IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.999 OF 2007

STATE OF MAHARASHTRA … Appellant

Versus

GORAKSHA AMBAJI ADSUL … Respondent

AND

CRIMINAL APPEAL NO.1623 OF 2007

GORAKSHA AMBAJI ADSUL … Appellant

Versus

STATE OF MAHARASHTRA … Respondent

J U D G M E N T

Swatanter Kumar, J.

The learned trial court, while weighing the mitigating and  

aggravating circumstances and keeping in mind the principle  

of  proportionality  of  sentence  or  what  it  termed  as  “just-

desert” for the brutal and diabolical killing of three innocent  

family members, formed an opinion that the Court could not  

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resist from concluding that the only sentence that could be  

awarded to the accused was death penalty.  Thus, it directed  

that the accused Goraksha Ambaji  Adsul be hanged by the  

neck till he is dead in terms of Section 354(5) of the Code of  

Criminal  Procedure,  1973  (for  short  ‘Cr.P.C.’),  subject  to  

confirmation  by  the  High  Court  in  accordance  with  law.  

Aggrieved  by  this  extreme  punishment  and  the  order  of  

conviction,  the  accused  challenged  the  judgment  of  the  

learned  trial  court  dated  14th February,  2005  by  filing  an  

appeal before the High Court which vide its detailed judgment  

dated  30th September,  2005,  declined  to  confirm the  death  

sentence referred under Section 366 of the Cr.P.C. and held  

the said accused guilty of offence under Sections 302 and 201  

of the Indian Penal Code (for short ‘IPC’), and sentenced him  

to undergo life imprisonment.  In other words, the High Court  

converted  the  death  penalty  into  life  imprisonment  while  

sustaining the order of conviction.   

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The  State  of  Maharashtra  has  preferred the  present  appeal  

bearing Crl.A. No. 999/2007, before this Court claiming that  

the said conversion by the High Court is not appropriate in  

the facts and circumstances of  the case.  The State further  

avers that the High Court in its judgment has fallen in error of  

law  as  well  as  failed  in  appreciation  of  evidence.   It  is  

contended that this Court should restore the judgment of the  

trial  court  on  the  quantum of  sentence  by  awarding  death  

penalty.  The accused has filed a separate appeal being Crl.A.  

No. 1623 of 2007 challenging the very same judgment of the  

High Court on the ground that the appellant could not have  

been held guilty for an offence under Sections 302 and 201 of  

the  IPC  and  the  appellant  was  entitled  to  judgment  of  

acquittal.

Thus, it will be appropriate for us to dispose of both the  

above appeals by a common judgment.  For that purpose, we  

may briefly notice the facts giving rise to the present appeals.

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Accused no.1 Goraksha Ambaji Adsul is the son of the  

deceased, Ambaji Ahilaji  Adsul.   Accused no.3 Sow. Sunita  

Goraksha Adsul is the wife and Accused no.2 Mininath Ambaji  

Adsul is the brother of the Accused no.1 Goraksha.  Accused  

no.1  was  serving  in  the  Indian Army and used  to  visit  his  

village Hivare-Korda where the family had some agricultural  

land and other properties.  The deceased, Ambaji Ahilaji Adsul  

was also married to the second deceased,  Janabai  and she  

was  his  second  wife.   In  other  words,  Janabai  was  the  

stepmother  of  the  Accused  no.1  and  2  and   Reshma  

(deceased)  was  their  stepsister.   All  these  persons  used  to  

jointly reside in their house in the said village.  It has come in  

evidence that there used to be quarrels between the Accused  

no.1, his brother and wife on the one side and the deceased  

Ambaji Ahilahi Adsul, his wife Janabai and daughter Reshma  

on the other.  The accused used to demand partition of the  

land and other property and allotment of share to the accused  

and his brother.  This persisted for a considerable time and is  

said to be the motive for commission of the offence.

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One  Premchand  Rangarao  Jatav,  Deputy  Station  

Superintendent,  Railway  Station,  Bhopal  (PW9),  received  a  

memo sent by Sh. R.K. Arora, Train Ticket Examiner (TTE),  

informing him that a black coloured trunk was found in Bogie  

No.S-6 of Train No. 2779 (Goa-Nizamuddin Express) running  

via Ahmednagar when it reached Bhopal Railway Station on  

25th October, 2002 at about 7.00 p.m.  The black trunk was  

seized under  panchnama and when the same was opened in  

the  presence  of  Dr.  Harsh  Sharma  it  was  found  that  it  

contained a dead body which was later identified to be that of  

Ambaji  Ahilaji  Adsul.   Mr.  Someshwari  Jogeshwari  Prasad  

Mishra, ASI, G.R.P. Bhopal (PW11) completed the formalities  

of inquest and post-mortem.  After the body was received in  

the  hospital  it  was  inspected  by  one  Dr.  Mrs.  Rajni  Armit  

Arora,  the  then  Associate  Professor  at  the  Department  of  

Forensic Medicine, Gandhi Medical  College, Bhopal,  (PW19).  

It was noticed that a lace was found to have been tied to the  

portion covering neck and throat of the deceased.  Dr. Arora  

performed the autopsy on 26th October,  2002.   She noticed  

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ligature  mark  of  brownish  colour  and  ligature  material  of  

khaki colour shoe lace, two in number, tied around the neck  

encircling  it  and  described  the  injuries  as  ante-mortem  

injuries.  According to the said doctor, the cause of death was  

strangulation and homicidal in nature and was caused two to  

three days prior to the post-mortem examination.  As nobody  

had  claimed  the  body,  the  blood  stained  clothes  of  the  

deceased  were  seized  and  the  body  was  cremated  at  

Bhadbhada Vishram Ghat, Bhopal.  An FIR (exhibit-82) was  

registered with regard to the said crime.

On 25th October, 2002 itself, another train, i.e. Train No.  

7602-UP  (Nanded  Pune  Express)  reached  Ahmednagar  

Railway Station at its scheduled time in the morning at about  

6.15 a.m. and departed at 6.30 a.m.  Enroute, during the stop  

at  Akolner  Railway Station for  crossing  of  the  train coming  

from opposite direction, Mr. Sanjay Bhujadi, TTE, found one  

white tin trunk in Bogie No. S-4 placed between the two toilets  

of the Bogie No. S-4.  After arriving Kasthi Railway Station,  

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Mr.  Sanjay  Bhujadi  made  a  report  to  the  Station  Master,  

Kashti,  informing  him  of  the  said  trunk.   This  memo  was  

delivered to GRP, Daund Railway Station (Ex.132).  The trunk  

was removed from the bogie and a panchnama was prepared.  

Thereafter, it was opened and two dead bodies were found in  

that trunk.  These were later identified as those of  Janabai  

and Reshma.  Inquest formalities were completed and an FIR  

(exhibit 125) was lodged on 25th October, 2002 as Crime No.  

43/2002 for offence punishable under Sections 302 and 201  

of the IPC.   

The railway police  investigating officer,  Mr. B.B.  Joshi,  

(PW8)  conducted  investigation  and  registered  a  case  vide  

Crime  No.  237/2002  on  17th November,  2002  against  the  

three accused namely, Goraksha Ambaji Adsul, Sow. Sunita  

Goraksha  Adsul  and  Mininath  Ambaji  Adsul.   On  further  

investigation,  it  was  found  that  the  accused  persons  had  

administered  sedative/poisonous  substance  mixed  in  pedas  

and  thereafter  strangulated  all  the  three  victims  with  shoe  

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laces.  Thereafter, they placed the bodies of the these victims  

in  two  different  trunks  .   One  trunk  was  kept  near  the  

electricity board D.P. at nearby Village Malkop and the other  

at the house of one Mr. Sakharam Thakaji Nabge, a friend of  

the  accused  (PW7),  before  both  were  transported  to  the  

Ahmednagar Railway Station by the accused Goraksha in a  

hired maruti van.  Thereafter, as afore-noticed, these trunks  

were placed in different trains.   

Accused nos. 2 and 3 were arrested on 14th November,  

2002  and  Accused  no.1  on  30th November,  2002.   Their  

statements were recorded under Section 164 of the Cr.P.C. by  

Mr. Sayyad, Judicial Magistrate, First Class, on 6 th February,  

2003 and 7th February, 2003 respectively.  Investigation was  

completed and the accused were sent to the court of Judicial  

Magistrate on 11th February, 2003 for committal to the Court  

of Sessions so that they could be tried in accordance with law.  

All the three accused had taken the defence of total denial and  

pleaded false implication. Accused no. 1 had specifically taken  

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up the plea that between 22nd October, 2002 and 25th October,  

2002, he was present at his duty place i.e. the Army Office at  

Patiala.   The  prosecution  has  examined  as  many  as  25  

witnesses to bring home guilt of the accused persons and after  

recording the statement of the accused under Section 313 of  

the Cr.P.C., the trial court after discussing the entire evidence  

on record  had found Accused  no.1  Goraksha Ambaji  Adsul  

guilty of an offence under Section 302 as well as Section 201  

of  the  IPC  and  awarded  the  sentence  of  death  to  him.  

However, Accused Nos. 2 and 3 were acquitted as according to  

the trial  court,  the  prosecution had failed to prove  its  case  

beyond reasonable  doubt against these accused.  The State  

did not prefer any appeal against the acquittal of the said two  

accused and thus, their acquittal has already attained finality.  

Resultantly, in the present appeal, we are only concerned with  

Accused  no.1  Goraksha  Ambaji  Adsul,  who  has  filed  an  

independent  appeal  against  the  judgment  of  conviction  and  

sentence.

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As would appear from the above narrated factual matrix, it is  

a case of circumstantial evidence and there is no eye-witness  

or other direct evidence in regard to the murder of the three  

deceased persons.  As is clear from the above, Ambaji Ahilaji  

Adsul  was  the  real  father  of  Accused  nos.1  and  2  while  

Accused no.3 is the wife of Accused no.1.  Deceased Janabai  

was the second wife of Ambaji and therefore the step-mother  

of Accused nos.1 and 2.  Deceased Reshma and PW13 Sunil  

are the children born to Janabai from Ambaji, thus, they are  

the step-sister and step-brother of the Accused nos.1 and 2.  

It is the case of the prosecution that there used to be quarrels  

and the accused Goraksha used to demand partition of the  

land  and  other  properties.   In  fact,  he  is  stated  to  have  

assaulted  his  father  during  those  quarrels.   The  accused  

Goraksha  had  returned  home  for  Diwali.   He  had  brought  

sweets (pedas) with him, which he offered to all, i.e. Ambaji,  

Janabai,  Sunita,  Reshma  and  Sunil  on  the  night  of  23rd  

October,  2002.   These  pedas  contained  sedative/poisonous  

substance  and  after  supper  when  the  family  was  asleep,  

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Goraksha  killed  his  father,  stepmother  and  stepsister  by  

strangulation  and  packed  the  dead  bodies  in  two  metallic  

boxes.  One of the boxes was loaded in the train 2779 UP,  

Goa-Nizammudin Express while the other was loaded in train  

7602-UP, Nanded-Pune Express and the same were recovered  

at Bhopal and Daund Railway Stations respectively, as noticed  

above.   Sunil  and  the  accused  Sunita  required  medical  

assistance on the next day as they suffered from vomiting and  

dysentery presumably  because  of  food poisoning  caused  by  

the  sedative-infused  pedas,  which  were  offered  to  them by  

Accused  no.1  Goraksha.   Another  suspicious  circumstance  

which led to the arrest of the accused was that on enquiry by  

the brother of the deceased Ambaji, the accused had informed  

him  that  Ambaji,  Janabai  and  Reshma  had  gone  to  

Ahmednagar for medical treatment and subsequently claimed  

that he had received a telephone call from his father stating  

that  the  family  was  proceeding  to  the  holy  place  of  

Pandharpur.    Still  another  circumstance  which  connected  

accused no.1 with the commission of the crime was that he  

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had hired a maruti van owned by PW14 Bapusaheb Shinde for  

the purpose of carrying the two trunks containing the three  

dead  bodies  from  Village  Malkop  to  the  Railway  Station,  

Ahmednagar.  PW-7 Sakharam Nabge, a friend of the accused  

had also deposed that the trunk was kept in front of his house  

before it was loaded in the Maruti Van.  PW12, Baban Vishnu  

Thorat is a friend of Bapusaheb Shinde and both of them were  

together  when Goraksha contacted  Bapusaheb  for  hiring  of  

Maruti Van on 24th October, 2002.  They were again together  

when two trunks were lifted in the early dawn hours on 25th  

October,  2002.   Thus,  these  two  persons  were  material  

witnesses  for  establishing  the  fact  that  these  trunks/iron  

boxes were actually carried from the place afore-indicated to  

the  Railway  Station  by  the  accused.   PW17,  Pandurang  

Daobhat  is  the  brother  of  the  deceased  Janabai  and  had  

identified the dead bodies.  His statement is of significance in  

regard to the identification of the dead bodies as well as the  

conduct of the accused subsequent to the recovery of the dead  

bodies.   He  is  the  person who was provided  with incorrect  

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information by the accused Goraksha regarding whereabouts  

of the deceased.  PW13 Sunil is another material witness as  

he was also administered the pedas laced with sedatives and  

the same was served in his presence to the deceased by the  

Accused no.1 Goraksha.  Besides this evidence, the statement  

of Dr. Sanjay Pande, PW10 also helps in completing the chain  

of  events  leading  to  the  commission  of  the  crime  and  its  

subsequent result.  According to this witness, he had treated  

Sunil (PW13) and Sunita (Accused no.3) on 24th October, 2002  

when they were brought to him with the complaint of diarrhea.  

When they went to the doctor,  Goraksha, the Accused no.1  

had accompanied them.

PW23,  Ezaz Ahmed, Judicial  Magistrate,  First Class at  

Sahabad had recorded the statements of PW12, PW14, PW17  

and Meerabai Daobhat, sister of the deceased Janabai under  

Section 164 of the Cr.P.C.  We may also notice that some of  

the  panch witnesses who had signed the  panchnamas turned  

hostile and PW7 Sakharam, a personal friend of the accused  

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Goraksha  also  did  not  fully  support  the  case  of  the  

prosecution.   

The above are the main witnesses on whose statement  

the entire case of the prosecution rests, of course, in addition  

to the statement of the Investigating Officers and other formal  

witnesses.  Accused nos. 2 and 3 were acquitted by the trial  

court and the High Court noticed that it was not concerned  

with the merit or otherwise of their acquittal by the trial court  

as  the  State  had  not  preferred  any  appeal  against  the  

judgment of acquittal.

At this stage, we may usefully refer to the circumstances  

which were relied upon by the prosecution before the courts  

and they were as follows:-

i  Motive  –  dispute  over  agricultural  land/partition.  (Evidence of PW-13 Sunil and PW-17 Pandurang)

i Last  seen  together  –  (togetherness  by  virtue  of  joint  family).

i Administration of sedative through sweets.  (Evidence of  PW-13 Sunil and PW-10 Dr. Pande).

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i The disposal of dead bodies by Accused no.1 (Evidence of  PW-12 Baban, PW-14 Bapusaheb).

i Identification  of  Accused  no.1  as  person  loading  one  trunk in Goa-Nizammuddin Express train (PW-15 Aradhana).

i Homicidal death.

i False  theory/explanation  propounded  by  accused  for  absence of the victim.  (Evidence of PW-13 Sunil and PW-17  Pandurang).

In  the  facts  and  circumstances  of  the  case,  the  High  

Court expressed the opinion that two circumstances, i.e. the  

last seen together and the homicidal death stands proved by  

themselves  and do not require further evidence to prove that  

fact.  We fully agree with the view expressed by the High Court  

that, keeping in view the photographs of the dead body and  

the doctor’s statement, it was proved to be a homicidal death.  

The  learned  counsel  appearing  for  the  Accused  no.1  

(appellant) argued with some vehemence that the doctor had  

not expressed his opinion with regard to the cause of death  

particularly in relation to Reshma and Janabai, as is evident  

from  Exhibits  113  and  114.   But  this  argument  does  not  

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impress us at all inasmuch as the death of the two persons  

have been proved.  From the injury report on the body of the  

deceased, the photographs and the circumstances attendant  

thereto, it is more than clear that this was a case of homicidal  

death.  The bodies of the deceased were duly identified.  It was  

practically an admitted case that the deceased as well as the  

accused were living in a joint family and had their last meals  

together, during which the accused had offered  pedas to the  

family including the deceased.  This is fully substantiated by  

the statement of PW13 and PW10.  PW13, Sunil is a family  

member.   He  had  also  suffered  the  consequences  of  

consuming the  pedas and was treated by PW10, Dr. Pande.  

The factum of carrying of two boxes and loading them on the  

respective  trains  has  also  been  fully  established  by  the  

prosecution as we have  above-discussed.   At this stage, we  

may refer to some extracts of the High Court judgment where  

in  our  view  the  High  Court  has  correctly  appreciated  the  

evidence.   It  disregarded  the  statement  of  PW7  while  fully  

relying upon and holding that there were witnesses who were  

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truthful  and  can  be  safely  relied  upon,  the  Court  held  as  

under: -

“To sum-up the assessment of evidence of these seven vital  witnesses, we may say that, PW-7 Sakharam Nabge has made  himself sufficiently useless for the prosecution.  Evidence of  PW-12 Baban Thorat is acceptable to establish that Accused  No.1 had contracted with PW-14 Bapusaheb and accordingly  two trunks were transported from Malkop D.P. to Ahmednagar  Railway  Station  at  the  instance  of  Accused  No.1  (sic),  for  which accused no.1 paid hire charges of Rs.200/-.  Evidence  of PW-14 Bapusaheb, although shaky, can be relied upon on  the  same  point,  to  the  extent  it  is  in  harmony  with  the  evidence of PW-12.  We find PW-10 Dr. Pande, in the absence  of case-papers to refresh his memory, to be not reliable.  PW- 15 Aradhana also cannot be relied upon for the purpose of  identification of Accused No.1, although she can be believed to  the  extent  that  the  trunk  was  loaded  in  Goa-Nizamuddin  Express, at Ahmednagar Railway Station.   PW-17 Pandurang  can  be  relied  upon  for  identification  of  the  victims  and  subsequent conduct of Accused No.1, so also to some extent,  possible motive i.e. quarrels on the point of partition.  PW-13  Sunil,  although  a  child  witness,  can  certainly  be  believed  regarding togetherness on the fateful night, more so because  that is an admitted position.  His evidence regarding quarrels  on  the  point  of  partition  can  also  be  accepted,  because  of  support  from  Pandurang  and  probability.   The  story  of  administration of Pedhas containing some sedative/poisonous  substance and subsequent admission to Mate Hospital,  has  become  a  story not  acceptable  without  risk,  more  so  when  such story is not supported by any case papers.

XXX XXX XXX XXX XXX

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We have  subjected  the  evidence  to  close  scrutiny  and  only  thereafter arrived at our conclusion as to whether witnesses  are to be believed and if yes, to what extent.

By relying upon Anthony D. Souza –  Vs.  – State  of  Kerala,  A.I.R. 2003 S.C. 258 and Darshansingh –Vs.- State of Punjab,  1995 S.C.C. (Crl.) 702, learned A.P.P. has propounded that, in  case accused makes a statement under section 313 of Cr.P.C.  completely denying the prosecution case and established facts  and offers false answers or explanation, that can be counted  as  providing  missing  link  from  complete  chain  of  the  prosecution evidence and circumstances, in a case based on  circumstantial evidence.  Relying on these cases, an argument  that false explanation can be utilized as one of the links in the  chain  of  circumstantial  evidence  was  advanced,  in  order  to  persuade this Court that story narrated by accused Goraksha  to  PW-17  Pandurang  about  the  victims  having  gone  to  Pandharpur  should  be  taken  into  consideration  as  false  explanation, although not to the Court,  to the relatives and  others.  In fact, as already pointed out earlier, accused have  persisted in sticking to this explanation even during the curse  (sic)  of  their  statement  under  Section  313  Cr.P.C.,  1973,  without  demonstrating  to  the  Court  that  either  of  the  two  trains,  i.e.  Goa-Nizamuddin  Express  and  Nanded-Pune  Express travel via Padharpur (sic).  We may state it here itself,  that  explanation  offered  by  the  accused  about  his  having  received a message from Balasaheb Sinare of Village Padali,  who received telephone of the deceased Ambaji, of the three  victims having  gone  to  Pandharpur  cannot  be  said  to  have  been  probabilised  in  the  absence  of  evidence  of  said  Balasaheb  Sinare.   The  two  trains  not  having  been  demonstrate as passing through Pandharpur gives another set  back to the said defence.

24.  In the light of acquittal of Accused Nos. 2 and 3 by the  trial  court,  learned  Advocate  for  the  appellant  has  placed  reliance upon the observations of the Supreme Court in the  

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matter of Suraj Mal – Vs- State (Delhi Administration), A.I.R.  1979  S.C.  1408,  and  more  particularly,  observation  to  the  following effect in para 2: -

“where  witnesses  make  tow (sic)  inconsistent  statements  in  their  evidence,  either  at  one  stage  or  at  two  stages,  the  testimony of such witnesses becomes unreliable and unworthy  of  credence,  and  in  absence  of  special  circumstances,  no  conviction can be based on the evidence of such witness.”

This was a case under Prevention of Corruption Act.  Three  police officers were tried for allegedly having accepted bribe.  PW  No.s  6,  8  and  9,  Shiv  Naryan,  Prem  Nath  and  Sham  Sunder resiled from their statements which they made in their  chief  examination  and all  of  them stated  that  Ram Naryan  (one of the three accused) refused to accept the bribe.  Ram  Naryan was, therefore, acquitted by the trial Court.  Another  accused Devender Singh was acquitted by the High Court on  the ground that the sanction was not valid.

We are unable to appreciate the applicability of the ratio to the  matter  at  hands.   As  can  be  seen  from  the  impugned  judgment, in the present matter, Accused No.s 2 and 3 are  acquitted  by  the  trial  Court  because  there  is  no  evidence  referring to them…..”

The above conclusion of the High Court does not suffer  

from any legal infirmity.  It is in conformity with the settled  

principles  of  law  and  is  based  on  proper  appreciation  of  

evidence.   In  fact,  finding  of  guilt  by  both  the  Courts  is  

concurrent.   However,  they  differ  only  on  the  question  of  

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quantum of sentence.  On the appreciation of evidence, we are  

also of the considered view that the prosecution has been able  

to prove a complete chain of events which points only towards  

the  guilt  of  the  accused.   Even in a  case  of  circumstantial  

evidence, if the prosecution is able to establish the chain of  

events to satisfy the ingredients of commission of an offence,  

the accused would be liable to suffer the consequences of his  

proven guilt.  In the present case, right from the evidence of  

the  entire  family  having  the  last  dinner  together  and  

administering  of  pedas with  sedatives  or  poisonous  

substances  to  the  recovery  of  bodies  of  the  deceased  at  

different railway stations the  chain of  events stands proved  

beyond  reasonable  doubt.   In  fact,  the  statement  of  the  

accused under Section 313 of the Cr.P.C. further supports the  

case  of  the  prosecution  and  demolishes  the  stand  of  the  

defence of complete denial.  Thus, we are unable to find any  

error  in  the  concurrent  findings  recorded  by  the  Courts  

holding the accused guilty of an offence under Sections 302  

and 201 of the I.P.C.

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Next, we are concerned with whether this Court should  

exercise  its  judicial  discretion  to  enhance  his  punishment  

from life imprisonment to death sentence, as contemplated on  

behalf of the State in its appeal.

The factual  matrix of  the case  as well  as the evidence  

which has been led by the prosecution to bring home the guilt  

of  the  accused,  we  have  already  discussed  in  some  detail.  

Presently, we may discuss the principles which have been long  

settled  by  this  Court  for  imposition  of  death  penalty.   The  

principles  governing  the  sentencing  policy  in  our  criminal  

jurisprudence have more or less been consistent, right from  

the  pronouncement  of  the  Constitution  Bench  judgment  of  

this  Court  in  the  case  of  Bachan  Singh  v.  State  of  Punjab  

[(1980)  2  SCC 684].   Awarding  punishment  is  certainly  an  

onerous function in the dispensation of criminal justice.  The  

Court is expected to keep in mind the facts and circumstances  

of a case, the principles of law governing award of sentence,  

the legislative intent of special or general statute raised in the  

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case and the impact of awarding punishment.  These are the  

nuances  which  need  to  be  examined  by  the  Court  with  

discernment  and  in  depth.   The  legislative  intent  behind  

enacting Section 354(3) of the Cr.P.C. clearly demonstrates the  

concern of the legislature for taking away a human life and  

imposing death penalty upon the accused.  Concern for the  

dignity of the human life postulates resistance to taking a life  

through law’s instrumentalities and that ought not to be done,  

save in the rarest of rare cases, unless the alternative option is  

unquestionably foreclosed.  In exercise  of  its discretion, the  

Court  would  also  take  into  consideration  the  mitigating  

circumstances  and  their  resultant  effects.   Language  of  

Section 354(3)  demonstrates the legislative  concern and the  

conditions  which need to be  satisfied prior  to imposition of  

death penalty.  The words, ‘in the case of sentence of death the   

special  reasons  for  such  sentence’ unambiguously  

demonstrates  the  command  of  the  legislature  that  such  

reasons have to be recorded for imposing the punishment of  

death  sentence.   This  is  how the  concept  of  rarest  of  rare  

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cases has emerged in law.  Viewed from that angle, both the  

legislative provisions and judicial pronouncements are at  ad  

idem in law.  The death penalty should be imposed in rarest of  

rare cases and that too for special reasons to be recorded.  To  

put it simply, a death sentence is not a rule but an exception.  

Even  the  exception  must  satisfy  the  pre-requisites  

contemplated under Section 354(3) of the Cr.P.C. in light of  

the dictum of the Court in the case of Bachan Singh (supra).

The Constitution Bench judgment of this Court in the case of  

Bachan Singh (supra) has been summarized in paragraph 38  

in the case of Machhi Singh vs.  State of Punjab (1983) 3 SCC   

470  and  the  following  guidelines  have  been  stated  while  

considering the possibility of awarding sentence of death:  

“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  required  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  

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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 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.”

The  judgment  in the  case  of  Bachan Singh  (supra),  did  not  

only state the above guidelines in some elaboration, but also  

specified  the  mitigating  circumstances  which  could  be  

considered  by  the  Court  while  determining  such  serious  

issues and they are as follows:

“Mitigating circumstances. – In the exercise of its discretion in  the  above  cases,  the  court  shall  take  into  account  the  following circumstances:

1  (1) That the offence was committed under the influence  of extreme mental or emotional disturbance. 2 3 (2)  The age of the accused.  If the accused is young or  old, he shall not be sentenced to death.

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1 (3)The  probability  that  the  accused  would  not  commit  criminal acts of violence as would constitute a continuing  threat to society.

1 (4) The probability that the accused can be reformed and  rehabilitated.  The State shall  by evidence prove that the  accused does not satisfy the conditions (3) and (4) above.

1 (5)That in the facts and circumstances of  the case  the  accused  believed  that  he  was  morally  justified  in  committing the offence.

1 (6)  That  the  accused  acted  under  the  duress  or  domination of another person.

1 (7)That the condition of the accused showed that he was  mentally  defective  and  that  the  said  defect  impaired  his  capacity to appreciate the criminality of his conduct.”

Now,  we may examine  certain illustrations arising from the  

judicial  pronouncements of  this Court.   In the case of  D.K.  

Basu  v.  State of West Bengal [(1997) 1 SCC 416] this Court  

took the view that custodial torture and consequential death  

in custody was an offence which fell in the category of rarest of  

rare cases.  While specifying the reasons in support of such  

decision, the Court awarded death penalty in that case.  In the  

case of  Santosh Kumar Satishbhushan Bariyar  vs.   State of   

Maharashtra [(2009) 6 SCC 498],  this Court also spelt out in  

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paragraphs 56 to 58 that nature, motive, impact of a crime,  

culpability, quality of evidence, socio-economic circumstances,  

impossibility of rehabilitation are the factors which the court  

may take into consideration while dealing with such cases.  In  

that case  the friends of  the  victim had called  him to see  a  

movie and after seeing the movie, a ransom call was made,  

but with the fear of being caught, they murdered the victim.  

The Court felt  that there was no evidence to show that the  

criminals were incapable of reforming themselves, that it was  

not  a  rarest  of  rare  case,  and  therefore,  declined  to  award  

death sentence to the accused.  Interpersonal circumstances  

prevailing  between  the  deceased  and  the  accused  was  also  

held to be  a relevant consideration in the  case  of  Vashram  

Narshibhai Rajpara v.   State of  Gujarat [AIR 2002 SC 2211]  

where  constant  nagging  by  family  was  treated  as  the  

mitigating factor, if the accused is mentally unbalanced and  

as  a  result  murders  the  family  members.   Similarly,  the  

intensity of  bitterness which prevailed and the escalation of  

simmering thoughts into a thirst for revenge and retaliation  

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were also considered to be a relevant factor by this Court in  

different cases.  

This Court in the case of  Satishbhushan Bariyar  (supra) also  

considered  various  doctrines,  principles  and  factors  which  

would be considered by the Courts while dealing with such  

cases.   The  Court  discussed  in  some  elaboration  the  

applicability of doctrine of  rehabilitation and the doctrine of  

prudence. While considering the application of the doctrine of  

rehabilitation and the extent of weightage to be given to the  

mitigating circumstances, it noticed the nature of the evidence  

and the background of the accused.  The conviction in that  

case was entirely based upon the statement of the approver  

and  was  a  case  purely  of  circumstantial  evidence.   Thus,  

applying the doctrine of prudence, it noticed the fact that the  

accused were unemployed, young men in search of job and  

they were not criminals.  In execution of a plan proposed by  

the appellant and accepted by others, they kidnapped a friend  

of  theirs.   The  kidnapping  was  done  with  the  motive  of  

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procuring ransom from his family but later they murdered him  

because of the fear of getting caught, and later cut the body  

into pieces and disposed it off at different places.  One of the  

accused  had  turned  approver  and  as  already  noticed,  the  

conviction  was  primarily  based  upon  the  statement  of  the  

approver.  Basing its reasoning on the application of doctrine  

of prudence and the version put forward by the accused, the  

Court,  while  declining  to  award  death  penalty  and  only  

awarding life imprisonment, held as under: -

“135.  Right to life, in its barest of connotation would imply  right to mere survival. In this form, right to life is the most  fundamental of all rights. Consequently, a punishment which  aims at taking away life  is the gravest punishment. Capital  punishment imposes a limitation on the essential content of  the fundamental right to life, eliminating it irretrievably. We  realize the absolute nature of this right, in the sense that it is  a source of all other rights. Other rights may be limited, and  may  even  be  withdrawn and  then  granted  again,  but  their  ultimate limit is to be found in the preservation of the right to  life. Right to life is the essential content of all rights under the  Constitution.  If  life  is  taken away,  all  other  rights  cease  to  exist.

XXX XXX XXX XXX XXX

168.  We must,  however,  add that in a case of  this nature  where  the  entire  prosecution  case  revolves  round  the  

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statement  of  an  approver  or  dependant  upon  the  circumstantial  evidence,  the  prudence  doctrine  should  be  invoked.  For  the  aforementioned  purpose,  at  the  stage  of  sentencing evaluation of evidence would not be permissible,  the courts not only have to solely depend upon the findings  arrived  at  for  the  purpose  of  recording  a  judgment  of  conviction,  but  also  consider  the  matter  keeping  in view of  evidences which have been brought on record on behalf of the  parties and in particular the accused for imposition of a lesser  punishment. A statement of approver in regard to the manner  in which crime has been committed vis-a-vis the role played  by the accused, on the one hand, and that of the approver, on  the other, must be tested on the touchstone of the prudence  doctrine

169.  The  accused  persons  were  not  criminals.  They  were  friends. The deceased was said to have been selected because  his father was rich. The motive,  if  any, was to collect some  money.  They  were  not  professional  killers.  They  have  no  criminal history. All were unemployed and were searching for  jobs. Further if age of the accused was a relevant factor for the  High Court for not imposing death penalty on Accused No. 2  and 3, the same standard should have  been applied to the  case of the appellant also who was only two years older and  still a young man in age. Accused Nos. 2 and 3 were as much  a part of the crime as the appellant. Though it is true, that it  was he who allegedly proposed the idea of kidnapping, but at  the same time it must not be forgotten that the said plan was  only  executed  when  all  the  persons  involved  gave  their  consent thereto.

171. Section 354(3) of the Code of Criminal Procedure requires  that  when the  conviction  is  for  an offence  punishable  with  death  or  in  the  alternative  with  imprisonment  for  life  or  imprisonment for a term of years, the judgment shall state the  reasons for the sentence awarded, and in the case of sentence  

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of death, the special reasons thereof. We do not think that the  reasons  assigned  by  the  courts  below  disclose  any  special  reason to uphold the death penalty. The discretion granted to  the  courts  must  be  exercised  very  cautiously  especially  because  of  the  irrevocable  character  to  death  penalty.  Requirements of law to assign special reasons should not be  construed to be an empty formality.

172. We have previously noted that the judicial principles for  imposition  of  death  penalty  are  far  from  being  uniform.  Without going into the merits and demerits of such discretion  and  subjectivity,  we  must  nevertheless  reiterate  the  basic  principle,  stated  repeatedly  by  this  Court,  that  life  imprisonment  is  the  rule  and  death  penalty  an  exception.  Each  case  must  therefore  be  analyzed  and  the  appropriateness of punishment determined on a case-by- case  basis  with  death  sentence  not  to  be  awarded  save  in  the  `rarest of  rare' case where reform is not possible. Keeping in  mind at least this principle we do not think that any of the  factors  in  the  present  case  discussed  above  warrants  the  award of the death penalty. There are no special reasons to  record  the  death  penalty  and  the  mitigating  factors  in  the  present  case,  discussed  previously,  are,  in  our  opinion,  sufficient to place it out of the "rarest of rare" category.

173. For the reasons aforementioned, we are of the opinion  that this is not a case where death penalty should be imposed.  The  appellant,  therefore,  instead  of  being  awarded  death  penalty,  is  sentenced to  undergo rigorous  imprisonment  for  life. Subject to the modification in the sentence of appellant  (A1) mentioned hereinbefore, both the appeals of the appellant  as also that of the State are dismissed.”

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The above principle, as supported by case illustrations, clearly  

depicts the various precepts which would govern the exercise  

of judicial discretion by the Courts within the parameters spelt  

out  under Section 354(3)  of  the Cr.P.C.  Awarding of  death  

sentence  amounts  to  taking  away  the  life  of  an  individual,  

which  is  the  most  valuable  right  available,  whether  viewed  

from the constitutional point of view or from the human rights  

point of view.  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.   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.

In the present case, the accused belonged to the armed forces,  

his father had married for the second time and had children  

from the second wife.  There were continuous quarrels with  

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regard to the division of property and during these quarrels  

the accused is stated to have even hit his father.  It  was a  

pressure which had increased with the passage of time and  

probably this frustration attained the limit of commission of  

such a heinous crime by the accused.  Surely, the manner in  

which the  crime has been committed  is  deplorable  but  the  

attendant  circumstances  and  the  fact  that  he  even  

administered  the  sweets  (pedas) containing  

sedatives/poisonous  substance  to  his  own  wife  Sunita  

Goraksha Adsul, the Accused no.3, shows that his frustration,  

and  probably  greed,  for  the  property  had  attained  volcanic  

dimensions.  The intensity of bitterness between the members  

of  the  family  had  exacerbated  the  thoughts  of  revenge  and  

retaliation in him.  The constant nagging would have  to be  

taken as a mitigating circumstance in the commission of this  

crime.  Resultantly, in view of the above factual matrix and the  

legal analysis, we do not find that the present case falls in the  

category of ‘rarest of rare cases’.   

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For the reasons afore-recorded, we dismiss both the appeals.

....................................J.  [Dr. B.S. Chauhan]

....................................J.  [Swatanter Kumar]

New Delhi; July 7, 2011.

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