MOHINDER SINGH Vs STATE OF PUNJAB
Bench: P. SATHASIVAM,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-001278-001279 / 2010
Diary number: 16323 / 2009
Advocates: VISHNU SHARMA Vs
KULDIP SINGH
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1278-1279 OF 2010
Mohinder Singh .... Appellant(s)
Versus
State of Punjab .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) These appeals are filed against the common final
judgment and order dated 30.05.2008 passed by the High
Court of Punjab and Haryana at Chandigarh in Murder
Reference No. 8 of 2007 and Criminal Appeal No. 1033-DB of
2007 whereby the High Court accepted the murder reference
and confirmed the death sentence imposed on the appellant
herein by the Sessions Judge, Ludhiana by order dated
22.11.2007 in Session Case No. 32 of 2006 and dismissed
the appeal filed by him.
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2) Brief facts:
(a) According to the prosecution, on 08.01.2006, the
appellant-accused has committed murder of his wife-Veena
Verma and daughter-Geetu Verma in the background of
inimical relationship between them on account of criminal
cases registered against him by his wife for committing rape
on his minor daughter–Geetu Verma, for which he was
sentenced to rigorous imprisonment for 12 years, and for
attacking her after release on parole in January, 2005 for
which an FIR was registered against him.
(b) On the date of incident, i.e., 08.01.2006, at around 06:30
p.m., when Shalu Verma-the complainant, daughter of the
appellant-accused was present along with her mother-Veena
Verma and sister-Geetu Verma in their house at village
Partap Singh Wala, Haibowal, Ludhiana, at that time, the
appellant-accused, who was living separately in a rented
accommodation, came to the said place carrying a Kulhara
(axe) in his hand. The complainant informed her mother
about the same. When Veena Verma came to the lobby of
the house, the appellant-accused gave an axe blow on her
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head. She fell on the ground and, thereafter, he gave two
more blows using axe on her neck and hand. Immediately
after that, he stepped towards Geetu Verma and gave 3
repeated blows on her head. Both of them smeared with
blood and died on the spot. When he approached Shalu, she
went into the room and bolted the same from inside. The
appellant-accused fled away leaving the axe at the spot.
After sometime, she came outside the room and raised hue
and cry.
(c) On the basis of the statement of Shalu (PW-2), a First
Information Report (FIR) being No. 6 was registered against
the appellant-accused under Section 302 of the Indian Penal
Code, 1860 (in short “the IPC”) at P.S. Haibowal, Ludhiana.
On the same day, the appellant-accused was arrested from
his rented house and the case was committed to the Court of
Session, Ludhiana and numbered as Session Case No. 32 of
2006
(d) The Sessions Judge, Ludhiana, by order dated
22.11.2007, convicted the appellant under Section 302 of IPC
and sentenced him to death.
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(e) Against the said order, the appellant preferred an
appeal before the High Court and the State filed a reference
under Section 366 of the Code of Criminal Procedure, 1973
(in short ‘the Code’) for confirmation of death sentence. By a
common impugned order dated 30.05.2008, the High Court
while accepting the murder reference confirmed the death
reference imposed by the trial Court and dismissed the
appeal filed by the appellant-accused.
(f) Aggrieved by the said judgment, the appellant
preferred these appeals by way of special leave before this
Court.
(g) This Court, by order dated 20.07.2009, issued notice on
the special leave petitions confining to sentence only. Even
on 16.07.2010 when this Court granted leave, nothing has
been stated about the above said initial notice. Hence, in
these appeals, we are concerned about the quantum of
sentence imposed on the appellant.
3) Heard Mr. Tripurari Raj, learned counsel for the
appellant and Mr. V. Madhukar, learned Additional Advocate
General for the respondent-State.
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4) Though at the outset, learned counsel for the appellant
insisted us to go into the entire merits of the case including
the circumstances relied on by the prosecution and accepted
by the Courts below, in view of the fact that this Court has
issued notice confining to sentence only, we rejected his
plea.
5) We are conscious of the fact that in terms of Section
366(1) of the Code, when the Court of Session passes a
sentence of death, the proceedings shall be submitted to the
High Court, and the sentence shall not be executed unless it
is confirmed by the High Court. The scope and application of
the above section is only in cases where a sentence of death
has been passed by the Court of Session. The Court of
Session should refer the proceedings to the High Court and
the High Court can only deal with them as a Court of
reference. It is the practice of the High Court to be satisfied
on the facts as well as the law of the case, that the conviction
is right, before it proceeds to confirm that sentence. In other
words, the High Court has to come to its own independent
conclusion as to the guilt or innocence of the accused,
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independently of the opinion of the Judge. In a reference for
confirmation of death sentence, the High Court must
examine the entire evidence for itself independent of the
Session Court’s views. While confirming the capital
sentence, the High Court is under an obligation to itself
consider what sentence should be imposed and not be
content with the trial Court’s decision on the point unless
some reason is shown for reducing the same. Where, in
addition to an appeal filed by an accused sentenced to
death, the High Court has to dispose of the reference for
confirmation of death sentence under Section 366 of the
Code, the High Court, while dealing with reference, should
consider the proceedings in all its aspects and come to an
independent conclusion on the material on record apart from
the views expressed by the Sessions Judge. The confirmation
of death sentence cannot be based only on the precedents
and or aggravating facts and circumstances of any other
case.
6) Keeping the above principles in mind, let us analyze the
materials placed before the trial Judge as well as the
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confirmation order of the High Court. In view of the limited
notice and in the light of the mandates provided under
Section 366 of the Code relating to confirmation of death
sentence by the High Court, we are of the view that
considering two earlier orders passed by this Court on
20.07.2009 and 16.07.2010 confining to the sentence, we
intend to concentrate only to the question, namely,
acceptability or otherwise of the “sentence” hereunder.
7) No doubt, it is a case of double murder by the appellant-
accused who murdered his wife and daughter in a gruesome
manner in the background of inimical relationship between
the family on account of criminal cases registered against
the appellant-accused at the instance of his deceased wife –
Veena Verma and deceased daughter- Geetu Verma for
which he was sentenced to rigorous imprisonment for 12
years’ for committing rape on his daughter-Geetu Verma. In
that case his deceased wife was a witness. It is seen that
after release on parole in January, 2005, he attacked on his
wife and an FIR was registered against him for violating the
conditions of release. It is further seen that the accused
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committed the offence in the presence of his youngest
daughter Shalu (PW-2). It is also proved that the appellant
had entered the scene of occurrence to commit the said
offence carrying a deadly weapon i.e. ‘Kulhara’ (Axe) which
was used in the commission of both the killings. The
members present in the house were his family members,
viz., wife and two daughters.
8) We noticed the following special reasons given by the
trial Court for warranting the death sentence and the High
Court for confirming the same which are as follows:
i) The appellant-accused had earlier committed rape on
his deceased daughter – Geetu Verma in the year 1999 when
she was a minor after giving beatings and threat to her and
in that case his wife-Veena Verma (since deceased) was a
witness and that a case under Sections 376 and 506 IPC was
registered against him which finally resulted in rigorous
imprisonment for 12 years.
ii) While on parole in January 2005, the appellant-accused
having violated the conditions of release, attacked his wife-
Veena Verma and an FIR being No. 58 dated 06.04.2005 was
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registered against him under Sections 323, 324 and 506 IPC
which is pending in the Court of JMIC, Ludhiana on the date of
alleged occurrence.
iii) The appellant-accused entered into the house with a
deadly weapon ‘Kulhara’ (Axe) and caused unprovoked
brutal attacks on the victims.
iv) The appellant-accused caused repeated blows on the
vital parts of the body of his wife and daughter resulting in
instantaneous deaths in the presence of his youngest
daughter of tender age, who by running into a room and
bolting its from inside, saved herself when the accused
proceeded towards her.
v) The appellant-accused gave first blow to his wife – Veena
Verma from behind with Kulhara (axe) on her head and when
she fell down on the ground he caused successive blows on
her neck and the head and, thereafter, he attacked his
daughter–Geetu Verma and caused repeated Kulhara blows
till her death. Thereafter, he proceeded towards his
youngest daughter Shalu (PW-2) and showed Kulhara to her,
who ran into a room and bolted it from inside.
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vi) In the case of the deceased - Veena Verma, out of 4
incised wounds, Injury Nos. 1 & 2 were caused on head,
Injury No.3 on neck and Injury No. 4 resulted in partial
amputation of left index finger from 1/3rd with clean cut
margins. Regarding the deceased - Geetu Verma, who had
been earlier subjected to diabolical act of rape by the
appellant-accused during her minority in 1999, as many as 9
injuries were caused, out of which 7 were incised wounds and
2 were abrasions. Further, out of 7 incised wounds 3 had
been caused on head region itself, 1 on the left mastoid and
rest 3 on left and right elbow and fingers. In both the cases,
the victims died instantaneous death.
vii) Apart from taking revenge for his conviction and
sentence, the appellant-accused has committed the offence
for personal gain as he wanted the house, being occupied by
his deceased wife and children, to be vacated for his
personal use.
9) The crime of double murder of his wife and daughter in
a gruesome and diabolical manner will irrefutably be taken
into consideration as aggravating circumstance. However,
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for some reasons, the High Court did not find any mitigating
circumstance in favour of the accused for the purpose of
balancing aggravating against mitigating. Even, the High
Court recorded at page 38 of the impugned order as under:-
“… In this background, looking for a strong mitigating circumstance, may not yield any result and this offence has in fact, ceased to remain a simple case of murder. This has rather acquired an enormity to the extent of rushing into the category of the “rarest of rare case.”
It is pertinent to mention that in spite of the onerous duty
bestowed on the reference court to balance the aggravating
and mitigating circumstances, the High Court evaded the
same.
10) On the other hand, the Sessions Court had attempted to
draw a balance of aggravating and mitigating circumstances
by stating two mitigating circumstances as follows:
1. Firstly, his age at the time of commission of crime
i.e. 41 years.
2. Secondly, that the accused is a poor man, who had
no livelihood.
While it is true that the above two circumstances alone will
not make good for commuting the death sentence to life
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sentence, however, before we move on to enumerate the
other mitigating circumstances in this case, it is necessary to
consider few case laws which reiterate that brutality is not
the sole criterion of determining whether a case falls under
the “rarest of rare” categories.
11) In Panchhi & Ors. vs. State of U.P., (1998) 7 SCC
177, this Court held that brutality is not the sole criterion of
determining whether a case falls under the “rarest of rare”
categories, thereby justifying the commutation of a death
sentence to life imprisonment. This Court observed:
“No doubt brutality looms large in the murders in this case particularly of the old and also the tender age child. It may be that the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the “rarest of rare cases” as indicated in Bachan Singh’s case.”
12) The Constitution Bench of this Court, by a majority,
upheld the constitutional validity of death sentence in
Bachan Singh vs. State of Punjab, (1980) 2 SCC 684. This
Court took particular care to say that death sentence shall
not normally be awarded for the offence of murder and that
it must be confined to the “rarest of rare” cases when the
alternative option is foreclosed. In other words, the
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Constitution Bench did not find death sentence valid in all
cases except in the aforesaid cases wherein the lesser
sentence would be wholly inadequate.
13) In Machhi Singh and Ors. vs. State of Punjab,
(1983) 3 SCC 470, a three-Judge Bench of this Court while
following the ratio in Bachan Singh (supra) laid down
certain guidelines amongst which the following is relevant in
the present case:
“A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”
14) We have extracted the above reasons of the two courts
only to point out that, in a way, every murder is brutal, and
the difference between the one from the other may be on
account of mitigating or aggravating features surrounding
the murder.
15) In the instant case, as already mentioned, the accused
had earlier committed rape on his deceased daughter-Geetu
Verma in 1999 and in that case, his deceased wife - Veena
Verma was a witness wherein the accused was convicted
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under Sections 376 and 506 IPC and sentenced to RI for 12
years. It is also subsequently taken on record that his
deceased wife sent the accused out of his house and as a
consequence, he had to live separately in a rented house
with no means of livelihood. It was thirst for retaliation,
which became the motivating factor in this case. In no words
are we suggesting that the motive of the accused was
correct rather we feel it does not come within the category of
“rarest of rare” case to award death penalty.
16) The doctrine of “rarest of rare” confines two aspects
and when both the aspects are satisfied only then the death
penalty can be imposed. Firstly, the case must clearly fall
within the ambit of “rarest of rare” and secondly, when the
alternative option is unquestionably foreclosed. Bachan
Singh (supra) suggested selection of death punishment as
the penalty of last resort when, alternative punishment of life
imprisonment will be futile and serves no purpose.
17) In life sentence, there is a possibility of achieving
deterrence, rehabilitation and retribution in different
degrees. But the same does not hold true for the death
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penalty. It is unique in its absolute rejection of the potential
of convict to rehabilitate and reform. It extinguishes life and
thereby terminates the being, therefore, puts an end
anything to do with the life. This is the big difference
between two punishments. Thus, before imposing death
penalty, it is imperative to consider the same.
18) “Rarest of rare” dictum, as discussed above, hints at
this difference between death punishment and the
alternative punishment of life imprisonment. The relevant
question here would be to determine whether life
imprisonment as a punishment would be pointless and
completely devoid of any reason in the facts and
circumstances of the case. As discussed above, life
imprisonment can be said to be completely futile, only when
the sentencing aim of reformation can be said to be
unachievable. Therefore, for satisfying the second aspect to
the “rarest of rare” doctrine, the court will have to provide
clear evidence as to why the convict is not fit for any kind of
reformatory and rehabilitation scheme.
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19) Treating the case on the touchstone of the guidelines
laid down in Bachan Singh (supra), Machhi Singh
(supra) and other decisions and balancing the aggravating
and mitigating circumstances emerging from the evidence
on record, we are not persuaded to accept that the case can
appropriately be called the “rarest of rare” case warranting
death penalty. We also find it difficult to hold that the
appellant is such a dangerous person that sparing his life will
endanger the community. We are also not satisfied that the
circumstances of the crime are such that there is no other
alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances in favour of the accused. In our considered
view, this case is the one in which humanist approach must
be taken in the matter of awarding punishment.
20) It is well settled law that awarding of life sentence is a
rule and death is an exception. The application of the “rarest
of rare” case principle is dependant upon and differs from
case to case. However, the principles laid down and
reiterated in various decisions of this Court show that in a
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deliberately planned crime, executed meticulously in a
diabolic manner, exhibiting inhuman conduct in a ghastly
manner, touching the conscience of everyone and thereby
disturbing the moral fiber of the society, would call for
imposition of capital punishment in order to ensure that it
acts as a deterrent. While we are convinced that the case of
the prosecution based on the evidence adduced confirms the
commission of offence by the appellant, however, we are of
the considered opinion that still the case does not fall within
the four corners of the “rarest of rare” case.
21) Life imprisonment cannot be equivalent to imprisonment
for 14 years or 20 years or even 30 years, rather it always
means the whole natural life. This Court has always clarified
that the punishment of a fixed term of imprisonment so
awarded would be subject to any order passed in exercise of
clemency powers of the President of India or the Governor of
the State, as the case may be. Pardons, reprieves and
remissions under Article 72 or Article 161 of the Constitution
of India are granted in exercise of prerogative power. As
observed in State of Uttar Pradesh vs. Sanjay Kumar,
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(2012) 8 SCC 537, there is no scope of judicial review of such
orders except on very limited grounds such as the non-
application of mind while passing the order, non-
consideration of relevant material, or if the order suffers from
arbitrariness. The power to grant pardons and to commute
sentences is coupled with a duty to exercise the same fairly,
reasonably and in terms of restrictions imposed in several
provisions of the Code.
22) In order to check all arbitrary remissions, the Code itself
provides several conditions. Sub-sections (2) to (5) of
Section 432 of the Code lay down basic procedure for making
an application to the appropriate Government for suspension
or remission of sentence either by the convict or someone on
his behalf. We are of the view that exercise of power by the
appropriate Government under sub-section (1) of Section
432 of the Code cannot be suo motu for the simple reason
that this is only an enabling provision and the same would be
possible subject to fulfillment of certain conditions. Those
conditions are mentioned either in the Jail Manual or in
statutory rules. This Court in various decisions has held that
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the power of remission cannot be exercised arbitrarily. In
other words, the decision to grant remission has to be well
informed, reasonable and fair to all concerned. The statutory
procedure laid down in Section 432 of the Code itself
provides this check on the possible misuse of power by the
appropriate Government. As rightly observed by this Court
in Sangeet and Anr. vs. State of Haryana, 2012 (11)
Scale 140, there is misconception that a prisoner serving life
sentence has an indefeasible right to release on completion
of either 14 years or 20 years imprisonment. A convict
undergoing life imprisonment is expected to remain in
custody till the end of his life, subject to any remission
granted by the appropriate Government under Section 432 of
the Code which in turn is subject to the procedural checks
mentioned in the said provision and further substantive
check in Section 433-A of the Code.
23) One significant factor in this case, which we should not
loose sight of is that he did not harm his other daughter,
namely, Shallu (PW-2) even though he had a good chance for
the same. Further, it was highlighted that he being a poor
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man and unable to earn his livelihood since he was driven
out of his house by his deceased wife. It is also his claim that
if he was allowed to live in the house, he could easily meet
both his ends and means, as the money which he was
spending by paying rent would have been saved. It is his
further grievance that his deceased wife was adamant and
he should live outside and should not lead a happy married
life and that was the reason that their relations were
strained. This also shows that the accused was feeling
frustrated because of the attitude of his wife and children.
Moreover, the probability of the offender’s rehabilitation and
reformation is not foreclosed in this case. Likewise, we can
see from the affidavit filed by the sister of the accused that
his family has not totally renounced as yet. This is also clear
that pending the above appeals, the appellant-accused,
through his sister – Pramjit Kaur, filed an application for
modification of earlier orders of this Court dated 20.07.2009
and 16.07.2010 for widening the scope of the appeals and
sought permission to raise all available grounds. For this
application, only his sister – Pramjit Kaur has filed an affidavit
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strengthening the above points. As mentioned above, the
affidavit of his sister shows that his family has not totally
renounced him. Hence, there is a possibility for reformation
in the present appellant. Keeping in mind all these
materials, we do not think that the present case warrants the
award of the death penalty.
24) For the reasons aforementioned, we are of the opinion
that this is not a case where death penalty should be
imposed. The appellant-accused, therefore, instead of being
awarded death penalty, is sentenced to undergo rigorous
imprisonment for life, meaning thereby, the end of his life but
subject to any remission granted by the appropriate
Government satisfying the conditions prescribed in Section
432 of the Code and further substantiate check under
Section 433-A of the Code by passing appropriate speaking
orders. The appeals are disposed of on the above terms.
…………………..………….…………………………J. (P. SATHASIVAM)
..……………….………….………………………..…J. (FAKIR MOHAMED IBRAHIM KALIFULLA)
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NEW DELHI; JANUARY 28, 2013.
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).1278-1279 OF 2010
Mohinder Singh ….Appellant VERSUS
State of Punjab ….Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. I had the opportunity of reading the judgment of my
learned brother Justice P. Sathasivam who has dealt with the
issue in extenso while modifying the death sentence to one
of imprisonment for life i.e. till the end of his life. I only wish
to supplement my views while fully endorsing and concurring
with the judgment of His Lordship Justice P. Sathasivam.
Since, the facts have been elaborately stated in the
judgment of His Lordship Justice P. Sathasivam, I do not
refer the same in detail. For the purpose of my reasoning, in
toeing with the conclusion of His Lordship Justice P.
Sathasivam, I only wish to refer to certain factors to support
our conclusions.
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2. These appeals were entertained on 20.07.2009,
however, while issuing notice, the appeals were confined to
sentence only. The appellant was found guilty of the offence
under Section 302 IPC and was sentenced to death for
committing the murder of his wife Veena Verma and his
daughter Geetu Verma on 08.01.2006 in the area of Pratap
Singh Wala, Ludhiana. The above appeals arose out of the
confirmation of death sentence in Murder Reference
No.8/2007 as well as the connected Criminal Appeal
No.1033-DB of 2007 filed by the appellant.
3. It is necessary to state that the appellant indulged in
grotesque crime of murdering his wife and daughter one
after another on 08.01.2006. The motive for such a heinous
crime was that there was a dispute between him and his wife
Veena Verma as regards the house which he owned and that
he was deprived of having access to his own house. In fact it
was a matter of record that in the year 1999 there was an
FIR against the appellant in FIR No.27 wherein the appellant
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was charged for offences under Sections 376 and 506 IPC for
having committed rape on his deceased daughter Geetu
Verma which ended in a conviction of 12 years rigorous
imprisonment by judgment dated 15.05.2001. There was yet
another FIR No.58 dated 06.04.2005 against the appellant
for offences under Sections 323 and 506 IPC for having
assaulted and for having given threat to his wife Veena
Verma which was also proved as per Ex.PAA. There was yet
another record of criminal case No.2531 dated 01.08.2005
(FIR No.58 of 2005) again for offences under Sections 323
and 324 IPC which was pending in the Court of JMIC,
Ludhiana. In fact, the present offence of murder of his wife
and daughter was committed by the appellant when he was
on parole while undergoing rigorous imprisonment of 12
years for the conviction of the offence of rape of his daughter
committed in the year 1999. It was also relevant to keep in
mind that for holding the appellant guilty of the charge of
murder of his wife and daughter apart from the other
evidence, the evidence of his own minor daughter Shalu
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PW.2 who was an eye-witness to the occurrence weighed to
very great extent along with the evidence of his own son
Malkiat Singh PW.7.
4. The trial Court having noted the above factors held that
having regard to his involvement in various criminal cases in
the past as well as the gravity of the offence of murder of his
own wife and daughter, whom the appellant felt were
responsible for his conviction for the offence of rape
committed on his own minor daughter, took the view by
stating elaborate reasons as to why the case fell within the
principles of ‘rarest of rare cases’ for the award of death
sentence and inflicted the same on him.
5. The High Court after setting out the principles laid down
in the celebrated Constitution Bench decisions of this Court in
Bachan Singh Vs. State of Punjab – (1980) 2 SCC 684
and the subsequent judgment in Machhi Singh and others
Vs. State of Punjab – (1983) 3 SCC 470 held that the
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murder reference deserved to be accepted and the death
sentence was, therefore, confirmed. The Division Bench of
the High Court took into account the circumstances which
are to be kept in mind for applying the ‘rarest of the rare
case’ theory based on the above referred two decisions and
noted the same as under:
“I. Manner of commission of murder.
II. Motive for commission of murder.
Anti-social or socially abhorrent nature of the crime.
Magnitude of crime
Personality of victim of murder.”
6. The High Court has also noted the injuries found on the
body of the deceased insofar as it related to Veena Verma,
the wife of the appellant, who suffered four incised wounds of
which injury No. 1 was on the right lateral side and upper
part of the neck and injury No.2 was on the head, third one
was on the neck and fourth one resulted in partial
amputation of left index finger from its lower one-third with
clean cut margins. As far as the deceased daughter Geetu
Verma is concerned, there were as many as nine injuries out
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of which seven were incised wounds and two were abrasions.
Out of the seven incised wounds three were caused on the
head region itself, fourth was on the left mastoid and the
remaining three were on left and right elbow and fingers.
Both the victims had instantaneous death. The basic
grievance of the appellant was nothing but his desire to
occupy his house which was occupied by none else than his
own wife, daughters and son.
7. By noting the special reasons, the Division Bench held
that the conduct of the appellant in causing the murder of his
wife and daughter acquired enormity to the extent that the
case was fully governed by the principle of ‘rarest of rare
cases’ and ultimately held that the imposition of death
sentence by the trial Court was fully justified.
8. In this context we analyzed the various principles laid
down in the subsequent decisions reported in Swamy
Shraddananda @ Murali Manohar Mishra Vs. State of
Karnataka - (2008) 13 SCC 767, Santosh Kumar
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Satishbhushan Bariyar Vs. State of Maharashtra -
(2009) 6 SCC 498, Mohd. Farooq Abdul Gafur & Anr. Vs.
State of Maharashtra -(2010) 14 SCC 641, Haresh
Mohandas Rajput Vs. State of Maharashtra -(2011) 12
SCC 56, State of Maharashtra Vs. Goraksha Ambaji
Adsul - AIR 2011 SC 2689 and the recent decision reported
in Mohammed Ajmal Mohammadamir Kasab @ Abu
Mujahid Vs. State of Maharashtra - JT 2012 (8) SC 4.
From conspectus consideration of the above decisions apart
from the four principles laid down in Bachan Singh (supra)
and also the requirement of a balance sheet of aggravating
and mitigating circumstances, the following principles are
required to be borne in mind:
(i) A conclusion as to the ‘rarest of rare’
aspect with respect to a matter shall
entail identification of aggravating and
mitigating circumstances relating both to
the crime and the criminal.
(ii) The expression ‘special reasons’
obviously means (‘exceptional reasons’)
founded on the exceptionally grave
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circumstances of the particular case
relating to the crime as well as the
criminal.
(iii) The decision in Ravji @ Ram Chandra
Vs. State of Rajasthan – (1996) 2 SCC
175 which was subsequently followed in
six other cases, namely, Shivaji @
Dadya Shankar Alhat Vs. State of
Maharashtra - (2008) 15 SCC 269,
Mohan Anna Chavan Vs. State of
Maharashtra - (2008) 7 SCC 561,
Bantu Vs. State of Uttar Pradesh -
(2008) 11 SCC 113, Surja Ram Vs.
State of Rajasthan -(1996) 6 SCC 271,
Dayanidhi Bisoi Vs. State of Orissa -
(2003) 9 SCC 310 and State of Uttar
Pradesh Vs. Sattan @ Satyendra &
Ors. - (2009) 4 SCC 736 wherein it was
held that it is only characteristics
relating to crime, to the exclusion of the
ones relating to criminal, which are
relevant to sentencing in criminal trial,
was rendered per incuriam qua Bachan
Singh (supra) in the decision reported
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in Santosh Kumar Satishbhushan
Bariyar (supra) at 529.
(iv) Public opinion is difficult to fit in the
‘rarest of rare’ matrix. People’s
perception of crime is neither an
objective circumstance relating to crime
nor to the criminal. Perception of public
is extraneous to conviction as also
sentencing, at least in capital sentencing
according to the mandate of Bachan
Singh (supra). (2009) 6 SCC 498 at
p.535.
(v) Capital sentencing is one such field
where the safeguards continuously take
strength from the Constitution.
(2009) 6 SCC 498 at 539.
(vi) The Apex Court as the final reviewing
authority has a far more serious and
intensive duty to discharge and the
Court not only has to ensure that award
of death penalty does not become a
perfunctory exercise of discretion under
Section 302 after an ostensible
consideration of ‘rarest of rare’ doctrine,
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but also that the decision-making
process survives the special rigours of
procedural justice applicable in this
regard. (2010) 14 SCC 641 at 692.
(vii) The ‘rarest of rare’ case comes when a
convict would be a menace and threat to
the harmonious and peaceful
coexistence of the society. The crime
may be heinous or brutal but may not be
in the category of “the rarest of the rare
case”. There must be no reason to
believe that the accused cannot be
reformed or rehabilitated and that he is
likely to continue criminal acts of
violence as would constitute a continuing
threat to the society. 2011 (12) SCC 56
at p.63 para 20.
(viii) Life sentence is the rule and the
death penalty is the exception. The
condition of providing special reasons for
awarding death penalty is not to be
construed linguistically but it is to satisfy
the basic features of a reasoning
supporting and making award of death
penalty unquestionable.
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(ix) The
circumstances and the manner of committing
the crime should be such that it pricks the
judicial conscience of the Court to the extent
that the only and inevitable conclusion should be
awarding of death penalty.(AIR 2011 SC 2689)
(x) When the case falls
under the category of ‘rarest of rare’ case
penalty of death is clearly called for and any
leniency shown in the matter of sentence would
not only be misplaced but will certainly give rise
to and foster a feeling of private revenge among
the people leading to destabilization of the
society.(AIR 1983 SC 585)
(xi) Death penalty
has been held to be constitutionally valid. The
test is what case would attract death penalty if
not the case of the appellant. JT (2012) 8 SC 4.
9. Keeping the above settled principles in mind, when we
examine the case on hand, it is needless to state that the
conduct of the appellant, if analyzed, based on the previous
crimes committed by him, we find that in the year 1999 as
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found by the courts below the appellant committed rape on
his deceased daughter Geetu Verma when she was minor
and that too after beating her. To which beastly action,
unfortunately the other deceased (viz) his wife, was an eye-
witness. One cannot comprehend to visualize a situation of
such nature in which father himself committed rape on his
own minor daughter in the presence of her own mother. The
conduct of the appellant in the commission of the said
offence was not only bordering on immorality of the highest
order but would be extremely difficult for anyone to lightly
brush aside such a conduct by stating that either it was
committed in a fit of anger or rage or such other similar
situation. If such grotesque offence of rape had been
committed by anyone, other than the father himself, the
victim would have had every opportunity to cry for solace in
her father or mother. In this context, we are only reminded
of the Tamil proverb “ேவலிேய பயிைர ேமயநத கைத” which means
in English “When the fence eats the crops”. When the
father himself happens to be the assailant in the commission
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of such beastly crime, one can visualize the pathetic situation
in which the girl would have been placed and that too when
such a shameless act was committed in the presence of her
own mother. When the daughter and the mother were able
to get their grievances redressed by getting the appellant
convicted for the said offence of rape one would have in the
normal course expected the appellant to have displayed a
conduct of remorse. Unfortunately, the subsequent conduct
of the appellant when he was on parole disclosed that he
approached the victims in a far more vengeful manner by
assaulting the hapless victims which resulted in filing of an
FIR once in the year 2005 and subsequently when he was on
parole in the year 2006. The monstrous mindset of the
appellant appears to have not subsided by mere assault on
the victims who ultimately displayed his extreme inhuman
behaviour by eliminating his daughter and wife in such a
gruesome manner in which he committed the murder by
inflicting the injuries on the vital parts of the body of the
deceased and that too with all vengeance at his command in
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order to ensure that they met with instantaneous death. The
nature of injuries as described in the postmortem report
speaks for itself as to the vengeance with which the appellant
attacked the hapless victims. He was not even prepared to
spare his younger daughter (viz) PW-2 who, however,
escaped the wrath of the appellant by bolting herself inside a
room after she witnessed the grotesque manner in which the
appellant took away the life of his wife and daughter.
10. Be that as it may when we come to the question of
applying the various principles culled out from the decisions
right from the Constitution Bench decision in Bachan Singh
(supra) right up to the case Mohammed Ajmal
Mohammadamir Kasab (supra) as held by my learned
brother Justice P. Sathasivam for the various reasons
referred to therein, we find that the case still does not fall
within the category of ‘rarest of rare case’ though it calls for
a stringent punishment. Therefore, while modifying the
sentence from one of death penalty to that of life
imprisonment till the end of his life we apply the earliest
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decision of this Court reported in Gopal Vinayak Godse Vs.
State of Maharashtra & Ors. - AIR 1961 SC 600 wherein
this Court held in paragraph 5 as under:
“It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes; nor does the amended section which substitutes the words ‘imprisonment for life’ for ‘transportation for life’ enable the drawing of any such all-embracing fiction. A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life.”
11. The said principle was followed subsequently in Mohd.
Munna Vs. Union of India and Ors. - (2005) 7 SCC 417.
Applying the above decisions, we have no hesitation in
holding that the appellant deserves to be sentenced to
undergo rigorous imprisonment for life meaning thereby the
end of his life subject, however, to remission granted by the
appropriate Government satisfying the conditions prescribed
in Section 432 of the Code of Criminal Procedure and further
substantiate check under Section 433A of the Code by
passing appropriate speaking orders.
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…………………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi; January 28, 2013
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