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Apex court confirm the death penalty = Five members of a family including two minor children and the driver were ruthlessly killed by the use of a knife, an axe and an iron rod and with the help of four others. The crime was obviously committed after pre- meditation with absolutely no consideration for human lives

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1333-1334 OF 2010

Sonu Sardar …… Appellant

Versus

State of Chhattisgarh …… Respondent

J U D G M E N T

A. K. PATNAIK, J.

These are appeals against the judgment of the High

Court of Chhattisgarh in Criminal Reference No.1 of 2008

and Criminal Appeal No. 240 of 2008 confirming the

conviction of the appellant and the death penalty imposed on

him under Section 396 of the Indian Penal Code (for short

`IPC’).

2. The prosecution case very briefly is that on 26.11.2004,

Shamim Akhtar (for short `Shamim’), a scrap dealer and a

resident of village Cher, Distt. Baikunthpur, Chhattisgarh,

had gone to Raipur for selling scrap. He sold the scrap and

received cash of Rs.1,70,000/- and returned to his house

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with the cash. His wife, Ruksana Bibi, kept the cash in

different places of her house, which was to be deposited in

the bank the next day. At about 6.00 p.m. on 26.11.2004,

Sonu Sardar, the appellant herein, and Ajay Singh @ Fotu

along with three other persons came with scrap to the shop

of Shamim and left after selling scrap for Rs.480/-. The

appellant and Ajay Singh and three other persons, however,

returned at about 7.00 p.m. on the same day and knocked

on the door of the house of Shamim. When the door was

opened, the appellant and Ajay Singh and three other

persons demanded money from Shamim. One of these five

persons then bolted the door from inside and two other

persons caught hold of Asgar Ali, driver of Shamim, and one

of them caught hold of Shamim. They kept a knife on the

neck of Shamim and compelled him to give cash which he

was having in his pocket. Shabana Khatun (for short

`Shabana’), the daughter of Shamim, who was present inside,

tried to fight but an attempt was made by the appellant and

his people to assault her and she somehow escaped through

the back door and went to the house of Ramlal, a kilometer

away from the house of Shamim. Shabana told Ramlal

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about the incident at her house and when Ramlal wanted to

go to their house, Shabana asked him not to go because she

was afraid that Sonu Sardar and others may kill him. That

night Shabana stayed at the house of Ramlal and next

morning at about 4-5 a.m., Shabana, Ramlal and his wife

Dhanpatbai came to the house of Shamim and found that

Yakut and Asna, 3 years old son and 5 years old daughter of

Shamim, were crying near the dead bodies of Shamim,

Ruksana Bibi, Yakub and Kumari Rana, 7 years old son and

9 years old daughter of Shamim. Shabana then went to

Baikunthpur and narrated the incident to her uncle Nasim

Akhtar, who reported the matter the Police. The Police

reached the spot and the FIR was lodged. The dead bodies

were sent for autopsy to the Community Health Centre,

Baikunthpur, and a team led by Dr. Ashok Kumar carried

out the post mortem. In course of investigation, the

Investigating Officer recorded statements of several persons

under Section 161, Cr.P.C. The appellant and his co-

accused, Ajay and Chhoti Bai, were arrested but the other

persons absconded after commission of crime. Blood-stained

T-shirt and turban of the appellant and an axe with broken

4

handle, a rod and a knife were seized. Test Identification

Parade was carried out on 01.12.2004 in which Shabana

identified the appellant as well as Ajay as two of the five

persons who had come to the house of Shamim on

26.11.2004 and were demanding money. The seized articles

were sent to the Forensic Science Laboratory, Raipur. After

completion of investigation, a chargesheet was filed and

Sessions Trial No.06/2006 was conducted by the Sessions

Judge, Koriya, Baikunthpur (Chhattisgarh).

3. In course of the trial, the prosecution examined 38

witnesses. Shabana was examined as PW-1, Ramlal was

examined as PW-2, Nasim Akhtar was examined as PW-3 and

Dhanpatbai was examined as PW-4. Dr. Ashok Kumar was

examined as PW-36 and the Investigating Officer was

examined as PW-37. A large number of documents and the

seized articles were also exhibited. The trial court recorded

the statements of the appellant under Section 313, Cr. P.C.

After hearing the arguments, the trial court held that it was

clear from the evidence of PW-1, PW-2, PW-3 and PW-4 that

the appellant had committed the dacoity at the house of

Shamim between 7.00 p.m. of 26.11.2004 and 4.00 a.m. of

5

27.11.2004 and thereafter committed murder of Shamim,

Asgar, Ruksana Bibi, Yakub and Kumari Rana with rod,

knife and axe and that the prosecution had succeeded in

establishing the guilt of the appellant under Section 396,

IPC, beyond reasonable doubt. After hearing counsel for the

parties on the question of sentence, the trial court also held

that the case falls in the category of rarest of rare cases and

imposed the sentence of death on the appellant. By the

impugned judgment, the High Court has confirmed the

conviction of the appellant under Section 396, IPC, and also

the sentence of death.

4. Learned counsel for the appellant submitted that the

appellant had been convicted on the sole testimony of

Shabana (PW-1), a ten years old child who could not have

identified the appellant as one of the five persons who

committed the dacoity and murder on the night of

26.11.2004. She submitted that it is on the information

received from PW-1 that PW-3 had lodged the FIR, but in the

FIR the appellant has not been named. She argued that had

PW-1 known the appellant, she would have told PW-3 the

name of the appellant and PW-3 would have mentioned the

6

name of the appellant in the FIR. She submitted that it will

therefore not be safe for this Court to sustain the conviction

of the appellant.

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

submitted that although PW-1 is a minor, her evidence was

reliable and she had stood the test of cross-examination. He

further submitted that PW-1 narrated the incident not only

to PW-3, but also to PW-2 and PW-4 and the evidence of PW-

2 and PW-4 would show that PW-1 had clearly mentioned

that out of the five persons, who had committed the dacoity

and murder on the night of 26.11.2004, there was a sardar.

He further submitted that PW-1 has also stated in her

evidence that the appellant had gone to her father’s shop 5 to

6 times before the 26.11.2004 to sell scrap and hence she

could identify him as one of the five persons who had

committed the dacoity and murder on the night of

26.11.2004. Moreover, at the time of the Test Identification

Parade conducted by the Magistrate (PW-11), PW-1 identified

the appellant as one of the five persons, who had come to the

house of Shamim on 26.11.2004 and were demanding

money. He submitted that the evidence of PW-1 that the

7

appellant participated in the dacoity and murder on

26.11.2004 is corroborated by the recovery of the iron rod

and axe on the statement of the appellant and by the fact

that the seized T-shirt and turban of the appellant were

blood-stained.

6. We have considered the submissions of learned counsel

for the parties and we find that during investigation a Test

Identification Parade was carried out on 01.12.2004 and out

of the ten persons who were presented, the appellant and

Ajay Singh @ Fotu were identified by PW-1 as the two

persons, who were amongst the five persons who had come to

the house of Shamim and were demanding money from him.

From the evidence of PW-2 as well as the evidence of PW-4,

we find that PW-1, soon after she escaped from the house of

Shamim, has mentioned that one of the five persons who had

gone to the house of Shamim was a sardar. In her cross-

examination, PW-1 has stated that she knew the appellant as

he had come to their house for selling scrap. Moreover, the

broken axe with broken handle and iron rod (Ext. P.24) were

recovered pursuant to the statement of the appellant (Ext.

P.16). PW-36, Dr. Ashok Kumar, after narrating the injuries

8

on the dead bodies of Shamim, Asgar Ali, Ruksana Bibi,

Yakub and Kumari Rana, has opined that the death has been

on account of shock as a result of fatal injuries. The injuries

described by them are not only incised wounds but multiple

fractures of temporal and parietal bones and on the head

which could have been caused by the axe and the iron rod.

The report of the Forensic Science Laboratory (Ext.P.61)

confirms presence of human blood on the clothes of the

deceased persons, axe and iron rod (Ext. P.24) as well as the

turban and T-shirt of the appellant (Ext. P.37) which had

been seized. Thus, the conviction of the appellant is not only

based on the oral testimony of PW-1, but also the evidence of

PW-2, PW-3, PW-4, PW-36, the seized articles and also the

report of the Forensic Science Laboratory. It is further

established from the evidence of PW-1 and the Panchanama

of the house of Shamim made on 28.11.2004 that only cash

of Rs.65,760/- was available and the remaining cash out of

Rs.1,70,000/- was missing. The prosecution has, in our

considered opinion, proved beyond reasonable doubt that the

appellant participated in the offence of dacoity and murder

9

and has been rightly convicted for the offence under Section

396, IPC.

7. On the question of sentence, learned counsel for the

appellant submitted that this Court has held in Ramesh and

others v. State of Rajasthan [(2011) 3 SCC 685] that before

awarding death sentence, the trial court was expected to give

elaborate reasons. She submitted that the reasons given by

the trial court for awarding death sentence on the appellant

were not elaborate. She submitted that in Ramesh and

others v. State of Rajasthan (supra) this Court did not find

clear evidence as to which of the three persons who

participated in the crime was the actual author of the

injuries on Ramlal and Shanti Devi and held that as it is

difficult to say that Ramesh alone was the author of the

injuries on Ramlal as well as Shanti Devi, death sentence

awarded to Ramesh should be modified to life imprisonment.

She submitted that in the present case also five persons have

committed the offence under Section 396, IPC, and as the

actual role of the appellant in the offence is not known the

death sentence should be modified to life imprisonment.

10

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

submitted that the appellant has participated in the offence

under Section 396, IPC, and as many as five innocent

persons, including two children, have lost their lives and the

trial court has given sufficient reasons for awarding death

sentence to the appellant. He cited the decision of this Court

in Sushil Murmu v. State of Jharkhand [(2004) 2 SCC 338] for

the proposition that the punishment should be proportionate

to the crime committed by the accused. He submitted that in

the facts of the present case, since the crime was heinous in

nature and resulted in the death of five persons, death

sentence would be proportionate to the crime committed by

the appellant. He also relied on Atbir v. Government of NCT

of Delhi [(2010) 9 SCC 1] in which this Court held that

preventing persons in the house to escape and committing

brutal murder of as many as three persons inside the house

are aggravating circumstances warranting imposition of

death sentence on the accused. He submitted that in the

present case also, as the appellant had closed and bolted the

door to prevent an escape of any person from the house, and

11

had then brutally murdered as many as five persons, death

sentence should be imposed on the appellant.

9. We have considered the submissions of the learned

counsel for the parties and we find that the trial court has

recorded the following special reasons under Section 354 (3)

of the Criminal Procedure Code, 1898 for awarding the death

sentence on the appellant:

(i) The crime was pre-meditated.

(ii) The crime has struck fear and terror in the public

mind.

(iii) Helpless and defenceless women and two minor

children aged eight and four years besides two adult men

were murdered.

(iv) Asgar Ali, the driver of Shamim, who had only

stopped in the house for his food, was also not spared.

(v) Taking advantage of earlier business relations with

Shamim, the appellant made a friendly entry and committed

the murders.

(vi) The intention was to kill all members of the family

though surprisingly a six month old baby and a four year old

child remained alive.

(vii) The five murders were brutal, grotesque, diabolical,

revolting and dastardly, which indicated the criminality of

the perpetrators of the crime.

(viii) No physical or financial harm appears to have been

caused by the deceased to the accused.

12

As against these aggravating circumstances, the trial court

did not find any mitigating circumstance in favour of the

appellant to avoid the death penalty. This is, therefore, not

one of those cases in which the trial court has not recorded

elaborate reasons for awarding death sentence to the

appellant as contended by learned counsel for the appellant.

10. Regarding the role of the appellant in the commission of

the offence of dacoity and murder, we have already found

that the turban and T-shirt of the appellant, which were

seized and sent for examination to the Forensic Science

Laboratory, had presence of human blood. We have also

found that the axe and the iron rod, which were recovered

pursuant to the statement of the appellant, had also blood-

stains. We have also found from the evidence of PW-1 that

when her mother was cooking food and came out on hearing

the commotion, the appellant was demanding money from

her father and her father gave to the appellant all the money

which he was having in his pocket. There is, therefore, clear

and definite evidence in this case to show that the appellant

not only participated in the crime, but also played the lead

role in the offence under Section 396, IPC. This is, therefore,

13

not a case where it can be held that the role of the appellant

was not such as to warrant death sentence under Section

396, IPC.

11. In a recent judgment in Sunder Singh v. State of

Uttaranchal [(2010) 10 SCC 611], this Court found that the

accused had poured petrol in the room and set it to fire and

closed the door of the room when all the members of the

family were having their food inside the room and, as a

result, five members of the family lost their lives and the

sixth member of the family, a helpless lady, survived. This

Court held that the accused had committed the crime with

pre-meditation and in a cold blooded manner without any

immediate provocation from the deceased and all this was

done on account of enmity going on in respect of the family

lands and this was one of those rarest of rare cases in which

death sentence should be imposed. The facts in the present

case are no different. Five members of a family including two

minor children and the driver were ruthlessly killed by the

use of a knife, an axe and an iron rod and with the help of

four others. The crime was obviously committed after pre-

meditation with absolutely no consideration for human lives

14

and for money. Even though the appellant was young, his

criminal propensities are beyond reform and he is a menace

to the society. The trial court and the High Court were

therefore right in coming to the conclusion that this is one of

those rarest of rare cases in which death sentence is the

appropriate punishment.

12. In the result, we find no merit in these appeals and we

sustain the conviction of the appellant as well as the

sentence of death under Section 396, IPC, and dismiss the

appeals.

………………………..J.

(A. K. Patnaik)

………………………..J.

(Swatanter Kumar)

New Delhi,

February 23, 2012.

 

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