you're reading...
legal issues

where the husband killed his wife and children as the wife was having talks with one third person. out of rage, he killed all and he tried to kill himself by the same knife and went to commit suicide also. he gave himself an FIR. He is the great looser. Requires no death penalty as it is not rarest of rare case . Dealth penalty converted in to life imprisonment for 21 years by Apex court.

Lion Capital of Ashoka.jpg

Image via Wikipedia



Brajendrasingh … Appellant
State of Madhya Pradesh … Respondent




Swatanter Kumar, J.

1. The present appeals are directed against the judgment of the


High Court of Madhya Pradesh, Bench at Indore, confirming the


judgment of conviction and order of sentence of imposition of


extreme penalty of death by the Trial Court.

2. The disaster that can flow from unchastity of a woman and the


suspicions of a man upon the character of his wife cannot be more


pathetically stated than the facts emerging from the present case.


As per the case of the prosecution, a man suspecting his wife of


having illicit relations with his neighbor, killed his three young


children, namely, Varsha, Lokesh and Mayank, who were asleep,


sprinkled kerosene oil on his wife and put her on fire. However,


when called upon to make a statement under Section 313 of the


Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the accused


rendered the following explanation :

“There was illicit relationship between my wife,

the deceased Aradhna and Liladhar, when on

27.02.2005 I came from the factory, at that

time it was 11.00 – 11.30 O’clock at night,

there was no fixed time coming and going from

the factory. When I came to my house the

door of the house was opened. My wife was

not at the house and then I searched her here

and there. I heard her voice in the house of

Liladhar Tiwari, the voice of male was also

coming. My children were sleeping in my

house, when I shouted loudly and I hit the

door of Liladhar Tiwari with foot, then the door

opened then I saw that both were naked and

then she came out then I threw her on the

ground after catching her hair and then she

started shouted and speaking cohabitedly and

said that she would go with Tiwari Jee only

and if I would stop her from meeting Tiwari Jee

then she would kill the children and she would

kill me also. Thus quarrel went on. After

some time she came with knife from the

kitchen and she inflicted injuries in the necks

of the three children. I tried to snatch the

knife from her and the in that process in my
neck also the knife inflicted injury and then

after taking that very knife I inflicted injury on

the neck of deceased because she had inflicted

the injury in the necks of children, Aradhna

fell down on the back after being hit by the

knife. My mental balance was upset and I put

the kerosene oil kept there at myself, that

some of that kerosene oil fell on me and some

on the deceased, I was standing nearby. I

ignited the match stick and at first I burnt

myself and the match stick fell on the

deceased, due to which she was also burnt

and then in the burning condition after

extinguishing the fire taking the knife I went

towards the Bye-pass. After some time, I saw

that one truck was coming, I was going to

commit suicide under that truck but in the

meantime police came there and the police

brought me to the police station. I got the

report written but as I had said in the report it

was not written like that. I have not killed the


3. From the above statement, it is clear that the accused neither


disputes the attempt to murder, nor the consequent death of his


three young children and wife, Aradhna. What this Court has to


examine, with reference to the evidence on record, is as to which of


the two versions is correct and stands established beyond


reasonable doubt, i.e., whether the case of the prosecution is to be


accepted as proved beyond reasonable probability or whether the


defence of the appellant is to be accepted by the Court.


4. Before we dwell upon the issues before us, it will be


appropriate to refer to the facts giving rise to the present appeal, as


stated by the prosecution. The facts, as given, as well as the


conduct of the appellant are somewhat strange in the present case


as the appellant who is accused of this heinous crime, is himself


the informant of the incident. Laconically, the factual matrix of the


case that emerges from the record is that the appellant had lodged


a report in respect of the commission of the crime at the Police


Station, Industrial Area, District Dewas in the night intervening the


27/28th, February, 2005 at about 2.00 a.m. which was recorded by


Sub-Inspector Mohan Singh Maurya, PW16. The appellant was


serving in White Star Milk Product Factory, Dewas. Besides his


wife and three young children, his brother-in-law was also residing


with him who was serving in Sudarshan Factory. One Liladhar


Tiwari was the neighbour of the appellant. In fact, both the


appellant and Liladhar Tiwari stayed in two different rooms of the


same flat, i.e., LIG Flat No.225, Vikas Nagar, Dewas which they had


taken on rent from PW3, Smt. Kamal Kunwar. Smt. Aradhna, the


deceased wife of the appellant, used to talk to Liladhar, to which the


appellant had serious objections. He had forbidden her from doing


so. Again, on the fateful day, he had allegedly stopped her from


talking to Liladhar Tiwari, but she retorted that she would die and


poured kerosene oil on her person and then put herself on fire. The


appellant claims to have made an effort to extinguish the fire.


However, being under the impression that she was dying, he also


caused injuries to his wife by a knife (chhuri) and killed her. The


appellant also suffered burn injuries in his attempt to extinguish


the fire. After killing his wife, he was concerned about what would


be the fate of their children, who will now have to grow up without


their mother. Thus, he killed them by the same process, i.e.,


inflicting injuries by knife to the throat of the children. After


committing the murder of his own family members, he also tried to


commit suicide by injuring his neck but could not succeed in his


attempt. The incident is said to have occurred at 2330 hours on


the night of 27th February, 2005.

5. PW4, Sri Ram Verma, Head Constable, was on patrolling duty


and he, along with another constable, was patrolling by road by a


Government vehicle bearing registration No. MP 03 – 5492 in the


night between half past one and two O’clock. They saw a person on


the bye-pass road. They stopped the said vehicle and interrogated
him. Then they came to know that he was Brajendrasingh, the


appellant. The appellant narrated the entire incident to the Police


and informed them that he wanted to commit suicide. The Police


Officers stopped him from doing so and brought him to the Police


Station, Industrial Area in the same Government vehicle. Upon


reaching the Police Station, the appellant lodged the report at 2.00


a.m. narrating the above facts to the Police.

6. On the basis of the statement of the appellant, First


Information Report, Exhibit P27, under Section 302 of the Indian


Penal Code (IPC), was registered on 27/28th February, 2005 at


about 2.00 a.m. PW16, Mohan Singh Maurya, prepared the inquest


report Exhibits P2 to P5 and the bodies of the deceased persons


were taken into custody. The dead bodies were taken to the


hospital for post mortem which was performed by Dr. Shakir Ali,


PW12 and the post mortem reports were recorded as Exhibits P12


to P15. The doctor opined that the injuries on the person of the


deceased could have been caused by a knife. The appellant was


also examined medically by Dr. Hari Singh Rana, PW14, who issued


his medico-legal certificate report Exhibit P18. The clothes of the


deceased persons were seized. The photographs of the spot were
taken and the CDs of photography were seized vide Exhibits P7 to


I/9. Blood stained and controlled earth (P4) was taken into custody


vide Exhibit P10, knife, shirt and pant of the appellant were seized


vide Exhibit P13. Seized articles were sent to the Forensic Science


Laboratory, Sagar for chemical examination from which the reports


Exhibits P22, P24 and P26 were received. As per the post mortem


report of deceased Aradhna, Exhibit P12, the medical expert found


36 per cent burn injuries on her chest and abdomen. The


Investigating Officer recorded the statement of 16 prosecution


witnesses and after completing the investigation in all respects, he


submitted the charge sheet before the Court. The accused was


committed to the Court of Sessions as the offences were exclusively


triable by the Court of Sessions being an offence under Sections


302 and 309 IPC. The accused stood trial and made a statement


under Section 313 Cr.P.C. giving his stand and explanation as


afore-indicated. The learned Trial Court, vide its judgment dated


15th June, 2007, acquitted the accused for the offence under


Section 309 IPC. However, while returning a finding of being guilty


for the offence under Section 302 IPC, the Court held that it does


not appear to be appropriate to award any sentence less than death


sentence to the appellant and, therefore, imposed upon him the


extreme punishment of death under Section 302 IPC. This


judgment of the Trial Court was challenged before the High Court


which affirmed the judgment of conviction and order of sentence of


death. Against these concurrent findings, the appellant has filed


the present appeals.

7. We may notice here that against the acquittal of the appellant


under Section 309 IPC, no appeal was preferred by the State, either


before the High Court or before this Court.

8. The learned counsel appearing for the appellant has primarily


raised the following two contentions :

(i) The courts have failed to appreciate the evidence in its correct


perspective. The accused had stated that his wife had


murdered the three children and that he had only inflicted


injuries on her body under a belief that she was not going to


survive. He had no intention to kill her. Thus, the applicant


cannot be punished for murder of the entire family. It is also


the contention of the appellant that the prosecution has not


been able to prove its case beyond reasonable doubt.


(ii) The imposition of extreme penalty of death was not called for


in the facts and circumstances of the present case. The


incident even if, as stated by the prosecution, assumed to be


correct, still it was an offence committed on extreme


provocation and at the spur of the moment without any intent


to kill any person.

9. Neither the death of three children nor that of his wife


Aradhna is disputed and/or practically admitted by the appellant in


his statement under Section 313 Cr.P.C. He has also admitted that


he had inflicted injuries on the person of the deceased Aradhna


with a knife. Only a part of his statement under Section 313


Cr.P.C. does not corroborate the prosecution evidence. According to


the case of the prosecution, the appellant had inflicted injuries


resulting in the death of three minor children and then he had


poured the kerosene oil upon the deceased Aradhna as well as


inflicted injury on her throat, whereas according to the appellant, it


was the deceased Aradhna who had inflicted injuries upon their


three minor children and poured kerosene on herself and thereafter


set herself on fire.



10. It is a settled principle of law that the statement of an accused


under Section 313 Cr.P.C. can be used as evidence against the


accused, insofar as it supports the case of the prosecution. Equally


true is that the statement under Section 313 Cr.P.C. simplicitor


normally cannot be made the basis for conviction of the accused.


But where the statement of the accused under Section 313 Cr.P.C.


is in line with the case of the prosecution, then certainly the heavy


onus of proof on the prosecution is, to some extent, reduced. We


may refer to a recent judgment of this Court in the case of


Ramnaresh & Ors. v. State of Chhattisgarh, (being pronounced


today) wherein this Court held as under :

“In terms of Section 313 Cr.P.C., the accused

has the freedom to maintain silence during the

investigation as well as before the Court. The

accused may choose to maintain silence or

complete denial even when his statement

under Section 313 Cr.P.C. is being recorded, of

course, the Court would be entitled to draw an

inference, including adverse inference, as may

be permissible to it in accordance with law.

Right to fair trial, presumption of innocence

unless proven guilty and proof by the

prosecution of its case beyond any reasonable

doubt are the fundamentals of our criminal

jurisprudence. When we speak of prejudice to

an accused, it has to be shown that the

accused has suffered some disability or

detriment in relation to any of these
protections substantially. Such prejudice

should also demonstrate that it has

occasioned failure of justice to the accused.

One of the other cardinal principles of criminal

justice administration is that the courts

should make a close examination to ascertain

whether there was really a failure of justice or

whether it is only a camouflage, as this

expression is perhaps too pliable. [Ref. Rafiq

Ahmed @ Rafi v. State of Uttar Pradesh [(2011)

8 SCC 300].
It is a settled principle of law that the

obligation to put material evidence to the

accused under Section 313 Cr.P.C. is upon the

Court. One of the main objects of recording of

a statement under this provision of the Cr.P.C.

is to give an opportunity to the accused to

explain the circumstances appearing against

him as well as to put forward his defence, if

the accused so desires. But once he does not

avail this opportunity, then consequences in

law must follow. Where the accused takes

benefit of this opportunity, then his statement

made under Section 313 Cr.P.C., in so far as it

supports the case of the prosecution, can be

used against him for rendering conviction.

Even under the latter, he faces the

consequences in law.”



11. Now, all that this Court is called upon to decide in the present


case is that between the varying versions put forward by the


prosecution and the accused which one is correct and has been


proved in accordance with law.



12. As we have already noticed in the narration of facts above that


the FIR was recorded by Sub-Inspector Mohan Singh Maurya, PW16


based on the statement of the appellant itself, made in the Police


Station. This cannot be treated, in law and in fact, as a confessional


statement made by the accused and it would certainly attain its


admissibility in evidence as an FIR recorded by the competent


officer in accordance with law.

13. There is no doubt that there is no eye witness in this case


despite the fact that it occurred in an LIG flat and obviously some


people must be living around that flat. However, to complete the


chain of events and to prove the version given by the appellant in


the FIR, it examined a number of witnesses. PW2 is the brother-in-


law of the appellant and brother of the deceased Aradhna. He


clearly stated that Brajendrasingh had been married to Aradhna


12-13 years before the date on which his statement was recorded


and the couple had three children. He was staying with his sister


and on 27th February, 2005, he had been in the house of the


accused during the day and in the evening he left for the house of


his brother Kamla Singh who was staying at Joshipura whereafter


he went to Sudarshan Factory near Dewas to work. At about 2.30
a.m. in the night, while he was in the factory, he received a phone


call from the Police Station informing him that his sister, nephews


and niece had been murdered. He came back and went to the


Police Station where he found Brajendrasingh, the accused was also



14. PW3, Smt. Kamal Kunwar was examined to prove that the


appellant was the tenant at a monthly rent of Rs.650/- and two


rooms had been given to him on rent. According to her, one


Liladhar Tiwari had also been residing in one room in the same


building on rent.

15. PW5, Shobhna is again the sister of the deceased Aradhna.


Her statement was similar to that of PW2. According to her,


somebody from Vikas Nagar had come and told her that an


altercation had taken place between Aradhna and the accused. He


asked her to go there. After she reached near the house of the


accused, she met two boys who told her that somebody had killed


Aradhna and her three children. Upon hearing this, she fell


unconscious. This witness was declared hostile and was subjected


to cross-examination by the prosecution. Witness PW7, Veerendra

Singh, who is the husband of PW5 and brother of the present


appellant, also made a similar statement. PW10, Liladhar Tiwari,


was also examined and he stated that he was residing in the same


building in one room. When his children and wife used to go to


village, he used to live alone in that room. According to him, the


Police had come to his house at about 2.00 O’clock in the night,


knocked at his door and informed him about the murder. He stated


that wife of the accused used to inquire from him whenever he


came late, “brother today you have come late” and I used to reply


that because of heavy work I was late. PW12 is Dr. Shakir Ali who


had performed post mortem examination upon the body of Aradhna


and noticed various injuries on her body. According to him, both


the lungs were having less blood and two portions of the heart were


empty of blood. The upside down Carroty nerve was incised. The


membrane of the intestines was healthy. The liver, spleen and


kidney all were blood less and all the injuries were ante mortem and


fatal. According to the doctor, the cause of death was shock which


had resulted from excessive hemorrhage. Post mortem upon the


other dead bodies was also performed by this witness and the cause


of death was common. The incised wound of Lokesh was 1″ x =” x


2″ below the jaw which resulted in excessive bleeding and death.


PW16 is the Sub-Inspector in the Police Station, Industrial Area,


Dewas. He, as already noticed, had recorded his statement at the


Police Station and had conducted the investigation. He had


prepared the site plan and seized the knife Exhibit P12. It is with


the help of these witnesses that the prosecution has attempted to


prove its case but the foundation of this case was laid on the basis


of the information given by the appellant-accused himself. The


statements of these witnesses have to be examined in light of the


FIR, Exhibit P27, as well as the statement of the accused made


under Section 313 Cr.P.C. But for Exhibit P27, it would have been


difficult for the prosecution to demonstrate as to who was


responsible for committing the murder of the three young children.


To this extent, it is a case purely of circumstantial evidence.



16. There is no doubt that it is not a case of direct evidence but


the conviction of the accused is founded on circumstantial


evidence. It is a settled principle of law that the prosecution has to


satisfy certain conditions before a conviction based on


circumstantial evidence can be sustained. The circumstances from

which the conclusion of guilt is to be drawn should be fully


established and should also be consistent with only one hypothesis,


i.e. the guilt of the accused. The circumstances should be


conclusive and proved by the prosecution. There must be a chain


of events so complete so as not to leave any substantial doubt in


the mind of the Court. Irresistibly, the evidence should lead to the


conclusion inconsistent with the innocence of the accused and the


only possibility that the accused has committed the crime. To put


it simply, the circumstances forming the chain of events should be


proved and they should cumulatively point towards the guilt of the


accused alone. In such circumstances, the inference of guilt can be


justified only when all the incriminating facts and circumstances


are found to be incompatible with the innocence of the accused or


the guilt of any other person. Furthermore, the rule which needs to


be observed by the Court while dealing with the cases of


circumstantial evidence is that the best evidence must be adduced


which the nature of the case admits. The circumstances have to be


examined cumulatively. The Court has to examine the complete


chain of events and then see whether all the material facts sought


to be established by the prosecution to bring home the guilt of the


accused, have been proved beyond reasonable doubt. It has to be


kept in mind that all these principles are based upon one basic


cannon of our criminal jurisprudence that the accused is innocent


till proven guilty and that the accused is entitled to a just and fair


trial. [Ref. Dhananajoy Chatterjee vs. State of W.B. [JT 1994 (1) SC


33]; Shivu & Anr. v. R.G. High Court of Karnataka [(2007) 4 SCC


713]; and Shivaji @ Dadya Shankar Alhat v. State of Maharashtra


[(AIR 2009 SC 56].

17. It is a settled rule of law that in a case based on circumstantial


evidence, the prosecution must establish the chain of events leading


to the incident and the facts forming part of that chain should be


proved beyond reasonable doubt. They have to be of definite


character and cannot be a mere possibility.

18. The circumstances in the present case, which have been


proved, are that :

(1) The couple used to quarrel on the issue of deceased Aradhna


speaking to Liladhar Tiwari even after the appellant having


restrained her from doing so;

(2) The three children were sleeping at the time of occurrence;
(3) The injury on their necks just below the jaw was caused by a


knife which was recovered and exhibited as article `L’ in


accordance with law.

(4) It was mentioned in Doctor’s report that there were number of


burn injuries on the body of Aradhna and the injuries on the


throats of all the deceased. The cause of death was common


to all, i.e., excessive hemorrhage.

19. These circumstantial evidences read with the statements of the


prosecution witnesses and the statement of the appellant himself


prove one fact without doubt, i.e., the accused had certainly


murdered his wife. His stand is that since he believed that his wife


may not survive the burn injuries, therefore, he killed her by


inflicting the injury with knife on her throat similar to the one


inflicted upon the throats of the three young children. Thus, there


is no escape for the appellant from conviction for the offence under


Section 302 IPC vis-`-vis the murder of his wife Aradhna.

20. Now, coming to the death of the children, according to the


prosecution, they had been murdered by the appellant while


according to the appellant, they had been murdered by his wife


Aradhna. One very abnormal conduct on the part of the appellant


comes to light from the evidence on record that a father, seeing his


wife killing his children, would certainly have prevented the death of


at least two out of the three children. He could have overpowered


his wife and could even have prevented the murder of all the three


children. This abnormal conduct of the appellant renders his


defence unbelievable and untrustworthy. Upon appreciation of the


evidence on record, we are more inclined to accept the story of the


prosecution though it is primarily based on circumstantial evidence


and there is no witness to give optical happening of events. Once


these circumstances have been proved and the irresistible


conclusion points to the guilt of the accused, the accused has to be


held guilty of the offences. Normally, the injuries like the ones


inflicted in the present case would not lead to instantaneous death.


The excessive bleeding leading to death would be possible over a


short period. The injured would struggle before he succumbs to


such injury. As alleged by the accused, if the wife caused death of


all the three children, he could have certainly prevented death of at


least two of them. When the deceased inflicted such severe injuries


on the throat of the sleeping child, the child would have got up,


there would have been commotion and disturbance in the room


which would have provided enough opportunity to the appellant to


protect his other two children. According to the prosecution, at that


stage, none had suffered any injury. This unnatural conduct of the


accused in not making an effort to protect the children and


exhibiting helplessness creates a serious doubt and renders the


entire case put forward by the defence as unreliable and of no


credence. This abnormal conduct of exhibiting helplessness on the


part of the appellant creates a serious doubt and entire case put


forward by the defence loses its credibility.

21. The cumulative effect of the prosecution evidence is that the


accused persisted with commission of the crime despite availability


of an opportunity to check himself from indulging in such heinous


crime. May be there was some provocation initially but nothing can


justify his conduct. Whatever be the extent of his anger, revenge


and temper, he still could have been kind to his own children and


spared their life. He is expected to have overcome his doubts about


the conduct of his wife, for the larger benefit of his own children.


Though the appellant had stated that he lost his mind and did not


know what he was doing, this excuse is not worthy of credence.
Admittedly, he was not ailing from any mental disorder or


frustration. He was a person who was earning his livelihood by


working hard.

22. Having appreciated the evidence on record, we have no


hesitation in holding that the appellant is guilty of an offence under


Section 302 IPC for murdering his wife and three minor children.


He deserves to be punished accordingly.

23. Now, coming to the question of quantum of sentence, it is


always appropriate for this Court to remind itself of the need for


recording of special reasons, as contemplated under Section 354(3)


Cr.P.C., where the Court proposes to award the extreme penalty of


death to an accused. This leads us to place on record the principles


governing exercise of such discretion which have been stated in a


very recent judgment of this Bench in the case of Ramnaresh


(supra) wherein the Court, after considering the entire law on the


subject, recapitulated and enunciated the aggravating and


mitigating circumstances as well as the principles that should guide


the judicial discretion of the Court in such cases. This Court held


as under :

“The above judgments provide us with the

dicta of the Court relating to imposition of

death penalty. Merely because a crime is

heinous per se may not be a sufficient reason

for the imposition of death penalty without

reference to the other factors and attendant

Most of the heinous crimes under the IPC

are punishable by death penalty or life

imprisonment. That by itself does not suggest

that in all such offences, penalty of death

should be awarded. We must notice, even at

the cost of repetition, that in such cases

awarding of life imprisonment would be a rule,

while `death’ would be the exception. The

term `rarest of rare case’ which is the

consistent determinative rule declared by this

Court, itself suggests that it has to be an

exceptional case. The life of a particular

individual cannot be taken away except

according to the procedure established by law

and that is the constitutional mandate. The

law contemplates recording of special reasons

and, therefore, the expression `special’ has to

be given a definite meaning and connotation.

`Special reasons’ in contra-distinction to

`reasons’ simplicitor conveys the legislative

mandate of putting a restriction on exercise of

judicial discretion by placing the requirement

of special reasons.
Since, the later judgments of this Court

have added to the principles stated by this

Court in the case of Bachan Singh (supra) and
Machhi Singh (supra), it will be useful to re-

state the stated principles while also bringing

them in consonance, with the recent

The law enunciated by this Court in its

recent judgments, as already noticed, adds

and elaborates the principles that were stated

in the case of Bachan Singh (supra) and

thereafter, in the case of Machhi Singh (supra).

The aforesaid judgments, primarily dissect

these principles into two different

compartments – one being the `aggravating

circumstances’ while the other being the

`mitigating circumstance’. The Court would

consider the cumulative effect of both these

aspects and normally, it may not be very

appropriate for the Court to decide the most

significant aspect of sentencing policy with

reference to one of the classes under any of the

following heads while completely ignoring other

classes under other heads. To balance the two

is the primary duty of the Court. It will be

appropriate for the Court to come to a final

conclusion upon balancing the exercise that

would help to administer the criminal justice

system better and provide an effective and

meaningful reasoning by the Court as

contemplated under Section 354(3) Cr.P.C.
Aggravating Circumstances :
1. The offences relating to the commission of

heinous crimes like murder, rape, armed

dacoity, kidnapping etc. by the accused with a

prior record of conviction for capital felony or
offences committed by the person having a

substantial history of serious assaults and

criminal convictions.
2. The offence was committed while the

offender was engaged in the commission of

another serious offence.
3. The offence was committed with the

intention to create a fear psychosis in the

public at large and was committed in a public

place by a weapon or device which clearly

could be hazardous to the life of more than one

4. The offence of murder was committed for

ransom or like offences to receive money or

monetary benefits.
5. Hired killings.
6. The offence was committed outrageously

for want only while involving inhumane

treatment and torture to the victim.
7. The offence was committed by a person

while in lawful custody.
8. The murder or the offence was

committed, to prevent a person lawfully

carrying out his duty like arrest or custody in

a place of lawful confinement of himself or

another. For instance, murder is of a person

who had acted in lawful discharge of his duty

under Section 43 Cr.P.C.
9. When the crime is enormous in

proportion like making an attempt of murder

of the entire family or members of a particular


10. When the victim is innocent, helpless or a

person relies upon the trust of relationship
and social norms, like a child, helpless

woman, a daughter or a niece staying with a

father/uncle and is inflicted with the crime by

such a trusted person.
11. When murder is committed for a motive

which evidences total depravity and meanness.
12. When there is a cold blooded murder

without provocation.
13. The crime is committed so brutally that it

pricks or shocks not only the judicial

conscience but even the conscience of the

Mitigating Circumstances :
1. The manner and circumstances in and

under which the offence was committed, for

example, extreme mental or emotional

disturbance or extreme provocation in

contradistinction to all these situations in

normal course.
2. The age of the accused is a relevant

consideration but not a determinative factor by

3. The chances of the accused of not

indulging in commission of the crime again

and the probability of the accused being

reformed and rehabilitated.
4. The condition of the accused shows that

he was mentally defective and the defect

impaired his capacity to appreciate the

circumstances of his criminal conduct.



5. The circumstances which, in normal

course of life, would render such a behavior

possible and could have the effect of giving rise

to mental imbalance in that given situation

like persistent harassment or, in fact, leading

to such a peak of human behavior that, in the

facts and circumstances of the case, the

accused believed that he was morally justified

in committing the offence.
6. Where the Court upon proper

appreciation of evidence is of the view that the

crime was not committed in a pre-ordained

manner and that the death resulted in the

course of commission of another crime and

that there was a possibility of it being

construed as consequences to the commission

of the primary crime.
7. Where it is absolutely unsafe to rely upon

the testimony of a sole eye-witness though

prosecution has brought home the guilt of the

While determining the questions

relateable to sentencing policy, the Court has

to follow certain principles and those

principles are the loadstar besides the above

considerations in imposition or otherwise of

the death sentence.
Principles :
1. The Court has to apply the test to

determine, if it was the `rarest of rare’ case for

imposition of a death sentence.
2. In the opinion of the Court, imposition of

any other punishment, i.e., life imprisonment

would be completely inadequate and would not

meet the ends of justice.
3. Life imprisonment is the rule and death

sentence is an exception.
4. The option to impose sentence of

imprisonment for life cannot be cautiously

exercised having regard to the nature and

circumstances of the crime and all relevant

5. The method (planned or otherwise) and

the manner (extent of brutality and

inhumanity, etc.) in which the crime was

committed and the circumstances leading to

commission of such heinous crime.
Stated broadly, these are the accepted

indicators for the exercise of judicial discretion

but it is always preferred not to fetter the

judicial discretion by attempting to make the

excessive enumeration, in one way or another.

In other words, these are the considerations

which may collectively or otherwise weigh in

the mind of the Court, while exercising its

jurisdiction. It is difficult to state, it as an

absolute rule. Every case has to be decided on

its own merits. The judicial pronouncements,

can only state the precepts that may govern

the exercise of judicial discretion to a limited

extent. Justice may be done on the facts of

each case. These are the factors which the

Court may consider in its endeavour to do

complete justice between the parties.
The Court then would draw a balance-

sheet of aggravating and mitigating
circumstances. Both aspects have to be given

their respective weightage. The Court has to

strike a balance between the two and see

towards which side the scale/balance of

justice tilts. The principle of proportion

between the crime and the punishment is the

principle of `just deserts’ that serves as the

foundation of every criminal sentence that is

justifiable. In other words, the `doctrine of

proportionality’ has a valuable application to

the sentencing policy under the Indian

criminal jurisprudence. Thus, the court will

not only have to examine what is just but also

as to what the accused deserves keeping in

view the impact on the society at large.
Every punishment imposed is bound to

have its effect not only on the accused alone,

but also on the society as a whole. Thus, the

Courts should consider retributive and

deterrent aspect of punishment while imposing

the extreme punishment of death.
Wherever, the offence which is

committed, manner in which it is committed,

its attendant circumstances and the motive

and status of the victim, undoubtedly brings

the case within the ambit of `rarest of rare’

cases and the Court finds that the imposition

of life imprisonment would be inflicting of

inadequate punishment, the Court may award

death penalty. Wherever, the case falls in any

of the exceptions to the `rarest of rare’ cases,

the Court may exercise its judicial discretion

while imposing life imprisonment in place of

death sentence.”



24. First and the foremost, this Court has not only to examine


whether the instant case falls under the category of `rarest of rare’


cases but also whether any other sentence, except death penalty,


would be inadequate in the facts and circumstances of the present



25. We have already held the appellant guilty of an offence under


Section 302, IPC for committing the murder of his three children


and the wife. All this happened in the spur of moment, but, of


course, the incident must have continued for a while, during which


period the deceased Aradhna received burn injuries as well as the


fatal injury on the throat. All the three children received injuries


with a knife similar to that of the deceased Aradhna. But one


circumstance which cannot be ignored by this Court is that the


prosecution witnesses have clearly stated that there was a rift


between the couple on account of her talking to Liladhar Tiwari, the


neighbor, PW10. Even if some credence is given to the statement


made by the accused under Section 313 Cr.P.C. wherein he stated


that he had seen the deceased and PW10 in a compromising


position in the house of PW10, it also supports the allegation of the


prosecution that there was rift between the husband and wife on
account of PW10. It is also clearly exhibited in the FIR (P27) that


the accused had forbidden his wife from talking to PW10, which


despite such warning she persisted with and, therefore, he had


committed the murder of her wife along with the children. It will be


useful to refer to the conduct of the accused prior to, at the time of


and subsequent to the commission of the crime. Prior to the


commission of the crime, none of the prosecution witnesses,


including the immediate blood relations of the deceased, made any


complaint about his behaviour or character. On the contrary, it is


admitted that he used to prohibit Aradhna from speaking to PW10


about which she really did not bother. His conduct, either way, at


the time of commission of the crime is unnatural and to some


extent even unexpected. However, subsequent to the commission of


the crime, he was in such a mental state that he wanted to commit


the suicide and even inflicted injuries to his own throat and also


went to the bye-pass road with the intention of committing suicide,


where he was stopped by PW4, Head Constable and taken to the


Police Station wherein he lodged the FIR Exhibit P27. In other


words, he felt great remorse and was sorry for his acts. He


informed the Police correctly about what he had done.


26. Still another mitigating circumstance is that as a result of the


commission of the crime, the appellant himself is the greatest


sufferer. He has lost his children, whom he had brought up for


years and also his wife. Besides that, it was not a planned crime


and also lacked motive. It was a crime which had been committed


out of suspicion and frustration. The circumstances examined


cumulatively would, to some extent, suggest the existence of a


mental imbalance in the accused at the moment of committing the


crime. It cannot be conceived much less accepted by any stretch of


imagination that the accused was justified in committing the crime


as he claims to have believed at that moment.



27. Considering the above aspects, we are of the considered view


that it is not a case which falls in the category of `rarest of rare’


cases where imposition of death sentence is imperative. It is also


not a case where imposing any other sentence would not serve the


ends of justice or would be entirely inadequate.



28. Once we draw the balance-sheet of aggravating and mitigating


circumstances and examine them in the light of the facts and


circumstances of the present case, we have no hesitation in coming


to the conclusion that this is not a case where this Court ought to


impose the extreme penalty of death upon the accused. Therefore,


while partially accepting the appeals only with regard to quantum of


sentence, we commute the death sentence awarded to the accused


to one of life imprisonment (21 years).




[A.K. Patnaik]


[Swatanter Kumar]

New Delhi;

February 28, 2012





About advocatemmmohan



Comments are closed.

Blog Stats

  • 2,884,333 hits



Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: