Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 135 OF 2021
(Arising out of SLP(Crl.) No(s).1836 of 2020)
GAURI SHANKAR ...APPELLANT
VERSUS
STATE OF PUNJAB ...RESPONDENT
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The sole accused appellant faced trial for committing the
murder of two minor children aged 4 years and 2 years in brutal
manner by administering celphos to them. After being convicted by
learned trial Judge for offence under Section 302 IPC by judgment
Signature Not Verified
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dated 1 July, 2013 and confirmed by the High Court on appeal
Digitally signed by
Rachna
Date: 2021.02.16
15:28:06 IST
Reason:
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preferred at his instance being dismissed by judgment impugned
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dated 13 December, 2018, the appellant has preferred this appeal.
3. The case of the prosecution was that complainant Anju was
married with Ajay Kumar, S/o Sajjan Singh and from this wedlock,
she had two children, namely, Vijay Kumar @ Bittu aged 4 years
and Muskan aged 2 years. Ajay Kumar was addicted to liquor and
because of intoxicants, he died. The accused appellant was
residing on rent in the neighbourhood of complainant Anju.
Accused appellant allegedly enticed Anju and brought her with her
two children to Punjab where the fateful incident took place. The
appellant used to quarrel with Anju and frequently beat the
children and used to proclaim that he did not like the children as
they were not his own and that some day he would kill both of
them. About a month and half before the incident, he had
fractured the arm of Vijay @ Bittu, deceased son of Anju. On the
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fateful day of 18 March, 2013, at about 7.30 a.m., Anju went to
the temple for prayers. At that time, the children were sleeping in
the house and the accused appellant was present. When Anju
returned from the temple, she saw both her children lying on the
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cot struggling for life. The accused appellant went away telling the
complainant Anju that he had given poison to both the children.
The complainant Anju raised alarm and with the assistance of
Jagdev Singh, PW2, the landlord and his nephew Kamaldeep
Singh, PW3, both the children were taken to Civil Hospital, Mandi,
Gobindgarh, where they were declared dead. On intimation to the
police, statement of the complainant Anju was recorded and FIR
was registered. The bodies were sent for post mortem examination.
The viscera was sent for chemical examination. After completion of
investigation, challan was presented in the Court.
4. Initially, the appellant pleaded guilty and did not claim trial.
He admitted that he administered poison to the children as a result
of which the children died within 1520 minutes. However, after
the examination of the complainant Anju (PW1) and the landlord
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Jagdev Singh (PW2), he moved an application dated 14 May, 2013
stating that he had no concern with the crime and that he had been
misled by Government counsel to make a wrong statement
admitting his guilt.
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5. The prosecution examined number of witnesses including
Anju PW1, the complainant, whose both children were murdered
by the accused appellant. The statement of PW1 Anju was duly
supported by PW2 Jagdev Singh and PW3 Kamaldeep Singh who
are the landlord and his nephew where the complainant Anju along
with the accused appellant were residing at the time of the incident.
6. Apart from other prosecution witnesses duly supported by the
Histopathology reports Exhibits P8 and P9, the cause of death in
case of both the children was found to be Aluminium Phosphide
insecticide ingestion. The statement of the accused appellant was
recorded under Section 313 CrPC where he denied having
committed the crime, but did not lead any evidence in defence.
7. Learned trial Judge finally held the appellant guilty of an
offence under Section 302 IPC and punished him with
imprisonment for life which would mean remainder of natural life
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and fine of Rs.5000/ by judgment dated 1 July, 2013.
8. On the appeal being preferred by the appellant, the High Court
revisited the record in totality and confirmed the finding of guilt
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recorded by the learned trial Judge by judgment dated
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13 December, 2018 which is impugned before us in the instant
appeal.
9. At the motion stage when the matter came up before this
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Court on 20 February, 2020, the plea which was raised by learned
counsel for the appellant was that on the date of framing of
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charges, i.e., 29 April, 2013, the statement of material prosecution
witnesses PW1 and PW2 was recorded without affording
reasonable opportunity to the accused appellant to cross examine
the prosecution witnesses as mandated under Section 230 of Code
of Criminal Procedure, 1973. After the notice was served, counter
affidavit has been filed by the respondent and the fact noticed by us
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in our Order dated 20 February, 2020 has been explained in
paragraph 13 of the counter affidavit that after framing of charges,
the appellant pleaded guilty, however following the rule of
prudence, the trial Court decided to examine four witnesses before
recording the conviction, and accordingly PW1 and PW2 were
examined first and perusal of their statements, i.e. Annexure P2
and Annexure P3 would show that the opportunity was granted
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to the accused appellant to crossexamine the witnesses on 29
April, 2013 and in fact crossexamination was done by counsel for
the accused appellant. However, after cross examination of these
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two witnesses, the appellant pleaded to claim trial on 14 May,
2013 and thereafter the evidence of other prosecution witnesses
was recorded. At no stage, the appellant moved any application for
recalling the witnesses and to be more specific, of PW1 and PW2
and this issue has been raised for the first time before this Court.
10. After taking note of the statement of fact which has been
stated by the respondent in the counter affidavit and paragraph 13
in particular, of which the reference has been made and with
assistance of the learned counsel, we have gone through the
material available on record and find no error in the finding of guilt
being recorded by the trial Court and confirmed by the High Court
in the impugned judgment which calls for our interference.
11. Learned counsel for the appellant at this stage submitted that
while convicting the accused appellant for offence under Section
302 IPC, he has been sentenced with imprisonment for life which
would mean a remainder of natural life which was not in the
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domain of the trial Court, and this could have been exercised only
by the High Court or by this Court. In support of his submission,
learned counsel has placed reliance on para 105 and 106 of the
Constitution Bench judgment of this Court in
Union of India Vs.
V. Sriharan @ Murugan and Others 2016(7) SCC 1, which is
extracted hereunder:
“105. We, therefore, reiterate that the power derived from the
Penal Code for any modified punishment within the
punishment provided for in the Penal Code for such specified
offences can only be exercised by the High Court and in the
event of further appeal only by the Supreme Court and not by
any other court in this country. To put it differently, the power
to impose a modified punishment providing for any specific
term of incarceration or till the end of the convict's life as an
alternate to death penalty, can be exercised only by the High
Court and the Supreme Court and not by any other inferior
court.
106. Viewed in that respect, we state that the ratio laid down
in Swamy Shraddananda (2) v. State of Karnataka , (2008) 13
SCC 767 that a special category of sentence; instead of death;
for a term exceeding 14 years and put that category beyond
application of remission is well founded and we answer the
said question in the affirmative. We are, therefore, not in
agreement with the opinion expressed by this Court
in Sangeet v. State of Haryana (2013) 2 SCC 452 that the
deprival of remission power of the appropriate Government by
awarding sentences of 20 or 25 years or without any
remission as not permissible is not in consonance with the
law and we specifically overrule the same.”
12. Taking assistance thereof, learned counsel for the appellant
submits that at least judgment of the trial Court in imposing
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punishment of life imprisonment to the remainder of natural life
needs to be interfered by this Court.
13. Per contra, learned counsel for the respondent submits that
imprisonment for life could indeed be imposed by the learned trial
Judge and since this question was not raised by the appellant
before the High Court and has been raised for the first time before
this Court, it can be considered as to whether for such a heinous
crime which the appellant has committed, at least this Court may
exercise its power and approve the sentence which has been
imposed taking note of what has been observed by this Court in the
judgment referred to supra.
14. We find substance in what being urged by learned counsel for
the respondent, and after the accused has been held guilty for
offence under Section 302 IPC, and sentenced to imprisonment for
life could indeed be imposed by the learned trial Judge under its
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judgment dated 1 July, 2013.
15. On the legal principles, the learned counsel for the appellant
appears to be correct, but we have taken note of the prosecution
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case in totality with motive of the crime that he was living in a
relationship with the complainant Anju who had two children from
the previous marriage, and had taken away the life of two minor
innocent children at the very threshold of their life and murdered in
a brutal manner by administering celphos to them has been
established. It is true that the punishment of remainder of natural
life could not have been imposed by the learned trial Judge but
after looking into the entire case, we consider it appropriate to
confirm the sentence of imprisonment for life to mean the
remainder of natural life while upholding the conviction under
Section 302 IPC.
16. Consequently, the appeal fails and is accordingly dismissed.
17. Pending application(s), if any, stand disposed of.
……………..…………………………J.
(INDU MALHOTRA)
……………………………………….J.
(AJAY RASTOGI)
NEW DELHI
FEBRUARY 16, 2021
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