Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.  1566-1567   OF 2013 (Arising out of S.L.P.(Crl.) Nos.1195-1196 of 2012)

GUDDA @ DWARIKENDRA                    Appellant VERSUS

STATE OF MADHYA PRADESH                Respondent

J U D G M E N T

H. L. DATTU, J.

1. Leave granted.

2. These  appeals  are  directed  against  the  judgment and order passed by the High Court  of Madhya Pradesh at Jabalpur in Criminal  Reference   No. 03 of 2010 and Criminal  Appeal No.2246 of 2010, dated 16.01.2012.

Page 2

2

By the common impugned judgment and order,  the High Court has confirmed the judgment  and order passed by the Additional Sessions  Judge, Satna, in Sessions Trial No.257 of  2007,  dated  07.09.2010,  whereby  and  whereunder the learned Sessions Judge has  convicted  the  appellant  for  offence  punishable  under  Section  302  of  Indian  Penal Code, 1860 (for short, ‘the IPC’) and  sentenced him to death.

Facts:

3. The Prosecution case : On 28.05.2007, at  around 12:20 p.m., Dehati Nalishi (Ex. P- 10)  was  recorded  by  the  Investigating  Officer (PW-19) on the basis of information  received from the complainant-Ramesh Prasad  Gupta (PW-4) regarding murder of his nephew  Sunil  Gupta,  his  daughter-in-law  Pushpa

Page 3

3

Gupta and grandson Gaurav, aged 5 years by  the  appellant  in  his  rented  house.  Thereafter, an FIR was registered for the  offence punishable under Section 302 of the  IPC, inquest proceedings were conducted and  the dead bodies were sent for post-mortem  examination.  On  further  investigation,  blood-stained pieces of wall, cement floor,  etc. along with a mobile phone, a Katar  (sharp edged weapon) and the Motorcycle of  the  deceased  were  seized  from  the  appellant’s  house.  On  31.05.2007,  the  appellant was arrested and at his instance  an iron knife was recovered and sent for  forensic examination.

4. On further investigation it surfaced that  the  appellant  thoroughly  detested  the  association of his wife, Smt. Geeta (A2)  with the deceased-Sunil Gupta. It has come

Page 4

4

on record that the appellant did not like  the deceased-Sunil Gupta visiting his house  to  meet  A2  in  spite  of  his  strong  opposition  and  therefore,  hatched  a  conspiracy with A2 to murder the deceased  persons  on  the  pretext  of  inviting  and  hosting them for a lunch. On the basis of  the  same,  the  charge-sheet  was  filed  against the appellant and A2 for offences  punishable under Sections 302/34 and 120-B  of the IPC and the case was committed to  trial by order dated 10.09.2001.

5. In  the  statements  recorded  under  Section  313 of the Code of Criminal Procedure, 1973  (for short ‘the Code’) the appellant has  stated that on 27.05.2007, when the school  was  closed  during  holidays,  the  deceased  had come to his house in his absence and  asked his wife to come to school in the

Page 5

5

morning insisting upon completion of some  pending  work.  The  day  next,  around  9.00  A.M. the deceased had sent message for A2  again. Then, the appellant had called the  deceased and categorically told him that A2  would only go to the school when the school  reopens. He has also stated that the same  day on returning from the market at 11:30  AM, he heard the cries of A2 for help and  noticed the wife of the deceased and the  child sitting on the terrace of his house.  He has further stated that when he went  inside, he saw the deceased attempting to  commit rape and was attacking A2 with the  knife.  On  his  intervention,  the  deceased  attempted to hit him and a fight ensued  where  he  snatched  the  knife  from  the  deceased and hit him in order to protect  his wife’s modesty and their lives.  It is

Page 6

6

also stated that wife of the deceased and  the  child  intervened  between  them  and  therefore suffered serious injuries leading  to their death. A2 has supported the said  defence in her statement.

6. The Prosecution has examined 19 witnesses  in support of its case including three eye- witnesses PWs-5, 7 and 8. We would only  notice the evidence of witnesses relevant  for the disposal of this appeal, viz., PWs- 4, 5, 7, 9 and 18 along with the evidence  of Doctors.

7. PW-4  is  the  informant  and  has  testified  that  on the fateful day at 12.00 P.M. he  overheard  a  mob  in  the  market  that  the  appellant  had  committed  murder  of  three  persons  in  his  rented  house.  Upon  proceeding  towards  the  said  house  of

Page 7

7

Subhadra  Jaiswal  (PW-5),  he  found  dead  bodies of the deceased persons lying in the  passage of the house. On enquiry, PW-5 had  informed him that about 45 minutes ago, the  appellant slaughtered them by a  Katar and  fled away and that A2 had also received  injuries on her leg.

8. PW-5 is the owner of the house where the  appellant and A2 resided as tenants. She  has stated that she was acquainted with the  deceased persons as they used to visit the  appellant’s house. She has testified that  on the fateful day at 11.00 AM, she heard  the shrieks from the staircase of her house  and upon reaching the spot, she witnessed  the deceased followed by the appellant with  a  knife  in  his  hands  running  down  the  stairs. Thereafter, the appellant started

Page 8

8

assaulting the deceased with the knife and  despite  her  intervention  he  proceeded  to  assault the deceased family. She ran out  after  grabbing  the  child  and  immediately  rushed  to  the  house  of  A2’s  mother  who  resided  in  the  neighborhood  and  informed  about the incident. On returning, she found  that the deceased persons had succumbed to  their injuries and the appellant had fled.

9. PW-7, Smt. Munni, is another tenant in the  house  of  PW-5.  In  her  evidence  she  has  stated to have heard the sound of something  falling from the stairs and cries at 12.00  PM on the fateful day, whereafter she went  towards door of her house and witnessed the  appellant assaulting the deceased persons  with a knife. She has further stated that  though  PW-5  attempted  to  intervene,  the  appellant continued to assault the deceased

Page 9

9

persons.  

10. PW-9, Lale @ Lal Singh was known to the  deceased persons and at the relevant time  was in the neighborhood. He has stated that  at 11:45 AM, he heard PW-5 screaming and  coming out of the appellant’s house with  the child-Gaurav.  When he went near the  child,  he  noticed  the  stab  injuries  to  which he had succumbed. In the meanwhile,  the appellant came out of the house with a  knife and threatened others not to stop him  and fled away on his motorcycle. Further,  PW-9 has stated that on proceeding towards  the  passage  of  the  house,  he  found  the  deceased-couple lying in a pool of blood  and A2 sitting on the stairs. Upon enquiry  from  A2,  she  stated  that  the  appellant  detested  her  relationships  with  the  deceased-Sunil Gupta and that the deceased

Page 10

10

family was invited for lunch at her house,  where the quarrel broke out and resulted in  murder of the three deceased persons by the  appellant.

11. PW-18, Dinesh Singh, had accompanied PW-9  on the fateful day and thus, is a witness  to the incident and has corroborated the  testimony of PW-9.

12. PWs-  16  and  14  are  the  Doctors  who  conducted  post-mortem  of  Pushpa  Gupta,  Sunil  Gupta  and  the  child-Gaurav  respectively and have deposed in respect of  the  26  week  pregnancy  of  the  deceased- Pushpa  Gupta,  the  injuries  sustained  by  them, weapon of crime as sharp edged knife  and  the  cause  of  death to  be  excessive  hemorrhage due to ante-mortem injuries.

13. The Trial Court has relied on primarily the

Page 11

11

evidence  of  eye-witnesses  PWs-5  and  7,  whose  evidence  is  corroborated  by  the  evidence  of  PWs-4,  8,  9  and  18  and  the  medical evidence of PWs-16 and 14 and the  post-mortem report of the deceased persons  and the medical report of A2 to reject the  defense version and record a finding that  the  appellant  had  invited  the  deceased  family  for  lunch  and  upon  a  quarrel  thereat, attacked Sunil Gupta with a knife  and thereafter, assaulted Sunil Gupta, his  wife and his child to death. The motive of  the appellant is recorded as the suspicion  of the appellant on the fidelity of A2 and  her continuous engagement with Sunil Gupta  even after his warnings. On the basis of  the aforesaid, the Trial Court has found  the evidence insufficient to establish the  guilt  of  A2  beyond  reasonable  doubt  and

Page 12

12

reached the conclusion that the appellant  alone is guilty of murder of the deceased  family  and  hence,  convicted  him  under  Section 302 of the IPC while acquitting A2  of the charge under Section 302 read with  Section 120-B of the IPC. The Trial Court  has  considered  the  following  factors  and  found  the  present  case  fit  into  the  category  of  “rarest  of  the  rare”  and  therefore, sentenced the appellant to death  for the following reasons :

a.The appellant had apparently no reason  to commit the murder of three persons  especially  the  murder  of  a  pregnant  woman and an innocent child,

b.He was under no duress or provocation  by any visible circumstances,

c.His conduct in stabbing the deceased  persons  was  “so  brutal,  cruel,  grotesque and diabolical”  

d.Manner  of  commission  of  crime  being  unsympathetic and “dastardly”.

14. Aggrieved by the aforesaid, the State had

Page 13

13

preferred an appeal against the acquittal  of A2 and the appellant had questioned his  conviction and sentence. The High Court has  disposed of the said appeals along with the  reference  for  confirmation  of  death  sentence of the appellant. The High Court  has considered the evidence on record at  length and the judgment and order of the  Trial  Court  and  after  considering  all  aspects of the case in the light of the  submissions made by the parties has reached  the conclusion that the Trial Court has not  committed  any  error  whatsoever  in  acquitting A2 and convicting the appellant  for the offence under Section 302 of the  IPC.  The  High  Court  has  dismissed  the  appeals  filed  by  the  State  as  well  the  appellant-herein and confirmed the sentence  of death of the appellant.

Page 14

14

15. Aggrieved by the aforesaid dismissal of his  appeal and confirmation of his conviction  and sentence, the appellant is before us in  this appeal.  

16. We  have  heard  Shri  Vijay  Kumar,  learned  counsel appearing for the appellant-accused  and Smt.Vibha Dutta Makhija, learned senior  counsel appearing for the respondent-State  at length. We have also carefully perused  the  evidence  on  record  including  the  evidence  of  the  eye-witnesses  and  the  statements of the appellant and A2 under  Section 313 of the Code and the judgments  and orders of the Courts below.

Submissions

17. Shri Kumar would submit that Courts below

Page 15

15

have erred in placing heavy reliance on the  evidence of eye-witnesses, PWs-5 and 7 and  rejecting  the  defence  version  of  the  incident. He would further contend that the  plea of right to private defence put forth  by  the  accused  persons  is  not  properly  appreciated  by  the  Trial  Court  and  therefore,  the  conviction  of  the  accused  persons deserves to be set aside. On the  question of sentence, he would submit, that  the incident occurred at the spur of the  movement  when  the  deceased-Sunil  Gupta  injured  the  appellant  when  he  tried  to  protect his wife, and further the appellant  had to use the knife to defend himself from  the  assault  made  by  the  deceased-Sunil  Gupta.  He would further submit that the  wife  of  the  deceased  and  child  suffered  injuries only when they tried to intervene

Page 16

16

between  the  deceased-Sunil  Gupta  and  the  appellant and therefore, the death sentence  deserves to be commuted.  He would submit  that neither the murder was pre-planned nor  did the appellant had any motive and that  the manner and time of occurrence must be  considered in the background of his mental  condition  and  agony  while  weighing  the  mitigating and aggravating factors towards  determination of his sentence.  

18. Smt. Makhija would support the judgment and  order of the Courts below and submit that  the  conviction  of  the  appellant  is  justified  in  the  light  of  evidence  of  Prosecution  Witnesses  and  post-mortem  reports. On the question of sentence, she  would  submit  that  the  appellant  has  committed  the  murder  of  three  innocent

Page 17

17

persons in a pre-ordained fashion driven by  the suspicion of fidelity of his wife (A2).  Further,  that  no  provocation  or  duress  could be gathered from the facts of the  case in respect of the wife or child who  were  brutally  slaughtered  and  therefore,  the case falls into the category of “rarest  of rare” warranting the imposition of death  sentence on the appellant.  

19. The  learned  counsels  have  addressed  this  Court  on  two  issues:  firstly,  the  conviction of the appellant and  secondly,  if  the  same  be  upheld  his  sentence.  We  would discuss the two issues sequentially.

Issue one: Conviction

20. The submission of Shri Kumar in respect of  the  non-credibility  of  the  eye-witnesses

Page 18

18

relied  upon  by  the  Courts  below  to  establish the guilt of the appellant and  reject the statements of the appellant and  A2 fails to convince us.  

21. As  already  noticed  by  us,  PW-5  in  her  evidence has testified in respect of the  appellant assaulting the deceased persons  with  a  knife,  refusing  to  stop  even  on  intervention and thereafter, running away  on his motorbike. PW-5’s evidence is amply  supported on all aspects by the evidence of  PW-7, who has categorically stated that the  appellant  assaulted  the  deceased  persons  and continued to do so in spite of PW-5’s  intervention and thereafter, fled away on  his motorcycle. The said evidence of the  two eye-witnesses garners further support  from the testimonies of PW-9 and 18 who saw

Page 19

19

PW-5 carrying the child out of the house  and thereafter, the appellant running out  with a knife in his hand and escaping on  his motorcycle after extending threats to  them.  The  cross-examination  of  the  aforesaid witnesses has neither punctured  their testimonies nor elicited sufficient  material to reject the prosecution version.

22. Apart from the aforesaid, the evidence of  the eye-witnesses draws strength from the  evidence of PWs-16 and 14 who conducted the  post-mortem  of  the  deceased  persons  testifying that the injuries were caused by  a  knife  like  weapon.  The  same  has  been  further corroborated by the evidence of PW- 19, in respect of recovery of the knife  from a pit of sand at the instance of the  appellant.

Page 20

20

23. The testimony of the two eye-witnesses is  natural, convincing and well corroborated  by the evidence of PWs 4, 8, 9 and 18 and  the medical evidence. The two do not seem  to have any animus against the appellant.  There is nothing on record to suggest any  dispute between the two eye-witnesses and  the appellant or hint towards bitterness in  their relationships so as to suggest their  false testimony against him. Additionally,  no  such  close  alliance  of  the  witnesses  with the deceased persons has surfaced so  as  to  prove  their  bias  towards  the  appellant. Thus, the evidence of the two  eye-witnesses is credible and trustworthy.

24. It is true that there is no evidence to  establish the genesis of the incident. The  incident has occurred within the four walls  of the appellant’s house. In a scenario of

Page 21

21

this nature the prosecution and the defense  version has to be tested on the touchstone  of probabilities and truthfulness. In our  considered view the defense version appears  to be unnatural and improbable.  We say so  for  the  reason  that  when  the  appellant  suspected  the  deceased  person’s   illicit  relationship  with  A2,  the  deceased  would  not  have  dared  to  enter  the  house  of  appellant,  with  his  wife  and  child  and  attempted to rape A2 and on her resistance  threatened to assault her with the knife.  Further,  the  statement  of  appellant  that  when A2 was shouting for help, the wife of  the deceased and the child continued to sit  outside on the terrace while the appellant  intervened to protect A2 and the deceased  assaulted  the  appellant  and  on  the  intervention in the scuffle the wife and

Page 22

22

the child received the fatal injuries. The  plea of right to private defence and non- orchestrated  nature  of  the  offence  stand  vitiated by the evidence of PW-9 who has  testified  that  A2,  immediately  after  the  fateful incident has narrated the version  of the genesis of the incident absolutely  contrary  to  the  version  stated  by  the  appellant. On this aspect of the matter, we  are  in  consonance  with  the  concurring  observations of the Courts below.

25. In the light of the aforesaid, we are of  the  considered  view  that  the  prosecution  case stands well supported and established  by  the  evidence  of  PWs  5,  7,  9  and  18  coupled with the evidence of Doctors, the  post-mortem report and medical evidence and  does not leave any room for doubt as to the  guilt of the appellant. Therefore, in our

Page 23

23

considered opinion, the Courts below have  not committed any error in convicting the  appellant  for  the  murder  of  the  three  persons under Section 302 of the IPC and  the conviction of the appellant requires to  be upheld.

Issue two: Sentencing

26. We are mindful of the concept of and the  caution  to  be  exercised  in  classifying  “rarest of the rare” cases in the light of  the dictum of this Court in  Bachan Singh  case and Macchi Singh case which elucidated  upon the few of many aggravating and the  mitigating factors which must be judicially  weighed  and  balanced  while  deciding  upon  the  sentence  proportional  to  the  crime  committed. In  Ramnaresh  v.  State  of  Chhattisgarh,  (2012) 4 SCC 257 this Court

Page 24

24

has reflected upon the aforesaid decisions  and collectively listed the principles laid  down therein and the factors which must be  borne in mind by the Court.  

27. It is well settled that awarding of life  sentence  is  the  rule,  death  is  an  exception. The principles laid down earlier  and restated in the various decisions of  this Court can be broadly stated that a  deliberately  planned  crime,  executed  meticulously  in  a  diabolic  manner,  exhibiting  inhuman  conduct  in  a  ghastly  manner, touching the conscience of everyone  and thereby disturbing the moral fiber of  society  would  call  for  imposition  of  capital punishment in order to ensure that  it  acts  as  a  deterrent.  (See:  Swamy  Shraddananda  (2) v.  State  of  Karnataka,

Page 25

25

(2008)  13  SCC  767,  Santosh  Kumar  Satishbhushan  Bariyar v.  State  of  

Maharashtra,  (2009)  6  SCC  498,  Mohd.  Farooq  Abdul  Gafur v.  State  of  

Maharashtra,  (2010)  14  SCC  641,  Haresh  Mohandas  Rajput v.  State  of  Maharashtra,  

(2011) 12 SCC 56 and State of Maharashtra  v.  Goraksha  Ambaji  Adsul, (2011)  7  SCC  437). However,  the  application  of  “the  rarest  of  the  rare  case”  principle  is  dependent  upon  and  differs  from  case  to  case.  

28. This Court has consistently held that the  number of deaths or the factum of whole  family being wiped off cannot be the sole  criteria for determining whether the case  falls  into  the  category  of  “rarest  of  rare”. (See: Aqeel Ahmad v. State of U.P.,

Page 26

26

(2008)  16  SCC  372,  Ram  Pal  v.  State  of  U.P., (2003) 7 SCC 141)

29. Further, we cannot loose sight of the fact  that  brutality  also  cannot  be  the  only  criterion  for  determining  whether  a  case  falls  under  the  “rarest  of  rare”  categories.  In  Panchhi  v.  State  of  U.P,  this  Court  has  reiterated  the  said  principle  and  thereby  justified  the  commutation of sentence from death to life  imprisonment.

30. We would now revert to the facts of the  instant case. The genesis of crime and the  manner of occurrence inside the house of  the  appellant  remains  clouded  while  the  guilt has been clearly established with the  aid of available evidence. The factum of

Page 27

27

the crime being pre-ordained and the motive  of the appellant in brutally assaulting the  deceased-Sunil  Gutpa  with  a  knife  after  having invited him at his house for lunch  stems  from  his  suspicion  on  his  wife’s  fidelity  and  his  abhorrence  for  her  relationship with the deceased-Sunil Gupta.  However, the same motive to murder the wife  of  deceased-Sunil  Gupta  and  their  only  child does not find favor with the facts of  the case. The farthest possibility and the  maximum motivation which may be attributed  could be the instant urge of the appellant  to  silence  the  two  deceased  persons  who  were not only present in his house during  the commission of crime but also witnesses  to  it,  magnifying  the  undeniable  probabilities  of  them  testifying  against  the appellant leading to the discovery of

Page 28

28

his  crime  and  thus,  the  immediate  translation  of  such  fear  by  slaughtering  them  and  obliterating  their  evidence  against him.

31. Indeed  victims  of  the  crime  include  an  innocent child of 5 years and a pregnant  lady who were assaulted by the appellant  who was then in a position of trust having  invited them to his house for lunch. But  this alone would not be sufficient to place  the crime in category of “rarest of the  rare” as the proportion of culpability of  the appellant could be separated for the  three victims into two parts: the deceased  and the pregnant lady and the young child.

32. As stated above, on one hand the crime is  pre-mediated  in  respect  of  the  deceased

Page 29

29

husband, while on the other, no motive or  pre-orchestration could be culled out for  the  other  two  deceased  persons.  The  two  murders seem to have translated due to his  sudden  realization  and  extreme  fear  of  being caught for the murder of the Sunil  Gupta and also, to save himself from being  shunned by the society. Having said so, the  brutality  envisaged  in  the  pre-mediated  murder of Sunil Gupta alone, in the light  of  present  facts,  does  not  inspire  confidence  so  as  to  place  it  in  the  category of “rarest of the rare”. Further,  the appellant is a young man of about 35  years and neither does he have any criminal  antecedents nor is it stated that he is or  has been an anti-social element. The future  possibilities of his reform also cannot be  ruled out.

Page 30

30

33. In  a  civilized  society  —  a  tooth  for  a  tooth and an eye for an eye ought not to be  the criterion to clothe a case with “rarest  of the rare” jacket and the Courts must not  be propelled by such notions in a haste  resorting  to  capital  punishment.  Our  criminal jurisprudence cautions the courts  of law to act with utmost responsibility by  analyzing the finest strands of the matter  and it is in that perspective a reasonable  proportion has to be maintained between the  brutality of the crime and the punishment.  It falls squarely upon the Court to award  the  sentence  having  due  regard  to  the  nature of offence such that neither is the  punishment disproportionately severe nor is  it  manifestly  inadequate,  as  either  case  would not sub-serve the cause of justice to

Page 31

31

the society. In jurisprudential terms, an  individual’s right of not to be subjected  to cruel, arbitrary or excessive punishment  cannot  be  outweighed  by  the  utilitarian  value of that punishment.  

34. We reiterate the observations of this Court  in Dagdu and Ors. v. State of Maharashtra,  (1977) 3 SCC 68 and Subhash Ramkumar case  (supra) that all murders are inhuman, some  only  more  so  than  others.  The  degree  of  brutality has to be ascertained in contrast  with other cases and the criteria and the  tests  laid  down  in  Bachan  Singh  case  (supra)  and further streamlined in Macchi  Singh  case  (supra)  writ  large  upon  the  Courts the caution which must be borne in  mind while declaring a crime so revolting  and  diabolical  that  it  warrants  nothing

Page 32

32

less but capital punishment.  

35. In  the  contextual  facts,  we  are  of  the  considered  view  that  the  brutality  as  evinced by the appellant herein would not  fall within the ambit of the “rarest of the  rare”  cases  so  as  to  exercise  the  discretion of imposing capital punishment.  In the light of the aforesaid and having  regard to the nature of the offence and the  methodology adopted by the appellant, the  facts at hand fail to convince us that the  case falls into the category of “rarest of  the  rare”  to  justify  the  imposition  of  death penalty. Therefore, while recording  our  concurrence  with  the  findings  and  conclusions of the Courts below as regards  the guilt of the accused under Section 302,  we are of the considered opinion that the

Page 33

33

sentence of death imposed on the appellant  be commuted to imprisonment for life.  

36. In  view  of  the  above,  we  set  aside  the  judgment and order passed by the High Court  and commute the death sentence imposed on  the appellant into life sentence.   

37. The  appeals  are  disposed  of  in  the  aforesaid terms.

........................J. (H.L. DATTU)

........................J. (SUDHANSU JYOTI MUKHOPADHAYA)

........................J. (M.Y. EQBAL)

Page 34

34

NEW DELHI; SEPTEMBER 30, 2013.