Full Judgment Text
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CASE NO.:
Appeal (crl.) 927 of 2001
PETITIONER:
D@HAMRAMNESNIDNRGASRIANTHANSINH
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT: 17/04/2002
BENCH:
Doraiswamy Raju & Brijesh Kumar
JUDGMENT:
BRIJESH KUMAR, J.
This appeal has been preferred by the appellant from
Jail against the judgment and order dated 5th,7th and 10th July,
2001 passed by the Gujarat High Court upholding his
conviction under Section 302 I.P.C. and sentence of death as
awarded by the Additional Sessions Judge Sabarkantha, at
Himmatnagar. The reference for confirmation of the death
sentence was also accepted.
We have heard the Amicus curiae representing the
appellant at length as well as the learned counsel representing
the State.
The facts of the case are in a narrow campass. The
appellant and PW-3 Ashaben, were married about 15 years
before the incident. They had two sons, Jigarsinh and
Vimalsinh aged about 12 and 7 years respectively. They were
residing in Village Bhadresar along with the parents of the
appellant. The brother of the appellant, namely Dashrathsinh
was living separately. The prosecution case is that on
24.8.1998 while the appellant, the complainant PW-3
Ashaben and their two sons were sleeping on cots inside the
house, the appellant woke her up early in the morning. She
milched the cow and requested her husband to deliver the
milk at the dairy. The appellant declined to do so upon which
she tried to awake Jigarsinh for delivering the milk but the
appellant asked her to go herself for the purpose. She
accordingly went to the dairy and reached back home at about
7 a.m. She found her husband assaulting the sleeping boys,
namely their sons. She raised alarm and rushed into the room
thereupon her husband left the house from the other door.
Ratansinh her father-in-law and Dasrathsinh her brother-in-
law and others arrived. She told them about the incident.
The two sons died as a result of injury received by them.
PW-4 Mangusinh Tetsinh, father of the complainant, PW-3
Ashaben on getting information of the incident through
Sarpanch of his village went to Village Bhadresar, his
daughter narrated the whole story to him. He brought her to
his village Mhudi from Bhadresar. According to him on the
way they also went to the Police Station, Jadar. According to
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PW-3 her report was written and lodged at the Police Station.
The PSI, Police Station, Jadar, Bhurjibhai, who has been
examined as PW-8 stated about the lodging of the FIR and
registration of the case at the Police station at 5 p.m. on
24.8.1998. Thereafter PW-9 conducted the investigation into
the case interrogating the complainant and other witnesses at
the spot and taking into custody the other material exhibits
and prepared their respective recovery memos including that
of the weapon Dharia. He also took into custody the plain
and blood stained earth etc. Inquest reports were also
prepared. He arrested the accused on 17.9.1998 at 11.15
A.M. The post-mortem examination on the dead bodies of
the two deceased was held by PW-1 Dr. Ganpatsinh
Ambadan Charan, on 24.8.1998. He found three external
injuries on the dead body of Jigarsinh, which consisted of one
sharp cut wound on the left cervical region up to the middle
line of neck and two other incised wounds. On internal
examination he found fracture of the jaws. So far Vimalsinh
is concerned he was found to have one sharp cut wound on
the neck from left mandible to right ear lobule. There was
fracture of occipital bone as well as that of 1st and 2nd
cervical spine. The Doctor opined that the injuries were ante-
mortem and they were caused by sharp edged weapon. On
looking to the exhibit article No.9, Dharia he stated that the
said injuries could be caused by the said weapon. He also
stated that injuries were sufficient in the ordinary course of
nature to cause death. He denied the suggestion made in the
cross-examination that the nature of the injuries indicated
could be caused only by axe. He also denied the suggestion
that the injury Nos. 2 and 3 could not be caused by Dharia.
PW-2, Nathosinh is a witness of recovery and the articles and
memos prepared there on. PW-3 is the complainant namely,
the mother of the two deceased children and wife of the
appellant. She has stated that the appellant right from the
beginning had suspicion about her character and in that
connection he quite often quarreled with her. She however,
denied a suggestion made on behalf of the defence in her
cross-examination that the appellant used to tell her that the
two sons Jigar and Vimal were not born of him. PW-4,
Mangusinh Tetsinh, is father of the complainant. PW-5
Dineshbhai Paragbhai, who was examined as witness to the
recoveries of his clothes etc. made on the arrest of the
accused on 17.9.1998, PW-6, is yet an another witness in
connection with the same. PW-7 Dalpatsinh is a neighbour,
who claims to have reached the house of the appellant on the
shouts of PW-3, but had found no one else there. PW-8
Bhurjibhai Kavjibhai Damor was PSI and was posted at P.S.,
Jadar and had registered the case at the Police Station. PW-9
Babubhai Kodarbhai Patel is the Investigating Officer.
The Trial Court believed the testimony of PW-3
Ashaben, and accepting the prosecution case that the murders
have been committed by none else but the appellant convicted
him under Section 302 and awarded the capital punishment.
The High Court also, after appraising the evidence and
considering the points raised by the appellant upheld the
judgment of the Trial Court as well as the conviction and the
sentence awarded.
It is clear that the case rests on the only ocular
testimony of PW-3 Ashaben the mother of the slain children
and the wife of the appellant. The other prosecution witness
of fact regarding the alarm raised by Ashaben in the morning
is PW-7 Dalpatsinh, but he has not stated about the presence
of the appellant at the spot at the time he reached there. On
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the other hand he has stated that he reached on the alarm
raised by Ashaben whom he had seen returning from the
dairy, no one else was present at her house. In connection
with the evidence of this witness it has been held that he has
not disclosed the full truth and had only tried to help his
neighbour namely the appellant. Apart from other evidence
adduced as indicated earlier, there are certain circumstances
pointed to the fact that the offence was committed by the
present appellant.
Learned counsel for the appellant has assailed
judgment and conviction broadly on the grounds that there
was discrepancy between the oral and the medical evidence.
The next point, which has been urged with some vehemence
is that there being glaring contradiction in regard to lodging
of the FIR, the investigation made in the case cannot be relied
upon nor a case based on such an FIR could be believed. He
also submitted that the presence of the appellant at the
relevant time is not established at the spot nor that of the
complainant PW-3 Ashaben. Yet another submission is that
FIR was lodged according to the prosecution case itself after
arrival of the parents of the complaint and the complainant
not having happy relationship with the accused, falsely
implicated him in the case. Yet another ground raised is that
the appellant suffered from mental disorder and insanity.
Therefore, he could not be liable for the offence convicted
for.
Before dealing with each submission made we feel it
appropriate to have an over view of the factual position of the
case.
According to the complainant as disclosed in the FIR
itself besides in her statement in the Court, the appellant had
suspicion about her character right from the beginning. A
suggestion made in the cross-examination though denied by
her was that the accused used to tell her that two slain
children were not born of him. In that background in the
night preceding the incident the appellant told that they would
be sleeping inside the house though usually they slept outside
in the open. In the early hours of the morning he woke up his
wife and after milching of the cow told her to go to the dairy
to deliver the milk. He had himself declined to go to the
dairy when asked by the complainant and had also not
allowed her to awake Jigarsinh to go to the dairy for the
purpose. According to the prosecution case after the
complainant had left and he was alone was in the house, he
committed the crime which was witnessed by PW-3 on her
return from the dairy. According to the complainant she
raised alarm on seeing the appellant assaulting the children,
upon which the appellant slipped away by the back door
leaving the weapon at the spot. It is also stated by her that on
her shouts her father-in-law, brother-in-law and others also
arrived. Out of these persons Dalpat Sinh has been examined
as PW-7. He is a neighbour of the appellant. The
prosecution case as disclosed by PW-3 Ashaben, the
complainant, is corroborated by the witness to the extent that
he saw her returning from the dairy and that she raised alarm
upon which he reached the spot and found that her two sons
were lying murdered but thereafter he adds that he had not
found anyone else at the spot meaning thereby that he does
not state about the presence of the appellant there at that point
of time.
So far PW-3 is concerned, it is her own case that the
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appellant had been quarreling with her quite often having
suspicion on her character. The appellant also used to drink
and sometimes gave beating to her. Her father PW-4
Mangusinh Tetsinh stated that his daughter at times told that
the appellant had been having quarrels with her but other
details were not brought to his notice. As observed by the
High Court, and in our view, rightly, that the husband and
wife had still been living together with the differences
whatever were there in between them which had not grown
to such proportion that she might have told about it to her
father or may not be prepared to live together. It also comes
out from her statement that the appellant had been having
his say in the matters at home and he woke her up and
desired her to go to the dairy to deliver the milk refusing to do
so himself even though asked by her. He also did not allow
to awake Jigarsinh for the purpose. That is to say she was
still obeying the wishes of her husband in the household
chores and affairs. It has been observed in the judgment that
PW-7 while saying that on reaching at the spot, he found no
one else there, he was not speaking the full truth. It is
however, to the be noted that to a very great extent the
statement of PW-3, Ashaben stands supported by his
statement. The circumstances which undisputedly flow from
these facts are that after PW-3 Ashaben left for dairy there
was none else at the house except the appellant with two
children asleep. On her return from the dairy she raised
alarm seeing the appellant assaulting the children upon which
the accused slipped away. PW-7, who arrived at the spot, it
would not be surprising that he did not find accused present
at that time. In the background of whatever has been
indicated above it is clear that the relations between the
appellant and PW-3 had not strained from her side at least to
the extent that PW-3 would falsely implicate her husband for
the murder of her two children leaving the real culprit who
may have murdered their two sons. She was still complying
with whatever the appellant desired her to do. It is also to be
noted that father of the appellant though resides in the same
house and having arrived at the spot, did not proceed to lodge
the FIR. Brother of the appellant who also resides there
though separately, failed to inform the police even though he
had also arrived at the spot on the alarm raised by the
complainant. The obvious reason appears to be that they
might not be ready to lodge report against the appellant, the
own son and the brother. Not this alone, once the father and
the brother of the accused would find that the appellant was
being falsely roped in by his wife, there was no reason for
them not to come forward to inform the police about the
correct position or to say that the crime was not committed
by the appellant. They also did not appear in his defence in
the Court to say that it was a case of false implication of the
appellant by none else but his daughter-in-law. Normally a
brother or father will also not be a silent spectator to the false
implication of his brother/son by his wife.
Now taking up the points as raised by the appellant
regarding the medical evidence, we may at the outset indicate
that there is no force in it. Learned counsel for the appellant
has submitted that according to the statement of the doctor
PW-1Ganpat Sinh Ambadan Charan the injuries found on the
dead bodies of the deceased could only be caused by an Axe
and not by a Dharia. On going through the statement of the
doctor we do not find that the submission made is supported
in any manner. The doctor has very clearly stated that all the
injuries found on the dead bodies were caused by some sharp
edged weapon. He has categorically stated that those injuries
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could be caused by Dharia which was exhibited in the Court
though a suggestion was made and denied by the doctor that
such injuries could be caused only by an axe. In this
connection the other related argument which has been raised
is that in the FIR PW-3 had mentioned that the appellant had
assaulted the children with an axe but later on changed her
statement in the Court saying that it was by mistake she had
mentioned ‘axe’ in the FIR but in fact it was Dharia. In our
view it is a very insignificant contradiction which may not
lead to any worthwhile conclusion in view of the fact that it
was immaterial whether the weapon was an axe or a dharia
as both are sharp edged weapons and according to the
statement of the doctor the injuries as received by two
children were caused by a sharp edged weapon. There was
thus no design or purpose in changing the statement or
deliberately giving out something wrong in the First
Information Report about the weapon used by the appellant to
cause the injuries upon the deceased persons. The medical
evidence supports the prosecution case in all respects. We
therefore find no force in this submission as well.
Learned counsel for the appellant then submitted that
presence of the appellant at the relevant time at the spot is
not established and in this connection he has mainly relied
upon the statement of PW-7. We have already made our
observations in that regard. We find that it has rightly been
found by the courts below that PW-7 has not come out with
full truth, may be with a view to help out his neighbour
otherwise to a great extent prosecution case finds supports
from his statement up to the stage, the PW 3 on return
from the dairy had raised an alarm. In this view of the matter
the presence of PW-3 can also not be doubted in respect of
which an effort was made to raise an argument in vain.
The next argument upon which much stress has been
given by the learned counsel for the appellant is about the
contradiction relating to the lodging of the FIR. According to
the PW-3 she had gone to the police station where inquiries
were made from her by the police personnel and thereafter
report was lodged on 24.8.98 itself at 5.00 P.M. PW-9 also
states that complaint was given by Ashaben on the basis of
which a case was registered at the police station. In the cross-
examination, he has however stated that on his way back from
the Court, he got a wireless message from the Control,
regarding this incident thus he straightaway went to village
Bhadresar from Himmatnagar. The report was written at the
house of Ashaben who was present there. The report was
forwarded to the police station for registration of the case. He
also states that mother-in-law and father-in-law of the
complainant were also present at the house. He inspected the
spot and completed the other formalities of the investigation.
He has also stated that two dead bodies were identified by
PW-3 who had also shown him the place of occurrence.
There is no doubt about the fact that there is definitely a
contradiction about the lodging of the FIR but the effect of
such contradiction or discrepancy may have to be viewed in
the light of the facts and circumstances of each case. There
may be cases where such a discrepancy may prove fatal to
the prosecution case whereas in other cases it may not have
the same effect. The high Court has considered this matter in
some detail taking into account all the discrepancies in regard
to this point and came to the conclusion that PW-9 the
Investigating Officer had come straight to the village
Bhadresar while returning from the Court after obtaining the
remand of accused persons in some other case and the FIR
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was scribed there at the house of Ashaben which was
forwarded to the Police Station for its registration. It has
been observed that for an uneducated village person, it is not
unlikely that one may make some embellishment in the
statement saying that the FIR was recorded at the police
station since normally it is recorded there. It has also been
observed that the complainant Ashaben was present in
Village Bhadresar when the police reached there and that the
Panchnamas etc. had also been prepared in her presence and
that she had also identified the bodies and pointed out the
place of occurrence to the Investigating Officer. As observed
earlier the discrepancy in regard to the lodging of the FIR is
certainly there and the conduct of the Investigating Officer in
carrying out the investigation of the case has also been
commented upon by the trial court but we are of the view that
the consequences of such discrepancies or defective or
doubtful investigation is not necessarily only one leading to
discredit the main prosecution case if the prosecution
evidences inspires confidence and circumstances lead to such
a conclusion and the prosecution story rings true. No doubt
that in that event it would be necessary to evaluate as to what
extent such faulty investigation or discrepant statement on
certain facts relating thereto, shall cause damage to the
prosecution case as a whole. In the judgment of the High
Court a few decisions on the point with their relevant
observations made thereunder have been referred to which we
may to reproduce. They are as follows:
" In State of Rajasthan versus Kishore
[1996 SCC (Crl) 646] has pointed out
that mere fact that the investigating
officer committed irregularity or
illegality during the course of
investigation would not and does not
cast doubt on the prosecution case nor
trustworthy and reliable evidence can be
cast aside to record acquittal on that
account. In that case piece of evidence
was not considered by the High Court
but it fell it doubtful like Doubting
Thomas with vacillating mind to accept
the prosecution case for the reasons
which the Apex Court pointed out were
invalid reasons and has wrongly given
benefit of doubt to the respondent.
Suffice it to say that in the instant case,
there is sufficient, reliable, trustworthy
and acceptable evidence and therefore
the discrepancy pointed out is of no
importance and does not affect the
prosecution case and therefore, not only
the evidence was rightly accepted by the
trial court but the trial court on
appreciation of evidence and
circumstances in which offence was
committed, made the order.
The Apex Court in the case of
Karnail Singh versus State of Madhya
Pradesh (1995) 5 SCC 518 has observed
as under:
"In case of defective
investigation, it would not be proper to
acquit the accused if the case is
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otherwise established conclusively
because in that event, it would
tantamount to the falling into the hands
of an erring investigating officer."
In the case of Ram Bihari Yadav versus
State of Bihar, (1998) 4 S.C.C. 517, the
Apex Court observed in Para 13 as
under:
"In such cases, the story of the
prosecution will have to be examined
dehors such omissions and contaminated
conduct of the officials otherwise the
mischief which was deliberately done
would be perpetuated and justice would
be denied to the complainant party and
this would obviously shake the
confidence of the people not merely in
the law-enforcing agency but also in the
administration of justice"
In the case of Paras Yadav versus State
of Bihar (1999) 2 SCC 126 the Court
held as under:
"It may be that such lapse is
committed designedly or because of
negligence. Hence, the prosecution
evidence is required to be examined
dehors such omission to find out whether
the said evidence is reliable or not"
The High Court has also referred to a decision reported in
2000 S.C.C. (Crl.) 522 Ambica Prasad and another versus State
(Delhi Administration) in which this Court observed that faulty
investigation or witnesses turning hostile may not ultimately affect
the merit of the case nor it could be a ground to disbelieve the
statement of the prosecution witnesses.
In our view the High Court taking into account the
observations made in the decision referred to above came to the
conclusion that otherwise reliable statement of the witness PW-3
Ashaben could not be discarded or discredited even though there
had been any fault or negligence in conducting the investigation,
that too by itself, be not sufficient to dislodge the prosecution case
as a whole. The chances of making some embellishment here and
there in the statement are not ruled out even in cases of otherwise
truthful and reliable witnesses. The concept of falsus in uno and
falsus in omnibus" has been discarded long ago. Therefore in such
circumstances the Court may have to scrutinize the matter a bit
more closely and carefully to find out as to how far and to what
extent the prosecution story as a whole is demolished or it is
rendered unreliable. For this purpose the statement of the witnesses
will have to be considered along with other corroborating evidence
and independent circumstances so as to come to a conclusion that
the contradiction in the statement of a witness could be considered
as an embellishment by the witness under one or the other belief or
notion or it is of a nature that the whole statement of the witness
becomes untrustworthy affecting the prosecution case as a whole.
The same principle will apply to a faulty or tainted investigation.
Other relevant facts and circumstances cannot be totally ignored
altogether. While appreciating the matter one of the relevant
considerations would be that chances of false implication are totally
eliminated and the prosecution story as a whole rings true and
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inspires confidence. In such circumstances despite the
contradictions of the defective or tainted investigation, a conviction
can safely be recorded.
We may next consider the argument made on behalf of the
appellant that he was suffering from mental ailment and had
received medical treatment for the same. First of all a reference has
been made to the statement of PW-7 Danpatsinh who is neighbour
of the appellant. He has stated that the appellant had been suffering
from mental disease and had been admitted in the hospital of Dr.
Navin Modi. He further stated that the appellant was like a mad
person and did not have any sense. It was also stated by him that
the husband and wife were not on good terms and quarrel used to
take between them. Whenever he got ill, his father used to take him
to the hospital. So far the nature of illness of the appellant is
concerned, PW-3 denied the suggestion that he was suffering from
any mental illness. She stated that he had been taking liquor. She
further goes on to say that he was admitted in Himmatnagar
Hospital but did not know if it was hospital of Dr. Navin Modi or
some other hospital. We do not think that on the basis of the
statement of these witnesses, any conclusion can be drawn that the
appellant was suffering from any mental illness or he used to
become mad. We find no infirmity in the finding of the High Court
that in case it was so, evidence should have been led on behalf of
the defence to prove the fact of mental illness. The prescription of
the treatment given to the appellant in the hospital should have been
brought in the record or the Doctor who may have treated him could
be produced to show that the appellant suffered from any mental
illness. Obviously these facts if at all, would be in the special
knowledge of the defence and in case the defence wanted to take
advantage of any such ground of mental illness, this plea should
have been substantiated by adducing relevant and cogent evidence.
No circumstance has been indicated on the basis of which any such
inference could be drawn. We therefore, find no force in this
argument as advanced on behalf of the appellant.
The Submission made on behalf of the appellant that the
complainant had actually not witnessed the occurrence also has no
basis. She has made the statement to that effect and nothing could
be elicited in her cross-examination by reason of which any doubt
could arise about the veracity of her statement. On return from the
dairy she found her husband assaulting the deceased and on her
alarm raised he slipped away from the other door. It is also strange
that after the incident the appellant was not available for more than
15 days until he was arrested by the police. In the normal course,
on the murder of his two sons, he should have been moving around
the scene and to have lodged the report against the real assailants or
in case real assailants were not known, he could have lodged the
report without naming any accused therein. PW-3 has made her
statement in a very natural way without trying to hide anything.
She has stated categorically that her husband suspected her
character from the beginning and had been quarreling on that
account . She also stated that about a week before he was drunk
and had also given a beating to her. She has given a vivid
description of the incident most naturally the way she was
awakened and was told by her husband to go to deliver the milk at
the dairy. She did go and on return as soon as she entered into the
house, she raised alarm, this part of statement is supported by PW-7
also, but for the fact that according to him on his arrival, he found
no one else at the scene of occurrence. It would be a matter of
minutes or a fraction thereof, if the accused had at once left the
place by the other door, the moment he heard the alarm of PW-3.
The PW-7 though a neighbour lives in different house and by the
time he reached, it is not unlikely that he may have missed the
appellant who had left the spot. Therefore, on the basis of the mere
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statement of PW-7 that on his arrival he found no one else it can not
be said that PW-3 told a lie while stating that her husband had
slipped away from the other door on hearing her cries. At the same
time, we also find no good reason to suspect that she would falsely
implicate her husband for the killing of their sons by some one else.
The real assailants of her own children would not be spared. It is
true, as pointed out by the learned counsel for the appellant that her
husband suspected her and there had been quarrel between them yet
the fact remains that they continued to live together. It is difficult
to accept that after loosing sons she would be prepared to loose her
husband too by falsely implicating him though she had been living
with him for last 15 years along with his parents in the same house.
As indicated earlier also at the risk of repetition we may again point
out the question which stares for an answer is as to why the
appellant himself, his father or brother would not lodge the report or
in any case if it was correct that he was being falsely fixed then too
they would prefer silence rather to come forward to save the life of
his son or the brother.
In the above background we find that the Trial Court and the
High Court have rightly placed implicit reliance upon the statement
of PW-3 despite the infirmities which crept in due to careless
investigation and contradiction regarding the place of lodging of the
report. PW-3 was quite categorical that after the report was scribed
she had put her thumb impression upon the same. According to I.O.
PW-9, it was forwarded to the police station for registration of the
case, which according to PW-3 was lodged at the police station
itself. The Trial Court and the High Court have already appreciated
the position and have rightly observed that it may be due to some
confusion or carelessness or under an impression that the reports are
lodged at police station. PW-3 had stated that she has lodged the
report at the police station, whereas it has been found that it was
written at Village Bhadresar at her place. Learned counsel for the
appellant relying upon the decision reported in 1994 (Suppl) 1 SCC
590, submitted that if the Investigating Officer reaches the spot
without recording the FIR first, the statement given by the
complainant is to be treated as under Section 162 Cr.P.C. and it
would not be safe to rely upon it and as it can not be treated as a
FIR. It is also submitted that the prosecution case also becomes
doubtful and unreliable. We feel that we have substantially dealt
with this aspect of the matter in the earlier part of the judgment even
what has submitted by the learned counsel for the appellant is
accepted, in our view, it will have no effect on the merit of the case
based on the unimpeachable evidence on the record supported by
the medical evidence and the independent circumstances of the case.
Statement of PW-3 Ashaben totally inspires confidence. It
also appears that she was not ill-disposed to her husband to the
extent that it could be inferred that she would be falsely implicating
him in such a crime. This fact would be apparent from the statement
of her father PW-4 who had stated that he knew that sometimes
quarrels took place between her daughter and the appellant but he
was never given any details about the same. Had she been ill-
disposed to him, she might have been making all sorts of complaints
to her parents but that does not appear to be so. The prosecution
story as per her statement rings true and stands established by cogent
evidence on the record and independent circumstances.
We may now turn to the question of sentence. In Bachan
Singh versus State of Punjab AIR 1980 SC 898 this Court said
that death sentence is to be awarded only in the rarest of rare cases.
In Manoharlal @ Munna and others versus State of NCT of
New Delhi AIR 2000 SC 420 death penalty was not awarded even
though four innocent children of the family of the witness were burnt
to death. It was however a case of rioting. In the case of Kishori
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versus State (NCT) Delhi AIR 2000 SC 562 also death sentence
was not awarded as it was a case of mob attack and frenzy. A
number of persons were killed. It was not considered to be the rarest
of rare cases. Apart from these cases a reference has also been
made to a decision reported in AIR 1999 SC 1332 Om Prakash
versus State of Haryana, where accused a member of para military
force had killed seven members of a family in a pre-planned manner
as he was labouring under the strain that the accused and the
members of his family were suffering agony at the hands of the
family of the victims. He had a feeling of injustice being meted out
to them. The Court considered it to be a mitigating circumstance
and not treated it to be rarest of rare cases. Similarly, in the case of
Krishan versus State of Haryana (2000) 10 SCC 451 punishment
of life imprisonment was awarded where the murder was committed
while the accused was already undergoing life imprisonment and
was on parole. It was observed that this fact alone would not be
sufficient to inflict the death penalty. Other facts and circumstances
would also have to be taken into account. In Machhi Singh and
others versus State of Haryana AIR 1983 SC 957 it has been
observed that extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability. Circumstances of the
offender are also required to be taken into account while considering
the question of awarding the death penalty. Imprisonment for life is
the rule as punishment for murder and death sentence is an
exception. It has then been observed that a balance-sheet of
aggravating and mitigating circumstances has to be drawn up and a
balance has to be struck. The other facts which need to be
considered are magnitude of the crime, the anti-social nature of the
crime, personality of the victim, motive and the manner of
commission of the murder etc. In State of Madhya Pradesh
versus Shyam Sunder Trivedi 1994 (4) SCC 262 also it has been
observed that the Court must balance the mitigating and aggravating
circumstances of the case which would depend upon the particular
and peculiar circumstances of each case. On the other hand the
cases in which death sentence was awarded and taken note of by the
High Court are Kuljeet Singh alias Ranga versus Union of India
and another AIR 1981 SC 1572. In this case also two innocent
children were murdered. However, we find that they were
kidnapped first with oblique motive and were murdered. In
Asharafi Lal and Sons versus State of U.P. AIR 1987 SC 1721
the accused persons had killed their two innocent nieces to wreak
personal vengeance regarding property dispute with the mother of
the victims. In this case also death sentence was awarded by this
Court. A reference is also made to a case reported in (2000) 7
S.C.C. 455 Ramdeo Chauhan alias Rajnath Chauhand versus
State of Assam. It was observed that when a man becomes beast
and menace to the society, he could be deprived of his life according
to the procedure established by law. In Dhananjoy Chatterjee
alias Dhana versus State of West Bengal (1994) 2 S.C.C. 220 the
accused had killed his pregnant wife and three minor children for no
reason and without provocation. He had assaulted his mother also
who came to their rescue. The incident was described to be
shocking to the conscience of the society. Hence, death sentence
was awarded.
Every murder is a heinous crime. Apart from personal
implications, it is a crime against the society but in every case
of murder death penalty is not to be awarded. Under the present
legal position imprisonment for life is the normal rule for punishing
crime of murder and sentence of death, as held in different cases
referred to above, would be awarded only in the rarest of rare cases.
The number of factors are to be taken into account namely, the
motive of the crime, the manner of the assault, the impact of the
crime on the society as a whole, the personality of the accused,
circumstances and facts of the case as to whether the crime
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committed, has been committed for satisfying any kind of lust,
greed or in pursuance of anti-social activity or by way of organized
crime, drug-trafficking or the like. Chances of inflicting the society
with the similar criminal act that is to say vulnerability of the
members of the society at the hands of the accused in
future and ultimately as held in several cases mitigating and
aggravating circumstances of each case has to be considered
and a balance has to be struck. The learned State counsel has
already indicated the aggravating circumstances by reason of which
it has been vehemently urged that sentence of death deserves to be
confirmed.
Now considering the facts of the present case in the
background of our observations made in the preceding paragraph,
we take note of the fact that the appellant had been labouring under
the strain suspecting character of his wife. This fact is mentioned
by none else but by the complainant Ashaben herself in her report.
She also admitted in her statement in Court that quite often there
has been quarrel between the two on that count. Though denied, a
suggestion has been made to PW-3 Ashaben in her cross-
examination that the appellant had been telling her that their sons
were not born of him. It is true that there does not seem to be any
immediate cause before the commission of offence, yet the fact
remains that rightly or wrongly such a painful belief was being
entertained by the appellant since long which constantly engaged
his mind as admittedly there had been quarrels on that count
between the two. Obviously he would have been brooding under
that idea, which perhaps he could not contain any more. It is true
that two innocent children lost their lives for no fault of theirs. We
also notice that Dharia is a weapon, which is ordinarily to be found
in the house of any farmer or agriculturist in that area as stated by
PW-3. He seems to have used the weapon as lying in the house.
The offence was obviously not committed for lust of power or
otherwise or with a view to grab any property nor in pursuance of
any organized criminal or anti-social activity. Chances of repetition
of such criminal acts at his hands making the society further
vulnerable are also not apparent. He had no previous criminal
record.
For the above reasons in our view it cannot be said that the
case falls in the category of rarest of rare cases so as to make the
appellant liable for extreme penalty of death. The crime committed
is no doubt heinous and unpardonable. The act of the appellant is
condemnable. In our view however the normal sentence of life
imprisonment for the offence of murder would meet the ends of
justice.
In the result, while dismissing the appeal against his
conviction, we set aside the sentence of death as awarded by the
trial court and confirmed by the High Court and commute to that of
imprisonment for life. The appellant shall serve out the sentence of
imprisonment for life.
---------------------J.
(Doraiswamy Raju)
--------------------J
(Brijesh Kumar)J.
April 17, 2002
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