BRAJENDRASINGH Vs STATE OF M.P.
Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: Crl.A. No.-000113-000114 / 2010
Diary number: 472 / 2010
Advocates: CHANCHAL KUMAR GANGULI Vs
C. D. SINGH
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.113-114 OF 2010
Brajendrasingh … Appellant
Versus
State of Madhya Pradesh … Respondent
J U D G M E N T
Swatanter Kumar, J .
1. The present appeals are directed against the judgment of the
High Court of Madhya Pradesh, Bench at Indore, confirming the
judgment of conviction and order of sentence of imposition of
extreme penalty of death by the Trial Court.
2. The disaster that can flow from unchastity of a woman and the
suspicions of a man upon the character of his wife cannot be more
pathetically stated than the facts emerging from the present case.
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As per the case of the prosecution, a man suspecting his wife of
having illicit relations with his neighbor, killed his three young
children, namely, Varsha, Lokesh and Mayank, who were asleep,
sprinkled kerosene oil on his wife and put her on fire. However,
when called upon to make a statement under Section 313 of the
Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the accused
rendered the following explanation :
“There was illicit relationship between my wife, the deceased Aradhna and Liladhar, when on 27.02.2005 I came from the factory, at that time it was 11.00 – 11.30 O’clock at night, there was no fixed time coming and going from the factory. When I came to my house the door of the house was opened. My wife was not at the house and then I searched her here and there. I heard her voice in the house of Liladhar Tiwari, the voice of male was also coming. My children were sleeping in my house, when I shouted loudly and I hit the door of Liladhar Tiwari with foot, then the door opened then I saw that both were naked and then she came out then I threw her on the ground after catching her hair and then she started shouted and speaking cohabitedly and said that she would go with Tiwari Jee only and if I would stop her from meeting Tiwari Jee then she would kill the children and she would kill me also. Thus quarrel went on. After some time she came with knife from the kitchen and she inflicted injuries in the necks of the three children. I tried to snatch the knife from her and the in that process in my
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neck also the knife inflicted injury and then after taking that very knife I inflicted injury on the neck of deceased because she had inflicted the injury in the necks of children, Aradhna fell down on the back after being hit by the knife. My mental balance was upset and I put the kerosene oil kept there at myself, that some of that kerosene oil fell on me and some on the deceased, I was standing nearby. I ignited the match stick and at first I burnt myself and the match stick fell on the deceased, due to which she was also burnt and then in the burning condition after extinguishing the fire taking the knife I went towards the Bye-pass. After some time, I saw that one truck was coming, I was going to commit suicide under that truck but in the meantime police came there and the police brought me to the police station. I got the report written but as I had said in the report it was not written like that. I have not killed the children.”
3. From the above statement, it is clear that the accused neither
disputes the attempt to murder, nor the consequent death of his
three young children and wife, Aradhna. What this Court has to
examine, with reference to the evidence on record, is as to which of
the two versions is correct and stands established beyond
reasonable doubt, i.e., whether the case of the prosecution is to be
accepted as proved beyond reasonable probability or whether the
defence of the appellant is to be accepted by the Court.
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4. Before we dwell upon the issues before us, it will be
appropriate to refer to the facts giving rise to the present appeal, as
stated by the prosecution. The facts, as given, as well as the
conduct of the appellant are somewhat strange in the present case
as the appellant who is accused of this heinous crime, is himself
the informant of the incident. Laconically, the factual matrix of the
case that emerges from the record is that the appellant had lodged
a report in respect of the commission of the crime at the Police
Station, Industrial Area, District Dewas in the night intervening the
27/28th, February, 2005 at about 2.00 a.m. which was recorded by
Sub-Inspector Mohan Singh Maurya, PW16. The appellant was
serving in White Star Milk Product Factory, Dewas. Besides his
wife and three young children, his brother-in-law was also residing
with him who was serving in Sudarshan Factory. One Liladhar
Tiwari was the neighbour of the appellant. In fact, both the
appellant and Liladhar Tiwari stayed in two different rooms of the
same flat, i.e., LIG Flat No.225, Vikas Nagar, Dewas which they had
taken on rent from PW3, Smt. Kamal Kunwar. Smt. Aradhna, the
deceased wife of the appellant, used to talk to Liladhar, to which
the appellant had serious objections. He had forbidden her from
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doing so. Again, on the fateful day, he had allegedly stopped her
from talking to Liladhar Tiwari, but she retorted that she would die
and poured kerosene oil on her person and then put herself on fire.
The appellant claims to have made an effort to extinguish the fire.
However, being under the impression that she was dying, he also
caused injuries to his wife by a knife (chhuri) and killed her. The
appellant also suffered burn injuries in his attempt to extinguish
the fire. After killing his wife, he was concerned about what would
be the fate of their children, who will now have to grow up without
their mother. Thus, he killed them by the same process, i.e.,
inflicting injuries by knife to the throat of the children. After
committing the murder of his own family members, he also tried to
commit suicide by injuring his neck but could not succeed in his
attempt. The incident is said to have occurred at 2330 hours on
the night of 27th February, 2005.
5. PW4, Sri Ram Verma, Head Constable, was on patrolling duty
and he, along with another constable, was patrolling by road by a
Government vehicle bearing registration No. MP 03 – 5492 in the
night between half past one and two O’clock. They saw a person on
the bye-pass road. They stopped the said vehicle and interrogated 5
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him. Then they came to know that he was Brajendrasingh, the
appellant. The appellant narrated the entire incident to the Police
and informed them that he wanted to commit suicide. The Police
Officers stopped him from doing so and brought him to the Police
Station, Industrial Area in the same Government vehicle. Upon
reaching the Police Station, the appellant lodged the report at 2.00
a.m. narrating the above facts to the Police.
6. On the basis of the statement of the appellant, First
Information Report, Exhibit P27, under Section 302 of the Indian
Penal Code (IPC), was registered on 27/28th February, 2005 at
about 2.00 a.m. PW16, Mohan Singh Maurya, prepared the inquest
report Exhibits P2 to P5 and the bodies of the deceased persons
were taken into custody. The dead bodies were taken to the
hospital for post mortem which was performed by Dr. Shakir Ali,
PW12 and the post mortem reports were recorded as Exhibits P12
to P15. The doctor opined that the injuries on the person of the
deceased could have been caused by a knife. The appellant was
also examined medically by Dr. Hari Singh Rana, PW14, who issued
his medico-legal certificate report Exhibit P18. The clothes of the
deceased persons were seized. The photographs of the spot were 6
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taken and the CDs of photography were seized vide Exhibits P7 to
I/9. Blood stained and controlled earth (P4) was taken into custody
vide Exhibit P10, knife, shirt and pant of the appellant were seized
vide Exhibit P13. Seized articles were sent to the Forensic Science
Laboratory, Sagar for chemical examination from which the reports
Exhibits P22, P24 and P26 were received. As per the post mortem
report of deceased Aradhna, Exhibit P12, the medical expert found
36 per cent burn injuries on her chest and abdomen. The
Investigating Officer recorded the statement of 16 prosecution
witnesses and after completing the investigation in all respects, he
submitted the charge sheet before the Court. The accused was
committed to the Court of Sessions as the offences were exclusively
triable by the Court of Sessions being an offence under Sections
302 and 309 IPC. The accused stood trial and made a statement
under Section 313 Cr.P.C. giving his stand and explanation as
afore-indicated. The learned Trial Court, vide its judgment dated
15th June, 2007, acquitted the accused for the offence under
Section 309 IPC. However, while returning a finding of being guilty
for the offence under Section 302 IPC, the Court held that it does
not appear to be appropriate to award any sentence less than death
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sentence to the appellant and, therefore, imposed upon him the
extreme punishment of death under Section 302 IPC. This
judgment of the Trial Court was challenged before the High Court
which affirmed the judgment of conviction and order of sentence of
death. Against these concurrent findings, the appellant has filed
the present appeals.
7. We may notice here that against the acquittal of the appellant
under Section 309 IPC, no appeal was preferred by the State, either
before the High Court or before this Court.
8. The learned counsel appearing for the appellant has primarily
raised the following two contentions :
(i) The courts have failed to appreciate the evidence in its correct
perspective. The accused had stated that his wife had
murdered the three children and that he had only inflicted
injuries on her body under a belief that she was not going to
survive. He had no intention to kill her. Thus, the applicant
cannot be punished for murder of the entire family. It is also
the contention of the appellant that the prosecution has not
been able to prove its case beyond reasonable doubt.
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(ii) The imposition of extreme penalty of death was not called for
in the facts and circumstances of the present case. The
incident even if, as stated by the prosecution, assumed to be
correct, still it was an offence committed on extreme
provocation and at the spur of the moment without any intent
to kill any person.
9. Neither the death of three children nor that of his wife
Aradhna is disputed and/or practically admitted by the appellant in
his statement under Section 313 Cr.P.C. He has also admitted that
he had inflicted injuries on the person of the deceased Aradhna
with a knife. Only a part of his statement under Section 313
Cr.P.C. does not corroborate the prosecution evidence. According
to the case of the prosecution, the appellant had inflicted injuries
resulting in the death of three minor children and then he had
poured the kerosene oil upon the deceased Aradhna as well as
inflicted injury on her throat, whereas according to the appellant, it
was the deceased Aradhna who had inflicted injuries upon their
three minor children and poured kerosene on herself and thereafter
set herself on fire.
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10. It is a settled principle of law that the statement of an accused
under Section 313 Cr.P.C. can be used as evidence against the
accused, insofar as it supports the case of the prosecution. Equally
true is that the statement under Section 313 Cr.P.C. simplicitor
normally cannot be made the basis for conviction of the accused.
But where the statement of the accused under Section 313 Cr.P.C.
is in line with the case of the prosecution, then certainly the heavy
onus of proof on the prosecution is, to some extent, reduced. We
may refer to a recent judgment of this Court in the case of
Ramnaresh & Ors. v. State of Chhattisgarh, (being pronounced
today) wherein this Court held as under :
“In terms of Section 313 Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313 Cr.P.C. is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these
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protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. [Ref. Rafiq Ahmed @ Rafi v. State of Uttar Pradesh [(2011) 8 SCC 300].
It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.”
11. Now, all that this Court is called upon to decide in the present
case is that between the varying versions put forward by the
prosecution and the accused which one is correct and has been
proved in accordance with law.
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12. As we have already noticed in the narration of facts above that
the FIR was recorded by Sub-Inspector Mohan Singh Maurya,
PW16 based on the statement of the appellant itself, made in the
Police Station. This cannot be treated, in law and in fact, as a
confessional statement made by the accused and it would certainly
attain its admissibility in evidence as an FIR recorded by the
competent officer in accordance with law.
13. There is no doubt that there is no eye witness in this case
despite the fact that it occurred in an LIG flat and obviously some
people must be living around that flat. However, to complete the
chain of events and to prove the version given by the appellant in
the FIR, it examined a number of witnesses. PW2 is the brother-in-
law of the appellant and brother of the deceased Aradhna. He
clearly stated that Brajendrasingh had been married to Aradhna
12-13 years before the date on which his statement was recorded
and the couple had three children. He was staying with his sister
and on 27th February, 2005, he had been in the house of the
accused during the day and in the evening he left for the house of
his brother Kamla Singh who was staying at Joshipura whereafter
he went to Sudarshan Factory near Dewas to work. At about 2.30 12
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a.m. in the night, while he was in the factory, he received a phone
call from the Police Station informing him that his sister, nephews
and niece had been murdered. He came back and went to the
Police Station where he found Brajendrasingh, the accused was also
present.
14. PW3, Smt. Kamal Kunwar was examined to prove that the
appellant was the tenant at a monthly rent of Rs.650/- and two
rooms had been given to him on rent. According to her, one
Liladhar Tiwari had also been residing in one room in the same
building on rent.
15. PW5, Shobhna is again the sister of the deceased Aradhna.
Her statement was similar to that of PW2. According to her,
somebody from Vikas Nagar had come and told her that an
altercation had taken place between Aradhna and the accused. He
asked her to go there. After she reached near the house of the
accused, she met two boys who told her that somebody had killed
Aradhna and her three children. Upon hearing this, she fell
unconscious. This witness was declared hostile and was subjected
to cross-examination by the prosecution. Witness PW7, Veerendra
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Singh, who is the husband of PW5 and brother of the present
appellant, also made a similar statement. PW10, Liladhar Tiwari,
was also examined and he stated that he was residing in the same
building in one room. When his children and wife used to go to
village, he used to live alone in that room. According to him, the
Police had come to his house at about 2.00 O’clock in the night,
knocked at his door and informed him about the murder. He stated
that wife of the accused used to inquire from him whenever he
came late, “brother today you have come late” and I used to reply
that because of heavy work I was late. PW12 is Dr. Shakir Ali who
had performed post mortem examination upon the body of Aradhna
and noticed various injuries on her body. According to him, both
the lungs were having less blood and two portions of the heart were
empty of blood. The upside down Carotid artery was incised. The
membrane of the intestines was healthy. The liver, spleen and
kidney all were blood less and all the injuries were ante mortem
and fatal. According to the doctor, the cause of death was shock
which had resulted from excessive hemorrhage. Post mortem upon
the other dead bodies was also performed by this witness and the
cause of death was common. The incised wound of Lokesh was 1” x
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½” x 2” below the jaw which resulted in excessive bleeding and
death. PW16 is the Sub-Inspector in the Police Station, Industrial
Area, Dewas. He, as already noticed, had recorded his statement at
the Police Station and had conducted the investigation. He had
prepared the site plan and seized the knife Exhibit P12. It is with
the help of these witnesses that the prosecution has attempted to
prove its case but the foundation of this case was laid on the basis
of the information given by the appellant-accused himself. The
statements of these witnesses have to be examined in light of the
FIR, Exhibit P27, as well as the statement of the accused made
under Section 313 Cr.P.C. But for Exhibit P27, it would have been
difficult for the prosecution to demonstrate as to who was
responsible for committing the murder of the three young children.
To this extent, it is a case purely of circumstantial evidence.
16. There is no doubt that it is not a case of direct evidence but
the conviction of the accused is founded on circumstantial
evidence. It is a settled principle of law that the prosecution has to
satisfy certain conditions before a conviction based on
circumstantial evidence can be sustained. The circumstances from
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which the conclusion of guilt is to be drawn should be fully
established and should also be consistent with only one hypothesis,
i.e. the guilt of the accused. The circumstances should be
conclusive and proved by the prosecution. There must be a chain
of events so complete so as not to leave any substantial doubt in
the mind of the Court. Irresistibly, the evidence should lead to the
conclusion inconsistent with the innocence of the accused and the
only possibility that the accused has committed the crime. To put
it simply, the circumstances forming the chain of events should be
proved and they should cumulatively point towards the guilt of the
accused alone. In such circumstances, the inference of guilt can be
justified only when all the incriminating facts and circumstances
are found to be incompatible with the innocence of the accused or
the guilt of any other person. Furthermore, the rule which needs to
be observed by the Court while dealing with the cases of
circumstantial evidence is that the best evidence must be adduced
which the nature of the case admits. The circumstances have to be
examined cumulatively. The Court has to examine the complete
chain of events and then see whether all the material facts sought
to be established by the prosecution to bring home the guilt of the
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accused, have been proved beyond reasonable doubt. It has to be
kept in mind that all these principles are based upon one basic
cannon of our criminal jurisprudence that the accused is innocent
till proven guilty and that the accused is entitled to a just and fair
trial. [Ref. Dhananajoy Chatterjee vs. State of W.B. [JT 1994 (1) SC
33]; Shivu & Anr. v. R.G. High Court of Karnataka [(2007) 4 SCC
713]; and Shivaji @ Dadya Shankar Alhat v. State of Maharashtra
[(AIR 2009 SC 56].
17. It is a settled rule of law that in a case based on circumstantial
evidence, the prosecution must establish the chain of events
leading to the incident and the facts forming part of that chain
should be proved beyond reasonable doubt. They have to be of
definite character and cannot be a mere possibility.
18. The circumstances in the present case, which have been
proved, are that :
(1) The couple used to quarrel on the issue of deceased Aradhna
speaking to Liladhar Tiwari even after the appellant having
restrained her from doing so;
(2) The three children were sleeping at the time of occurrence; 17
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(3) The injury on their necks just below the jaw was caused by a
knife which was recovered and exhibited as article ‘L’ in
accordance with law.
(4) It was mentioned in Doctor’s report that there were number of
burn injuries on the body of Aradhna and the injuries on the
throats of all the deceased. The cause of death was common
to all, i.e., excessive hemorrhage.
19. These circumstantial evidences read with the statements of
the prosecution witnesses and the statement of the appellant
himself prove one fact without doubt, i.e., the accused had certainly
murdered his wife. His stand is that since he believed that his wife
may not survive the burn injuries, therefore, he killed her by
inflicting the injury with knife on her throat similar to the one
inflicted upon the throats of the three young children. Thus, there
is no escape for the appellant from conviction for the offence under
Section 302 IPC vis-à-vis the murder of his wife Aradhna.
20. Now, coming to the death of the children, according to the
prosecution, they had been murdered by the appellant while
according to the appellant, they had been murdered by his wife
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Aradhna. One very abnormal conduct on the part of the appellant
comes to light from the evidence on record that a father, seeing his
wife killing his children, would certainly have prevented the death
of at least two out of the three children. He could have overpowered
his wife and could even have prevented the murder of all the three
children. This abnormal conduct of the appellant renders his
defence unbelievable and untrustworthy. Upon appreciation of the
evidence on record, we are more inclined to accept the story of the
prosecution though it is primarily based on circumstantial evidence
and there is no witness to give optical happening of events. Once
these circumstances have been proved and the irresistible
conclusion points to the guilt of the accused, the accused has to be
held guilty of the offences. Normally, the injuries like the ones
inflicted in the present case would not lead to instantaneous death.
The excessive bleeding leading to death would be possible over a
short period. The injured would struggle before he succumbs to
such injury. As alleged by the accused, if the wife caused death of
all the three children, he could have certainly prevented death of at
least two of them. When the deceased inflicted such severe injuries
on the throat of the sleeping child, the child would have got up,
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there would have been commotion and disturbance in the room
which would have provided enough opportunity to the appellant to
protect his other two children. According to the prosecution, at
that stage, none had suffered any injury. This unnatural conduct
of the accused in not making an effort to protect the children and
exhibiting helplessness creates a serious doubt and renders the
entire case put forward by the defence as unreliable and of no
credence. This abnormal conduct of exhibiting helplessness on the
part of the appellant creates a serious doubt and entire case put
forward by the defence loses its credibility.
21. The cumulative effect of the prosecution evidence is that the
accused persisted with commission of the crime despite availability
of an opportunity to check himself from indulging in such heinous
crime. May be there was some provocation initially but nothing can
justify his conduct. Whatever be the extent of his anger, revenge
and temper, he still could have been kind to his own children and
spared their life. He is expected to have overcome his doubts about
the conduct of his wife, for the larger benefit of his own children.
Though the appellant had stated that he lost his mind and did not
know what he was doing, this excuse is not worthy of credence. 20
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Admittedly, he was not ailing from any mental disorder or
frustration. He was a person who was earning his livelihood by
working hard.
22. Having appreciated the evidence on record, we have no
hesitation in holding that the appellant is guilty of an offence under
Section 302 IPC for murdering his wife and three minor children.
He deserves to be punished accordingly.
23. Now, coming to the question of quantum of sentence, it is
always appropriate for this Court to remind itself of the need for
recording of special reasons, as contemplated under Section 354(3)
Cr.P.C., where the Court proposes to award the extreme penalty of
death to an accused. This leads us to place on record the principles
governing exercise of such discretion which have been stated in a
very recent judgment of this Bench in the case of Ramnaresh
(supra) wherein the Court, after considering the entire law on the
subject, recapitulated and enunciated the aggravating and
mitigating circumstances as well as the principles that should guide
the judicial discretion of the Court in such cases. This Court held
as under :
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“The above judgments provide us with the dicta of the Court relating to imposition of death penalty. Merely because a crime is heinous per se may not be a sufficient reason for the imposition of death penalty without reference to the other factors and attendant circumstances.
Most of the heinous crimes under the IPC are punishable by death penalty or life imprisonment. That by itself does not suggest that in all such offences, penalty of death should be awarded. We must notice, even at the cost of repetition, that in such cases awarding of life imprisonment would be a rule, while ‘death’ would be the exception. The term ‘rarest of rare case’ which is the consistent determinative rule declared by this Court, itself suggests that it has to be an exceptional case. The life of a particular individual cannot be taken away except according to the procedure established by law and that is the constitutional mandate. The law contemplates recording of special reasons and, therefore, the expression ‘special’ has to be given a definite meaning and connotation. ‘Special reasons’ in contra-distinction to ‘reasons’ simplicitor conveys the legislative mandate of putting a restriction on exercise of judicial discretion by placing the requirement of special reasons.
Since, the later judgments of this Court have added to the principles stated by this Court in the case of Bachan Singh (supra) and
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Machhi Singh (supra), it will be useful to re- state the stated principles while also bringing them in consonance, with the recent judgments.
The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra). The aforesaid judgments, primarily dissect these principles into two different compartments – one being the ‘aggravating circumstances’ while the other being the ‘mitigating circumstance’. The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354(3) Cr.P.C.
Aggravating Circumstances :
1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or
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offences committed by the person having a substantial history of serious assaults and criminal convictions.
2. The offence was committed while the offender was engaged in the commission of another serious offence.
3. The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
4. The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
5. Hired killings.
6. The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
7. The offence was committed by a person while in lawful custody.
8. The murder or the offence was committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Cr.P.C.
9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
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10. When the victim is innocent, helpless or a person relies upon the trust of relationship
and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
11. When murder is committed for a motive which evidences total depravity and meanness.
12. When there is a cold blooded murder without provocation.
13. The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating Circumstances :
1. The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
2. The age of the accused is a relevant consideration but not a determinative factor by itself.
3. The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
4. The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
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5. The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
6. Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused.
While determining the questions relateable to sentencing policy, the Court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.
Principles :
1. The Court has to apply the test to determine, if it was the ‘rarest of rare’ case for imposition of a death sentence.
2. In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment
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would be completely inadequate and would not meet the ends of justice.
3. Life imprisonment is the rule and death sentence is an exception.
4. The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances.
5. The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.
Stated broadly, these are the accepted indicators for the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another. In other words, these are the considerations which may collectively or otherwise weigh in the mind of the Court, while exercising its jurisdiction. It is difficult to state, it as an absolute rule. Every case has to be decided on its own merits. The judicial pronouncements, can only state the precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be done on the facts of each case. These are the factors which the Court may consider in its endeavour to do complete justice between the parties.
The Court then would draw a balance- sheet of aggravating and mitigating
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circumstances. Both aspects have to be given their respective weightage. The Court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of ‘just deserts’ that serves as the foundation of every criminal sentence that is justifiable. In other words, the ‘doctrine of proportionality’ has a valuable application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court will not only have to examine what is just but also as to what the accused deserves keeping in view the impact on the society at large.
Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the Courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death.
Wherever, the offence which is committed, manner in which it is committed, its attendant circumstances and the motive and status of the victim, undoubtedly brings the case within the ambit of ‘rarest of rare’ cases and the Court finds that the imposition of life imprisonment would be inflicting of inadequate punishment, the Court may award death penalty. Wherever, the case falls in any of the exceptions to the ‘rarest of rare’ cases, the Court may exercise its judicial discretion while imposing life imprisonment in place of death sentence.”
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24. First and the foremost, this Court has not only to examine
whether the instant case falls under the category of ‘rarest of rare’
cases but also whether any other sentence, except death penalty,
would be inadequate in the facts and circumstances of the present
case.
25. We have already held the appellant guilty of an offence under
Section 302, IPC for committing the murder of his three children
and the wife. All this happened in the spur of moment, but, of
course, the incident must have continued for a while, during which
period the deceased Aradhna received burn injuries as well as the
fatal injury on the throat. All the three children received injuries
with a knife similar to that of the deceased Aradhna. But one
circumstance which cannot be ignored by this Court is that the
prosecution witnesses have clearly stated that there was a rift
between the couple on account of her talking to Liladhar Tiwari, the
neighbor, PW10. Even if some credence is given to the statement
made by the accused under Section 313 Cr.P.C. wherein he stated
that he had seen the deceased and PW10 in a compromising
position in the house of PW10, it also supports the allegation of the
prosecution that there was rift between the husband and wife on 29
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account of PW10. It is also clearly exhibited in the FIR (P27) that
the accused had forbidden his wife from talking to PW10, which
despite such warning she persisted with and, therefore, he had
committed the murder of her wife along with the children. It will be
useful to refer to the conduct of the accused prior to, at the time of
and subsequent to the commission of the crime. Prior to the
commission of the crime, none of the prosecution witnesses,
including the immediate blood relations of the deceased, made any
complaint about his behaviour or character. On the contrary, it is
admitted that he used to prohibit Aradhna from speaking to PW10
about which she really did not bother. His conduct, either way, at
the time of commission of the crime is unnatural and to some
extent even unexpected. However, subsequent to the commission of
the crime, he was in such a mental state that he wanted to commit
the suicide and even inflicted injuries to his own throat and also
went to the bye-pass road with the intention of committing suicide,
where he was stopped by PW4, Head Constable and taken to the
Police Station wherein he lodged the FIR Exhibit P27. In other
words, he felt great remorse and was sorry for his acts. He
informed the Police correctly about what he had done.
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26. Still another mitigating circumstance is that as a result of the
commission of the crime, the appellant himself is the greatest
sufferer. He has lost his children, whom he had brought up for
years and also his wife. Besides that, it was not a planned crime
and also lacked motive. It was a crime which had been committed
out of suspicion and frustration. The circumstances examined
cumulatively would, to some extent, suggest the existence of a
mental imbalance in the accused at the moment of committing the
crime. It cannot be conceived much less accepted by any stretch of
imagination that the accused was justified in committing the crime
as he claims to have believed at that moment.
27. Considering the above aspects, we are of the considered view
that it is not a case which falls in the category of ‘rarest of rare’
cases where imposition of death sentence is imperative. It is also
not a case where imposing any other sentence would not serve the
ends of justice or would be entirely inadequate.
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28. Once we draw the balance-sheet of aggravating and mitigating
circumstances and examine them in the light of the facts and
circumstances of the present case, we have no hesitation in coming
to the conclusion that this is not a case where this Court ought to
impose the extreme penalty of death upon the accused. Therefore,
while partially accepting the appeals only with regard to quantum of
sentence, we commute the death sentence awarded to the accused
to one of life imprisonment (21 years).
…………………………….,J. [A.K. Patnaik]
…………………………….,J. [Swatanter Kumar]
New Delhi; February 28, 2012
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