State Of Maharashtra vs Goraksha Ambaji Adsul

STATE OF MAHARASHTRA ... Appellant

Versus

GORAKSHA AMBAJI ADSUL ... Respondent

AND

CRIMINAL APPEAL NO.1623 OF 2007

GORAKSHA AMBAJI ADSUL ... Appellant

Versus

STATE OF MAHARASHTRA ... Respondent

J U D G M E N T

Swatanter Kumar, J.

The learned trial court, while weighing the mitigating and

aggravating circumstances and keeping in mind the principle

of proportionality of sentence or what it termed as "just-

desert" for the brutal and diabolical killing of three innocent

family members, formed an opinion that the Court could not

1

resist from concluding that the only sentence that could be

awarded to the accused was death penalty. Thus, it directed

that the accused Goraksha Ambaji Adsul be hanged by the

neck till he is dead in terms of Section 354(5) of the Code of

Criminal Procedure, 1973 (for short `Cr.P.C.'), subject to

confirmation by the High Court in accordance with law.

Aggrieved by this extreme punishment and the order of

conviction, the accused challenged the judgment of the

learned trial court dated 14th February, 2005 by filing an

appeal before the High Court which vide its detailed judgment

dated 30th September, 2005, declined to confirm the death

sentence referred under Section 366 of the Cr.P.C. and held

the said accused guilty of offence under Sections 302 and 201

of the Indian Penal Code (for short `IPC'), and sentenced him

to undergo life imprisonment. In other words, the High Court

converted the death penalty into life imprisonment while

sustaining the order of conviction.

2 The State of Maharashtra has preferred the present appeal

bearing Crl.A. No. 999/2007, before this Court claiming that

the said conversion by the High Court is not appropriate in

the facts and circumstances of the case. The State further

avers that the High Court in its judgment has fallen in error of

law as well as failed in appreciation of evidence. It is

contended that this Court should restore the judgment of the

trial court on the quantum of sentence by awarding death

penalty. The accused has filed a separate appeal being Crl.A.

No. 1623 of 2007 challenging the very same judgment of the

High Court on the ground that the appellant could not have

been held guilty for an offence under Sections 302 and 201 of

the IPC and the appellant was entitled to judgment of

acquittal.

Thus, it will be appropriate for us to dispose of both the

above appeals by a common judgment. For that purpose, we

may briefly notice the facts giving rise to the present appeals.

3 Accused no.1 Goraksha Ambaji Adsul is the son of the

deceased, Ambaji Ahilaji Adsul. Accused no.3 Sow. Sunita

Goraksha Adsul is the wife and Accused no.2 Mininath Ambaji

Adsul is the brother of the Accused no.1 Goraksha. Accused

no.1 was serving in the Indian Army and used to visit his

village Hivare-Korda where the family had some agricultural

land and other properties. The deceased, Ambaji Ahilaji Adsul

was also married to the second deceased, Janabai and she

was his second wife. In other words, Janabai was the

stepmother of the Accused no.1 and 2 and Reshma

(deceased) was their stepsister. All these persons used to

jointly reside in their house in the said village. It has come in

evidence that there used to be quarrels between the Accused

no.1, his brother and wife on the one side and the deceased

Ambaji Ahilahi Adsul, his wife Janabai and daughter Reshma

on the other. The accused used to demand partition of the

land and other property and allotment of share to the accused

and his brother. This persisted for a considerable time and is

said to be the motive for commission of the offence.

4 One Premchand Rangarao Jatav, Deputy Station

Superintendent, Railway Station, Bhopal (PW9), received a

memo sent by Sh. R.K. Arora, Train Ticket Examiner (TTE),

informing him that a black coloured trunk was found in Bogie

No.S-6 of Train No. 2779 (Goa-Nizamuddin Express) running

via Ahmednagar when it reached Bhopal Railway Station on

25th October, 2002 at about 7.00 p.m. The black trunk was

seized under panchnama and when the same was opened in

the presence of Dr. Harsh Sharma it was found that it

contained a dead body which was later identified to be that of

Ambaji Ahilaji Adsul. Mr. Someshwari Jogeshwari Prasad

Mishra, ASI, G.R.P. Bhopal (PW11) completed the formalities

of inquest and post-mortem. After the body was received in

the hospital it was inspected by one Dr. Mrs. Rajni Armit

Arora, the then Associate Professor at the Department of

Forensic Medicine, Gandhi Medical College, Bhopal, (PW19).

It was noticed that a lace was found to have been tied to the

portion covering neck and throat of the deceased. Dr. Arora

performed the autopsy on 26th October, 2002. She noticed

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ligature mark of brownish colour and ligature material of

khaki colour shoe lace, two in number, tied around the neck

encircling it and described the injuries as ante-mortem

injuries. According to the said doctor, the cause of death was

strangulation and homicidal in nature and was caused two to

three days prior to the post-mortem examination. As nobody

had claimed the body, the blood stained clothes of the

deceased were seized and the body was cremated at

Bhadbhada Vishram Ghat, Bhopal. An FIR (exhibit-82) was

registered with regard to the said crime.

On 25th October, 2002 itself, another train, i.e. Train No.

7602-UP (Nanded Pune Express) reached Ahmednagar

Railway Station at its scheduled time in the morning at about

6.15 a.m. and departed at 6.30 a.m. Enroute, during the stop

at Akolner Railway Station for crossing of the train coming

from opposite direction, Mr. Sanjay Bhujadi, TTE, found one

white tin trunk in Bogie No. S-4 placed between the two toilets

of the Bogie No. S-4. After arriving Kasthi Railway Station,

6

Mr. Sanjay Bhujadi made a report to the Station Master,

Kashti, informing him of the said trunk. This memo was

delivered to GRP, Daund Railway Station (Ex.132). The trunk

was removed from the bogie and a panchnama was prepared.

Thereafter, it was opened and two dead bodies were found in

that trunk. These were later identified as those of Janabai

and Reshma. Inquest formalities were completed and an FIR

(exhibit 125) was lodged on 25th October, 2002 as Crime No.

43/2002 for offence punishable under Sections 302 and 201

of the IPC.

The railway police investigating officer, Mr. B.B. Joshi,

(PW8) conducted investigation and registered a case vide

Crime No. 237/2002 on 17th November, 2002 against the

three accused namely, Goraksha Ambaji Adsul, Sow. Sunita

Goraksha Adsul and Mininath Ambaji Adsul. On further

investigation, it was found that the accused persons had

administered sedative/poisonous substance mixed in pedas

and thereafter strangulated all the three victims with shoe

7

laces. Thereafter, they placed the bodies of the these victims

in two different trunks . One trunk was kept near the

electricity board D.P. at nearby Village Malkop and the other

at the house of one Mr. Sakharam Thakaji Nabge, a friend of

the accused (PW7), before both were transported to the

Ahmednagar Railway Station by the accused Goraksha in a

hired maruti van. Thereafter, as afore-noticed, these trunks

were placed in different trains.

Accused nos. 2 and 3 were arrested on 14th November,

2002 and Accused no.1 on 30th November, 2002. Their

statements were recorded under Section 164 of the Cr.P.C. by

Mr. Sayyad, Judicial Magistrate, First Class, on 6 th February,

2003 and 7th February, 2003 respectively. Investigation was

completed and the accused were sent to the court of Judicial

Magistrate on 11th February, 2003 for committal to the Court

of Sessions so that they could be tried in accordance with law.

All the three accused had taken the defence of total denial and

pleaded false implication. Accused no. 1 had specifically taken

8

up the plea that between 22nd October, 2002 and 25th October,

2002, he was present at his duty place i.e. the Army Office at

Patiala. The prosecution has examined as many as 25

witnesses to bring home guilt of the accused persons and after

recording the statement of the accused under Section 313 of

the Cr.P.C., the trial court after discussing the entire evidence

on record had found Accused no.1 Goraksha Ambaji Adsul

guilty of an offence under Section 302 as well as Section 201

of the IPC and awarded the sentence of death to him.

However, Accused Nos. 2 and 3 were acquitted as according to

the trial court, the prosecution had failed to prove its case

beyond reasonable doubt against these accused. The State

did not prefer any appeal against the acquittal of the said two

accused and thus, their acquittal has already attained finality.

Resultantly, in the present appeal, we are only concerned with

Accused no.1 Goraksha Ambaji Adsul, who has filed an

independent appeal against the judgment of conviction and

sentence.

9 As would appear from the above narrated factual matrix, it is

a case of circumstantial evidence and there is no eye-witness

or other direct evidence in regard to the murder of the three

deceased persons. As is clear from the above, Ambaji Ahilaji

Adsul was the real father of Accused nos.1 and 2 while

Accused no.3 is the wife of Accused no.1. Deceased Janabai

was the second wife of Ambaji and therefore the step-mother

of Accused nos.1 and 2. Deceased Reshma and PW13 Sunil

are the children born to Janabai from Ambaji, thus, they are

the step-sister and step-brother of the Accused nos.1 and 2.

It is the case of the prosecution that there used to be quarrels

and the accused Goraksha used to demand partition of the

land and other properties. In fact, he is stated to have

assaulted his father during those quarrels. The accused

Goraksha had returned home for Diwali. He had brought

sweets (pedas) with him, which he offered to all, i.e. Ambaji,

Janabai, Sunita, Reshma and Sunil on the night of 23 rd

October, 2002. These pedas contained sedative/poisonous

substance and after supper when the family was asleep,

10

Goraksha killed his father, stepmother and stepsister by

strangulation and packed the dead bodies in two metallic

boxes. One of the boxes was loaded in the train 2779 UP,

Goa-Nizammudin Express while the other was loaded in train

7602-UP, Nanded-Pune Express and the same were recovered

at Bhopal and Daund Railway Stations respectively, as noticed

above. Sunil and the accused Sunita required medical

assistance on the next day as they suffered from vomiting and

dysentery presumably because of food poisoning caused by

the sedative-infused pedas, which were offered to them by

Accused no.1 Goraksha. Another suspicious circumstance

which led to the arrest of the accused was that on enquiry by

the brother of the deceased Ambaji, the accused had informed

him that Ambaji, Janabai and Reshma had gone to

Ahmednagar for medical treatment and subsequently claimed

that he had received a telephone call from his father stating

that the family was proceeding to the holy place of

Pandharpur. Still another circumstance which connected

accused no.1 with the commission of the crime was that he

11

had hired a maruti van owned by PW14 Bapusaheb Shinde for

the purpose of carrying the two trunks containing the three

dead bodies from Village Malkop to the Railway Station,

Ahmednagar. PW-7 Sakharam Nabge, a friend of the accused

had also deposed that the trunk was kept in front of his house

before it was loaded in the Maruti Van. PW12, Baban Vishnu

Thorat is a friend of Bapusaheb Shinde and both of them were

together when Goraksha contacted Bapusaheb for hiring of

Maruti Van on 24th October, 2002. They were again together

when two trunks were lifted in the early dawn hours on 25th

October, 2002. Thus, these two persons were material

witnesses for establishing the fact that these trunks/iron

boxes were actually carried from the place afore-indicated to

the Railway Station by the accused. PW17, Pandurang

Daobhat is the brother of the deceased Janabai and had

identified the dead bodies. His statement is of significance in

regard to the identification of the dead bodies as well as the

conduct of the accused subsequent to the recovery of the dead

bodies. He is the person who was provided with incorrect

12

information by the accused Goraksha regarding whereabouts

of the deceased. PW13 Sunil is another material witness as

he was also administered the pedas laced with sedatives and

the same was served in his presence to the deceased by the

Accused no.1 Goraksha. Besides this evidence, the statement

of Dr. Sanjay Pande, PW10 also helps in completing the chain

of events leading to the commission of the crime and its

subsequent result. According to this witness, he had treated

Sunil (PW13) and Sunita (Accused no.3) on 24th October, 2002

when they were brought to him with the complaint of diarrhea.

When they went to the doctor, Goraksha, the Accused no.1

had accompanied them.

PW23, Ezaz Ahmed, Judicial Magistrate, First Class at

Sahabad had recorded the statements of PW12, PW14, PW17

and Meerabai Daobhat, sister of the deceased Janabai under

Section 164 of the Cr.P.C. We may also notice that some of

the panch witnesses who had signed the panchnamas turned

hostile and PW7 Sakharam, a personal friend of the accused

13

Goraksha also did not fully support the case of the

prosecution.

The above are the main witnesses on whose statement

the entire case of the prosecution rests, of course, in addition

to the statement of the Investigating Officers and other formal

witnesses. Accused nos. 2 and 3 were acquitted by the trial

court and the High Court noticed that it was not concerned

with the merit or otherwise of their acquittal by the trial court

as the State had not preferred any appeal against the

judgment of acquittal.

At this stage, we may usefully refer to the circumstances

which were relied upon by the prosecution before the courts

and they were as follows:-

i Motive - dispute over agricultural land/partition.

(Evidence of PW-13 Sunil and PW-17 Pandurang)

i Last seen together - (togetherness by virtue of joint

family).

i Administration of sedative through sweets. (Evidence of

PW-13 Sunil and PW-10 Dr. Pande).

14

i The disposal of dead bodies by Accused no.1 (Evidence of

PW-12 Baban, PW-14 Bapusaheb).

i Identification of Accused no.1 as person loading one

trunk in Goa-Nizammuddin Express train (PW-15 Aradhana).

i Homicidal death.

i False theory/explanation propounded by accused for

absence of the victim. (Evidence of PW-13 Sunil and PW-17

Pandurang).

In the facts and circumstances of the case, the High

Court expressed the opinion that two circumstances, i.e. the

last seen together and the homicidal death stands proved by

themselves and do not require further evidence to prove that

fact. We fully agree with the view expressed by the High Court

that, keeping in view the photographs of the dead body and

the doctor's statement, it was proved to be a homicidal death.

The learned counsel appearing for the Accused no.1

(appellant) argued with some vehemence that the doctor had

not expressed his opinion with regard to the cause of death

particularly in relation to Reshma and Janabai, as is evident

from Exhibits 113 and 114. But this argument does not

15

impress us at all inasmuch as the death of the two persons

have been proved. From the injury report on the body of the

deceased, the photographs and the circumstances attendant

thereto, it is more than clear that this was a case of homicidal

death. The bodies of the deceased were duly identified. It was

practically an admitted case that the deceased as well as the

accused were living in a joint family and had their last meals

together, during which the accused had offered pedas to the

family including the deceased. This is fully substantiated by

the statement of PW13 and PW10. PW13, Sunil is a family

member. He had also suffered the consequences of

consuming the pedas and was treated by PW10, Dr. Pande.

The factum of carrying of two boxes and loading them on the

respective trains has also been fully established by the

prosecution as we have above-discussed. At this stage, we

may refer to some extracts of the High Court judgment where

in our view the High Court has correctly appreciated the

evidence. It disregarded the statement of PW7 while fully

relying upon and holding that there were witnesses who were

16

truthful and can be safely relied upon, the Court held as

under: -

"To sum-up the assessment of evidence of these seven vital

witnesses, we may say that, PW-7 Sakharam Nabge has made

himself sufficiently useless for the prosecution. Evidence of

PW-12 Baban Thorat is acceptable to establish that Accused

No.1 had contracted with PW-14 Bapusaheb and accordingly

two trunks were transported from Malkop D.P. to Ahmednagar

Railway Station at the instance of Accused No.1 (sic), for

which accused no.1 paid hire charges of Rs.200/-. Evidence

of PW-14 Bapusaheb, although shaky, can be relied upon on

the same point, to the extent it is in harmony with the

evidence of PW-12. We find PW-10 Dr. Pande, in the absence

of case-papers to refresh his memory, to be not reliable. PW-

15 Aradhana also cannot be relied upon for the purpose of

identification of Accused No.1, although she can be believed to

the extent that the trunk was loaded in Goa-Nizamuddin

Express, at Ahmednagar Railway Station. PW-17 Pandurang

can be relied upon for identification of the victims and

subsequent conduct of Accused No.1, so also to some extent,

possible motive i.e. quarrels on the point of partition. PW-13

Sunil, although a child witness, can certainly be believed

regarding togetherness on the fateful night, more so because

that is an admitted position. His evidence regarding quarrels

on the point of partition can also be accepted, because of

support from Pandurang and probability. The story of

administration of Pedhas containing some sedative/poisonous

substance and subsequent admission to Mate Hospital, has

become a story not acceptable without risk, more so when

such story is not supported by any case papers.

XXX XXX XXX XXX XXX

17

We have subjected the evidence to close scrutiny and only

thereafter arrived at our conclusion as to whether witnesses

are to be believed and if yes, to what extent.

By relying upon Anthony D. Souza - Vs. - State of Kerala,

A.I.R. 2003 S.C. 258 and Darshansingh -Vs.- State of Punjab,

1995 S.C.C. (Crl.) 702, learned A.P.P. has propounded that, in

case accused makes a statement under section 313 of Cr.P.C.

completely denying the prosecution case and established facts

and offers false answers or explanation, that can be counted

as providing missing link from complete chain of the

prosecution evidence and circumstances, in a case based on

circumstantial evidence. Relying on these cases, an argument

that false explanation can be utilized as one of the links in the

chain of circumstantial evidence was advanced, in order to

persuade this Court that story narrated by accused Goraksha

to PW-17 Pandurang about the victims having gone to

Pandharpur should be taken into consideration as false

explanation, although not to the Court, to the relatives and

others. In fact, as already pointed out earlier, accused have

persisted in sticking to this explanation even during the curse

(sic) of their statement under Section 313 Cr.P.C., 1973,

without demonstrating to the Court that either of the two

trains, i.e. Goa-Nizamuddin Express and Nanded-Pune

Express travel via Padharpur (sic). We may state it here itself,

that explanation offered by the accused about his having

received a message from Balasaheb Sinare of Village Padali,

who received telephone of the deceased Ambaji, of the three

victims having gone to Pandharpur cannot be said to have

been probabilised in the absence of evidence of said

Balasaheb Sinare. The two trains not having been

demonstrate as passing through Pandharpur gives another set

back to the said defence.

24. In the light of acquittal of Accused Nos. 2 and 3 by the

trial court, learned Advocate for the appellant has placed

reliance upon the observations of the Supreme Court in the

18

matter of Suraj Mal - Vs- State (Delhi Administration), A.I.R.

1979 S.C. 1408, and more particularly, observation to the

following effect in para 2: -

"where witnesses make tow (sic) inconsistent statements in

their evidence, either at one stage or at two stages, the

testimony of such witnesses becomes unreliable and unworthy

of credence, and in absence of special circumstances, no

conviction can be based on the evidence of such witness."

This was a case under Prevention of Corruption Act. Three

police officers were tried for allegedly having accepted bribe.

PW No.s 6, 8 and 9, Shiv Naryan, Prem Nath and Sham

Sunder resiled from their statements which they made in their

chief examination and all of them stated that Ram Naryan

(one of the three accused) refused to accept the bribe. Ram

Naryan was, therefore, acquitted by the trial Court. Another

accused Devender Singh was acquitted by the High Court on

the ground that the sanction was not valid.

We are unable to appreciate the applicability of the ratio to the

matter at hands. As can be seen from the impugned

judgment, in the present matter, Accused No.s 2 and 3 are

acquitted by the trial Court because there is no evidence

referring to them....."

The above conclusion of the High Court does not suffer

from any legal infirmity. It is in conformity with the settled

principles of law and is based on proper appreciation of

evidence. In fact, finding of guilt by both the Courts is

concurrent. However, they differ only on the question of

19

quantum of sentence. On the appreciation of evidence, we are

also of the considered view that the prosecution has been able

to prove a complete chain of events which points only towards

the guilt of the accused. Even in a case of circumstantial

evidence, if the prosecution is able to establish the chain of

events to satisfy the ingredients of commission of an offence,

the accused would be liable to suffer the consequences of his

proven guilt. In the present case, right from the evidence of

the entire family having the last dinner together and

administering of pedas with sedatives or poisonous

substances to the recovery of bodies of the deceased at

different railway stations the chain of events stands proved

beyond reasonable doubt. In fact, the statement of the

accused under Section 313 of the Cr.P.C. further supports the

case of the prosecution and demolishes the stand of the

defence of complete denial. Thus, we are unable to find any

error in the concurrent findings recorded by the Courts

holding the accused guilty of an offence under Sections 302

and 201 of the I.P.C.

20 Next, we are concerned with whether this Court should

exercise its judicial discretion to enhance his punishment

from life imprisonment to death sentence, as contemplated on

behalf of the State in its appeal.

The factual matrix of the case as well as the evidence

which has been led by the prosecution to bring home the guilt

of the accused, we have already discussed in some detail.

Presently, we may discuss the principles which have been long

settled by this Court for imposition of death penalty. The

principles governing the sentencing policy in our criminal

jurisprudence have more or less been consistent, right from

the pronouncement of the Constitution Bench judgment of

this Court in the case of Bachan Singh v. State of Punjab

[(1980) 2 SCC 684]. Awarding punishment is certainly an

onerous function in the dispensation of criminal justice. The

Court is expected to keep in mind the facts and circumstances

of a case, the principles of law governing award of sentence,

the legislative intent of special or general statute raised in the

21

case and the impact of awarding punishment. These are the

nuances which need to be examined by the Court with

discernment and in depth. The legislative intent behind

enacting Section 354(3) of the Cr.P.C. clearly demonstrates the

concern of the legislature for taking away a human life and

imposing death penalty upon the accused. Concern for the

dignity of the human life postulates resistance to taking a life

through law's instrumentalities and that ought not to be done,

save in the rarest of rare cases, unless the alternative option is

unquestionably foreclosed. In exercise of its discretion, the

Court would also take into consideration the mitigating

circumstances and their resultant effects. Language of

Section 354(3) demonstrates the legislative concern and the

conditions which need to be satisfied prior to imposition of

death penalty. The words, `in the case of sentence of death the

special reasons for such sentence' unambiguously

demonstrates the command of the legislature that such

reasons have to be recorded for imposing the punishment of

death sentence. This is how the concept of rarest of rare

22

cases has emerged in law. Viewed from that angle, both the

legislative provisions and judicial pronouncements are at ad

idem in law. The death penalty should be imposed in rarest of

rare cases and that too for special reasons to be recorded. To

put it simply, a death sentence is not a rule but an exception.

Even the exception must satisfy the pre-requisites

contemplated under Section 354(3) of the Cr.P.C. in light of

the dictum of the Court in the case of Bachan Singh (supra).

The Constitution Bench judgment of this Court in the case of

Bachan Singh (supra) has been summarized in paragraph 38

in the case of Machhi Singh vs. State of Punjab (1983) 3 SCC

470 and the following guidelines have been stated while

considering the possibility of awarding sentence of death:

"i) The extreme penalty of death need not be inflicted except

in gravest cases of extreme culpability.

ii) Before opting for the death penalty the circumstances of

the `offender' also required to be taken into consideration

along with the circumstances of the `Crime'.

iii) Life imprisonment is the rule and death sentence is an

exception, Death sentence must be imposed only when life

imprisonment appears to be an altogether inadequate

23

punishment having regard to the relevant circumstances of

the crime, and provided, and only provided the option to

impose sentence of imprisonment for life cannot be

conscientiously exercised having regard to the nature and

circumstances of the crime and all the relevant

circumstances.

iv) A balance sheet of aggravating and mitigating

circumstances has to be drawn up and in doing so the

mitigating circumstances have to be accorded full weightage

and a just balance has to be struck between the aggravating

and the mitigating circumstances before the option is

exercised."

The judgment in the case of Bachan Singh (supra), did not

only state the above guidelines in some elaboration, but also

specified the mitigating circumstances which could be

considered by the Court while determining such serious

issues and they are as follows:

"Mitigating circumstances. - In the exercise of its discretion in

the above cases, the court shall take into account the

following circumstances:

1 (1) That the offence was committed under the influence

of extreme mental or emotional disturbance.

2

3 (2) The age of the accused. If the accused is young or

old, he shall not be sentenced to death.

24

1 (3)The probability that the accused would not commit

criminal acts of violence as would constitute a continuing

threat to society.

1 (4) The probability that the accused can be reformed and

rehabilitated. The State shall by evidence prove that the

accused does not satisfy the conditions (3) and (4) above.

1 (5)That in the facts and circumstances of the case the

accused believed that he was morally justified in

committing the offence.

1 (6) That the accused acted under the duress or

domination of another person.

1 (7)That the condition of the accused showed that he was

mentally defective and that the said defect impaired his

capacity to appreciate the criminality of his conduct."

Now, we may examine certain illustrations arising from the

judicial pronouncements of this Court. In the case of D.K.

Basu v. State of West Bengal [(1997) 1 SCC 416] this Court

took the view that custodial torture and consequential death

in custody was an offence which fell in the category of rarest of

rare cases. While specifying the reasons in support of such

decision, the Court awarded death penalty in that case. In the

case of Santosh Kumar Satishbhushan Bariyar vs. State of

Maharashtra [(2009) 6 SCC 498], this Court also spelt out in

25

paragraphs 56 to 58 that nature, motive, impact of a crime,

culpability, quality of evidence, socio-economic circumstances,

impossibility of rehabilitation are the factors which the court

may take into consideration while dealing with such cases. In

that case the friends of the victim had called him to see a

movie and after seeing the movie, a ransom call was made,

but with the fear of being caught, they murdered the victim.

The Court felt that there was no evidence to show that the

criminals were incapable of reforming themselves, that it was

not a rarest of rare case, and therefore, declined to award

death sentence to the accused. Interpersonal circumstances

prevailing between the deceased and the accused was also

held to be a relevant consideration in the case of Vashram

Narshibhai Rajpara v. State of Gujarat [AIR 2002 SC 2211]

where constant nagging by family was treated as the

mitigating factor, if the accused is mentally unbalanced and

as a result murders the family members. Similarly, the

intensity of bitterness which prevailed and the escalation of

simmering thoughts into a thirst for revenge and retaliation

26

were also considered to be a relevant factor by this Court in

different cases.

This Court in the case of Satishbhushan Bariyar (supra) also

considered various doctrines, principles and factors which

would be considered by the Courts while dealing with such

cases. The Court discussed in some elaboration the

applicability of doctrine of rehabilitation and the doctrine of

prudence. While considering the application of the doctrine of

rehabilitation and the extent of weightage to be given to the

mitigating circumstances, it noticed the nature of the evidence

and the background of the accused. The conviction in that

case was entirely based upon the statement of the approver

and was a case purely of circumstantial evidence. Thus,

applying the doctrine of prudence, it noticed the fact that the

accused were unemployed, young men in search of job and

they were not criminals. In execution of a plan proposed by

the appellant and accepted by others, they kidnapped a friend

of theirs. The kidnapping was done with the motive of

27

procuring ransom from his family but later they murdered him

because of the fear of getting caught, and later cut the body

into pieces and disposed it off at different places. One of the

accused had turned approver and as already noticed, the

conviction was primarily based upon the statement of the

approver. Basing its reasoning on the application of doctrine

of prudence and the version put forward by the accused, the

Court, while declining to award death penalty and only

awarding life imprisonment, held as under: -

"135. Right to life, in its barest of connotation would imply

right to mere survival. In this form, right to life is the most

fundamental of all rights. Consequently, a punishment which

aims at taking away life is the gravest punishment. Capital

punishment imposes a limitation on the essential content of

the fundamental right to life, eliminating it irretrievably. We

realize the absolute nature of this right, in the sense that it is

a source of all other rights. Other rights may be limited, and

may even be withdrawn and then granted again, but their

ultimate limit is to be found in the preservation of the right to

life. Right to life is the essential content of all rights under the

Constitution. If life is taken away, all other rights cease to

exist.

XXX XXX XXX XXX XXX

168. We must, however, add that in a case of this nature

where the entire prosecution case revolves round the

28

statement of an approver or dependant upon the

circumstantial evidence, the prudence doctrine should be

invoked. For the aforementioned purpose, at the stage of

sentencing evaluation of evidence would not be permissible,

the courts not only have to solely depend upon the findings

arrived at for the purpose of recording a judgment of

conviction, but also consider the matter keeping in view of

evidences which have been brought on record on behalf of the

parties and in particular the accused for imposition of a lesser

punishment. A statement of approver in regard to the manner

in which crime has been committed vis-a-vis the role played

by the accused, on the one hand, and that of the approver, on

the other, must be tested on the touchstone of the prudence

doctrine

169. The accused persons were not criminals. They were

friends. The deceased was said to have been selected because

his father was rich. The motive, if any, was to collect some

money. They were not professional killers. They have no

criminal history. All were unemployed and were searching for

jobs. Further if age of the accused was a relevant factor for the

High Court for not imposing death penalty on Accused No. 2

and 3, the same standard should have been applied to the

case of the appellant also who was only two years older and

still a young man in age. Accused Nos. 2 and 3 were as much

a part of the crime as the appellant. Though it is true, that it

was he who allegedly proposed the idea of kidnapping, but at

the same time it must not be forgotten that the said plan was

only executed when all the persons involved gave their

consent thereto.

171. Section 354(3) of the Code of Criminal Procedure requires

that when the conviction is for an offence punishable with

death or in the alternative with imprisonment for life or

imprisonment for a term of years, the judgment shall state the

reasons for the sentence awarded, and in the case of sentence

29

of death, the special reasons thereof. We do not think that the

reasons assigned by the courts below disclose any special

reason to uphold the death penalty. The discretion granted to

the courts must be exercised very cautiously especially

because of the irrevocable character to death penalty.

Requirements of law to assign special reasons should not be

construed to be an empty formality.

172. We have previously noted that the judicial principles for

imposition of death penalty are far from being uniform.

Without going into the merits and demerits of such discretion

and subjectivity, we must nevertheless reiterate the basic

principle, stated repeatedly by this Court, that life

imprisonment is the rule and death penalty an exception.

Each case must therefore be analyzed and the

appropriateness of punishment determined on a case-by- case

basis with death sentence not to be awarded save in the

`rarest of rare' case where reform is not possible. Keeping in

mind at least this principle we do not think that any of the

factors in the present case discussed above warrants the

award of the death penalty. There are no special reasons to

record the death penalty and the mitigating factors in the

present case, discussed previously, are, in our opinion,

sufficient to place it out of the "rarest of rare" category.

173. For the reasons aforementioned, we are of the opinion

that this is not a case where death penalty should be imposed.

The appellant, therefore, instead of being awarded death

penalty, is sentenced to undergo rigorous imprisonment for

life. Subject to the modification in the sentence of appellant

(A1) mentioned hereinbefore, both the appeals of the appellant

as also that of the State are dismissed."

30

The above principle, as supported by case illustrations, clearly

depicts the various precepts which would govern the exercise

of judicial discretion by the Courts within the parameters spelt

out under Section 354(3) of the Cr.P.C. Awarding of death

sentence amounts to taking away the life of an individual,

which is the most valuable right available, whether viewed

from the constitutional point of view or from the human rights

point of view. The condition of providing special reasons for

awarding death penalty is not to be construed linguistically

but it is to satisfy the basic features of a reasoning supporting

and making award of death penalty unquestionable. The

circumstances and the manner of committing the crime

should be such that it pricks the judicial conscience of the

Court to the extent that the only and inevitable conclusion

should be awarding of death penalty.

In the present case, the accused belonged to the armed forces,

his father had married for the second time and had children

from the second wife. There were continuous quarrels with

31

regard to the division of property and during these quarrels

the accused is stated to have even hit his father. It was a

pressure which had increased with the passage of time and

probably this frustration attained the limit of commission of

such a heinous crime by the accused. Surely, the manner in

which the crime has been committed is deplorable but the

attendant circumstances and the fact that he even

administered the sweets (pedas) containing

sedatives/poisonous substance to his own wife Sunita

Goraksha Adsul, the Accused no.3, shows that his frustration,

and probably greed, for the property had attained volcanic

dimensions. The intensity of bitterness between the members

of the family had exacerbated the thoughts of revenge and

retaliation in him. The constant nagging would have to be

taken as a mitigating circumstance in the commission of this

crime. Resultantly, in view of the above factual matrix and the

legal analysis, we do not find that the present case falls in the

category of `rarest of rare cases'.

32 For the reasons afore-recorded, we dismiss both the appeals.

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

[Dr. B.S. Chauhan]

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

[Swatanter Kumar]

New Delhi;

July 7, 2011.

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