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Criminal Law: Indian Penal Code, 1860 : Sections 302 and 307. Murder of wife and two children-Attempt to murder other three children- Provocation-Absence of-Commission of crime-Premediated one-Not due to sudden provocation or mental derangement-Held : offence gruesome, cold- blooded, heinous, atrocious and cruel -No mitigating circumstances but only aggrevating circumstances-“Rarerest of rare cases”-Death sentence imposed by courts below upheld. Epistolary jurisdiction-Exercise of by Supreme Court-Letter Petition from convict facing death sentence-Treating of as Special Leave Petition-Grant of leave and hearing of the criminal appeal. The appellant was convicted under Sections 302 and 307 of the Indian Penal Code, 1860 and was sentenced to death. According to the prosecution, the appellant committed murder of his wife and two daughters at night by inflicting several injuries by sword. He further caused grievous injuries to his daughter and two sons with intend to commit murder. However, these three survived. On receiving information that many persons have sustained injuries and some of them have died at the residence of the appellant, P.W. 3, the Police officer, reached the spot and found the appellant’s daughter and sons in a seriously injured condition. A blood stained sword was recovered on the spot He was arrested on the same day and during investigation, it was found that he made extra judicial confession of having committed murder of his wife and children before, P.W. 6 and P.W. 7. A case was registered and a post-mortem was held. On the basis of the evidence adduced on behalf of the Prosecution the Sessions Judge came to the conclusion that the charge levelled against the appellant was fully established. The death sentence was confirmed by the High Court. In this appeal it was contended that the murder was not a pre-planned one and was on account of sudden provocation; and that the death sentence should be reduced to one of life imprisonment. On behalf of the respondent-State it was contended that the appellant had committed murder of his wife and children without any provocation against helpless dependents during night; and that the death sentence awarded to the appellant did not call for any interference. =Dismissing the appeal, this Court HELD : 1.1. The appellant-accused had caused in all 64 sword injuries to all the six persons including the three deceased persons viz., his wife and two children and those injuries speak for themselves about the gruesome nature of the crime committed by the accused. There was no provocation and there is nothing to suggest that there was any quarrel between the accused and his wife or among any one of the family members. The way in which the crime was executed clearly shows that it was a premeditated one and not on account of sudden provocation or any mental-derangement. [1166-E-F] 1.2. The crime indulged in by the accused is undoubtedly gruesome, cold blooded, heinous, atrocious and cruel. On the facts established, there appears to be no mitigating circumstances whatsoever, but only aggravating circumstances which justify the imposition of death sentence. Looking into the manner in which the crime was committed the weapon used, the brutality of the crime, number of persons murdered, the helplessness of the victims, there can be no other conclusion except the one, the Sessions Judge and the High Court arrived at to award the capital sentence to the appellant. [1166-G-H; 1167-A-B] Anshad and Others v. State of Karnataka, [1994] 4 SCC 381 Jshubha Bharatsinh Gohil& Others v.State of Gujarat, [1994] 4 SCC 353 and Suresh Chandra Bahri v. State of Punjab, [1985] Supp. 1 SCC 80, relied on. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 771 of 1995.

PETITIONER:
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UMASHANKAR PANDA

 Vs.

RESPONDENT:
STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 28/02/1996

BENCH:
VENKATASWAMI K. (J)
BENCH:
VENKATASWAMI K. (J)
ANAND, A.S. (J)

CITATION:
 JT 1996 (2) 747 1996 SCALE (2)563

ACT:

HEADNOTE:JUDGMENT:
 J U D G M E N T
K. Venkataswami.J.
 The appellant who is in Central Jail, Indore has sent
through superintendent a Petition to set aside the impugned
judgment of the Madhya Pradesh High Court, Bench at Indore
confirming the death sentence imposed by the First
Additional Sessions Judge, Ujjain. The said Petition was
taken on file as Special leave Petition and this Court after
granting leave called for the records from the trial court.
The High Court was also requested to transmit to this Court
the copies each of the judgment of the High Court as well as
the trial court.
 This appeal is directed against the judgment of the
Division Bench of the Madhya Pradesh High Court, Bench at
Indore in Death Reference No.2/95 and Criminal Appeal No.
173/95. The appellant accused was convicted under Section
302 I.P.C. for having committed murder of his wife Krishna
Bai, daughter Jyoti aged 10 years, daughter Rekha aged 16
years and under Section 307 I.P.C. for attempt to commit
murder of his daughter Komal aged 10 years, son Balakrishan
aged 12 years and another Son Sonu aged 7 years on the
intervening night of 20th and 21st February, 1994 in Village
Laxmipura, Police Station Kayatha District Ujjain. The
prosecution case is as follows :
 On the intervening night of 20th and 21st February.
1994, the accused committed murder of his wife and two
daughters and they died on the spot. The further caused
injuries to Komal (daughter) and two sons Balakrishna and
Sonu with intent to commit murder. However, these three
survived even after sustaining grievious injuries. P.W.13,
Satnam Singh. Station House Officer received an annonymous
telephonic information that many persons have sustained
injuries and some of them have died at the residence of the
accused. On receiving such information, the Police Officer
reached the spot and found Balakrishna, Sonu and Komal in
seriously injured condition. Krishna Bai, Rekha and Jyoti
were found to be dead by that time. The accused was no.
found inside the house. The said Police Officer sent all the
injured to hospital for treatment and registered case
No.1/94, 2/94 and 3/94 regarding the death of the persons
referred to above. He recovered blood stained sword on the
spot. that clothes, lock and chappal were also found with.
blood stains and they were also seized. Stained and
unstained earth were also collected from the spot. Site map
was prepared. An inquest was held and various injuries were
noticed on the bodies of the different persons. The accused
was arrested on the same day and Panchnama was prepared and
on questioning, the accused gave information about sword
which he had kept. in the wheat field belonging to
Radheshyam. The clothes of the accused. Kurta and Pajama
With blood stains were also recovered from a trunk. During
investigation, it was found that the accused made extra
judicial confession of having committed murder of his wife
and children before Prahlad (P.W.6) and Rora (P.W.7).
 The autopsy on the body of Rekha aged about 16, years
was conducted by Dr. Arvind Dashottar (P.W.3) on, 21.2.1994
and the following injuries were found on the body of the
deceased Rekha :
 1. A big incised wound extending in
 four direction from left pinna as
 following:
 (a) 4"x 2" over left tempero
 occipital region cut Piece of
 occipital bone measuring 1/4"x 1/4"
 present in the wound. Dura matter
 exposed.
 (b) 4"x 2" from angle of the left
 eye towards left pinna. Mandible
 bone exposed.
 (c) Incised wound 2"x1" from angle
 of left mandible upto left pinna.
 (d) Incised wound 2"x1" from back
 of back of neck towards(L) pinna .
 2. Incised wound 3"x1/2" below
 injury No.1 over accipital region.
 3. Incised wound over skull (L)
 parietal region 3"x1/2".
 4. Incised wound over front
 parietal region 5 1/2"x1". Parietal
 bone incised. 5 1/2" membrane cut
 at the middle with brain matter
 incised 1/2" below membrance
 parietal lobe of brain.
 5. Incised wound over (L) shoulder
 on top 1/2"x1/2" muscle deep.
 6. Incised wound over (L) base of
 (R) Thumb 1"x1/2".
 7. Incised wound (L) Dorsal aspect
 of hand 2"x1/2".
 8. Incised wound (L) fore arm
 dorsal aspect 2"x1/2".
 9. Incised wound Palmar aspect of
 (L) hand 3"x1/2" below little and
 Ring finger. All these injuries
 were antemortem in nature.
 In the opinion of the doctor, these
 injuries were sufficient to cause
 death.
 Likewise the autopsy on the body of
 Krishnabai was conducted by P.W.3
 with Dr. M.D. Sharma on 21.2.1994
 and they found the following
 injuries:
 (1) Incised wound over nose
 extending upto (L) frontal region 5
 1/2"x2" from Rt. to (L) obliquely
 upwards, muscle deep. ends
 lapering.
 (2) Incised wound over (L) parietal
 region 3"x1/2", bone exposed.
 (3) Incised wound near injury No. 2
 over vertex 2"x1/4" bone exposed.
 (4) Incised wound 3"x1" over (R)
 parietal region bone exposed.
 (5) Incised wound behind (L) ear
 1"x1/2".
 (6) Incised wound on left side face
 from (L) eye-brow extending
 backward and downwards towards
 tragus of ear 5 1/2" slicing
 effect, skin held out.
 (7) Incised wound 3"x/1/2" (L) side
 of neck at the base on pest aspect
 3"x1/2".
 (8) Incised wound 1/2"x4" back of
 chest in between scapular skin
 deep.
 (9) Incised wound 1/4"x1/2" lataral
 aspect of (R) arm mid position.
 (10) Incised wound dorsum of Hand
 (R) extending towards forearm from
 knunles upwards tenders and muscles
 cut. Radious and ulna bones exposed
 and cut at the distal ends.
 (11) Incised wound 3"x1/2" (R)
 forearm dorsal aspect above injury
 no.
 (12) Incised wound 4"x1/2" over
 palmar aspect of (L) hand extending
 over wrist.
 (13) Incised wound over dorsal
 aspect (L) forearm 3"x1" mid
 position.
 (14) Incised wound (L) forearm 4"x
 1 1/2" muscle and vessels cu
 Radious bone cut at mid.
 (15) Incised wound over (L)
 shoulder 1/2"x1" muscle
 deep.
 (16) Incised wound (L) Arm 1/4"
 skin deep mid position.
 (17) Incised wound 3"x1/2" palmar
 aspect of (L) hand metacarpel cut
 thumb extending upto wrist.
 (18) Incised wound 3"x1/4" over
 ulnar border of (L) hand:
 metacarpal bone cut below little
 finger.
 (19) Incised wound 3"x1" over (L)
 thigh and knee joint.
 (20) lncised wound over knee joint
 (R) 2 1/2"x1/2" muscle deep.
 (21) Incised wound over (R) heel
 attached with a Lag of skin
 posteriorly complete tissue and
 calcaneous bone cut 3"x around the
 heel.
 On 21.2.94 P.W.3 conducted
 Post-mortem of the dead body of
 Jyoti and found the following
 injuries on the person of the
 deceased:
 (i) Incised wound 2"x1/2" over
 skull right frontal region, skin
 deep, bona visible.
 (ii) Incised wound 5 1/2"x1 1/2"
 over skull Top bone exposed.
 (iii) Incised wound 3"x1/2" over
 vertex of skull.
 (iv) Incised wound 3"x1" (L) side
 of neck from left border of
 mandible horizontal muscle, vessels
 cut.
 (v) Incised wound below injury
 no.iv. 3"x1" tapering towards (L)
 angle of mouth. There was only a
 Tag of skin between injury no. iv
 and v vessels cut.
 (vi) Incised wound Left hand palmar
 aspect extending from 2" over wrist
 towards palm 4th metacarpal and
 carpel bones cut.
 (vii) Incised wound L side 3
 1/2"x1/2" dorsum of hand extending
 from base of index finger arose
 hand 5th metacarpal bone cut.
 (viii) Incised wound over elbow
 1/2"x1/2".
 (ix) Incised wound over (4)
 scapular region 1"x1/2".
 (x) Liner abrasion 5" with incised
 wound at 2 1/2" from start 1/4"
 below (L) scapular.
 P.W.4 Dr. R. S. Dangad found the
 following injuries while admitting
 Sonu in the Hospital:
 (1) Incised wound 6"x1" deep and
 bone-cutting on the right parietal
 region.
 (2) Incised wound 6"x1" bone deep
 on the right fronte parietal
 region.
 (3) Incised wound 5"x1" bone deep
 exposing bone left parietal region.
 (4) Incised wound 1 3/4x 1/4"x1/2"
 on the right nendible.
 Dr. Nagar (P.W.12) examined Komal
 and found the following injuries.
 1. Incised wound 3"x1" bone deep on
 the L cheek.
 2. Incised wound 5"x1" on the neck.
 3. Incised wound 4"x1" bone deep on
 the right knee muscles and vessels
 cut.
 4. Incised wound 1"x1/2"x1/2" on
 the proximal of finger middle
 finger.
 5. Ring finger was cut upto PIB
 joint.
 6. Incised wound 1"x1/2"x1/2" on
 the index finger of left hand.
 7. Incised wound 2"x1/2"x1/2" on
 the back of left hand.
 8. Incised wound 4"x1/2"x1/2" on
 the back of left wrist hand finger.
 9. Incised wound 1 1/2"x1/2"x1/4"
 on Rt. wrist dorsal surface.
 10 Incised wound 2"x1/2"x1/2" on L
 hand dorsal surface.
 11. Incised wound 2"x1/2"x1/2"
 oblique wrist dorsal surface.
 12. Incised wound 1 1/2"x1/2"x1/2"
 oblique Lt. P.A. dorsal surface
 long cut.
 P.W.12 Dr. Nagar examined
 Balakrishna on the same day and
 found following injuries:
 1. All fingers amputed from M.P.
 joint excepting thump.
 2. Incised wound on right face
 extending upto right eye.
 3. Incised wound on the left next
 3" x 2"x2".
 4. Incised wound 2"x1"x1" on Rt.
 chin.
 The materials seized were sent for serologist
examination and it was found that it contained human blood.
After completion of investigation, chargesheet was filed
against the accused. The case was committed to the court of
sessions. The accused pleaded not guilty. The learned Trial
judge convicted and sentenced the accused as mentioned
above.
 The learned trial judge has given special reasons for
awarding death sentence. The accused preferred an appeal to
the High Court. It was taken up for hearing with Death
Reference. The High Court in its elaborate judgment found
that the fact of commission of murder, by causing grievious
injuries, to Balakrishna, Sonu and Komal had been proved
beyond reasonable doubt and accused was rightly found
guilty for the same. Regarding the sentence, the learned
Judges after referring to several judgments of this Court
and also a Division Bench of the Madhya Pradesh High Court
found that the case of the accused fell within the cases of
the 'rarest of rare cases' and there were no mitigating
circumstances whatsoever for commission of gruesome murder
of wife and two children. Accordingly while dismissing the
appeal filed by the accused accepted the reference made by
the learned Additional sessions Judge.
 It is under these circumstances, the present appeal was
filed by the accused who is in jail. Mr. Vimal Dave, learned
counsel for the accused appellant finding the fool proof
case of the prosecution did not attempt to challenge the
conviction recorded by the learned Sessions Judge and
confirmed by the High Court. However, he strenuously argued
that there is a case for reducing the death sentence to one
of life imprisonment in the peculiar facts and circumstances
of this case. According to the learned counsel, the
murder was not a pre-planned one and having regard to the
time and place of the incident it must be taken that it
was on account of sudden provocation and as suggested
by the
defence in the cross-examination of the prosecution
witnesses, that the suspicion entertained by the accused
regarding the fidelity of his wife and answer said to have
been given by her led to the incident. According to
the learned counsel there was no mensrea and no motive
was suggested by the prosecution for committing the there
murders and causing injuries to the children.
 Learned counsel appearing for the respondent, however,
submitted that the findings rendered by the trial court
as well as by the High Court on appreciation of oral
evidence will go to show that the appellant has committed
the murder in a gruesome manner without any provocation
and against helpless dependents. As per the decided cases
of this Court,
the death sentence awarded to the accused does not call for
any interference.
 We have considered the rival submissions. Before going
into the facts of this case as found by the trial court and
the High Court, it will be useful to set out the principles
laid down by this Court in several cases for awarding death
sentence.
 In Anshad and others vs. state of Karnataka (1994)4 SCC
381, a two Judge bench of this Court presided over by one of
us (Anand, J.) has observed as follows"
 "Courts are expected to exhibit
 sensitiveness in the matter of
 sward of sentence particularly, the
 sentence of death because life once
 lost cannot be brought back. This
 Court has in cases more than one
 emphasised that for determining the
 proper sentence in a case like this
 while the court should take into
 account the aggravating
 circumstances it should not
 overlook or ignore the mitigating
 circumstances. The manner in which
 the crime was committed, the
 weapons used and the brutality or
 the lack of it are some of the
 considerations which must be
 present to the mind of the court.
 Of course, the High Court has the
 power and jurisdiction to enhance
 the sentence of life imprisonment
 to death but that power has to be
 sparingly exercised, in "rarest of
 the rare cases" for 'special
 reasons' to be recorded. The courts
 must be alive to the legislative
 changes introduced in 1973 through
 Section 354 (3) CrPC. Death
 sentence, being an exception to the
 general rule, should be awarded in
 the "rarest of the rare cases" for
 'Special reasons' to be recorded
 after balancing the aggravating and
 the mitigating circumstances, in
 the facts and circumstances of a
 given case. The number of persons
 murdered is a consideration but
 that is not the only consideration
 for imposing death penalty unless
 the case falls in the category of
 "rarest of the rare cases". The
 courts must keep in view the nature
 of the crime, the brutality with
 which it was executed, the
 antecedents of the criminal, the
 weapons used etc. It is neither
 possible nor desirable to catalogue
 all such factors and they depend
 upon case to case."
 In Jashubha Bharatsinh Gohil & Others Vs. state of
Gujarat (1994) 4 SCC 358, this Court has observed as follows
in paragraph 12 of the judgment:
 "It is needless for us to go into
 the principles laid down by this
 Court regarding the enhancement of
 sentence as also about the award of
 sentence of death, as the law on
 both these subjects in now well
 settled. There is undoubtedly power
 of enhancement available with the
 High Court which, however, has to
 be sparingly exercised. No hard and
 fast rule can be laid down as to in
 which case the High Court may
 enhance the sentence from life
 imprisonment to death. Each case
 depends on its own facts and on a
 variety of factors. The courts are
 constantly faced with the situation
 were they are required to answer to
 new challenges and mould the
 sentencing system to challenges and
 mould the sentencing system to meet
 those challenges. Protection of
 society and deterring the criminal
 is the avowed object of law and
 that is required to be achieved by
 imposing appropriate sentence. The
 change in the legislative
 intendment relating to award of
 capital punishment notwithstanding,
 the opposition by the protagonist
 of abolition of capital sentence,
 shows that it is expected of the
 courts to so operate the sentencing
 system as to impose such sentence
 which reflects the social
 conscience of the society. The
 sentencing process has to be stern
 where it should be."
 Again in paragraph 14 of the same judgment it was
observed that it is only after giving due weight to the
mitigating as well as the aggravating circumstances, that it
must proceed to impose the appropriate sentence'.
 In suresh Chandra Bahri vs. state of Punjab 1995 supp.
(1) SCC 80, in paragraph 105, this Court observed as
follows:
 "The cold-blooded cruel murder of
 the innocent children by none else
 but by their own real father shows
 the enormous proportion with which
 it was committed eliminating almost
 all members of the family. WE have
 given our serious thoughts and
 consideration and posed the
 question to ourselves whether there
 could be still a worse case than
 this where a husband could hatch a
 conspiracy and kill his wife in a
 most callous and ghastly fashion as
 in the present case only on a
 trifling matter which could have
 been sorted out in an amicable
 manner for which to effort appears
 to have been made by suresh. Not
 only this but the appellant suresh
 became thirsty of the blood of his
 own children for absolutely no
 fault of theirs. in the facts and
 circumstances discussed above, in
 our opinion, so far as suresh
 bahari is concerned, the rule of
 the rarest of rare cases has to be
 applied as the present case falls
 within the category of the rarest
 of rare cases and for the
 perpetration of the crime of the
 nature discussed above there could
 be no other proper and adequate
 sentence except the sentence of
 death as there are no mitigating
 circumstances what soever. Having
 regard to all the facts and
 circumstances of the present case
 as far as suresh Bahri is concerned
 there is no cause for any
 interference in the vies taken by
 the two courts below in awarding
 the death sentence to him. We,
 therefore, affirm the conviction
 and sentence of death awarded to
 Suresh by the High Court. In the
 event of the execution of death
 sentence, the sentence awarded
 under Sentence awarded under
 section 201 of the IPC shall remain
 only of academic interest."
 As the commission of the crime has been established
beyond reasonable doubt and as the counsel for the appellant
also fairly pleaded only for the reduction of sentence, we
need not probe into the conviction aspect once again. We,
therefore, proceed on the footing that the accused/appellant
has committed murder of his wife and two children and
attempted to kill the remaining three children, but (to the
surprise of the accused) they escaped with grievous
injuries. Our concern in the present appeal is about the
manner of committing the murder, weapons used, the position
of the victims and the circumstances under which the crime
was committed and to find out whether the case falls under
the category of "rarest of the rare cases" in the light of
principles already noticed through the judgments of this
Court.
 Before that, we may also point out that we have
independently and carefully gone through the evidence both
oral and documentary and we are convinced that the
convictions of the appellant for offences under Sections 302
and 307 I.P.C. awarded by the learned Sessions Judge and
confirmed by the learned Judges of the High Court are
unassailable and are quite in accord with oral, documentary
and medical evidence.
 Now, let us look into the way the accused had carried
out the murder of his wife and two children and caused
grievous injuries to the rest of his children in the course
of his attempt to liquidate them also. From the evidence
which has been accepted by the trial court and the High
Court, the following emerges :
 On 20th February, 1994, the accused, his wife and all
the five children took their dinner together before going to
the bed and had also viewed the programme on the television.
The accused along with his family members slept in a room.
At about 12-1 on the intervening night of 20th and 21st
February, 1994, the accused started to kill his wife with
the help of a sword and on hearing the shoutings the
children woke up. The wife questioned the accused why he was
trying to kill her and the accused without giving any answer
inflicted more injuries on her head, hand and foot. By that
time, the eldest daughter Rekha tried to save her mother and
instead of leaving his wife from attack, he started
inflicting wounds on his first daughter Rekha with the same
sword. Not satisfied with that, he also inflicted injuries
with the same sword to another daughter and finding that the
sword he had used had been bent, he left that sword and took
out another big sword, kept in a box in the room, and with
the help of the second sword, he inflicted injuries to the
other children. All the injured persons fell down and as
seen earlier, the wife and two children succumbed to the
injuries and the other three children succumbed to the
injuries and the other three children escaped death. It is
also in the evidence of P.W.7 Rora that the accused after
committing the crime, confessed to him (PW 7) stating "I had
slaughtered all of them, how the three left alive". The
above attitude of the accused clearly reveals that he had
caused injuries with a view to liquidate all the members of
his family and he was not happy to find that inspite of his
act his three children had escaped from death.
 We have already given the injuries inflicted on the
deceased persons as well as on the children who escaped
death. We find that the accused had accused in all 64 sword
injuries to all the six persons including the three deceased
persons and those injuries speak for themselve about the
gruesome nature of the crime committed by the accused. Be it
noted that there was no provocation and there is nothing to
suggested that there was any quarrel between the accused and
his wife or among any one of the family members. The way in
which the crime was executed clearly shows that it was a
premeditated one and not on account of sudden provocation or
any 'mental-derange'. The motive suggested in the course of
cross examination of the prosecution witnesses is also not
helpful to the accused inasmuch as he had pleaded alibi in
his statement (under Section 313 Cr. P.C.) and that has also
been taken note of by the trial court as well as by the High
Court. As pointed out earlier, both the Sessions Judge and
the High Court have given special reasons for awarding death
sentence and we are also of the opinion that the crime
indulged by the accused is undoubtedly gruesome, cold
blooded, heinous, atrocious and cruel. We are also satisfied
that on the facts established on the record, there ap[pear
so to be mitigating circumstance whatsoever, but only
aggravating circumstance which justify the imposition of
death sentence. If we look into the manner in which the
crime was committed, the weapon used, the brutality of the
crime, number of persons murdered, the helplessness of the
victims, we cannot come to any other conclusion except the
one, the Sessions Judge and the High court arrived at to
award the capital sentence to the appellant.
 In the result, the appeal fails and it is dismissed
consequently.

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