Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1795 OF 2009
Mofil Khan & Anr. Appellant(s)
Versus
State of Jharkhand Respondent(s)
O R D E R
1. This appeal is directed against the judgment and
order passed by the High Court of Jharkhand at Ranchi in
Death Reference No. 01 of 2008 and Criminal Appeal (DB)
Nos. 1103 of 2008, dated 02.07.2009. By the impugned
judgment and order, the High Court has confirmed the
judgment of conviction, dated 01.08.2008 passed by the
District and Sessions Judge, Lohardaga in Sessions Trial
No. 128 of 2007, whereby and whereunder the learned
Sessions Judge has convicted the two accused-appellants
and two others for offence under Sections 302 and 449
read with Section 34 of Indian Penal Code, 1860 (for
Signature Not Verified
short, “the IPC”). The High Court while confirming the
Digitally signed by
Ramana Venkata Ganti
Date: 2014.10.09
16:54:24 IST
Reason:
order of death sentence, dated 05.08.2008 passed by the
Trial Court in respect of the accused-appellants, has
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thought it fit to modify the sentence awarded to the
other two accused persons, Saddam Khan and Wakil Khan, to
life imprisonment.
2. At the outset, the learned amicus , Shri Bimal Roy
Jad, appearing for the two accused-appellants has only
assailed the order of sentence passed by the Trial Court
and confirmed by the High Court and restricted his
arguments to the quantum of punishment awarded.
Therefore, the scope of this appeal is restricted to the
determination of appropriate sentence that requires to be
awarded to the accused-appellants. Further, since other
accused persons in the instant case are not in appeal
before us, the discussions hereinafter would be confined
to the fact relevant for the disposal of present appeal.
3. The prosecution case in brief is, on 06.06.2007
at about 8:30 p.m., one Haneef Khan (referred to as “the
deceased” hereafter) was offering Namaz in the mosque at
village Makandu, Jharkhand. The accused-appellants and
others, who are none other than the deceased’s brothers
and nephews, approached him and started assaulting him
with sharp-edged weapons such as sword, tangi, bhujali
and spade. The deceased succumbed to the injuries
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inflicted by the accused persons. Leaving the deceased at
the spot, the accused-appellants and others proceeded
towards the house of deceased where, upon hearing the
cries of their father, the deceased’s sons Gufran Khan @
Pala and Imran Khan had come out on the street. The
accused-appellants assaulted the two unarmed brothers
with the aforesaid weapons due to which the two brothers
collapsed and died in front of their house. Thereafter,
the accused-appellants and others entered the house of
the deceased and committed murder of Kasuman Bibi, wife
of the deceased and his four sons, namely, Anish Khan
(aged about 5 years), Danish Khan (aged about 8 years),
Yusuf Khan (physically disabled and aged about 18 years)
and Maherban Khan (aged about 12 years). After committing
murder of the six persons, the accused-appellants
threatened other members of the household including their
mother, Jainub Khatoon (PW-2) of meeting the same fate if
they inform the police about the incident and thereafter
left the house taking away certain documents relating to
the lands, Pass-book, jewellery etc.
4. On 07.06.2007, at about 6:00 a.m., father of the
deceased, Gaffar Khan (PW-1) upon being informed reached
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the village and saw the dead body of the deceased lying
at the mosque, the dead bodies of his grand sons, namely,
Gufran Khan @Pala and Imran Khan were lying in front of
the house and the dead-bodies of his daughter-in-law,
Kasuman Bibi and her four sons were lying inside the
house. There he was informed by his wife- PW2 of the
manner in which the accused-appellants alongwith others
had committed the offence. Meanwhile, Chowkidar of
Village had informed the Police of the incident
telephonically, upon which sanha was entered on the
station diary and the officer in-charge, Shambhu Nath
Singh (PW-13), reached the place of occurrence and
recorded the fardbeyan of the informant, PW-1.
Thereafter, P.S. Case No. 80 of 2007 was registered and
an FIR was drawn. The police authorities carried out the
investigation and held inquest on the bodies of the eight
deceased persons and prepared inquest reports,
whereafter, the dead-bodies were sent for post mortem
examination. During further investigation, the
investigating officer found blood smeared earth at all
the three places of occurrence, and recovered a plastic
mat smeared with blood at the mosque and blood smeared
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tangi from the house of another accused person-Kariman
Khan @ Kari Khan and seized them as exhibits.
5. The genesis of the incident has been traced to a
property dispute between accused-appellants and the
deceased.
6. On completion of the investigation, the charges
were framed against the accused-appellants and others.
The accused-appellants had denied their guilt and thus,
the case was committed to trial.
7. The prosecution has examined 13 witnesses
including eye-witness, PW-2. They have also tendered by
way of documentary evidence Exhibit 1 to 9/5 (sic) and
also has marked Material objects ‘I’ and ‘II’ while the
defence has examined 4 witnesses and marked Exhibit ‘A’
to ‘E’ as evidence.
8. PW-1 is the father of deceased-Haneef Khan and
the accused-appellants. Though not an eye-witness to the
incident, he has testified in respect of the genesis of
the dispute between parties and supported the version of
PW-2. PW-2 is the mother of deceased-Haneef Khan and was
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present in the house in another room during the
occurrence of the incident and hence is an eyewitness.
She has deposed in respect of the sequence of occurrence
on the fateful night, the identification of the
accused-appellants and genesis of the dispute between
parties. PW-3 and PW-6 are independent witnesses who were
offering Namaz at the mosque during the incident and PW-5
is the Imam of the mosque who also witnessed the
incident. Their testimony supports the prosecution case
in respect of the accused-appellants indiscriminately
assaulting the deceased-Haneef Khan with sword and
bhujali. PW-4 is a resident of the same village and has
testified that the accused-appellants were present in the
village on the fateful night and did not take part in the
marriage proceedings held in another village where other
villagers including PW-1 were present. PW-7, neighbor of
deceased-Haneef Khan, has corroborated the prosecution
version in respect of the accused-appellants assaulting
the deceased’s two sons in front of his house with sword
and bhujali. PW-8, the medical practitioner who conducted
post mortem of the dead bodies has testified to the cause
of death being shock and hemorrhage of vital organs like
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brain due to injuries sustained by the deceased persons.
9. In their defense, the accused-appellants have
denied the charges against them.
10. The Trial Court after marshalling of facts and
thorough scrutiny of evidence on record has concluded
that the accused-appellants, armed with sword and
bhujali, alongwith other persons had entered into the
mosque and assassinated the deceased, killed his two sons
in front of his house and then entered the house where
they assaulted his wife and four minors including a
physically challenged child leading to their death. The
Court has further rejected the defense pleaded by the
accused-appellants and established their presence in the
village on the fateful night in view of PW-4’s testimony.
Further, the Court has found the testimony of the sole
eye-witness, PW-2, credible and trustworthy. Therefore,
in light of the motive of the accused-appellants being
clear from the record, the apparent pre-meditation of
successive murders and their choice of the day of
execution of the said merciless plan when residents of
the village had left for another village to attend a
wedding, the Court has concluded the guilt of the
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accused-appellants in killing the eight persons and
convicted them for offence under Sections 302 and 449
read with 34 of IPC. While sentencing them, the Trial
Court has recorded the aggravating and mitigating
circumstances for awarding death sentence.
11. Aggrieved by the aforesaid judgment and order,
the accused-appellants along with two others had
approached the High Court in Criminal Appeal (D.B.) No.
1103 of 2008.
12. The High Court after carefully analyzing the
evidence on record has come to the conclusion that the
Trial Court has not committed any error in convicting and
sentencing the appellants and accordingly has confirmed
the judgment and order of the Trial Court insofar as the
appellants are concerned. However, the High Court has
modified the sentence of other two accused persons from
death sentence to imprisonment for life.
13. Aggrieved by the aforesaid conviction and
sentence, the accused-appellants are before us in this
appeal.
14. The learned amicus for the appellants would
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confine his arguments only to the question of sentence.
He would submit that neither do the appellants have any
criminal antecedents nor are they hardened criminals. He
would contend that the appellants are middle-aged and
have a family and old aged parents-PW-1 and PW-2 and
sentencing them to death would devastate the said
dependents. He would further submit that there is a
possibility of reformation of the appellants and they
must not be deprived of their life, but be provided with
an opportunity to reform themselves especially when they
have a considerable life-span ahead.
15. Learned counsel for the State ably justifies the
judgment and order passed by the High Court.
16. We have given our anxious consideration to the
evidence on record and the submissions put forth by both
the learned counsel. We have carefully perused the
judgments and orders of the Courts below.
17. The awarding of death penalty has been a matter
of serious academic and judicial debate to discern an
objective and rational basis for the exercise of the
power and to evolve sound jurisprudential principles
governing the exercise thereof. In this regard the
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Constitution Bench decision of this Court in Jagmohan
Singh v. The State of U.P. (1973) 1 SCC 20 and Bachan
Singh v. State of Punjab (1980) 2 SCC 684, a three Judge
Bench decision in Machhi Singh and Ors. v. State of
Punjab (1983) 3 SCC 470, are the leading cases wherein
certain principles in the matter of sentencing has been
evolved by this Court. The broad principles tailored by
this Court in its judgments provide guidelines to ensure
that the discretion vested in the Court is not unbridled.
18. This Court in the aforesaid decisions has evolved
the doctrine of “rarest of the rare” case and put it to
test via the medium of charting out the aggravating and
mitigating circumstances in a case and then balancing the
two in the facts and circumstances of the case. As a
norm, the most significant aspect of sentencing policy is
independent consideration of each case by the Court and
extricating a sentence which is the most appropriate and
proportional to the culpability of the accused. It may
not be apposite for the Court to decide the quantum of
sentence with reference to one of the classes under any
one of the head while completely ignoring classes under
other head. That is to say, what is required is not just
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the balancing of these circumstances by placing them in
separate compartments, but their cumulative effect which
the Court is required to keep in its mind so as to better
administer the criminal justice system and provide an
effective and meaningful reasoning by the Court as
contemplated under Section 354(3) Code while sentencing.
The following broad heads have been culled out by the
successive judgments of this Court:
“ 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 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.
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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 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 emotional disturbance or
extreme provocation in contradistinction to all
these situations in normal course.
2. The age of the accused is a relevant
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consideration but not a determinative factor by
itself.
3. The chances of the accused of 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 to appreciate the circumstances of
his criminal conduct.
5. The circumstances which, in normal course of
life, would render such a behavior 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 behavior 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 pre-ordained 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 a sole eye-witness though
prosecution has brought home the guilt of the
accused. While determining the questions
relateable to sentencing policy, the Court has
to follow certain principles and those
principles are the loadstar besides the above
considerations in imposition or otherwise of
the death sentence.
Principles:
1. The Court has to apply the test to
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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.
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
circumstances.
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.”
19. We remind ourselves that the doctrine of “rarest
of rare” does not classify murders into categories of
heinous or less heinous. The difference between two is
not in the identity of the principles, but lies in the
realm of application thereof to individual fact
situations. Sentences of severity are imposed to reflect
the seriousness of the crime, to promote respect for the
law, to provide just punishment for the offence, to
afford adequate deterrent to criminal conduct and to
protect the community from further similar conduct. It
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serves a three-fold purpose- punitive, deterrent and
protective.
20. Before proceeding to discuss the fact situation
in the instant case, it would be expedient to briefly
visit the judicial decisions of this Court on sentencing
policy in cases wherein the entire family has been
exterminated and where the accused persons plead for
lesser sentence on grounds of age, lack of criminal
antecedents and existence of dependents such as children
or old aged parents or seeks commutation indicating
probability of reformation and rehabilitation.
21. In Ajitsingh Harnamsingh Gujral v. State of
Maharashtra , (2011) 14 SCC 401, the accused was convicted
under Section 302 of IPC for murder of his wife, one son
and two daughters by burning. This Court awarded him
death sentence classifying the case as rarest of rare. It
observed that burning living persons to death is horrible
act causing excruciating pain to the victim. The person
in the position of trust instead of doing his duty of
protecting his family has killed them in a cruel and
barbaric manner, thus eliminating possibility of being
reformed or rehabilitated.
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22. In State of Uttar Pradesh v. Sattan @ Satyendra &
Ors. (2009) 4 SCC 736, the accused had committed the
murder of six members of family including helpless women
and children in brutal, diabolic and beastly manner. This
Court held that the crime is enormous in proportion and
shocks conscience of Court. The Court observed that the
depraved acts of accused call for only one sentence, that
is the death sentence.
23. In Govindasami v. State of Tamil Nadu, (1998) 4
SCC 531, the accused committed five murders for which he
was acquitted by the Trial Court but convicted and
sentenced to death by the High Court. This Court in
appeal confirmed the sentence and held, that, the brutal
manner of wiping out the entire family of his uncle
(except one son studying in Coimbatore escaping) by
appellant to grab his properties shocks judicial
conscience and no lesser sentence is appropriate.
24. Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1, is
a case where the accused had committed murder of step
relatives to grab entire family property. This Court held
17
that though the accused was 25 years old at the relevant
point of time, considering his hunger and lust for
property, killing his own (step) family members by
trapping them within closed doors when they were helpless
and unarmed and had no occasion to provoke or resist has
brutally and mercilessly caused 37 knife blows on vital
parts of all three victims until each one had died; such
act of barbarism calls for no sentence lesser than the
death sentence.
25. Similarly, in Ajay Kumar Pal v. State of
Jharkhand, (2010) 12 SCC 118, the domestic servant had
laced the food with pesticide and assaulted the inmates
with sharp-edged weapons and thereafter had set the house
on fire. This Court held that murder of three persons
without sudden provocation wiping out almost entire
family involved preparation and pre-planned execution and
thus calls for imposition of death penalty.
26. In Shobhit Chamar v. State of Bihar , (1998) 3 SCC
455, two accused were before this Court for committing
dacoity and murder of all six male members of a family
including two minor children. While for one accused
evidence of wielding any specific weapon could not be
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produced by the prosecution, use of firearm and presence
of motive was proved by the prosecution for the other
accused. This Court considering former accused was not
related to latter had commuted the death sentence of
former and confirmed the death penalty of the latter
accused.
27. In Sunder Singh v. State of Uttaranchal (2010)
10 SCC 611, in the incident five persons lost their lives
while the sole surviving lady survived with 70% burn
injuries. Therein, the accused had arrived at the spot
well prepared carrying jerry cans containing petrol,
sword, pistol with two bullets indicating pre-meditation.
The murder was committed in a cruel, grotesque and
diabolical manner by closing the door of the house
evidencing that the accused actually intended to burn all
the persons inside the room. In absence of any mitigating
circumstance weighing in favor of the accused, the death
sentence was upheld.
28. In C. Muniappan v. State of T.N. , (2010) 9 SCC
567, three helpless, innocent, unarmed, girl students had
died and 20 received burn injuries by burning of the bus
by three members of an unlawful assembly engaged in road
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blocking in a public demonstration. This Court held that
it was one of the rarest of rare cases, indicating prior
planning, lack of provocation and certainly one where the
accused would be a menace and threat to the harmonious
and peaceful co-existence of the society and hence
the death sentence was the most appropriate punishment.
29. In Jagdish v. State of M.P. ,(2009) 9 SCC 495, the
accused had murdered his wife and five children (aged 1
to 16 years) in his own house. The murders were
particularly horrifying as the assailant was in a
dominant position and a position of trust as the head of
the family. This Court held that the balance sheet of
aggravating and mitigating circumstances was heavily
weighed against the assailant making it a rarest of rare
case and hence, the award of death sentence was
confirmed.
30. In Prajeet Kumar Singh v. State of Bihar , (2008)
4 SCC 434, the accused, who was a paying guest for a
continuous period of four years in lieu of a paltry sum
of Rs.500/- for food and meals, had brutally killed three
innocent and defenseless children aged 8, 15 and 16,
attempted to murder the father (informant) and mother who
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survived the attack with multiple injuries. In lack of
provocation or motive for committing this ghastly act at
a time when the children were sleeping and presence of
several incised wounds caused to the deceased, this Court
held that the murders were brutal, diabolic, inhuman in
nature and considering the enormity of the crime held
that the mindset of the accused could not be said to be
amenable to any reformation and sentenced him to death.
31 . Ram Singh v. Sonia , (2007) 3 SCC 1 involved facts
where a married couple murdered the wife’s father,
mother, sister, step brother and his
whole family including three young ones of 45 days, 2 ½
years and 4 years with the motive of resisting her father
from giving property to her step brother and his family.
This Court held that since the murders were committed in
a cruel, pre-planned and diabolic manner while the
victims were sleeping, without any provocation from the
victim's side, it could be concluded the accused persons
did not possess any basic humanity and lacked the psyche
or mindset amenable to any reformation and therefore, the
case fell within the category or rarest of rare cases for
imposition of death penalty.
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32. In Holiram Bordoli v. State of Assam , (2005) 3
SCC 793, the accused persons, armed with lathis and other
weapons, had come to the house of the victim and started
pelting stones on the bamboo wall of the said house.
Thereafter, they closed the house from the outside and
set the house on fire. When the son, daughter and the
wife of the victim somehow managed to come out of the
house, the accused persons caught hold of them and threw
them into the fire again. Thereafter, the elder brother
who was staying in another house at some distance from
the house of the victim was caught and dragged to the
courtyard of the accused where the accused cut him into
pieces. It was held that even in absence of any strong
motive and lack of provocation, the offence was committed
in the most barbaric manner to deter others from
challenging the supremacy of the accused in the village
and therefore, imposition of death penalty was found fit.
33. In Saibanna v. State of Karnataka , (2005) 4 SCC
165, the accused had pre-planned the murder of his second
wife and daughter aged around one year when the victims
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were sleeping by using a hunting knife (jambia) which is
not ordinarily available in a house at the time when he
was out on parole. The Court found no justified reasons
for any extenuating circumstances in favour of the
accused, thus placing the case under the 'rarest of rare
case' category and justifying imposition of death
sentence.
34. In Karan Singh v. State of U.P. , (2005) 6 SCC
342, the two appellants chased the three deceased persons
involved with them in a property dispute and butchered
them with axes and other weapons in a barbaric manner.
Thereafter, they had entered their house and killed two
children with the sole intention to exterminate the
entire family. The Court held that it was a 'rarest of
the rare' case and sentenced the appellants to death.
35. State of Rajasthan v. Kheraj Ram , (2003) 8 SCC
224 is the unfortunate case where the accused
deliberately planned and executed his two innocent
children, wife and brother-in-law when they were sleeping
at night. The Court noticed that there was no remorse for
such a gruesome act which was indicated by the calmness
with which he was smoking "chilam" after the commission
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of the act. The incident being pre-planned, after
analyzing the entire chain of events and circumstances,
the inevitable conclusion was reached that the accused
acted in a most cruel and inhuman manner and the murder
was committed in an extremely brutal, grotesque,
diabolical, revolting and dastardly manner.
36. In Om Prakash v. State of Uttaranchal , (2003) 1
SCC 648, the accused was a domestic servant who killed
three members and attempted to kill the fourth member of
the family of his employer in order to take revenge for
the decision to dispense with his service and to commit
robbery. The death sentence was upheld.
37. In Praveen Kumar v. State of Karnataka , (2003) 12
SCC 199, the accused was accommodated in the houseby one
of the victims, his aunt, despite her large family, and
she gave him an opportunity to make an honest living as a
tailor. The accused committed the pre-planned,
cold-blooded murders of relatives and well wishers
including one young child while they were asleep. After
the commission of the crime the accused absconded from
judicial custody for nearly four years, indicating that
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possibility of any remorse or rehabilitation is none.
This Court has held that the extreme penalty of death was
justified.
38. In Suresh v. State of U.P. , (2001) 3 SCC 673, the
brutal murder of one of the accused's brother and
his family members including minor children at night when
they were fast asleep with axe and chopper by cutting
their skulls and necks for a piece of land was considered
to be a grotesque & diabolical act, where any other
punishment than the death penalty was unjustified.
39. In Ramdeo Chauhan v.State of Assam , (2000) 7 SCC
455, the accused committed a pre-planned cold-blooded
brutal murder of four inmates of a house including two
helpless women and a child aged 2 ½ years during their
sleep with a motive to commit theft. The accused also
attacked with a spade another inmate of the house, an old
woman, and a neighbour when they entered the house. The
Court held that the young age (22 years) of the accused
at the time of committing the crime was not a mitigating
circumstance, and death penalty was a just and proper
punishment.
40. In Narayan Chetanram Chaudhary v. State of
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Mahrashtra , (2000) 8 SCC 457, there was a pre-planned,
calculated, cold-blooded murder of five women, including
one pregnant woman and two children of about 2 years of
age, all inmates of a house, in order to wipe out all
evidence of robbery and theft committed by two accused in
the house at a time when male members of the house were
out. It was held that the young age (20-22 years) of the
accused persons cannot serve as a mitigating
circumstance.
41. In State of U.P. v. Dharmendra Singh , (1999) 8
SCC 325, 5 persons were murdered, an old man of 75 years,
a woman aged 32 years, two boys aged 12 years and a girl
aged 15 years, at night when they were asleep by
inflicting multiple injuries to wreak vengeance. This
Court held that the ghastly and barbaric murder can be
termed as rarest of the rare case and death penalty was
just for such a diabolic act.
42. In Ronny v. State of Mahrashtra , (1998) 3 SCC
625, the accused was the nephew of the deceased, and
because of the relationship he gained access inside the
26
house for himself and his friends. The victims were
unarmed and the crime was committed for gain i.e. to rob
the valuables of the deceased family. The accused then
killed all three members and then committed rape on the
lady who was the wife of his maternal uncle and as old as
his mother. Considering the facts of the case this Court
held that it cannot be said that the offences were
committed under the influence of extreme mental or
emotional disturbance as everything was done in a
preplanned way, and hence death penalty was upheld.
43. Surja Ram v. State of Rajasthan , (1996) 6 SCC 271
was a case where the dispute between the appellant and
the deceased only related to erecting a barbed fence on a
portion of the residential complex. The appellant in
pursuance of the same had murdered his bother, his two
minor sons and an aged aunt by cutting their neck with a
kassi while they were all sleeping and also attempted to
murder his brother's wife and daughter but they survived
with serious injuries. The death sentence was held to be
justified.
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44. In Haresh Mohandas Rajput v. State of
Maharashtra, (2011) 12 SCC 56, Rabindra Kumar Pal alias
Dara Singh v. Republic of India , (2011) 2 SCC 490,
Surendra Koli v. State of U.P. and Ors. , (2011) 4 SCC 80
and Sudam @ Rahul Kaniram Jadhav v. State of Maharashtra ,
(2011) 7 SCC 125, this Court has opined that the death
sentence must be awarded where the victims are innocent
children and helpless women, especially when the crime is
committed in a most cruel and inhuman manner which is
extremely brutal, grotesque, diabolical and revolting.
45. The crime test, criminal test and the “rarest of
the rare” test are certain tests evolved by this Court.
The tests basically examine whether the society abhors
such crimes and whether such crimes shock the conscience
of the society and attract intense and extreme
indignation of the community. The cases exhibiting
pre-meditation and meticulous execution of the plan to
murder by leveling a calculated attack on the victim to
annihilate him, have been held to be fit cases for
imposing death penalty. Where innocent minor children,
unarmed persons, helpless women and old and infirm
persons have been killed in a brutal manner by persons in
28
dominating position, and where after ghastly murder
displaying depraved mentality, the accused have shown no
remorse, death penalty has been imposed. Where it is
established that the accused is a hardened criminal and
has committed murder in a diabolic manner and where it is
felt that reformation and rehabilitation of such a person
is impossible and if let free, he would be a menace to
the society, this Court has not hesitated to confirm
death sentence. Many a time, in cases of brutal murder,
exhibiting depravity and callousness, this Court has
acknowledged the need to send a deterrent message to
those who may embark on such crimes in future. In some
cases involving brutal murders, society's cry for justice
has been taken note of by this Court, amongst other
relevant factors. While deciding whether death penalty
should be awarded or not, this Court has in each case
realizing the irreversible nature of the sentence,
pondered over the issue many times over. This Court has
always kept in mind the caution sounded by the
Constitution Bench in Bachan Singh case (supra) that
judges should never be blood thirsty but wherever
necessary in the interest of society identify the rarest
29
of rare case and exercise the tougher option of death
penalty.
46. Having noticed the decisions of this Court on the
said aspect, we would consider other decisions of this
Court on which reliance has been placed by the learned
amicus .
47. The case of Sunil Dutt Sharma v. State (Govt. of
NCT of Delhi), (2014) 4 SCC 375 has been relied upon by
the learned amicus to bring home the point that the lack
of criminal antecedents and existence of dependents of
the accused would be considered as mitigating
circumstances warranting award of a lesser sentence. In
the said case, the accused-husband was convicted under
Section 304-B of the IPC for dowry death of the wife
within two years of the marriage and was awarded the
sentence of life imprisonment. His sentence was modified
to ten years of rigorous imprisonment by this Court
considering that his age at the time of commission of the
offence-21 years and that he had a young son. In our
considered view, the aforesaid mitigating circumstances
considered by this Court while modifying the sentence of
the accused-husband therein would not be relevant in the
30
instant case. Firstly , the said case did not involve
testing the culpability of the accused on the balance
sheet of mitigating and aggravating circumstances to
determine whether the offence committed was “rarest of
rare”.
48. In the case of Birju v. State of M.P., (2014) 3
SCC 421, this Court has dealt with the question of
chances of the accused not indulging in commission of the
crime again and the probability of the accused being
reformed and rehabilitated. This case relates to the
killing of a child aged one year who was in the arms of
the grand-father when the accused shot him in the head
with a country made pistol for which the accused was
awarded death sentence by the Trial Court which was
affirmed by the High Court and modified to rigorous
imprisonment for 20 years by this Court on grounds that
though the accused person had criminal antecedents, the
depravity of the crime was not such so as to fall under
the category of the “rarest of rare” cases. Learned
amicus has relied on paragraph 20 of the judgment to
buttress the argument that sentencing policy requires the
Court to balance the probability of the accused
31
committing crime again and being a menace to the society
if let free.
49. The learned amicus seeks to draw strength from
the decision of this Court in Mahesh Dhanaji Shinde v.
State of Maharashtra , (2014) 4 SCC 292. In the said
decision, this Court has held that since the core of
criminal case lies in facts and the facts differ in each
case, there cannot be tailored a formula whereby the
cases could be compartmentalized as rarest of rare or
otherwise. Considering the facts of the said case, this
Court observed that since the probability of award of
life imprisonment was not “unquestionably foreclosed”,
death penalty could not be awarded and therefore,
commuted the sentence.
50. In Sushil Sharma v. The State of N.C.T. of Delhi,
(2014) 4 SCC 317, the evidence on record had established
the position that though both the accused-appellant and
deceased therein were married and living together, their
relations were strained as the appellant suspected her
fidelity and the murder was the result of this
possessiveness. This Court considered that the appellant
had no criminal antecedents and was not a confirmed
32
criminal. This Court observed that no evidence was led by
the State to indicate that he is likely to revert to such
crimes in future and the appellant being the only son of
his parents who are old and infirm, the mitigating
circumstances weighed in his favor and the death sentence
was commuted to life imprisonment.
51. Anil @ Anthony Arikswamy Joseph v. State of
Maharashtra , (2014) 4 SCC 69 was a case where the accused
was in a dominating position and the victim was an only
innocent boy. This Court applied the crime test, criminal
test and also weighed the mitigating and aggravating
circumstances in light of “rarest of the rare” doctrine
and concluded that the murder was committed in an
extremely brutal manner which pricks not only judicial
conscience but also conscience of society. This Court
considered that the accused has no previous criminal
history and is 42 years of age alongwith the fact that
the boy had voluntarily come to the accused and was not
kidnapped. Further, since the entire case rests on
circumstantial evidence and generally in the absence of
ocular evidence death sentence is seldom awarded, this
Court opined that incarceration of further period of 30
33
years without remission in addition to sentence already
under-gone will be an adequate sentence.
52. State of Maharashtra v. Goraksha Ambaji Adsul ,
(2011) 7 SCC 437 arose out of brutal and diabolical
killing of three innocent family members due to their
resistance to the accused person’s demands for partition
of the land and other property and allotment of shares.
This Court observed that the circumstances and manner of
committing crime should pricks judicial conscience of
Court to extent that only and inevitable conclusion
should be awarding of death penalty. This Court
considered that though the manner of committing crime was
deplorable but attendant circumstances and fact that (i)
the accused administered sweets containing
sedatives/poisonous substance even to his own wife, shows
that his frustration, and probably greed, for property
had attained volcanic dimensions; (ii)the intensity of
bitterness between members of the family had exacerbated
thoughts of revenge and retaliation and (iii) constant
nagging by his wife as mitigating circumstance in
commission of crime and consequently, held that awarding
34
death sentence amounting to taking away life of an
individual would not be appropriate as the case does not
fall in category of ‘rarest of rare cases’.
53. In Brajendrasingh v. State of Madhya Pradesh ,
(2012) 4 SCC 289, a man suspecting his wife of having
illicit relations with his neighbor, had killed his three
young children who were asleep, sprinkled kerosene oil on
his wife and put her on fire. This Court considered that
the incident occurred in spur of the moment, was not
premeditated and the accused attempted suicide after
committing the crime and concluded that circumstances
examined cumulatively would suggest the existence of a
mental imbalance in the accused at the moment of
committing the crime and therefore, commuted the death
sentence to imprisonment for life.
54. Having considered the case laws relied on by the
learned Amicus , we would now revert back to the factual
situation of this case. In the instant case, the time,
place and manner of the commission of crime are
indicative of the motive of the accused-appellants. The
accused-appellants have ruthlessly and successively
butchered their own kith and kin for obtaining possession
35
of certain pass-book, money and immovable property
without any provocation. They chose a day when most of
the residents of the village including PW-1 had went out
to attend a wedding at an adjacent village and ensured
that their despicable act did not suffer any resistance
from them. At first, they entered the Mosque where the
deceased was offering Namaz and indiscriminately attacked
him with the sword and bhujali. Thereafter, they
proceeded towards his house and slained the deceased’s
two sons- Gurfan Khan and Imran Khan, who had come out of
the house hearing their father’s cries for help.
Committed to their pre-meditated object, the
accused-appellants forced themselves into the deceased’s
house and killed Kasuman Bibi and her four minor children
including a physically disabled child. Being armed with
sharp edged weapons such as sword, tangi, bhujali and
spade, the quick succession with which the
accused-appellants proceeded to slaughter the eight
members of their family classifies their act as
pre-planned and reflects the cold-blooded fashion with
which the callous design was executed.
55. The accused-appellants in their unquenched thirst
36
for land and money extirpated eight innocent lives. The
soured relations between the brothers did not restrict
them from eliminating the family of Haneef Khan, thereby
killing his two young sons, his wife and his four minor
sons aged one 5, 8, 12 and 18 approximately,
respectively, one of who was physically disabled. Their
lack of remorse is reflected from the act of extending
threat of life to other members of the family present in
the house should they dare to inform the police.
56. It is heart wrenching to fathom the plight of an
old mother who witnessed her own sons kill their brother
and his family. PW-2, the sole eye-witness, despite being
the mother of both the accused-appellants has supported
the prosecution case and testified against them. Her
testimony has been unassailed, corroborated by her
statement under Section 164 of the Code and other witness
to the incident. No oblique motive has surfaced from the
record which would impregnate her statement with
suspicion against her own sons. Usually a brother, a
sister or a parent who has seen the commission of crime,
may resile in the Court from a statement recorded during
the course of investigation. It happens instinctively,
out of natural love and affection, not out of persuasion
37
by the accused person. The witness has an obvious stake
in the innocence of the accused and therefore tries to
save him from the guilt. Here, PW-2 has not only come
forward by testifying for the prosecution but has also
stood unshaken by the family ties in her tryst for
justice to the slain half of her family. It would be the
paramount duty of the Court to provide justice to the
incidental victims of the crime- the family members of
the deceased persons. Therefore, appropriate and
proportional sentence requires to be imposed. On one
hand, such sentencing would demonstrate respect to those
most personally affected by the grief and horror
of murder, on the other it would also be in accordance
with the goals of the victims' rights and the principles
of restorative justice.
57. In Dhananjoy Chatterjee @ Dhanna v. State of West
Bengal , (1994) 2 SCC 220, this Court has observed that
the measure of punishment in a given case depends upon
the atrocity of the crime, the conduct of the criminal
and the defenseless and unprotected state of the victim.
Further that imposition of the appropriate punishment is
the manner in which the Courts respond to the society’s
38
cry for justice against the criminal and justice demands
that Court should impose such punishment which reflects
public abhorrence of the crime. This Court highlighted
the Court’s duty to view the rights of the victims of
crime and the society while considering imposition of
appropriate punishment.
58. In Rattan Singh v. State of Punjab , (1979) 4 SCC
719 this Court lamenting the unfortunate state of
victims’ right protection in India observed that “it is a
weakness of our jurisprudence that victims of crime and
the dependents of the victims do not attract the
attention of law. In fact, the victim reparation is still
the vanishing point of our law. This is the deficiency in
the system, which must be rectified by the legislature.”
59. In the context of these turbulent social times,
we cannot remain oblivious to the substantial suffering
of the victims. It stands as a fact that criminal justice
reform and civil rights movement in India has
historically only paid considerable attention to the
rights of the accused and neglected to address to the
same extent the impact of crime on the victims. It is not
only the victims of crime only that require soothing
39
balm, but also the incidental victims like the family,
the co-sufferers and to a relatively large extent the
society too. The judiciary has a paramount duty to
safeguard the rights of the victims as diligently as
those of the perpetrators.
60. In Mahesh v. State of Madhya Pradesh , (1987) 3
SCC 80, this Court has deprecated the lenient approach in
imposition of the appropriate punishment and observed
that it would be a mockery of justice to permit the
accused to escape the extreme penalty of law when faced
with clear evidence and diabolic acts. This Court held
that to award the lesser punishment would be to render
the justice system of this country suspect due to which
the common man would lose faith in courts. This Court
approved the harshest punishment in such cases as here
adopting the approach that the accused understands and
the society appreciates the language of deterrence more
than the reformative jargon.
61. In Sevaka Perumal v. State of T.N ., (1991) 3 SCC
471, this Court stated that undue sympathy to impose
inadequate sentence would do more harm to the justice
40
system and undermine the public confidence in the
efficacy of law. The society could not long endure under
such serious threats and therefore, it is 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.
62. In the instant case, the mitigating circumstances
under which the appellants seek refuge have failed to
convince us. The age of the appellants is not a relevant
circumstance in the present case. They were middle aged
at the time of commission of the offence and their
faculties were ripe enough to comprehend the implications
of their actions and therefore, do not warrant pardon of
this Court. Secondly , the circumstance that the
appellants have a family and old aged parents etc. does
not convinces us, especially in light of the fact that
the parents themselves have testified against the
appellant’s act of uprooting their brother’s family and
their utter disregard for blood relations. Thirdly , the
mere fact that some of the accused persons of young age
have been awarded a lesser sentence than death sentence
41
can not be made a ground for commuting the sentence of
death to imprisonment for life. The manner in which the
crime was committed on the helpless members of
a family including children of tender age and child with
locomotive disability and design of the
accused-appellants to eliminate the whole family
justifies the grant of death sentence. Lastly , the manner
of the commission of crime, the diabolic murder of the
young and innocent children of deceased-Haneef Khan for
property and choice of the day of commission of crime by
the appellants belittles the argument with respect to
possibility of reformation of the appellants and their
possible rehabilitation.
63. In our considered view, the "rarest of the rare"
case exists when an accused would be a menace, threat and
anti-thetical to harmony in the society. Especially in
cases where an accused does not act on provocation,
acting in spur of the moment but meticulously executes a
deliberately planned crime inspite of understanding the
probable consequence of his act, the death sentence may
be the most appropriate punishment. We are mindful that
criminal law requires strict adherence to the rule of
42
proportionality in providing punishment according to the
culpability of each kind of criminal conduct keeping in
mind the effect of not awarding just punishment on the
society. Keeping in view the said principle of
proportionality of sentence or what it termed as
"just-desert" for the vile act of slaughtering eight
lives including four innocent minors and a physically
infirm child whereby an entire family is exterminated, we
cannot resist from concluding that the depravity of the
appellant’s offence would attract no lesser sentence than
the death penalty.
64. In the result, we are in agreement with the
reasons recorded by the Trial Court and approved by the
High Court while awarding and confirming the death
sentence of the accused-appellants. In our considered
view, the judgment(s) and order(s) passed by the Courts
below does not suffer from any error whatsoever.
65. The appeal stands dismissed, accordingly.
43
66. The Registry is directed to pay Rs.10,000/-
(Rupees Ten Thousand Only) to the learned Amicus Curiae.
Ordered accordingly.
...................CJI.
(H.L. DATTU)
.....................J.
(R.K. AGRAWAL)
.....................J.
(ARUN MISHRA)
NEW DELHI,
OCTOBER 09, 2014.
44
ITEM NO.1A COURT NO.1 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1795/2009
MOFIL KHAN & ANR. Appellant(s)
VERSUS
STATE OF JHARKHAND Respondent(s)
Date : 09/10/2014 This appeal was called on for pronouncement of
reasoned order today.
For Appellant(s) Mr. Bimal Roy Jad,Adv. (A.C.)
For Respondent(s) Mr. Ratan Kumar Choudhuri,Adv.
Mr.Jayesh Gaurav, Adv.
Hon'ble the Chief Justice has pronounced the reasoned
order of the Bench comprising His Lordship, Hon'ble Mr.Justice
R.K.Agrawal and Hon'ble Mr.Justice Arun Mishra.
The Court is in agreement with the reasons recorded by
the Trial Court and approved by the High Court while awarding and
confirming the death sentence of the accused-appellants and is of
the considered view that the judgment(s) and order(s) passed by the
Courts below does not suffer from any error whatsoever.
The appeal stands dismissed, in terms of the signed
reportable order.
The Registry is directed to pay Rs.10,000/- to the
learned amicus curiae .
(G.V.Ramana) (Vinod Kulvi)
Court Master Asstt.Registrar
(Signed reportable order is placed on the file)