STATE OF MAHARASHTRA Vs GORAKSHA AMBAJI ADSUL
Bench: B.S. CHAUHAN,SWATANTER KUMAR
Case number: Crl.A. No.-000999-000999 / 2007
Diary number: 11413 / 2006
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.999 OF 2007
STATE OF MAHARASHTRA … Appellant
Versus
GORAKSHA AMBAJI ADSUL … Respondent
AND
CRIMINAL APPEAL NO.1623 OF 2007
GORAKSHA AMBAJI ADSUL … Appellant
Versus
STATE OF MAHARASHTRA … Respondent
J U D G M E N T
Swatanter Kumar, J.
The learned trial court, while weighing the mitigating and
aggravating circumstances and keeping in mind the principle
of proportionality of sentence or what it termed as “just-
desert” for the brutal and diabolical killing of three innocent
family members, formed an opinion that the Court could not
1
resist from concluding that the only sentence that could be
awarded to the accused was death penalty. Thus, it directed
that the accused Goraksha Ambaji Adsul be hanged by the
neck till he is dead in terms of Section 354(5) of the Code of
Criminal Procedure, 1973 (for short ‘Cr.P.C.’), subject to
confirmation by the High Court in accordance with law.
Aggrieved by this extreme punishment and the order of
conviction, the accused challenged the judgment of the
learned trial court dated 14th February, 2005 by filing an
appeal before the High Court which vide its detailed judgment
dated 30th September, 2005, declined to confirm the death
sentence referred under Section 366 of the Cr.P.C. and held
the said accused guilty of offence under Sections 302 and 201
of the Indian Penal Code (for short ‘IPC’), and sentenced him
to undergo life imprisonment. In other words, the High Court
converted the death penalty into life imprisonment while
sustaining the order of conviction.
2
The State of Maharashtra has preferred the present appeal
bearing Crl.A. No. 999/2007, before this Court claiming that
the said conversion by the High Court is not appropriate in
the facts and circumstances of the case. The State further
avers that the High Court in its judgment has fallen in error of
law as well as failed in appreciation of evidence. It is
contended that this Court should restore the judgment of the
trial court on the quantum of sentence by awarding death
penalty. The accused has filed a separate appeal being Crl.A.
No. 1623 of 2007 challenging the very same judgment of the
High Court on the ground that the appellant could not have
been held guilty for an offence under Sections 302 and 201 of
the IPC and the appellant was entitled to judgment of
acquittal.
Thus, it will be appropriate for us to dispose of both the
above appeals by a common judgment. For that purpose, we
may briefly notice the facts giving rise to the present appeals.
3
Accused no.1 Goraksha Ambaji Adsul is the son of the
deceased, Ambaji Ahilaji Adsul. Accused no.3 Sow. Sunita
Goraksha Adsul is the wife and Accused no.2 Mininath Ambaji
Adsul is the brother of the Accused no.1 Goraksha. Accused
no.1 was serving in the Indian Army and used to visit his
village Hivare-Korda where the family had some agricultural
land and other properties. The deceased, Ambaji Ahilaji Adsul
was also married to the second deceased, Janabai and she
was his second wife. In other words, Janabai was the
stepmother of the Accused no.1 and 2 and Reshma
(deceased) was their stepsister. All these persons used to
jointly reside in their house in the said village. It has come in
evidence that there used to be quarrels between the Accused
no.1, his brother and wife on the one side and the deceased
Ambaji Ahilahi Adsul, his wife Janabai and daughter Reshma
on the other. The accused used to demand partition of the
land and other property and allotment of share to the accused
and his brother. This persisted for a considerable time and is
said to be the motive for commission of the offence.
4
One Premchand Rangarao Jatav, Deputy Station
Superintendent, Railway Station, Bhopal (PW9), received a
memo sent by Sh. R.K. Arora, Train Ticket Examiner (TTE),
informing him that a black coloured trunk was found in Bogie
No.S-6 of Train No. 2779 (Goa-Nizamuddin Express) running
via Ahmednagar when it reached Bhopal Railway Station on
25th October, 2002 at about 7.00 p.m. The black trunk was
seized under panchnama and when the same was opened in
the presence of Dr. Harsh Sharma it was found that it
contained a dead body which was later identified to be that of
Ambaji Ahilaji Adsul. Mr. Someshwari Jogeshwari Prasad
Mishra, ASI, G.R.P. Bhopal (PW11) completed the formalities
of inquest and post-mortem. After the body was received in
the hospital it was inspected by one Dr. Mrs. Rajni Armit
Arora, the then Associate Professor at the Department of
Forensic Medicine, Gandhi Medical College, Bhopal, (PW19).
It was noticed that a lace was found to have been tied to the
portion covering neck and throat of the deceased. Dr. Arora
performed the autopsy on 26th October, 2002. She noticed
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ligature mark of brownish colour and ligature material of
khaki colour shoe lace, two in number, tied around the neck
encircling it and described the injuries as ante-mortem
injuries. According to the said doctor, the cause of death was
strangulation and homicidal in nature and was caused two to
three days prior to the post-mortem examination. As nobody
had claimed the body, the blood stained clothes of the
deceased were seized and the body was cremated at
Bhadbhada Vishram Ghat, Bhopal. An FIR (exhibit-82) was
registered with regard to the said crime.
On 25th October, 2002 itself, another train, i.e. Train No.
7602-UP (Nanded Pune Express) reached Ahmednagar
Railway Station at its scheduled time in the morning at about
6.15 a.m. and departed at 6.30 a.m. Enroute, during the stop
at Akolner Railway Station for crossing of the train coming
from opposite direction, Mr. Sanjay Bhujadi, TTE, found one
white tin trunk in Bogie No. S-4 placed between the two toilets
of the Bogie No. S-4. After arriving Kasthi Railway Station,
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Mr. Sanjay Bhujadi made a report to the Station Master,
Kashti, informing him of the said trunk. This memo was
delivered to GRP, Daund Railway Station (Ex.132). The trunk
was removed from the bogie and a panchnama was prepared.
Thereafter, it was opened and two dead bodies were found in
that trunk. These were later identified as those of Janabai
and Reshma. Inquest formalities were completed and an FIR
(exhibit 125) was lodged on 25th October, 2002 as Crime No.
43/2002 for offence punishable under Sections 302 and 201
of the IPC.
The railway police investigating officer, Mr. B.B. Joshi,
(PW8) conducted investigation and registered a case vide
Crime No. 237/2002 on 17th November, 2002 against the
three accused namely, Goraksha Ambaji Adsul, Sow. Sunita
Goraksha Adsul and Mininath Ambaji Adsul. On further
investigation, it was found that the accused persons had
administered sedative/poisonous substance mixed in pedas
and thereafter strangulated all the three victims with shoe
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laces. Thereafter, they placed the bodies of the these victims
in two different trunks . One trunk was kept near the
electricity board D.P. at nearby Village Malkop and the other
at the house of one Mr. Sakharam Thakaji Nabge, a friend of
the accused (PW7), before both were transported to the
Ahmednagar Railway Station by the accused Goraksha in a
hired maruti van. Thereafter, as afore-noticed, these trunks
were placed in different trains.
Accused nos. 2 and 3 were arrested on 14th November,
2002 and Accused no.1 on 30th November, 2002. Their
statements were recorded under Section 164 of the Cr.P.C. by
Mr. Sayyad, Judicial Magistrate, First Class, on 6 th February,
2003 and 7th February, 2003 respectively. Investigation was
completed and the accused were sent to the court of Judicial
Magistrate on 11th February, 2003 for committal to the Court
of Sessions so that they could be tried in accordance with law.
All the three accused had taken the defence of total denial and
pleaded false implication. Accused no. 1 had specifically taken
8
up the plea that between 22nd October, 2002 and 25th October,
2002, he was present at his duty place i.e. the Army Office at
Patiala. The prosecution has examined as many as 25
witnesses to bring home guilt of the accused persons and after
recording the statement of the accused under Section 313 of
the Cr.P.C., the trial court after discussing the entire evidence
on record had found Accused no.1 Goraksha Ambaji Adsul
guilty of an offence under Section 302 as well as Section 201
of the IPC and awarded the sentence of death to him.
However, Accused Nos. 2 and 3 were acquitted as according to
the trial court, the prosecution had failed to prove its case
beyond reasonable doubt against these accused. The State
did not prefer any appeal against the acquittal of the said two
accused and thus, their acquittal has already attained finality.
Resultantly, in the present appeal, we are only concerned with
Accused no.1 Goraksha Ambaji Adsul, who has filed an
independent appeal against the judgment of conviction and
sentence.
9
As would appear from the above narrated factual matrix, it is
a case of circumstantial evidence and there is no eye-witness
or other direct evidence in regard to the murder of the three
deceased persons. As is clear from the above, Ambaji Ahilaji
Adsul was the real father of Accused nos.1 and 2 while
Accused no.3 is the wife of Accused no.1. Deceased Janabai
was the second wife of Ambaji and therefore the step-mother
of Accused nos.1 and 2. Deceased Reshma and PW13 Sunil
are the children born to Janabai from Ambaji, thus, they are
the step-sister and step-brother of the Accused nos.1 and 2.
It is the case of the prosecution that there used to be quarrels
and the accused Goraksha used to demand partition of the
land and other properties. In fact, he is stated to have
assaulted his father during those quarrels. The accused
Goraksha had returned home for Diwali. He had brought
sweets (pedas) with him, which he offered to all, i.e. Ambaji,
Janabai, Sunita, Reshma and Sunil on the night of 23rd
October, 2002. These pedas contained sedative/poisonous
substance and after supper when the family was asleep,
10
Goraksha killed his father, stepmother and stepsister by
strangulation and packed the dead bodies in two metallic
boxes. One of the boxes was loaded in the train 2779 UP,
Goa-Nizammudin Express while the other was loaded in train
7602-UP, Nanded-Pune Express and the same were recovered
at Bhopal and Daund Railway Stations respectively, as noticed
above. Sunil and the accused Sunita required medical
assistance on the next day as they suffered from vomiting and
dysentery presumably because of food poisoning caused by
the sedative-infused pedas, which were offered to them by
Accused no.1 Goraksha. Another suspicious circumstance
which led to the arrest of the accused was that on enquiry by
the brother of the deceased Ambaji, the accused had informed
him that Ambaji, Janabai and Reshma had gone to
Ahmednagar for medical treatment and subsequently claimed
that he had received a telephone call from his father stating
that the family was proceeding to the holy place of
Pandharpur. Still another circumstance which connected
accused no.1 with the commission of the crime was that he
11
had hired a maruti van owned by PW14 Bapusaheb Shinde for
the purpose of carrying the two trunks containing the three
dead bodies from Village Malkop to the Railway Station,
Ahmednagar. PW-7 Sakharam Nabge, a friend of the accused
had also deposed that the trunk was kept in front of his house
before it was loaded in the Maruti Van. PW12, Baban Vishnu
Thorat is a friend of Bapusaheb Shinde and both of them were
together when Goraksha contacted Bapusaheb for hiring of
Maruti Van on 24th October, 2002. They were again together
when two trunks were lifted in the early dawn hours on 25th
October, 2002. Thus, these two persons were material
witnesses for establishing the fact that these trunks/iron
boxes were actually carried from the place afore-indicated to
the Railway Station by the accused. PW17, Pandurang
Daobhat is the brother of the deceased Janabai and had
identified the dead bodies. His statement is of significance in
regard to the identification of the dead bodies as well as the
conduct of the accused subsequent to the recovery of the dead
bodies. He is the person who was provided with incorrect
12
information by the accused Goraksha regarding whereabouts
of the deceased. PW13 Sunil is another material witness as
he was also administered the pedas laced with sedatives and
the same was served in his presence to the deceased by the
Accused no.1 Goraksha. Besides this evidence, the statement
of Dr. Sanjay Pande, PW10 also helps in completing the chain
of events leading to the commission of the crime and its
subsequent result. According to this witness, he had treated
Sunil (PW13) and Sunita (Accused no.3) on 24th October, 2002
when they were brought to him with the complaint of diarrhea.
When they went to the doctor, Goraksha, the Accused no.1
had accompanied them.
PW23, Ezaz Ahmed, Judicial Magistrate, First Class at
Sahabad had recorded the statements of PW12, PW14, PW17
and Meerabai Daobhat, sister of the deceased Janabai under
Section 164 of the Cr.P.C. We may also notice that some of
the panch witnesses who had signed the panchnamas turned
hostile and PW7 Sakharam, a personal friend of the accused
13
Goraksha also did not fully support the case of the
prosecution.
The above are the main witnesses on whose statement
the entire case of the prosecution rests, of course, in addition
to the statement of the Investigating Officers and other formal
witnesses. Accused nos. 2 and 3 were acquitted by the trial
court and the High Court noticed that it was not concerned
with the merit or otherwise of their acquittal by the trial court
as the State had not preferred any appeal against the
judgment of acquittal.
At this stage, we may usefully refer to the circumstances
which were relied upon by the prosecution before the courts
and they were as follows:-
i Motive – dispute over agricultural land/partition. (Evidence of PW-13 Sunil and PW-17 Pandurang)
i Last seen together – (togetherness by virtue of joint family).
i Administration of sedative through sweets. (Evidence of PW-13 Sunil and PW-10 Dr. Pande).
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i The disposal of dead bodies by Accused no.1 (Evidence of PW-12 Baban, PW-14 Bapusaheb).
i Identification of Accused no.1 as person loading one trunk in Goa-Nizammuddin Express train (PW-15 Aradhana).
i Homicidal death.
i False theory/explanation propounded by accused for absence of the victim. (Evidence of PW-13 Sunil and PW-17 Pandurang).
In the facts and circumstances of the case, the High
Court expressed the opinion that two circumstances, i.e. the
last seen together and the homicidal death stands proved by
themselves and do not require further evidence to prove that
fact. We fully agree with the view expressed by the High Court
that, keeping in view the photographs of the dead body and
the doctor’s statement, it was proved to be a homicidal death.
The learned counsel appearing for the Accused no.1
(appellant) argued with some vehemence that the doctor had
not expressed his opinion with regard to the cause of death
particularly in relation to Reshma and Janabai, as is evident
from Exhibits 113 and 114. But this argument does not
15
impress us at all inasmuch as the death of the two persons
have been proved. From the injury report on the body of the
deceased, the photographs and the circumstances attendant
thereto, it is more than clear that this was a case of homicidal
death. The bodies of the deceased were duly identified. It was
practically an admitted case that the deceased as well as the
accused were living in a joint family and had their last meals
together, during which the accused had offered pedas to the
family including the deceased. This is fully substantiated by
the statement of PW13 and PW10. PW13, Sunil is a family
member. He had also suffered the consequences of
consuming the pedas and was treated by PW10, Dr. Pande.
The factum of carrying of two boxes and loading them on the
respective trains has also been fully established by the
prosecution as we have above-discussed. At this stage, we
may refer to some extracts of the High Court judgment where
in our view the High Court has correctly appreciated the
evidence. It disregarded the statement of PW7 while fully
relying upon and holding that there were witnesses who were
16
truthful and can be safely relied upon, the Court held as
under: -
“To sum-up the assessment of evidence of these seven vital witnesses, we may say that, PW-7 Sakharam Nabge has made himself sufficiently useless for the prosecution. Evidence of PW-12 Baban Thorat is acceptable to establish that Accused No.1 had contracted with PW-14 Bapusaheb and accordingly two trunks were transported from Malkop D.P. to Ahmednagar Railway Station at the instance of Accused No.1 (sic), for which accused no.1 paid hire charges of Rs.200/-. Evidence of PW-14 Bapusaheb, although shaky, can be relied upon on the same point, to the extent it is in harmony with the evidence of PW-12. We find PW-10 Dr. Pande, in the absence of case-papers to refresh his memory, to be not reliable. PW- 15 Aradhana also cannot be relied upon for the purpose of identification of Accused No.1, although she can be believed to the extent that the trunk was loaded in Goa-Nizamuddin Express, at Ahmednagar Railway Station. PW-17 Pandurang can be relied upon for identification of the victims and subsequent conduct of Accused No.1, so also to some extent, possible motive i.e. quarrels on the point of partition. PW-13 Sunil, although a child witness, can certainly be believed regarding togetherness on the fateful night, more so because that is an admitted position. His evidence regarding quarrels on the point of partition can also be accepted, because of support from Pandurang and probability. The story of administration of Pedhas containing some sedative/poisonous substance and subsequent admission to Mate Hospital, has become a story not acceptable without risk, more so when such story is not supported by any case papers.
XXX XXX XXX XXX XXX
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We have subjected the evidence to close scrutiny and only thereafter arrived at our conclusion as to whether witnesses are to be believed and if yes, to what extent.
By relying upon Anthony D. Souza – Vs. – State of Kerala, A.I.R. 2003 S.C. 258 and Darshansingh –Vs.- State of Punjab, 1995 S.C.C. (Crl.) 702, learned A.P.P. has propounded that, in case accused makes a statement under section 313 of Cr.P.C. completely denying the prosecution case and established facts and offers false answers or explanation, that can be counted as providing missing link from complete chain of the prosecution evidence and circumstances, in a case based on circumstantial evidence. Relying on these cases, an argument that false explanation can be utilized as one of the links in the chain of circumstantial evidence was advanced, in order to persuade this Court that story narrated by accused Goraksha to PW-17 Pandurang about the victims having gone to Pandharpur should be taken into consideration as false explanation, although not to the Court, to the relatives and others. In fact, as already pointed out earlier, accused have persisted in sticking to this explanation even during the curse (sic) of their statement under Section 313 Cr.P.C., 1973, without demonstrating to the Court that either of the two trains, i.e. Goa-Nizamuddin Express and Nanded-Pune Express travel via Padharpur (sic). We may state it here itself, that explanation offered by the accused about his having received a message from Balasaheb Sinare of Village Padali, who received telephone of the deceased Ambaji, of the three victims having gone to Pandharpur cannot be said to have been probabilised in the absence of evidence of said Balasaheb Sinare. The two trains not having been demonstrate as passing through Pandharpur gives another set back to the said defence.
24. In the light of acquittal of Accused Nos. 2 and 3 by the trial court, learned Advocate for the appellant has placed reliance upon the observations of the Supreme Court in the
18
matter of Suraj Mal – Vs- State (Delhi Administration), A.I.R. 1979 S.C. 1408, and more particularly, observation to the following effect in para 2: -
“where witnesses make tow (sic) inconsistent statements in their evidence, either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence, and in absence of special circumstances, no conviction can be based on the evidence of such witness.”
This was a case under Prevention of Corruption Act. Three police officers were tried for allegedly having accepted bribe. PW No.s 6, 8 and 9, Shiv Naryan, Prem Nath and Sham Sunder resiled from their statements which they made in their chief examination and all of them stated that Ram Naryan (one of the three accused) refused to accept the bribe. Ram Naryan was, therefore, acquitted by the trial Court. Another accused Devender Singh was acquitted by the High Court on the ground that the sanction was not valid.
We are unable to appreciate the applicability of the ratio to the matter at hands. As can be seen from the impugned judgment, in the present matter, Accused No.s 2 and 3 are acquitted by the trial Court because there is no evidence referring to them…..”
The above conclusion of the High Court does not suffer
from any legal infirmity. It is in conformity with the settled
principles of law and is based on proper appreciation of
evidence. In fact, finding of guilt by both the Courts is
concurrent. However, they differ only on the question of
19
quantum of sentence. On the appreciation of evidence, we are
also of the considered view that the prosecution has been able
to prove a complete chain of events which points only towards
the guilt of the accused. Even in a case of circumstantial
evidence, if the prosecution is able to establish the chain of
events to satisfy the ingredients of commission of an offence,
the accused would be liable to suffer the consequences of his
proven guilt. In the present case, right from the evidence of
the entire family having the last dinner together and
administering of pedas with sedatives or poisonous
substances to the recovery of bodies of the deceased at
different railway stations the chain of events stands proved
beyond reasonable doubt. In fact, the statement of the
accused under Section 313 of the Cr.P.C. further supports the
case of the prosecution and demolishes the stand of the
defence of complete denial. Thus, we are unable to find any
error in the concurrent findings recorded by the Courts
holding the accused guilty of an offence under Sections 302
and 201 of the I.P.C.
20
Next, we are concerned with whether this Court should
exercise its judicial discretion to enhance his punishment
from life imprisonment to death sentence, as contemplated on
behalf of the State in its appeal.
The factual matrix of the case as well as the evidence
which has been led by the prosecution to bring home the guilt
of the accused, we have already discussed in some detail.
Presently, we may discuss the principles which have been long
settled by this Court for imposition of death penalty. The
principles governing the sentencing policy in our criminal
jurisprudence have more or less been consistent, right from
the pronouncement of the Constitution Bench judgment of
this Court in the case of Bachan Singh v. State of Punjab
[(1980) 2 SCC 684]. Awarding punishment is certainly an
onerous function in the dispensation of criminal justice. The
Court is expected to keep in mind the facts and circumstances
of a case, the principles of law governing award of sentence,
the legislative intent of special or general statute raised in the
21
case and the impact of awarding punishment. These are the
nuances which need to be examined by the Court with
discernment and in depth. The legislative intent behind
enacting Section 354(3) of the Cr.P.C. clearly demonstrates the
concern of the legislature for taking away a human life and
imposing death penalty upon the accused. Concern for the
dignity of the human life postulates resistance to taking a life
through law’s instrumentalities and that ought not to be done,
save in the rarest of rare cases, unless the alternative option is
unquestionably foreclosed. In exercise of its discretion, the
Court would also take into consideration the mitigating
circumstances and their resultant effects. Language of
Section 354(3) demonstrates the legislative concern and the
conditions which need to be satisfied prior to imposition of
death penalty. The words, ‘in the case of sentence of death the
special reasons for such sentence’ unambiguously
demonstrates the command of the legislature that such
reasons have to be recorded for imposing the punishment of
death sentence. This is how the concept of rarest of rare
22
cases has emerged in law. Viewed from that angle, both the
legislative provisions and judicial pronouncements are at ad
idem in law. The death penalty should be imposed in rarest of
rare cases and that too for special reasons to be recorded. To
put it simply, a death sentence is not a rule but an exception.
Even the exception must satisfy the pre-requisites
contemplated under Section 354(3) of the Cr.P.C. in light of
the dictum of the Court in the case of Bachan Singh (supra).
The Constitution Bench judgment of this Court in the case of
Bachan Singh (supra) has been summarized in paragraph 38
in the case of Machhi Singh vs. State of Punjab (1983) 3 SCC
470 and the following guidelines have been stated while
considering the possibility of awarding sentence of death:
“i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
ii) Before opting for the death penalty the circumstances of the ‘offender’ also required to be taken into consideration along with the circumstances of the ‘Crime’.
iii) Life imprisonment is the rule and death sentence is an exception, Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate
23
punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”
The judgment in the case of Bachan Singh (supra), did not
only state the above guidelines in some elaboration, but also
specified the mitigating circumstances which could be
considered by the Court while determining such serious
issues and they are as follows:
“Mitigating circumstances. – In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
1 (1) That the offence was committed under the influence of extreme mental or emotional disturbance. 2 3 (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
24
1 (3)The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
1 (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
1 (5)That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
1 (6) That the accused acted under the duress or domination of another person.
1 (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.”
Now, we may examine certain illustrations arising from the
judicial pronouncements of this Court. In the case of D.K.
Basu v. State of West Bengal [(1997) 1 SCC 416] this Court
took the view that custodial torture and consequential death
in custody was an offence which fell in the category of rarest of
rare cases. While specifying the reasons in support of such
decision, the Court awarded death penalty in that case. In the
case of Santosh Kumar Satishbhushan Bariyar vs. State of
Maharashtra [(2009) 6 SCC 498], this Court also spelt out in
25
paragraphs 56 to 58 that nature, motive, impact of a crime,
culpability, quality of evidence, socio-economic circumstances,
impossibility of rehabilitation are the factors which the court
may take into consideration while dealing with such cases. In
that case the friends of the victim had called him to see a
movie and after seeing the movie, a ransom call was made,
but with the fear of being caught, they murdered the victim.
The Court felt that there was no evidence to show that the
criminals were incapable of reforming themselves, that it was
not a rarest of rare case, and therefore, declined to award
death sentence to the accused. Interpersonal circumstances
prevailing between the deceased and the accused was also
held to be a relevant consideration in the case of Vashram
Narshibhai Rajpara v. State of Gujarat [AIR 2002 SC 2211]
where constant nagging by family was treated as the
mitigating factor, if the accused is mentally unbalanced and
as a result murders the family members. Similarly, the
intensity of bitterness which prevailed and the escalation of
simmering thoughts into a thirst for revenge and retaliation
26
were also considered to be a relevant factor by this Court in
different cases.
This Court in the case of Satishbhushan Bariyar (supra) also
considered various doctrines, principles and factors which
would be considered by the Courts while dealing with such
cases. The Court discussed in some elaboration the
applicability of doctrine of rehabilitation and the doctrine of
prudence. While considering the application of the doctrine of
rehabilitation and the extent of weightage to be given to the
mitigating circumstances, it noticed the nature of the evidence
and the background of the accused. The conviction in that
case was entirely based upon the statement of the approver
and was a case purely of circumstantial evidence. Thus,
applying the doctrine of prudence, it noticed the fact that the
accused were unemployed, young men in search of job and
they were not criminals. In execution of a plan proposed by
the appellant and accepted by others, they kidnapped a friend
of theirs. The kidnapping was done with the motive of
27
procuring ransom from his family but later they murdered him
because of the fear of getting caught, and later cut the body
into pieces and disposed it off at different places. One of the
accused had turned approver and as already noticed, the
conviction was primarily based upon the statement of the
approver. Basing its reasoning on the application of doctrine
of prudence and the version put forward by the accused, the
Court, while declining to award death penalty and only
awarding life imprisonment, held as under: -
“135. Right to life, in its barest of connotation would imply right to mere survival. In this form, right to life is the most fundamental of all rights. Consequently, a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably. We realize the absolute nature of this right, in the sense that it is a source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the right to life. Right to life is the essential content of all rights under the Constitution. If life is taken away, all other rights cease to exist.
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168. We must, however, add that in a case of this nature where the entire prosecution case revolves round the
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statement of an approver or dependant upon the circumstantial evidence, the prudence doctrine should be invoked. For the aforementioned purpose, at the stage of sentencing evaluation of evidence would not be permissible, the courts not only have to solely depend upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the matter keeping in view of evidences which have been brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment. A statement of approver in regard to the manner in which crime has been committed vis-a-vis the role played by the accused, on the one hand, and that of the approver, on the other, must be tested on the touchstone of the prudence doctrine
169. The accused persons were not criminals. They were friends. The deceased was said to have been selected because his father was rich. The motive, if any, was to collect some money. They were not professional killers. They have no criminal history. All were unemployed and were searching for jobs. Further if age of the accused was a relevant factor for the High Court for not imposing death penalty on Accused No. 2 and 3, the same standard should have been applied to the case of the appellant also who was only two years older and still a young man in age. Accused Nos. 2 and 3 were as much a part of the crime as the appellant. Though it is true, that it was he who allegedly proposed the idea of kidnapping, but at the same time it must not be forgotten that the said plan was only executed when all the persons involved gave their consent thereto.
171. Section 354(3) of the Code of Criminal Procedure requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence
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of death, the special reasons thereof. We do not think that the reasons assigned by the courts below disclose any special reason to uphold the death penalty. The discretion granted to the courts must be exercised very cautiously especially because of the irrevocable character to death penalty. Requirements of law to assign special reasons should not be construed to be an empty formality.
172. We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life imprisonment is the rule and death penalty an exception. Each case must therefore be analyzed and the appropriateness of punishment determined on a case-by- case basis with death sentence not to be awarded save in the `rarest of rare' case where reform is not possible. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no special reasons to record the death penalty and the mitigating factors in the present case, discussed previously, are, in our opinion, sufficient to place it out of the "rarest of rare" category.
173. For the reasons aforementioned, we are of the opinion that this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life. Subject to the modification in the sentence of appellant (A1) mentioned hereinbefore, both the appeals of the appellant as also that of the State are dismissed.”
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The above principle, as supported by case illustrations, clearly
depicts the various precepts which would govern the exercise
of judicial discretion by the Courts within the parameters spelt
out under Section 354(3) of the Cr.P.C. Awarding of death
sentence amounts to taking away the life of an individual,
which is the most valuable right available, whether viewed
from the constitutional point of view or from the human rights
point of view. The condition of providing special reasons for
awarding death penalty is not to be construed linguistically
but it is to satisfy the basic features of a reasoning supporting
and making award of death penalty unquestionable. The
circumstances and the manner of committing the crime
should be such that it pricks the judicial conscience of the
Court to the extent that the only and inevitable conclusion
should be awarding of death penalty.
In the present case, the accused belonged to the armed forces,
his father had married for the second time and had children
from the second wife. There were continuous quarrels with
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regard to the division of property and during these quarrels
the accused is stated to have even hit his father. It was a
pressure which had increased with the passage of time and
probably this frustration attained the limit of commission of
such a heinous crime by the accused. Surely, the manner in
which the crime has been committed is deplorable but the
attendant circumstances and the fact that he even
administered the sweets (pedas) containing
sedatives/poisonous substance to his own wife Sunita
Goraksha Adsul, the Accused no.3, shows that his frustration,
and probably greed, for the property had attained volcanic
dimensions. The intensity of bitterness between the members
of the family had exacerbated the thoughts of revenge and
retaliation in him. The constant nagging would have to be
taken as a mitigating circumstance in the commission of this
crime. Resultantly, in view of the above factual matrix and the
legal analysis, we do not find that the present case falls in the
category of ‘rarest of rare cases’.
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For the reasons afore-recorded, we dismiss both the appeals.
....................................J. [Dr. B.S. Chauhan]
....................................J. [Swatanter Kumar]
New Delhi; July 7, 2011.
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