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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1969 OF 2009

Ajitsingh Harnamsingh Gujral .. Appellant  

-versus-

State of Maharashtra ..       Respondent

  J U D G M E N T

MARKANDEY KATJU, J.

“Qareeb hai yaaron roz-e- mahshar, Chupega kushton ka khoon  kyonkar, Jo chup rahegi zubaan-e- khanjar, Lahu pukaaregaa aasteen  ka”    - Ameer Minai

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1. Heard  Shri  Jaspal  Singh,  learned  senior  counsel  for  the  

appellant and learned counsel for the State of Maharashtra for the  

respondent.   This  is  an  appeal  by  special  leave  against  the  

judgment of the Bombay High Court dated 26.6.2006, which has  

confirmed the death sentence of the appellant given by the learned  

Sessions Judge dated 19.3.2005.

2. The accused is a businessman.  He was a married man having  

one son and two daughters.  He was married with the deceased  

Kanwaljeet Kaur about 25 to 27 years prior to the incident dated  

10.4.2003.  He had a son Amandeep Singh aged about 20 years  

and two daughters viz. Neeti and Taniya, aged about 22 years and  

13 years respectively.  All of them were allegedly killed by the  

accused in the early hours of the morning of 10.4.2003 by pouring  

petrol on their persons and setting them on fire.

  3. Earlier  the  accused  had  lived  at  Ludhiana.   However,  it  

appears that he suffered business losses there, and so he shifted to

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Mumbai with his family and started residing in Jyotsna Building.  

Initially he was doing business of catering in the same building,  

and his  son Amandeepsingh was assisting him in that  business.  

After  some  time,  the  accused  shifted  his  catering  business  to  

Kamlesh building which is situated in the same locality of Shere-

Punjab  colony,  Andheri.   There  were  several  employees  of  the  

accused to assist him in the business of catering.  Those servants  

used to sleep in front of his flat in the verandah.  The accused was  

having a Maruti Zen Car and his son was having a motorcycle.

4. According  to  the  prosecution,  the  accused  was  a  hot  

tempered man.  He was like a dictator in the family, and dominated  

his wife and children in the family, on account of which there was  

resentment in his family members.   Further, it  is alleged by the  

prosecution that the accused was ill-treating his wife and twice he  

had assaulted her with a leather belt.

5. On  the  night  of  9.4.2003  the  accused  and  all  his  family  

members were in their flat.  All the servants were sleeping outside.

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The  accused  was  seen  coming  to  the  flat  between  the  night  of  

9.4.2003 and 10.4.2003 at about midnight.  There were two bed  

rooms in the flat of the accused.  Ordinarily the accused and his  

wife  used to sleep in one bed room while  the  children slept  in  

another.  There was a quarrel on the night of 9.4.2003 between the  

accused  and  his  wife  after  he  had  returned  back  from  work.  

Between 4.00 and 4.30 a.m. some of the servants heard a big noise  

of something bursting followed by or preceded by someone crying  

in  pain.   The  servants  woke  up  and  found  that  the  flat  of  the  

accused  was  on  fire.   There  was  utter  confusion  and  chaos.  

Somebody phoned to the fire brigade and a fire engine came.  The  

police also followed.  The door of the flat was open, and it was  

smoky inside.   Strong smell of petrol was coming from there.  The  

fire was extinguished, and then only could they enter the bed room,  

where the four bodies of the members of the family of the accused  

viz. his wife, his son and two daughters were found burnt, and they  

were dead.   The police made an inquiry from the servants and then  

a report of murder was lodged by PSI Prakash Shivram Kamble.

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The  investigation  soon  started  and  inquest  Panchanama,  spot  

panchanama etc. were made.  The bodies were then sent for post  

mortem.

6. In their preliminary inquiry, the police found that the Maruti  

Zen car of the accused was not there and the accused was also not  

there.  Attempts were made to trace and search him, and ultimately  

the accused was arrested on or  near  Kishangadh,  Madanganj  in  

Ajmer  District  in  Rajasthan  on  14.4.2003.   The  car  which  the  

accused  was  driving  was  seized,  and  so  also  an  amount  of  

Rs.7,68,080/-  in  cash  along with about  24 silver  coins,  7  safari  

dresses and 7 turbans.  A police officer was deputed from Mumbai  

and the accused was brought to Mumbai.

7. The statement of the accused was recorded under Section 27  

of the Evidence Act and a red bucket from which he had allegedly  

thrown petrol on the persons of all the four members of his family  

was recovered at his instance.

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8. All the material recovered by the police from the spot viz.  

burned clothes, petrol can, bucket, broken glass pieces, etc. were  

sent to the Chemical Analyzer.

9. In  the  inquest,  it  was  found  that  the  son  of  the  accused,  

Amandeepsingh had certain injuries on his body.   Because of fire,  

the  glass  pieces  were  shattered  in  the  room and one  piece  was  

removed from one of the injuries on the stomach of the son. An  

expert electrician was called, and he inspected the premises and  

opined  that  there  was  no  short  circuit.   The  Air-Conditioner’s  

compressor  was  intact.   Post  mortem  of  all  the  bodies  was  

conducted and it was found that all the four persons died as a result  

of burning.

10. During the course of investigation the statements of relatives  

of the deceased, neighbours, and the servants of the accused were  

recorded.   All  the  seized  property  was  sent  to  the  Chemical  

Analyzer  for  opinion.   Thereafter  the  charge  sheet  was  filed.  

Separate charges under Section 302 of the Indian Penal Code was

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framed against  the  accused for  committing  murders  of  his  wife  

Kanwaljeet Kaur, his son Amandeepsingh and two daughters Neeti  

and  Taniya.   The  accused  pleaded  not  guilty  to  the  charges.  

Thereafter, the Additional Sessions Judge, recorded the evidence  

of the prosecution witnesses.  In all 19 witnesses were examined as  

the prosecution witnesses.  Thereafter the statement of the accused  

under Section 313 of the Criminal Procedure Code was recorded.  

The accused expressed his desire to examine witnesses in defence  

of his plea of alibi and, accordingly four witnesses were examined  

by  the  accused.   The  Additional  Sessions  Judge  heard  the  

arguments and also took on record the written arguments submitted  

by  the  advocate  for  the  accused  and,  ultimately  came  to  the  

conclusion  that  the  prosecution  had  proved  its  case  beyond  

reasonable doubt that the accused committed murders of all four  

members  of his  family.   So far  as sentence was concerned,  the  

Additional  Sessions  Judge  came  to  the  conclusion,  after  

considering the cases cited before him by both the sides, that this  

was a rarest of the rare case and imposed penalty of death upon the

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accused.

11. Two question arise before us (a)  is  the appellant  guilty of  

murder? (b) if he is, should he be given the death sentence?  We  

shall deal with these separately.

12. The appellant filed an appeal before the Bombay High Court  

and  the  matter  was  also  sent  for  confirmation  for  the  death  

sentence.  By the impugned judgment the High Court dismissed  

the appeal and upheld the death sentence, and hence this appeal  

before us.   

Is the appellant guilty of murder ?

13. Mr.  Jaspal  Singh,  learned  counsel  for  the  appellant,  first  

submitted that the appellant was leading a happy married life for  

more than 25 years before the incident and hence he had no motive  

to kill his wife and 3 children.  He submitted that the prosecution

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has not been able to prove any motive, and motive is important in  

cases of circumstantial evidence like the present one.

14. This is a case relying entirely on circumstantial evidence, as  

there are no eye witnesses of the crime.  It is true that motive is  

important  in  cases  of circumstantial  evidence,  but  that  does not  

mean that in all cases of circumstantial evidence if the prosecution  

has been unable to satisfactorily prove a motive its case must fail.  

It all depends on the facts and circumstances of the case.  As is  

often said, men may lie but circumstances do not.

15. The  mother  in  law  of  the  appellant  Smt.  Bhagwantkaur  

Oberoi,  PW5 has stated in her deposition :

………“I  was  having  three  daughters  Kanwaljeetkaur,  Harjeetkaur  and  Harvinderkaur.   Accused  before  the  court is my son-in-law.  He was married to my daughter  Kanwaljeetkaur  25-26  years  before.   Accused  was  residing  along  with  his  wife  and  children  at  Sher-e- Punjab  colony,  Andheri,  Mumbai.   Accused  came  to  Mumbai  two years  before.   The  relations  between my  daughter  and  accused  were  not  cordial  and  their  matrimonial life was unhappy due to very angry nature of  the accused.  I used to go to the house of my daughter  and vice-versa occasionally.  There was talk between me  and  my  daughter  Kanwaljeetkaur.   I  used  to  ask  my

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daughter  how she is  and how her husband is.   At that  time, she used to narrate to me that her husband is of very  angry nature.  She was very unhappy in her matrimonial  life.   She was subjected to the cruelty by the accused.  She  further  told  me  that  accused  was  behaving  like  a  dictator.   Children  of  my daughter Kanwaljeetkaur also used to tell me regarding angry nature of accused.  My  daughter also told me that accused used to beat her by  leather belt.  However, my daughter was behaving with  the  accused  by  way  of  adaptive  nature.   Whenever  Kanwaljeetkaur was narrating me regarding ill treatment  and harassment,  I used to persuade her. I also told my  daughter Kanwaljeetkaur that she should leave accused  and reside separately along with her children.  As I know  the nature of the accused I never dared to persuade him.

On 19th March, 2003, there was birthday ceremony  of my grandson Simarpalsingh.  I  invited my daughter  Kanwaljeetkaur  and her family  members telephonically  to  attend  the  function  at  Mira  road  at  my  residence.  Kanwaljeetkaur replied on telephone that she is unable to  attend the function as she is busy with some work. After  sometime  my  daughter  Kanwaljeetkaur  again  made  a  telephone call to me and told that at the time of earlier  telephone her husband was present and he quarreled and  she along with her children were not allowed to attend  the  said  function.   At  that  time,  Kanwaljeetkaur  was  crying on the telephone and while crying she told that she  is  very  unhappy  and  she  may  die.   I  told  my  other  daughter namely Harjeetkaur to ring Kanwaljeetkaur as  there was quarrel between her and the accused.  On that  very  day,  at  about  7  p.m.  I  received  a  telephonic  call  from  Niti  and  she  told  that  her  father  agreed  and  accordingly, we are attending the function.  Accordingly,  Kanwaljeetkaur and accused and both daughters attended  the  function.   At  that  time,  accused  was  under  the  influence of liquor.  While leaving my residence after the  function accused told Kanwaljeetkaur and her daughters  that he will put you all below the running truck to die.

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On 9th April, 2003, at about 11.30 p.m. I received a  telephonic call from the accused from his residence.  On  10th April, 2003, at about 6 a.m. I received telephonic call  from Phuldeepsingh  Marva-PW3 regarding  fire  on  the  flat of accused.  Accordingly, I went to the place of the  incident.   When  I  reached,  I  did  not  find the  accused  present.  When I reached, four dead bodies were already  kept in front of the flat.  I became unconscious noticing  the dead bodies.  Police recorded my statement.”        

16. Phuldeepsingh Marva,  PW3 also supported the prosecution  

case.  His wife and the wife of the appellant were real sisters.  In  

his deposition he has stated :

………..“Before shifting to Mumbai, accused was doing  business at Ludhiana, Punjab in automobile spare parts.  Accused suffered loss in  his  business  at  Ludhiana  and  that  is  why  he  shifted  to  Mumbai.   We  were  having  cordial relations and we family members used to visit his  house and vice-versa.  The relations between accused and  his entire family members were tense.  Accused used to  behave with his family members as a dictator.  He was  not  having  cordial  relations  with  his  family  members.  Son  and  daughters  of  the  accused  did  not  like  the  dictatorship of accused and that is why there were always  quarrels between accused and his family.  Accused used  to tell me also that 75% decisions would be mine in my  house.  I persuaded the accused several times to change  his  nature.   However,  the  accused  never  changed  his  nature and he was not ready to reduce his dictatorship.

There was also telephone in the house of accused.  On 10th April, 2003, I was at my residence.  I received a  telephonic call from the landlord and estate agent of the  accused at about 5.30 to 5.45 a.m. that there is a fire in  the flat of the accused.  I along with my wife rushed to

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the place of incident in my car.   At about 6.30 a.m. I  reached the place of incident.  When I reached I saw fire  brigade vehicles, police staff, fire brigade staff and four  dead bodies which were kept in front of the flat.  I saw all  those four dead bodies.  I identified four dead bodies i.e.  of Kanwaljeetkaur, Amandeepsingh, Niti and Taniya.  I  noticed that accused along with his car was not present.  Accused used to park his Zen car in front of the flat near  the  gate.   I  saw four  dead bodies  who sustained  burn  injuries on their person.  I saw the bangles in the wrist of  Kanwaljeetkaur.  I also saw a piece of glass in the body  of Amandeepsingh near wrist.  Article 1 – pair of bangles  before  the  court  was  in  the  hands  of  Kanwaljeetkaur.  Police recorded my statement.”      

17. We see no reason to disbelieve PW3 or PW5.  From their  

testimony  it  is  evident  that  the  appellant  was  a  dictatorial  

personality, who wanted to dominate over his family and was also  

hot  tempered.   He would  even beat  his  wife  (deceased)  with  a  

leather belt.

18. Mr. Jaspal Singh, learned counsel for the appellant, submitted  

that if the relations between the accused and his wife were strained  

why did his wife Kanwaljeetkaur continue to live with him for 25  

years.  In this connection, we have only to point out that in India  

many  women  accept  the  bad  treatment  of  their  husbands  and

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continue living with them because a girl at the time of marriage is  

told  by  her  parents  that  after  marriage  her  place  is  with  her  

husband and she has to accept whatever treatment she gets from  

her husband and in- laws.   She has to ‘nibhao’ all treatment after  

marriage.   Hence  she  continues  living  with  him  even  if  her  

husband is a brutish, nasty and loathsome person.  However, it is  

evident that when the children of the accused grew up they often  

resisted  and  protested  against  the  dictatorial  behaviour  of  the  

appellant, and this led to a lot of friction in the family.  Hence we  

are of the opinion that the appellant did not have a happy married  

life with his wife, rather it was just the reverse.

19. As to what motivated the appellant to commit this gruesome  

and ghastly act is impossible for us to say because the Court cannot  

enter into the mind of a human being and find out his motive.  We  

can only speculate.  

20. This  is  a  case  of  circumstantial  evidence  and  in  cases  of  

circumstantial evidence the settled law is that the prosecution must

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establish  the  entire  chain  of  circumstances  which  connects  the  

accused to the crime vide Wakkar and Anr.  vs.  State of Uttar  

Pradesh 2011(3) SCC 306 = JT 2011(2) SC 502,  Krishnan  vs.  

State represented by Inspector of police 2008(15)SCC 430=JT  

2008(6)  SC  282,  Sharad  Birdhichand  Sarda  vs.   State  of  

Maharashtra AIR 1984 SC 1622,  Mohd. Mannan alias Abdul  

Mannan  vs.  State of Bihar 2011(5) SCC 317 (vide para 14), etc.

21. We have, therefore, to see whether the prosecution has been  

able to establish the chain of circumstances connecting the accused  

to the crime.

22. The accused was last seen with the deceased.  It has come in  

the  evidence of Vinodkumar Gudri Mandal,  PW16 that he was  

working with the accused at Sher-E-Punjab caterers.  This witness  

along with some servants used to sleep near the bedroom of the flat  

of the accused in the veranda.  He has stated that at about midnight  

when he was in the veranda in front of the flat of the accused he

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heard  loud sound of  quarrels  from the flat  of  the  accused.   He  

identified the sounds as the voice of the accused and his wife.

23. This witness has stated that he was on talking terms with the  

family  members  of  the  accused.   Since  he  was  known  to  the  

accused  and  his  family  members  he  could  obviously  recognize  

their voices.  Hence we see no reason to disbelieve his evidence  

that at about midnight of 9.4.2003 there was a quarrel between the  

appellant  and  his  wife.   No  reason  has  been  ascribed  by  the  

defence  counsel  as  to  why  this  witness  should  make  a  false  

statement.

24. This witness has also stated that on 10.4.2003 at 4.30 a.m. he  

heard a big sound in the building.  He and the other servants saw  

fire in the flat of the accused.  They tried to extinguish the fire with  

the help of water and sand but were unsuccessful.  One member of  

the society  informed the fire brigade telephonically  and the fire  

brigade came and extinguished the fire.  This witness identified the  

4 dead bodies inside the flat of the accused.  He also noticed that

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the Zen car was not at its parking place and the accused was also  

not present.

25. This witness has also stated in his evidence that one month  

before  the  incident  when he  returned to  the  building where  the  

incident  took  place  he  went  inside  the  flat  of  the  accused  and  

inadvertently  opened  a  white  color  plastic  can  and  he  noticed  

petrol in the said can.  The witness identified the said can before  

the court.

26. We  see  no  reason  to  disbelieve  this  witness  Vinodkumar  

Gudri Mandal.  No enmity has been shown between him and the  

accused and no motive shown why he should give a false statement  

against the accused.

27. PW4,  Kamalsingh  Mahipatsingh  Rawat  was  working  as  a  

cook in the hotel cum catering of the appellant.  He has stated in  

his evidence that after his duty ended at 11.30 p.m. he used to sleep  

in front of the flat of the accused in Jyotsna building where the

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accused was residing with his wife and children.  He said that he  

knows all the family members of the accused.

28. In his evidence he has stated that at about 11.30 to 11.45 p.m.  

he left the hotel and went towards the Jyotsna building  where he  

sleeps in front of the flat of the accused.  He has further stated that  

about  half  an  hour  thereafter  the  accused  also  returned  to  his  

residence.  At about 4.00 to 4.30 a.m. he heard a noise of bursting  

of something and smoke was coming out from the flat which was  

on fire.  He also heard the sound of crying from the said flat.  He  

could not enter the flat as it was too smoky.  Thereafter the fire  

brigade came and extinguished the fire.  He entered the flat and  

saw the dead bodies of the deceased.  The accused was not found  

there,  nor his Maruti  car.   The witness had seen the Maruti  car  

parked in front of the flat when he went to sleep but it was not  

found in the morning.

29. The evidences of PW3, PW4 and PW 5, which we see no  

reason to disbelieve, thus fully establish that the appellant was last

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seen with his wife at about midnight and was in fact quarreling  

with her at that time.

30. The incident happened at 4 or 4.30 a.m. and hence there was  

a time gap of only about 4 hours from the time when the appellant  

was seen with his wife (deceased) and the time of the incident.  

Thus he was last seen with his wife and there was only a short  

interval between this and the fire.

31. The  last  seen  theory  comes  into  play  where  the  time  gap  

between the point of time when the accused and deceased were last  

seen alive and when the deceased is found dead is so small that the  

possibility of any person other than the accused being the author of  

the crime becomes impossible, vide Mohd. Azad alias Samin  vs.  

State of West Bengal 2008(15) SCC 449 = JT 2008(11) SC658  

and  State  through  Central  Bureau  of  Investigation  vs.  

Mahender Singh Dahiya 2011(3) SCC 109 = JT 2011(1) SC 545,  

S.K. Yusuf vs. State of West Bengal, J.T. 2011 (6) SC 640 (para  

14).

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32. In our opinion, since the accused was last seen with his wife  

and the fire broke out about 4 hours thereafter it was for him to  

properly  explain  how this  incident  happened,  which  he  has  not  

done.  Hence this is one of the strong links in the chain connecting  

the accused with the crime.

33. The victims died in the house of the accused,  and he was  

there  according  to  the  testimony  of  the  above  witnesses.   The  

incident  took  place  at  a  time  when  there  was  no  outsider  or  

stranger  who  would  have  ordinarily  entered  the  house  of  the  

accused without resistance and moreover it was most natural for  

the accused to be present in his own house during the night.

34. Another  link in  the  chain  of  circumstances  connecting the  

accused with the crime is his sudden disappearance from the scene  

after the incident.  The version of the accused is that  he left  the  

scene as he had received a message that his sister in Delhi who was

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suffering from cancer had become critical,  and hence he rushed  

from Mumbai to be with her.  We are not at all convinced with the  

story.  When a person living in Mumbai receives a message that  

his relative is  critical  in Delhi,  he would have ordinarily take a  

flight  from Mumbai  to  Delhi,  and would  not  go  by  car,  which  

journey would take several days.  A flight from Mumbai to Delhi  

takes  two  hours.   There  was  no  shortage  of  money  with  the  

appellant as he was found with cash of Rs.7,68,080/-.

35. Leaned counsel for the appellant submitted that the appellant  

first went by car to the Dargah in Ajmer to pray for his sister.  We  

cannot accept this version.  When a relative in Delhi is critical, a  

person in Mumbai would have rushed to Delhi by flight to see her  

and  would  have  gone  to  a  Dargah  only  subsequently.   Under  

Section  114  of  Evidence  Act  we  have  to  presume  the  natural  

conduct of persons.  Section 114 states :

“The Court may presume the existence of any fact which  it thinks likely to have happened, regard being had to the  common  course  of  events,  human  conduct,  and  public  and private business”

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36. We agree with the  High Court  which has  observed in the  

impugned judgment :

………“We  are  not  at  all  in  agreement  with  the  submissions made by the advocate for the accused in this  regard.  There are many reasons for this.  The first reason  is that there is nothing on record to show that a day or  two before the accused left Mumbai on 10th April, 2003,  the accused had received any urgent message from the  wife  of  D.W.3  that  his  presence  was  imminently  and  immediately  required  at  Delhi  and  her  condition  was  critical or that the accused received SOS, that he should  immediately rush to Delhi.  Secondly, if the accused had  earlier planned to go to Delhi in such a case of urgency  and exigency, ordinarily he should have and could have  traveled by flight or train and would not have driven to  Delhi by his car. Thirdly, looking to the age of accused,  who was around 50 to 52 years at that time, ordinarily the  accused  would  not  have  gone  alone  on  such  a  long  journey.  He had a number of servants at his disposal, at  least 7 were sleeping in front of his flat in the veranda at  that  very  night,  he  could  have  taken  one  of  them  as  assistant on the road. Fourthly, there was no reason for  the accused not to have taken a driver for such a long  journey.  Fifthly, there is no one examined from the hotel  to whom the accused had disclosed that he would not be  available  for  looking  after  the  business  for  at  least  a  couple of weeks or one week.  The fact that the accused  had with him 7 safari dresses and 7 turbans when he was  arrested, clearly shows that the accused had an intention  to stay for quite a long time away from his house and  away from his business.  There is nothing on record to  show that prior to this incident the accused was not on  talking terms or visiting terms with his mother in law.  Not a single suggestion was give to this witness by the

22

accused that they were informed by the accused that he is  going to Delhi to see his sister or wife of D.W.3.  Next  impossibility  in  the  theory  of  alibi  is  that  there  is  no  earthly reason for the accused to leave his house at odd  time of 2.00 a.m.  He could have traveled either before  mid night or he could have traveled after sunrise.  Further  there is no explanation from the accused as to why he  was carrying such a huge amount of Rs.7,68,080/- and 24  silver coins.”       

37. We, therefore, agree with the High Court that the plea of alibi  

was totally false and bogus.

38. It is difficult for us to speculate as to why the accused fled  

from the scene of the crime carrying cash of Rs.7,68.080/- apart  

from 7 safari suits and that too without a driver or an assistant, all  

of whom were easily available to him.  It is quite possible that after  

having  committed  this  horrible  crime  the  accused  may  have  

himself realized the gravity of his crime and in this shocked state  

fled  from  the  scene.   However,  this  is  only  a  speculation  and  

nothing turns on it.  

39. It has then been argued that ordinarily the accused and his  

wife used to sleep in one bedroom, while the 3 children used to

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sleep in the other bedroom.  However, all 4 victims were found  

burnt in the children’s bedroom.  This has been explained by the  

prosecution  by  pointing  that  in  the  night  of  9.4.2003 when the  

accused came from his hotel he had a heated quarrel with his wife  

and due to this quarrel the wife decided to sleep with the children  

and not with the accused.  This version seems quite probable, and  

the defence cannot make much out of the fact  that  all  4 bodies  

were found in one bedroom.

40. When the police party carried out panchanama of the house  

of the accused, that  is,  after the fire was fully  extinguished and  

when  the  FIR  was  lodged  by  PW1,   PSI  Prakash  Kamble,  he  

found, as stated by him, that in the bedroom to the northern side of  

the hall on the bed i.e. on the mattress of the bed a 10 litre white  

plastic can was seen and it had some petrol in it.  It was also found  

and noticed that  the can was new.  It  is  a fact that  all  the four  

inmates  were  burned  to  death  by  using  petrol.   Therefore,  the  

finding of the 10 litre can with some petrol in its clearly shows that

24

petrol, sufficient in quantity to burn and kill all the four persons,  

was brought by the accused.   

41. In  addition  to  this,  the  prosecution  has  also  tendered  one  

more piece of evidence which is in the form of recovery at  the  

instance of the accused under Section 27 of the Evidence Act.  In  

this regard, the prosecution has examined PW14 Nilesh Kamalakar  

Aarate the panch witness and proved Exhibit 50 and 50-A.  Exhibit  

50 is the statement of the accused under Section 27 of the Evidence  

Act and Exhibit 50-A is recovery panchanama.  In his evidence  

PW14  has  stated  that  on  14th April,  2003  he  was  called  by  

Meghwadi Police as the accused made a voluntary statement that  

he  will  point  out  the  bucket  in  which  he  took  petrol  from the  

plastic  can.   This  statement  was  recorded  and  thereafter  the  

accused led the police party to his flat.  The seal of the flat was  

removed  and  from  the  bath  room  of  the  said  flat  the  accused  

pointed out the red bucket.  Discovery panchanama was Exhibit  

50-A and red bucket was Article 14.

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42. This red bucket was sent to a Chemical Analyzer.  The report  

of the C.A. (Exhibit 67) is that the bucket showed positive result  

regarding detection of petrol.  This means that this bucket was used  

for pouring petrol on all the four victims.

43. Regarding this piece of evidence, the learned counsel for the  

appellant  contended  that  this  was  a  fabrication  by  the  police.  

Learned counsel contended that if on 10th April, 2003 a detailed  

search of the house of the accused for finding out incriminating  

articles was made and if a detailed panchanama was prepared and a  

number of articles  were seized,  then how was it  that  the police  

could not find out this bucket on 10th April, 2003 itself and why  

they  waited  for  recovery  for  this  bucket  till  the  accused  was  

arrested and brought to Mumbai and made discovery statement on  

14th April, 2003.

44. We are not at all convinced by this submission.  It is true that  

on 10th April, 2003 the flat of the accused was searched, but it is  

quite natural that the investigating officer did not understand the

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significance of this bucket even if it was seen on that day.  They  

could not visualize or imagine the use of the bucket for splashing  

or spreading the petrol on the four victims.  They came to know  

about it only after the accused made the disclosure statement, and  

then  they  recovered  this  bucket.   The  investigating  office,  

regarding other aspects  of  the matter  appears to be truthful  and  

sincere.   There  is  no  reason  to  suspect  the  bona  fide  of  the  

investigating officer, and therefore there is nothing on record from  

which it can be inferred that this bucket was planted by the police  

to strengthen the case against the accused.

45. Learned counsel for the appellant submitted that the appellant  

was making phone calls to his mother-in-law after leaving his flat  

in Mumbai on 10.4.2003.  In our opinion nothing turns on that.  It  

has come in evidence that Amandeep Singh, son of the accused,  

was looking after the business, and if the accused was going away  

for 3 to 4 days it was natural for him to expect calls from, and

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make calls  to,  his son Amandeep Singh and his wife and other  

relatives, but that was not done.

46. The learned counsel for the appellant then submitted that as  

per the prosecution case, all the four victims were in one bed room.  

Two bodies  were  found on the bed and two were  lying on the  

ground.   The learned counsel  contended that  if  all  four  victims  

were sleeping on one bed then how were two bodies found on the  

ground.  He also argued that if petrol was splashed on the persons  

of four victims then why did none of them wake up before the  

accused set them to fire.  In our opinion, the presence of the 10  

litre  can  and using the  bucket  clearly  show that  petrol  in  large  

quantity  was  used.   Use  of  the  bucket  further  fortifies  the  

prosecution case because if the petrol was sprinkled from a can it  

would have taken time to cover all the bodies of four persons, the  

bed and the surroundings.  But use of the bucket clearly shows that  

splashing  of  petrol  could  be  achieved  within  a  second and that  

profuse splashing of petrol could be achieved by using the bucket

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and  then  setting  the  petrol  on  fire  would  not  even  require  five  

seconds.  Petrol is a very combustible material.  It might be that  

before the actual death occurred two persons rolled down from the  

bed  and  fell  on  the  ground.   All  this  is  speculation  on  which  

nothing  turns.   Since  there  were  no  eye  witnesses,  and  since  

presence of the accused a few hours before the crime is proved, it  

was for the accused to explain all this.

47. Mr. Jaspal Singh submitted that several of the circumstances  

were not put to the accused under Section 313 Cr.P.C.  It is true  

that  circumstances  which  were  not  put  to  the  accused  in  his  

examination under Section 313 cannot be used against him, vide  

State of U.P. vs.  Mohd. Ikram, J.T. 2011 (6) SC 650 (para 13).  

However,  we  have  carefully  examined  the  statements  of  the  

accused under Section 313 Cr.P.C., and we find that as many as  

168  questions  were  put  to  him  relating  to  all  the  relevant  

circumstances.  Hence there is no merit in this submission.

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48. Mr. Jaspal Singh then submitted that the incised wounds on  

the son of the appellant, Amandeep, have not been explained by  

the prosecution.  In this connection we wish to say that since there  

were  no eye witnesses  and the  entire  prosecution  case  rests  on  

circumstantial evidence it is hardly for the prosecution to explain  

these injuries, rather it was for the appellant, who was present at  

the  time  of  the  incident  (as  we  have  found)  to  explain  them.  

Moreover, the question of explaining the injuries ordinarily arises  

when the injuries are on an accused, and not on the victim.  At any  

event,  the  prosecution has explained that  these  were due to  the  

broken glass pieces found on the spot.  

49. Thus,  in  our  opinion  the  prosecution  has  been  able  to  

establish  the  entire  chain  of  circumstances  which  connect  the  

accused to the crime.  These are :

1. There were strained relations between the accused  and his family members including his wife.  He  used to beat his wife with a leather belt, and was  dictatorial,  which  attitude  was  resented  by  the  family members.

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2. The accused came to his flat on 9th April, 2003 at  midnight, and was last seen with his wife in his  flat  where his children also lived.

3. The accused had quarrel with his wife for five or  ten minutes on the night of the incident.

4. Ten litre can with petrol residue was found in the  house.

5. The  bucket  showing  positive  result  in  the  test  conducted by the Chemical Analyzer was found to  have  been  used  for  splashing  or  throwing  the  petrol.

6. The incident happened in the flat of the accused  where  there  was  no  one  else  inside  except  his  family  members.   All  the deceased  were  asleep  when the petrol was poured over them and their  bodies set  on fire.   They were  killed in a most  gruesome, diabolical and cruel manner.

7. It was a pre-planned murder, because the accused  had brought sufficient petrol  into his flat  to kill  everyone.  Ordinarily no one keeps so much petrol  in his residential apartment.

 8. The  accused  absconded  from  the  scene  of  the  

offence  immediately  thereafter,  and  did  not  disclose to his family members or servants about  his departure.

9. The  incident  occurred  between 4  to  4.30  A.M.,  and the accused was the person last seen with his  wife before the incident.  

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10. The  accused  pointed  out  the  bucket  in  his  statement under Section 27 of the Evidence Act;

11. The  accused  was  arrested  at  Kisangadh,  Madanganj  in  Ajmer  District  (Rajasthan)  four  days thereafter  with huge cash of Rs.7,60,080/-,  with  safari  dresses,  turbans  and  24  silver  coins  etc..

12. He raised false defence of alibi  

13. There was full opportunity for the accused to kill  all the four persons.  No one else was present in  the flat.

Does the Appellant deserves the death sentence ?  

Death Penalties Worldwide

50. There is a wide divergence in various countries in the world  

whether to permit or not permit the death penalty.  According to  

Amnesty International as per 31.12.2010, 96 countries have legally  

abolished the death penalty,  34 countries have not used it  for a  

considerable period of time while 58 countries have still retained  

it.   Most European countries have abolished the death penalty .  

The United Kingdom abolished death penalty in 1973, France in  

1981, Germany in 1949, Italy in 1947 etc.  Canada abolished it in  

1976.   Russia legally permits death penalty, but has not used it  

after  1996.   Australia  last  used  the  death  penalty  in  1967,  and

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formally  abolished  it  in  2010.   China  has  death  penalty  for  a  

variety of crimes, e.g. aggravated murder, drug trafficking, large  

scale corruption etc.  China executes more people than all the rest  

of the world put together.  In African and Latin American countries  

some permit death penalty while others do not.  Most Asian and  

Arab countries permit death penalty.  As regards the United States  

of America, some States permit it while others do not.  The US  

Supreme Court in  Furman vs.  Georgia 408 US 238 (1972) held  

the  death  penalty  to  be  unconstitutional,  but  this  decision  was  

reversed four years later in Gregg vs. Georgia 428 US 153 (1976)  

which held that the death penalty is not unconstitutional.   

51. The UN General Assembly in 2007-08 passed a non binding  

resolution calling for a global moratorium of execution with a view  

to eventual abolition.  However, 65% of the world population live  

in  countries  like  China,  India,  Indonesia  and  the  US  which  

continue to apply death penalty, although both India and Indonesia  

only use it rarely.  Each of these four nations voted against the UN  

General Assembly resolution.   Of the 194 independent States in  

the  world that  are  members  of  the United Nations  or  have UN  

observer status, 42(22%) maintain the death penalty both in law  

and practice, 95 (49%) have abolished it, 8(4%) retain it for crimes  

committed in exceptional circumstances such as in time of war and  

49(25%) permit its use for ordinary crimes, but have not used it for

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at least 10 years and  have a policy or established practice of not  

carrying out an execution  or it is under a moratorium.

52. In  the  present  case,  we  are  not  going  into  the  validity  or  

otherwise  of  various  theories  of  criminal  penology  viz.,  the  

retributive, deterrent, preventive and reformative theories.   Suffice  

it to say that there are conflicting views and even conflicting data  

on this topic (see `Theories of Punishment’ edited by Stanley E.  

Grupp, `Punishment’  by Ted Honderich,  `Punishment’  by Philip  

Bean,  ‘The Death Penalty’ edited by Irwin Isenberg, ‘The Penalty  

of Death’ by Thorsten Sellen, `The Death Penalty’ by Roger Hood,  

etc.).  We shall, therefore, confine ourselves to the case before us.

Death Penalty in India

53. Section  302  provides  the  punishment  for  murder.   It  

stipulates a punishment of death or imprisonment for life and fine.  

Once an offender is found by the court to be guilty of the offence  

of murder under Section 302, then it has to sentence the offender to  

either death or for imprisonment for life.  The court has no power  

to impose any lesser sentence.

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54. If there is a reasonable doubt about the guilt of the offender,  

the  only  proper  verdict  is  to  acquit  him  and  not  to  impose  a  

sentence lesser than imprisonment for life vide Santosh vs.  State  

of MP  AIR 1975 SC 654.  

55. The  Law  Commission  of  India  in  its  35th Report,  after  

carefully sifting all the materials collected by them, recorded their  

views  regarding  the  deterrent  effect  of  capital  punishment  as  

follows:

“In our view capital  punishment does act as a deterrent.   We have  

already  discussed  in  detail  several  aspects  of  this  topic.   We state  

below,  very  briefly,  the  main  points  that  have  weighed with  us  in  

arriving at the conclusion:

(a) Basically, every human being dreads death.   

(b) Death, as a penalty, stands on a totally different level  from imprisonment for life or any other punishment.  The difference is  one of quality,  and not  merely  of  degree.  

(c) Those  who  are  specifically  qualified  to  express  an  opinion  on  the  subject,  including  particularly  the  majority  of  the  replies  received  from  State  Governments,  Judges,  Members  of  Parliament  and  Legislatures  and  Members  of  the  Bar  and  police

35

officers - are definitely of the view that the deterrent  object  of  capital  punishment  is  achieved  in  a  fair  measure in India.  

(d) As to  conduct  of  prisoners  released  from jail  (after  undergoing  imprisonment  for  life),  it  would  be  difficult  to  come  to  a  conclusion,  without  studies  extending over a long period of years.

(e) Whether  any  other  punishment  can  possess  all  the  advantages of capital punishment is a matter of doubt.  

(f) Statistics  of  other  countries  are  inconclusive  on the  subject.   If  they  are  not  regarded  as  proving  the  deterrent  effect,  neither  can  they  be  regarded  as  conclusively disproving it”.

56. Prior to 1955, under the old Criminal Procedure Code 1898,  

Section 367 (5) of the Code stipulated that the Court had to give  

reasons,  if  the  sentence  of  death  was  not  imposed in  a  case  of  

murder.    In  other  words,  imposition  of  death  sentence  for  the  

offence of murder was the rule, and if the court desired to make a  

departure  from  the  rule  and  impose  the  lesser  punishment  of  

imprisonment for life, it was required to give reasons for the same.  

In 1955, sub- Section 5 of Section 367 was deleted.  The result of  

such deletion was that the discretion available to the Court in the  

matter  of  the  sentence  to  be  imposed in  a  case  of  murder  was

36

widened.  Several High Courts also interpreted the consequence of  

the deletion to mean that the sentence of life imprisonment was the  

normal  sentence for  murder and the sentence of death could be  

imposed only if there were aggravating circumstances.  The Code  

of the Criminal Procedure was further amended in 1973, making  

life imprisonment the normal rule.  Section  354 (3)  of the new  

Code provides:   

“When the conviction is for an offence punishable with   death  or,  in  the  alternative,  imprisonment  for  life  or   imprisonment  for  a  term of  years,  the  judgment  shall   state reasons for the sentence awarded and, in the case  of  sentence  of  death,  the  special  reasons  for  such   sentence”.   

57. Thus in the new Code, the discretion of the judge to impose  

death sentence has been narrowed, for the court has now to provide  

special reasons for imposing a sentence of death.  It has now made  

imprisonment for life the rule and death sentence an exception, in  

the matter of awarding punishment for murder.  

58. In Bachan Singh vs  State of Punjab, AIR 1980 SC 898, a  

Constitution Bench (5 Judge Bench) of this Court, while upholding

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the constitutional  validity  of death sentence observed (vide para  

207):  

“ For persons convicted of murder life imprisonment is  the  rule  and death sentence  an exception.   A real  and  abiding concern for the dignity of human life postulates  resistance to taking a life through law’s instrumentality.  That ought not to be done save in the rarest of rare cases  when  the  alternative  option  is  unquestionably  foreclosed”.

59. After  Bachan  Singh's case  (supra)  this  Court  again  

considered  the  question  as  to  when  death  sentence  should  be  

imposed in  Machhi  Singh and others vs  State  of  Punjab AIR  

1983 SC 957 (a 3 Judge Bench decision).  In that case the accused  

had  methodically  in  a  pre  planned  manner  murdered  seventeen  

persons  of  a  village  including  men,  women  and  children.  The  

accused were awarded death sentences but the Court held that in  

order to apply the guidelines of Bachan Singh's case (supra) inter-

alia the following questions should be asked: (a) Is there something  

uncommon  about  the  crime  which  renders  sentence  of  

imprisonment for life inadequate and called for a death sentence?  

(b)  Are  the  circumstances  of  the  crime  such  that  there  is  no  

alternative  but  to  impose  death  sentence  even  after  according  

maximum weightage to the mitigating circumstances which speak

38

in favour of the offender. The Court held that if the answer to the  

above is in affirmative, then death sentence is warranted.

60. In Macchi Singh’s case (supra) this Court further observed:   

“The reasons why the community as a whole does not  endorse  the  humanistic  approach  reflected  in  `death  sentence-in-no- case' doctrine are not far to seek. In the  first place, the very humanistic edifice is constructed on  the foundation of `reverence for life'  principle. When a  member of the community violates this very principle by  killing another member,  the society may not  feel  itself  bound by the shackles of this doctrine. Secondly, it has to  be realized that every member of the community is able  to  live  with  safety  without  his  or  her  own  life  being  endangered  because  of  the  protective  arm  of  the  community and on account of the rule of law endorsed by  it. The very existence of the rule of law and the fear of  being brought  to book operates as a deterrent  to those  who have  no scruples  in  killing  others  it  if  suits  their  ends. Every member of the community owes a debt to the  community  for  this  protection.  When  ingratitude  is  shown instead of gratitude by killing a  member  of  the  community  which  protects  the  murderer  himself  from  being killed,  or when the community  feels that for the  sake of self- preservation the killer has to be killed, the  community  may  well  withdraw  the  protection  by  sanctioning  the  death penalty.  But  the  community  will  not do so in every case. It may do so (in rarest of rare  cases) when its collective conscience is so shocked that it  will  expect  the holders  of  the judicial  power centre  to  inflict death penalty irrespective of their personal opinion  as  regards  desirability  or  otherwise  of  retaining  death  penalty. The community may entertain such a sentiment  when  the  crime  is  viewed  from  the  platform  of  the  motive for, or the manner of commission, of the crime, or

39

the anti-social or abhorrent nature of the crime, such as  for instance:  

I. Manner of Commission of Murder When the murder is  committed in an extremely brutal,  grotesque, diabolical, revolting or dastardly manner so as  to  arouse  intense  and  extreme  indignation  of  the  community.  For instance, (i) when the house of the victim is set aflame with the  end in view to roast him alive in the house. (ii)  when  the  victim  is  subjected  to  inhuman  acts  of  torture or cruelty in order to bring about his or her death. (iii) when the body of the victim is cut into pieces or his  body is dismembered in a fiendish manner.

II. Motive for commission of murder

When  the  murder  is  committed  for  a  motive  which  evinces total depravity and meanness. For instance when  (a)  a  hired  assassin  commits  murder  for  the  sake  of  money or reward (b) a cold-blooded murder is committed  with a deliberate design in order to inherit property or to  gain control over property of a ward or a person under  the  control  of  the  murderer  or  vis-`-vis  whom  the  murderer is in a dominating position or in a position of  trust,  or  (c)  a  murder  is  committed  in  the  course  of  betrayal of the motherland.

III. Anti Social or Socially abhorrent nature of the crime  

(a) When murder of a member of a Scheduled Caste or  minority community etc., is committed not for personal  reasons but in circumstances which arouse social wrath.  For instance when such a crime is committed in order to  terrorize  such  persons  and  frighten  them  into  fleeing  from a place or in order to deprive them of, or make them  surrender lands or benefits conferred on them with a view  to reverse past injustices and in order to restore the social

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balance.  (b)  In  cases  of  'bride  burning'  and  what  are  known as 'dowry deaths' or when murder is committed in  order to remarry for the sake of extracting dowry once  again  or  to  marry  another  woman  on  account  of  infatuation.  

IV. Magnitude of Crime  When the crime is enormous in proportion. For instance  when  multiple  murders  say  of  all  or  almost  all  the  members of a family or a large number of persons of a  particular caste, community, or locality, are committed.

V. Personality of victim of murder When the victim of murder is  (a) an innocent child who  could not have or has not provided even an excuse, much  less a provocation, for murder (b) a helpless woman or a  person rendered helpless by old age or infirmity (c) when  the victim is a person vis-`- vis whom the murderer is in  a position of domination or trust (d) when the victim is a  public  figure  generally  loved  and  respected  by  the  community  for  the  services  rendered  by  him  and  the  murder is committed for political or similar reasons other  than personal reasons.”

61. In  Macchi Singh’s case (supra) this Court further observed  

that  in  determining  the  culpability  of  an  accused  and  the  final  

decision  as  to  the  nature  of  sentence,  a  balance  sheet  of  the  

aggravating and mitigating circumstances vis-a-vis the accused had  

to be drawn up and in doing so the mitigating circumstances had to  

be given full weight so that all factors were considered before the  

option is exercised.

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Some decisions where death penalty has been affirmed  by this Court  

62. We may now consider some decisions where death penalty  

has been given by the court holding the crimes to belong to the  

‘rarest of the rare cases’.   

63. In  Sunder Singh vs. State of Uttaranchal, (2010) 10 SCC  

611 the accused had gone to the place of occurrence well prepared  

carrying  jerry  cans  containing  petrol,  sword,  pistol  with  two  

bullets, which showed his pre-meditation and cold blooded mind.  

In the incident five persons lost their lives while the sole surviving  

lady survived with 70% burn injuries.  The murder was committed  

in a cruel, grotesque and diabolical manner, and closing of the door  

of the house was the most foul act by which the accused actually  

intended to burn all the persons inside the room and precisely that  

happened.  There were no mitigating circumstances, and hence it  

was  one  of  the  rarest  of  rare  cases.   Consequently,  the  death  

sentence was justified.   

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64. In C. Muniappan vs. State of T. N., (2010) 9 SCC 567 three  

members of an unlawful assembly engaged in road blocking (in a  

public demonstration against a court verdict), committed planned  

murder by burning a bus carrying helpless, innocent, unarmed, girl  

students in a totally unprovoked situation. Three girls died and 20  

got burn injuries in the incident.  This Court held that it was one of  

the rarest of rare cases, one where the accused would be a menace  

and  threat  to  the  harmonious  and  peaceful  co-existence  of  the  

society.   The  accused  deliberately  indulged  in  a  planned  crime  

without any provocation and meticulously executed it, and hence  

the death sentence was the most appropriate punishment.  There  

being aggravating circumstances and no mitigating circumstance  

death  sentence  imposed  on  the  three  members  of  the  unlawful  

assembly was upheld.   

65. In M. A. Antony vs. State of Kerala, (2009) 6 SCC 220 all  

six members of a family were murdered at their residence at night.  

The motive was money, and the absence of the accused from his

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own residence during the corresponding periods i.e on the night of  

the occurrence till  next  morning,  and recovery of  clothes  under  

Section 27 of Evidence Act 1872, finger prints on the door steps of  

the house matching with those of accused, and recovery of scalp  

hair  of  accused  from  place  of  occurrence  were  damning  

circumstantial  evidence.   Having  regard  to  the  chain  of  

circumstances the death sentence was upheld.   

66.  In Jagdish vs. State  of  M.  P.,  (2009)  9  SCC  495  the  

assailant murdered his wife and five children (aged 1 to 16 years)  

in his own house.  The murders wee particularly horrifying as the  

assailant was in a dominant position and a position of trust as the  

head of the family.  The assailant betraying the trust and abusing  

his  position  assailant  murdered  his  wife  and  minor  children  

(youngest being the only son just 1 year old ).  This Court held that  

the balance sheet of aggravating and mitigating circumstances was  

heavily weighted against  the assailant  making it  a rarest  of rare  

case. Consequently the award of death sentence was just.  

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67. In Prajeet Kumar Singh vs. State of Bihar, (2008) 4 SCC  

434 the accused was a paying guest for a continuous period of four  

years in lieu of a sum of Rs. 500/- for food and meals.  He brutally  

executed three innocent defenseless children aged 8, 15 and 16,  

attempted  to  murder  the  father  (informant)  and  mother  who  

survived  the  attack  with  multiple  injuries.   There  was  no  

provocation  or  reason for  committing  this  ghastly  act  at  a  time  

when  the  children  were  sleeping.   There  were  several  incised  

wounds  (muscle  deep  or  bone  deep)  caused  to  the  deceased.  

Considering the brutality, diabolic, inhuman nature and enormity  

of the crime (multiple murders and attacks), this Court held that the  

mindset of the accused could not be said to be amenable to any  

reformation.  Therefore it  came under the rarest  of rare category  

where not awarding a death sentence would have resulted in failure  

of justice.   

68. In Ram  Singh vs. Sonia,  (2007)  3  SCC  1 the  wife  in  

collusion with her husband murdered not only her step brother and

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his whole family including three tiny tots of 45 days, 2 and ½ years  

4 years, but also her own father, mother and sister so as to deprive  

her father from giving property to her step brother and his family.  

The murders were committed in a cruel, pre-planned and diabolic  

manner while the victims were sleeping, without any provocation  

from the victim’s side.  It was held that the accused persons did not  

possess any basic humanity and completely lacked the psyche or  

mindset  amenable  to  any  reformation.   It  was  a  revolting  and  

dastardly act, and hence the case fell within the category or rarest  

of rare cases and thus death sentence was justified.   

69. In State of U.P.  vs.  Satish   (2005) 3 SCC 114 the victim  

was a six year old girl who lost her life on account of the bestial  

acts of the respondent who raped and murdered her.  The body was  

found in a sugarcane field and blood was oozing from her private  

parts and there were marks of pressing on her neck (suggesting  

death by strangulation).  It was held that this diabolic, iniquitous,  

flagitious act reached the lowest level of humanity when the rape

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was  followed  by  brutal  murder.   Hence  death  sentence  was  

justified.

70. In Holiram Bordoli vs. State of Assam  (2005) 3 SCC 793  

the  accused  persons  were  armed  with  lathis,  and  various  other  

weapons.  They came to the house of the victim and started pelting  

stones  on  the  bamboo  wall  of  the  said  house.  Thereafter,  they  

closed the house from the outside and set the house on fire.  When  

the son, daughter and the wife of the victim somehow managed to  

come out of the house, the accused persons caught hold of them  

and threw them into the fire again.  Thereafter the elder brother  

who was staying in another house at some distance from the house  

of  the  victim  was  caught  and  dragged  to  the  courtyard  of  the  

accused where the accused cut him into pieces.   It was held that  

there was absence of any strong motive and the victims did not  

provoke or contribute to the incident.  The accused was the leader  

of the gang, and the offence was committed in the most barbaric  

manner  to  deter  others  from  challenging  the  supremacy  of  the

47

accused in the village.  Held, that no mitigating circumstances to  

refrain from imposing death penalty were found.   

71. In Saibanna vs. State of Karnatka (2005) 4 SCC 165 the  

accused was out on parole in the case of murder of his first wife, in  

which he was already convicted and sentence to life imprisonment.  

He pre-planned the murder of his second wife and daughter (aged  

1 to 1 ½ years) when the victims were sleeping by using a hunting  

knife (jambia) which is not ordinarily available in a house.  There  

were  no  justified  reasons  for  any  extenuating  circumstances  in  

favour of the accused.  Putting the case under the ‘rarest of rare  

case’ category death sentence was upheld.   

72. In Karan Singh vs. State of U.P. (2005) 6 SCC 342 the two  

appellants chased the deceased persons and butchered them with  

axes and other weapons in a very dastardly manner.  After killing  

three  adults,  the  appellants  entered  their  house  and  killed  two  

children who in no way were involved with the alleged property  

dispute with the appellants.  It was held that the sole intention here

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was to exterminate the entire family.  Thus, it was a ‘rarest of the  

rare’ case.    

73. In Gurmeet Singh vs. State of U.P. (2005) 12 SCC 107,  

appellant G, along with his friend L killed thirteen members of his  

family including small kids for a flimsy reason (objection of family  

of G to the visits and stay of L at their house) while they were  

asleep.  Award of death sentence was held proper.   

74. In Sushil  Murmu vs. State of  Jharkhand (2004) 2  SCC  

338,  the  accused  sacrificed  a  child  of  another  person  before  

Goddess Kali  in a most brutal and diabolic manner for personal  

gain and to promote his fortunes by appeasing the deity with blood.  

It  was  held  that  superstition  can  not  and  does  not  provide  

justification for  any killing,  much less  a planned and deliberate  

one.

75. In State of Rajasthan vs. Kheraj Ram (2003) 8 SCC 224,  

the  accused deliberately  planned and executed his  two innocent

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children, wife and brother-in-law when they were sleeping at night.  

There  was  no  remorse  for  such  a  gruesome  act  which  was  

indicated by the calmness with which he was smoking  “chilam”  

after the commission of the act.  As  it was pre-planned and after  

the entire chain of events and circumstances were comprehended,  

the  inevitable  conclusion,  was that  the accused acted  in  a  most  

cruel and inhuman manner and the murder was committed in an  

extremely  brutal,  grotesque,  diabolical,  revolting  and  dastardly  

manner.    

76. In Om Prakash vs. State of Uttaranchal  (2003) 1 SCC 648  

the accused, a domestic servant killed three innocent members and  

attempted to kill the fourth member of the family of his employer  

in  order  to  take  revenge  for  the  decision  to  dispense  with  his  

service and  to commit robbery.  The death sentence was upheld.

77. In Gurdev Singh vs.   State of Punjab  ,  AIR 2003 SC 4187,  

the appellants, having known that on the next day a marriage was  

to take place in the house of the complainant and there would be

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lots of relatives present in her house, came there on the evening  

when  a  feast  was  going  on  and  started  firing  on  the  innocent  

persons.  Thirteen persons were killed on the spot and eight others  

were seriously injured.  The appellants thereafter went to another  

place  and  killed  the  father  and brother  of  PW 15.   Out  of  the  

thirteen  persons,  one of  them was a  seven-year  old  child,  three  

others  had  ages  ranging  between  15  and  17  years.   The  death  

sentence was held justified.

78. In Praveen Kumar vs. State of Karnataka (2003) 12 SCC  

199 the accused was accommodated by one of the victims (who  

was  his  aunt)  despite  her  large  family,  and  she  gave  him  an  

opportunity  to  make  an  honest  living  as  a  tailor.   The  accused  

committed the pre-planned, cold-blooded murders of relatives and  

well wishers (including one young child) while they were sleeping.  

After  the commission of  the crime the accused absconded from  

judicial custody for nearly four years, which indicates the fact that

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the possibility of any remorse are rehabilitation is nil.  Held the  

extreme penalty of death was justified.       

79. In Suresh vs. State of U. P.  AIR 2001 SC 1344 the brutal  

murder of one of the accused’s brother and his family members  

including minor children at night when they were fast asleep with  

axe and chopper by cutting their skulls and necks for a piece of  

land was considered to be a grotesque & diabolical act, where any  

other punishment than the death penalty was unjustified.    

80. In Molai vs. State of M.P.  AIR 2000 SC 177, the Jail officer  

sent to his quarter a guard and a prisoner to work in the house.  The  

16 year old daughter of the said officer was at that time alone in  

the  quarter  and  was  preparing  for  her  class  10th examination.  

Taking advantage of her loneliness, both the guard and the prisoner  

raped her, strangulated her and stabbed her.   Thereafter with an  

intention to hide their crime they threw her dead body into a septic  

tank.  This Court held that death was a fit punishment.    

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81. In Ramdeo  Chauhan vs. State  of  Assam AIR  2000  SC  

2679,  the  accused  committed  a  pre-planned cold-blooded brutal  

murder of four inmates of a house including two helpless women  

and a child aged 2 ½ years during their sleep with a motive to  

commit  theft.   The  accused  also  attacked  with  a  spade  another  

inmate of the house, an old woman, and a neighbour when they  

entered the house.  The Court held that the young age (22 years) of  

the  accused  at  the  time  of  committing  the  crime  was  not  a  

mitigating circumstance, and death penalty was a just and proper  

punishment.    

82. In Narayan  Chetanram  Chaudhary vs. State  of  

Mahrashtra AIR  2000  SC  3352  there  was  a  pre-planned,  

calculated,  cold-blooded  murder  of  five  women,  including  one  

pregnant woman and two children aged 1 ½ years and 2 ½ years,  

all inmates of a house, in order to wipe out all evidence of robbery  

and theft committed by two accused in the house at a time when  

male members of the house were out.  It was held that the young

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age  (20-22  years)  of  the  accused  persons  cannot  serve  as  a  

mitigating circumstance.

83. In State of U.P. vs. Dharmendra Singh AIR 1999 SC 3789,  

5 persons were murdered, an old man of 75 years, a woman aged  

32 years, two boys aged 12 years and a girl aged 15 years, at night  

when  they  were  asleep  by  inflicting  multiple  injuries  to  wreak  

vengeance.  This Court held that the ghastly and barbaric murder  

can be termed as rarest of the rare case and death penalty was just  

for such a diabolic act.

84. In Ronny vs. State of Mahrashtra   AIR 1998 SC 1251, the  

accused  was  the  nephew  of  the  deceased,  and  because  of  the  

relationship he gained access inside the house for himself and his  

friends.  The victims were unarmed and the crime was committed  

for  gain  i.e.  to  rob  the  valuables  of  the  deceased  family.   The  

accused then killed all three members and then committed rape on  

the lady who was the wife of his maternal uncle and as old as his  

mother.  Considering the facts of the case this Court held that it

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cannot  be  said  that  the  offences  were  committed  under  the  

influence  of  extreme  mental  or  emotional  disturbance  as  

everything was done in a preplanned way, and hence death penalty  

was upheld.  

85. In Surja Ram vs. State of Rajasthan AIR 1997 SC 18, the  

appellant  murdered his  bother,  his two minor  sons and an aged  

aunt by cutting their neck with a kassi while they were all sleeping.  

He also attempted to murder his brother’s wife and daughter but  

they  survived  with  serious  injuries.   The  dispute  between them  

only  related  to  putting  a  barbed  fence  on  a  portion  of  their  

residential complex.  The death sentence was held to be justified.

86. In Umashankar  Panda vs.  State  of  M.P AIR 1996 SC  

3011,  the  accused  and  his  wife  and  five  children  took  dinner  

together  and  went  to  bed  in  the  same  room.   At  midnight  the  

accused started to attack his wife with a sword and on hearing the  

shouting the children woke up.  On being questioned by the wife as  

to why he was trying kill her he did not give an answer but rather

55

inflicted on her head, hand and foot more injuries.  When the eldest  

daughter intervened, he did not spare her either.  The wife and two  

children died but three others escaped death.  On being asked, the  

accused confessed to a witness that he had slaughtered all of them  

but he did not know how three others had escaped the death.  This  

attitude  of  the  accused  clearly  showed  that  he  had  purposely  

caused injuries to all his family members in order to liquidate them  

and was not happy that even the three children had escaped from  

death.  There was no provocation or other circumstances to suggest  

that there was any quarrel between the accused and his wife or the  

children. The way in which the crime was executed showed that it  

was pre-meditated and not on account of sudden provocation.  

87. In Ravji vs. State  of  Rajasthan AIR  1996  SC  787,  the  

accused in a cool and calculated manner wanted to kill his wife and  

three minor children while they were asleep.    When his mother  

intervened he injured her with an axe with an intention to kill her.  

He then silently went to the neighbour’s house and attempted to

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kill  his  neighbour’s  wife  who  was  also  asleep.   When  his  

neighbour intervened he killed him too and fled from the place of  

occurrence and tried to hide himself.  The accused had a solemn  

duty  to  protect  his  family  members  and  maintain  them  but  he  

betrayed the trust reposed in him in a very cruel and calculated  

manner  without  any  provocation  whatsoever.   Hence  the  death  

penalty had to be upheld.

88. In Suresh Chandra Bahri vs. State of Bihar  AIR 1994 SC  

2420, the wife of accused wanted to sell her house and migrate to  

USA with her children against the wishes of her husband.  Hence,  

the accused killed his  wife  after  torturing her  by truncating her  

body into two parts in a devilish style evincing total depravity only  

to gain control over the property.  Further he killed his own two  

innocent children making them believe that they were being taken  

on a pleasure trip to  the farm, killing them by inflicting severe  

injuries on their neck and other parts of the body and throwing  

them in the river.    

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89. In Bheru Singh vs. State of Rajasthan (1994)  2 SCC 467,  

the accused slaughtered his own wife and five children for no fault  

of theirs but only on mere suspicion that his wife was having an  

affair.   This deserved a death sentence.  

90. In Sevaka Perumal vs. State of T. N.  AIR 1991 SC 1463,  

the accused indulged in illegal business of purchase and sale of  

“ganja”.   They conspired  to  entice  innocent  boys  from affluent  

families, took them to far flung places where the dead body could  

not be identified.  Letters were written to the parents purporting to  

be by the  deceased to delude  the parents  that  the missing boys  

would one day come home alive and that they should not give any  

report to the police so that the crime would go undetected.  Four  

murders in a span of five years were committed for gain in cold-

blooded, premeditated and planned way. This Court held that any  

other  penalty  except  the  death  penalty  would  amount  to  a  

miscarriage of justice.  

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91. In  Sudam  @  Rahul  Kaniram  Jadhav vs.  State  of  

Maharashtra (Criminal Appeal Nos. 185-186 of 2011 decided on  

4.7. 2011 this Court held that where an accused was found guilty  

of committing murder of four children and a woman with whom he  

was  living  with  as  husband  and  wife,  the  death  penalty  was  

justified.  In that decision Hon’ble C. K. Prasad, J. observed :

“Now we proceed to consider as to whether the case in  hand falls  in the category of rarest  of the rarest  cases.  The appellant had chosen to kill the woman with whom  he lived as husband and wife, a woman who was in deep  love with him and willing to pay Rs. 15,000/- to PW. 6,  Muktabai,  to  save the  relationship.   Appellant  had not  only killed the two children of the deceased who were  born from the first husband but also killed his own two  children.  He projected himself to be single and changed  his  name  to  dupe  a  woman  and  in  fact  succeeded  in  marrying her.  However, when the truth came to light, he  killed five persons.  The manner in which the crime has  been committed clearly shows it to be premeditated and  well planned.  It seems that all the four children and the  woman were brought near the Pod in a planned manner,  strangulated  to  death  and  dead  bodies  of  the  children  thrown in the pond to conceal the crime.  He not only  killed Anita but crushed her head to avoid identification.  Killing four children, tying the dead bodies in bundles of  two each and throwing them in the pond would not have  been possible, had the appellant not meticulously planned  the murders.  It shows that the crime has been committed  in  a  beastly,  extremely  brutal,  barbaric  and  grotesque  manner.   It  has  resulted  in  intense  and  extreme  indignation of the community and shocked the collective

59

conscience of the society.  We are of the opinion that the  appellant  is  a  menace  to  the  society  who  cannot  be  reformed.  Lesser punishment in our opinion is fraught  with danger as it  may expose the society to peril  once  again at the hands of the appellant.  We are of the opinion  that the case in hand falls in the category of the rarest of  the rare cases and the trial court did not err in awarding  the  death  sentence  and the High Court  confirming the  same.”      

92. In Ranjeet Singh vs. State of Rajasthan (1988) 1 SCC 633,  

the entire family was murdered when they were fast asleep and this  

Court observed as under:

“With regard to the sentence of death, there cannot be  two opinions. The manner in which the entire family was  eliminated indicates that the offence was deliberate and  diabolical.  It was pre-determined and cold blooded.  It  was absolutely devilish and dastardly”.  

93. In  Atbir vs.  Govt. of NCT Delhi AIR 2010 SC 3477 this  

Court confirmed the death sentence given to the appellant who had  

committed multiple murders of members of his family,  who are  

none other than step-mother, brother and sister in order to inherit  

the entire  property  of his  father.   The appellant,  in consultation  

with his mother planned to eliminate the entire family of his step-

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mother, and with this intention went to her house, closed the doors  

and mercilessly inflicted 37 knife injuries on the vital parts of the  

victims’ bodies.

94. In Surendra Koli  vs.  State of U.P. AIR 2011 SC 970, the  

accused was a serial killer who used to lure small girls inside a  

house, strangulate them, have sex with their bodies, cut off their  

body parts, and eat them.  This Court held that no mercy could be  

shown to his horrifying and barbaric deeds, and upheld the death  

sentence.

Present Case  

95. Having considered the law on the point and several decisions  

of  this  Court  where death sentence was affirmed,  we may now  

consider whether this case deserves the death sentence.  This Court  

held in  Bachan Singh  vs.  State of Punjab (Supra) that death  

sentence should only be given in the rarest of rare cases.  In our  

opinion this is one of such cases.  Burning living persons to death

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is a horrible act which causes excruciating pain to the victim, and  

this could not have been unknown to the appellant.   

96. In our opinion,  a  person like the appellant  who instead of  

doing his duty of protecting his family kills them in such a cruel  

and  barbaric  manner  cannot  be  reformed or  rehabilitated.   The  

balance sheet is heavily against him and accordingly we uphold the  

death sentence awarded to him.

97. In the present case the accused did not act on any spur of the  

moment  provocation.   It  is  no  doubt  that  a  quarrel  occurred  

between him and his  wife at  midnight,  but  the fact  that  he had  

brought  a  large  quantity  of  petrol  into  his  residential  apartment  

shows that he had pre-planned the diabolical and gruesome murder  

in a dastardly manner.     

98. In our opinion a distinction has to be drawn between ordinary  

murders and murders which are gruesome, ghastly or horrendous.  

While  life  sentence  should  be  given  in  the  former,  the  latter

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belongs to the category of rarest  of rare cases,  and hence death  

sentence should be given.  

99. This distinction has been clarified by a recent judgment of  

my learned brother Hon’ble C. K. Prasad, J. in Mohd. Mannan @  

Abdul Mannan vs. State of Bihar (2011) 5 SCC 317 (vide paras  

23 and 24), wherein it has been observed:  

“23. It is trite that death sentence can be inflicted only in  a case which comes within the category of the rarest of  rare  cases  but  there  is  no  hard-and-fast  rule  and  parameter to decide this vexed issue. This Court had the  occasion to consider the cases which can be termed as the  rarest of rare cases and although certain comprehensive  guidelines  have  been  laid  to  adjudge  this  issue  but  no  hard-and-fast  formula  of  universal  application  has  been  laid  down  in  this  regard.  Crimes  are  committed  in  so  different and distinct circumstances that it is impossible to  lay down comprehensive  guidelines to decide this  issue.  Nevertheless  it  is  widely  accepted  that  in  deciding  this  question the number of persons killed is not decisive.  

24.  Further, the crime being brutal and heinous itself does  not turn the scale towards the death sentence. When the  crime  is  committed  in  an  extremely  brutal,  grotesque,  diabolical,  revolting  or  dastardly  manner  so  as  to  arouse intense and extreme indignation of the community  and  when  collective  conscience  of  the  community  is  petrified,                     one has to lean towards the death  sentence. But this is not the                  end. If these  factors  are  present  the  court  has  to  see  as to whether the accused is a menace to the society and  would  continue  to  be  so,  threatening  its  peaceful  and  harmonious coexistence. The court has to further enquire  and  believe  that  the  accused  condemned  cannot  be  reformed  or  rehabilitated  and  shall  continue  with  the  criminal acts. In this way a balance sheet is to be prepared  while  considering  the  imposition  of  penalty  of  death  of  aggravating  and  mitigating  circumstances  and  a  just  balance  is  to  be  struck.  So  long  the  death  sentence  is  provided in the statute and when collective conscience of

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the community is petrified, it is expected that the holders  of  judicial  power  do not  stammer  dehors  their  personal  opinion  and  inflict  death  penalty.  These  are  the  broad  guidelines which this Court had laid down for imposition of  the death penalty”.

We fully agree with the above view as it has clarified the meaning  

of the expression ‘rarest of the rare cases’.  To take a hypothetical  

case, supposing ‘A’ murders  ‘B’ over a land dispute, this may be a  

case of ordinary murder deserving life sentence.  However, if in  

addition to murdering ‘B’, ‘A’ goes to the house of ‘B’ and wipes  

out his entire family, then this will come in the category of rarest  

of the rare cases’ deserving death sentence.  The expression ‘rarest  

of  the  rare  cases’  cannot,  of  course,  be  defined  with  complete  

exactitude.  However, the broad guidelines in this connection have  

been explained by various decisions of this Court.  As explained  

therein, the accused deserves death penalty where the murder was  

grotesque, diabolical, revolting or of a dastardly manner so as to  

arouse  intense  and  extreme  indignation  of  the  community,  and  

when the collective conscience of the community is petrified, or  

outraged.  It has also to be seen whether the accused is a menace to  

society  and  continues  to  do  so,  threatening  its  peaceful  and

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harmonious  coexistence.   The  Court  has  to  further  enquire  and  

believe that the accused cannot be reformed or rehabilitated and  

shall continue with his criminal acts.  Thus a balance sheet is to be  

prepared  in  considering  the  imposition  of  death  penalty  of  the  

aggravating and mitigating circumstances, and a just balance is to  

be struck.

100. We fully agree with the above view and we are of the opinion  

that all the requisites for death penalty as noted above are satisfied  

in the present case for the reasons given above.  

Abolition of Death Sentence

101. It is only the legislature which can abolish the death penalty  

and not  the  courts.   As  long as  the  death  penalty  exists  in  the  

statute book it has to be imposed in some cases, otherwise it will  

tantamount to repeal of the death penalty by the judiciary.  It is not  

for  the  judiciary  to  repeal  or  amend  the  law,  as  that  is  in  the  

domain of the legislature  vide  Common Cause  vs.   Union of

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India 2008(5) SCC 511 (vide paragraphs 25 to 27).  The very fact  

that it has been held that death penalty should be given only in the  

rarest of the rare cases means that in some cases it should be given  

and not that it  should never be given.  As to when it has to be  

given, the broad guidelines in this connection have been laid down  

in Macchi Singh’s case (supra) which has been followed in several  

decisions referred to above.  This Court has also held that honour  

killing vide Bhagwan Dass vs.  State (NCT) of Delhi  AIR 2011  

SC 1863, fake encounter by the police vide  Prakash Kadam vs.  

R.V.  Gupta AIR  2011  SC  1945  and  dowry  death  vide  Satya  

Narayan Tiwari vs.  State  of  U.P.  (2010)  13  SCC 689  comes  

within the category of ‘rarest of rare cases’.  Hired killing would  

also ordinarily come within this category.

102. In  view of  the  foregoing,  there  is  no  merit  in  this  appeal  

which is accordingly dismissed.

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103. Before parting with this case, we would like to mention that  

we are not dealing with mercy petitions under Article 72 and 161  

of the Constitution, but are confining ourselves to the question of  

imposing death penalty on the judicial side.  

……..……………………….J.  (Markandey Katju)

…………….……..………….J.        (Chandramauli Kr. Prasad)

New Delhi; September 13, 2011