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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. ……….. OF 2020 [Arising out of SLP (Crl.) No. 8682 of 2014]

Manoj Suryavanshi         .. Appellant

Versus

State of Chhattisgarh .. Respondent

J U D G M E N T

M. R. Shah, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 08.08.2013 passed by the Division

Bench of the High Court of  Chhatisgarh at  Bilaspur  in Criminal

Appeal No. 550 of 2013 and Criminal Reference No. 05 of 2013, by

which the Division Bench of the High Court has dismissed the said

appeal preferred by the appellant­original accused and has

confirmed the judgment and order of conviction and death sentence

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awarded  by the learned  Trial  Court for the offences  punishable

under  Section  302  of the IPC for  having  killed the three  minor

children of the complainant Shivlal – P.W.18 and also for the

offences punishable under Section 364 of the IPC, the original

accused has preferred the present appeal.

3. As per the case of the prosecution, at 7.00 AM on 11.02.2011,

two sons of one Shivlal­original complainant – Vijay aged about 8

years, Ajay aged about 6 years and Kumari Sakshi aged about 4

years left their home in Darripara to attend the school at

Karaihapara and reached the school.  On the school getting over at

11.30 AM, the three minors left the school for home on foot.  When

they did not reach home, Shivlal­P.W.18 looked for the children in

the vicinity and went to school and enquired about the children.

On enquiry at the school, the teachers of the minor children told

Shivlal that the three minors had come to the school and on the

school getting over they had left the school for home on foot.  That,

thereafter Shivlal and others looked for the three minors.   On not

finding the three minor children, Shivlal­P.W.18 went to the police

station, Raipur and lodged the Missing Person Report.  The missing

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person report was registered in the Daily Journal (Ex. P­18) by the

Head Constable Krishna Kumar Koshle­P.W.17.   During the search

of three minor children, one Ashok Patel­P.W.8 stated that he had

seen the minor children along with the appellant­accused near the

school.   As per the case of the prosecution, on 11.02.2011,

Rameshwar­P.W.11 contacted the accused on cell­phone and talked

with him and the accused asked Shivlal­P.W.18 how he was feeling

when his children are missing.   According to the prosecution, the

accused was working as labourer in the house of Shivlal.     It was

alleged that the wife of the accused, namely Sumrit Bai, eloped with

the younger brother of the complainant, namely Shivnath Dhiwar

and with the view to take revenge, the appellant abducted the

minors  and thereafter  killed them.   The  FIR­Ex.24  was lodged

against  the accused  initially for the offences under Sections 363

and  364 IPC.  According to the  prosecution, after the  FIR  was

lodged, the accused was contacted on his mobile no. 9179484724.

The accused received the call and told that he was 60 kms away.

The Investigating Officer­P.W.24 asked the Head Constable Hemant

Aditya, Crime Branch to trace the said mobile number and to tell its

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location.   Then the Head Constable Hemant Aditya traced the

location of the said mobile and the location was found near Village

Lakhram.   That, thereafter the Investigating team went to the

house of one  Ashok  Kumar  Madhukar­P.W.13, a relative of the

accused.   Initially, the accused was not in home.   However,

thereafter continuing the search, they again went to the house of

the said Ashok Kumar Madhukar.  According to the case of the

prosecution, thereafter the accused was found and brought to the

police station.   He was interrogated in the presence of the

witnesses.   A memorandum of statement Ex.P.2 was recorded

under Section 20 of the Evidence Act.   On the basis of the

memorandum Ex.P.2 and at the  instance of the accused,  in  the

barren land in Karaihapara – in the field of one Damodar Beldar,

the dead bodies of the three minors were recovered from the spot of

site.  The Investigating Officer collected the incriminating materials

during the course of the investigation.   The mobile of the accused

was also seized.   The Investigating Officer conducted the

Panchnama of the  dead  bodies of the three  minors.   The  dead

bodies were sent  for  post­mortem.     One Dr.  A.M. Srivastava­

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P.W.23 conducted the post­mortem.  The cause of death of the three

minors was strangulation and the deaths were found to be

homicidal.   During the investigation, the Investigating Officer

received the call details – Ex.P.30 of the mobile phone of the

accused.   During the investigation, the Investigating Officer

recorded the statement of the witnesses, including the statement of

the original complainant Shivlal and others.    That the accused was

arrested as per the memorandum dated 13.02.2011.   After

conclusion of the investigation, it was found that the accused had

first  abducted and thereafter  killed the three minors to take  the

revenge  as  his  wife eloped  with the  brother of the complainant

Shivlal and thereby committing the offences punishable under

Section 302 and Section 364 IPC.     The Investigating Officer filed

the charge­sheet against the  accused for the  aforesaid offences.

The case was committed to the Court of  Sessions.   The accused

pleaded not guilty and therefore he came to be tried for the

aforesaid offences.   

4. To  prove the charges  against the  accused, the  prosecution

examined as many as 24 witnesses as under:

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P.W. NO.

NAME AND DATE  OF DEPOSITION

P.W.1 Preetam Dhiwar 15.06.2011

Witness who seen the minor children with the accused for the last time.

P.W.2 Hafiz Ali 16.06.2011

Independent witness

P.W.3 Frukh Khan 16.06.2011

Independent witness

P.W.4 Pooja Tiwari 16.06.2011

Witness of  minors leaving the school together for home on foot after the school getting over.

P.W.5 Jilani Baig 17.06.2011

Witness of  minors leaving the school together for home on foot after the school getting over.

P.W.6 Krishna Kumar  Yadav 17.06.2011

Witness of seizure of  Registers concerning the attendance of the minors in school.

P.W.7 Damodar Singh 08.08.2011

Witness of recording the statements of the prosecution witnesses under Section 161 Cr.P.C.

P.W.8 Ashok Patel 08.08.2011

Witness who seen the minor children with the accused for the last time.

P.W.9 Imrat Singh 11.08.2011

Maternal uncle of the minor children.

P.W.1 0

Shweta Tiwari 12.08.2011

Witness of  minors leaving the school together for home on foot after the school getting over.

P.W.1 1

Rameshwar 12.08.2011

Independent witness

P.W.1 2

Ashish Kumar  Gupta 20.9.2011

Witness who conducted the photography of the dead bodies of the minors.

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P.W.1 3

Ashok Kumar  Madhukar 20.09.2011

Witness of the presence of the accused in  his  house  situated in Lakhram and of his being hidden.  

P.W.1 4

Bharat Lal  Dewangan 21.09.2011

Witness of the preparation of map of the spot of incident.

P.W.1 5

Anil Shitlani 21.09.2011

Witness of seizure of mobile phone of the accused.

P.W.1 6

Bharat Lal  Chandravansi 22.09.2011

Witness  of the  dead  bodies  of the minors being  taken to the doctor for post­mortem

P.W.1 7

Krishna Kumar  Koshle 22.09.2011

The Head­Constable who registered the missing report in the Daily Journal

P.W.1 8

Shivlal Dhimar  16.11.2011

Father of the minor children.

P.W.1 9

Santosh Kumar  Yadav 17.11.2011

Witness of recording of statements during investigation of missing report.

P.W.2 0

|Smit Manisha  Dhimar 17.11.2011

Mother  of the  deceased  minor children.

P.W.2 1

Dr. A.K.  Shrivastava 18.11.2011

Doctor who conducted the post­ mortem and gave the post­ mortem report.

P.W.2 2

Lav Kush Kashyap 09.01.2012

Witness of recording the statements of the prosecution witnesses under Section 161 Cr.P.C.

P.W.2 3

Dr. A.M. Srivastava 17.02.2012

Doctor who conducted the post­ mortem and gave the post­ mortem report.

P.W.2 4

B. Kujur 17.02.2012

The Investigating Officer

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4.1 During the trial, the prosecution brought on record as many

as 41 documentary evidences.  The relevant evidences are as under:

SL. NO.

DESCRIPTION EX. NO.

4. Seizure Memo of the attendance register  of the deceased dated 17.02.2011 at 3.30  pm

Ex.P1

5. Memorandum of accused dated 13.02.2011

Ex.P2

8. Seizure memo of school bags, plastic bottle and soil from where Ajay’s body has been found.

Ex.P5

10. Inquest / Panchnama of deceased Ajay Ex.P7 12.  Inquest / Panchnama of deceased Vijay Ex.P9 14. Inquest / Panchnama of deceased Sakshi Ex.P11 18. Site Map prepared by Patwari Ex.P12 19. Panchnama of Site Map in presence of

witnesses Ex.P13

20. Seizure Memo of mobile phone of accused Ex.P14 23. Missing Person Complaint dated

12.02.2011 filed by PW18, Shivlal Ex.P16

24. Roznamcha Ex.18C 31. FIR No. 64/2011 under Section 363, 364

IPC registered by PS Ratanpur Ex.P25

34. Arrest Memo dated 13.02.2011 Ex.P28 35. Intimation of arrest of relative Ex.P29 36. CDR Ex. P30 39. Report received from FSL Raipur Ex.P33 41 Village Map Art. A

4.2 After closure of the evidence by the prosecution, further

statement of the accused under Section 313 CrPC was recorded.

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The case of the accused was of a total denial.   He did not examine

any witness in support of his defence.   That, thereafter, on

appreciation of evidence and giving the fullest opportunity to the

accused, the  learned Trial  Court  held  the  accused guilty for the

offences punishable under Sections 302 and 364 IPC.   After

considering the aggravating and mitigating circumstances and after

having heard the accused on the quantum of sentence, the learned

Trial Court awarded the death sentence, which was numbered as

Reference No. 05 of 2013 before the High Court.  Feeling aggrieved

and dissatisfied with the judgment and order of conviction passed

by the learned Trial Court, the original accused also preferred an

appeal  before the  High Court,  being Criminal  Appeal  No.  550 of

2013.   Both, the appeal preferred by the accused as well as the

reference case  were  heard together  by the  High  Court.  By the

impugned judgment and order, the High Court has dismissed the

appeal preferred by the accused and has confirmed the conviction

and the death sentence awarded by the learned Trial Court.  Feeling

aggrieved and dissatisfied with the impugned judgment and order

passed by the High Court in dismissing the appeal preferred by the

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accused and also confirming the death sentence awarded by the

learned Trial Court, the original accused has preferred the present

appeal.   

5. Shri Singh, learned counsel appearing on behalf of the

appellant­original  accused has vehemently  submitted  that in the

facts and circumstances of the case both, the learned Trial Court

and the  High  Court  have committed grave error in  holding the

appellant­original accused guilty for the offences punishable for the

offences under Section 302 and Section 364 IPC.

5.1 It is further submitted on behalf of the appellant­original

accused that both the Courts below ought to have appreciated that

there was no eye­witness to the incident and the whole conviction

was based on the circumstantial evidence. It is submitted that, in a

case of circumstantial evidence, unless the entire chain of events is

complete, which leads to the only conclusion that it is the accused

only who has committed the offence, a person cannot be convicted.

It is submitted that in the present case the prosecution has failed to

form a complete  chain of  circumstances and the  instance which

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leads exclusively to the conclusion that the appellant only was

guilty of committing the offence.    

5.2 It is further submitted on behalf of the appellant­original

accused that both the Courts below have materially erred in holding

the  appellant­original accused  guilty for the  offences  punishable

under Sections 302 and Section 364 IPC for having killed the three

minor children relying upon the prosecution witnesses, more

particularly, P.W.1, P.W.8, P.W.13, P.W.18 and P.W.24 and other

eye­witnesses.    

5.3 It  is  further submitted by the learned counsel appearing on

behalf of the appellant­original accused that the case against the

appellant is based on three sets of circumstances: (i) last seen

evidence; (ii) recovery of bodies pursuant to a disclosure memo and

(iii)  alleged calls made to the appellant during the search for the

missing children.   It is further submitted that the prosecution has

sought to use the calls made to the appellant and the testimony of

P.W.13 as an extra­judicial confession made by the appellant.  It is

submitted that such an extra­judicial concession is not admissible

in law.

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5.4 It  is  further submitted by the learned counsel appearing on

behalf of the appellant­original accused that to establish and prove

the last seen evidence, the prosecution has relied upon the

depositions of P.W.1 and P.W.8, whose evidences are full of material

contradictions.   It is submitted that as such both the Courts below

have  materially erred in  heavily relying  upon the  depositions  of

P.W.1 and P.W.8, insofar as last seen evidence is concerned.   

5.5 It  is  further submitted by the learned counsel appearing on

behalf of the appellant­original accused that so far as  P.W.1 is

concerned, he has specifically stated that he was stating the

material evidence for the first time in the court.  It is submitted that

though another witness – Surya Pratap Dhimar was present with

P.W.1 on 11.02.2011, the prosecution had chosen not to examine

the said witness.  It is submitted that P.W.1 is neither credible nor

reliable.   It is  submitted  that  dropping of  a  cited  witness  Surya

Pratap  Dhimar  has  been  unexplained  by the  prosecution.   It is

submitted that this circumstance  will operate  as  a  presumption

against the prosecution  in  terms of  Section 114(g)  of the Indian

Evidence Act.

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5.6 Now, so far as the reliance placed  upon the  deposition of

P.W.8, who is the second last seen witness is concerned, it is

submitted that  P.W.8  states that  he communicated that  he  has

seen the accused with the deceased to P.W.9­Imrat Singh @ Mungi

Lal.   It is submitted that, however, P.W.9 has categorically denied

knowing any  person  named  as Ashok, where he resides.   It is

submitted that he has affirmed that he had no conversation with

Ashok.

It is further submitted that as per the prosecution P.W.8

communicated his sighting of the missing children to P.W.18 and

his friends ­ P.W.2 and P.W.3.   It is submitted that P.W.2 states

that they met Ashok Patel at about 6/6.30 pm near Dholpara, but

in his cross, has denied knowing Ashok Patel or having any

conversation with him.   It is submitted that P.W.18 claimed that he

met P.W.8 near Darriparra prior to meeting P.W.2 and P.W.3.  It is

submitted that though P.W.3  maintains that  he  met  P.W.8  and

Dholpara, the testimony of P.W.18 belies the testimony of P.W.3.   It

is submitted that the testimony of P.W.2, P.W.3 and P.W.18 that

they met P.W.8 is belied by P.W.8 himself who has unequivocally

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affirmed that P.W.18 and his friends did not come to him searching

for the children.  It is submitted that therefore it is not safe to rely

the testimony of P.W.8 also.

5.7 It  is  further submitted by the learned counsel appearing on

behalf  of  the appellant­original  accused that the prosecution has

not proved geographical proximity between the alleged sighting of

the appellant and the place of residence of the children; their school

or the location where the bodies were recovered.   It is submitted

that there is no evidence on record to suggest that the fields where

the bodies were found were in the same direction as the children

were walking when they had been allegedly sighted.   

5.8 It is further submitted that furthermore the medical evidence

concludes that the time of death of the children was between 12

noon on 11.02.2011 and midnight of the intervening night of

11/12.02.2011.  It is submitted that therefore an alleged sighting in

the beginning of this period is not proximate to the time of death.  It

is further submitted that even the missing person complaint dated

11.02.2011 does not refer to last seen evidence.  It is submitted

that it was entered on the Roznamcha at 9.40 am on 12.02.2011.  It

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is submitted that the Roznamcha is silent on the suspicion of

kidnapping by the appellant.   It is submitted that neither the

complaint  nor  the Roznamcha contain any  last  seen evidence or

evidence with respect to the alleged calls between the appellant and

P.W.18.   It is submitted that the FIR that is lodged on 12.02.2011

at 11.40 pm has a mention of P.W.8.  It is submitted that therefore

the last seen evidence of P.W.8 is recorded for the first time only on

the intervening  of  12­13.02.2011,  which is  also the time  of the

appellant’s arrest.  It is submitted that it is the settled law that the

circumstance of last seen together cannot by itself form the basis of

conviction and can only  be  an  incriminating  circumstance.   In

support thereof, the  learned counsel for the appellant  has relied

upon the decisions of this Court in the cases of  Digamber

Vaishnav  v.  State  of  Chhattisgarh  (2019)  4  SCC 522,  Anjan

Kumar Sarma v. State of Assam (2017) 14 SCC 359 and Ganpat

Singh v.  State of  Madhya Pradesh  (2017)  16 SCC 353.   It is

submitted that in light of the  principles stated in the  aforesaid

decisions, the testimony of P.W.8 does not inspire confidence and

cannot be relied upon as last seen evidence.

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5.9 It  is  further submitted by the learned counsel appearing on

behalf of the appellant that another circumstances considered by

the Courts below against the appellant is the calls and extra­

judicial confession.

5.10 It is submitted that the evidence against the appellant refers to

two calls involving the  appellant.   The first call is between the

appellant and P.W.11 and the second call is between the appellant

and P.W.18.   It is  submitted  that  with  respect to  P.W.11’s  call,

P.W.11 categorically states that the call was on 12.02.2011 at night

which is when the appellant was in the custody of the police.  It is

submitted that he further  improved his version when he was re­

examined by the Trial Court.   It is submitted that neither P.W.2 nor

P.W.18 has testified to this call.   It is submitted that neither the

fact nor the contents of this call were put to the appellant during

his examination under Section 313 Cr.P.C.

5.11 It is further submitted that the prosecution has relied upon

the  extracts  of the  appellant’s  CDR­Ex.P30  (Call  Details  Report),

which does not contain any call made or received on 12.02.2011.

It is submitted that even otherwise the production of CDR is

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through the Investigating Officer who in turn receives it from the

Head Constable Hemant Aditya.   It is submitted that there is no

material on record to show  the  manner in  which the  CDR was

obtained.   It is submitted that even the CDR is not accompanied by

a certificate under Section 65­B of the Evidence Act.  It is submitted

that therefore the calls/call  details contained in the CDR­Ex.P30

are neither believable nor has been proved by the prosecution.

5.12 It is further submitted that so far as P.W.18 is concerned, he

has alleged a call made by him to the appellant on 11.2.2011.  It is

submitted that the said call has not been corroborated by any other

witness.   It is submitted that even it does not find mention in the

complaint, Roznamcha or the FIR, which are dated 11.2.2011.  It is

submitted that there remains a discrepancy in P.W.18’s version of

when he lodged the missing person complaint.    

5.13 It is further submitted that the prosecution has not seized the

phone, SIM card or any material  with respect to P.W.18’s phone

records which would have proved the veracity of P.W.18’s

statement.   It is submitted that even there is no material on record

to prove the phone number of P.W.18.

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5.14 It is further submitted that so far as the confession made by

P.W.13­Ashok Kumar Madhukar is concerned, no other document

or witness mentions his presence during the alleged recovery

proceedings.   It is submitted that the statement  made  by the

appellant do not amount to a confession of the offence as a whole,

or of any inculpatory fact. It is submitted that since the appellant

was in police custody at that time, any confession made by him

would be inadmissible in terms of Section 26 of the Evidence Act,

irrespective  of  whom  the  alleged  confession  was  made to.   It is

submitted that therefore both, the Trial Court and the High Court

have materially  erred  in convicting the appellant on the basis of

such call details and/or the alleged confessions made to the

respective witnesses.

6. Now, so far as the conviction based upon the recovery of dead

bodies of the deceased minors is concerned, it is submitted that the

said recovery was made from an open area that had been searched

previously.  It is submitted that as per the settled preposition of law

the recovery made from an open place, accessible to all and which

is not in the exclusive knowledge of the accused cannot be the basis

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of  conviction.   It is  submitted  that therefore the  recovery  of the

bodies at the instance of the appellant is full of suspicion.   

6.1 It is further submitted that neither PW.7 nor P.W.22 who are

the independent witnesses to the disclosure memorandum and all

other documents relating to recovery proceedings on the intervening

night of 11.01.2011 and 12.1.2011, lend support to the recovery.  It

is submitted that P.W.7 has specifically stated that he signed on

blank papers on the asking of the police and that he did not know

about the case.  It is submitted that he has further stated that the

documents were not read over to him by the police and that no

notice/summons  were  given  by the  police to remain present for

seizures.    

6.2 It  is  further submitted that P.W.22 also does not remember

the date on which the alleged events took place.    

6.3 It is further submitted that all recovery related proceedings are

ante­dated and  the  same  is  proved  from the  evidence  of  P.W.22

himself.  It is submitted that P.W.22 states that the interrogation of

accused continued till 9.00 pm on 12.02.2011 and that they went

to the field at 10.30­11.00 pm.   It is submitted that even P.W.18

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and P.W.22 testify that all documentation with respect to the

recovery was done the next day at 9.00 pm.  It is further submitted

that even there is a discrepancy with respect to the time and place

of arrest of the appellant which renders the recovery doubtful.   It is

submitted that therefore on the basis of the alleged recovery, the

appellant could not have been convicted.    

6.4 It is further submitted that even the recovery cannot be said to

be voluntary as the appellant was detained in custody without any

formal arrest.    

6.5 It is further submitted that even the  medical and forensic

examination does not support the recovery.  It is submitted that the

post­mortem reports of the victims indicate the presence of incised

wounds on the bodies caused by a hard and sharp/blunt object.  It

is submitted that, however, no such weapon was recovered at the

instance of the appellant.   It is submitted that the prosecution has

not put forth any evidence to show how such wounds were caused

by the appellant.  It is submitted that there are so many lacunas at

the time of the alleged recovery at the  instance of the appellant,

which creates a serious doubt on the credibility of the recovery.  It

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is submitted that therefore it is not safe to convict the appellant on

the basis of such recovery.

7. It  is  further submitted by the learned counsel appearing on

behalf of the appellant that the Courts below have committed grave

error in convicting the appellant solely based on (i) last seen

evidence; (ii) recovery of bodies pursuant to a disclosure memo and

(iii)  alleged calls made to the appellant during the search for the

missing children and the so­called extra­judicial confession made

by the appellant, more particularly, when it is a case of

circumstantial evidence.   It is submitted that in a case of

circumstantial evidence, even if one link is missing and the chain is

not complete  which leads to the only conclusion that it is the

appellant­accused alone who has committed the offence, the

appellant could not have been convicted.  

7.1 Now, so far as the judgment and order passed by the learned

Trial Court awarding the death sentence and confirmed by the High

Court is concerned, it is submitted that both the Courts below have

not appreciated and/or considered the mitigating and aggravating

factors while awarding the death sentence.   It is  submitted  that

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even the learned Trial Court imposed the death penalty/award of

sentence on the same day on which the appellant was convicted.   It

is submitted that after the decision relating to his conviction was

given, the learned Trial Court held the hearing of the sentence on

the same day when the conviction was recorded  i.e.  04.05.2013,

thereby violating the right of the accused to be given ample

opportunity to adduce the evidence of mitigation and to be heard on

the  question of  quantum of  sentence  as  provided  under  Section

235(2) Cr.P.C.  It is submitted that it has been consistently held by

this Court that sufficient time must be given to the accused on the

question of sentence, to show the grounds on which he may show

that sentence of life imprisonment may be awarded and not the

death  penalty.   In support thereof, the learned counsel for the

appellant has relied upon a recent judgment of this Court in the

case of Chhannu Lal Verma v. State of Chhattisgarh (2019) 12

SCC 438.  It is submitted that the absence of providing a separate

hearing for sentence vitiates the sentencing process.  It is submitted

that under these circumstances this Court has previously

commuted the sentence of death to one of imprisonment for life.  In

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support, reliance has been placed upon the decisions of this Court

in the cases of Santa Singh v. State of Punjab (1976) 4 SCC 190,

Rajesh Kumar v. State (NCT of Delhi)  (2011) 13 SCC 706 and

Ajay Pandit @ Jagdish v. State of Maharashtra  (2012) 8 SCC

43.    

7.2 It is further submitted that even otherwise the death sentence

awarded by the learned Trial Court and affirmed by the High Court

is not sustainable.  It is submitted that the learned Trial Court has

solely looked to the brutality of the crime to impose the  death

penalty.  It is submitted that this Court has rejected the contention

that the death penalty can be imposed on the basis of the crime

alone.     It is submitted that consideration of the brutality or the

circumstances  surrounding the  crime alone renders  meaningless

the objective of the sentencing exercise envisaged in death penalty

cases.  Reliance has been placed upon the case of Bachan Singh v.

State of Punjab (1980) 2 SCC 684.

7.3 It is submitted that so far as the High Court is concerned, the

High  Court  has  also committed  a grave error in confirming the

death sentence.   It is submitted that the  High  Court  has  not

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properly appreciated the mitigating circumstances, such as the fact

that the accused can be rehabilitated in the society and is capable

of being reformed.  It is submitted that as held by this Court in the

case of  Ajay Pandit  (supra), there is a duty on the High Court to

elicit the relevant facts while considering mitigating circumstances

and awarding sentence.

7.4 It is submitted that both the Courts below have not

appreciated  and  considered the fact that there  was  no  criminal

antecedents.   It is submitted that the  High  Court  has  also  not

considered the fact that there is a possibility of the appellant being

reformed.   It is further submitted that at the time when the alleged

offence  was  committed, the  appellant  was of  a  young age  of  28

years.   It is submitted that the young age of the appellant at the

time of commission of the offence has not been considered as the

relevant mitigating circumstance by the learned Trial Court as well

as the High Court, which ought to have been considered, as held by

this Court in the cases of Gurvail Singh v. State of Punjab (2013)

2 SCC 713 and Amit v. State of Uttar Pradesh (2012) 4 SCC 107.

25

7.5 It is further submitted that even otherwise in a case of

circumstantial evidence, as held by this Court in the case of Kalu

Ram v. State of Rajasthan  [2015) 16 SCC 492, the doctrine of

prudence requires that a sentence of life be imposed, and ordinarily

death penalty should not be awarded.   It is further submitted that

this Court in several judgments has commuted the death sentence

based on the doctrine of “residual doubt”.   Reliance is placed on

the  decisions  of this  Court in the  cases  of  Sudam v.  State  of

Maharashtra (2019) 9 SCC 388 and Baba Vishwakarma v. State

of M.P. (2019) 9 SCC 689.   

7.6  It is further submitted that even the conduct of the appellant

in the prison is very good, which is also a relevant consideration to

commute the death sentence to that of the life imprisonment.    

7.7 It is further submitted that the emotional disturbance of the

appellant at the time of the offence is a relevant consideration not to

award the death sentence.   It is submitted that at the relevant time

the appellant was emotionally disturbed due to the elopement of his

wife with the uncle of the deceased minors.  It is submitted that the

appellant’s acts were not the product of a long period of cold

26

blooded  planning, but  were instead  actions committed  during  a

period of extreme emotional turmoil and disturbance after he had

come back from Chandigarh to Darripara after trying to find out his

wife.   It is submitted that the aforesaid aspect has not been

considered by the Courts below.

7.8 It  is  further submitted by the learned counsel appearing on

behalf of the appellant that, unfortunately, subsequently the wife of

the appellant has died and the  liability to maintain the children

was/is upon his old aged mother.   It is submitted that the

appellant’s mother is no longer capable of working and the entire

family survives on Rs.300/­ of old­age pension that she receives.   It

is submitted that the daughter of the appellant was forced to drop

the school after class IX due to poverty.  It is submitted that his one

daughter is married and the appellant has another daughter

Sanjana aged about 16 years.   It is  submitted  that if the death

sentence of the appellant is converted to life, in that case, the

appellant would be in a position to work in the jail and earn

something which would be helpful to his mother and daughter.   It

27

is submitted that while the death sentence is continued, the

appellant would not be in a position to do any work in Jail.   

7.9 Learned counsel appearing on behalf of the appellant has

further submitted that in many cases this Court has commuted the

death sentence imposed for heinous crimes.     Reliance is placed

upon the decisions of this Court in the cases of  Shaikh Ayub v.

State of Maharashtra (1998) 9 SCC 521, Allaudin Mian v. State

of Bihar  (1989) 3 SCC 5,  Dharmedrasinh v. State of Gujarat

(2002) 4 SCC 679,  Nemu Ram Bora v. State of Assam &

Nagaland (1975) 1 SC 318, Rajesh Kumar (supra) and Brajendra

Singh v. State of M.P. (2012) 4 SCC 289.

7.10 Making the above submissions, it is prayed to allow the

present appeal and acquit the appellant­accused for the offences for

which he was tired.   In the alternative, it is prayed to convert the

death sentence into the life imprisonment.    

8. The  present appeal is vehemently opposed  by  Shri Pranav

Sachdeva, learned counsel appearing on behalf of the respondent­

State.  

28

8.1 It is vehemently submitted by the learned counsel appearing

on behalf of the respondent­State that in the facts and

circumstances of the case both, the  learned Trial  Court  and the

High Court have rightly convicted the accused for the offence

punishable under Section 302 IPC for having killed the three minor

children of the complainant and both the Courts below have rightly

awarded the death sentence.     

8.2 It is vehemently submitted by the learned counsel appearing

on behalf of the respondent­State that the impugned judgment and

order passed by the High Court is a well­reasoned and has been

passed after  hearing the parties and considering  the entire  facts

and circumstances and therefore the same  is not  required to be

interfered with by this Court in exercise of powers under Article 136

of the Constitution of India.    

8.3 It  is  further submitted by the learned counsel appearing on

behalf of the respondent­State that though the present case is

based  on circumstantial evidence,  however, the  prosecution  has

been successful in completing the chain of events which lead to the

29

only conclusion that it is the accused alone who had killed the three

innocent children.     

8.4 It  is  further submitted by the learned counsel appearing on

behalf of the respondent­State that in the present case the

prosecution has been successful in proving the motive for the

accused to take revenge  and killing three  minor  children of the

complainant Shivlal­P.W.18.

8.5 It  is  further submitted by the learned counsel appearing on

behalf of the respondent­State that thereafter the prosecution has

been successful in establishing and proving that the accused was

last seen together with the three minor children whose dead bodies

were found subsequently at the instance of the accused.    

8.6 It  is  further submitted by the learned counsel appearing on

behalf  of the respondent­State that there  are three relevant  and

material circumstances against the accused, namely, (i) last seen

evidence; (ii) recovery of dead bodies pursuant to a disclosure

memorandum at the instance of the accused and (iii)  call details

made to the accused.   It is submitted that therefore the aforesaid

three sets of circumstances are proved by the prosecution against

30

the accused by examining P.W.1, P.W.8,  P.W.13, P.W.16, P.W.18

and P.W.24.

8.7 It  is  further submitted by the learned counsel appearing on

behalf of the respondent­State that by examining P.W.2, P.W.5 and

P.W.10 the prosecution has been successful in proving that all the

three deceased­three minor children had gone to the school on that

day and thereafter after the school was over, they left the school

together for home.   It is submitted that the same is supported by

the relevant documentary evidence.

8.8 It  is  further submitted by the learned counsel appearing on

behalf  of the respondent­State  that the minor children were  last

seen together with the accused, has been established and proved by

the prosecution by examining P.W.1 and P.W.8.

8.9 It is submitted that the dead bodies of minors – Ajay, Vijay

and Kumari Sakshi – were recovered on the basis of the disclosure

memorandum Ex.P­2.  It is submitted that Ex.P­2 and the recovery

of the dead bodies at the instance of the accused has been

established and  proved by the prosecution  beyond  doubt,  more

particularly, by examining P.W.7, P.W.22 and P.W.24.  

31

8.10 It is  further submitted by the learned counsel appearing on

behalf of the respondent­State that during the course of the

investigation there were phone calls with the accused and the

conversation has been established and proved by Ex­P­30 – Phone

Call Details.  It is submitted that the same have not been explained

by the accused.

8.11 It is  further submitted by the learned counsel appearing on

behalf  of the respondent­State that  in the present case even the

conduct on the part of the accused, more particularly, his absence

from the date of missing of the minor children till he was arrested

from  the  house  of  witness  Ashok Kumar  Madhukar­P.W.13  is  a

relevant factor.   It is submitted that the accused has failed to

explain his absence from the village and from his house.

8.12 It is submitted that in fact the accused was found in the house

of his relative Ashok Kumar Madhukar­P.W.13.  It is submitted that

therefore it is established  and  proved that after committing the

offence the accused had taken the shelter in the  house of his

relative Ashok Kumar Madhukar­P.W.13.   It is submitted that even

there was an extra­judicial confession by the accused before Ashok

32

Kumar Madhukar­P.W.13 which has been established and proved

from the deposition of Ashok Kumar Madhukar­P.W.13.

8.13 It is further submitted that the death of the three minors was

homicidal deaths, which has been established and proved by

examining the doctors who conducted the post­mortem.

8.14 It is submitted that therefore the prosecution has been

successful in completing the chain of events.   It is submitted that

therefore both the Courts below have rightly convicted the accused

for having killed the three minor children.

9. Now, so far as the submission on behalf of the accused that

there are material contradictions in the depositions of P.W.1, P.W.8,

P.W.18 and other witnesses  is  concerned,  it is  submitted by the

learned counsel for the respondent­State that the alleged

contradictions do not affect the case of the prosecution.   It is

submitted that the aforesaid contradictions cannot be said to be the

material  contradictions  for  which the benefit  of  doubt should be

given to the accused.   It is submitted that most of the witnesses are

consistent with their statements under Section 161 Cr.P.C.

recorded by the Investigating Officer during the investigation.   It is

33

submitted that there  are  no  much improvements.   It is further

submitted by the learned  counsel  appearing for the respondent­

State that the so­called/alleged contradictions in any way do not

affect the case of the prosecution and the material evidence with

respect to the last seen evidence; recovery of the dead bodies as per

the disclosure memorandum at the instance of the accused and the

phone call  details  with the accused and even the motive  for the

accused to commit the offence.   

10. Now, so far as the submission on behalf of the accused that

the incriminating circumstances against the accused from the

deposition of P.W.1 has not been put to the accused while recording

his statement under Section 313 Cr.P.C. is concerned, it is

submitted by the learned  counsel  appearing for the respondent­

State that, as such, the said irregularity shall not affect the

ultimate case against the accused.   It is submitted that in any case

the case of the accused in his statement under Section 313 Cr.P.C.

is that of total denial.   It is submitted that on the aforesaid ground

the accused cannot be acquitted.

34

11. Now, so far as the submission on behalf of the accused that

sufficient opportunity was not given to the accused on the sentence

inasmuch as the accused was heard on the sentence on the very

same day he was convicted is concerned, it is submitted that on the

aforesaid ground  the  judgment  and order  passed by  the  learned

Trial Court on sentence and confirmed by the High Court  is not

required to be interfered with.   It is submitted that after the

accused was held guilty, fullest opportunity was given to the

accused on sentence.    It is submitted that elaborate submissions

were  made  by the learned  Advocate appearing on  behalf of the

accused on sentence and even on the death sentence also.   It is

submitted that therefore as such no prejudice has been caused to

the accused.

12. Now, so far as the submission on behalf of the accused not to

confirm the death sentence and to convert the death sentence into

the life imprisonment is concerned, it is submitted by the learned

counsel appearing for the respondent­State that on striking the

balance between the aggravating circumstances and the mitigating

circumstances and considering the fact that the accused killed the

35

three minor children after abducting them, no sympathy should be

shown to such an accused.   It is submitted that, therefore, as such

this is a fit case to award the death sentence and the case would

fall into the rarest of rare cases.    Therefore, it is prayed to dismiss

the present appeal and confirm the death sentence.

13. Heard the learned counsel appearing for the respective parties

at length.  We have also gone through and considered in detail the

Judgment and order passed by the learned Trial Court as well as

the impugned judgment and order passed by the High Court

convicting and accused for the offences punishable under Sections

302 and 364 IPC.   We have also gone through and considered in

detail the evidence on record ­ both oral and documentary.   

13.1 The appellant­accused has been held guilty for having

committed the murder/killing of three minor children aged about 8

years, 6 years and 4 years respectively and has been convicted by

both the Courts below for the offences punishable under Sections

302 and 364 IPC.   The learned Trial Court, after having held the

appellant­accused guilty for the aforesaid offences, has imposed the

36

death sentence, which has been confirmed by the High Court by the

impugned judgment and order.

14. We are conscious of the fact that it is a case of circumstantial

evidence and therefore before convicting the accused on the basis of

circumstantial evidence, the prosecution has to prove beyond doubt

and complete the chain of events which lead to the conclusion that

it is the accused alone who has committed the offence.  Therefore,

in the facts  and circumstances  of the  case, it is required  to  be

considered whether the prosecution has been successful in

establishing the complete chain of events which lead to the

conclusion that it is the appellant­accused alone who has

committed the offence?

15. Having gone through the impugned judgment and order

passed by the High Court as well  as the  judgment and order of

conviction passed by the learned Trial Court and the case of the

prosecution, the appellant­accused has been convicted mainly

based  on three  sets  of circumstances: (i) last seen  evidence; (ii)

recovery of bodies pursuant to a disclosure memo and (iii) alleged

37

calls made to the appellant during the search for the missing

children.

16.  Before considering the submissions  made on  behalf of the

accused, few findings recorded by the learned Trial Court and

confirmed by the High Court, are required to be first referred to.

The prosecution has been successful  in establishing and proving

that the accused was having enmity with Shivlal­father of the three

deceased minor children.   The same has been established and

proved by the prosecution by examining Shivlal­P.W.18, Manisha­

P.W.20 and Rameshwar­P.W.11.   The prosecution has been

successful in proving that on 11.02.2011 all the minors deceased

Ajay, Vijay and Kumari Sakshi went to the school from their house.

The prosecution has also been successful in establishing and

proving that on  11.02.2011  at about  11.30  hours the  deceased

minors left for home on foot;  that the minors did not return to their

home.   On 11.02.2011 at about 12.00 noon – 1.00 pm, the

deceased were seen going with the accused in school uniform with

their school bags.   Therefore, the accused was last seen together

with the deceased minors.  That, after the incident, the accused was

38

not found  at  his  house  and  was  missing even from  the village.

During the search by Shivlal­P.W.18 and others and after the

accused was not found in the village, there were phone calls on the

mobile of the accused.  That, thereafter, the accused was  found

from  the  house of  his relative  Ashok  Kumar  Madhukar­P.W.13.

Immediately after his arrest, the dead bodies were recovered/found

along with the school bags etc. from the place shown by the

accused himself.  The aforesaid are the chain of events which led to

the conclusion that  the accused first  kidnapped the three minor

children and thereafter killed all of them.   The phone­calls made to

the accused has been established and proved by the prosecution by

examining the Investigating Officer and by producing the call details

from the mobile company as Ex.P.30.

17. Now, so far as the evidence of the accused having last seen

together with the deceased is concerned, the prosecution has

heavily relied upon the depositions of P.W.1 and P.W.8.   So far as

the reliance placed upon the deposition of P.W.1 is concerned, it is

the case on behalf of the accused that while recording his statement

under Section 313 Cr.P.C., the incriminating material on the basis

39

of the deposition of P.W.1 that he saw the accused with the

deceased minors at around 1.00 pm on the afternoon of

11.02.2011, was not put to him and therefore, to that extent, the

deposition of P.W.1 cannot be relied upon.   However, it is required

to be noted that while recording the statement of the accused under

Section 313 Cr.PC., the deposition of P.W.1 was specifically referred

to.  Therefore,  not  asking  a specific question  arising  out  of the

deposition of  P.W.1, in the  facts  and circumstances of the case,

cannot be said to be  fatal to the case of the prosecution.  Even

otherwise, the accused was  last seen together with the deceased

minors  has  been established  and  proved  by the  prosecution  by

examining P.W.8­Ashok Patel.  P.W.8­Ashok Patel in his deposition

has specifically stated that he saw the accused with all the three

minors deceased at around 12.00 hours on 11.02.2011.   He has

identified/recognized the accused present in the court. He has also

stated that he knew the complainant Shivlal and he recognized all

the three minor  children of  Shivlal.  The said witness has been

thoroughly cross­examined by the defence.   However, from the

cross­examination, the  defence  has failed to  make  out  any  case

40

which may doubt either the credibility and/or what the said witness

has stated in  his examination­in­chief.    He is an independent

witness on the evidence of last seen together.  We see no reason to

doubt the same.  There may be some contradictions, but according

to us, those contradictions are not material contradictions, which

may doubt the credibility of the said witness and/or may be fatal to

the case of the prosecution.   Thus, the prosecution has been

successful  in establishing and proving that the accused was last

seen together with all the three minor children at about 12.00 noon

on 11.02.2011 after they left the school.

17.1 At this stage, it is required to be noted that the prosecution

has  proved  beyond doubt that  all the three  minors  went to the

school in the morning of 11.02.2011 and thereafter they left for the

home at about 11.30 hours.  That, thereafter, at about 12.00 hours,

the accused was seen with all the three minor children.   At this

stage, it is required to be noted that after Ashok Patel disclosed to

Shivlal­P.W.18 and others that he had seen the accused with the

three minor children on 11.02.2011 at about 11.30 hours, the

name  of the accused  was specifically  mentioned in the  missing

41

report given by Shivlal on 11.02.2011 and the same was also

mentioned in the FIR.  In the FIR, it was specifically mentioned that

during the investigation of missing person No. 3/11, he had

enquired the complainant and Ashok Patel  and Ashok Patel told

that he saw the minor children with the accused.   Thus,

considering the entire evidence on record,  we see  no reason to

doubt the credibility of P.W.8­Ashok Patel.   He is an independent

witness and no mala­fides are alleged against him on behalf of the

accused.

18. Now, the next important evidence against the accused is the

recovery of dead bodies which were found from the places shown by

the accused after his arrest.  During the course of the investigation,

the dead bodies were found from the places shown by the accused,

the places which the accused alone could have known.   Therefore,

there is a recovery of the dead bodies along with the school dress

and bags at the instance of the accused.   It has been established

and proved from the disclosure memo.   The disclosure memo has

been exhibited.    Therefore,  the aforesaid circumstance definitely

goes against the accused.

42

19. One another circumstance which goes against the accused is

that after the incident of missing of three minor children, the

accused was not found in his house and even in the village.  He was

contacted on his mobile phone.   Initially when he was tried to be

contacted, his mobile phone was found switched­off.   However,

thereafter, he could be contacted on mobile when Rameshwar­

P.W.11 phoned the accused Manoj  on 12.2.2011 at about 11.00

p.m.   As per the said witness, at about 11.00 p.m. he phoned the

accused Manoj and asked him “Where are you” and the accused

told that he is present in his house.   According to the said witness,

the accused also told when he was asked whether any information

about the where­about of Shivlal’s children was received, initially

the accused replied that he do not know.   But, thereafter, he told

that “When my children are crying Guddu @ Shivlal was enjoying,

now when his children are missing how is he feeling”.    

19.1 However, it is required to be noted that the accused was not

present in his house at all.  From the evidence on record, it appears

that the concerned witnesses – Shivlal and others found that the

accused Manoj was not in his house.   Phone calls made at 11.00

43

pm on the mobile of the accused in the night of 11.02.2011 has

been established and proved by the prosecution by producing the

call  details  from the mobile company (produced as Ex.P.30).  The

accused  has failed to give any explanation on the same in  his

statement under Section  313 Cr.P.C.   Non­examination of the

officer of the mobile company cannot be said to be fatal to the case

of the prosecution, more particularly, when the CDR has been got

exhibited,  through the deposition of  the Investigating Officer and

when the same was exhibited, no objection was raised on behalf of

the defence.   Even otherwise,  it is required to be noted that the

mobile SIM No. 9179484724 was seized from the accused at the

time of his arrest and which is proved as per the seizure memo.

Therefore, the prosecution has proved that the mobile SIM No.

9179484724 belonged to the accused.

20. One other important evidence against the accused is the

deposition of P.W.13­Ashok Kumar Madhukar.   The accused was

found hiding in the house of said Ashok Kumar Madhukar situated

at village Lakharam which is 5­6 kilometers away.   It is true that

the said witness has turned hostile.   However, in the cross­

44

examination by the prosecution, P.W. 13 has specifically stated that

the accused Manoj told him that the children of Shivlal had gone

missing and Shivlal has lodged a report against him and the police

is looking for him.   He has specifically stated in the cross­

examination that  he  engaged the accused Manoj in conversation

and thereafter the police came and took Manoj after arresting him.

Therefore, the fact that the accused was found from the house of

said Ashok Kumar Madhukar from village Lakharam has been

established and proved, despite the said Ashok Kumar Madhukar

has turned hostile.  As per the settled proposition of law, even the

deposition of the hostile witness to the extent it supports the case of

the  prosecution  can be relied  upon.  The  accused  has failed to

explain  his  conduct in  his  statement  under  Section 313 Cr.P.C.

about his  missing  from the house and even the village after the

incident of kidnapping.   He has also failed to explain the reason

why he was found from the house of Ashok Kumar Madhukar.   It

may be that there is some doubt created by the defence about the

place where the accused was arrested. However, the fact remains

that the accused was arrested from village Lakharam on

45

13.02.2011.  According to the defence, the accsued was arrested on

12.02.2011 evening.   But the same is not established and proved

from the evidence.  On the contrary, as per the deposition of Ashok

Kumar Madhukar, he was arrested on 13.02.2011.   Even as per

the arrest memo, the accused was arrested on 13.02.2011.

Immediately thereafter, during the course of the investigation and

as per the disclosure memo, the dead bodies of the deceased minor

children were recovered at the instance of the accused.  Therefore,

as such, the chain of events established and proved by the

prosecution as under:

(1) That all the three minor children went to the school in

the morning of 11.02.2011;

(2) That  all three  minor children left the  school  at  about

11.30 a.m. on 11.02.2011;

(3) That the accused was last seen together with the

deceased minors at about 12.00 hours – 1.00 p.m.   on

11.02.2011;

(4)  That there was a prior enmity between the accused and

the complainant Shivlal­father of the deceased minor children

46

as the wife of the accused ran away with the brother of Shivlal

and that the children of the accused were without their mother

and therefore he took the revenge how Shivlal would feel if his

children are missing;

(5) That the accused was missing from his house and even

the village from the time of the incident of kidnapping;

(6) There were phone calls with the accused on his mobile

no. 9179484724 on the night of 11.02.2011;

(7) That he was hiding in the house of Ashok Kumar

Madhukar and he was arrested from village Lakharam from

the house of Ashok Kumar Madhukar on 13.02.2011 and/or

at least from Village Lakharam;

(8) Recovery of dead bodies of the minor children from the

place  shown by  the  accused,  which are recovered  from the

place/places for which the accused alone could have the

knowledge; and

(9) That the death of the minors were homicidal death.

21. As per the learned counsel appearing on behalf of the accused,

there  are  contradictions in the  depositions  of various  witnesses,

47

more particularly, P.W.1 and P.W.8 having told that they had seen

the accused with the minor children on 11.02.2011 and even with

respect to the telephonic calls and having talked with the accused

after 11.02.2011. However, having considered the so­called

contradictions  pointed out  by the learned counsel appearing on

behalf of the accused and other evidences, we are of the opinion

that those contradictions are not material contradictions which may

ultimately affect the case of the prosecution as a whole.   The minor

discrepancies and inconsistencies in the statements of the

prosecution witnesses and the minor lacuna in the investigation led

by the police cannot be a reason for discarding the entire

prosecution case, if the evidence is otherwise sufficient and

inspiring to bring home the guilt of the accused.   As observed by

this Court in the case of  Leema Ram v. State of Haryana  [AIR

1999 SC 3717], there are bound to be some discrepancies between

the narrations of different witnesses, when they speak on details,

and unless the contradictions are of a material dimension, the same

should not  be  used  to jettison  the  evidence in its  entirety. It is

further observed that corroboration of evidence with mathematical

48

niceties cannot be expected in criminal cases. Minor embellishment,

there may be, but variations by reason therefore should not render

the evidence unbelievable. Trivial discrepancies ought not to

obliterate an otherwise acceptable evidence.   The Court shall have

to bear in mind that different witnesses react differently  under

different situations: whereas some become speechless; some start

wailing while some others run away from the scene and yet there

are some who may come forward with courage, conviction and belief

that the wrong should be remedied.   So it depends upon individuals

and individuals. There cannot be any set pattern or uniform rule of

human reaction and to discard a piece of evidence on the ground of

his reaction not falling within a set pattern is unproductive.

Therefore, we are of the opinion that the so­called minor

discrepancies/contradictions do not ultimately affect the case of the

prosecution. The benefit of such minor discrepancies/

contradictions should not go to the accused,  more particularly,

when from the other evidences on record the guilt of the accused

has been established and proved.

49

22. Thus, for the reasons sated above, we are of the opinion that

the High Court has not committed any error in upholding the

conviction of the accused for the offences punishable under

Sections 302 and 364 IPC.  We are in complete agreement with the

view taken by the learned Trial Court as well as the High Court in

so far as convicting the accused for the offences punishable under

Section 302 and 364 IPC for having killed three minor children aged

about 8 years, 6 years and 4 years respectively.

23. Now, so far as the capital punishment imposed by the learned

Trial Court and confirmed by the High Court is concerned, it is the

case on behalf of the appellant­accused that as the learned Trial

Court heard the accused on sentence the very same day on which

the conviction was recorded and as such an error has been

committed by the learned Trial Court and therefore it vitiates the

award of sentence, reliance has been placed upon the decisions of

this Court  in the cases of  Santa Singh  (supra),  Allaudin Mian

(supra),  Rajesh Kumar  (supra),  Ajay Pandit @ Jagdish  (supra)

and a recent decision of this Court in Chhannu Lal Verma (supra).

While considering the aforesaid submissions, the object of Section

50

235(2) Cr.P.C. is required to be considered.  The object and purpose

of  Section  235(2)  Cr.P.C. is that the  accused  must  be  given  an

opportunity to make a representation against the sentence to be

imposed on him.   Sub­section (2) of  Section 235 satisfies a dual

purpose; it satisfies the rule of natural justice by affording to the

accused an opportunity of being heard on the question of sentence

and at the same time helps the court to choose the sentence to be

awarded.   So, what is required to be considered is whether at the

time of awarding of sentence, sufficient and proper opportunity has

been given to the accused or not and when the capital punishment

is awarded, whether the accused has been given the opportunity to

point out the aggravating and mitigating circumstances or not?  An

identical question came to be considered by this Court in a recent

decision of this Court in the case of  Accused ‘X’ v. State of

Maharashtra  in Review  Petition (Criminal)  No. 301 of 2008 in

Criminal Appeal No. 680 of 2007 dated 12.04.2019.   Before this

Court the very decisions on which the reliance has been placed now

by the learned counsel appearing on behalf of the accused, which

are referred to hereinabove, were pressed into service.   This Court

51

had the occasion to consider the very submissions made on behalf

of the accused, more particularly, the conviction and the sentence

on the very day on which the conviction was recorded.   In

paragraphs 29 to 34, this Court has observed and held as under:

“29. Two recent three Judge Bench decisions of this Court on this aspect merit our consideration. Firstly, in the decision dated 28.11.2018 in Chhannu Lal Verma v. State of Chhattisgarh (Criminal Appeal Nos. 14821483 of 2018), this  Court  observed  that  not  having  a  separate hearing at the stage of trial was a procedural impropriety. Noting that a bifurcated hearing for conviction and sentencing was a necessary condition laid down in Santosh  Kumar  Satishbhushan Bariyar, (2009)  6  SCC 498, the Court held that by conducting the hearing for sentencing  on the same  day, the  Trial  Court failed to provide necessary time to the appellant therein to furnish evidence relevant to sentencing and mitigation. We find that this cannot be taken to mean that this Court intended to lay down, as a proposition of law, that hearing the accused for sentencing on the same day as for conviction would vitiate the trial. On the contrary, in the said case, it was found on facts that the same was a procedural impropriety because the accused was not given sufficient time to furnish evidence relevant to sentencing and mitigation.

30. Secondly,  in the decision dated 12.12.2018 in Rajendra Prahladrao Wasnik v. State of Maharashtra, (Review Petition  (Crl.) Nos. 306­307 of 2013), this Court made a general observation that in cases where the death penalty may be awarded, the Trial Court should give an opportunity to the accused after conviction which is adequate for the production of relevant material on the

52

question of the propriety of the death sentence. This is evidently at best directory in nature and cannot be taken to mean that a pre­sentence hearing on a separate date is mandatory.

31. It  may also  be noted that in the older  three­ Judge Bench decision of this Court in Malkiat Singh Case (1991) 4 SCC 341, the Court observed that keeping in mind the two­Judge Bench decisions in Allauddin Mian Case  (supra) and Auguswamy v. State of Tamil Nadu, (1989) 3 SCC 33, wherein it had been laid down that a sentence awarded on the same day as the finding of guilt is not in accordance with law, the normal course of action in case of violation of such procedure would be remand  for further evidence.  However,  on a perusal  of these two  decisions  we find that their import  has  not been correctly appreciated in Malkiat Singh Case (supra), since the observations in Allauddin Mian Case (supra), as relied upon in Anguswamy Case (supra), regarding conduct of hearings on separate dates, were only directory. Be that as it may, it must be noted that the effect  of  Malkiat  Singh  Case (supra)  has  already  been considered by this Court in Vasanta Sampat Dupare v. State of Maharashtra  (2017) 6 SCC 631, wherein it was already noted that the mere non­conduct of the pre­ sentence hearing on a separate  date  would not  per  se vitiate the trial if the accused has been afforded sufficient time to place relevant material on record.

32. It may not be out of context to note that in case the minimum sentence is proposed to be imposed upon the  accused, the  question  of  providing  an  opportunity under Section 235(2) would not arise. (See Tarlok Singh v. State of Punjab, (1977) 3 SCC 218; Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714).

33. There cannot be any doubt that at the stage of hearing on sentence, generally, the accused argues based

53

on the mitigating circumstances in his favour for imposition  of lesser sentence.  On  the  other  hand, the State/the complainant would argue based on the aggravating circumstances against the accused to support the contention relating  to  imposition of  higher sentence. The object of Section 235 (2) of the Cr.P.C is to provide an  opportunity for accused to adduce mitigating circumstances.  This  does  not  mean,  however, that the Trial Court can fulfill the requirements of Section 235(2) of  the Cr.P.C. only by adjourning the matter  for one or two days to hear the parties on sentence. If the accused is ready to submit his arguments on this aspect on the very  day of  pronouncement  of the judgment  of conviction, it is open for the Trial Court to hear the parties on sentence on the same day after passing the judgment of conviction. In a given case, based on facts and circumstances, the Trial Court may choose to hear the parties on the next day or after two days as well.

34. In light of the above discussion, we are of the opinion that as long as the spirit and purpose of Section 235(2)  is  met, inasmuch as the  accused is  afforded  a real and effective opportunity to plead his case with respect to sentencing, whether simply by way of oral submissions  or  by  also  bringing  pertinent  material  on record, there is  no  bar  on the  pre­sentencing  hearing taking place on the same day as the pre­conviction hearing.  Depending on  the facts  and circumstances,  a separate date may be required for hearing on sentence, but it is equally permissible to argue on the question of sentence on the same day if the parties wish to do so.”

Thus, there is no absolute proposition of law that in no case there

can  be  conviction  and  sentence  on the  same day.  There is  no

54

absolute proposition of law laid down by this Court in any of the

decisions that if the sentence is awarded on the very same day on

which the conviction was recorded, the sentencing would be

vitiated.   

23.1 So far  as the reliance  placed  upon by the learned  counsel

appearing on behalf the appellant upon the decision of this Court in

the case of  Santa Singh  (supra) is concerned, on considering the

entire judgment and the facts in that case, we are of the opinion

that the said decision shall not be applicable to the facts of the case

on hand and/or the same shall  not  be of  any assistance to the

accused.   In that  case  before this  Court, it  was found  that the

learned Trial Court did not give the accused an opportunity to be

heard in regard to the sentence to be imposed on him and by one

single judgment convicted the accused and also sentenced him to

death.

23.2 Similarly, the decision of this Court in the case of  Allaudin

Mian (supra) also shall not be applicable to the facts of the case on

hand.   In the case before this Court, it was found that the death

sentence was imposed by the Trial Court without affording proper

55

opportunity of hearing as contemplated under Section 235(2)

Cr.P.C.   No reasons were recorded for awarding the death sentence

which as such were mandatory and thereafter on merits this Court

found that the death sentence was no warranted.     

23.3 Applying the law laid  down by this  Court in the  aforesaid

decisions, more particularly, in the case of  Accused ‘X’  (supra) to

the  facts of the case on hand and on considering  the reasoning

given by the learned Trial Court as well as the High Court, we are of

the opinion that there is sufficient compliance of the provisions of

Section 235(2) Cr.P.C.    The learned Trial Court heard the accused

on the aspect of proposition of sentence separately which is clear

from paragraphs  76 to  82  of the judgment of the learned  Trial

Court.     Hence, based on the material on record, we are satisfied

that the learned Trial Court fully complied with the requirements of

Section 235(2) Cr.P.C.   The learned Trial Court had considered the

mitigating circumstances pointed out on behalf of the accused and

also considered the aggravating circumstances which warranted the

death sentence.  Thus, it cannot be said that the accused was not

given any sufficient opportunity to put forward his case on

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sentence.    It also cannot be said that the learned Trial Court has

not given any special reasons while awarding the death sentence.

After considering the aggravating circumstances and the crime i.e.

the magnitude and the manner of the commission of the crime in

the form of kidnapping and thereafter murdering three minor

children, while awarding the death sentence the learned Trial Court

has considered the following aggravating circumstances against the

accused:

“A. This point is  not  disputed that the  accused  was annoyed with Shivlal (PW­18) because 10 days prior to the incident  his  wife  Sumrit  Bai  eloped or  got eloped by  the  brother  of  Shivlal (PW­18)  as there was a love affair between Sumrit Bai and uncle of the minors deceased Ajay, Vijay and Sakshi.  In this regard evidence is also available on record.

B. As well as this point is also considerable that being acquaintance with the accused and having faith on accused all the  three minors  innocent Ajay,  Vijay and  Sakshi left the  school  with the  accused  and were missing. Hence, breaching the faith of all the three innocent minors the accused has committed the offence of kidnapping.    

C. It is also considerable that the accused has committed culpable homicide of all the three minors Ajay, Vijay and Sakshi whose age was in between 4 to 8 years.   There was 10 days sufficient time gap between the incident of eloping accused’s wife with Shivnath, the uncle of the minors and the date of

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committing culpable homicide of the minors. Hence, the act of the accused is not the act committed under grave and sudden provocation. On the basis of evidence available on record the act of the accused is afterthought with planned manner.

D. It is also considerable that accused  has brutally committed homicidal death of all three minors Ajay, Vijay and Sakshi by processing their neck forcefully who have no concern with the matter of eloping his wife Sumrit Bai.

E. It is also  considerable that  accused  has  brutally, mercilessly and cowardly committed murder of all three minors Ajay, Vijay and Sakshi who were tender age of 4­8 years and were completely unable to resist and defend themselves at the time of incident.

F. At the time of committing the said act accused had two children thinking over it the accused did not have to do the said act.   In the light of the said act committed by the accused the question of maintaining their minor children is secondary.

G. It is also considerable that the said act of the accused is the act which gives challenge to the social security of the society.”

Thus, the submission on behalf of the accused that as the sentence

was recorded on the same day on which the conviction was

recorded and therefore it has vitiated the award of sentence, cannot

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be accepted.   As observed hereinabove, there is a total compliance

of the provisions of Section 235 (2) as well as Section 354 Cr.P.C.   

24. Now, so far as the submission on behalf of the accused that

while awarding the capital punishment the learned Trial Court has

solely looked to the brutality of the crime is concerned, it is

factually incorrect.   On considering the rival discussions as well as

the reasons given by the learned Trial  Court while  awarding the

capital punishment, it appears that the brutality of the crime was

considered to be one of the reasons and not the sole reason.   

25. However, at the same time, the prayer on behalf of the accused

not to impose the death penalty and to convert the same into life

imprisonment, in the facts and circumstances of the case, requires

consideration.   Therefore, now the question which is posed for

consideration of this Court is whether, in the facts and

circumstances of the case, the death sentence is warranted?

25.1 While answering the aforesaid questions, few decisions of this

Court on when the death sentence is warranted are required to be

referred to and considered.   

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25.2 After analyzing many decisions of this Court on imposition of

death sentence, namely, Bachan Singh (supra); Machhi Singh v.

State of Punjab (1983) 3 SCC 470;  Mohd. Chaman v. State (NCT

of Delhi)  (2001) 2 SCC 28;  Aloke Nath Dutta v. State of W.B.

(2007) 12 SCC 230;  State of Punjab v. Manjit Singh  (2009) 14

SCC 31;  Santosh Kumar Satishbhushan Bariyar  v.  State  of

Maharashtra  (2009) 6 SCC 498;  Sebastian v. State of Kerala

(2010)  1  SCC 58;  Rajesh Kumar  (supra);  Ramesh v.  State  of

Rajasthan (2011) 3 SCC 685; Amit (supra); and Mohinder Singh

v. State of Punjab  (2013) 3 SCC 294, the decisions which were

relied  upon  on  behalf of the accused  and  after considering few

decisions of this Court involving death sentence which were relied

upon on behalf of the State, ultimately, this Court in the case of

Sushil  Sharma v.  State (NCT) of  Delhi  (2014)  4  SCC  317 in

paragraphs 100­104 has observed and held as under:

“100. In light of the above judgments,  we  would now ascertain what factors which we need to take into consideration  while  deciding the question of sentence. Undoubtedly, we must locate the aggravating and mitigating circumstances in this case and strike the right balance. We must also consider whether there is

60

anything uncommon in this case which renders the sentence  to life imprisonment inadequate and calls for death sentence. It is also necessary to see whether the circumstances  of the crime  are such that there is  no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender.

101. We notice from the above judgments that mere brutality of the murder or the number of persons killed or the manner in which the body is disposed of has not always  persuaded  this  Court to impose  death penalty. Similarly,  at times, in  the peculiar factual  matrix, this Court has not thought  it fit  to award death penalty in cases, which rested on circumstantial evidence or solely on approver's evidence. Where murder, though brutal, is committed driven by extreme emotional disturbance and it does not have enormous proportion, the option of life imprisonment has been exercised in certain cases. Extreme poverty and social status has also been taken into account amongst other circumstances for not awarding death sentence. In few cases, time spent by the accused in death cell has been taken into consideration along with other circumstances, to commute death sentence into life imprisonment. Where the accused had no criminal antecedents; where the State had not led any evidence to show that the accused is beyond reformation and rehabilitation or that he would revert to similar crimes in future, this Court has leaned in favour of life imprisonment. In such cases, doctrine of proportionality and the theory of deterrence have taken a back seat. The theory of reformation and rehabilitation has prevailed over the idea of retribution.

102. On the other hand, rape  followed by a cold­ blooded murder of a minor girl and further followed by disrespect to the body of the victim has been often held

61

to be an offence attracting death penalty. At times, cases exhibiting premeditation and meticulous execution of the plan to murder by  levelling a calculated attack on the victim to annihilate him, have been held to be fit cases for imposing death penalty. Where innocent minor children, unarmed persons, hapless women and old and infirm persons have been killed in a brutal manner by persons in dominating position, and where after ghastly murder displaying depraved mentality, the accused have shown no remorse, death penalty has been imposed. Where it is established that the accused is a confirmed criminal and has committed murder in a diabolical manner and where it is felt that reformation and rehabilitation of such a person  is  impossible and if let free, he would be a menace to the society, this Court has not hesitated to confirm death sentence. Many a time, in cases of brutal murder, exhibiting depravity and sick mind, this Court has acknowledged the need to send a deterrent  message to those  who may  embark on such crimes in future. In some cases involving brutal murders, society's cry for justice has been taken note of by this Court, amongst other relevant factors. But, one thing is certain that while deciding whether death penalty should be awarded or not, this Court has in each case realising the irreversible nature of the sentence, pondered over the issue many times over.  This Court has always kept  in mind the caution sounded  by the  Constitution  Bench in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684  :  1980 SCC  (Cri)  580] that  Judges should never be bloodthirsty but has wherever necessary in the interest of society located the rarest of the rare case and exercised the tougher option of death penalty.

103. In the nature of things, there can be no hard­ and­fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore,

62

the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there  is any possibility of  his reformation and rehabilitation or whether it is a case where the reformation is impossible  and the  accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in the light of  guiding principles  laid down in several  authoritative pronouncements of this Court in the facts and attendant circumstances of each case.

104. We must also bear in mind that though, the judicial proceedings do take a long time in attaining finality, that would not be a ground for commuting the death sentence to life imprisonment. Law in this behalf has been well settled in Triveniben [Triveniben v. State of Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri) 248] . The time taken by the courts till the final verdict is pronounced cannot  come  to the  aid of the  accused  in canvassing commutation of death sentence to life imprisonment. In Triveniben [Triveniben v. State of Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri) 248] , the Constitution Bench made it clear that though ordinarily, it is expected that even in this Court, the matters where the capital punishment is involved, will be given top priority and shall be heard and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any court, before final adjudication, even the person who has been condemned or who has been sentenced to death has a ray of hope. It, therefore,  could  not  be  contended  that  he  suffers that mental torture which a person suffers when he knows that  he is to  be  hanged  but  waits for the  doomsday. Therefore, the appellant cannot draw any support from

63

the fact that from the day of the crime till the final verdict, a long time has elapsed. It must be remembered that fair trial is the right of an accused. Fair trial involves following the correct procedure and giving opportunity to the accused to probabilise his defence. In a matter such as this, hurried decision may not be in the interest of the appellant.”

25.3 In the case of  Absar Alam v. State of Bihar  (2012) 2 SCC

728, it is observed and held by this Court that the mental condition

of the accused, which led to assault, cannot be lost sight of.   It is

further observed that the mental condition or state of mind of

accused  is one of the  factors  that  can be  taken  into account  in

considering the question of sentence.   

25.4 Thus, from the catena of decisions of this Court, more

particularly, the decisions referred to hereinabove, for deciding on

the issue of sentence, the aggravating circumstances and mitigating

circumstances must be located and the right balance must be

adopted.    What can be said to be the mitigating circumstances has

been dealt with and considered by this Court in the case of Bachan

Singh  (supra).   As observed by this Court in the case of  Bachan

Singh  (supra), the following can be said to be the mitigating

64

circumstances which are required to be considered while deciding

on the issue of death sentence.     

 “(1) That the offence was committed under the 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 Conditions (3) and (4) above.

(5) That in the facts and circumstances 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.”

25.5 In light of the above judgments, we would now ascertain the

factors which we need to take into consideration while deciding on

the  question  of sentence.  We  must locate the  aggravating  and

mitigating circumstances in this case and strike a right balance.

In the present case, the following are the mitigating

factors/circumstances:

65

(i) That the offence was committed under the influence of

extreme mental or emotional disturbance.   The accused was

emotionally disturbed due to the elopement of his wife with the

uncle of the deceased and that his children were suffering in

absence of their mother with them.  The accused was so much

disturbed and troubled is also born out from the deposition of

one  of the  witnesses that  on  mobile the  accused told  how

Shivlal is feeling without his children.

(ii) There are no criminal antecedents.

(iii) At the time of commission of the offence the accused was

28 years of age and his conduct in prison is reported to be

good.

(iv) That he belongs to a poor family and is the only son of

his parents, and

(v) That he has got an old aged mother who is taking care of

two daughters of the  accused,  out  of  which one  is  married

now.

25.6 On the other hand, the only aggravating circumstance pointed

out by the State is that the manner in which the incident took place

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and three minors were brutally killed.   Except the above, no other

aggravating circumstances are pointed out on behalf of the State.

Therefore, striking the balance between aggravating circumstances

and mitigating circumstances,  we are  of the  opinion  that in the

facts and circumstances of the case, more particularly, the mental

condition of the accused at the time of the commission of the

offence and that the accused was under extreme mental

disturbance due to his wife eloped with the uncle of the deceased

and his children were deprived of the company of their mother, the

mitigating circumstances are in favour of the accused to convert the

death sentence to life imprisonment.  It is true that the court must

respond to the cry of the society and to settle what would be the

deterrent punishment for an abominable crime.   It is also equally

true that a larger number of criminals go unpunished thereby

increasing criminals in the society and law losing its deterrent

effect.   .It is also true that the peculiar circumstances of a given

case often results in miscarriage of justice and makes the justice

delivery system  a suspect; in the  ultimate analysis, the society

suffers and a criminal get encouraged.   Sometimes it is stated that

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only rights of criminals are kept in mind, the victims are forgotten.

However, at the same time, while imposing the rarest of rare

punishment, i.e. death penalty, the Court must balance the

mitigating and aggravating circumstances of the crime and it would

depend upon particular  and peculiar facts  and circumstances of

each case.  The mitigating circumstances as observed by this Court

in the case of  Bachan Singh  (supra) and the mitigating

circumstances in the present case, if are considered cumulatively

and  more  particularly, that the  accused  was  under the  extreme

mental disturbance because of the reasons stated hereinabove, we

are of the opinion that, in the peculiar facts and circumstances of

the case, the death  penalty is not  warranted  and the same  be

converted to life imprisonment.   

26. In view of the  above  and  for the  reasons stated above, the

present appeal succeeds in part.  The Judgment and Order passed

by the learned Trial Court and confirmed by the High Court

convicting the accused for the offences punishable under Sections

302 and 364 IPC is hereby confirmed.   However, the death

sentence imposed by the learned Trial Court, confirmed by the High

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Court, is converted into the life imprisonment.   It is further

observed and directed that the life means till the end of the life with

the further observation and direction that there shall not be any

remission till the accused completes 25 years of imprisonment.

The present appeal is partly allowed to the aforesaid extent.

…………………………..J. (UDAY UMESH LALIT)

…………………………..J. (INDIRA BANERJEE)

…………………………..J. (M. R. SHAH)

New Delhi; March 05, 2020.