Full Judgment Text
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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.13911393 OF 2018
[Arising out of SLP (Crl.) Nos. 64546456 of 2014]
Vijay Kumar .. Appellant
Versus
The State of Jammu & Kashmir .. Respondents
J U D G M E N T
Leave granted.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 06.03.2014 passed by the High
Court of Jammu and Kashmir at Jammu in Criminal Appeal
No.05 of 2010, Crl.M.A.No.06 of 2010 and C/W Confirmation
No.23 of 2009, the original accused has preferred the present
appeals.
2. That the learned trial Court held the accused guilty for
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2018.11.29
16:37:46 IST
Reason:
the offence punishable under Section 302 as well as for
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offences punishable under Sections 307, 326, 324 and 448 of
the IPC. That the learned trial Court, while convicting the
accused for the offence punishable under Section 302 of the
IPC, imposed the death sentence. The learned trial Court
also sentenced the accusedappellant to undergo R.I. for 10
years and a fine of Rs.10,000/ for the offence punishable
under Section 307 of the IPC and in default of payment of
fine to further undergo six months’ S.I. The learned trial
Court also sentenced the appellantaccused to undergo 5
years R.I. and a fine of Rs.500/ under Section 326 of the IPC
and in default of payment of fine to undergo 3 months’ S.I.
The learned trial Court also sentenced the accused for one
year R.I. for the offence punishable under Section 324 of the
IPC and S.I. for one year for the offence punishable under
Section 448 of the IPC. The learned trial Court also ordered
that all the sentences to run concurrently.
3. That by the impugned judgment and order, the High
Court has confirmed the conviction and sentence imposed by
the learned trial Court, while convicting the accused
appellant for the offences punishable under Sections 302,
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307, 324, 326 and 448 of the IPC. Feeling aggrieved and
dissatisfied with the impugned judgment and order passed by
the High Court in confirming the death sentence while
convicting the accused under Section 302 of the IPC and
convicting the accused for the offences under Sections 307,
324, 326 and 448 of the IPC, the original accused has
preferred the present appeal.
4. At the outset, it is required to be noted that, as such, by
the order dated 19.08.2014, this Court directed to issue
notice only on the question of sentence. Therefore, as such,
in the present appeals, now the only question which is
required to be considered by this Court is the sentence
imposed by the learned trial Court and confirmed by the High
Court, while convicting the accused for the offences under
Sections 302, 307, 324, 326 and 448 of the IPC.
4.1 Even otherwise, on a close reading of the evidence on
record as well as the judgments of the learned trial Court and
the High Court, we are satisfied that both the Courts had
sufficient reasons to conclude that the appellant was guilty
for the offence under Section 302 of the IPC. On a close
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reading of the evidence on record, we are fully satisfied that,
in the present case, the prosecution has been successful in
proving the case against the accused for the offences for
which the accused has been convicted and sentenced. To
bring home the charge, the prosecution has examined as
many as 27 witnesses, including the injured eyewitnesses
who have fully supported the case of the prosecution. That
at about 1.15 a.m. (in the midnight) of 20.09.2009, the
accused killed/committed murder of three minor children
and also seriously caused injury to Jia Lal (PW3), Kamlesh
th
Kumari (PW4) and also to Gulshan (the 4 minor child). In
any case, as observed above, this Court issued the limited
notice in the present appeals on the question of sentence
only, vide order dated 19.08.2014 and, therefore, the only
question posed before this Court in the present appeals now
is whether in the present circumstances of the case, the
learned trial Court was justified in imposing the death
sentence while convicting the accused under Section 302 of
the IPC, as confirmed by the High Court by the impugned
judgment and order?
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4.2 Shri A.T.M. Ranga Ramanujam, learned senior counsel
appearing on behalf of the appellant has vehemently
submitted that, in the facts and circumstances of the case,
both the learned trial Court as well as the High Court had
committed grave error in imposing the death sentence while
convicting the accused for the offences punishable under
Section 302 of the IPC.
4.3 Relying upon the following decisions of this Court, it is
vehemently submitted by the learned senior counsel
appearing on behalf of the appellant that the present case
cannot be said to be the rarest of rare case warranting the
death sentence. In support, he has relied upon the following
decisions of this Court:
1) (1980) 2 SCC 684
Bachan Singh vs. State of Punjab ,
2) Machhi Singh vs. State of Punjab (1983) 3 SCC 470 ,
3) Swamy Shraddananda (2) vs. State of Karnataka
(2008) 13 SCC 767.
5. The learned senior counsel appearing on behalf of the
appellant has vehemently submitted that both the learned
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trial Court as well as the High Court have not properly
appreciated the mitigating circumstances in favour of the
accused. It is vehemently submitted that the accused is not
a previous convict or a professional killer.
6. , Ms. Fauzia Shakil, learned counsel
Per contra
appearing on behalf of the State has supported the impugned
judgment and order passed by the High Court. It is
vehemently submitted that both the learned trial Court as
well as the High Court have in detail considered the
mitigating circumstances pointed out by the accused.
However, considering the fact that the accused committed the
murder of three minor children who, as such, were sleeping
th
and also caused the serious injury on the 4 minor child and
also caused serious injuries to Jia Lal and having found that
the act of the accused was brutal and, thereafter, after
considering the balance sheet of the aggravating and
mitigating circumstances, the learned trial Court has
imposed the death sentence, which is rightly confirmed by
the High Court. It is vehemently submitted by the learned
counsel for the appellant that the present case can be said to
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be the rarest of rare case warranting death sentence. Relying
upon the decision of this Court in the case of Union of India
(2016) 7 SCC 1 at para 87, it is requested to
vs. V. Sriharan
dismiss the present appeals. In the alternate, it is submitted
that if this Court is of the opinion that the present case may
not fall within the category of rarest of rare case and the
death sentence is to be substituted to life imprisonment, it
may be suitably observed that the life means till the natural
death of the appellant and that the appellant shall not be
entitled to remission.
7. Having heard the learned counsel appearing on behalf of
the accused as well as the State on the question of death
sentence imposed by the learned trial Court and confirmed
by the High Court and considering the totality of the facts
and circumstances of the case and the decisions in the cases
of (supra) and (supra) and in
Bachan Singh Machhi Singh
Swamy Shraddananda (supra) , we are of the opinion that
the present case does not fall within the category of rarest of
rare case warranting death sentence. We have considered
each of the circumstances of the crime as well as the facts
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leading to the commission of the crime by the accused.
Though, we acknowledge the gravity of the offence, we are
unable to satisfy ourselves that the case would fall in the
category of rarest of rare cases. The offence has undoubtedly
been committed which can be said to be brutal but does not
warrant death sentence. It is required to be noted that the
accused, as such, is not a previous convict or a professional
killer. There was a matrimonial dispute and the accused was
of the opinion that Jia Lal and his wife Kamlesh Kumari
refused to extend any helping hand to the accused for
bringing his wife back. From the material on record, it
appears that, that was the motive for the accused to commit
the offence and eliminate the family of Jia Lal. Jia Lal was
the cobrother and Kamlesh Kumari was the sisterinlaw.
As has been born out from the record, they were the persons
who were instrumental in arranging the marital ties of the
accused. Considering the aforesaid mitigating circumstances
and the motive which led to commit the offence by the
accused and considering the decisions of this Court in the
cases of Bachan Singh (supra) and Machhi Singh (supra)
and in (supra) we think that it will
Swamy Shraddananda ,
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be in the interest of justice to convert the death sentence into
life sentence till the death the of the accused and without
remission. So far as imposing the sentence of life
imprisonment without remission is concerned, we are
supported by the decision of this Court in the case of
V.
Sriharan (supra) by which while approving the earlier
decision in the case of (supra), this
Swamy Shraddananda
Court has held that, while converting the death sentence to
life, it can be said to be a special category of sentence and,
therefore, imposing the life sentence without remission is
permissible. In the case of (supra), this Court in
V. Sriharan
paragraph 178 held as under:
“178. We hold that the ratio laid down in Swamy
Shraddananda (2) [ Swamy Shraddananda (2) v. State
of Karnataka, (2008) 13 SCC 767: (2009) 3 SCC (Cri)
113] that a special category of sentence; instead of
death can be substituted by the punishment of
imprisonment for life or 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.”
8. Thus, while confirming the impugned judgment and
order passed by the High Court convicting the accused for
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the offence punishable under Sections 302, 307, 324, 326
and 448 IPC, the following order is made:
“These appeals arising out of the impugned judgment
and order dated 06.03.2014 passed by the High Court in
Criminal Appeal No.05 of 2010, Cr.M.A.No.06 of 2010
and C/W Confirmation No.23 of 2009 filed by the original
accused are disposed of by commuting the death
sentence to one of life imprisonment and the death
sentence imposed by the trial Court and, subsequently,
confirmed by the High Court, is converted into life i.e. till
the natural death of the appellant. It is specifically
clarified that the appellant shall not be entitled to
remission.”
9. The present appeals are partly allowed in the aforesaid
terms.
…………………..……………………J.
(N. V. RAMANA)
…………………………………..…….J.
(MOHAN M. SHANTANAGOUDAR)
………………..……………………J.
(M. R SHAH)
New Delhi,
November 14, 2018