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the killing of two other policemen without premeditation and without any motive whatsoever was an act done out of panic reaction and in a state of frenzy and it was not one of the rarest of rare cases where death sentence could be awarded.


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CRIMINAL APPEAL No. 1436 of 2010
Absar Alam @ Afsar Alam …… Appellant




State of Bihar …… Respondent




This is an appeal by way of special leave under Article


136 of the Constitution of India against the judgment and


order dated 16.07.2009 of the Patna High Court in Death


Reference No. 7 of 2008 with Criminal Appeal (DB) No.169


of 2008. On 18.01.2010, this Court issued notice in the


Special Leave Petition confined to the question of sentence


only and on 02.08.2010 after hearing learned counsel for


the parties, granted leave. Hence, the only question that we


have to decide in this appeal is whether the High Court was


right in confirming the death sentence of the appellant


imposed by the trial court.



2. For deciding this question, the relevant facts as have


been found by the trial court are that in the midnight


of 14/15.02.2007, the appellant killed his mother by


cutting her neck and severing her head and thereafter


fled from the house with the head of his mother leaving


behind her body. The trial court, after convicting the


appellant under Sections 302 and 201 of the Indian


Penal Code (for short `IPC’), held that the appellant


committed the murder of his mother in an extremely


brutal, grotesque, diabolical and revolting manner and


hence it is one of those rarest of the rare cases calling


for a death sentence on the appellant. The High Court,


while upholding the conviction, confirmed the death


sentence relying on the decision of this Court in


Machhi Singh and others v. State of Punjab [(1983) 3


SCC 470]. In the aforesaid case of Machhi Singh, this


Court has inter alia held that the manner of


commission of murder and the personality of the


victim of murder have to be taken into consideration


while making the choice of the sentence to be imposed


for the offence under Section 302, IPC : life

imprisonment or death sentence. The High Court has


taken a view that considering the abhorrent, dastardly


and diabolical nature of the crime committed by the


appellant on none other than his mother, who had


given birth to him, the penalty of death has been


rightly awarded by the trial court.

3. At the hearing of this appeal, learned counsel for the


appellant, relying on the decision of this Court in


Swamy Shraddananda (2) alias Murali Manohar Mishra


v. State of Karnataka [(2008) 13 SCC 767], submitted


that even if it is a case of a son beheading his mother,


this is not one of the rarest of rare cases in which the


death penalty should have been imposed because the


offence had been committed by the appellant in a fit of


passion and not after pre-meditation.

4. Learned counsel for the State, on the other hand,


submitted that considering the law laid down by this


Court in Prajeet Kumar Singh v. State of Bihar [(2008) 4


SCC 434], Surja Ram v. State of Rajasthan [(1996) 6


SCC 271] and Atbir v. Government of NCT of Delhi

[(2010) 9 SCC 1], the imposition of death sentence on


the appellant for the cruel act of beheading his mother


was proper.

5. We find on reading the FIR lodged by the brother of the


appellant on the morning of 15.02.2007 at 09:45


hours marked as Ext.2 that the appellant’s wife


Sakerun Nisha had run away to her maternal house


three or four days before the incident and the


appellant had been accusing his mother to have been


the cause of his wife running away from this house


and out of anger and excitement the appellant severed


the neck of his mother and fled with the head. The


appellant was an illiterate rustic and was a cultivator


residing in a village with virtually no control over his


emotions and has over-reacted impulsively to the


situation and has severed the neck of his mother. On


these facts, the appellant is no doubt guilty of the


offence under Section 302, IPC, and has to suffer the


punishment of imprisonment for life normally awarded


for the offence, but should not be condemned to death.


We may cite a few authorities in support of this view.




6. In Lehna v. State of Haryana [(2002) 3 SCC 76], the


facts were that there was a quarrel between the


accused and other members of his family, namely, his


father, his brother and sister-in-law, over a piece of


land and in the assaults that followed the quarrel, the


accused killed his mother, his brother and sister-in-


law. While upholding the conviction of the accused


under Section 302, IPC, this Court held that the


mental condition of the accused, which led to the


assault, cannot be lost sight of and while such mental


condition of the accused may not be relevant to judge


culpability, it is certainly a factor while considering the


question of sentence. This Court further held that the


factual scenario gave impressions of impulsive act of


the accused and not of planned assaults and in this


peculiar background, death sentence would not be



7. In Gyasuddin Khan alias Md. Gyasuddin Khan v. State


of Bihar [(2003) 12 SCC 516], the facts were that in the


morning hours of 09.04.1996, in the precincts of a

police camp stationed near a village in Bihar, a


policeman deployed in the police picket to contain the


terrorist activities, unleashed terror by indulging in a


firing spree, killing three of his colleagues


instantaneously and this Court, relying on Shamshul


Kanwar v. State of U.P. [(1995) 4 SCC 430], Lehna v.


State of Haryana (supra) and Om Prakash v. State of


Haryana [(1999) 3 SCC 19], held that the mental


condition or state of mind of the accused is one of the


factors that can be taken into account in considering


the question of sentence and in the facts of the case,


the killing of two other policemen without


premeditation and without any motive whatsoever was


an act done out of panic reaction and in a state of


frenzy and it was not one of the rarest of rare cases


where death sentence could be awarded.

8. For the aforesaid reasons, we convert the sentence of


death to one of life imprisonment for the offence under


Section 302, IPC, committed by the appellant and


allow the appeal in part.


(A. K. Patnaik)


(Swatanter Kumar)

New Delhi,

February 07, 2012.


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