Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1333-1334 OF 2010  

Sonu Sardar                                         …… Appellant

Versus

State of Chhattisgarh                                  …… Respondent

J U D G M E N T

A. K. PATNAIK, J.

These  are  appeals  against  the  judgment  of  the  High  

Court  of  Chhattisgarh in Criminal  Reference No.1 of  2008  

and  Criminal  Appeal  No.  240  of  2008  confirming  the  

conviction of the appellant and the death penalty imposed on  

him under Section 396 of the Indian Penal Code (for short  

‘IPC’).

2. The prosecution case very briefly is that on 26.11.2004,  

Shamim Akhtar (for short ‘Shamim’),  a scrap dealer and a  

resident  of  village  Cher,  Distt.  Baikunthpur,  Chhattisgarh,  

had gone to Raipur for selling scrap.  He sold the scrap and  

received cash of  Rs.1,70,000/-  and returned  to  his  house

with  the  cash.   His  wife,  Ruksana  Bibi,  kept  the  cash in  

different places of her house, which was to be deposited in  

the bank the next day.  At about 6.00 p.m. on 26.11.2004,  

Sonu Sardar, the appellant herein, and Ajay Singh @ Fotu  

along with three other persons came with scrap to the shop  

of  Shamim and  left  after  selling  scrap  for  Rs.480/-.   The  

appellant and Ajay Singh and three other persons, however,  

returned at about 7.00 p.m. on the same day and knocked  

on the door of the house of Shamim.  When the door was  

opened,  the  appellant  and  Ajay  Singh  and  three  other  

persons demanded money from Shamim.  One of these five  

persons  then  bolted  the  door  from  inside  and  two  other  

persons caught hold of Asgar Ali, driver of Shamim, and one  

of them caught hold of Shamim.  They kept a knife on the  

neck of Shamim and compelled him to give cash which he  

was  having  in  his  pocket.   Shabana  Khatun  (for  short  

‘Shabana’), the daughter of Shamim, who was present inside,  

tried to fight but an attempt was made by the appellant and  

his people to assault her and she somehow escaped through  

the back door and went to the house of Ramlal, a kilometer  

away  from the  house  of  Shamim.    Shabana  told  Ramlal  

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about the incident at her house and when Ramlal wanted to  

go to their house, Shabana asked him not to go because she  

was afraid that Sonu Sardar and others may kill him.  That  

night  Shabana  stayed  at  the  house  of  Ramlal  and  next  

morning at about 4-5 a.m.,  Shabana,  Ramlal  and his wife  

Dhanpatbai  came to the house of  Shamim and found that  

Yakut and Asna, 3 years old son and 5 years old daughter of  

Shamim,  were  crying  near  the  dead  bodies  of  Shamim,  

Ruksana Bibi, Yakub and Kumari Rana, 7 years old son and  

9  years  old  daughter  of  Shamim.   Shabana  then went  to  

Baikunthpur and narrated the incident to her uncle Nasim  

Akhtar,  who  reported  the  matter  the  Police.   The  Police  

reached the spot and the FIR was lodged.  The dead bodies  

were  sent  for  autopsy  to  the  Community  Health  Centre,  

Baikunthpur, and a team led by Dr. Ashok Kumar carried  

out  the  post  mortem.  In  course  of  investigation,  the  

Investigating Officer recorded statements of several persons  

under  Section  161,  Cr.P.C.   The  appellant  and  his  co-

accused, Ajay and Chhoti Bai, were arrested but the other  

persons absconded after commission of crime.  Blood-stained  

T-shirt and turban of the appellant and an axe with broken  

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handle,  a rod and a knife were seized.  Test Identification  

Parade  was  carried  out  on  01.12.2004  in  which  Shabana  

identified  the  appellant  as  well  as  Ajay  as  two  of  the  five  

persons  who  had  come  to  the  house  of  Shamim  on  

26.11.2004 and were demanding money.  The seized articles  

were sent to the Forensic Science Laboratory, Raipur.  After  

completion  of  investigation,  a  chargesheet  was  filed  and  

Sessions Trial  No.06/2006 was conducted by the Sessions  

Judge, Koriya, Baikunthpur (Chhattisgarh).        

3. In  course  of  the  trial,  the  prosecution  examined  38  

witnesses.   Shabana  was  examined  as  PW-1,  Ramlal  was  

examined as PW-2, Nasim Akhtar was examined as PW-3 and  

Dhanpatbai was examined as PW-4.  Dr. Ashok Kumar was  

examined  as  PW-36  and  the  Investigating  Officer  was  

examined as PW-37.  A large number of documents and the  

seized articles were also exhibited.  The trial court recorded  

the statements of the appellant under Section 313, Cr. P.C.  

After hearing the arguments, the trial court held that it was  

clear from the evidence of PW-1, PW-2, PW-3 and PW-4 that  

the  appellant  had  committed  the  dacoity  at  the  house  of  

Shamim between 7.00 p.m. of 26.11.2004 and 4.00 a.m. of  

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27.11.2004  and  thereafter  committed  murder  of  Shamim,  

Asgar,  Ruksana  Bibi,  Yakub  and  Kumari  Rana  with  rod,  

knife  and axe  and that  the  prosecution had succeeded in  

establishing  the  guilt  of  the  appellant  under  Section  396,  

IPC, beyond reasonable doubt.  After hearing counsel for the  

parties on the question of sentence, the trial court also held  

that the case falls in the category of rarest of rare cases and  

imposed  the  sentence  of  death  on  the  appellant.   By  the  

impugned  judgment,  the  High  Court  has  confirmed  the  

conviction of the appellant under Section 396, IPC, and also  

the sentence of death.   

4. Learned counsel  for  the  appellant  submitted that  the  

appellant  had  been  convicted  on  the  sole  testimony  of  

Shabana (PW-1), a ten years old child who could not have  

identified  the  appellant  as  one  of  the  five  persons  who  

committed  the  dacoity  and  murder  on  the  night  of  

26.11.2004.   She  submitted  that  it  is  on  the  information  

received from PW-1 that PW-3 had lodged the FIR, but in the  

FIR the appellant has not been named.  She argued that had  

PW-1 known the appellant,  she would have told PW-3 the  

name of the appellant and PW-3 would have mentioned the  

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name of the appellant in the FIR.  She submitted that it will  

therefore not be safe for this Court to sustain the conviction  

of the appellant.  

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

submitted that although PW-1 is a minor, her evidence was  

reliable and she had stood the test of cross-examination.  He  

further submitted that PW-1 narrated the incident not only  

to PW-3, but also to PW-2 and PW-4 and the evidence of PW-

2 and PW-4 would show that PW-1 had clearly mentioned  

that out of the five persons, who had committed the dacoity  

and murder on the night of 26.11.2004, there was a sardar.  

He  further  submitted  that  PW-1  has  also  stated  in  her  

evidence that the appellant had gone to her father’s shop 5 to  

6 times before the 26.11.2004 to sell scrap and hence she  

could  identify  him  as  one  of  the  five  persons  who  had  

committed  the  dacoity  and  murder  on  the  night  of  

26.11.2004.  Moreover, at the time of the Test Identification  

Parade conducted by the Magistrate (PW-11), PW-1 identified  

the appellant as one of the five persons, who had come to the  

house  of  Shamim  on  26.11.2004  and  were  demanding  

money.   He submitted that  the evidence of  PW-1 that  the  

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appellant  participated  in  the  dacoity  and  murder  on  

26.11.2004 is corroborated by the recovery of  the iron rod  

and axe on the statement of the appellant and by the fact  

that  the  seized  T-shirt  and  turban  of  the  appellant  were  

blood-stained.  

6. We have considered the submissions of learned counsel  

for the parties and we find that during investigation a Test  

Identification Parade was carried out on 01.12.2004 and out  

of  the ten persons who were presented,  the  appellant  and  

Ajay  Singh  @  Fotu  were  identified  by  PW-1  as  the  two  

persons, who were amongst the five persons who had come to  

the house of Shamim and were demanding money from him.  

From the evidence of PW-2 as well as the evidence of PW-4,  

we find that PW-1, soon after she escaped from the house of  

Shamim, has mentioned that one of the five persons who had  

gone to the house of Shamim was a  sardar.  In her cross-

examination, PW-1 has stated that she knew the appellant as  

he had come to their house for selling scrap.  Moreover, the  

broken axe with broken handle and iron rod (Ext. P.24) were  

recovered pursuant to the statement of  the appellant  (Ext.  

P.16).  PW-36, Dr. Ashok Kumar, after narrating the injuries  

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on  the  dead  bodies  of  Shamim,  Asgar  Ali,  Ruksana  Bibi,  

Yakub and Kumari Rana, has opined that the death has been  

on account of shock as a result of fatal injuries.  The injuries  

described by them are not only incised wounds but multiple  

fractures of  temporal  and parietal  bones and on the  head  

which could have been caused by the axe and the iron rod.  

The  report  of  the  Forensic  Science  Laboratory  (Ext.P.61)  

confirms  presence  of  human  blood  on  the  clothes  of  the  

deceased persons,  axe and iron rod (Ext. P.24) as well as the  

turban and T-shirt  of  the  appellant  (Ext.  P.37)  which had  

been seized.  Thus, the conviction of the appellant is not only  

based on the oral testimony of PW-1, but also the evidence of  

PW-2, PW-3, PW-4, PW-36, the seized articles and also the  

report  of  the  Forensic  Science  Laboratory.   It  is  further  

established from the evidence of PW-1 and the Panchanama  

of the house of Shamim made on 28.11.2004 that only cash  

of Rs.65,760/- was available and the remaining cash out of  

Rs.1,70,000/-  was  missing.   The  prosecution  has,  in  our  

considered opinion, proved beyond reasonable doubt that the  

appellant participated in the offence of dacoity and murder  

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and has been rightly convicted for the offence under Section  

396, IPC.

7. On the  question of  sentence,  learned counsel  for  the  

appellant submitted that this Court has held in Ramesh and  

others v. State of Rajasthan [(2011) 3 SCC 685] that before  

awarding death sentence, the trial court was expected to give  

elaborate reasons.  She submitted that the reasons given by  

the trial court for awarding death sentence on the appellant  

were  not  elaborate.   She  submitted  that  in  Ramesh  and  

others v. State  of Rajasthan (supra) this Court did not find  

clear  evidence  as  to  which  of  the  three  persons  who  

participated  in  the  crime  was  the  actual  author  of  the  

injuries on Ramlal  and Shanti  Devi  and held that  as it  is  

difficult  to  say  that  Ramesh alone  was  the  author  of  the  

injuries on Ramlal  as well  as Shanti  Devi,  death sentence  

awarded to Ramesh should be modified to life imprisonment.  

She submitted that in the present case also five persons have  

committed the offence under Section 396, IPC, and as the  

actual role of the appellant in the offence is not known the  

death sentence should be modified to life imprisonment.

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

submitted that the appellant has participated in the offence  

under  Section  396,  IPC,  and  as  many  as  five  innocent  

persons, including two children, have lost their lives and the  

trial  court has given sufficient  reasons for  awarding death  

sentence to the appellant.  He cited the decision of this Court  

in Sushil Murmu v. State of Jharkhand [(2004) 2 SCC 338] for  

the proposition that the punishment should be proportionate  

to the crime committed by the accused.  He submitted that in  

the facts of the present case, since the crime was heinous in  

nature  and  resulted  in  the  death  of  five  persons,  death  

sentence would be proportionate to the crime committed by  

the appellant.  He also relied on Atbir v.  Government of NCT  

of  Delhi [(2010)  9  SCC  1]  in  which  this  Court  held  that  

preventing persons in the house to escape and committing  

brutal murder of as many as three persons inside the house  

are  aggravating  circumstances  warranting  imposition  of  

death sentence on the accused.  He submitted that in the  

present case also, as the appellant had closed and bolted the  

door to prevent an escape of any person from the house, and  

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had then brutally murdered as many as five persons, death  

sentence should be imposed on the appellant.

9. We  have  considered  the  submissions  of  the  learned  

counsel for the parties and we find that the trial court has  

recorded the following special reasons under Section 354 (3)  

of the Criminal Procedure Code, 1898 for awarding the death  

sentence on the appellant:

(i) The crime was pre-meditated.

(ii) The crime has struck fear and terror in the public  mind.

(iii) Helpless  and  defenceless  women  and  two  minor  children aged eight  and four years besides two adult  men  were murdered.

(iv) Asgar  Ali,  the  driver  of  Shamim,  who  had  only  stopped in the house for his food, was also not spared.

(v) Taking advantage of  earlier  business relations with  Shamim, the appellant made a friendly entry and committed  the murders.

(vi) The intention was to kill  all  members of  the family  though surprisingly a six month old baby and a four year old  child remained alive.

(vii) The five murders were brutal, grotesque, diabolical,  revolting  and dastardly,  which  indicated the  criminality  of  the perpetrators of the crime.

(viii) No physical or financial harm appears to have been  caused by the deceased to the accused.

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As against these aggravating circumstances, the trial court  

did  not  find  any  mitigating  circumstance  in  favour  of  the  

appellant to avoid the death penalty.  This is, therefore, not  

one of those cases in which the trial court has not recorded  

elaborate  reasons  for  awarding  death  sentence  to  the  

appellant as contended by learned counsel for the appellant.  

10. Regarding the role of the appellant in the commission of  

the offence of  dacoity  and murder,  we have already found  

that  the  turban  and  T-shirt  of  the  appellant,  which  were  

seized  and  sent  for  examination  to  the  Forensic  Science  

Laboratory,  had  presence  of  human blood.   We  have  also  

found that the axe and the iron rod, which were recovered  

pursuant to the statement of the appellant, had also blood-

stains.  We have also found from the evidence of PW-1 that  

when her mother was cooking food and came out on hearing  

the  commotion,  the  appellant  was demanding money from  

her father and her father gave to the appellant all the money  

which he was having in his pocket.  There is, therefore, clear  

and definite evidence in this case to show that the appellant  

not only participated in the crime, but also played the lead  

role in the offence under Section 396, IPC.  This is, therefore,  

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not a case where it can be held that the role of the appellant  

was not  such as to warrant death sentence under Section  

396, IPC.

11. In  a  recent  judgment  in  Sunder  Singh  v.  State  of   

Uttaranchal [(2010) 10 SCC 611], this Court found that the  

accused had poured petrol in the room and set it to fire and  

closed the  door  of  the  room when all  the  members of  the  

family  were  having  their  food  inside  the  room  and,  as  a  

result,  five  members of  the  family  lost  their  lives  and the  

sixth member of the family, a helpless lady, survived.  This  

Court held that the accused had committed the crime with  

pre-meditation and in a cold blooded manner without  any  

immediate provocation from the deceased and all  this  was  

done on account of enmity going on in respect of the family  

lands and this was one of those rarest of rare cases in which  

death sentence should be imposed.  The facts in the present  

case are no different.  Five members of a family including two  

minor children and the driver were ruthlessly killed by the  

use of a knife, an axe and an iron rod and with the help of  

four others.  The crime was obviously committed after pre-

meditation with absolutely no consideration for human lives  

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and for money.  Even though the appellant was young, his  

criminal propensities are beyond reform and he is a menace  

to  the  society.   The  trial  court  and  the  High  Court  were  

therefore right in coming to the conclusion that this is one of  

those  rarest  of  rare  cases  in  which death sentence  is  the  

appropriate punishment.

12. In the result, we find no merit in these appeals and we  

sustain  the  conviction  of  the  appellant  as  well  as  the  

sentence of death under Section 396, IPC, and dismiss the  

appeals.

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

………………………..J.                                                              (Swatanter Kumar) New Delhi, February 23, 2012.    

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