Absar Alam @ Afsar Alam vs State Of Bihar

Absar Alam @ Afsar Alam ...... Appellant

Versus

State of Bihar ...... Respondent

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article

136 of the Constitution of India against the judgment and

order dated 16.07.2009 of the Patna High Court in Death

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

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

Special Leave Petition confined to the question of sentence

only and on 02.08.2010 after hearing learned counsel for

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

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

right in confirming the death sentence of the appellant

imposed by the trial court.

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

been found by the trial court are that in the midnight

of 14/15.02.2007, the appellant killed his mother by

cutting her neck and severing her head and thereafter

fled from the house with the head of his mother leaving

behind her body. The trial court, after convicting the

appellant under Sections 302 and 201 of the Indian

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

committed the murder of his mother in an extremely

brutal, grotesque, diabolical and revolting manner and

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

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

while upholding the conviction, confirmed the death

sentence relying on the decision of this Court in

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

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

Court has inter alia held that the manner of

commission of murder and the personality of the

victim of murder have to be taken into consideration

while making the choice of the sentence to be imposed

for the offence under Section 302, IPC : life

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imprisonment or death sentence. The High Court has

taken a view that considering the abhorrent, dastardly

and diabolical nature of the crime committed by the

appellant on none other than his mother, who had

given birth to him, the penalty of death has been

rightly awarded by the trial court.

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

appellant, relying on the decision of this Court in

Swamy Shraddananda (2) alias Murali Manohar Mishra

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

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

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

death penalty should have been imposed because the

offence had been committed by the appellant in a fit of

passion and not after pre-meditation.

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

submitted that considering the law laid down by this

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

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

SCC 271] and Atbir v. Government of NCT of Delhi 4

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

the appellant for the cruel act of beheading his mother

was proper.

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

appellant on the morning of 15.02.2007 at 09:45

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

Sakerun Nisha had run away to her maternal house

three or four days before the incident and the

appellant had been accusing his mother to have been

the cause of his wife running away from this house

and out of anger and excitement the appellant severed

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

appellant was an illiterate rustic and was a cultivator

residing in a village with virtually no control over his

emotions and has over-reacted impulsively to the

situation and has severed the neck of his mother. On

these facts, the appellant is no doubt guilty of the

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

punishment of imprisonment for life normally awarded

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

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

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

facts were that there was a quarrel between the

accused and other members of his family, namely, his

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

land and in the assaults that followed the quarrel, the

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

law. While upholding the conviction of the accused

under Section 302, IPC, this Court held that the

mental condition of the accused, which led to the

assault, cannot be lost sight of and while such mental

condition of the accused may not be relevant to judge

culpability, it is certainly a factor while considering the

question of sentence. This Court further held that the

factual scenario gave impressions of impulsive act of

the accused and not of planned assaults and in this

peculiar background, death sentence would not be

proper.

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

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

morning hours of 09.04.1996, in the precincts of a

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police camp stationed near a village in Bihar, a

policeman deployed in the police picket to contain the

terrorist activities, unleashed terror by indulging in a

firing spree, killing three of his colleagues

instantaneously and this Court, relying on Shamshul

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

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

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

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

factors that can be taken into account in considering

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

the killing of two other policemen without

premeditation and without any motive whatsoever was

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

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

where death sentence could be awarded.

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

death to one of life imprisonment for the offence under

Section 302, IPC, committed by the appellant and

allow the appeal in part.

7 .............................J.

(A. K. Patnaik)

.............................J.

(Swatanter Kumar)

New Delhi,

February 07, 2012.