Eknath Kisan Kumbharkar vs The State Of Maharashtra

2024 INSC 779 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. of 2024 (ARISING OUT OF THE SPECIAL LEAVE PETITION (CRIMINAL) NO.251 OF 2020)

EKNATH KISAN KUMBHARKAR …APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA …RESPONDENT(S)

JUDGMENT

Aravind Kumar, J.

1. Leave granted.

2. The sole accused who is the appellant before us was charged for

murdering his pregnant daughter and being dissatisfied with the judgement

dated 06/08/2019 passed by the High Court of Judicature at Bombay in

Confirmation Case No.3 of 2017, by which the High Court confirmed the

judgement and order of death sentence awarded by the Trial Court for the Signature Not Verified Digitally signed by SWETA BALODI Date: 2024.10.16 15:25:24 IST offences punishable under Section 302, Section 316 (10 years rigorous Reason: 1 imprisonment and fine of Rs.5,000/-) and Section 364 (life imprisonment)

of the Indian Penal Code, 1860, the present appeal has been preferred.

BRIEF FACTS

3. As per the case of the prosecution, the deceased Pramila was the

daughter of appellant/accused and PW1/Smt. Aruna Kumbharkar and she is

said to have married Mr. Deepak Kamble in the year 2013 against the wishes

of her father and it was an inter-caste marriage. On 28/06/2013 at 5:30 AM,

the appellant is said to have left his house and travelled in the auto rickshaw

of PW2/Complainant/Pramod Ahire by informing him that his brother

Navnath had met with an accident and requested PW2 to go to Kailash

Nagar, Nandurnaka. Appellant is said to have informed PW2 on the way

that there was no incident of accident of his brother, however, his mother

was serious, and her last wish was to see her granddaughter Ms. Pramila.

Hence, they proceeded to the house of Pramila and, appellant is said to have

informed Pramila’s mother-in-law/Sangita Kamble/PW3 that the health of

his mother had deteriorated and she was in serious condition and she was

longing to meet Pramila. PW3 is said to have informed the appellant that

Pramila was nine months pregnant and that she had an appointment with the

Doctor at 11:00 AM. However, the appellant is said to have promised to get

Pramila back by 10:00 AM and accordingly appellant and PW2 took her in

the autorickshaw to Savkar Hospital. When they reached near the hospital,

2 the appellant told the PW2/Complainant that his maternal uncle is working

in Savkar Hospital as a watchman and instructed PW2 to secure him.

Accordingly, PW2 entered inside the hospital and called him and there was

no response and after some time it was intimated by the ward boy of the

hospital that watchman whom the PW2 was searching was not working

there. Thereafter PW2 returned towards his auto rickshaw and at that point

of time he saw, Pramila lying down on the lap of the appellant in the auto

rickshaw and her neck was being strangulated by a rope in the hand of the

appellant and he found foam was oozing out from her mouth. PW2 rushed

towards the autorickshaw and questioned the appellant and was informed

that he was not concerned with the consequence as she had spoiled his

reputation. PW2 started screaming and people from nearby area came near

the autorickshaw but did not lend any helping hand. Thereafter PW2 dragged

the appellant out of autorickshaw. PW2 is said to have attempted to save

Pramila by dragging the appellant away from her and at that point of time

appellant is said to have ran away from the spot. PW2 immediately took her

to Savkar Hospital and the doctor informed him to take her to civil hospital

as it was a police case. Hence, PW2 immediately took her to civil hospital

where the doctor declared Pramila as dead. Subsequently, PW2 lodged a

police complaint and on the basis of the same, police registered an FIR in

CR No.159/2013.

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4. After due investigation, the charge-sheet came to be filed against

appellant under Sections 302, 316 and 364 of IPC. The case was committed

to the Court of Session. The Trial Court framed charges against the appellant

for offences punishable under Section 302, 316 and 364 of IPC and after

pleading not guilty, he came to be tried for the aforesaid offences.

5. To prove the charges against the accused, the prosecution examined

10 witnesses. After closure of evidence of the prosecution, further statement

of the accused under Section 313 CrPC was recorded. The case of the

accused was of a total denial. He deposed that on account of previous

monetary transactions between him and PW2, there was a dispute between

them and he has been falsely implicated in the case. Appellant did not

examine any witness in support of his defence. The Trial Court after

appreciation of the facts and evidence on record, convicted the appellant for

the offences punishable under Sections 302, 316 and 364 of IPC and

sentenced him as noted hereinabove. The reference made by the Trial Court

was numbered as Confirmation Case No.3/2017 before the High Court.

6. By the impugned judgement and order, the High Court affirmed the

reference made by the Trial Court and confirmed the death penalty and

sentences awarded by the Trial Court under Sections 302, 316 and 364 IPC.

Feeling aggrieved by the impugned judgement and order passed by the High

4 Court in confirming the reference made by the Trial Court, the appellant has

preferred the present appeal.

SUBMISSIONS

7. Learned Senior Counsel, Dr. Aditya Sondhi appearing on behalf of

the appellant has vehemently submitted that in the facts and circumstances

of the case, both the Trial Court and the High Court have erred in convicting

the appellant for the offences punishable under Sections 302, 316 and 364

IPC.

7.1 It is further submitted that the motive for killing the deceased is not

proved. It is submitted that the PW1's statement that appellant was angry

with the deceased Pramila as she got married out of caste, is a vague

statement and without basis. It is further submitted that appellant did not

have any anger towards the deceased and same was evident, as he and

deceased used to visit each other's house and the same is confirmed by PW1

and PW3. It is further submitted that deceased was married for over a year

and it is unexplained by the prosecution as to why the appellant would wait

for a year to commit the offence and that too in a public place. The learned

counsel relied on the judgments of this Court in Balaji v State of

5 Maharashtra1, Dandu Jaggaraju v State of A.P.2 to contend that motive

was not established as the accused knew of the inter caste marriage for long.

7.2 It is further submitted that the eyewitness PW2 is not reliable. It is

submitted that PW2 had raised a loan by mortgaging appellant's second-hand

motorcycle and that appellant and PW2 had heated exchange regarding the

monetary transaction 15 days prior to the incident.

7.3 It is submitted that non examination of the wife of PW2 is fatal to

the story of prosecution, as presence of appellant in the house of PW2 and

appellant having left PW2’s autorickshaw along with him raises a serious

doubt. It is submitted that the appellant’s visit to the deceased house is also

not proved.

7.4 It is further submitted that there are material contradictions in the

testimonies of PW1 and PW3 regarding the events that occurred on

28/06/2013, which casts a serious doubt on the reliability of these two

witnesses.

7.5 It is further submitted that adverse inference has to be drawn against

the prosecution for non-examination of material and independent witnesses,

Narayan Ramrao i.e. owner of the tea stall located near the scene of incident;

1 (2019) 15 SCC 575 2 (2011) 14 SCC 674

6 Prakash Pawar and Jitendra Chaugule i.e. persons residing near Savkar

Hospital and Babu Patil (ward boy of Savkar Hospital), despite their

statements being recorded by Rajesh Arkhade/investigating officer/PW10.

7.6 It is submitted that even those persons who came to the spot after

PW2 shouted for help, are also not examined by the prosecution. The learned

counsel relied on the judgments in Jaikam Khan v. State of UP3, Jagadish

v. State of Haryana4, Hem Raj v. State of Haryana5 to contend that non-

examination of independent witness by the prosecution is a serious infirmity

and is fatal to the case of the prosecution.

7.7 It is submitted that evidence of Dr. Vikrant Savkar/PW5 is not

trustworthy and reliable, and there are material contradictions in the

testimonies of PW2 and PW5 regarding the events that occurred at the

hospital.

7.8 It is further submitted that seizure and sealing of the string which is

said to have been used by the accused to strangulate the deceased is not

proved and there are discrepancies regarding the length of the same. It is

submitted that it is not the case of the prosecution that string is linked and it

was not seized from or at the behest of the appellant and it is also not the

3 (2021) 13 SCC 716 4 (2019) 7 SCC 711 5 (2005) 10 SCC 614

7 case of prosecution that said string could have caused the ligature mark

found around the neck of the deceased.

7.9 It is further submitted that the cause of injury nos.2 to 4 i.e.

curvilinear scratches on the deceased's face and nose bridge is not proved by

the prosecution.

7.10 It is submitted that multiple investigative errors are committed by

the prosecution which casts a serious doubt on the entire prosecution case.

7.11 In the background of aforesaid submissions, learned counsel has

prayed for appeal being allowed and appellant being acquitted for the

offences for which he was tried. In the alternative, it is prayed to convert

the death sentence into life imprisonment, by contending that both Courts

have failed to consider the mitigating circumstances in proper perspective.

8. On the contrary, learned counsel appearing for the Respondent,

Mr. Siddharth Dharmadhikari would support the case of the prosecution and

contend that both the courts on proper evaluation of evidence have rightly

arrived at a conclusion that appellant had committed the offences alleged

and both the courts have rightly awarded the death sentence.

8.1 It is submitted that impugned judgement and order of the High Court

is well reasoned and has been passed after considering the entire facts and

8 circumstances and same is not to be interfered with by this Court in exercise

of jurisdiction vested under Article 136 of the Constitution of India.

8.2 It is submitted that the prosecution has been successful in proving

the motive of the accused to take revenge and kill his daughter for having

married outside the caste as clearly spoken to by the wife of the accused

namely PW-1.

8.3 It is further submitted that the prosecution has been successful in

establishing and proving that the deceased went with the appellant at his

instance and that the appellant was seen strangulating her neck with

rope/string and subsequently fleeing from the spot on being confronted by

PW2. All these circumstances will singularly point towards the guilt of the

accused and does not give scope for raising any doubt.

8.4 It is further submitted that death of deceased Pramila was homicidal

death, which has been established and proved by examining the doctors who

conducted the post-mortem.

8.5 It is also submitted that this is a fit case to award death sentence and

the case would fall into the “rarest of the rare case”. It is further submitted

that the balance of mitigating and aggravating circumstances would not lie

in favour of the appellant and he has committed a heinous crime by killing

his own daughter who was in advanced pregnancy stage in a merciless

manner. Therefore, it is prayed to dismiss the present appeal and confirm the

death sentence awarded by the High Court.

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9. Heard the learned counsel appearing for the respective parties at

length. We have also gone through in detail the judgement and order passed

by the Trial Court and High Court.

DISCUSSION AND FINDING

10. After considering the rival contentions and on perusal of the

evidence tendered by the prosecution in general and in particular the

depositions of PW-1, PW-2 and PW-3 it would clearly emerge that wife of

the appellant (PW-1) has spoken in no uncertain terms that her husband was

nursing grudge against their daughter namely the deceased Ms. Pramila for

having married a person from a lower caste and thereby it had tarnished his

image in the society. She has further deposed that appellant used to feel that

the community people of his caste had not accepted him, and he was being

defamed in the society because of his daughter's inter-caste marriage. She

further states, though appellant used to visit the house of Pramila, he had

grouse against Pramila for having married out of their caste. She has further

deposed that appellant strangulated Pramila with the string of her petticoat

which he had carried and same was handed over by her to the police. PW-2,

who is the complainant has reiterated his statement made under section 161

Cr.P.C. before the police. He has deposed in extenso, the manner, the

method, the mode in which appellant had perforced him to proceed towards

the house of the brother of the appellant initially and in the mid-way had 10 changed his version namely, mother being serious and she intended to see

her grand daughter i.e., deceased. He has also deposed that deceased was

picked up from her marital home after informing the mother-in-law of the

deceased and assuring her to be brought back before 10 AM in order to

enable her visit to the Doctor who was attending to Ms. Pramila for

pregnancy related tests. PW-2 has also narrated the manner in which he

was made to believe the words of the appellant and was coaxed to fetch the

watchman of Savkar Hospital. He has clearly deposed by the time he

returned he had seen as to how Ms. Pramila was lying on the lap of the

appellant who had strangulated her resulting in foam oozing out of her

mouth and as a result he had shouted at the appellant which resulted in

drawing the attention of the neighbours and help was sought from the public.

Appellant is said to have escaped from the scene of occurrence leaving the

deceased in the auto and she was rushed to Savkar Hospital initially and later

shifted to the civil hospital, where she was pronounced dead.

11. The testimony of PW1 and PW2 fortifies the case of the prosecution

the motive of the appellant for commission of the crime. There was no

reason for PW1 to depose falsely against her husband and it is also not the

case of the appellant that his wife had any enmity towards him and she has

falsely deposed against him. The evidence of PW1 is not shaken in the cross

11 examination. As such the contention of the appellant that motive for

commission of crime is not proved by the appellant is liable to be rejected.

12. It is an established principle of law that conviction can be based on

the testimony of a sole eyewitness. This Court in the case of Vadivelu

Thevar and another Vs. State of Madras6 has held that the court can act on

the testimony of a single witness though uncorroborated. Unless

corroboration is insisted upon by a statute, courts should not insist on

corroboration except in cases where the nature of the testimony of the single

witness itself requires as a rule of prudence that corroboration should be

insisted upon. Whether corroboration of the testimony of a single witness is

or is not necessary, would depend upon facts and circumstances of each case

and depends upon the judicial discretion. In other words, this Court has held

that court would be considered with the quality and not the quantity of the

evidence necessary for proving or not proving a fact.

13. Keeping the aforesaid principles in mind when we turn our attention

to the testimony of eyewitness relied upon by the prosecution PW-2, it

clearly fortifies the case of the prosecution. We find no reason to doubt the

testimony of PW-2 as nothing worthwhile has been elicited in the cross-

6 AIR 1957 SC 614

12 examination to discredit his testimony or in other words it can be safely

concluded that the testimony of PW-2 has stood the scrutiny.

14. The thrust of the arguments canvassed on behalf of the appellant is

to the effect that non-examination of the owner of the tea stall located near

the scene of crime; non-examination of the ward boy of Savkar hospital;

non-examination of independent witnesses who had assembled near the

scene of crime on hue and cry being raised by PW-2; was fatal to the

prosecution case. Though at first blush, said arguments looks attractive, on

deeper examination it has to be answered against the appellant as it is settled

principle of law that non-examination of independent witnesses by itself

would not give rise to adverse inference against the prosecution. It would

only assume importance when the evidence of eyewitness raises a serious

doubt about their presence at the time of actual occurrence.7

15. Yet another plea was raised that due to financial dispute between

appellant and PW-2, he (PW-2) had falsely implicated the appellant. During

course of examination, it was suggested to PW2 that there was some dispute

between him and the appellant on account of monetary transaction. Though

PW2 accepted that he had demanded a hand loan from the accused, he has

denied that appellant had mortgaged his bike with the friend of PW2 and has

7 Guru Dutt Pathak v. State of Uttar Pradesh, (2021) 6 SCC 116

13 also denied the receipt of hand loan from the appellant. Section 103 of the

Evidence Act, mandates that burden of proof as to any particular fact lies on

that person who wishes the court to believe its existence. As such, burden

was on the appellant to tender evidence for the purpose of proving the

alleged financial transaction. Apart from making a bald statement in his

statement recorded under Section 313 of Cr.P.C., no efforts have been made

by the appellant to either examine the friend of PW2 as a witness or tender

any documentary evidence to prove the so called financial transaction.

Hence, the plea of the appellant regarding alleged financial transaction with

PW2 is not established.

16. The evidence of PW3/Sangita Dashrath Kamble/Mother-in-law of

the deceased would also strengthen the case of the prosecution. The

testimony of PW3 is to the effect that appellant had visited her house on the

date of incident around 7:00 AM to 7:30 AM and informed her that his

mother was ill and she intended to see Pramila and as such he intended to

take her with him. On being informed by PW3 that Pramila was 9 months

pregnant and she needs to be taken to hospital at 11AM, appellant had

assured to bring back Pramila at about 10AM. She has deposed that when

Pramila did not return at 10:00 AM, she had asked her son Deepak to call

his mother-in-law (PW-1) and on enquiry PW1 had questioned them as to

why they had sent Pramila with her husband i.e. appellant. She is said to

14 have received information to visit Civil Hospital, accordingly, they all went

to Civil Hospital and saw the dead body of Pramila.

17. The testimony of PW3 corroborates with the testimony of PW2 on

the aspect of the appellant visiting the house of deceased Pramila on the date

of incident and taking her with him on the pretext, that his mother i.e.

grandmother of Pramila was not keeping well and that she was desirous to

see Pramila.

18. After considering the evidence of PW1, PW2 and PW3 it is clear

that appellant with the motive of killing his daughter had visited her

matrimonial home along with PW2 and has taken her in an auto rickshaw on

the pretext of visiting his mother and had strangulated her. The appellant is

said to have asked PW2 to stop the auto near Savkar hospital and asked him

to search for the watchman. By the time PW2 was back, the appellant was

strangulating Pramila by means of a rope or string. The chain of events

establish the guilt of the appellant beyond reasonable doubt and there are no

other circumstances to disbelieve the theory of the prosecution.

19. The case of the prosecution is further fortified by the testimony of

PW6/Sri. Anand Vilas Pawar who performed the autopsy of Pramila. The

testimony of PW6 is that death had occurred due to asphyxia consequent

upon ligature strangulation via ligature mark and same is antemortem and

15 sufficient in ordinary course of nature to cause death. It was further deposed

that death of the child in the womb of the mother was caused due to the death

of the mother. He has further deposed that Injury No.1 was possible by the

string (Article-B) seized by Police and the said string was identified by PW2

and PW6.

20. The appellant has drawn the attention of this court to some minor

discrepancies in the evidence some of the prosecution witnesses. This Court

in the case of Rohtash Kumar v State of Haryana8 has held that undue

importance should not be given to minor omissions, contradictions and

discrepancies which do not go to the heart of the matter and shake the basic

version of the prosecution.

21. This Court in the case of Manoj Suryavanshi v State of

Chhattisgarh9 has held there are bound to be some discrepancies between

the narration of different witnesses, when they speak on details, and unless

the contradictions are of a material dimension, the same should not be used

to jettison the evidence in its entirety. It is further observed that corroboration

of evidence with mathematical niceties cannot be expected in criminal cases.

Minor embellishment, there may be, but variations by reason therefore

should not render the evidence unbelievable. Trivial discrepancies ought not

8 (2013) 14 SCC 434 9 (2020) 4 SCC 451 16 to obliterate an otherwise acceptable evidence. As such the contention of the

appellant raised in this regard is liable to be rejected and accordingly it is

rejected.

22. For the reasons aforestated, we are of the opinion that High Court

has not committed any error in upholding the conviction of the accused for

the offences punishable under Sections 302, 316 and 364 IPC and we are in

complete agreement with the view taken by the Trial Court and the High

Court in that regard.

23. The next question or incidental question that arises for our

consideration is: Whether in the facts and circumstances of the case, the

capital punishment imposed on appellant by the Trial Court and confirmed

by the High Court deserves to be maintained or not?

24. This Court in the case of Madan v State of Uttar Pradesh10 has

summarised the principles regarding the imposition of death penalty as

punishment. It has been held after noticing the Constitution Bench case of

Bachan Singh v State of Punjab11, that normal rule is that the offence of

murder shall be punished with sentence of life imprisonment and the court

can depart from that rule and impose the sentence of death only if there are

special reasons for doing so and reasons are required to be recorded in

10 2023 SCC Online SC 1473 11 (1980) 2SCC 684

17 writing before imposing the death sentence. It has been further held that the

guidelines indicated in Bachan Singh’s case will have to be applied to the

facts of each individual case where the question of imposing of death

sentence arises and after noticing the propositions emerging from the

Bachan Singh’s case, it has been held that if it shocks the collective

conscious of the society and fall in the category of ‘rarest of rare cases’, the

imposition of death penalty may be warranted. As to whether the facts and

circumstances of the case, warrants imposition of death penalty or not cannot

be applied in any straight jacket formula and it would be on facts and

circumstances unravelled in each case. It depends upon the terrain of facts

and circumstances it may have travelled and takes its colour from the same

or in other words with mathematical precision it cannot be moulded.

25. Hence, the question which arises for our consideration in the instant

case is whether the present case would fall in the category of “rarest of rare

case” so as to confirm the death penalty or the sentence can be commuted?

26. This Court vide order dated 25/04/2023 had called for a Prison

Conduct Report, Probation Officer's Report of accused, Psychological

Evaluation Report of Accused and Mitigation Investigation Report.

27. As per prison conduct report dated 06/07/2023 forwarded by

Superintendent, District Jail, Yervada, it is opined that appellant is aged 47

18 years and his conduct and behaviour is satisfactory with other inmates and

prison staff. Same is the report of the probation officers dated 28/06/2023

and they further state that appellant is not involved in any criminal activity

in jail for the past 6 years and his behaviour with jail staff and inmates is

satisfactory.

28. As per the Mitigation Investigation Report forwarded by Ms. Neha

Kangralkar dated 25/04/2023 titled ‘Mitigation Investigation Report for

Eknath Kisan Kumbharkar’, the following mitigation circumstances are

identified.

i.Time spent in prison: Appellant has spent about 11 years behind bars.

ii.Absence of criminal antecedents iii.Socio-economic background: Appellant comes from a poor nomadic community in Maharashtra. He had an alcoholic father, and was forced to start working since the age of 5 to support his family, doing odd jobs such as cattle rearing and selling milk. After his marriage, he tried different jobs including driving an auto.

iv.Adverse childhood experiences: Appellant suffered from parental neglect due to poverty and it was primarily his elder sisters who brought him up. He grew up witnessing his alcoholic father’s physical and verbal abuse, and dropped out of school when he was 10 years old and had to enter the workforce at an early age.

v.Efforts to bring family out of poverty: Appellant made constant efforts to bring his family out of poverty, including by borrowing money to buy autos to earn more. However, due to his poverty and debt, he was unable to keep the autos.

vi.Mental and emotional disturbance: Appellant was under immense pressure from his community due to the inter-caste marriage of the deceased as well as prior ostracization from their community due to a family

19 conflict. Further, the death of his son and subsequent substance dependence and pressures of poverty even prior to the incident may have already put him under mental and emotional disturbance.

vii.During the mitigation interviews, he displayed speech issues, as also confirmed by the state reports. He has experienced social isolation in Yerwada, since prisoners called him yeda (mad) after the stroke. As a possible coping mechanism, he spent his time engaging in conversations with Mata- an imaginary woman.

viii.Post conviction mental Illness: Appellant’s permanent cognitive impairment will only worsen with age. His mental health concerns including speaking to ‘Mata’ and having a confused understanding of the death sentence and what it entails.

ix.During the early years of incarceration, Appellant engaged in multiple prison activities- learning English, doing art, and making bags.”

29. The psychiatric assessment report dated 19/06/2023 submitted by

Sasson General Hospital notes that the appellant has speech issues and

significant cognitive impairment due to a stroke that he suffered from while

in prison in 2021. The cardiological evaluation report from Sasson hospital

records that the appellant had an angioplasty in 2014. He has ischemic heart

disease, which requires continued medical management. The neurological

evaluation notes that he has right sided hemiparesis due to his stroke in 2021

and left frontoparietal gliosis per CT brain done in 2023. He has persistent

speech deficit due to the stroke, which will continue and require continuous

medical management throughout his life.

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30. We have scrutinized the aforesaid reports submitted to this court. We

find that the present case would not fall in the category of “rarest of rare

cases” wherein it can be held that imposition of death penalty is the only

alternative. We are of the considered opinion that the present case would fall

in the category of middle path as held by this court in various judgments of

this court12.

31. In the instant case, it is to be noted that appellant hails from a poor

nomadic community in Maharashtra. He had an alcoholic father and suffered

parental neglect and poverty. He dropped out of school when he was 10

years old and was forced to start working to support his family, doing odd

jobs. All efforts put by the appellant to bring his family out of poverty did

not yield desired results. Neither the appellant nor any of his family members

have any criminal antecedent. It cannot be presumed that appellant is a

hardened criminal who cannot be reformed. Hence, it cannot be said that

there is no possibility of reformation, even though the appellant has

committed a gruesome crime.

32. The appellant was aged about 38 years at the time of commission of

the crime. He has no criminal antecedents and there are various other

12 Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767; Shankar Kisanrao Khade v. State

of Maharasthra, (2013) 5 SCC 546; Gandi Doddabasappa alias Gandhi Basavaraj v. State of Karnataka, (2017) 5 SCC 415; Prakash Dhawal Khairnar (Patil) v. State of Maharastra, (2002) 2 SCC 35, Mohinder Singh v. State of Punjab, (2013) 3 SCC 294; Madan v. State of Uttar Pradesh, 2023 SCC Online SC 1473

21 mitigating circumstances existing in his favour as per the reports which we

have discussed above. The medical reports of the appellant would disclose

that he has speech issues, and he has undergone an angioplasty in 2014, apart

from suffering other serious ailments, as already noted herein above. The

conduct report from the prison would disclose that the behaviour of the

appellant in the jail is satisfactory with everyone for the past six years.

Considering these factors, we are of the considered view that even though

the crime committed by the appellant is unquestionably grave and

unpardonable, it is not appropriate to affirm the death sentence that was

awarded to him. The doctrine of “rarest of rare” requires that death sentence

should not be imposed only by taking into consideration the grave nature of

crime but only if there is no possibility of reformation by a criminal. Being

conscious of the fact that sentence of life imprisonment is subject to

remission, which would not be appropriate in view of the gruesome crime

committed by the appellant, the course of middle path requires to be adopted

in the instant case. In that view of the matter, we find that the death penalty

needs to be converted to a fixed sentence during which period the appellant

would not be entitled to apply for remission.

33. The appeal is therefore, partly allowed. The order of conviction as

recorded by the Trial Court and confirmed by the High Court of Judicature

at Bombay vide order dated 06/08/2019 in Confirmation Case No.3/2017 is

22 affirmed. However, the sentence of death penalty imposed by the courts

below under Section 302 is converted to 20 years of rigorous imprisonment

without remission. It is made clear that appellant-accused shall not be

entitled to make any representation for remission till he completes 20 years

of actual rigorous imprisonment.

34. The appeal is allowed to the extent noted herein above. Pending

application(s), if any, stands consigned to records.

…….………………….J. (B.R. Gavai)

…….………………….J. (Aravind Kumar)

…….………………….J. (K.V. Viswanathan)

New Delhi, October 16, 2024

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