Sushil Kumar vs State Of Punjab

Sushil Kumar ....Appellant

Versus

State of Punjab ....Respondent

J U D G M E N T

Deepak Verma, J.

1. Life or death is the question involved in this appeal.

Sole appellant Sushil Kumar alias Lucky has been awarded

death sentence in Sessions Case No. 70 of 2006, by Additional

Sessions Judge, Jalandhar vide judgment and order dated

13/17.4.2007 holding him guilty of commission of offence

under Section 302 of Indian Penal Code (for short 'I.P.C.')

on three counts, i.e., for committing murder of his wife

Pooja, son Jatin (6 years) and daughter Sofia (4 years).

However, he was acquitted of the offence punishable under

Section 309, IPC. Feeling aggrieved thereof, appellant

preferred Criminal Appeal No. 447-DB of 2007 in the High

Court of Punjab and Haryana at Chandigarh and as required

under law, Death Reference under Section 366 of the Code of

Criminal Procedure, 1973 (for short 'Cr.P.C.') was sent for Crl.A.No.670/09 .... (contd.)

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confirmation to the High Court by the learned Additional

Sessions Judge vide Murder Reference No. 3 of 2007.

2.Vide impugned judgment and order pronounced on 30.5.2008 by

Division Bench of the High Court, Murder Reference No. 3 of

2007 has been answered against the appellant and capital

punishment awarded to the appellant stands affirmed, as a

necessary consequence thereof, Criminal Appeal No. 447-DB of

2007 filed by appellant stands dismissed. Hence, this

appeal, but only against Murder Reference and not against the

dismissal of his Criminal Appeal on merits. In other words,

he is challenging only the capital punishment awarded to him

and not the conviction under Section 302 IPC.

3.The genesis of the prosecution story was set at motion on

the strength of telephonic information given to Police

Station, Division No.5, Jalandhar on 4.3.2005 by Mr. Ram Lal,

Councillor of Basti Danishmandan about the incident, which

triggered off the police in action. S.I. Onkar Singh (PW-11),

Investigating Officer, reached the place of occurrence

alongwith other police personnel, where he found Sukhdev Kumar

(PW-2), brother of deceased Pooja, who gave details of the

unfortunate incident. The information, as narrated by him, to

PW-11, I.O. is mentioned hereinbelow:

Crl.A.No.670/09 .... (contd.)

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4. (i) His younger sister Pooja @ Ashma was married to

appellant Sushil Kumar about seven years back. They were

blessed with two children: a son, Jatin @ Babu, aged six years

and a daughter, Sofia, aged four years. They had been

residing in a rented accommodation of Pawan Kumar.

(ii) Earlier, appellant Sushil Kumar was working in a

shop of Babbu of Kishanpura but for the last about 7-8 months

he was unemployed and was thus passing through great

financial difficulties. He was borrowing money from others to

meet his daily needs.

(iii) Just two days prior to the incident, i.e. on

2.3.2005, at about 1.30 p.m. PW-2 Sukhdev had visited their

house to enquire about their welfare and at that time had

noticed a minor scuffle between his sister and her husband,

the present appellant. He tried to intervene and advised

them to live peacefully and amicably.

(iv) On 4.3.2005 at about 6.30 in the morning PW-2

Sukhdev received a telephonic call from appellant informing

him that he has been admitted in the hospital and he

requested Sukhdev to visit his house to enquire about the

welfare of his wife and children, who were alone at home. He

further asked him to enter the house by climbing its wall.

When Sukhdev enquired from the appellant if there had been Crl.A.No.670/09 .... (contd.)

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any unpleasantness between the two, he was told to first

visit his house, then to inform him and abruptly snapped the

phone.

(v) Sensing foul-play, Sukhdev rushed to the house of his

sister and entered through the gate. He then saw the dead

bodies of his sister Pooja, her son Jatin and daughter Sofia

lying on bed. It appeared that they were strangulated to death

with the aid of plastic rope which was lying on the bed. Both

hands of son Jatin were tied and all of them had also

sustained incised wounds.

(vi) While Sukhdev was still hovering under a great

shock and agony, he received yet another phone call from

appellant at about 6.45 a.m. Sukhdev enquired from the

appellant as to what he has done and also requested him to

reach home at the earliest but appellant once again snapped

the phone.

(vii) Later on Sukhdev came to know that appellant had

also consumed 'Sulphas tablets' and got himself admitted in

Civil Hospital at Jalandhar. Sukhdev appeared to be confident

that appellant has done away with his wife Pooja, son Jatin

and daughter Sofia by strangulating their necks and by

inflicting injuries on their persons and thereafter allegedly

consumed 'Sulphas tablets' as he was poverty stricken. Crl.A.No.670/09 .... (contd.)

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5. On the strength of the aforesaid statement having been

recorded by P.W-11, Onkar Singh (I.O.) marked as Exh. PD/1,

endorsement was made by him, which was sent to the Police

Station for recording formal First Information Report, marked

Exh. PD/2. He thereafter conducted inquest proceedings of

dead bodies and removed them to Civil Hospital, Jalandhar,

for post-mortem examination.

6. Dr. S.K. Sharma (PW-1) conducted post-mortem on all the

three dead bodies. As is clear from the impugned judgment,

Pooja had sustained as many as seven injuries including

incised wounds and multiple abrasions on her body, Jatin @

Babbu had sustained single incised injury on his chest and

Sofia had sustained six incised wounds on her body. The

cause of death of all the three persons according to Dr.

Sharma was shock and haemorrhage.

7. It is pertinent to mention here that doctor had

specifically mentioned in all the post-mortem reports that

probable time elapsed between injury and death within few

minutes and between death and postmortem within 24 hours.

8. It has neither been disputed before us nor it was

disputed in the High Court that they all had met with

homicidal deaths. Thus, the question that arises before us

is, whether the same has been committed by the appellant and Crl.A.No.670/09 .... (contd.)

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if yes, what sentence would be just and appropriate to be

awarded to him, keeping in mind the enormity and dastardly

manner in which they were murdered.

9. The Investigating Officer (PW-11) took possession of

blood stained bed sheet and pillows vide recovery memo (Ex.

PH. Plastic rope allegedly used for strangulation of the

deceased was also taken into possession by a separate recovery

memo. During the course of investigation, statements of

witnesses were recorded and a rough site plan of scene of

occurrence with correct marginal notes was prepared.

10. Accused was arrested on 7.3.2005. During interrogation,

appellant made a disclosure Memo (Ex.PE) and pursuant thereto,

a blood-stained knife (Chhura) (Ex.P/5) allegedly used for

commission of the offence was recovered from the place shown

by him i.e. under some clothes in the same room where dead

bodies were found.

11. On completion of the investigation, challan was filed

against the appellant. Learned Addl. Sessions Judge framed

charges against the appellant under Section 302 IPC for murder

of his wife, son and daughter and also under Section 309 of

the IPC for his attempted suicide. Subsequently, charges were

amended to three separate charges on account of three murders

having been committed by the appellant in one incident. Crl.A.No.670/09 .... (contd.)

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Appellant pleaded not guilty and prayed to be tried.

12. To bring home the charges against the appellant, evidence

of Sukhdev (PW-2) brother of deceased and complainant, Raj

Kumar (PW-3), who had received information about murder of

wife and children of the accused from his landlord, Satpal

(PW-4) appellant's neighbour, who had seen him last at 5.00

a.m. coming out from his house and Pushpa (PW-5) mother of

deceased Pooja, was recorded at the instance of prosecution,

which we would scan deeply later. Apart from the aforesaid

witnesses, prosecution had examined Dr. S.K. Sharma (PW-1),

who had performed the post-mortem on the bodies of deceased,

(P.W-10) Dr. Kamaljit Singh Bawa, Medical Specialist, Civil

Hospital, Jalandhar, Onkar Singh, Investigating Officer (PW-

11) and other formal witnesses to prove the seizure memos,

disclosure memos etc.

13. The appellant had taken a plea of alibi that on the

fateful day, he was not in Jalandhar and had gone to Amritsar

to complete the work of his employer. Since he was delayed at

Amritsar, he decided to stay back with his maternal uncle. To

prove the plea of alibi, he examined Dharam Pal (DW-1) as a

defence witness. However, learned Trial Judge as also High

Court have not found the plea of alibi established, on account

of serious contradictions in the statement of appellant Crl.A.No.670/09 .... (contd.)

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recorded under Section 313 of Cr.P.C and that of his defence

witness DW-1.

14. In the light of the aforesaid backdrop of the factual

aspect as has been unfolded, we have to see whether it is a

fit case for confirming the death sentence on the appellant

or to award him some other punishment.

15. At the cost of repetition we reiterate that this appeal

has been preferred only against Murder Reference No. 3 of 2007

as is manifest from the memo of appeal. Thus, initially

finding it difficult to challenge the conviction and sentence

under Section 302 IPC awarded to appellant, learned counsel

for appellant advanced arguments only on the question of

quantum of sentence but later on prayed for leave of this

Court to permit him to argue both on the question of

conviction and sentence. With an intention to do complete

justice between the parties, we granted him permission.

16. Accordingly, we have heard Mr. Rishi Malhotra, learned

counsel appearing for appellant and Mr. Kuldip Singh, learned

counsel appearing for the respondent-State at great length and

have perused the record.

17. Learned counsel for the appellant has seriously and

sincerely attempted to convince us that in the light of

several serious discrepancies appearing in the evidence of Crl.A.No.670/09 .... (contd.)

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Sukhdev (PW-2) brother of deceased Pooja, Raj Kumar (PW-3) and

Satpal (PW-4), who had last seen the accused coming out of

his house in the morning at 5.00 a.m. and Pushpa (PW-5)-

mother of the deceased, it was a case for acquittal or in the

light of said discrepancies at least benefit of doubt should

be extended to the appellant. It was also contended by him

that substantial part of evidence of Rajkumar (PW-3) was hit

by Section 25 of the Indian Evidence Act, 1872.

18. On the other hand, learned counsel for the respondent-

State Mr. Kuldip Singh, vehemently urged before us that it is

a fool-proof case and prosecution has proved beyond shadow of

doubt that it was the appellant alone who committed the crime.

Thus, it calls for no interference. He also contended that

looking to the brutality and dastardly commission of crime by

appellant, he does not deserve to be dealt with leniently. It

was also contended by him that to send a proper signal to the

society and as a matter deterrence, capital punishment alone

as awarded by learned Trial Judge and confirmed by High Court,

would meet the ends of justice.

19. Even though in this appeal, we are not legally obliged

to look into or to critically re-appreciate the evidence

available on record but with the intention to examine if

justice has been meted out to him or not, we have gone through Crl.A.No.670/09 .... (contd.)

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the entire evidence.

20. Now, we shall deal with material evidence which is

necessary to be considered in this appeal. First, in this

line is the evidence of Sukhdev (PW-2)complainant and brother

of the deceased. He has deposed that the deceased was his

younger sister, having married to appellant about seven years

back. They were blessed with two children, Jatin aged six

years and daughter Sofia aged four years. Earlier, they were

living in Amritsar but had shifted to Jalandhar some time

back. In Jalandhar, earlier they were living in a rented

house of Badri but then shifted to Basti Danishmandan close to

the residence of this witness, who was living along with his

mother (PW-5) Smt. Pushpa. Earlier the appellant was working

in a shop but about seven to eight months back he lost his

job, thus was rendered jobless.

21. He has then deposed that on 4.3.2005 at about 6.30

a.m. he had received a telephonic call from accused Sushil

Kumar asking him to go to his house to see Pooja and her

children, after climbing the wall. He further informed him

that he is talking to him from Civil Hospital, where he has

been admitted. Sukhdev (PW-2) made enquiries if there had

been any differences with Pooja the previous night, to which

he answered that he should first go and see wife and Crl.A.No.670/09 .... (contd.)

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children thereafter to talk to him. He then abruptly snapped

the phone. He has further deposed that he immediately rushed

to his sister's house and found the door open. He entered

their bed room and was shocked to see dead bodies of his

sister, nephew and niece lying on the bed. Hands of Jatin

were tied behind his back and they had also sustained bodily

injuries. A plastic rope was also lying on the bed, which

gave an indication that the same might have been used for

strangulating them.

22. At about 6.45 a.m. he received another call from the

accused, who once again enquired about his wife and children.

He informed him about dead bodies lying on the bed and

enquired as to what he has done, to which he once again

abruptly snapped the phone.

23. This witness thereafter gave details of the incident to

SI. Onkar Singh (PW-11), who as mentioned hereinabove, after

recording it sent it to the Police Station for formal

registration of the FIR. Even though he was cross-examined at

length but nothing came in the same to discard his evidence.

24. Rajkumar (PW-3) has also deposed that on receiving the

information about the murders having taken place, he visited

the house of the appellant who is known to him and found

three dead bodies. He also gave information to the police, Crl.A.No.670/09 .... (contd.)

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which reached the spot shortly. He has deposed that accused

was not present in the house. The clothes of dead bodies were

blood-stained. He was also a witness to disclosure statement

of the accused. The other evidence given by him would

neither be relevant nor can be considered, in the light of the

provisions contained in Section 25 of the Indian Evidence Act.

25. The other material witness is Satpal (PW-4), who stays

close to the house of the appellant and is well acquainted

with him. He has deposed that on 4.3.2005 at 5.00 a.m while

he was going for morning walk and when he crossed the house of

appellant, he saw him coming out from his house. He was

called from behind, he stopped for a while but was in a

perplexed condition and after stopping for a while the accused

moved ahead. Thereafter at about 6.45 a.m. he came to know

about the murder of the wife and two children of the accused.

Recovery of rope, bed sheet, pillows stained with blood was

completed in his presence. He is a witness to the memo Ex.PH.

Thus, this witness is important as he had last seen the

appellant coming out from his house, to which no explanation

has been offered by the appellant.

26. The last material evidence to connect the appellant with

the commission of crime is of Pushpa (PW-5)-mother-in-law of

the appellant. She has also deposed in great details with Crl.A.No.670/09 .... (contd.)

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regard to the strained relations between appellant and his

wife on account of financial problems. She has further

deposed as to how the phone call was received on 4.3.2005 at

6.30 a.m. by her son Sukhdev from the accused. She has further

deposed that on 2.3.2005 on receiving a phone from Pooja, she

had sent her son to their house, who later on informed that

they were fighting, obviously on account of financial

difficulties and on his intervention, the dispute was

settled.

27. Microscopic examination of the evidence of Pushpa (PW-

5) and that of Sukhdev (PW-2) would show that they are in

conformity with each other. Minor discrepancies are bound to

be there otherwise they would be termed as tutored witnesses.

It is also pertinent to mention here that evidence of (PW-2)

is in line with F.I.R. and his statement given to the police.

28. Even though we have critically gone through the

evidence of all these witnesses and have thoroughly scanned

the same but apart from minor discrepancies which are bound to

appear in a natural course of conduct of a normal human being,

there are no serious material discrepancies in the evidence

warranting us to completely discard their evidence.

29. There is no reason to doubt the credibility of all

these witnesses. Apart from the above, there is no reason why Crl.A.No.670/09 .... (contd.)

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they would falsely try to implicate the appellant, more so,

when they had already lost Pooja and her children. Nothing

has come on record that these witnesses were having strained

relations with the appellant. On the other hand, it is

clearly made out from the evidence that they were having

cordial relations and were visiting each other quite often.

30. It is manifest from the evidence mentioned hereinabove

that the appellant had got himself admitted in Civil Hospital,

Jalandhar on 4.3.2005 and was under treatment of Dr. Kamaljit

Singh Bawa (PW-10), Medical Specialist of the Civil Hospital.

According to Dr. Kamaljit Singh Bawa (PW-10), the appellant

was admitted on 4.2.2005 at about 6.30 a.m. and was

discharged on 7.3.2005. Dr. Kamaljit Singh Bawa has not been

able to conclusively say that any Sulphas tablet was taken by

the appellant or not. He has deposed that after taking

tablets, it is difficult to survive for a long period.

31.Appellant has not offered any explanation as to where was

he before his admission in the hospital on the fateful day.

Plea of alibi taken by him has not been found to be truthful

and in our opinion rightly so as the same stands falsified

from the evidence of Satpal (PW-4) who had seen him coming out

of his own house at 5.00 a.m. This is only indicative of the

fact that after commission of the alleged Crl.A.No.670/09 .... (contd.)

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crime, he got himself admitted in the Civil Hospital. It is

certain that he had committed the crime sometime in night and

then got himself admitted in the hospital at 6.30 a.m.

32. For all these reasons, as far as plea of alibi is

concerned, we concur with the findings recorded by learned

trial Judge as also High Court.

33. In the light of the aforesaid evidence, learned counsel

for appellant submitted that the only evidence against the

appellant is, recovery of one rope and knife but in view of

medical evidence it was not a case that they had died on

account of strangulation, which is manifest from the post-

mortem reports prepared by Dr. S.K. Sharma (PW-1), thus

recovery of rope was of no consequence. As far as knife was

concerned, same did not have any blood stains much less human

blood, which would leave only with the evidence of Satpal

(PW-4) who had last seen the appellant coming out from his own

house. It was therefore, contended that doctrine of last

seen, is a weak type of evidence and it is not enough to hold

the appellant guilty.

34. On the other hand, learned counsel for respondent

strongly contended before us that in any case it is not a

case of acquittal for the following reasons:

35. (i) Dead bodies were found from the house of appellant Crl.A.No.670/09 .... (contd.)

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where he was also living with them and has not explained about

the incident;

(ii) Blood stained bed sheets, clothes, pillows were

recovered from the bed room, where the dead bodies were found

which was shared by the appellant too;

(iii) Recovery of knife and rope from the same place;

(iv) appellant was last seen by (PW-4) at 5.00 a.m.,

while he was coming out from his house in a perplexed

condition;

(v) Sukhdev (PW-2) had no occasion to visit the house

of the appellant at 6.30 a.m. on the fateful day unless he was

informed about the incident by the appellant;

(vi) couple was having strained relations and was passing

through bad financial conditions; and

(vii) taking of false plea of alibi is also one of the

strong circumstances against the appellant to connect him with

the commission of crime.

36. Thus, looking to the totality of the facts and features

of the case and keeping in view the evidence available on

record, we have no doubt in our mind that the offence was

committed by the appellant and appellant only.

37. While holding that he alone is guilty of commission of

the murder of his wife and two children, now the question that Crl.A.No.670/09 .... (contd.)

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arises for consideration is what should be just and proper

sentence to be awarded.

38. On this question also we have heard learned counsel for

the parties at length and given our anxious consideration.

Learned counsel for the appellant contended that looking to

the mitigating circumstances available on record, no case

for awarding death sentence has been made out and he deserves

to be acquitted whereas learned counsel for respondent

submitted that it is a sure-shot case for awarding of death

sentence to the appellant.

39. To press the respective contentions in this regard they

have cited the most celebrated leading case on this point,

viz., Bachan Singh Vs. State of Punjab and others reported

in (1980) 2 SCC 684. This is a Constitution Bench Judgment of

this Court. In para 206 of the said judgment, mitigating

circumstances have been described which can be taken into

consideration while awarding death sentence. Paras 206 and

207 dealing in this regard are reproduced hereinbelow which

read as thus :

"206. Dr. Chatale has suggested these mitigating factors:

Mitigating circumstances:- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:- (1) That the offence was committed under the Crl.A.No.670/09 .... (contd.)

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influence of extreme mental or emotional disturbance.

(2) The age of the accused, if the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(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.

(5) That in the facts and circumstance of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(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.

207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several State of India, there are in force special enactments, according to which a 'child', that is, a person who at the date of murder was less than 16 years of age', cannot be tried, convicted and sentenced to death or for life for murder, nor dealt with according to the same criminal procedure as an adult. The special Acts provide for the reformatory procedure for such juvenile offenders or children."

40.The case of Bachan Singh (supra), is of course, the

Crl.A.No.670/09 .... (contd.)

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leading case on the said question which was considered by a

three Judge Bench of this Court in the case of Machhi Singh &

Ors. Vs. State of Punjab reported in (1983) 3 SCC 470 wherein

same principles of law have been reiterated. In the case of

Om Prakash Vs. State of Haryana reported in (1999) 3 SCC 19,

it has been explained as to why death sentence will not be

proper and what are the relevant factors to be considered and

it has further been observed that court must balance the

mitigating and aggravating circumstances of the case, mental

condition of the accused, the dispute between the families

which ultimately resulted in multiple murders. Even though it

was a case of murder of seven persons, but Division Bench of

this Court came to the conclusion that it was not a fit case

which would fall within the ambit of "rarest of rare cases".

41. On the other hand, learned counsel for the respondent has

placed reliance on the judgments in the case of Bablu @

Mubaraik Hussain Vs. State of Rajasthan reported in (2006)

13 SCC 116 and State of Uttar Pradesh Vs. Sattan alias

Satyendra & Ors. reported in (2009) 4 SCC 736 to strongly

contend that in the facts and circumstances of the case, ends

of justice would be met only when the appellant is awarded

death sentence.

42.Learned counsel for the appellant has brought to our

Crl.A.No.670/09 .... (contd.)

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notice yet another recent judgment of this Court in the case

of Santosh Kumar Satish Bhushan Boriyar etc. vs. State of

Maharashtra etc. reported in (2009) 6 SCC 498. In this

judgment, all the previous judgments on the said issue have

been considered and analysed. The law on the question of

Capital Punishment has been re-stated. Thereafter, guidelines

have been formulated to be observed while awarding death

sentence. Lastly, it has been held that there have to be very

special reasons to record death penalty and if mitigating

factors in the case are stronger then it is neither proper nor

justified to award death sentence and it would be sufficient

to place it out of "rarest of rare category". We have

critically gone through the said judgment.

43.In the case in hand, weighing the mitigating circumstances

the following facts are manifest:

(i) appellant had been unemployed for last 7 to 8 months

(ii) he used to borrow money from others to meet his

daily needs.

(iii) he himself had consumed 'sulphas tablets' to commit

suicide even though not medically established.

(iv) he therefore, was keen that his whole family should

be finished and no one should be alive to suffer the pain and agony alone.

Crl.A.No.670/09 .... (contd.)

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(v) he was fed up with his life and was seen in a perplexed

condition by PW-4.

(vi) in any case, he cannot be a threat to the society and

there are fairly good chances of his reformation as he has

learnt sufficient lesson from it.

44.Extreme poverty had driven the appellant to commit the

gruesome murder of three of his very near and dear family

members - his wife, minor son and daughter.

45. There is nothing on record to show that appellant is a

habitual offender. He appears to be a peace loving, law

abiding citizen but as he was poverty stricken, he thought in

his wisdom to completely eliminate him family so that all

problems would come to an end. Precisely, this appears to be

the reason for him to consume some poisonous substances, after

committing the offence of murder. No witness has complained

about his bad or intolerable behaviour in the past. Many

people had visited his house after the incident is indicative

of the fact that he had cordial relations with all. He is now

about 35 years of age and there appear to be fairly good

chances of the appellant getting reformed and becoming a good

citizen.

46.Thus, looking to the matter from all angles and after giving our serious consideration to the whole matter, we are

Crl.A.No.670/09 .... (contd.)

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of the opinion that it is not a fit case where it would fall

within the category of "rarest of rare case" and therefore

death sentence as awarded to him by learned trial Judge and

confirmed by High Court deserves to be set aside and quashed

and is accordingly done so by us instead he is held guilty

of commission of offence under Section 302 of the IPC on three

counts and is awarded life imprisonment for the same. The

impugned judgment and order stands modified to the aforesaid

extent and the appeal accordingly stands disposed of.

.......................J. (V.S. SIRPURKAR)

.......................J. [DEEPAK VERMA]

New Delhi.

September 01, 2009.