were found on the body of Sunita
Bai were caused by hard and sharp object and some were caused by hard and
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blunt object and, similarly, Dr. Shajan G. Murugan (PW-17) has also stated that
the nature of injuries on the body of Sunita were different from those found on
the body of Sharda Bai. But at the same time, Shri Manas Mani Verma, learned
Government Advocate submits that axe being used from the sharp side and if
used from blunt side will cause the difference and it is not such a material
difference to discard the eye witness account and accept the story of the defence
that either there was a foreign intervention or to accept the contention that there
were elements giving rise to grave and sudden provocation as none of them are
corroborated from eye witness account as well as vaginal side of Sunita.
50. Thus, the finding of guilt of accused is proved by the prosecution
witnesses beyond reasonable doubt.
51. It is true that as per the evidence available on record, death of all the
four persons are homicidal in nature that's come in the category of murder. Now
the issue which arises for consideration is whether capital punishment is to be
maintained or not.
52. The trial Court has taken into consideration aggravating and
mitigating circumstances and has noted the judgments in cases of Machhi Singh
and Others v. State of Punjab (1983) 3 SCC 470; Bachan Singh v. State of
Punjab, (1980) 2 SCC 684; Devendra Pal Singh v. State of NCT of Delhi;
(2002) 5 SCC 234; Dhananjoy Chaterjee v. State of West Bengal, (1994) 2
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SCC 220 so also the judgment of the Supreme Court in the case of Vasanta
Sampat Dupare v. State of Maharashtra, (2017) 6 SCC 631 and has mentioned
that rarest of rare cases can be tested on the touchstone of manner in which
murders have been caused and the method is so heinous that it may generate
rebellion in the society or the nature of offence be such that it may cause
animosity in the society or against the interest of the society. Such other
conditions are also to be taken note of, such as dimensions of offence, personality
of the victim like, a toddler, a helpless woman, helpless senior citizen or a
circumstance where the assailant may be a person on which the victim had faith
or under his control. It has considered the following circumstances to be
aggravating circumstances:
"(a) if the murder has been committed after previous planning and involves
extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or
of a member of any police force or of any public servant and was committed--
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such
member or public servant in the lawful discharge of his duty as such
member or public servant whether at the time of murder he was such
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member or public servant, as the case may be, or had ceased to be such
member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his
duty under Section 43 of the Code of Criminal Procedure, 1973, or who
had rendered assistance to a Magistrate or a police officer demanding his
aid or requiring his assistance under Section 37 and Section 129 of the said
Code."
53. The mitigating circumstances as narrated in Bachan Singh (supra)
are as follows:
"(1) That the offence was committed under the influence of extreme
mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be
sentenced to death.
(3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the
conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that
he was morally justified in committing the offence.
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(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."
54. The trial Court has also referred to Shlok No.63 from Second
Chapter of Shrimad Bhagwat Geeta to say that " Anger kills a man's heart, that
is,it becomes foolish, which confuses memory due to memory illusion, the human
intellect is destroyed and when the intellect is destroyed, man himself destroy his
own."
55. But, in our opinion, one important aspect has escaped the notice of
learned trial Judge as has come in evidence of PW-1 that one minor son of the
appellant had gone to the house of his maternal uncle (Mama) and he is surviving.
Another circumstance which should have been appreciated and taken into
consideration, as has come in the evidence of PW-1 (Ranjana) that the appellant
was in an intoxicated state and he was habitual of consuming cannabis (ganja).
At the time of the incident also he was under influence of these intoxicants.
56. Similarly, Sourabh (PW-2) has stated in para 3 of his cross-
examination that appellant was a regular consumer of alcohol and ganja. Thus, it
is evident that Ranjana Bai (PW-1) has admitted that at the time of the incident
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accused was intoxicated, a fact which is corroborated by Sourabh (PW-2) and
when this aspect is taken into consideration, demonstrates that appellant at the
time of the offence was not having sound state of mind and it cannot be said that
all his faculties were intact. When this aspect is taken into consideration, then in
case of Bachan Singh (supra) one of the mitigating circumstance mentioned is
that "the offence was committed under the influence of extreme mental or
emotional disturbance." Another circumstance which has been discussed by the
Supreme Court in Bachan Singh (supra) is the probability of the accused not
committing criminal acts of violence as would constitute a continuing threat to
society and, thirdly that the probability of reformation and rehabilitation of the
accused.
57. In the case of Santosh Kumar Satishbhushan Bariyar v State of
Maharashtra [(2009) 6 SCC 498], Two-Part Test is prescribed qua for
commutation of death sentence to life imprisonment, namely, whether the case
falls under "rarest of rare" doctrine; and consideration of life imprisonment as
initial alternative.
58. Then, in the case of Shankar Kisanrao Khade Vs. State of
Maharashtra [(2013) 5 SCC 546, Supreme Court has laid down Three-Pronged,
namely, Crime Test (Aggravating Circumstances) : Brutality of crime, manner of
commission, motive, impact on society, nature of victims (vulnerable/multiple).
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Secondly, Criminal Test (Mitigating Circumstances): Age of accused,
background and socio-economic status, mental/emotional state, possibility of
reformation, no prior criminal record, conduct in prison and Family
circumstances.
Thirdly, R-R Test (Rarest of Rare): Whether alternative option of life
imprisonment is unquestionably foreclosed, society's perspective and whether
case shocks collective conscience.
59. Then, in the case of Manoj Vs. State of Madhya Pradesh [(2023) 2
SCC 353], Supreme Court has held that Mandatory Information Gathering:
Courts must collect: Psychiatric and psychological evaluation reports, family
background details, educational history, employment records, prison conduct
reports, medical/mental health records.
60. Then, Special Consideration - Additional factors that can lead to
commutation: Inordinate delay in execution (Shatrughan Chauhan Vs. Union of
India [(2014) 3 SCC 1] case), post-conviction mental illness ('X' v. State of
Maharashtra [ (2019) 7 SCC 1], young/old age of accused (Bachan/Machhi
guidelines ), good conduct in prison (Madan Vs. State of Uttar Pradesh case),
evidence is circumstantial rather than direct, Multiple accused with varying roles
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(Ronny Alias Ronald James Alwaris & Ors. Vs. State of Maharashtra
[(1998) 3 SCC 625] case).
61. In the case of Swamy Sharddananda Vs. State of Karnataka
[(2008) 13 SCC 767], Supreme Court has held that Alternative Sentencing
Options: If death penalty is excessive but regular life imprisonment inadequate,
courts can: Award life imprisonment without possibility of remission, fix specific
term beyond 14 years without remission, 20-35 years based on circumstances and
most common periods: 25-30 years.
62. Then, Final Determination - Courts must: Prepare balance sheet of
aggravating and mitigating factors, give full weightage to mitigating
circumstances, record special reasons if choosing death penalty, explain why
reformation is impossible if opting for death, where two views possible and prefer
life imprisonment. Life imprisonment is the rule, death penalty the exception,
burden on State to prove accused cannot be reformed, individual circumstances
must be considered over strict guidelines, must assess possibility of reformation
and rehabilitation, even in brutal murders, consider emotional disturbance as
mitigating.
63. In the case of Rajendra Prasad v State of U.P. (1979) SCC (Cri)
749, the Court held that unless it was shown that the individual is a terrible and
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continuing threat to social security, capital punishment would not be justified.
Justice Krishna Iyer opined that the death penalty should be inflicted in the case
of three categories of criminals:
• for white-collar offences,
• for social offences, and
• for eradicating a person who is a threat to society, that is, a seasoned
killer.
The Court also held that the death penalty for the offence of murder, which
is awarded pursuant to Section 302 of the IPC, 1860, would not be a violation of
the constitutional provisions. In grave cases of extreme culpability, capital
punishment can be awarded, and the convict's condition must be taken into
consideration.
64. Rarest of the rare doctrine established in the Bachan Singh Vs.
State of Punjab [(1982) 3 SCC 24], in para 224, Hon'ble Supreme Court
observed:-
"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
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be done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed."
It is obvious from the provision enacted in Section 354(3) of the CrPC that
death sentence is legislatively regarded as disproportionate and excessive
in most cases of murder and it is only in exceptional cases what Sarkaria, J.
speaking on behalf of the majority, describes as "the rarest of rare" cases,
that it can at all be contended that death sentence is proportionate to the
offence of murder. But, then the legislature does not indicate as to what are
those exceptional cases in which death sentence may be regarded as
proportionate to the offence and, therefore, reasonable and just. Merely
because a murder is heinous or horrifying, it cannot be said that death
penalty is proportionate to the offence when it is not so for a simple
murder. (Para 266)
Relied on Gregg v. Georgia for Proportionality principle. (Para 264)
The nature and magnitude of the offence or the motive and purposes
underlying it or the manner and extent of its commission cannot have any
relevance to the proportionality of death penalty to the offence." (Para 67)
65. In this background the guidelines indicated in Bachan Singh's case
(supra) will have to be culled out and applied to the facts of each individual case
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where the question of imposing of death sentences arises. The following
propositions emerge from Bachan Singh's case:
(i) The extreme penalty of death need not be inflicted except in gravest
cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender'
also require to be taken into consideration alongwith the circumstances of
the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In
other words death sentence must be imposed only when life imprisonment
appears to be an altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and only provided the
option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and circumstances of
the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances has to be accorded
full weightage and a just balance has to be struck between the aggravating
and the mitigating circumstances before the option is exercised.
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66. 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 ?"
(Para 13)
67. In the case of Swamy Shraddananda v. State of Karnataka,
Circumstances mentioned by the Court in the Machhi Singh & Ors. Vs. State of
Punjab case that are required to be considered while deciding on the death
penalty must not be taken as absolute because the Court in the Bachan Singh case
intended to make this flexible. Thus, made the guidelines flexible and discretion
to the Court.
(Para 28 & 33)
Courts can create a special category of cases where death penalty can be
substituted with either life imprisonment without possibility of remission or
imprisonment for a specific term beyond 14 years without remission.
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(Para 66)
68. In the case of Santosh Kumar Satishbhushan Bariyar v State of
Maharashtra, to impose the death penalty, the courts must apply a two-part
test. First, the courts have to determine whether the case falls under the doctrine
of the 'rarest of the rare'. Second, the courts must consider life imprisonment as
the initial alternative. If they still choose to opt for the death penalty, they must
give reasons for this decision and explain why the convict cannot be reformed.
69. It is also now well settled that, age of accused, criminal
history/background, possibility of reformation, whether accused are professional
criminals, nature of crime and motive, quality of evidence (circumstantial vs
direct) is to be examined. Special reasons must be recorded for death penalty
under Section 354(3) CrPC and where two views are possible, death sentence
should not be imposed. Also, discretion must be exercised cautiously due to
irrevocable nature of death penalty.
70. In the case of Manoj v State of Madhya Pradesh, the Supreme
Court of India reasserted the principles laid down by the Court in the Bachan
Singh judgement. The Court noted that all the mitigating circumstances must be
considered by the judges while finally awarding the death sentence; the
parameters given in the Bachan Singh judgement and the scope for reformation
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and rehabilitation of the accused person must be assessed. The courts must check
if there is something uncommon about the crime that would render the
punishment of imprisonment for life inadequate.
71. The evolution of death sentence commutation in India represents a
progressive journey toward a more nuanced and humanitarian approach to capital
punishment. The journey began in 1976 with Rajendra Prasad v State of U.P.,
which established initial criteria for capital punishment, limiting it to white-collar
offenses, social offenses, and cases involving seasoned killers who posed a
continuing threat to society. The framework was further developed in Jagmohan
Singh v. State of Uttar Pradesh, which established that the death penalty doesn't
violate constitutional rights and introduced the concept of balancing aggravating
and mitigating circumstances, emphasizing individualised sentencing over rigid
guidelines. A watershed moment came with Bachan Singh v. State of Punjab,
which established the "rarest of rare" doctrine and provided a comprehensive list
of aggravating and mitigating circumstances. This was followed by Machhi Singh
v. State of Punjab, which built upon the Bachan Singh framework by introducing
the "collective conscience" test and formalising the concept of preparing a
"balance sheet" of factors. A significant development occurred in 2008 with
Swamy Shraddananda v. State of Karnataka, which created a middle ground in
sentencing by introducing life imprisonment without the possibility of remission
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and allowing courts to fix specific terms beyond 14 years. The framework became
more structured with Santosh Kumar Bariyar v State of Maharashtra, which
established a mandatory two-part test for death penalty and required courts to
consider life imprisonment first. The scope of commutation grounds expanded
with Shatrughan Chauhan v Union of India, which recognised inordinate delay in
execution as grounds for commutation. The same year, Manoj v State of MP
introduced mandatory information gathering requirements, including psychiatric
evaluations and prison conduct reports. Shankar Kisanrao Khade v. State of
Maharashtra formalised a three-pronged test considering the crime, criminal, and
rarest of rare aspects. Recent developments have further refined this framework.
The case of 'X' v. State of Maharashtra expanded mitigating factors to include
post-conviction mental illness and established a "test of severity" for mental
health considerations. More recent cases like Madan v State of UP have
emphasised the importance of considering reformatory conduct in prison, while
State of Maharashtra v Pradeep Kokade reinforced delay in execution as grounds
for commutation. The Navas v State of Kerala case provided a detailed analysis
of sentencing periods under the Shraddananda principle. Throughout this
evolution, there has been a consistent move toward greater standardisation of the
commutation process, expanding consideration of mitigating factors, and
increased emphasis on reformation possibilities. The framework has evolved from
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simple guidelines to a comprehensive system that considers both pre and post-
conviction factors, with growing emphasis on detailed information gathering
about the accused and their potential for reformation. This progression reflects a
judicial system increasingly focused on balancing societal protection with
humanitarian considerations and rehabilitation potential.
72. When all these circumstances are taken into consideration, then it is
evident that faculties of the accused were not intact and he was intoxicated and
these mitigating circumstances are to be taken into consideration. Shri Manas
Mani Verma on instructions of the superintendent of Central Jail, informs that
conduct of the appellant is good.
73. In this backdrop it is noted that "Once a defendant is found guilty of
aggravated murder with at least one of seven specified aggravating circumstances,
the death penalty must be imposed unless, considering "the nature and
circumstances of the offence and the history, character and condition of the
offender," the sentencing judge, determines that at least one of the following
mitigating circumstances is established by preponderance of the evidence:
"(1) The victim of the offence induced or facilitated it.
(2) It is unlikely that the offence would have been committed, but for the fact
that the offender was under duress, coercion, or strong provocation.
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(3) The offence was primarily the product of the offender's psychosis or
mental deficiency, though such condition is insufficient to establish the
defence of insanity."
74. Thus, when the present case is tested on the aforesaid touchstone, it
is evident that there is no criminal record of the appellant, he is not a habitual
offender, there is no past history of the appellant and it cannot be said that there
are no chances of reformation, since atleast one of the mitigating circumstances is
established in terms of the evidence of PW-1 and PW-2, to apparently
demonstrate that offence was primarily the product of the offender's psychosis or
mental deficiency, as he was intoxicated at the time of the incident. Consequently,
we are of the opinion that facts and circumstances, namely, intoxicated condition
of the appellant at the time of the incident as well as existence of a surviving
minor son of the appellant is to be taken care of complied with fair chances of his
information outweighs the justification for death penalty and there are sufficient
mitigating circumstances to commute the death penalty to life imprisonment.
75. Accordingly, the appeal filed by the appellant is allowed in part and
the criminal reference is answered in the following terms:
(i) The conviction of the appellant for offence punishable under Section
302 of IPC (four counts) and Sections 25 (1-b) (a) and 27 of the Arms Act
is upheld. However sentence awarded to him is modified by setting aside
the death penalty.
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(ii) The death sentence awarded to the appellant - Jitendra Purviya for
offence punishable under Section 302 of the IPC (four counts) is commuted
into that of imprisonment for life on four counts for actual incarceration of
20 years and all four sentences to run concurrently.
(iii) The other terms of sentence awarded to the appellant including
amount of fine and default stipulations, etc. to remain intact.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
MTK
