Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1436 of 2010  

Absar Alam @ Afsar Alam                          …… Appellant

Versus

State of Bihar                                            …… Respondent

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article  

136 of the Constitution of India against the judgment and  

order dated 16.07.2009 of the Patna High Court in Death  

Reference No. 7 of 2008 with Criminal Appeal (DB) No.169  

of 2008.  On 18.01.2010, this Court issued notice in the  

Special Leave Petition confined to the question of sentence  

only and on 02.08.2010 after hearing learned counsel for  

the parties, granted leave.  Hence, the only question that we  

have to decide in this appeal is whether the High Court was  

right  in  confirming  the  death  sentence  of  the  appellant  

imposed by the trial court.

2. For deciding this question, the relevant facts as have  

been found by the trial court are that in the midnight  

of 14/15.02.2007, the appellant killed his mother by  

cutting her neck and severing her head and thereafter  

fled from the house with the head of his mother leaving  

behind her body.   The trial court, after convicting the  

appellant under Sections 302 and 201 of the Indian  

Penal  Code  (for  short  ‘IPC’),  held  that  the  appellant  

committed the murder of his mother in an extremely  

brutal, grotesque, diabolical and revolting manner and  

hence it is one of those rarest of the rare cases calling  

for a death sentence on the appellant.  The High Court,  

while  upholding  the  conviction,  confirmed the  death  

sentence  relying  on  the  decision  of  this  Court  in  

Machhi Singh and others v. State  of Punjab [(1983) 3  

SCC 470].  In the aforesaid case of Machhi Singh, this  

Court  has  inter  alia held  that  the  manner  of  

commission  of  murder  and  the  personality  of  the  

victim of murder have to be taken into consideration  

while making the choice of the sentence to be imposed  

for  the  offence  under  Section  302,  IPC  :  life  

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imprisonment or death sentence.  The High Court has  

taken a view that considering the abhorrent, dastardly  

and diabolical  nature of the crime committed by the  

appellant  on  none  other  than  his  mother,  who  had  

given  birth  to  him,  the  penalty  of  death  has  been  

rightly awarded by the trial court.

3.  At the hearing of this appeal, learned counsel for the  

appellant,  relying  on  the  decision  of  this  Court  in  

Swamy Shraddananda (2) alias Murali Manohar Mishra  

v. State of Karnataka [(2008) 13 SCC 767], submitted  

that even if it is a case of a son beheading his mother,  

this is not one of the rarest of rare cases in which the  

death penalty should have been imposed because the  

offence had been committed by the appellant in a fit of  

passion and not after pre-meditation.

4.  Learned  counsel  for  the  State,  on  the  other  hand,  

submitted that considering the law laid down by this  

Court in Prajeet Kumar Singh v. State of Bihar [(2008) 4  

SCC 434],  Surja Ram v. State  of  Rajasthan [(1996) 6  

SCC  271]  and  Atbir  v.  Government  of  NCT  of  Delhi  

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[(2010) 9 SCC 1], the imposition of death sentence on  

the appellant for the cruel act of beheading his mother  

was proper.

5. We find on reading the FIR lodged by the brother of the  

appellant  on  the  morning  of  15.02.2007  at  09:45  

hours  marked  as  Ext.2  that  the  appellant’s  wife  

Sakerun Nisha had run away to her maternal house  

three  or  four  days  before  the  incident  and  the  

appellant had been accusing his mother to have been  

the cause of  his wife  running away from this  house  

and out of anger and excitement the appellant severed  

the neck of his mother and fled with the head.  The  

appellant was an illiterate rustic and was a cultivator  

residing in a village with virtually no control over his  

emotions  and  has  over-reacted  impulsively  to  the  

situation and has severed the neck of his mother.  On  

these  facts,  the  appellant  is  no  doubt  guilty  of  the  

offence under Section 302, IPC, and has to suffer the  

punishment of imprisonment for life normally awarded  

for the offence, but should not be condemned to death.  

We may cite a few authorities in support of this view.   

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6. In  Lehna v. State  of Haryana [(2002) 3 SCC 76], the  

facts  were  that  there  was  a  quarrel  between  the  

accused and other members of his family, namely, his  

father,  his  brother  and sister-in-law,  over  a piece  of  

land and in the assaults that followed the quarrel, the  

accused killed his mother,  his brother and sister-in-

law.   While  upholding the  conviction of  the accused  

under  Section  302,  IPC,  this  Court  held  that  the  

mental  condition  of  the  accused,  which  led  to  the  

assault, cannot be lost sight of and while such mental  

condition of the accused may not be relevant to judge  

culpability, it is certainly a factor while considering the  

question of sentence.  This Court further held that the  

factual scenario gave impressions of impulsive act of  

the accused and not of planned assaults and in this  

peculiar  background,  death  sentence  would  not  be  

proper.

7. In Gyasuddin Khan alias Md. Gyasuddin Khan v. State   

of Bihar [(2003) 12 SCC 516], the facts were that in the  

morning  hours  of  09.04.1996,  in  the  precincts  of  a  

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police  camp  stationed  near  a  village  in  Bihar,  a  

policeman deployed in the police picket to contain the  

terrorist activities, unleashed terror by indulging in a  

firing  spree,  killing  three  of  his  colleagues  

instantaneously and this Court, relying on  Shamshul   

Kanwar v. State of U.P. [(1995) 4 SCC 430],  Lehna v.  

State of Haryana  (supra) and  Om Prakash v. State of   

Haryana [(1999)  3  SCC  19],  held  that  the  mental  

condition or state of mind of the accused is one of the  

factors that can be taken into account in considering  

the question of sentence and in the facts of the case,  

the  killing  of  two  other  policemen  without  

premeditation and without any motive whatsoever was  

an act  done out  of  panic  reaction and in a state  of  

frenzy and it was not one of the rarest of rare cases  

where death sentence could be awarded.  

8. For the aforesaid reasons, we convert the sentence of  

death to one of life imprisonment for the offence under  

Section  302,  IPC,  committed  by  the  appellant  and  

allow the appeal in part.  

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.……………………….J.                                                            (A. K. Patnaik)

………………………..J.                                                            (Swatanter Kumar) New Delhi, February 07, 2012.    

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