Ajitsingh Harnamsingh Gujral vs State Of Maharashtra

State of Maharashtra .. Respondent

J U D G M E N T

MARKANDEY KATJU, J.

"Qareeb hai yaaron roz-e-

mahshar,

Chupega kushton ka khoon

kyonkar,

Jo chup rahegi zubaan-e-

khanjar,

Lahu pukaaregaa aasteen

ka"

- Ameer Minai

2

1. Heard Shri Jaspal Singh, learned senior counsel for the

appellant and learned counsel for the State of Maharashtra for the

respondent. This is an appeal by special leave against the

judgment of the Bombay High Court dated 26.6.2006, which has

confirmed the death sentence of the appellant given by the learned

Sessions Judge dated 19.3.2005.

2. The accused is a businessman. He was a married man having

one son and two daughters. He was married with the deceased

Kanwaljeet Kaur about 25 to 27 years prior to the incident dated

10.4.2003. He had a son Amandeep Singh aged about 20 years

and two daughters viz. Neeti and Taniya, aged about 22 years and

13 years respectively. All of them were allegedly killed by the

accused in the early hours of the morning of 10.4.2003 by pouring

petrol on their persons and setting them on fire.

3. Earlier the accused had lived at Ludhiana. However, it

appears that he suffered business losses there, and so he shifted to

3

Mumbai with his family and started residing in Jyotsna Building.

Initially he was doing business of catering in the same building,

and his son Amandeepsingh was assisting him in that business.

After some time, the accused shifted his catering business to

Kamlesh building which is situated in the same locality of Shere-

Punjab colony, Andheri. There were several employees of the

accused to assist him in the business of catering. Those servants

used to sleep in front of his flat in the verandah. The accused was

having a Maruti Zen Car and his son was having a motorcycle.

4. According to the prosecution, the accused was a hot

tempered man. He was like a dictator in the family, and dominated

his wife and children in the family, on account of which there was

resentment in his family members. Further, it is alleged by the

prosecution that the accused was ill-treating his wife and twice he

had assaulted her with a leather belt.

5. On the night of 9.4.2003 the accused and all his family

members were in their flat. All the servants were sleeping outside.

4 The accused was seen coming to the flat between the night of

9.4.2003 and 10.4.2003 at about midnight. There were two bed

rooms in the flat of the accused. Ordinarily the accused and his

wife used to sleep in one bed room while the children slept in

another. There was a quarrel on the night of 9.4.2003 between the

accused and his wife after he had returned back from work.

Between 4.00 and 4.30 a.m. some of the servants heard a big noise

of something bursting followed by or preceded by someone crying

in pain. The servants woke up and found that the flat of the

accused was on fire. There was utter confusion and chaos.

Somebody phoned to the fire brigade and a fire engine came. The

police also followed. The door of the flat was open, and it was

smoky inside. Strong smell of petrol was coming from there. The

fire was extinguished, and then only could they enter the bed room,

where the four bodies of the members of the family of the accused

viz. his wife, his son and two daughters were found burnt, and they

were dead. The police made an inquiry from the servants and then

a report of murder was lodged by PSI Prakash Shivram Kamble.

5 The investigation soon started and inquest Panchanama, spot

panchanama etc. were made. The bodies were then sent for post

mortem.

6. In their preliminary inquiry, the police found that the Maruti

Zen car of the accused was not there and the accused was also not

there. Attempts were made to trace and search him, and ultimately

the accused was arrested on or near Kishangadh, Madanganj in

Ajmer District in Rajasthan on 14.4.2003. The car which the

accused was driving was seized, and so also an amount of

Rs.7,68,080/- in cash along with about 24 silver coins, 7 safari

dresses and 7 turbans. A police officer was deputed from Mumbai

and the accused was brought to Mumbai.

7. The statement of the accused was recorded under Section 27

of the Evidence Act and a red bucket from which he had allegedly

thrown petrol on the persons of all the four members of his family

was recovered at his instance.

6 8. All the material recovered by the police from the spot viz.

burned clothes, petrol can, bucket, broken glass pieces, etc. were

sent to the Chemical Analyzer.

9. In the inquest, it was found that the son of the accused,

Amandeepsingh had certain injuries on his body. Because of fire,

the glass pieces were shattered in the room and one piece was

removed from one of the injuries on the stomach of the son. An

expert electrician was called, and he inspected the premises and

opined that there was no short circuit. The Air-Conditioner's

compressor was intact. Post mortem of all the bodies was

conducted and it was found that all the four persons died as a result

of burning.

10. During the course of investigation the statements of relatives

of the deceased, neighbours, and the servants of the accused were

recorded. All the seized property was sent to the Chemical

Analyzer for opinion. Thereafter the charge sheet was filed.

Separate charges under Section 302 of the Indian Penal Code was

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framed against the accused for committing murders of his wife

Kanwaljeet Kaur, his son Amandeepsingh and two daughters Neeti

and Taniya. The accused pleaded not guilty to the charges.

Thereafter, the Additional Sessions Judge, recorded the evidence

of the prosecution witnesses. In all 19 witnesses were examined as

the prosecution witnesses. Thereafter the statement of the accused

under Section 313 of the Criminal Procedure Code was recorded.

The accused expressed his desire to examine witnesses in defence

of his plea of alibi and, accordingly four witnesses were examined

by the accused. The Additional Sessions Judge heard the

arguments and also took on record the written arguments submitted

by the advocate for the accused and, ultimately came to the

conclusion that the prosecution had proved its case beyond

reasonable doubt that the accused committed murders of all four

members of his family. So far as sentence was concerned, the

Additional Sessions Judge came to the conclusion, after

considering the cases cited before him by both the sides, that this

was a rarest of the rare case and imposed penalty of death upon the

8

accused.

11. Two question arise before us (a) is the appellant guilty of

murder? (b) if he is, should he be given the death sentence? We

shall deal with these separately.

12. The appellant filed an appeal before the Bombay High Court

and the matter was also sent for confirmation for the death

sentence. By the impugned judgment the High Court dismissed

the appeal and upheld the death sentence, and hence this appeal

before us.

Is the appellant guilty of murder ?

13. Mr. Jaspal Singh, learned counsel for the appellant, first

submitted that the appellant was leading a happy married life for

more than 25 years before the incident and hence he had no motive

to kill his wife and 3 children. He submitted that the prosecution

9

has not been able to prove any motive, and motive is important in

cases of circumstantial evidence like the present one.

14. This is a case relying entirely on circumstantial evidence, as

there are no eye witnesses of the crime. It is true that motive is

important in cases of circumstantial evidence, but that does not

mean that in all cases of circumstantial evidence if the prosecution

has been unable to satisfactorily prove a motive its case must fail.

It all depends on the facts and circumstances of the case. As is

often said, men may lie but circumstances do not.

15. The mother in law of the appellant Smt. Bhagwantkaur

Oberoi, PW5 has stated in her deposition :

........."I was having three daughters Kanwaljeetkaur,

Harjeetkaur and Harvinderkaur. Accused before the

court is my son-in-law. He was married to my daughter

Kanwaljeetkaur 25-26 years before. Accused was

residing along with his wife and children at Sher-e-

Punjab colony, Andheri, Mumbai. Accused came to

Mumbai two years before. The relations between my

daughter and accused were not cordial and their

matrimonial life was unhappy due to very angry nature of

the accused. I used to go to the house of my daughter

and vice-versa occasionally. There was talk between me

and my daughter Kanwaljeetkaur. I used to ask my

10

daughter how she is and how her husband is. At that

time, she used to narrate to me that her husband is of very

angry nature. She was very unhappy in her matrimonial

life. She was subjected to the cruelty by the accused.

She further told me that accused was behaving like a

dictator. Children of my daughter Kanwaljeetkaur also

used to tell me regarding angry nature of accused. My

daughter also told me that accused used to beat her by

leather belt. However, my daughter was behaving with

the accused by way of adaptive nature. Whenever

Kanwaljeetkaur was narrating me regarding ill treatment

and harassment, I used to persuade her. I also told my

daughter Kanwaljeetkaur that she should leave accused

and reside separately along with her children. As I know

the nature of the accused I never dared to persuade him.

On 19th March, 2003, there was birthday ceremony

of my grandson Simarpalsingh. I invited my daughter

Kanwaljeetkaur and her family members telephonically

to attend the function at Mira road at my residence.

Kanwaljeetkaur replied on telephone that she is unable to

attend the function as she is busy with some work. After

sometime my daughter Kanwaljeetkaur again made a

telephone call to me and told that at the time of earlier

telephone her husband was present and he quarreled and

she along with her children were not allowed to attend

the said function. At that time, Kanwaljeetkaur was

crying on the telephone and while crying she told that she

is very unhappy and she may die. I told my other

daughter namely Harjeetkaur to ring Kanwaljeetkaur as

there was quarrel between her and the accused. On that

very day, at about 7 p.m. I received a telephonic call

from Niti and she told that her father agreed and

accordingly, we are attending the function. Accordingly,

Kanwaljeetkaur and accused and both daughters attended

the function. At that time, accused was under the

influence of liquor. While leaving my residence after the

function accused told Kanwaljeetkaur and her daughters

that he will put you all below the running truck to die.

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On 9th April, 2003, at about 11.30 p.m. I received a

telephonic call from the accused from his residence. On

10th April, 2003, at about 6 a.m. I received telephonic call

from Phuldeepsingh Marva-PW3 regarding fire on the

flat of accused. Accordingly, I went to the place of the

incident. When I reached, I did not find the accused

present. When I reached, four dead bodies were already

kept in front of the flat. I became unconscious noticing

the dead bodies. Police recorded my statement."

16. Phuldeepsingh Marva, PW3 also supported the prosecution

case. His wife and the wife of the appellant were real sisters. In

his deposition he has stated :

..........."Before shifting to Mumbai, accused was doing

business at Ludhiana, Punjab in automobile spare parts.

Accused suffered loss in his business at Ludhiana and

that is why he shifted to Mumbai. We were having

cordial relations and we family members used to visit his

house and vice-versa. The relations between accused and

his entire family members were tense. Accused used to

behave with his family members as a dictator. He was

not having cordial relations with his family members.

Son and daughters of the accused did not like the

dictatorship of accused and that is why there were always

quarrels between accused and his family. Accused used

to tell me also that 75% decisions would be mine in my

house. I persuaded the accused several times to change

his nature. However, the accused never changed his

nature and he was not ready to reduce his dictatorship.

There was also telephone in the house of accused.

On 10th April, 2003, I was at my residence. I received a

telephonic call from the landlord and estate agent of the

accused at about 5.30 to 5.45 a.m. that there is a fire in

the flat of the accused. I along with my wife rushed to

12

the place of incident in my car. At about 6.30 a.m. I

reached the place of incident. When I reached I saw fire

brigade vehicles, police staff, fire brigade staff and four

dead bodies which were kept in front of the flat. I saw all

those four dead bodies. I identified four dead bodies i.e.

of Kanwaljeetkaur, Amandeepsingh, Niti and Taniya. I

noticed that accused along with his car was not present.

Accused used to park his Zen car in front of the flat near

the gate. I saw four dead bodies who sustained burn

injuries on their person. I saw the bangles in the wrist of

Kanwaljeetkaur. I also saw a piece of glass in the body

of Amandeepsingh near wrist. Article 1 - pair of bangles

before the court was in the hands of Kanwaljeetkaur.

Police recorded my statement."

17. We see no reason to disbelieve PW3 or PW5. From their

testimony it is evident that the appellant was a dictatorial

personality, who wanted to dominate over his family and was also

hot tempered. He would even beat his wife (deceased) with a

leather belt.

18. Mr. Jaspal Singh, learned counsel for the appellant, submitted

that if the relations between the accused and his wife were strained

why did his wife Kanwaljeetkaur continue to live with him for 25

years. In this connection, we have only to point out that in India

many women accept the bad treatment of their husbands and

13

continue living with them because a girl at the time of marriage is

told by her parents that after marriage her place is with her

husband and she has to accept whatever treatment she gets from

her husband and in- laws. She has to `nibhao' all treatment after

marriage. Hence she continues living with him even if her

husband is a brutish, nasty and loathsome person. However, it is

evident that when the children of the accused grew up they often

resisted and protested against the dictatorial behaviour of the

appellant, and this led to a lot of friction in the family. Hence we

are of the opinion that the appellant did not have a happy married

life with his wife, rather it was just the reverse.

19. As to what motivated the appellant to commit this gruesome

and ghastly act is impossible for us to say because the Court cannot

enter into the mind of a human being and find out his motive. We

can only speculate.

20. This is a case of circumstantial evidence and in cases of

circumstantial evidence the settled law is that the prosecution must

14

establish the entire chain of circumstances which connects the

accused to the crime vide Wakkar and Anr. vs. State of Uttar

Pradesh 2011(3) SCC 306 = JT 2011(2) SC 502, Krishnan vs.

State represented by Inspector of police 2008(15)SCC 430=JT

2008(6) SC 282, Sharad Birdhichand Sarda vs. State of

Maharashtra AIR 1984 SC 1622, Mohd. Mannan alias Abdul

Mannan vs. State of Bihar 2011(5) SCC 317 (vide para 14), etc.

21. We have, therefore, to see whether the prosecution has been

able to establish the chain of circumstances connecting the accused

to the crime.

22. The accused was last seen with the deceased. It has come in

the evidence of Vinodkumar Gudri Mandal, PW16 that he was

working with the accused at Sher-E-Punjab caterers. This witness

along with some servants used to sleep near the bedroom of the flat

of the accused in the veranda. He has stated that at about midnight

when he was in the veranda in front of the flat of the accused he

15

heard loud sound of quarrels from the flat of the accused. He

identified the sounds as the voice of the accused and his wife.

23. This witness has stated that he was on talking terms with the

family members of the accused. Since he was known to the

accused and his family members he could obviously recognize

their voices. Hence we see no reason to disbelieve his evidence

that at about midnight of 9.4.2003 there was a quarrel between the

appellant and his wife. No reason has been ascribed by the

defence counsel as to why this witness should make a false

statement.

24. This witness has also stated that on 10.4.2003 at 4.30 a.m. he

heard a big sound in the building. He and the other servants saw

fire in the flat of the accused. They tried to extinguish the fire with

the help of water and sand but were unsuccessful. One member of

the society informed the fire brigade telephonically and the fire

brigade came and extinguished the fire. This witness identified the

4 dead bodies inside the flat of the accused. He also noticed that

16

the Zen car was not at its parking place and the accused was also

not present.

25. This witness has also stated in his evidence that one month

before the incident when he returned to the building where the

incident took place he went inside the flat of the accused and

inadvertently opened a white color plastic can and he noticed

petrol in the said can. The witness identified the said can before

the court.

26. We see no reason to disbelieve this witness Vinodkumar

Gudri Mandal. No enmity has been shown between him and the

accused and no motive shown why he should give a false statement

against the accused.

27. PW4, Kamalsingh Mahipatsingh Rawat was working as a

cook in the hotel cum catering of the appellant. He has stated in

his evidence that after his duty ended at 11.30 p.m. he used to sleep

in front of the flat of the accused in Jyotsna building where the

17

accused was residing with his wife and children. He said that he

knows all the family members of the accused.

28. In his evidence he has stated that at about 11.30 to 11.45 p.m.

he left the hotel and went towards the Jyotsna building where he

sleeps in front of the flat of the accused. He has further stated that

about half an hour thereafter the accused also returned to his

residence. At about 4.00 to 4.30 a.m. he heard a noise of bursting

of something and smoke was coming out from the flat which was

on fire. He also heard the sound of crying from the said flat. He

could not enter the flat as it was too smoky. Thereafter the fire

brigade came and extinguished the fire. He entered the flat and

saw the dead bodies of the deceased. The accused was not found

there, nor his Maruti car. The witness had seen the Maruti car

parked in front of the flat when he went to sleep but it was not

found in the morning.

29. The evidences of PW3, PW4 and PW 5, which we see no

reason to disbelieve, thus fully establish that the appellant was last

18

seen with his wife at about midnight and was in fact quarreling

with her at that time.

30. The incident happened at 4 or 4.30 a.m. and hence there was

a time gap of only about 4 hours from the time when the appellant

was seen with his wife (deceased) and the time of the incident.

Thus he was last seen with his wife and there was only a short

interval between this and the fire.

31. The last seen theory comes into play where the time gap

between the point of time when the accused and deceased were last

seen alive and when the deceased is found dead is so small that the

possibility of any person other than the accused being the author of

the crime becomes impossible, vide Mohd. Azad alias Samin vs.

State of West Bengal 2008(15) SCC 449 = JT 2008(11) SC658

and State through Central Bureau of Investigation vs.

Mahender Singh Dahiya 2011(3) SCC 109 = JT 2011(1) SC 545,

S.K. Yusuf vs. State of West Bengal, J.T. 2011 (6) SC 640 (para

14).

19 32. In our opinion, since the accused was last seen with his wife

and the fire broke out about 4 hours thereafter it was for him to

properly explain how this incident happened, which he has not

done. Hence this is one of the strong links in the chain connecting

the accused with the crime.

33. The victims died in the house of the accused, and he was

there according to the testimony of the above witnesses. The

incident took place at a time when there was no outsider or

stranger who would have ordinarily entered the house of the

accused without resistance and moreover it was most natural for

the accused to be present in his own house during the night.

34. Another link in the chain of circumstances connecting the

accused with the crime is his sudden disappearance from the scene

after the incident. The version of the accused is that he left the

scene as he had received a message that his sister in Delhi who was

20

suffering from cancer had become critical, and hence he rushed

from Mumbai to be with her. We are not at all convinced with the

story. When a person living in Mumbai receives a message that

his relative is critical in Delhi, he would have ordinarily take a

flight from Mumbai to Delhi, and would not go by car, which

journey would take several days. A flight from Mumbai to Delhi

takes two hours. There was no shortage of money with the

appellant as he was found with cash of Rs.7,68,080/-.

35. Leaned counsel for the appellant submitted that the appellant

first went by car to the Dargah in Ajmer to pray for his sister. We

cannot accept this version. When a relative in Delhi is critical, a

person in Mumbai would have rushed to Delhi by flight to see her

and would have gone to a Dargah only subsequently. Under

Section 114 of Evidence Act we have to presume the natural

conduct of persons. Section 114 states :

"The Court may presume the existence of any fact which

it thinks likely to have happened, regard being had to the

common course of events, human conduct, and public

and private business"

21

36. We agree with the High Court which has observed in the

impugned judgment :

........."We are not at all in agreement with the

submissions made by the advocate for the accused in this

regard. There are many reasons for this. The first reason

is that there is nothing on record to show that a day or

two before the accused left Mumbai on 10th April, 2003,

the accused had received any urgent message from the

wife of D.W.3 that his presence was imminently and

immediately required at Delhi and her condition was

critical or that the accused received SOS, that he should

immediately rush to Delhi. Secondly, if the accused had

earlier planned to go to Delhi in such a case of urgency

and exigency, ordinarily he should have and could have

traveled by flight or train and would not have driven to

Delhi by his car. Thirdly, looking to the age of accused,

who was around 50 to 52 years at that time, ordinarily the

accused would not have gone alone on such a long

journey. He had a number of servants at his disposal, at

least 7 were sleeping in front of his flat in the veranda at

that very night, he could have taken one of them as

assistant on the road. Fourthly, there was no reason for

the accused not to have taken a driver for such a long

journey. Fifthly, there is no one examined from the hotel

to whom the accused had disclosed that he would not be

available for looking after the business for at least a

couple of weeks or one week. The fact that the accused

had with him 7 safari dresses and 7 turbans when he was

arrested, clearly shows that the accused had an intention

to stay for quite a long time away from his house and

away from his business. There is nothing on record to

show that prior to this incident the accused was not on

talking terms or visiting terms with his mother in law.

Not a single suggestion was give to this witness by the

22

accused that they were informed by the accused that he is

going to Delhi to see his sister or wife of D.W.3. Next

impossibility in the theory of alibi is that there is no

earthly reason for the accused to leave his house at odd

time of 2.00 a.m. He could have traveled either before

mid night or he could have traveled after sunrise. Further

there is no explanation from the accused as to why he

was carrying such a huge amount of Rs.7,68,080/- and 24

silver coins."

37. We, therefore, agree with the High Court that the plea of alibi

was totally false and bogus.

38. It is difficult for us to speculate as to why the accused fled

from the scene of the crime carrying cash of Rs.7,68.080/- apart

from 7 safari suits and that too without a driver or an assistant, all

of whom were easily available to him. It is quite possible that after

having committed this horrible crime the accused may have

himself realized the gravity of his crime and in this shocked state

fled from the scene. However, this is only a speculation and

nothing turns on it.

39. It has then been argued that ordinarily the accused and his

wife used to sleep in one bedroom, while the 3 children used to

23

sleep in the other bedroom. However, all 4 victims were found

burnt in the children's bedroom. This has been explained by the

prosecution by pointing that in the night of 9.4.2003 when the

accused came from his hotel he had a heated quarrel with his wife

and due to this quarrel the wife decided to sleep with the children

and not with the accused. This version seems quite probable, and

the defence cannot make much out of the fact that all 4 bodies

were found in one bedroom.

40. When the police party carried out panchanama of the house

of the accused, that is, after the fire was fully extinguished and

when the FIR was lodged by PW1, PSI Prakash Kamble, he

found, as stated by him, that in the bedroom to the northern side of

the hall on the bed i.e. on the mattress of the bed a 10 litre white

plastic can was seen and it had some petrol in it. It was also found

and noticed that the can was new. It is a fact that all the four

inmates were burned to death by using petrol. Therefore, the

finding of the 10 litre can with some petrol in its clearly shows that

24

petrol, sufficient in quantity to burn and kill all the four persons,

was brought by the accused.

41. In addition to this, the prosecution has also tendered one

more piece of evidence which is in the form of recovery at the

instance of the accused under Section 27 of the Evidence Act. In

this regard, the prosecution has examined PW14 Nilesh Kamalakar

Aarate the panch witness and proved Exhibit 50 and 50-A. Exhibit

50 is the statement of the accused under Section 27 of the Evidence

Act and Exhibit 50-A is recovery panchanama. In his evidence

PW14 has stated that on 14th April, 2003 he was called by

Meghwadi Police as the accused made a voluntary statement that

he will point out the bucket in which he took petrol from the

plastic can. This statement was recorded and thereafter the

accused led the police party to his flat. The seal of the flat was

removed and from the bath room of the said flat the accused

pointed out the red bucket. Discovery panchanama was Exhibit

50-A and red bucket was Article 14.

25 42. This red bucket was sent to a Chemical Analyzer. The report

of the C.A. (Exhibit 67) is that the bucket showed positive result

regarding detection of petrol. This means that this bucket was used

for pouring petrol on all the four victims.

43. Regarding this piece of evidence, the learned counsel for the

appellant contended that this was a fabrication by the police.

Learned counsel contended that if on 10th April, 2003 a detailed

search of the house of the accused for finding out incriminating

articles was made and if a detailed panchanama was prepared and a

number of articles were seized, then how was it that the police

could not find out this bucket on 10th April, 2003 itself and why

they waited for recovery for this bucket till the accused was

arrested and brought to Mumbai and made discovery statement on

14th April, 2003.

44. We are not at all convinced by this submission. It is true that

on 10th April, 2003 the flat of the accused was searched, but it is

quite natural that the investigating officer did not understand the

26

significance of this bucket even if it was seen on that day. They

could not visualize or imagine the use of the bucket for splashing

or spreading the petrol on the four victims. They came to know

about it only after the accused made the disclosure statement, and

then they recovered this bucket. The investigating office,

regarding other aspects of the matter appears to be truthful and

sincere. There is no reason to suspect the bona fide of the

investigating officer, and therefore there is nothing on record from

which it can be inferred that this bucket was planted by the police

to strengthen the case against the accused.

45. Learned counsel for the appellant submitted that the appellant

was making phone calls to his mother-in-law after leaving his flat

in Mumbai on 10.4.2003. In our opinion nothing turns on that. It

has come in evidence that Amandeep Singh, son of the accused,

was looking after the business, and if the accused was going away

for 3 to 4 days it was natural for him to expect calls from, and

27

make calls to, his son Amandeep Singh and his wife and other

relatives, but that was not done.

46. The learned counsel for the appellant then submitted that as

per the prosecution case, all the four victims were in one bed room.

Two bodies were found on the bed and two were lying on the

ground. The learned counsel contended that if all four victims

were sleeping on one bed then how were two bodies found on the

ground. He also argued that if petrol was splashed on the persons

of four victims then why did none of them wake up before the

accused set them to fire. In our opinion, the presence of the 10

litre can and using the bucket clearly show that petrol in large

quantity was used. Use of the bucket further fortifies the

prosecution case because if the petrol was sprinkled from a can it

would have taken time to cover all the bodies of four persons, the

bed and the surroundings. But use of the bucket clearly shows that

splashing of petrol could be achieved within a second and that

profuse splashing of petrol could be achieved by using the bucket

28

and then setting the petrol on fire would not even require five

seconds. Petrol is a very combustible material. It might be that

before the actual death occurred two persons rolled down from the

bed and fell on the ground. All this is speculation on which

nothing turns. Since there were no eye witnesses, and since

presence of the accused a few hours before the crime is proved, it

was for the accused to explain all this.

47. Mr. Jaspal Singh submitted that several of the circumstances

were not put to the accused under Section 313 Cr.P.C. It is true

that circumstances which were not put to the accused in his

examination under Section 313 cannot be used against him, vide

State of U.P. vs. Mohd. Ikram, J.T. 2011 (6) SC 650 (para 13).

However, we have carefully examined the statements of the

accused under Section 313 Cr.P.C., and we find that as many as

168 questions were put to him relating to all the relevant

circumstances. Hence there is no merit in this submission.

29 48. Mr. Jaspal Singh then submitted that the incised wounds on

the son of the appellant, Amandeep, have not been explained by

the prosecution. In this connection we wish to say that since there

were no eye witnesses and the entire prosecution case rests on

circumstantial evidence it is hardly for the prosecution to explain

these injuries, rather it was for the appellant, who was present at

the time of the incident (as we have found) to explain them.

Moreover, the question of explaining the injuries ordinarily arises

when the injuries are on an accused, and not on the victim. At any

event, the prosecution has explained that these were due to the

broken glass pieces found on the spot.

49. Thus, in our opinion the prosecution has been able to

establish the entire chain of circumstances which connect the

accused to the crime. These are :

1. There were strained relations between the accused

and his family members including his wife. He

used to beat his wife with a leather belt, and was

dictatorial, which attitude was resented by the

family members.

30

2. The accused came to his flat on 9th April, 2003 at

midnight, and was last seen with his wife in his

flat where his children also lived.

3. The accused had quarrel with his wife for five or

ten minutes on the night of the incident.

4. Ten litre can with petrol residue was found in the

house.

5. The bucket showing positive result in the test

conducted by the Chemical Analyzer was found to

have been used for splashing or throwing the

petrol.

6. The incident happened in the flat of the accused

where there was no one else inside except his

family members. All the deceased were asleep

when the petrol was poured over them and their

bodies set on fire. They were killed in a most

gruesome, diabolical and cruel manner.

7. It was a pre-planned murder, because the accused

had brought sufficient petrol into his flat to kill

everyone. Ordinarily no one keeps so much petrol

in his residential apartment.

8. The accused absconded from the scene of the

offence immediately thereafter, and did not

disclose to his family members or servants about

his departure.

9. The incident occurred between 4 to 4.30 A.M.,

and the accused was the person last seen with his

wife before the incident.

31

10. The accused pointed out the bucket in his

statement under Section 27 of the Evidence Act;

11. The accused was arrested at Kisangadh,

Madanganj in Ajmer District (Rajasthan) four

days thereafter with huge cash of Rs.7,60,080/-,

with safari dresses, turbans and 24 silver coins

etc..

12. He raised false defence of alibi

13. There was full opportunity for the accused to kill

all the four persons. No one else was present in

the flat.

Does the Appellant deserves the death sentence ?

Death Penalties Worldwide

50. There is a wide divergence in various countries in the world

whether to permit or not permit the death penalty. According to

Amnesty International as per 31.12.2010, 96 countries have legally

abolished the death penalty, 34 countries have not used it for a

considerable period of time while 58 countries have still retained

it. Most European countries have abolished the death penalty .

The United Kingdom abolished death penalty in 1973, France in

1981, Germany in 1949, Italy in 1947 etc. Canada abolished it in

1976. Russia legally permits death penalty, but has not used it

after 1996. Australia last used the death penalty in 1967, and

32

formally abolished it in 2010. China has death penalty for a

variety of crimes, e.g. aggravated murder, drug trafficking, large

scale corruption etc. China executes more people than all the rest

of the world put together. In African and Latin American countries

some permit death penalty while others do not. Most Asian and

Arab countries permit death penalty. As regards the United States

of America, some States permit it while others do not. The US

Supreme Court in Furman vs. Georgia 408 US 238 (1972) held

the death penalty to be unconstitutional, but this decision was

reversed four years later in Gregg vs. Georgia 428 US 153 (1976)

which held that the death penalty is not unconstitutional.

51. The UN General Assembly in 2007-08 passed a non binding

resolution calling for a global moratorium of execution with a view

to eventual abolition. However, 65% of the world population live

in countries like China, India, Indonesia and the US which

continue to apply death penalty, although both India and Indonesia

only use it rarely. Each of these four nations voted against the UN

General Assembly resolution. Of the 194 independent States in

the world that are members of the United Nations or have UN

observer status, 42(22%) maintain the death penalty both in law

and practice, 95 (49%) have abolished it, 8(4%) retain it for crimes

committed in exceptional circumstances such as in time of war and

49(25%) permit its use for ordinary crimes, but have not used it for

33

at least 10 years and have a policy or established practice of not

carrying out an execution or it is under a moratorium.

52. In the present case, we are not going into the validity or

otherwise of various theories of criminal penology viz., the

retributive, deterrent, preventive and reformative theories. Suffice

it to say that there are conflicting views and even conflicting data

on this topic (see `Theories of Punishment' edited by Stanley E.

Grupp, `Punishment' by Ted Honderich, `Punishment' by Philip

Bean, `The Death Penalty' edited by Irwin Isenberg, `The Penalty

of Death' by Thorsten Sellen, `The Death Penalty' by Roger Hood,

etc.). We shall, therefore, confine ourselves to the case before us.

Death Penalty in India

53. Section 302 provides the punishment for murder. It

stipulates a punishment of death or imprisonment for life and fine.

Once an offender is found by the court to be guilty of the offence

of murder under Section 302, then it has to sentence the offender to

either death or for imprisonment for life. The court has no power

to impose any lesser sentence.

34 54. If there is a reasonable doubt about the guilt of the offender,

the only proper verdict is to acquit him and not to impose a

sentence lesser than imprisonment for life vide Santosh vs. State

of MP AIR 1975 SC 654.

55. The Law Commission of India in its 35th Report, after

carefully sifting all the materials collected by them, recorded their

views regarding the deterrent effect of capital punishment as

follows:

"In our view capital punishment does act as a deterrent. We have

already discussed in detail several aspects of this topic. We state

below, very briefly, the main points that have weighed with us in

arriving at the conclusion:

(a) Basically, every human being dreads death.

(b) Death, as a penalty, stands on a totally different level

from imprisonment for life or any other punishment.

The difference is one of quality, and not merely of

degree.

(c) Those who are specifically qualified to express an

opinion on the subject, including particularly the

majority of the replies received from State

Governments, Judges, Members of Parliament and

Legislatures and Members of the Bar and police

35

officers - are definitely of the view that the deterrent

object of capital punishment is achieved in a fair

measure in India.

(d) As to conduct of prisoners released from jail (after

undergoing imprisonment for life), it would be

difficult to come to a conclusion, without studies

extending over a long period of years.

(e) Whether any other punishment can possess all the

advantages of capital punishment is a matter of doubt.

(f) Statistics of other countries are inconclusive on the

subject. If they are not regarded as proving the

deterrent effect, neither can they be regarded as

conclusively disproving it".

56. Prior to 1955, under the old Criminal Procedure Code 1898,

Section 367 (5) of the Code stipulated that the Court had to give

reasons, if the sentence of death was not imposed in a case of

murder. In other words, imposition of death sentence for the

offence of murder was the rule, and if the court desired to make a

departure from the rule and impose the lesser punishment of

imprisonment for life, it was required to give reasons for the same.

In 1955, sub- Section 5 of Section 367 was deleted. The result of

such deletion was that the discretion available to the Court in the

matter of the sentence to be imposed in a case of murder was

36

widened. Several High Courts also interpreted the consequence of

the deletion to mean that the sentence of life imprisonment was the

normal sentence for murder and the sentence of death could be

imposed only if there were aggravating circumstances. The Code

of the Criminal Procedure was further amended in 1973, making

life imprisonment the normal rule. Section 354 (3) of the new

Code provides:

"When the conviction is for an offence punishable with

death or, in the alternative, imprisonment for life or

imprisonment for a term of years, the judgment shall

state reasons for the sentence awarded and, in the case

of sentence of death, the special reasons for such

sentence".

57. Thus in the new Code, the discretion of the judge to impose

death sentence has been narrowed, for the court has now to provide

special reasons for imposing a sentence of death. It has now made

imprisonment for life the rule and death sentence an exception, in

the matter of awarding punishment for murder.

58. In Bachan Singh vs State of Punjab, AIR 1980 SC 898, a

Constitution Bench (5 Judge Bench) of this Court, while upholding

37

the constitutional validity of death sentence observed (vide para

207):

" For persons convicted of murder life imprisonment is

the rule and death sentence an exception. A real and

abiding concern for the dignity of human life postulates

resistance to taking a life through law's instrumentality.

That ought not to be done save in the rarest of rare cases

when the alternative option is unquestionably

foreclosed".

59. After Bachan Singh's case (supra) this Court again

considered the question as to when death sentence should be

imposed in Machhi Singh and others vs State of Punjab AIR

1983 SC 957 (a 3 Judge Bench decision). In that case the accused

had methodically in a pre planned manner murdered seventeen

persons of a village including men, women and children. The

accused were awarded death sentences but the Court held that in

order to apply the guidelines of Bachan Singh's case (supra) inter-

alia the following questions should be asked: (a) Is there something

uncommon about the crime which renders sentence of

imprisonment for life inadequate and called for a death sentence?

(b) Are the circumstances of the crime such that there is no

alternative but to impose death sentence even after according

maximum weightage to the mitigating circumstances which speak

38

in favour of the offender. The Court held that if the answer to the

above is in affirmative, then death sentence is warranted.

60. In Macchi Singh's case (supra) this Court further observed:

"The reasons why the community as a whole does not

endorse the humanistic approach reflected in `death

sentence-in-no- case' doctrine are not far to seek. In the

first place, the very humanistic edifice is constructed on

the foundation of `reverence for life' principle. When a

member of the community violates this very principle by

killing another member, the society may not feel itself

bound by the shackles of this doctrine. Secondly, it has to

be realized that every member of the community is able

to live with safety without his or her own life being

endangered because of the protective arm of the

community and on account of the rule of law endorsed by

it. The very existence of the rule of law and the fear of

being brought to book operates as a deterrent to those

who have no scruples in killing others it if suits their

ends. Every member of the community owes a debt to the

community for this protection. When ingratitude is

shown instead of gratitude by killing a member of the

community which protects the murderer himself from

being killed, or when the community feels that for the

sake of self- preservation the killer has to be killed, the

community may well withdraw the protection by

sanctioning the death penalty. But the community will

not do so in every case. It may do so (in rarest of rare

cases) when its collective conscience is so shocked that it

will expect the holders of the judicial power centre to

inflict death penalty irrespective of their personal opinion

as regards desirability or otherwise of retaining death

penalty. The community may entertain such a sentiment

when the crime is viewed from the platform of the

motive for, or the manner of commission, of the crime, or

39

the anti-social or abhorrent nature of the crime, such as

for instance:

I. Manner of Commission of Murder

When the murder is committed in an extremely brutal,

grotesque, diabolical, revolting or dastardly manner so as

to arouse intense and extreme indignation of the

community. For instance,

(i) when the house of the victim is set aflame with the

end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of

torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his

body is dismembered in a fiendish manner.

II. Motive for commission of murder

When the murder is committed for a motive which

evinces total depravity and meanness. For instance when

(a) a hired assassin commits murder for the sake of

money or reward (b) a cold-blooded murder is committed

with a deliberate design in order to inherit property or to

gain control over property of a ward or a person under

the control of the murderer or vis-`-vis whom the

murderer is in a dominating position or in a position of

trust, or (c) a murder is committed in the course of

betrayal of the motherland.

III. Anti Social or Socially abhorrent nature of the crime

(a) When murder of a member of a Scheduled Caste or

minority community etc., is committed not for personal

reasons but in circumstances which arouse social wrath.

For instance when such a crime is committed in order to

terrorize such persons and frighten them into fleeing

from a place or in order to deprive them of, or make them

surrender lands or benefits conferred on them with a view

to reverse past injustices and in order to restore the social

40

balance. (b) In cases of 'bride burning' and what are

known as 'dowry deaths' or when murder is committed in

order to remarry for the sake of extracting dowry once

again or to marry another woman on account of

infatuation.

IV. Magnitude of Crime

When the crime is enormous in proportion. For instance

when multiple murders say of all or almost all the

members of a family or a large number of persons of a

particular caste, community, or locality, are committed.

V. Personality of victim of murder

When the victim of murder is (a) an innocent child who

could not have or has not provided even an excuse, much

less a provocation, for murder (b) a helpless woman or a

person rendered helpless by old age or infirmity (c) when

the victim is a person vis-`- vis whom the murderer is in

a position of domination or trust (d) when the victim is a

public figure generally loved and respected by the

community for the services rendered by him and the

murder is committed for political or similar reasons other

than personal reasons."

61. In Macchi Singh's case (supra) this Court further observed

that in determining the culpability of an accused and the final

decision as to the nature of sentence, a balance sheet of the

aggravating and mitigating circumstances vis-a-vis the accused had

to be drawn up and in doing so the mitigating circumstances had to

be given full weight so that all factors were considered before the

option is exercised.

41 Some decisions where death penalty has been affirmed

by this Court

62. We may now consider some decisions where death penalty

has been given by the court holding the crimes to belong to the

`rarest of the rare cases'.

63. In Sunder Singh vs. State of Uttaranchal, (2010) 10 SCC

611 the accused had gone to the place of occurrence well prepared

carrying jerry cans containing petrol, sword, pistol with two

bullets, which showed his pre-meditation and cold blooded mind.

In the incident five persons lost their lives while the sole surviving

lady survived with 70% burn injuries. The murder was committed

in a cruel, grotesque and diabolical manner, and closing of the door

of the house was the most foul act by which the accused actually

intended to burn all the persons inside the room and precisely that

happened. There were no mitigating circumstances, and hence it

was one of the rarest of rare cases. Consequently, the death

sentence was justified.

42 64. In C. Muniappan vs. State of T. N., (2010) 9 SCC 567 three

members of an unlawful assembly engaged in road blocking (in a

public demonstration against a court verdict), committed planned

murder by burning a bus carrying helpless, innocent, unarmed, girl

students in a totally unprovoked situation. Three girls died and 20

got burn injuries in the incident. This Court held that it was one of

the rarest of rare cases, one where the accused would be a menace

and threat to the harmonious and peaceful co-existence of the

society. The accused deliberately indulged in a planned crime

without any provocation and meticulously executed it, and hence

the death sentence was the most appropriate punishment. There

being aggravating circumstances and no mitigating circumstance

death sentence imposed on the three members of the unlawful

assembly was upheld.

65. In M. A. Antony vs. State of Kerala, (2009) 6 SCC 220 all

six members of a family were murdered at their residence at night.

The motive was money, and the absence of the accused from his

43

own residence during the corresponding periods i.e on the night of

the occurrence till next morning, and recovery of clothes under

Section 27 of Evidence Act 1872, finger prints on the door steps of

the house matching with those of accused, and recovery of scalp

hair of accused from place of occurrence were damning

circumstantial evidence. Having regard to the chain of

circumstances the death sentence was upheld.

66. In Jagdish vs. State of M. P., (2009) 9 SCC 495 the

assailant murdered his wife and five children (aged 1 to 16 years)

in his own house. The murders wee particularly horrifying as the

assailant was in a dominant position and a position of trust as the

head of the family. The assailant betraying the trust and abusing

his position assailant murdered his wife and minor children

(youngest being the only son just 1 year old ). This Court held that

the balance sheet of aggravating and mitigating circumstances was

heavily weighted against the assailant making it a rarest of rare

case. Consequently the award of death sentence was just.

44 67. In Prajeet Kumar Singh vs. State of Bihar, (2008) 4 SCC

434 the accused was a paying guest for a continuous period of four

years in lieu of a sum of Rs. 500/- for food and meals. He brutally

executed three innocent defenseless children aged 8, 15 and 16,

attempted to murder the father (informant) and mother who

survived the attack with multiple injuries. There was no

provocation or reason for committing this ghastly act at a time

when the children were sleeping. There were several incised

wounds (muscle deep or bone deep) caused to the deceased.

Considering the brutality, diabolic, inhuman nature and enormity

of the crime (multiple murders and attacks), this Court held that the

mindset of the accused could not be said to be amenable to any

reformation. Therefore it came under the rarest of rare category

where not awarding a death sentence would have resulted in failure

of justice.

68. In Ram Singh vs. Sonia, (2007) 3 SCC 1 the wife in

collusion with her husband murdered not only her step brother and

45

his whole family including three tiny tots of 45 days, 2 and = years

4 years, but also her own father, mother and sister so as to deprive

her father from giving property to her step brother and his family.

The murders were committed in a cruel, pre-planned and diabolic

manner while the victims were sleeping, without any provocation

from the victim's side. It was held that the accused persons did not

possess any basic humanity and completely lacked the psyche or

mindset amenable to any reformation. It was a revolting and

dastardly act, and hence the case fell within the category or rarest

of rare cases and thus death sentence was justified.

69. In State of U.P. vs. Satish (2005) 3 SCC 114 the victim

was a six year old girl who lost her life on account of the bestial

acts of the respondent who raped and murdered her. The body was

found in a sugarcane field and blood was oozing from her private

parts and there were marks of pressing on her neck (suggesting

death by strangulation). It was held that this diabolic, iniquitous,

flagitious act reached the lowest level of humanity when the rape

46

was followed by brutal murder. Hence death sentence was

justified.

70. In Holiram Bordoli vs. State of Assam (2005) 3 SCC 793

the accused persons were armed with lathis, and various other

weapons. They came to the house of the victim and started pelting

stones on the bamboo wall of the said house. Thereafter, they

closed the house from the outside and set the house on fire. When

the son, daughter and the wife of the victim somehow managed to

come out of the house, the accused persons caught hold of them

and threw them into the fire again. Thereafter the elder brother

who was staying in another house at some distance from the house

of the victim was caught and dragged to the courtyard of the

accused where the accused cut him into pieces. It was held that

there was absence of any strong motive and the victims did not

provoke or contribute to the incident. The accused was the leader

of the gang, and the offence was committed in the most barbaric

manner to deter others from challenging the supremacy of the

47

accused in the village. Held, that no mitigating circumstances to

refrain from imposing death penalty were found.

71. In Saibanna vs. State of Karnatka (2005) 4 SCC 165 the

accused was out on parole in the case of murder of his first wife, in

which he was already convicted and sentence to life imprisonment.

He pre-planned the murder of his second wife and daughter (aged

1 to 1 = years) when the victims were sleeping by using a hunting

knife (jambia) which is not ordinarily available in a house. There

were no justified reasons for any extenuating circumstances in

favour of the accused. Putting the case under the `rarest of rare

case' category death sentence was upheld.

72. In Karan Singh vs. State of U.P. (2005) 6 SCC 342 the two

appellants chased the deceased persons and butchered them with

axes and other weapons in a very dastardly manner. After killing

three adults, the appellants entered their house and killed two

children who in no way were involved with the alleged property

dispute with the appellants. It was held that the sole intention here

48

was to exterminate the entire family. Thus, it was a `rarest of the

rare' case.

73. In Gurmeet Singh vs. State of U.P. (2005) 12 SCC 107,

appellant G, along with his friend L killed thirteen members of his

family including small kids for a flimsy reason (objection of family

of G to the visits and stay of L at their house) while they were

asleep. Award of death sentence was held proper.

74. In Sushil Murmu vs. State of Jharkhand (2004) 2 SCC

338, the accused sacrificed a child of another person before

Goddess Kali in a most brutal and diabolic manner for personal

gain and to promote his fortunes by appeasing the deity with blood.

It was held that superstition can not and does not provide

justification for any killing, much less a planned and deliberate

one.

75. In State of Rajasthan vs. Kheraj Ram (2003) 8 SCC 224,

the accused deliberately planned and executed his two innocent

49

children, wife and brother-in-law when they were sleeping at night.

There was no remorse for such a gruesome act which was

indicated by the calmness with which he was smoking "chilam"

after the commission of the act. As it was pre-planned and after

the entire chain of events and circumstances were comprehended,

the inevitable conclusion, was that the accused acted in a most

cruel and inhuman manner and the murder was committed in an

extremely brutal, grotesque, diabolical, revolting and dastardly

manner.

76. In Om Prakash vs. State of Uttaranchal (2003) 1 SCC 648

the accused, a domestic servant killed three innocent members and

attempted to kill the fourth member of the family of his employer

in order to take revenge for the decision to dispense with his

service and to commit robbery. The death sentence was upheld.

77. In Gurdev Singh vs. State of Punjab, AIR 2003 SC 4187,

the appellants, having known that on the next day a marriage was

to take place in the house of the complainant and there would be

50

lots of relatives present in her house, came there on the evening

when a feast was going on and started firing on the innocent

persons. Thirteen persons were killed on the spot and eight others

were seriously injured. The appellants thereafter went to another

place and killed the father and brother of PW 15. Out of the

thirteen persons, one of them was a seven-year old child, three

others had ages ranging between 15 and 17 years. The death

sentence was held justified.

78. In Praveen Kumar vs. State of Karnataka (2003) 12 SCC

199 the accused was accommodated by one of the victims (who

was his aunt) despite her large family, and she gave him an

opportunity to make an honest living as a tailor. The accused

committed the pre-planned, cold-blooded murders of relatives and

well wishers (including one young child) while they were sleeping.

After the commission of the crime the accused absconded from

judicial custody for nearly four years, which indicates the fact that

51

the possibility of any remorse are rehabilitation is nil. Held the

extreme penalty of death was justified.

79. In Suresh vs. State of U. P. AIR 2001 SC 1344 the brutal

murder of one of the accused's brother and his family members

including minor children at night when they were fast asleep with

axe and chopper by cutting their skulls and necks for a piece of

land was considered to be a grotesque & diabolical act, where any

other punishment than the death penalty was unjustified.

80. In Molai vs. State of M.P. AIR 2000 SC 177, the Jail officer

sent to his quarter a guard and a prisoner to work in the house. The

16 year old daughter of the said officer was at that time alone in

the quarter and was preparing for her class 10th examination.

Taking advantage of her loneliness, both the guard and the prisoner

raped her, strangulated her and stabbed her. Thereafter with an

intention to hide their crime they threw her dead body into a septic

tank. This Court held that death was a fit punishment.

52 81. In Ramdeo Chauhan vs. State of Assam AIR 2000 SC

2679, the accused committed a pre-planned cold-blooded brutal

murder of four inmates of a house including two helpless women

and a child aged 2 = years during their sleep with a motive to

commit theft. The accused also attacked with a spade another

inmate of the house, an old woman, and a neighbour when they

entered the house. The Court held that the young age (22 years) of

the accused at the time of committing the crime was not a

mitigating circumstance, and death penalty was a just and proper

punishment.

82. In Narayan Chetanram Chaudhary vs. State of

Mahrashtra AIR 2000 SC 3352 there was a pre-planned,

calculated, cold-blooded murder of five women, including one

pregnant woman and two children aged 1 = years and 2 = years,

all inmates of a house, in order to wipe out all evidence of robbery

and theft committed by two accused in the house at a time when

male members of the house were out. It was held that the young

53

age (20-22 years) of the accused persons cannot serve as a

mitigating circumstance.

83. In State of U.P. vs. Dharmendra Singh AIR 1999 SC 3789,

5 persons were murdered, an old man of 75 years, a woman aged

32 years, two boys aged 12 years and a girl aged 15 years, at night

when they were asleep by inflicting multiple injuries to wreak

vengeance. This Court held that the ghastly and barbaric murder

can be termed as rarest of the rare case and death penalty was just

for such a diabolic act.

84. In Ronny vs. State of Mahrashtra AIR 1998 SC 1251, the

accused was the nephew of the deceased, and because of the

relationship he gained access inside the house for himself and his

friends. The victims were unarmed and the crime was committed

for gain i.e. to rob the valuables of the deceased family. The

accused then killed all three members and then committed rape on

the lady who was the wife of his maternal uncle and as old as his

mother. Considering the facts of the case this Court held that it

54

cannot be said that the offences were committed under the

influence of extreme mental or emotional disturbance as

everything was done in a preplanned way, and hence death penalty

was upheld.

85. In Surja Ram vs. State of Rajasthan AIR 1997 SC 18, the

appellant murdered his bother, his two minor sons and an aged

aunt by cutting their neck with a kassi while they were all sleeping.

He also attempted to murder his brother's wife and daughter but

they survived with serious injuries. The dispute between them

only related to putting a barbed fence on a portion of their

residential complex. The death sentence was held to be justified.

86. In Umashankar Panda vs. State of M.P AIR 1996 SC

3011, the accused and his wife and five children took dinner

together and went to bed in the same room. At midnight the

accused started to attack his wife with a sword and on hearing the

shouting the children woke up. On being questioned by the wife as

to why he was trying kill her he did not give an answer but rather

55

inflicted on her head, hand and foot more injuries. When the eldest

daughter intervened, he did not spare her either. The wife and two

children died but three others escaped death. On being asked, the

accused confessed to a witness that he had slaughtered all of them

but he did not know how three others had escaped the death. This

attitude of the accused clearly showed that he had purposely

caused injuries to all his family members in order to liquidate them

and was not happy that even the three children had escaped from

death. There was no provocation or other circumstances to suggest

that there was any quarrel between the accused and his wife or the

children. The way in which the crime was executed showed that it

was pre-meditated and not on account of sudden provocation.

87. In Ravji vs. State of Rajasthan AIR 1996 SC 787, the

accused in a cool and calculated manner wanted to kill his wife and

three minor children while they were asleep. When his mother

intervened he injured her with an axe with an intention to kill her.

He then silently went to the neighbour's house and attempted to

56

kill his neighbour's wife who was also asleep. When his

neighbour intervened he killed him too and fled from the place of

occurrence and tried to hide himself. The accused had a solemn

duty to protect his family members and maintain them but he

betrayed the trust reposed in him in a very cruel and calculated

manner without any provocation whatsoever. Hence the death

penalty had to be upheld.

88. In Suresh Chandra Bahri vs. State of Bihar AIR 1994 SC

2420, the wife of accused wanted to sell her house and migrate to

USA with her children against the wishes of her husband. Hence,

the accused killed his wife after torturing her by truncating her

body into two parts in a devilish style evincing total depravity only

to gain control over the property. Further he killed his own two

innocent children making them believe that they were being taken

on a pleasure trip to the farm, killing them by inflicting severe

injuries on their neck and other parts of the body and throwing

them in the river.

57 89. In Bheru Singh vs. State of Rajasthan (1994) 2 SCC 467,

the accused slaughtered his own wife and five children for no fault

of theirs but only on mere suspicion that his wife was having an

affair. This deserved a death sentence.

90. In Sevaka Perumal vs. State of T. N. AIR 1991 SC 1463,

the accused indulged in illegal business of purchase and sale of

"ganja". They conspired to entice innocent boys from affluent

families, took them to far flung places where the dead body could

not be identified. Letters were written to the parents purporting to

be by the deceased to delude the parents that the missing boys

would one day come home alive and that they should not give any

report to the police so that the crime would go undetected. Four

murders in a span of five years were committed for gain in cold-

blooded, premeditated and planned way. This Court held that any

other penalty except the death penalty would amount to a

miscarriage of justice.

58 91. In Sudam @ Rahul Kaniram Jadhav vs. State of

Maharashtra (Criminal Appeal Nos. 185-186 of 2011 decided on

4.7. 2011 this Court held that where an accused was found guilty

of committing murder of four children and a woman with whom he

was living with as husband and wife, the death penalty was

justified. In that decision Hon'ble C. K. Prasad, J. observed :

"Now we proceed to consider as to whether the case in

hand falls in the category of rarest of the rarest cases.

The appellant had chosen to kill the woman with whom

he lived as husband and wife, a woman who was in deep

love with him and willing to pay Rs. 15,000/- to PW. 6,

Muktabai, to save the relationship. Appellant had not

only killed the two children of the deceased who were

born from the first husband but also killed his own two

children. He projected himself to be single and changed

his name to dupe a woman and in fact succeeded in

marrying her. However, when the truth came to light, he

killed five persons. The manner in which the crime has

been committed clearly shows it to be premeditated and

well planned. It seems that all the four children and the

woman were brought near the Pod in a planned manner,

strangulated to death and dead bodies of the children

thrown in the pond to conceal the crime. He not only

killed Anita but crushed her head to avoid identification.

Killing four children, tying the dead bodies in bundles of

two each and throwing them in the pond would not have

been possible, had the appellant not meticulously planned

the murders. It shows that the crime has been committed

in a beastly, extremely brutal, barbaric and grotesque

manner. It has resulted in intense and extreme

indignation of the community and shocked the collective

59

conscience of the society. We are of the opinion that the

appellant is a menace to the society who cannot be

reformed. Lesser punishment in our opinion is fraught

with danger as it may expose the society to peril once

again at the hands of the appellant. We are of the opinion

that the case in hand falls in the category of the rarest of

the rare cases and the trial court did not err in awarding

the death sentence and the High Court confirming the

same."

92. In Ranjeet Singh vs. State of Rajasthan (1988) 1 SCC 633,

the entire family was murdered when they were fast asleep and this

Court observed as under:

"With regard to the sentence of death, there cannot be

two opinions. The manner in which the entire family was

eliminated indicates that the offence was deliberate and

diabolical. It was pre-determined and cold blooded. It

was absolutely devilish and dastardly".

93. In Atbir vs. Govt. of NCT Delhi AIR 2010 SC 3477 this

Court confirmed the death sentence given to the appellant who had

committed multiple murders of members of his family, who are

none other than step-mother, brother and sister in order to inherit

the entire property of his father. The appellant, in consultation

with his mother planned to eliminate the entire family of his step-

60 mother, and with this intention went to her house, closed the doors

and mercilessly inflicted 37 knife injuries on the vital parts of the

victims' bodies.

94. In Surendra Koli vs. State of U.P. AIR 2011 SC 970, the

accused was a serial killer who used to lure small girls inside a

house, strangulate them, have sex with their bodies, cut off their

body parts, and eat them. This Court held that no mercy could be

shown to his horrifying and barbaric deeds, and upheld the death

sentence.

Present Case

95. Having considered the law on the point and several decisions

of this Court where death sentence was affirmed, we may now

consider whether this case deserves the death sentence. This Court

held in Bachan Singh vs. State of Punjab (Supra) that death

sentence should only be given in the rarest of rare cases. In our

opinion this is one of such cases. Burning living persons to death

61

is a horrible act which causes excruciating pain to the victim, and

this could not have been unknown to the appellant.

96. In our opinion, a person like the appellant who instead of

doing his duty of protecting his family kills them in such a cruel

and barbaric manner cannot be reformed or rehabilitated. The

balance sheet is heavily against him and accordingly we uphold the

death sentence awarded to him.

97. In the present case the accused did not act on any spur of the

moment provocation. It is no doubt that a quarrel occurred

between him and his wife at midnight, but the fact that he had

brought a large quantity of petrol into his residential apartment

shows that he had pre-planned the diabolical and gruesome murder

in a dastardly manner.

98. In our opinion a distinction has to be drawn between ordinary

murders and murders which are gruesome, ghastly or horrendous.

While life sentence should be given in the former, the latter

62

belongs to the category of rarest of rare cases, and hence death

sentence should be given.

99. This distinction has been clarified by a recent judgment of

my learned brother Hon'ble C. K. Prasad, J. in Mohd. Mannan @

Abdul Mannan vs. State of Bihar (2011) 5 SCC 317 (vide paras

23 and 24), wherein it has been observed:

"23. It is trite that death sentence can be inflicted only in a case which comes within the category of the rarest of rare cases but there is no hard-and-fast rule and parameter to decide this vexed issue. This Court had the occasion to consider the cases which can be termed as the rarest of rare cases and although certain comprehensive guidelines have been laid to adjudge this issue but no hard-and-fast formula of universal application has been laid down in this regard. Crimes are committed in so different and distinct circumstances that it is impossible to lay down comprehensive guidelines to decide this issue. Nevertheless it is widely accepted that in deciding this question the number of persons killed is not decisive.

24. Further, the crime being brutal and heinous itself does not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the court has to see as to whether the accused is a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance sheet is to be prepared while considering the imposition of penalty of death of aggravating and mitigating circumstances and a just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of

63

the community is petrified, it is expected that the holders of judicial power do not stammer dehors their personal opinion and inflict death penalty. These are the broad guidelines which this Court had laid down for imposition of the death penalty".

We fully agree with the above view as it has clarified the meaning

of the expression `rarest of the rare cases'. To take a hypothetical

case, supposing `A' murders `B' over a land dispute, this may be a

case of ordinary murder deserving life sentence. However, if in

addition to murdering `B', `A' goes to the house of `B' and wipes

out his entire family, then this will come in the category of rarest

of the rare cases' deserving death sentence. The expression `rarest

of the rare cases' cannot, of course, be defined with complete

exactitude. However, the broad guidelines in this connection have

been explained by various decisions of this Court. As explained

therein, the accused deserves death penalty where the murder was

grotesque, diabolical, revolting or of a dastardly manner so as to

arouse intense and extreme indignation of the community, and

when the collective conscience of the community is petrified, or

outraged. It has also to be seen whether the accused is a menace to

society and continues to do so, threatening its peaceful and

64

harmonious coexistence. The Court has to further enquire and

believe that the accused cannot be reformed or rehabilitated and

shall continue with his criminal acts. Thus a balance sheet is to be

prepared in considering the imposition of death penalty of the

aggravating and mitigating circumstances, and a just balance is to

be struck.

100. We fully agree with the above view and we are of the opinion

that all the requisites for death penalty as noted above are satisfied

in the present case for the reasons given above.

Abolition of Death Sentence

101. It is only the legislature which can abolish the death penalty

and not the courts. As long as the death penalty exists in the

statute book it has to be imposed in some cases, otherwise it will

tantamount to repeal of the death penalty by the judiciary. It is not

for the judiciary to repeal or amend the law, as that is in the

domain of the legislature vide Common Cause vs. Union of

65

India 2008(5) SCC 511 (vide paragraphs 25 to 27). The very fact

that it has been held that death penalty should be given only in the

rarest of the rare cases means that in some cases it should be given

and not that it should never be given. As to when it has to be

given, the broad guidelines in this connection have been laid down

in Macchi Singh's case (supra) which has been followed in several

decisions referred to above. This Court has also held that honour

killing vide Bhagwan Dass vs. State (NCT) of Delhi AIR 2011

SC 1863, fake encounter by the police vide Prakash Kadam vs.

R.V. Gupta AIR 2011 SC 1945 and dowry death vide Satya

Narayan Tiwari vs. State of U.P. (2010) 13 SCC 689 comes

within the category of `rarest of rare cases'. Hired killing would

also ordinarily come within this category.

102. In view of the foregoing, there is no merit in this appeal

which is accordingly dismissed.

66 103. Before parting with this case, we would like to mention that

we are not dealing with mercy petitions under Article 72 and 161

of the Constitution, but are confining ourselves to the question of

imposing death penalty on the judicial side.

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

(Markandey Katju)

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

(Chandramauli Kr. Prasad)

New Delhi;

September 13, 2011