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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.

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REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.113-114 OF 2010

 
Brajendrasingh … Appellant
Versus
State of Madhya Pradesh … Respondent

 

 

J U D G M E N T

 
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.

 

1
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
2
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

children.”

 
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.

 

3
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

 

4
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
5
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
6
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

 

7
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.

 

8
(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.

 

 

9
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
10
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.

 

 

11
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
12
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

 

present.

 
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

 
13
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

 

14
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

 
15
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

 

16
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;
17
(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

 

18
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,

 

19
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.
20
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 :

 
21
“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

circumstances.
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
22
Machhi Singh (supra), it will be useful to re-

state the stated principles while also bringing

them in consonance, with the recent

judgments.
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
23
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

person.
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

community.

 
24
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

society.
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

itself.
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.

 

 

25
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

accused.
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

 
26
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

circumstances.
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
27
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.”

 

 

28
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

 

case.

 
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
29
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.

 

30
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.

 

 

31
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).

 

 

…………………………….,J.

[A.K. Patnaik]

 
…………………………….,J.

[Swatanter Kumar]

New Delhi;

February 28, 2012

 

 

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