NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1791-1795 OF 2014

CENTRAL BUREAU OF INVESTIGATION   

.....APPELLANT(S)

VERSUS

SAKRU  MAHAGU  BINJEWAR  AND  ORS. Etc. Etc.

.....RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 1802 OF 2014

AND

CRIMINAL APPEAL NO. 1801 OF 2014

ORDER

SURYA KANT, J.

This is a set of cross-appeals preferred by (i) Central Bureau of

Investigation (hereinafter  referred to as “CBI”),  and (ii)   the convicts

against the judgment dated 14th July, 2010 passed by the High Court of

Judicature at  Bombay,  Nagpur  Bench,  Nagpur  whereby five criminal

appeals have been decided by way of a common order.  While the CBI

is  aggrieved  by  the  commutation  of  death  sentence,  the  convicts

(hereinafter referred to as the ‘respondents–accused’  in the lead case)

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have questioned their conviction by the Special Court as affirmed   by

the High Court.

2) Firstly,  a  very  brief  reference  to  the  facts  may  be  made.

Bhaiyyalal  Sudam  Bhotmange was  residing  on  the  outskirts  of

Khairlanji Village called as ‘Toli’ with his wife Surekha, two sons, Sudhir

and Roshan and one daughter, Priyanka. They belong to Mahar caste

(Scheduled  Caste).  Siddharth  Gajbhiye  (PW-18)  of  nearby  Village

Dhusala was their family friend. Siddharth Gajbhiye came to the house

of Bhaiyyalal Sudam Bhotmange in the morning when Accused no. 2

(Sakru) met him and demanded back wages on account of which there

arose a dispute and Siddharth Gajbhiye slapped Sakru.  In the evening

when  Siddharth  Gajbhiye  was  proceeding  towards  Kandri,  he  was

assaulted by some villagers.  Upon hearing the news of the assault,

Surekha  Bhotmange  and  Priyanka  rushed  to  the  spot  and  brought

Siddharth Gajbhiye to their house.  After two days, Siddharth Gajbhiye

lodged a report at Andhalgaon Police Station pursuant to which Crime

No.  52/06  was  registered.   Surekha  Bhotmange  gave  a  statement

identifying the persons who had assaulted Siddharth Gajbhiye.  On the

basis  of  that  statement,  the  attackers  were  arrested.  They  were

released on bail on 29th September, 2006.

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3) On 29th September, 2006 itself, at about 6.00 pm to 6.30 pm, a

group of about 40 persons surrounded the house of Bhaiyyalal Sudam

Bhotmange with  some of them loudly implying that they were falsely

implicated  by  Surekha.   On  seeing  the  crowd,  Bhaiyyalal  Sudam

Bhotmange ran from the house whereas Surekha Bhotmange came out

of the house and set fire to her cattle shed probably to ward off the

attackers.  Then Surekha also tried to escape but she was chased and

caught by the accused.  She was assaulted with sticks, bicycle chains

and kicks and fists. Sudhir, son of Bhaiyyalal Sudam Bhotmange, tried

to run away but he too was caught and assaulted in the same manner

as his mother. His body was dragged near the body of Surekha who

had  already  died.   All  the  accused  then  searched  for  other  family

members of Bhaiyyala Sudam Bhotmange.  They traced Roshan in the

nearby cattle shed.  Roshan also tried to run away towards the hand

pump but was unfortunately caught and he was assaulted in a manner

alike his mother and brother.  The accused thereafter caught hold of

Priyanka  and  beat  her  in  the  same  fashion  as  described  above.

Roshan and Priyanka also met with the same fate and they too died at

the spot. The accused persons, thereafter, arranged for a bullock cart;

took all four dead bodies therein and threw them in a canal.

4) Bhaiyyalal Sudam Bhotmange, after running from his house, went

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to Dhusala and met Sidharth and narrated the incident.  Sidharth made

a  phone  call  to  Andhalgaon  Police  Station.  Thereafter,  Bhaiyyalal

Sudam Bhotmange,  accompanied  by  the  son  of  Siddharth,  went  to

Andhalgaon  Police  Station  but  did  not  lodge  any  report  as  he  was

totally frightened. On the next morning, Bhaiyyalal Sudam Bhotmange

went in search of his family members but could not trace them.  He

then went to Andhalgaon Police station and lodged the report.  By this

time, the police had received information that the dead body of a girl

with a tatoo mark ‘Priyanka’ on the hand was found in a canal which

was fished out.  Bhaiyyalal Sudam Bhotmange identified the dead body

of Priyanka. On the same day, a case under Sections 120B, 147, 148,

149, 302 and 201 of the Indian Penal Code (for short, “IPC”) read with

Section 3(1)(x) of the Act was registered.

5) The  Sub-Divisional  Police  Officer  arrested  about  eighteen

persons on suspicion on 1st October, 2006 and on that very day, three

more dead bodies of Surekha, Sudhir and Roshan Bhotmange were

also found. Since the investigation was not being carried out properly,

the State Government handed over the further probe to State C.I.D.

However, not much progress could be made by the State C.I.D. also,

hence  vide  Notification  dated  20th November,  2006,  the  State

Government requested Union of India to hand over the investigation of

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the case to the C.B.I. The investigation was thereafter taken over by

the CBI, who after recording statements of several witnesses including

statements under Section 164 of the Code of Criminal Procedure, 1973

(hereinafter  referred to as the ‘Code’),  sought discharge of  thirty six

suspects and also submitted Charge-Sheet against the eleven accused

for the offences punishable under Sections 147, 148, 149, 120B and

302 of the IPC and offences under the Act.

6) The Special Court at Bhandara held the respondents–accused guilty

of  committing  the  aforesaid  offences  and  awarded death  penalty  to

Accused nos. 2, 3 and 6 to 9 whereas Accused nos. 1 and 11 were

sentenced with life imprisonment and Accused nos.  4,  5 & 10 were

acquitted of all the offences. Accused nos. 1 to 3, 6 to 9 and 11 were

not  found  guilty  of  committing  any  offence  under  the  provisions  of

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act,

1989  (hereinafter  referred  to  as  the  “Act”).   The  aforementioned

judgment gave rise to five cross-appeals at the instance of CBI as well

as  the  convicts  besides  Reference  Case  No.  4  of  2008  for  the

confirmation of death sentence.

7) The High Court weighed the aggravating circumstances vis-a-vis

mitigating circumstances as summarised in paragraphs 45 and 45A of

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its judgment under appeal, and came to the conclusion that in the light

of  the tests laid down by this Court  in  Bachan Singh vs. State of

Punjab1 and Machhi Singh and Others vs. State of Punjab2, no case

of imposing death sentence on Accused Nos. 2, 3 and 6 to 9 was made

out for the reasons that (i) the incident did not take place on account of

caste stature but the root cause was that the accused felt  that they

were falsely implicated in the crime of  beating Sidharth Gajbhiye by

Surekha and Priyanka; (ii)   there is no evidence to suggest that the

accused have a criminal record.

8) The  High  Court,  thereafter  proceeded  to  hold  that  the  most

appropriate  sentence  to  be  inflicted  upon  the  respondents–accused

should be imprisonment for life with a condition that they shall not be

released before completing 25 years of actual imprisonment including

the period already undergone by them.

9) As regards the conviction of Accused nos. 1 to 3, 6 to 9 and 11

(who  are  in  cross-appeals),  the  High  Court  firstly  scrutinised  the

medical evidence and relying upon the statement of the Medical Officer,

Dr. Avinash John Shende (PW-14) who conducted post-mortem on the

dead bodies, it observed that the testimony of this witness could not be

1 (1980) 2 SCC684 2 (1983) 3 SCC470

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shaken  on  any  material  aspect  in  the  cross-examination.  The  High

Court thereafter held that all the four victims died homicidal death.  This

conclusion was further corroborated by the inquest panchnama of the

deceased persons.

10) The High Court then dissected the entire oral evidence, especially

the statements of five eye-witnesses.  The evidence of PW-2 (Mukesh

Pusam) and PW-3 (Suresh Khandate) was tested on the touchstone of

probabilities  whereupon  the  High  Court  held  that  their  statements

inspired confidence and established the role of accused Nos. 1 to 3, 6

to  9  and  11.   The  High  Court  also  found  the  version  of  PW-5

(Rashtrapal Narnavare), PW-18 (Siddharth Gajbhiye), PW-19 (Dinesh

Dhande)  and  PW-22  (Premlal  Walke)  worth  credible  and  fully

corroborative of the medical evidence to uphold the conviction of the

above-mentioned accused.  The High Court nevertheless disbelieved

PW-20 (Mahadeo Zanzad) and also did not deem it necessary to bank

upon the extra judicial confession allegedly made by Accused No. 2

(Sakru)  before  PW-10  (Anil  Lede)  and  by  Accused  No.  8  (Jagdish

Ratan Mandlekar) before PW-16 (Sunil Lede).

11) Consequently, the High Court upheld the conviction of Accused

Nos.  1 to 3,  6 to 9 and 11 though it  allowed in part  the appeal  of

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Accused Nos. 2,3 and 6 to 9 to the extent that their death sentence was

commuted to imprisonment for life with the condition that they shall not

be released before completing 25 years of actual imprisonment.

12) While the CBI has questioned the rejection of death reference by

the High Court in the lead case, the respondents–accused therein have

filed the cross-appeals assailing their conviction by the courts below.

13) The  following  questions,  thus,  fall  for  consideration  in  these

appeals:

(i) Whether  the  High  Court  was  justified  in  commuting  the

death  sentence  to  life  imprisonment  with  a  condition  that  the

respondents–accused  shall  have to undergo actual  sentence of  not

less than 25 years?

(ii) Whether the case in hand falls in the category of rarest of

the rare cases and the offence(s) committed are of the gravest nature,

such that no punishment less than the death sentence will suffice?  

(iii) Whether the conviction of appellants in the cross-appeals,

namely, the  respondents–accused in the main case is sustainable in

law?

14) We have heard learned counsel for the parties at a considerable

length on the questions formulated above and have also gone through

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the relevant record with their assistance.

15) The Constitution Bench of this Court in  Bachan Singh (supra),

while upholding the constitutional validity of death penalty for murder as

provided in Section 302 IPC and the sentencing procedure embodied in

Section  354(3)  of  the  Code,  also  elucidated  the  principles  to  be

adhered to by the courts in the matter of award of death sentence. This

Court emphatically expressed that the courts will discharge the onerous

function with evermore scrutiny  and care and will  be guided by the

legislative  policy  outlined  in  Section  354(3)  of  the  Code,  viz.,  for

persons convicted of murder, life imprisonment is the ‘rule’ and death

sentence an ‘exception’.  The court thus viewed that ‘a real and abiding

concern for the dignity of human life postulates resistance to taking a

life through law’s instrumentality.  That ought  to be done save in the

rarest  of  rare  case  when  the  alternative  option  is  unquestionably

foreclosed’.

16) In  Machhi Singh and others (supra), this Court  postulated the

following two questions to be considered as a test  to determine the

‘rarest of rare’ cases in which death sentence can be inflicted:

(a) Is  there  something  uncommon  about  the  crime  which

renders sentence of imprisonment for life inadequate and calls for

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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

in favour of the offender?

17) Machhi  Singh  and  others  (supra)  further summarised  the

guidelines  emanating  from  Bachan  Singh’s  (supra),  though  to  be

applied to the facts of each individual case and thus it ruled that:

“(i)  The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life  imprisonment  is  the  rule  and  death  sentence  is  an exception.  Death  sentence  must  be  imposed  only  when  life imprisonment appears to be an altogether inadequate punishment having  regard  to  the  relevant  circumstances  of  the  crime,  and provided,  and  only  provided,  the  option  to  impose  sentence  of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all  the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full  weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

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18) It  goes without saying that  the parameters evolved in  Bachan

Singh’s (supra) and Machhi Singh’s (supra) have been consistently

followed  by the Courts depending upon the facts and circumstances of

each case wherever the question of imposition of death sentence has

arisen.

19) On an indepth consideration of the facts and the circumstances in

which  the  ghastly  crime  of  taking  away  the  lives  of  four  innocent

persons took place, we find that the High Court was fully conscious of

the binding principles illustratively laid down by this Court in the cited

decisions and after carefully drawing the balance-sheet of ‘aggravating’

and  ‘mitigating’  circumstances,  the  High  Court  rightly  deemed  it

appropriate that the instant case does not fall amongst the exceptional

category  of  ‘rarest  of  the rare’ cases where  the  extreme penalty  of

death and death alone must be inflicted.

 20)  It  needs  no  elaborate  discussion  that  the  judicial  discretion

conferred  upon  a  Court  in  the  matter  of  awarding  sentence  is  an

onerous duty which has to be exercised keeping in view the settled and

binding dictates including the Doctrine of Proportionality for assigning

justifiable reasons to award death penalty  and also to keep in mind the

Doctrine  of  Reform  and  Rehabilitation.  [Ref:  Santosh  Kumar

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Satishbhushan Bariyar Vs. State of Maharashtra3].

21) We cannot  be oblivious of  the fact  that  the High Court  in  the

instant case was alive to the question of the adequacy of sentence and

has  not  commuted  the  death  sentence  into  life  imprisonment,  as

understood  in  the  ordinary  parlance  to  be  a  term  of  14  years

imprisonment only. The High Court,  following the evolution of a new

concept  of  sentencing  conceptualized  by  this  Court  in  Swamy

Shraddananda  (2)  Alias  Murali  Manohar  Mishra  vs.  State  of

Karnataka4 and several  other  previous decisions,  has held  that  the

respondents–accused shall  not  be released from prison unless they

complete 25 years of actual sentence.

22) This Court in  Swamy Shraddananda (2) (supra)  has held that

the  punishment  of  imprisonment  for  life   “means  a  sentence  of

imprisonment for the convict in the rest of his life”. It was explained that

Section 57 of  the IPC does not  in  any way limit  the punishment  of

imprisonment for life to a term of 20 years.  After explaining the true

import of Sections 432, 433 and 433A of the Code, the Court very aptly

explained the two aspects of sentencing. In a given case, the sentence

may  be  excessively  and  unduly  harsh  or  it  may  be  highly

3 (2009) 6 SCC 498 4 (2008) 13 SCC 767

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disproportionately inadequate where the Court comes to the conclusion

that the case falls short of the ‘rarest of the rare’ category and thus may

feel reluctant in endorsing the death sentence. It was thus viewed that

a far more just, reasonable and proper course would be to expand the

options and to take over, as a matter of fact what lawfully belongs to the

court,  namely,  the  formalization  of  ‘special  category’ of  sentence  of

more than 14 years’ actual imprisonment.

23) The doubts, if any, as regards to the powers of the High Court or

this Court  in awarding a ‘special  sentence’ as a substitute for  death

sentence, have been set at rest by the Constitution Bench in Union of

India Vs. V. Sriharan Alias Murugan and others5,  affirming the view

taken in Swamy Shraddananda (2) (supra)  and holding that:

“105. ...xx…...xx…….xx…. the power derived from the Penal Code  for  any  modified  punishment  within  the  punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal  only by the Supreme Court  and not by any other court in this country.  To put it differently, the power to impose a modified punishment providing for any specific term of  incarceration  or  till  the  end  of  the  convicts  life  as  an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court.

106. Viewed  in  that  respect,  we  state  that  the  ratio  laid down in Swamy Shraddananda (2)4 that a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission is well

5 (2016) 7 SCC 1

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founded and we answer the said question in the affirmative. We  are,  therefore,  not  in  agreement  with  the  opinion expressed by this Court in  Sangeet vs. State of Haryana that the deprival of remission power of the appropriate as not permissible  is  not  in  consonance  with  the  law  and  we specifically overrule the same.”

24) The recourse followed in the case in hand by the High Court in

substituting the death penalty by imposing the sentence for a term not

less than 25 years’ actual imprisonment has got the seal of approval of

this court in V. Sriharan (supra) case, which has been consistently and

continuously followed in a catena of later decisions also. [Ref. (i) Raju

Jagdish Paswan vs. The State of Maharashtra ; 2019 (1) SCALE

735; (ii)  Jagdish Vs. State of Madhya Pradesh; 2019(3) SCALE 888

&  (iii)  Sachin  Kumar  Singhraha  vs.  State  of  Madhya  Pradesh;

2019(5)SCALE 39]

25) The cited decisions have indeed more intuitive and persuasive

value in the instant case for the reason that the death sentence in those

cases  was  commuted  regardless  of  its  confirmation  by  the  High

Court(s). In the present case, the High Court itself did not find it a fit

case to affirm the death sentence. We, therefore, see no reason to take

a view different than the High Court.  Question Nos. (i) and (ii) stand

answered accordingly.

26) Adverting  to  the  cross-appeals  preferred  by  the  respondents–

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accused, their Learned Counsel strenuously urged that it is a fit case

for  extending  the  benefit  of  doubt  for:—(i)  the  statements  of  eye-

witnesses (PW-2,  PW-3,  PW-17,  PW-19 and PW-22)  do not  inspire

confidence and are full of material inconsistencies and contradictions;

(ii)  there has been inordinate and unexplained delay of 22-26 hours in

lodging the FIR by Bhaiyyalal Sudam Bhotmange (PW-17); (iii) there is

also an unexplained delay in recording the statements of witnesses,

especially the eye-witnesses which is fatal to the prosecution case; (iv)

the  medical   evidence  is   at  variance  with  the ocular  testimony,

hence no reliance can be placed on the statements of eye-witnesses;

and  that  (v)  the  prosecution  evidence  is  tainted  and  full  of

discrepancies.

27) Having pondered over the above summarized submissions, we

do not find any substance therein.  We say so for the reasons that Dr.

Avinash John Shende (PW-14) who conducted the post-mortem on the

dead bodies of the victims found multiple ‘external’ injuries sustained by

them as reproduced by the High Court in paragraphs 15 to 16C of the

impugned judgment.   All  those injuries  were ante-mortem and each

victim had suffered two or more injuries on vital parts of their respective

bodies.  All such injuries were found sufficient enough to have caused

death in the ordinary course of nature.

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On ‘internal’ examination of the dead bodies of the victims, PW-

14 found hemorrhage under the scalp in the cases of all the victims,

caused mostly due to head injuries. In the case of Surekha Bhotmange,

the medical evidence further suggested that some of the injuries were

caused  by  sharp  edged  weapons.  His  evidence  coupled  with  the

inquest  panchanama  (Exhibits  86,  87,  88  and  91),  unequivocally

establishes that all the four victims died a homicidal death.  

28) There is an eye-witness account consisting of statements of PW-

2, PW-3, PW-19, PW-20 and PW-22. Each one of them had witnessed

the  occurrence  and  identified  most  of  the  assailants.  They  also

elaborated as to how the four hapless victims were brutally killed with

premeditated  intent.  Both  the  courts  below  have  evaluated  the

statements  of  eye-witnesses  with  specific  reference  to  the  minor

discrepancies except that the High Court has declined to rely upon the

statement  of  Mahadeo  Zanzad  (PW-20),  and  rightly  so,  as  he  had

made a false statement to the Magistrate for which he was prosecuted

and convicted.   Even after  discarding the version of  this  witness in

entirety there is overwhelming oral evidence on record, the testimony

whereof could not be impeached in cross-examination, to establish the

guilt of the respondent–accused beyond any doubt. There is no reason

to falsely implicate the  respondents–accused, more so, when there is

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not  even  a  whisper  that  any  of  the  witnesses  had  an  axe  to  grind

against  the  convicts.   Similarly,  the  statement  of  Bhaiyyalal  Sudam

Bhotmange (PW-17) with respect to the motive of the crime cannot be

discarded  merely  because  he  is  the  husband  or  the  father  of  the

victims.  Relationship, per-se, is not a factor to affect the credibility of a

witness.

29) The delay of some hours in registration of the FIR has also been

convincingly  explained  by  the  complainant—Bhaiyyalal  Sudam

Bhotmange  (PW-17)  and  Siddharth  Gajbhiye  (PW-18).  Where  the

prosecution  has  satisfactorily  explained  the  cause  of  delay  in  the

registration of FIR, there is no rhyme or reason for a court to look at the

prosecution case with suspicious eyes. The plea of so-called delay in

recording the statements of the witnesses, is to be merely noticed and

rejected.  It has come on record that the investigation was not carried

out  properly  by  the  local  police,  therefore,  the  State  Government

handed over the case to the State CID. No effective progress could be

made by the State CID also, hence the investigation was entrusted to

CBI.  It is thereafter that the statements of several witnesses including

under  Section  164  of  the  Code  were  recorded.   The  long  drawn

process has caused no prejudice to the respondents–accused.

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30) There are concurrent  findings of  facts by the Special  Court as

well as the High Court holding Accused Nos. 1 to 3, 6 to 9 and 11 guilty.

Regardless  of  the  restrictive  scope  of  further  re-appraisal  and  re-

appreciation of the evidence, we have minutely scanned the ocular as

well as medical evidence and are of the firm view that there is no scope

of deviation from the well-reasoned conclusions drawn by the courts

below.  No interference by this Court is, thus, warranted.

31) In the light of the above scrutinous analysis, we do not find any

ground to interfere with the judgments under appeal. Consequently, the

appeals  preferred  by  the  CBI  as  well  as  the  convicts  are,  hereby,

dismissed.

………………………………………….. J.    (ARUN MISHRA)

…………………………………………… J. (BHUSHAN RAMKRISHNA GAVAI)

…………………………… J. (SURYA KANT)

NEW DELHI DATED :  24-05-2019

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