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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NOS.113-114     OF     2010   

Brajendrasingh … Appellant

Versus

State of Madhya Pradesh … Respondent

J     U     D     G     M     E     N     T   

Swatanter     Kumar,     J  .

1. The present appeals are directed against the judgment of the  

High Court of Madhya Pradesh, Bench at Indore, confirming the  

judgment of conviction and order of sentence of imposition of  

extreme penalty of death by the Trial Court.

2. The disaster that can flow from unchastity of a woman and the  

suspicions of a man upon the character of his wife cannot be more  

pathetically stated than the facts emerging from the present case.   

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As per the case of the prosecution, a man suspecting his wife of  

having illicit relations with his neighbor, killed his three young  

children, namely, Varsha, Lokesh and Mayank, who were asleep,  

sprinkled kerosene oil on his wife and put her on fire.  However,  

when called upon to make a statement under Section 313 of the  

Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the accused  

rendered the following explanation :

“There was illicit relationship between my wife,  the deceased Aradhna and Liladhar, when on  27.02.2005 I came from the factory, at that  time it was 11.00 –  11.30 O’clock at night,  there was no fixed time coming and going from  the factory.  When I came to my house the  door of the house was opened.  My wife was  not at the house and then I searched her here  and there.  I heard her voice in the house of  Liladhar Tiwari, the voice of male was also  coming.  My children were sleeping in my  house, when I shouted loudly and I hit the  door of Liladhar Tiwari with foot, then the door  opened then I saw that both were naked and  then she came out then I threw her on the  ground after catching her hair and then she  started shouted and speaking cohabitedly and  said that she would go with Tiwari Jee only  and if I would stop her from meeting Tiwari Jee  then she would kill the children and she would  kill me also.  Thus quarrel went on.  After  some time she came with knife from the  kitchen and she inflicted injuries in the necks  of the three children.  I tried to snatch the  knife from her and the in that process in my  

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neck also the knife inflicted injury and then  after taking that very knife I inflicted injury on  the neck of deceased because she had inflicted  the injury in the necks of children,  Aradhna  fell down on the back after being hit by the  knife.  My mental balance was upset and I put  the kerosene oil kept there at myself, that  some of that kerosene oil fell on me and some  on the deceased, I was standing nearby.  I  ignited the match stick and at first I burnt  myself and the match stick fell on the  deceased, due to which she was also burnt  and then in the burning condition after  extinguishing the fire taking the knife I went  towards the Bye-pass.  After some time, I saw  that one truck was coming, I was going to  commit suicide under that truck but in the  meantime police came there and the police  brought me to the police station.  I got the  report written but as I had said in the report it  was not written like that.  I have not killed the  children.”

3. From the above statement, it is clear that the accused neither  

disputes the attempt to murder, nor the consequent death of his  

three young children and wife, Aradhna.  What this Court has to  

examine, with reference to the evidence on record, is as to which of  

the two versions is correct and stands established beyond  

reasonable doubt, i.e., whether the case of the prosecution is to be  

accepted as proved beyond reasonable probability or whether the  

defence of the appellant is to be accepted by the Court.

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4. Before we dwell upon the issues before us, it will be  

appropriate to refer to the facts giving rise to the present appeal, as  

stated by the prosecution.  The facts, as given, as well as the  

conduct of the appellant are somewhat strange in the present case  

as the appellant who is accused of this heinous crime, is himself  

the informant of the incident.  Laconically, the factual matrix of the  

case that emerges from the record is that the appellant had lodged  

a report in respect of the commission of the crime at the Police  

Station, Industrial Area, District Dewas in the night intervening the  

27/28th, February, 2005 at about 2.00 a.m. which was recorded by  

Sub-Inspector Mohan Singh Maurya, PW16.  The appellant was  

serving in White Star Milk Product Factory, Dewas.  Besides his  

wife and three young children, his brother-in-law was also residing  

with him who was serving in Sudarshan Factory.  One Liladhar  

Tiwari was the neighbour of the appellant.  In fact, both the  

appellant and Liladhar Tiwari stayed in two different rooms of the  

same flat, i.e., LIG Flat No.225, Vikas Nagar, Dewas which they had  

taken on rent from PW3, Smt. Kamal Kunwar.  Smt. Aradhna, the  

deceased wife of the appellant, used to talk to Liladhar, to which  

the appellant had serious objections.  He had forbidden her from  

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doing so.  Again, on the fateful day, he had allegedly stopped her  

from talking to Liladhar Tiwari, but she retorted that she would die  

and poured kerosene oil on her person and then put herself on fire.  

The appellant claims to have made an effort to extinguish the fire.  

However, being under the impression that she was dying, he also  

caused injuries to his wife by a knife (chhuri) and killed her.  The  

appellant also suffered burn injuries in his attempt to extinguish  

the fire.  After killing his wife, he was concerned about what would  

be the fate of their children, who will now have to grow up without  

their mother.  Thus, he killed them by the same process, i.e.,  

inflicting injuries by knife to the throat of the children.  After  

committing the murder of his own family members, he also tried to  

commit suicide by injuring his neck but could not succeed in his  

attempt.  The incident is said to have occurred at 2330 hours on  

the night of 27th February, 2005.

5. PW4, Sri Ram Verma, Head Constable, was on patrolling duty  

and he, along with another constable, was patrolling by road by a  

Government vehicle bearing registration No. MP 03 –  5492 in the  

night between half past one and two O’clock.  They saw a person on  

the bye-pass road.  They stopped the said vehicle and interrogated  5

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him.  Then they came to know that he was Brajendrasingh, the  

appellant.  The appellant narrated the entire incident to the Police  

and informed them that he wanted to commit suicide.  The Police  

Officers stopped him from doing so and brought him to the Police  

Station, Industrial Area in the same Government vehicle.  Upon  

reaching the Police Station, the appellant lodged the report at 2.00  

a.m. narrating the above facts to the Police.

6. On the basis of the statement of the appellant, First  

Information Report, Exhibit P27, under Section 302 of the Indian  

Penal Code (IPC), was registered on 27/28th February, 2005 at  

about 2.00 a.m.  PW16, Mohan Singh Maurya, prepared the inquest  

report Exhibits P2 to P5 and the bodies of the deceased persons  

were taken into custody.  The dead bodies were taken to the  

hospital for post mortem which was performed by Dr. Shakir Ali,  

PW12 and the post mortem reports were recorded as Exhibits P12  

to P15.  The doctor opined that the injuries on the person of the  

deceased could have been caused by a knife.  The appellant was  

also examined medically by Dr. Hari Singh Rana, PW14, who issued  

his medico-legal certificate report Exhibit P18.  The clothes of the  

deceased persons were seized.  The photographs of the spot were  6

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taken and the CDs of photography were seized vide Exhibits P7 to  

I/9.  Blood stained and controlled earth (P4) was taken into custody  

vide Exhibit P10, knife, shirt and pant of the appellant were seized  

vide Exhibit P13.  Seized articles were sent to the Forensic Science  

Laboratory, Sagar for chemical examination from which the reports  

Exhibits P22, P24 and P26 were received.  As per the post mortem  

report of deceased Aradhna, Exhibit P12, the medical expert found  

36 per cent burn injuries on her chest and abdomen.  The  

Investigating Officer recorded the statement of 16 prosecution  

witnesses and after completing the investigation in all respects, he  

submitted the charge sheet before the Court.  The accused was  

committed to the Court of Sessions as the offences were exclusively  

triable by the Court of Sessions being an offence under Sections  

302 and 309 IPC.  The accused stood trial and made a statement  

under Section 313 Cr.P.C. giving his stand and explanation as  

afore-indicated.  The learned Trial Court, vide its judgment dated  

15th June, 2007, acquitted the accused for the offence under  

Section 309 IPC.  However, while returning a finding of being guilty  

for the offence under Section 302 IPC, the Court held that it does  

not appear to be appropriate to award any sentence less than death  

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sentence to the appellant and, therefore, imposed upon him the  

extreme punishment of death under Section 302 IPC.  This  

judgment of the Trial Court was challenged before the High Court  

which affirmed the judgment of conviction and order of sentence of  

death.  Against these concurrent findings, the appellant has filed  

the present appeals.

7. We may notice here that against the acquittal of the appellant  

under Section 309 IPC, no appeal was preferred by the State, either  

before the High Court or before this Court.

8. The learned counsel appearing for the appellant has primarily  

raised the following two contentions :

(i) The courts have failed to appreciate the evidence in its correct  

perspective.  The accused had stated that his wife had  

murdered the three children and that he had only inflicted  

injuries on her body under a belief that she was not going to  

survive.  He had no intention to kill her.  Thus, the applicant  

cannot be punished for murder of the entire family.  It is also  

the contention of the appellant that the prosecution has not  

been able to prove its case beyond reasonable doubt.

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(ii) The imposition of extreme penalty of death was not called for  

in the facts and circumstances of the present case.  The  

incident even if, as stated by the prosecution, assumed to be  

correct, still it was an offence committed on extreme  

provocation and at the spur of the moment without any intent  

to kill any person.

9. Neither the death of three children nor that of his wife  

Aradhna is disputed and/or practically admitted by the appellant in  

his statement under Section 313 Cr.P.C.  He has also admitted that  

he had inflicted injuries on the person of the deceased Aradhna  

with a knife.  Only a part of his statement under Section 313  

Cr.P.C. does not corroborate the prosecution evidence.  According  

to the case of the prosecution, the appellant had inflicted injuries  

resulting in the death of three minor children and then he had  

poured the kerosene oil upon the deceased Aradhna as well as  

inflicted injury on her throat, whereas according to the appellant, it  

was the deceased Aradhna who had inflicted injuries upon their  

three minor children and poured kerosene on herself and thereafter  

set herself on fire.  

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10. It is a settled principle of law that the statement of an accused  

under Section 313 Cr.P.C. can be used as evidence against the  

accused, insofar as it supports the case of the prosecution.  Equally  

true is that the statement under Section 313 Cr.P.C. simplicitor  

normally cannot be made the basis for conviction of the accused.  

But where the statement of the accused under Section 313 Cr.P.C.  

is in line with the case of the prosecution, then certainly the heavy  

onus of proof on the prosecution is, to some extent, reduced.  We  

may refer to a recent judgment of this Court in the case of  

Ramnaresh & Ors. v. State of Chhattisgarh, (being pronounced  

today) wherein this Court held as under :

“In terms of Section 313 Cr.P.C., the accused  has the freedom to maintain silence during the  investigation as well as before the Court.  The  accused may choose to maintain silence or  complete denial even when his statement  under Section 313 Cr.P.C. is being recorded, of  course, the Court would be entitled to draw an  inference, including adverse inference, as may  be permissible to it in accordance with law.  Right to fair trial, presumption of innocence  unless proven guilty and proof by the  prosecution of its case beyond any reasonable  doubt are the fundamentals of our criminal  jurisprudence.  When we speak of prejudice to  an accused, it has to be shown that the  accused has suffered some disability or  detriment in relation to any of these  

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protections substantially.  Such prejudice  should also demonstrate that it has  occasioned failure of justice to the accused.  One of the other cardinal principles of criminal  justice administration is that the courts  should make a close examination to ascertain  whether there was really a failure of justice or  whether it is only a camouflage, as this  expression is perhaps too pliable.  [Ref. Rafiq  Ahmed @ Rafi v. State of Uttar Pradesh [(2011)  8 SCC 300].

It is a settled principle of law that the  obligation to put material evidence to the  accused under Section 313 Cr.P.C. is upon the  Court.  One of the main objects of recording of  a statement under this provision of the Cr.P.C.  is to give an opportunity to the accused to  explain the circumstances appearing against  him as well as to put forward his defence, if  the accused so desires.  But once he does not  avail this opportunity, then consequences in  law must follow.  Where the accused takes  benefit of this opportunity, then his statement  made under Section 313 Cr.P.C., in so far as it  supports the case of the prosecution, can be  used against him for rendering conviction.  Even under the latter, he faces the  consequences in law.”

11. Now, all that this Court is called upon to decide in the present  

case is that between the varying versions put forward by the  

prosecution and the accused which one is correct and has been  

proved in accordance with law.

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12. As we have already noticed in the narration of facts above that  

the FIR was recorded by Sub-Inspector Mohan Singh Maurya,  

PW16 based on the statement of the appellant itself, made in the  

Police Station. This cannot be treated, in law and in fact, as a  

confessional statement made by the accused and it would certainly  

attain its admissibility in evidence as an FIR recorded by the  

competent officer in accordance with law.

13. There is no doubt that there is no eye witness in this case  

despite the fact that it occurred in an LIG flat and obviously some  

people must be living around that flat.  However, to complete the  

chain of events and to prove the version given by the appellant in  

the FIR, it examined a number of witnesses.  PW2 is the brother-in-

law of the appellant and brother of the deceased Aradhna.  He  

clearly stated that Brajendrasingh had been married to Aradhna  

12-13 years before the date on which his statement was recorded  

and the couple had three children.  He was staying with his sister  

and on 27th February, 2005, he had been in the house of the  

accused during the day and in the evening he left for the house of  

his brother Kamla Singh who was staying at Joshipura whereafter  

he went to Sudarshan Factory near Dewas to work.  At about 2.30  12

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a.m. in the night, while he was in the factory, he received a phone  

call from the Police Station informing him that his sister, nephews  

and niece had been murdered.  He came back and went to the  

Police Station where he found Brajendrasingh, the accused was also  

present.   

14. PW3, Smt. Kamal Kunwar was examined to prove that the  

appellant was the tenant at a monthly rent of Rs.650/- and two  

rooms had been given to him on rent.  According to her, one  

Liladhar Tiwari had also been residing in one room in the same  

building on rent.

15. PW5, Shobhna is again the sister of the deceased Aradhna.  

Her statement was similar to that of PW2.  According to her,  

somebody from Vikas Nagar had come and told her that an  

altercation had taken place between Aradhna and the accused.  He  

asked her to go there.  After she reached near the house of the  

accused, she met two boys who told her that somebody had killed  

Aradhna and her three children.  Upon hearing this, she fell  

unconscious.  This witness was declared hostile and was subjected  

to cross-examination by the prosecution.  Witness PW7, Veerendra  

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Singh, who is the husband of PW5 and brother of the present  

appellant, also made a similar statement.  PW10, Liladhar Tiwari,  

was also examined and he stated that he was residing in the same  

building in one room.  When his children and wife used to go to  

village, he used to live alone in that room.  According to him, the  

Police had come to his house at about 2.00 O’clock in the night,  

knocked at his door and informed him about the murder.  He stated  

that wife of the accused used to inquire from him whenever he  

came late, “brother today you have come late”  and I used to reply  

that because of heavy work I was late.  PW12 is Dr. Shakir Ali who  

had performed post mortem examination upon the body of Aradhna  

and noticed various injuries on her body.  According to him, both  

the lungs were having less blood and two portions of the heart were  

empty of blood.  The upside down Carotid artery was incised.  The  

membrane of the intestines was healthy.  The liver, spleen and  

kidney all were blood less and all the injuries were ante mortem  

and fatal.  According to the doctor, the cause of death was shock  

which had resulted from excessive hemorrhage.  Post mortem upon  

the other dead bodies was also performed by this witness and the  

cause of death was common.  The incised wound of Lokesh was 1” x  

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½”  x 2”  below the jaw which resulted in excessive bleeding and  

death.  PW16 is the Sub-Inspector in the Police Station, Industrial  

Area, Dewas.  He, as already noticed, had recorded his statement at  

the Police Station and had conducted the investigation.  He had  

prepared the site plan and seized the knife Exhibit P12.  It is with  

the help of these witnesses that the prosecution has attempted to  

prove its case but the foundation of this case was laid on the basis  

of the information given by the appellant-accused himself.  The  

statements of these witnesses have to be examined in light of the  

FIR, Exhibit P27, as well as the statement of the accused made  

under Section 313 Cr.P.C.  But for Exhibit P27, it would have been  

difficult for the prosecution to demonstrate as to who was  

responsible for committing the murder of the three young children.  

To this extent, it is a case purely of circumstantial evidence.

16. There is no doubt that it is not a case of direct evidence but  

the conviction of the accused is founded on circumstantial  

evidence.  It is a settled principle of law that the prosecution has to  

satisfy certain conditions before a conviction based on  

circumstantial evidence can be sustained. The circumstances from  

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which the conclusion of guilt is to be drawn should be fully  

established and should also be consistent with only one hypothesis,  

i.e. the guilt of the accused. The circumstances should be  

conclusive and proved by the prosecution.  There must be a chain  

of events so complete so as not to leave any substantial doubt in  

the mind of the Court.  Irresistibly, the evidence should lead to the  

conclusion inconsistent with the innocence of the accused and the  

only possibility that the accused has committed the crime.   To put  

it simply, the circumstances forming the chain of events should be  

proved and they should cumulatively point towards the guilt of the  

accused alone.  In such circumstances, the inference of guilt can be  

justified only when all the incriminating facts and circumstances  

are found to be incompatible with the innocence of the accused or  

the guilt of any other person.  Furthermore, the rule which needs to  

be observed by the Court while dealing with the cases of  

circumstantial evidence is that the best evidence must be adduced  

which the nature of the case admits.  The circumstances have to be  

examined cumulatively.  The Court has to examine the complete  

chain of events and then see whether all the material facts sought  

to be established by the prosecution to bring home the guilt of the  

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accused, have been proved beyond reasonable doubt.  It has to be  

kept in mind that all these principles are based upon one basic  

cannon of our criminal jurisprudence that the accused is innocent  

till proven guilty and that the accused is entitled to a just and fair  

trial.  [Ref. Dhananajoy Chatterjee vs. State of W.B. [JT 1994 (1) SC  

33]; Shivu & Anr. v. R.G. High Court of Karnataka [(2007) 4 SCC  

713]; and Shivaji @ Dadya Shankar Alhat v. State of Maharashtra  

[(AIR 2009 SC 56].

17. It is a settled rule of law that in a case based on circumstantial  

evidence, the prosecution must establish the chain of events  

leading to the incident and the facts forming part of that chain  

should be proved beyond reasonable doubt.  They have to be of  

definite character and cannot be a mere possibility.

18. The circumstances in the present case, which have been  

proved, are that :

(1) The couple used to quarrel on the issue of deceased Aradhna  

speaking to Liladhar Tiwari even after the appellant having  

restrained her from doing so;

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(3) The injury on their necks just below the jaw was caused by a  

knife which was recovered and exhibited as article ‘L’  in  

accordance with law.

(4) It was mentioned in Doctor’s report that there were number of  

burn injuries on the body of Aradhna and the injuries on the  

throats of all the deceased.   The cause of death was common  

to all, i.e., excessive hemorrhage.

19. These circumstantial evidences read with the statements of  

the prosecution witnesses and the statement of the appellant  

himself prove one fact without doubt, i.e., the accused had certainly  

murdered his wife.  His stand is that since he believed that his wife  

may not survive the burn injuries, therefore, he killed her by  

inflicting the injury with knife on her throat similar to the one  

inflicted upon the throats of the three young children.  Thus, there  

is no escape for the appellant from conviction for the offence under  

Section 302 IPC vis-à-vis the murder of his wife Aradhna.

20. Now, coming to the death of the children, according to the  

prosecution, they had been murdered by the appellant while  

according to the appellant, they had been murdered by his wife  

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Aradhna.  One very abnormal conduct on the part of the appellant  

comes to light from the evidence on record that a father, seeing his  

wife killing his children, would certainly have prevented the death  

of at least two out of the three children.  He could have overpowered  

his wife and could even have prevented the murder of all the three  

children.  This abnormal conduct of the appellant renders his  

defence unbelievable and untrustworthy.  Upon appreciation of the  

evidence on record, we are more inclined to accept the story of the  

prosecution though it is primarily based on circumstantial evidence  

and there is no witness to give optical happening of events.  Once  

these circumstances have been proved and the irresistible  

conclusion points to the guilt of the accused, the accused has to be  

held guilty of the offences.  Normally, the injuries like the ones  

inflicted in the present case would not lead to instantaneous death.  

The excessive bleeding leading to death would be possible over a  

short period.  The injured would struggle before he succumbs to  

such injury.  As alleged by the accused, if the wife caused death of  

all the three children, he could have certainly prevented death of at  

least two of them.  When the deceased inflicted such severe injuries  

on the throat of the sleeping child, the child would have got up,  

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there would have been commotion and disturbance in the room  

which would have provided enough opportunity to the appellant to  

protect his other two children.  According to the prosecution, at  

that stage, none had suffered any injury.  This unnatural conduct  

of the accused in not making an effort to protect the children and  

exhibiting helplessness creates a serious doubt and renders the  

entire case put forward by the defence as unreliable and of no  

credence.  This abnormal conduct of exhibiting helplessness on the  

part of the appellant creates a serious doubt and entire case put  

forward by the defence loses its credibility.   

21. The cumulative effect of the prosecution evidence is that the  

accused persisted with commission of the crime despite availability  

of an opportunity to check himself from indulging in such heinous  

crime.  May be there was some provocation initially but nothing can  

justify his conduct. Whatever be the extent of his anger, revenge  

and temper, he still could have been kind to his own children and  

spared their life.  He is expected to have overcome his doubts about  

the conduct of his wife, for the larger benefit of his own children.  

Though the appellant had stated that he lost his mind and did not  

know what he was doing, this excuse is not worthy of credence.  20

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Admittedly, he was not ailing from any mental disorder or  

frustration.  He was a person who was earning his livelihood by  

working hard.   

22. Having appreciated the evidence on record, we have no  

hesitation in holding that the appellant is guilty of an offence under  

Section 302 IPC for murdering his wife and three minor children.  

He deserves to be punished accordingly.

23. Now, coming to the question of quantum of sentence, it is  

always appropriate for this Court to remind itself of the need for  

recording of special reasons, as contemplated under Section 354(3)  

Cr.P.C., where the Court proposes to award the extreme penalty of  

death to an accused.  This leads us to place on record the principles  

governing exercise of such discretion which have been stated in a  

very recent judgment of this Bench in the case of Ramnaresh  

(supra) wherein the Court, after considering the entire law on the  

subject, recapitulated and enunciated the aggravating and  

mitigating circumstances as well as the principles that should guide  

the judicial discretion of the Court in such cases.  This Court held  

as under :

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“The above judgments provide us with the  dicta of the Court relating to imposition of  death penalty.   Merely because a crime is  heinous per se may not be a sufficient reason  for the imposition of death penalty without  reference to the other factors and attendant  circumstances.    

Most of the heinous crimes under the IPC  are punishable by death penalty or life  imprisonment.   That by itself does not suggest  that in all such offences, penalty of death  should be awarded.    We must notice, even at  the cost of repetition, that in such cases  awarding of life imprisonment would be a rule,  while ‘death’  would be the exception.   The  term ‘rarest of rare case’  which is the  consistent determinative rule declared by this  Court, itself suggests that it has to be an  exceptional case.   The life of a particular  individual cannot be taken away except  according to the procedure established by law  and that is the constitutional mandate.   The  law contemplates recording of special reasons  and, therefore, the expression ‘special’  has to  be given a definite meaning and connotation.  ‘Special reasons’  in contra-distinction to  ‘reasons’  simplicitor conveys the legislative  mandate of putting a restriction on exercise of  judicial discretion by placing the requirement  of special reasons.   

Since, the later judgments of this Court  have added to the principles stated by this  Court in the case of Bachan Singh (supra) and  

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Machhi Singh (supra), it will be useful to re- state the stated principles while also bringing  them in consonance, with the recent  judgments.

The law enunciated by this Court in its  recent judgments, as already noticed, adds  and elaborates the principles that were stated  in the case of Bachan Singh (supra) and  thereafter, in the case of Machhi Singh (supra).  The aforesaid judgments, primarily dissect  these principles into two different  compartments –  one being the ‘aggravating  circumstances’  while the other being the  ‘mitigating circumstance’. The Court would  consider the cumulative effect of both these  aspects and normally, it may not be very  appropriate for the Court to decide the most  significant aspect of sentencing policy with  reference to one of the classes under any of the  following heads while completely ignoring  other classes under other heads.  To balance  the two is the primary duty of the Court.  It  will be appropriate for the Court to come to a  final conclusion upon balancing the exercise  that would help to administer the criminal  justice system better and provide an effective  and meaningful reasoning by the Court as  contemplated under Section 354(3) Cr.P.C.

Aggravating     Circumstances   :

1. The offences relating to the commission of  heinous crimes like murder, rape, armed  dacoity, kidnapping etc. by the accused with a  prior record of conviction for capital felony or  

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offences committed by the person having a  substantial history of serious assaults and  criminal convictions.  

2. The offence was committed while the  offender was engaged in the commission of  another serious offence.

3. The offence was committed with the  intention to create a fear psychosis in the  public at large and was committed in a public  place by a weapon or device which clearly  could be hazardous to the life of more than one  person.

4. The offence of murder was committed for  ransom or like offences to receive money or  monetary benefits.

5. Hired killings.

6. The offence was committed outrageously  for want only while involving inhumane  treatment and torture to the victim.  

7. The offence was committed by a person  while in lawful custody.

8. The murder or the offence was  committed, to prevent a person lawfully  carrying out his duty like arrest or custody in  a place of lawful confinement of himself or  another.  For instance, murder is of a person  who had acted in lawful discharge of his duty  under Section 43 Cr.P.C.

9. When the crime is enormous in  proportion like making an attempt of murder  of the entire family or members of a particular  community.

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10. When the victim is innocent, helpless or a  person relies upon the trust of relationship  

and social norms, like a child, helpless  woman, a daughter or a niece staying with a  father/uncle and is inflicted with the crime by  such a trusted person.

11. When murder is committed for a motive  which evidences total depravity and meanness.  

12. When there is a cold blooded murder  without provocation.  

13. The crime is committed so brutally that it  pricks or shocks not only the judicial  conscience but even the conscience of the  society.  

Mitigating     Circumstances   :

1. The manner and circumstances in and  under which the offence was committed, for  example, extreme mental or emotional  disturbance or extreme provocation in  contradistinction to all these situations in  normal course.   

2. The age of the accused is a relevant  consideration but not a determinative factor by  itself.  

3. The chances of the accused of not  indulging in commission of the crime again  and the probability of the accused being  reformed and rehabilitated.   

4. The condition of the accused shows that  he was mentally defective and the defect  impaired his capacity to appreciate the  circumstances of his criminal conduct.

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5. The circumstances which, in normal  course of life, would render such a behavior  possible and could have the effect of giving rise  to mental imbalance in that given situation  like persistent harassment or, in fact, leading  to such a peak of human behavior that, in the  facts and circumstances of the case, the  accused believed that he was morally justified  in committing the offence.  

6. Where the Court upon proper  appreciation of evidence is of the view that the  crime was not committed in a pre-ordained  manner and that the death resulted in the  course of commission of another crime and  that there was a possibility of it being  construed as consequences to the commission  of the primary crime.   

7. Where it is absolutely unsafe to rely upon  the testimony of a sole eye-witness though  prosecution has brought home the guilt of the  accused.

While determining the questions  relateable to sentencing policy, the Court has  to follow certain principles and those  principles are the loadstar besides the above  considerations in imposition or otherwise of  the death sentence.   

Principles :

1. The Court has to apply the test to  determine, if it was the ‘rarest of rare’ case for  imposition of a death sentence.

2. In the opinion of the Court, imposition of  any other punishment, i.e., life imprisonment  

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would be completely inadequate and would not  meet the ends of justice.

3. Life imprisonment is the rule and death  sentence is an exception.

4. The option to impose sentence of  imprisonment for life cannot be cautiously  exercised having regard to the nature and  circumstances of the crime and all relevant  circumstances.

5. The method (planned or otherwise) and  the manner (extent of brutality and  inhumanity, etc.) in which the crime was  committed and the circumstances leading to  commission of such heinous crime.

Stated broadly, these are the accepted  indicators for the exercise of judicial discretion  but it is always preferred not to fetter the  judicial discretion by attempting to make the  excessive enumeration, in one way or another.  In other words, these are the considerations  which may collectively or otherwise weigh in  the mind of the Court, while exercising its  jurisdiction.  It is difficult to state, it as an  absolute rule.  Every case has to be decided on  its own merits.  The judicial pronouncements,  can only state the precepts that may govern  the exercise of judicial discretion to a limited  extent.  Justice may be done on the facts of  each case.  These are the factors which the  Court may consider in its endeavour to do  complete justice between the parties.

The Court then would draw a balance- sheet of aggravating and mitigating  

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circumstances.  Both aspects have to be given  their respective weightage.  The Court has to  strike a balance between the two and see  towards which side the scale/balance of  justice tilts.  The principle of proportion  between the crime and the punishment is the  principle of ‘just deserts’ that serves as the  foundation of every criminal sentence that is  justifiable.  In other words, the ‘doctrine of  proportionality’  has a valuable application to  the sentencing policy under the Indian  criminal jurisprudence.  Thus, the court will  not only have to examine what is just but also  as to what the accused deserves keeping in  view the impact on the society at large.

Every punishment imposed is bound to  have its effect not only on the accused alone,  but also on the society as a whole.  Thus, the  Courts should consider retributive and  deterrent aspect of punishment while imposing  the extreme punishment of death.

Wherever, the offence which is  committed, manner in which it is committed,  its attendant circumstances and the motive  and status of the victim, undoubtedly brings  the case within the ambit of ‘rarest of rare’  cases and the Court finds that the imposition  of life imprisonment would be inflicting of  inadequate punishment, the Court may award  death penalty.  Wherever, the case falls in any  of the exceptions to the ‘rarest of rare’  cases,  the Court may exercise its judicial discretion  while imposing life imprisonment in place of  death sentence.”

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24. First and the foremost, this Court has not only to examine  

whether the instant case falls under the category of ‘rarest of rare’  

cases but also whether any other sentence, except death penalty,  

would be inadequate in the facts and circumstances of the present  

case.   

25. We have already held the appellant guilty of an offence under  

Section 302, IPC for committing the murder of his three children  

and the wife.  All this happened in the spur of moment, but, of  

course, the incident must have continued for a while, during which  

period the deceased Aradhna received burn injuries as well as the  

fatal injury on the throat.  All the three children received injuries  

with a knife similar to that of the deceased Aradhna.  But one  

circumstance which cannot be ignored by this Court is that the  

prosecution witnesses have clearly stated that there was a rift  

between the couple on account of her talking to Liladhar Tiwari, the  

neighbor, PW10.  Even if some credence is given to the statement  

made by the accused under Section 313 Cr.P.C. wherein he stated  

that he had seen the deceased and PW10 in a compromising  

position in the house of PW10, it also supports the allegation of the  

prosecution that there was rift between the husband and wife on  29

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account of PW10.  It is also clearly exhibited in the FIR (P27) that  

the accused had forbidden his wife from talking to PW10, which  

despite such warning she persisted with and, therefore, he had  

committed the murder of her wife along with the children.  It will be  

useful to refer to the conduct of the accused prior to, at the time of  

and subsequent to the commission of the crime.  Prior to the  

commission of the crime, none of the prosecution witnesses,  

including the immediate blood relations of the deceased, made any  

complaint about his behaviour or character. On the contrary, it is  

admitted that he used to prohibit Aradhna from speaking to PW10  

about which she really did not bother.  His conduct, either way, at  

the time of commission of the crime is unnatural and to some  

extent even unexpected.  However, subsequent to the commission of  

the crime, he was in such a mental state that he wanted to commit  

the suicide and even inflicted injuries to his own throat and also  

went to the bye-pass road with the intention of committing suicide,  

where he was stopped by PW4, Head Constable and taken to the  

Police Station wherein he lodged the FIR Exhibit P27.  In other  

words, he felt great remorse and was sorry for his acts.  He  

informed the Police correctly about what he had done.

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26. Still another mitigating circumstance is that as a result of the  

commission of the crime, the appellant himself is the greatest  

sufferer.  He has lost his children, whom he had brought up for  

years and also his wife.  Besides that, it was not a planned crime  

and also lacked motive.  It was a crime which had been committed  

out of suspicion and frustration.  The circumstances examined  

cumulatively would, to some extent, suggest the existence of a  

mental imbalance in the accused at the moment of committing the  

crime.  It cannot be conceived much less accepted by any stretch of  

imagination that the accused was justified in committing the crime  

as he claims to have believed at that moment.

27. Considering the above aspects, we are of the considered view  

that it is not a case which falls in the category of ‘rarest of rare’  

cases where imposition of death sentence is imperative.  It is also  

not a case where imposing any other sentence would not serve the  

ends of justice or would be entirely inadequate.   

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28. Once we draw the balance-sheet of aggravating and mitigating  

circumstances and examine them in the light of the facts and  

circumstances of the present case, we have no hesitation in coming  

to the conclusion that this is not a case where this Court ought to  

impose the extreme penalty of death upon the accused.   Therefore,  

while partially accepting the appeals only with regard to quantum of  

sentence, we commute the death sentence awarded to the accused  

to one of life imprisonment (21 years).

…………………………….,J. [A.K. Patnaik]

…………………………….,J. [Swatanter Kumar]

New Delhi; February 28, 2012  

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