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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NOS. 165-166 OF 2011     

Sunil Damodar Gaikwad … Appellant (s)   

Versus

State of Maharashtra … Respondent  (s)

J U D G M E N T  

KURIAN, J.:   

1. Death and if not life, death or life, life and if not death, is the  

swinging progression of the criminal jurisprudence in India as  

far as capital punishment is concerned. The Code of Criminal  

Procedure,  1898, under Section 367(5) reads:

“If  the accused is  convicted of an offence punishable  with  death,  and  the  Court  sentences  him  to  any  punishment  other  than  death,  the  Court  shall  in  its  judgment state the reason why sentence of death was  not passed.”

(Emphasis supplied)

This provision making death the rule was omitted by Act 26 of  

1955.

2. There  have  been  extensive  discussions  and  studies  on  

abolition of capital punishment during the first decade of our  

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Constitution  and  the  Parliament  itself,  at  one  stage  had  

desired to have the views of the Law Commission of India  

and,  accordingly,  the  Commission  submitted  a  detailed  

report,  Report  No.  35  on  19.12.1967.  A  reference  to  the  

introduction to the 35th Report of the Law Commission will be  

relevant for our discussion. To quote:

“A resolution was moved in the Lok Sabha on 21st April,  1962,  for  the  abolition  of  Capital  Punishment.  In  the  course  of  the  debate  on  the  resolution,  suggestions  were made that a commission or committee should be  appointed to go into the question. However, ultimately,  a  copy of the discussion that  had taken place in  the  House was forwarded to the Law Commission that was,  at that time, seized of the question of examining the  Code of Criminal Procedure and the Indian Penal Code.

The  Law  Commission  considered  it  desirable  to  take up the subject separately from the revision of the  general  criminal  law  of  the  country.  This  was  so,  because  of  the  importance  of  the  subject,  the  voluminous  nature  of  materials  that  were  to  be  considered, and the large number of questions of detail  that  were  to  be  examined.  The  matter  had  been  repeatedly debated in Parliament in some form or other,  and  the  Commission,  therefore,  thought  its  consideration to be somewhat urgent. In other countries  also, the subject had been evidently treated as one for  separate and full-fledged study.”

3. It  appears  that  Parliament  finally decided to retain capital  

punishment  in  the  Indian  Penal  Code.  However,  when the  

new Code  of  Criminal  Procedure  was  enacted  in  the  year  

1973 (hereinafter referred to as ‘the Cr.PC’), a paradigm shift  

was  introduced,  making  it  mandatory  for  Courts  to  state  2

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special reasons for awarding death sentence, under Section  

354(3), which reads as follows:

“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 of death, the special reasons for such  sentence.”

(Emphasis supplied)

4. In the words of Krishna Iyer J. in Ediga Anamma vs. State  

of Andhra Pradesh1:

“20. The unmistakable shift in legislative emphasis  is  that  life  imprisonment  for  murder  is  the  rule  and  capital  sentence  the  exception  to  be  resorted  to  for  reasons to be stated. …  

21.  It is obvious that the disturbed conscience of  the State on the vexed question of legal threat to life by  way  of  death  sentence  has  sought  to  express  itself  legislatively,  the  stream  of  tendency  being  towards  cautious,  partial  abolition  and  a  retreat  from  total  retention.”

(Emphasis supplied)                                                                                                 

5. It is interesting to note that the requirement for reasons to be  

stated for awarding any sentence for a term of years found  

legislative expression in the Cr.PC for the first time in 1973.  

In the case of death sentence, there must be special reasons.  

That shows the paradigm shift  to life imprisonment as the  

rule and death, as the exception.

1 (1974) 4 SCC 443 3

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6. The  above  preliminary  discussion  on  death  sentence  has  

special significance as far as facts of the present case are  

concerned. The appellant before us faced trial under Section  

302  read  with  Section  307  of  IPC.  The  Sessions  Court  

convicted him under both Sections. Under Section 302, he  

was  sentenced  to  death  and  under  Section  307,  to  life  

imprisonment.  On reference, the High Court confirmed the  

death sentence. The appeal filed by the appellant before the  

High  Court  was  dismissed  confirming  the  conviction  and  

sentence  under  Section  307.  Thus  aggrieved,  the  present  

appeals.

7. In view of the overwhelming evidence, though the learned  

counsel appearing for the appellant was mainly canvassing  

for  commuting the death sentence,  in  order  to satisfy our  

conscience,  we  may  refer  to  the  facts,  evidence  and  the  

contentions briefly, on merits as well.  

8. The appellant was married to a woman named Sangita. They  

had three children, one daughter and two sons. They were  

staying in two rooms in a house belonging to his maternal  

aunt. He was a tailor by profession and employed as such in  

a cloth shop. One of his sons, Aakash had been suffering from  

asthma which required constant medication. The appellant’s  

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income was hardly sufficient to maintain his family and he  

was under stress in that regard. On 08.07.2008, it is stated  

that  during  the  early  hours  of  the  morning  while  the  

members of the family were sleeping, he assaulted his wife  

Sangita and his two sons with the separated parts of a pair of  

sharp  scissors  and  inflicted  multiple  stab  injuries  causing  

their instantaneous death. On his daughter Gaitri alias Pooja  

also, he inflicted stab injuries. However, she somehow could  

speak and asked why her father, the appellant was injuring  

her. The appellant father told her that the entire family had  

to go and he would also follow them. However, he gave her  

water to drink. Thereafter, he took her on his lap and pressed  

her mouth with a pillow with the intention of suffocating her,  

and yet the child did not succumb to death. He left the child  

in  that  condition,  bolted  the  door  from outside  and  went  

straight to the police station and reported the incident. An  

FIR  was  registered.  His  statement  was  recorded.  In  the  

meanwhile,  the  daughter  Gaitri  got  assistance  from  a  

neighbour  and was immediately  treated  at  a  hospital  and  

thus she survived. She is the key witness-PW1. The neighbour  

is the maternal aunt of the accused and she is PW4.

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9. The prosecution examined nine witnesses and based mainly  

on the  version  of  PW1-Gaitri,  the  appellant  was convicted  

under Sections 302 and 307. Gaitri alias Pooja was clear and  

consistent  during  the  investigation  as  well  as  before  the  

Sessions Court. In her evidence before the Court, she stated:

“…  My father, mother and all we children were in the  house. My father assaulted my mother, my two brothers  and me with the help of scissor. My two brothers and  mother died on the spot. I was assaulted over my chest  and abdomen and to my both hands. I asked my father  as to why he was assaulting us although we did nothing.  My father told me that all of us need to go and he would  be following us. Then my father gave me water to drink.  He  then  took  me  on  his  laps  and  then  pressed  my  mouth with the help of pillow. He then went to Police  Station.  While  going  out  he  bolted  the  door  from  outside. One Sakharbai Sadashiv Sonwane was staying  in the same house in their neighbourhood. I shouted for  help. I told her to save us and that we were bleeding.  She then opened the door. Then my uncle Anil Gaikwad  came  there  and  we were  taken  to  Govt.  Hospital  at  Gevrai for treatment. From there I was brought to Beed  in the Civil Hospital by my uncle. Police came to me for  making  inquiry  in  the  Hospital.  I  narrated  the  whole  incident to them. The accused in the dock is my father.  The  accused  was  a  tailor  and  he  was  working  in  somebody’s shop owned by one Anil. I can identify the  scissor shown to me today. (Witness identified Article  No. 15 the scissor in the Court). I was in the Hospital for  about 21 days.”

(Emphasis supplied) In cross, she stated thus:

 “… We are financially poor. My father used to work in  the shop for whole day and even for late nights during  festival season. It is true that sometimes he remained in  the shop for whole night and return back in the next  day. He used to earn money by working in the shop for  us. … It is not true to say that I am not able to tell who  

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killed my mother and brothers as I was in sleep. … It is  not  true  that  I  am  deposing  false  that  my  father  assaulted us. … It is not true to say that I am deposing  against the accused only on the say of my uncle and the  Police.”

(Emphasis supplied)

10. PW2 is the panch witness. PW3 is the doctor - Dr. Kranti  

Raut, who performed the autopsy. In the case of all the three  

deceased, the doctor has given the opinion that the death  

was caused due to hemorrhagic shock with heamothorax on  

account  of  multiple  stab  injuries  to  the  vital  organs.  FSL  

report has confirmed that  the blood on the clothes of the  

appellant  and that  of his  deceased wife  was of  the  same  

group. The doctor has also treated PW1 Gaitri alias Pooja and  

has referred in detail to the multiple injuries inflicted upon  

her. It is also deposed that injury no. 4-which is a stab wound  

is sufficient to cause death in the ordinary course of nature if  

timely treatment is not given. The doctor stated that all the  

injuries to the deceased persons as well  as to the injured  

PW1-Gaitri are possible by the weapon-Article No. 6, scissors.  

PW4-Sakharbai is the aunt of the appellant. She has stated  

that  the  elder  son  of  the  appellant  was  suffering  from  

asthma. She also deposed as follows:

“… When I was sleeping in my house I got at about 5.30  a.m. I was washing utensils. I heard a sound from Gaitri  asking me to open the door and that  her  father  had  

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assaulted them. I went near the room and found that  the door was bolted from outside which I opened and  went  inside  the  room. I  saw Sangita,  Omkar,  Aakash  were lying in a pool of blood and they were dead. Gaitri  had also bleeding  injuries  to  her  chest,  stomach and  chin. She told me that her father assaulted all of them  with  a  scissor  in  that  night.  I  shouted  and  went  to  Baban, Anil and called them. The said Anil took Gaitri to  Hospital. Gaitri is also known by name Pooja. ..”

(Emphasis supplied)

In cross, she submitted that “the accused was a tailor. It is true  

that his financial condition was poor”.

11. PW5 is the one who sold the scissors to the appellant. PW6  

is the panch witness to the recovery of weapon of offence  

and other dress worn by the accused. PW7 is the Police Sub-

Inspector. According to him, the appellant had told him at  

around 5.30 a.m. that he had committed the murder of his  

wife and two sons and had injured his daughter Gaitri. The  

statement-Exhibit No.29 was recorded by him and appellant  

signed the same. PW8 is the Police Inspector who conducted  

the investigation. PW9 is the Police Inspector who prepared  

the  inquest  and  spot  panchnama.  He  collected  the  blood  

from the spot and the pillow cover soaked in blood. He also  

made  the  recovery  of  the  scissors  as  disclosed  by  the  

accused. Photographs were also taken. We may also refer to  

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the  statement  made  by  the  appellant  himself  before  the  

police on the basis of which the FIR was registered:

“… In my family my son Omkar is constantly ill due to  asthma. For the  treatment  of his ailment  money was  required which I had to borrow and hence I had become  debt ridden. Due to the tension I could not concentrate  on my work and I had to go on leave frequently. …Since  I was fed up, I decided to leave the house, my wife and  children  would  have  died  of  hunger  and  ailment.  Therefore, I had thought to relieve them myself.”

(Emphasis supplied)

Then he has narrated the manner in which he killed his wife  

and two sons. As far as assault on the daughter is concerned,  

he stated as follows:

“…  Thereafter  I  dealt  2-3  blows on chest  of my  daughter due to which she woke up and having seen  me dealing blows she asked weepingly earnestly “papa  why did you do so”. At that time I replied “we all have to  go, I am also coming”. By saying so, I gave her water to  drink and took her head on my lap. In order to kill her I  pressed her mouth and nose but she was not dying. I  waited for some time. Due to the incident which had  happened I  was terrified. Then I  kept  water near  her  and left her in injured condition. Thereafter I removed  my clothes worn by me at the time of commission of the  crime.  I  wrapped the scissors used for the crime in a  cloth  and  went  to  the  police  station  and  presented  myself and informed the incident.”

(Emphasis supplied)

12. Under Section 313 statement,  however, he flatly denied  

everything but did not lead any evidence in defence.

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13. The Sessions Court and the High Court have discussed in  

detail  the  conduct  of  the  appellant.  The courts  have  also  

considered his main contention that he was not involved in  

the incident. Both the Courts have found that it was not at all  

possible  to  appreciate  his  contentions  since  the  normal  

conduct of a father in such circumstances would be first to  

help the child to obtain treatment either by himself or with  

the assistance of those residing in the neighbouring rooms  

and nearby. Suffice it to say that the evidence available on  

record,  some of  which  we have  referred  to  above,  would  

establish beyond doubt that accused alone was involved in  

the commission of the offences.

14. We shall, hence, consider the question of sentence. The  

Sessions Court and the High Court are of the view that the  

case  falls  under  the  rarest  of  the  rare  category  and  the  

appellant did not deserve any mercy.  

15. Before awarding a sentence of death, in view of Section  

354(3) of the Cr.PC, the court has to first examine whether it  

is a case fit for awarding of life sentence and if not and only  

then,  the  death  sentence  can  be  awarded.  At  the  risk  of  

redundancy, we may note that the rule is life imprisonment  

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for  murder,  and  death  is  the  exception  for  which  special  

reasons are to be stated.

16. The death sentence has been relegated to the ‘rarest of  

rare’ cases after the landmark decision of the Constitution  

Bench in  Bachan Singh vs.  State of Punjab2.   The most  

significant aspect of the decision in  Bachan Singh’s case  

(supra) is the mandate laid down by the Constitution Bench  

that  Courts  must  not  only look at  the  crime but  also the  

offender and give due consideration to the circumstances of  

the offender  at  the time of commission of the crime. This  

decision rules the field even today and no discussion on the  

subject of death penalty is complete without a reference to  

Bachan Singh’s case (supra). To quote:  

“201. … As we read Sections 354(3) and 235(2)  and other related provisions of the Code of 1973, it is  quite  clear  to  us  that  for  making  the  choice  of  punishment  or  for  ascertaining  the  existence  or  absence  of  “special  reasons”  in  that  context,  the  court must pay due regard   both   to     the crime and the    criminal. What is the relative weight to be given to  the aggravating and mitigating factors, depends on  the facts  and circumstances of the particular  case.  More  often  than  not,  these  two  aspects  are  so  intertwined  that  it  is  difficult  to  give  a  separate  treatment to each of them. This is so because ‘style is  the  man’.  In  many  cases,  the  extremely  cruel  or  beastly manner of the commission of murder is itself  a demonstrated index of the depraved character of  the  perpetrator.  That  is  why,  it  is  not  desirable  to  consider  the  circumstances  of  the  crime  and  the  

2 (1980) 2 SCC 684 11

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circumstances  of  the  criminal  in  two  separate  watertight compartments. In a sense,  to kill is to be  cruel and, therefore, all murders are cruel.  But such  cruelty may vary in its degree of culpability. And it is  only when the culpability assumes the proportion of  extreme  depravity  that  “special  reasons”  can  legitimately be said to exist.

xxx  xxx  xxx

209. There  are  numerous  other  circumstances  justifying the passing of the lighter sentence; as there  are countervailing circumstances of aggravation. “We  cannot  obviously  feed  into  a  judicial  computer  all  such  situations  since  they  are  astrological  imponderables  in  an  imperfect  and  undulating  society.” Nonetheless, it cannot be over-emphasized  that the scope and concept of  mitigating factors in  the area of death penalty must receive a liberal and  expansive construction by the courts in accord with  the  sentencing  policy writ  large  in  Section  354(3).  Judges  should  never  be  bloodthirsty.  Hanging  of  murderers has never been too good for them. Facts  and figures, albeit incomplete, furnished by the Union  of India, show that in the past, Courts have inflicted  the  extreme penalty  with  extreme infrequency –  a  fact  which  attests  to  the  caution  and  compassion  which  they  have  always  brought  to  bear  on  the  exercise of their sentencing discretion in so grave a  matter.  It  is,  therefore,  imperative  to  voice  the  concern  that  courts,  aided by the broad illustrative  guide-lines  indicated  by  us,  will  discharge  the  onerous function with evermore scrupulous care and  humane  concern,  directed  along  the  highroad  of  legislative policy outlined in Section 354(3), viz., that  for persons convicted of murder, life imprisonment is  the rule and death sentence an exception. A real and  abiding  concern  for  the  dignity  of  human  life  postulates  resistance to  taking a  life  through law’s  instrumentality.  That  ought not to be done save in  the rarest of rare cases when the alternative option is  unquestionably foreclosed.”

(Emphasis supplied)

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17. The  three-Judge  Bench  decision  in  Machhi  Singh and  

Others vs.  State of  Punjab3  culled  out  the  guidelines  

indicated in  Bachan Singh’s case (supra), which would be  

required  to  be  applied  to  the  facts  of  each  case  while  

imposing  a  sentence  of  death.   Emphasis  was laid  in  the  

decision  in  Machhi  Singh’s case  (supra)  on  drawing  a  

‘balance  sheet’  of  mitigating  and  aggravating  factors.  To  

quote:  

“38. xxx xxx xxx (i) The extreme penalty  of  death need  not  be  

inflicted except in gravest cases of extreme  culpability.

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

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

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

3 (1983) 3 SCC 470 13

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aggravating  and  the  mitigating  circumstances before the option is exercised.

39. In order to apply these guidelines inter alia the  following questions may be asked and answered:

(a) Is  there  something  uncommon  about  the  crime  which  renders  sentence  of  imprisonment for life inadequate and calls for  a death sentence?

(b) Are the circumstances of the crime such that  there is  no alternative but  to impose death  sentence  even  after  according  maximum  weightage  to  the  mitigating  circumstances  which speak in favour of the offender?"

40. If upon taking an overall global view of all the  circumstances in the light of the aforesaid proposition  and taking into account the answers to the questions  posed  hereinabove,  the  circumstances  of  the  case  are such that death sentence is warranted, the court  would proceed to do so.”

(Emphasis supplied)

18. When there are binding decisions, judicial comity expects  

and requires the same to be followed. Judicial comity is an  

integral part of judicial discipline and judicial discipline the  

cornerstone of judicial integrity. No doubt, in case there are  

newer  dimensions  not  in  conflict  with  the  ratio  of  larger  

bench decisions or where there is anything to be added to  

and  explained,  it  is  always  permissible  to  introduce  the  

same.  Poverty,  socio-economic,  psychic  compulsions,  

undeserved adversities in life are thus some of the mitigating  

factors to  be considered,  in  addition to those indicated  in  

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Bachan  Singh and  Machhi  Singh cases.  Thus,  we  are  

bound to analyze the facts in the light of the aggravating and  

mitigating factors indicated in  the binding decisions which  

have influenced the commission of the crime, the criminal,  

and his circumstances, while considering the sentence.   

19. In  a  recent  decision  in  Shankar  Kisanrao Khade vs.  

State of Maharashtra4, this Court has scanned almost all  

the post  Bachan Singh (supra) decisions rendered by this  

Court on death sentence and the principles laid down therein  

have been restated. Referring to the recent decisions (fifteen  

years),  the  principal  reasons  considered  as  aggravating  

factors for conferring death penalty have been summarized  

with reference to the decisions in support of the same. To  

quote paragraph 122 of Shankar Kisanrao’s case (supra):

“122.  The principal  reasons for  confirming the  death  penalty in the above cases include:

(1) the  cruel,  diabolic,  brutal,  depraved  and  gruesome  nature  of  the  crime  (Jumman  Khan5,  Dhananjoy Chatterjee6,  Laxman Naik7,  Kamta Tewari8,  Nirmal  Singh9,  Jai  Kumar10,  Satish11,  Bantu12,  Ankush  

4 (2013) 5 SCC 546 5 Jumman Khan vs. State of U.P. , (1191) 1 SCC 752: (1991) SCC (Cri) 283 6 Dhananjoy Chatterjee vs. State of W.B., (1994) 2 SCC 220: (1994) SCC (Cri) 358 7 Laxman Naik vs. State of Orissa, (1994) 3 SCC 381: (1994) SCC (Cri) 656 8 Kamta Tiwari vs. State of M.P., (1996) 6 SCC 250: (1996) SCC (Cri) 1298 9 Nirmal Singh vs. State of Haryana, (1999) 3 SCC 670: (1999) SCC (Cri) 472 10 Jai Kumar vs. State of M.P., (1999) 5 SCC 1: (1999) SCC (Cri) 638 11 State of U.P. vs. Satish, (2005) 3 SCC 114: (2005)  SCC (Cri) 642 12 Bantu vs. State of U.P., (2008) 11 SCC 113: (2009) 1 SCC (Cri) 353

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Maruti  Shinde13,  B.A.  Umesh14,  Mohd.  Mannan15 and  Rajendra Pralhadrao Wasnik16);

(2) the crime results in public abhorrence, shocks  the judicial conscience or the conscience of society or  the  community  (Dhananjoy  Chatterjee  (supra),  Jai   Kumar  (supra),  Ankush  Maruti  Shinde  (supra) and  Mohd. Mannan (supra));

(3) the reform or rehabilitation of the convict is not  likely  or  that  he  would  be  a  menace  to  society  (Jai  Kumar (supra), B.A. Umesh (supra) and Mohd. Mannan  (supra));

(4) the  victims  were  defenseless  (Dhananjoy  Chatterjee (supra), Laxman Naik (supra), Kamta Tewari   (supra), Ankush Maruti Shinde (supra), Mohd. Mannan  (supra) and Rajendra Pralhadrao Wasnik (supra));

(5) the crime was either unprovoked or that it was  premeditated  (Dhananjoy  Chatterjee  (supra),  Laxman  Naik  (supra),  Kamta  Tewari  (supra),  Nirmal  Singh   (supra),  Jai  Kumar  (supra),  Ankush  Maruti  Shinde   (supra), B.A. Umesh (supra) and Mohd. Mannan (supra))  and in three cases the antecedents or the prior history  of  the  convict  was  taken  into  consideration  (Shivu17,  B.A.  Umesh  (supra) and  Rajendra  Pralhadrao  Wasnik  (supra)).”

(Emphasis added)

20. The  mitigating  factors  governing  the  award  of  life  

sentence  in  a  murder  case,  have  been  summarized  at  

paragraph 106. To quote:

13 Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667: (2009) 3  (Cri) 308 14 B.A. Umesh vs. State of Karnataka,  (2011) 3 SCC 85: (2011) 1 SCC (Cri) 801  15 Mohd. Mannan vs. State of Bihar, (2011) 5 SCC 317: (2011) 2 SCC (Cri) 626 16 Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37: (2012)  2      

  SCC (Cri) 30 17 Shivu vs. High Court of Karnataka, (2007) 4 SCC 713: (2007) 2 SCC (Cri) 686

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“106. A study of the above cases suggests that there  are several reasons, cumulatively taken, for converting  the  death  penalty  to  that  of  imprisonment  for  life.  However,  some  of  the  factors  that  have  had  an  influence in commutation include:

(1) the  young  age  of  the  accused  [Amit  v.  State  of  Maharashtra18 aged 20 years,  Rahul19 aged 24 years,  Santosh  Kumar  Singh20 aged  24  years,  Rameshbhai  Chandubhai      Rathod (2)21 aged 28 years and Amit v.  State of U.P.22 aged 28 years];

(2) the  possibility  of  reforming  and  rehabilitating  the  accused (in  Santosh Kumar Singh (supra) and  Amit v.  State  of  U.P.  (supra) the  accused,  incidentally,  were  young when they committed the crime);

(3) the  accused had no prior  criminal  record (Nirmal  Singh (supra),  Raju23,  Bantu (supra),  Amit  v.  State  of   Maharashtra (supra), Surendra Pal Shivbalakpal24, Rahul  (supra) and Amit v. State of U.P. (supra));

(4) the accused was not likely to be a menace or threat  or danger to society or the community (Nirmal Singh  (supra), Mohd. Chaman25, Raju (supra), Bantu (supra),   Surendra  Pal  Shivbalakpal  (supra),  Rahul  (supra) and  Amit v. State of U.P. (supra));

(5) a few other reasons need to be mentioned such as  the accused having been acquitted by one of the courts  (State  of  T.N.   v.  Suresh26,  State  of  Maharashtra  v.  Suresh27, Bharat  Fakira  Dhiwar28,  Mansingh29 and  Santosh Kumar Singh (supra));

18 (2003) 8 SCC 93 : (2003) SCC (Cri) 1959 19 Rahul vs. State of Maharastra, (2005) 10 SCC 322 : (2005) SCC (Cri) 1516 20 Santosh Kumar Singh vs. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469 21 (2011) 2 SCC 764 : (2011) 1 SCC (Cri) 883 22 (2012) 4 SCC 107: (2012) 2 SCC (Cri) 590 23 Raju vs. State of Haryana, (2001) 9 SCC 50: (2002) SCC (Cri) 408 24 Surendra Pal Shivbalakpal vs. State of Gujarat, (2005) 3 SCC 127: (2005) SCC  (Cri) 653 25 Mohd. Chaman vs. State (NCT of Delhi), (2001) 2 SCC 28 : (2001) SCC (Cri) 278 26 (1998) 2 SCC 372 : (1998) SCC (Cri) 751 27 (2000) 1 SCC 471 : (2000) SCC (Cri) 263  28 State of Maharashtra vs. Bharat Faikra Dhiwar, (2002) 1 SCC 622: (2002) SCC  (Cri) 217    29 State of Maharashtra vs. Man Singh, (2005) 3 SCC 131: (2005) SCC (Cri) 657

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(6) the  crime  was  not  premeditated  (Kumudi  Lal30,  Akhtar31, Raju (supra) and Amrit Singh32);

(7) the  case  was  one  of  circumstantial  evidence  (Mansingh (supra) and Bishnu Prasad Sinha33.

In one case, commutation was ordered since there was  apparently no “exceptional” feature warranting a death  penalty  (Kumudi  Lal  (supra))  and  in  another  case  because the Trial Court had awarded life sentence but  the High Court enhanced it to death (Haresh Mohandas  Rajput34).”

(Emphasis added)

21. At  this  juncture,  it  might  be  useful  to  refer  also to the  

decision in Ediga Anamma’s case (supra). In that case, this  

Court has held that where the offender suffers from socio-

economic,  psychic  or  penal  compulsions  insufficient  to  

attract a legal exception or to downgrade the crime into a  

lesser one, judicial commutation is permissible. To quote:

“26. ...Where the offender suffers from socio-economic,  psychic  or  penal  compulsions insufficient  to  attract  a  legal exception or to downgrade the crime into a lesser  one, judicial commutation is permissible. Other general  social  pressures,  warranting  judicial  notice,  with  an  extenuating impact may, in special  cases, induce the  lesser  penalty.  Extraordinary  features  in  the  judicial  process, such as that the death sentence has hung over  the  head  of  the  culprit  excruciatingly  long,  may  persuade the  court  to  be  compassionate.  Likewise,  if  

30 Kumudi Lal vs. State of U.P., (1999) 4 SCC 108 : (1999) SCC (Cri) 491 31 Akhtar vs. State of U.P., (1999) 6 SCC 60 : 1999 SCC (Cri) 1058 32 Amrit Singh vs. State of Punjab, (2006) 12 SCC 79 : (2007) 2 SCC (Cri) 397 33 Bishnu Prasad Sinha vs. State of Assam, (2007) 11 SCC 467 : (2008) 1 SCC  (Cri) 766 34 Haresh Mohandas Rajput vs. State of Maharastra, (2011) 12 SCC 56 : (2012) 1 SCC  (Cri) 359

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others involved in the crime and similarly situated have  received  the  benefit  of  life  imprisonment  or  if  the  offence is  only constructive,  being under Section  302  read with Section 149, or again the accused has acted  suddenly  under  another's  instigation,  without  premeditation, perhaps the court may humanely opt for  life, even like where a just cause or real suspicion of  wifely infidelity pushed the criminal into the crime. …”

(Emphasis supplied)

22. Ediga Anamma’s   case (supra) was given the stamp of  

approval in a subsequent decision by a three-Judge Bench in  

Dalbir  Singh vs.  State  of  Punjab35 holding  also  that  

“undeserved adversities of childhood or later” would also be  

a mitigating factor.

23. This Court in Ediga Anamma’s case (supra) has referred  

to a few other aggravating factors as well. To quote:  

“26. … On the other hand,  the weapons used and the  manner  of  their  use,  the  horrendous  features  of  the  crime and hapless, helpless state of the victim, and the  like, steal the heart of the law for a sterner sentence.  We cannot obviously feed into a judicial  computer  all  such  situations since  they  are  astrological  imponderables in an imperfect and undulating society.  A legal policy on life or death cannot be left for ad hoc  mood or individual predilection and so we have sought  to  objectify  to  the  extent  possible,  abandoning  retributive ruthlessness, amending the deterrent creed  and  accenting  the  trend  against  the  extreme  and  irrevocable penalty of putting out life.”

(Emphasis supplied)

35 AIR 1979 SC 1384 19

Page 20

24.  Socio-economic  compulsions  such  as  poverty  are  also  

factors that are to be considered by Courts while awarding a  

sentence. This view has been taken in the decision in Sushil  

Kumar vs.  State of Punjab36 where this Court  refrained  

from awarding the death sentence because of the extreme  

poverty  of  the  accused.  The  facts  in  the  case  of  Sushil  

Kumar (supra) are very similar to the present case. In that  

case also, the accused had committed the murder of his wife  

and two young children due to extreme poverty. Later, he  

allegedly attempted to take his own life by consuming some  

tablets.  The accused had been sentenced to death by the  

trial court and the sentence was confirmed by the High Court.  

This Court, while reducing the sentence to life imprisonment  

observed:

“46.  Extreme    poverty   had  driven  the  appellant  to    commit  the  gruesome murder  of  three  of  his  very  near and dear family members - his wife, minor son  and daughter. There is nothing on record to show that  appellant is a habitual offender. He appears to be a  peace-loving,  law  abiding  citizen  but  as  he  was  poverty-stricken,  he  thought  in  his  wisdom  to  completely eliminate him family so that all problems  would come to an end. Precisely, this appears to be  the  reason  for  him  to  consume  some  poisonous  substances, after committing the offence of murder. 47. No witness has complained about the appellant’s  bad or intolerable behaviour in the past. Many people  had visited his house after the incident is indicative of  the fact that he had cordial relations with all. He is  

36 (2009) 10 SCC 434 20

Page 21

now about thirty-five years of age and there appear  to  be  fairly  good  chances  of  the  appellant  getting  reformed and becoming a good citizen.”

(Emphasis supplied)

25. In the case before us, it  has come in evidence that the  

appellant suffered from economic and psychic compulsions.  

The possibility of reforming and rehabilitating the accused  

cannot  be  ruled  out.  The  accused  had  no  prior  criminal  

record. On the facts available to the Court, it can be safely  

said that the accused is not likely to be menace or threat or  

danger to society. There is nothing to show that he had any  

previous  criminal  background.  The  appellant  had  in  fact  

intended to wipe out the whole family including himself on  

account of abject poverty. This aspect of the matter has not  

been properly appreciated by both the Sessions Court and  

the  High  Court  which  held  that  the  appellant  had  the  

intention  to  only  wipe  out  others  and  had  not  even  

attempted, and he was not prepared either, for suicide. We  

are  afraid  the  Courts  have  not  appreciated  the  evidence  

properly. Had his daughter  not interrupted him asking the  

question why he was killing her, his intended conduct would  

have  followed,  as  is  evident  from his  response that  all  of  

them needed to go from the world. The crucial and turning  

point of the change of heart is the conversation she had with  21

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him. It is significant to note that he had not permitted, in the  

way he executed the murder of his wife and two sons to let  

them  even  scream,  let  alone  ask  any  question.  It  so  

happened by chance that despite the stab injuries inflicted  

on the  daughter,  she  managed  to weepingly  question her  

father why he was acting in such a manner. The change of  

heart is also discernible from the fact that he had given water  

to the injured daughter.  After  this,  he no longer  used the  

weapon for finishing her. He tried once again by taking her to  

his lap and stifling her with the aid of a pillow. However, as  

can  be  seen  from his  own statement,  he  could  not  finish  

killing her. Thereafter, he went straight to the police station  

and gave a statement of what he had done.

26. If we analyse the facts of the case in the backdrop of the  

circumstances of the appellant at the time of commission of  

the offence and on applying the crime test and the criminal  

test, it is fairly clear that the case does not fall  under the  

rarest  of  rare  category  of  cases  so  as  to  warrant  a  

punishment  of  death.  The  ‘individually  inconclusive  and  

cumulatively marginal facts and circumstances’ tend towards  

awarding lesser sentence of life imprisonment.

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27. In the above facts and circumstances of the case, while  

upholding the conviction of the appellant under Section 302  

and Section 307 of IPC, we modify the sentence as follows:

(a) For offence under Section 302 of IPC, the appellant is  

sentenced to life imprisonment.

(b) For offence under Section 307 of IPC, the appellant is  

convicted to imprisonment for a period of seven years.  

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28. Imprisonment  for  life  of  a  convict  is  till  the  end  of  his  

biological  life  as  held  by the  Constitution Bench in  Gopal  

Vinayak  Godse vs.  The  State  of  Maharashtra  and  

Others37 case (supra). Hence, there is no point in saying that  

the sentences would run consecutively. However, we make it  

clear that  in  case the sentence of imprisonment for life is  

remitted or commuted to any specified period (in any case,  

not less than fourteen years in view of Section 433A of the  

Cr.PC.), the sentence of imprisonment under Section 307 of  

IPC shall commence thereafter.

29. The appeals are allowed as above.            

………………………………….…..…………J.             (SUDHANSU JYOTI  

MUKHOPADHAYA)

……….……..…...……..……………………J.  (KURIAN JOSEPH)

New Delhi; September 10, 2013.  

37 AIR 1961 SC 600 24