Vijay Kumar vs The State Of Jammu And Kashmir

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1391­1393 OF 2018 [Arising out of SLP (Crl.) Nos. 6454­6456 of 2014]

Vijay Kumar .. Appellant

Versus

The State of Jammu & Kashmir .. Respondents

J U D G M E N T

Leave granted.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 06.03.2014 passed by the High

Court of Jammu and Kashmir at Jammu in Criminal Appeal

No.05 of 2010, Crl.M.A.No.06 of 2010 and C/W Confirmation

No.23 of 2009, the original accused has preferred the present

appeals.

Signature Not Verified 2. That the learned trial Court held the accused guilty for Digitally signed by VISHAL ANAND Date: 2018.11.29

the offence punishable under Section 302 as well as for 16:37:46 IST Reason: 2

offences punishable under Sections 307, 326, 324 and 448 of

the IPC. That the learned trial Court, while convicting the

accused for the offence punishable under Section 302 of the

IPC, imposed the death sentence. The learned trial Court

also sentenced the accused­appellant to undergo R.I. for 10

years and a fine of Rs.10,000/­ for the offence punishable

under Section 307 of the IPC and in default of payment of

fine to further undergo six months’ S.I. The learned trial

Court also sentenced the appellant­accused to undergo 5

years R.I. and a fine of Rs.500/­ under Section 326 of the IPC

and in default of payment of fine to undergo 3 months’ S.I.

The learned trial Court also sentenced the accused for one

year R.I. for the offence punishable under Section 324 of the

IPC and S.I. for one year for the offence punishable under

Section 448 of the IPC. The learned trial Court also ordered

that all the sentences to run concurrently.

3. That by the impugned judgment and order, the High

Court has confirmed the conviction and sentence imposed by

the learned trial Court, while convicting the accused­

appellant for the offences punishable under Sections 302, 3 307, 324, 326 and 448 of the IPC. Feeling aggrieved and

dissatisfied with the impugned judgment and order passed by

the High Court in confirming the death sentence while

convicting the accused under Section 302 of the IPC and

convicting the accused for the offences under Sections 307,

324, 326 and 448 of the IPC, the original accused has

preferred the present appeal.

4. At the outset, it is required to be noted that, as such, by

the order dated 19.08.2014, this Court directed to issue

notice only on the question of sentence. Therefore, as such,

in the present appeals, now the only question which is

required to be considered by this Court is the sentence

imposed by the learned trial Court and confirmed by the High

Court, while convicting the accused for the offences under

Sections 302, 307, 324, 326 and 448 of the IPC.

4.1 Even otherwise, on a close reading of the evidence on

record as well as the judgments of the learned trial Court and

the High Court, we are satisfied that both the Courts had

sufficient reasons to conclude that the appellant was guilty

for the offence under Section 302 of the IPC. On a close 4

reading of the evidence on record, we are fully satisfied that,

in the present case, the prosecution has been successful in

proving the case against the accused for the offences for

which the accused has been convicted and sentenced. To

bring home the charge, the prosecution has examined as

many as 27 witnesses, including the injured eye­witnesses

who have fully supported the case of the prosecution. That

at about 1.15 a.m. (in the midnight) of 20.09.2009, the

accused killed/committed murder of three minor children

and also seriously caused injury to Jia Lal (PW­3), Kamlesh

Kumari (PW­4) and also to Gulshan (the 4th minor child). In

any case, as observed above, this Court issued the limited

notice in the present appeals on the question of sentence

only, vide order dated 19.08.2014 and, therefore, the only

question posed before this Court in the present appeals now

is whether in the present circumstances of the case, the

learned trial Court was justified in imposing the death

sentence while convicting the accused under Section 302 of

the IPC, as confirmed by the High Court by the impugned

judgment and order?

5

4.2 Shri A.T.M. Ranga Ramanujam, learned senior counsel

appearing on behalf of the appellant has vehemently

submitted that, in the facts and circumstances of the case,

both the learned trial Court as well as the High Court had

committed grave error in imposing the death sentence while

convicting the accused for the offences punishable under

Section 302 of the IPC.

4.3 Relying upon the following decisions of this Court, it is

vehemently submitted by the learned senior counsel

appearing on behalf of the appellant that the present case

cannot be said to be the rarest of rare case warranting the

death sentence. In support, he has relied upon the following

decisions of this Court:­

1) Bachan Singh vs. State of Punjab (1980) 2 SCC 684,

2) Machhi Singh vs. State of Punjab (1983) 3 SCC 470,

3) Swamy Shraddananda (2) vs. State of Karnataka

(2008) 13 SCC 767.

5. The learned senior counsel appearing on behalf of the

appellant has vehemently submitted that both the learned 6

trial Court as well as the High Court have not properly

appreciated the mitigating circumstances in favour of the

accused. It is vehemently submitted that the accused is not

a previous convict or a professional killer.

6. Per contra, Ms. Fauzia Shakil, learned counsel

appearing on behalf of the State has supported the impugned

judgment and order passed by the High Court. It is

vehemently submitted that both the learned trial Court as

well as the High Court have in detail considered the

mitigating circumstances pointed out by the accused.

However, considering the fact that the accused committed the

murder of three minor children who, as such, were sleeping

and also caused the serious injury on the 4th minor child and

also caused serious injuries to Jia Lal and having found that

the act of the accused was brutal and, thereafter, after

considering the balance sheet of the aggravating and

mitigating circumstances, the learned trial Court has

imposed the death sentence, which is rightly confirmed by

the High Court. It is vehemently submitted by the learned

counsel for the appellant that the present case can be said to 7

be the rarest of rare case warranting death sentence. Relying

upon the decision of this Court in the case of Union of India

vs. V. Sriharan (2016) 7 SCC 1 at para 87, it is requested to

dismiss the present appeals. In the alternate, it is submitted

that if this Court is of the opinion that the present case may

not fall within the category of rarest of rare case and the

death sentence is to be substituted to life imprisonment, it

may be suitably observed that the life means till the natural

death of the appellant and that the appellant shall not be

entitled to remission.

7. Having heard the learned counsel appearing on behalf of

the accused as well as the State on the question of death

sentence imposed by the learned trial Court and confirmed

by the High Court and considering the totality of the facts

and circumstances of the case and the decisions in the cases

of Bachan Singh (supra) and Machhi Singh (supra) and in

Swamy Shraddananda (supra), we are of the opinion that

the present case does not fall within the category of rarest of

rare case warranting death sentence. We have considered

each of the circumstances of the crime as well as the facts 8

leading to the commission of the crime by the accused.

Though, we acknowledge the gravity of the offence, we are

unable to satisfy ourselves that the case would fall in the

category of rarest of rare cases. The offence has undoubtedly

been committed which can be said to be brutal but does not

warrant death sentence. It is required to be noted that the

accused, as such, is not a previous convict or a professional

killer. There was a matrimonial dispute and the accused was

of the opinion that Jia Lal and his wife Kamlesh Kumari

refused to extend any helping hand to the accused for

bringing his wife back. From the material on record, it

appears that, that was the motive for the accused to commit

the offence and eliminate the family of Jia Lal. Jia Lal was

the co­brother and Kamlesh Kumari was the sister­in­law.

As has been born out from the record, they were the persons

who were instrumental in arranging the marital ties of the

accused. Considering the aforesaid mitigating circumstances

and the motive which led to commit the offence by the

accused and considering the decisions of this Court in the

cases of Bachan Singh (supra) and Machhi Singh (supra)

and in Swamy Shraddananda (supra), we think that it will 9

be in the interest of justice to convert the death sentence into

life sentence till the death the of the accused and without

remission. So far as imposing the sentence of life

imprisonment without remission is concerned, we are

supported by the decision of this Court in the case of V.

Sriharan (supra) by which while approving the earlier

decision in the case of Swamy Shraddananda (supra), this

Court has held that, while converting the death sentence to

life, it can be said to be a special category of sentence and,

therefore, imposing the life sentence without remission is

permissible. In the case of V. Sriharan (supra), this Court in

paragraph 178 held as under:

“178. We hold that the ratio laid down in Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767: (2009) 3 SCC (Cri) 113] that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative.”

8. Thus, while confirming the impugned judgment and

order passed by the High Court convicting the accused for 10

the offence punishable under Sections 302, 307, 324, 326

and 448 IPC, the following order is made:

“These appeals arising out of the impugned judgment

and order dated 06.03.2014 passed by the High Court in

Criminal Appeal No.05 of 2010, Cr.M.A.No.06 of 2010

and C/W Confirmation No.23 of 2009 filed by the original

accused are disposed of by commuting the death

sentence to one of life imprisonment and the death

sentence imposed by the trial Court and, subsequently,

confirmed by the High Court, is converted into life i.e. till

the natural death of the appellant. It is specifically

clarified that the appellant shall not be entitled to

remission.”

9. The present appeals are partly allowed in the aforesaid

terms.

…………………..……………………J. (N. V. RAMANA)

…………………………………..…….J. (MOHAN M. SHANTANAGOUDAR)

………………..……………………J. (M. R SHAH) New Delhi, November 14, 2018