1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1969 OF 2009
Ajitsingh Harnamsingh Gujral .. Appellant
-versus-
State of Maharashtra .. Respondent
J U D G M E N T
MARKANDEY KATJU, J.
"Qareeb hai yaaron roz-e-
mahshar,
Chupega kushton ka khoon
kyonkar,
Jo chup rahegi zubaan-e-
khanjar,
Lahu pukaaregaa aasteen
ka"
- Ameer Minai
2
1. Heard Shri Jaspal Singh, learned senior counsel for the
appellant and learned counsel for the State of Maharashtra for the
respondent. This is an appeal by special leave against the
judgment of the Bombay High Court dated 26.6.2006, which has
confirmed the death sentence of the appellant given by the learned
Sessions Judge dated 19.3.2005.
2. The accused is a businessman. He was a married man having
one son and two daughters. He was married with the deceased
Kanwaljeet Kaur about 25 to 27 years prior to the incident dated
10.4.2003. He had a son Amandeep Singh aged about 20 years
and two daughters viz. Neeti and Taniya, aged about 22 years and
13 years respectively. All of them were allegedly killed by the
accused in the early hours of the morning of 10.4.2003 by pouring
petrol on their persons and setting them on fire.
3. Earlier the accused had lived at Ludhiana. However, it
appears that he suffered business losses there, and so he shifted to
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Mumbai with his family and started residing in Jyotsna Building.
Initially he was doing business of catering in the same building,
and his son Amandeepsingh was assisting him in that business.
After some time, the accused shifted his catering business to
Kamlesh building which is situated in the same locality of Shere-
Punjab colony, Andheri. There were several employees of the
accused to assist him in the business of catering. Those servants
used to sleep in front of his flat in the verandah. The accused was
having a Maruti Zen Car and his son was having a motorcycle.
4. According to the prosecution, the accused was a hot
tempered man. He was like a dictator in the family, and dominated
his wife and children in the family, on account of which there was
resentment in his family members. Further, it is alleged by the
prosecution that the accused was ill-treating his wife and twice he
had assaulted her with a leather belt.
5. On the night of 9.4.2003 the accused and all his family
members were in their flat. All the servants were sleeping outside.
4
The accused was seen coming to the flat between the night of
9.4.2003 and 10.4.2003 at about midnight. There were two bed
rooms in the flat of the accused. Ordinarily the accused and his
wife used to sleep in one bed room while the children slept in
another. There was a quarrel on the night of 9.4.2003 between the
accused and his wife after he had returned back from work.
Between 4.00 and 4.30 a.m. some of the servants heard a big noise
of something bursting followed by or preceded by someone crying
in pain. The servants woke up and found that the flat of the
accused was on fire. There was utter confusion and chaos.
Somebody phoned to the fire brigade and a fire engine came. The
police also followed. The door of the flat was open, and it was
smoky inside. Strong smell of petrol was coming from there. The
fire was extinguished, and then only could they enter the bed room,
where the four bodies of the members of the family of the accused
viz. his wife, his son and two daughters were found burnt, and they
were dead. The police made an inquiry from the servants and then
a report of murder was lodged by PSI Prakash Shivram Kamble.
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The investigation soon started and inquest Panchanama, spot
panchanama etc. were made. The bodies were then sent for post
mortem.
6. In their preliminary inquiry, the police found that the Maruti
Zen car of the accused was not there and the accused was also not
there. Attempts were made to trace and search him, and ultimately
the accused was arrested on or near Kishangadh, Madanganj in
Ajmer District in Rajasthan on 14.4.2003. The car which the
accused was driving was seized, and so also an amount of
Rs.7,68,080/- in cash along with about 24 silver coins, 7 safari
dresses and 7 turbans. A police officer was deputed from Mumbai
and the accused was brought to Mumbai.
7. The statement of the accused was recorded under Section 27
of the Evidence Act and a red bucket from which he had allegedly
thrown petrol on the persons of all the four members of his family
was recovered at his instance.
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8. All the material recovered by the police from the spot viz.
burned clothes, petrol can, bucket, broken glass pieces, etc. were
sent to the Chemical Analyzer.
9. In the inquest, it was found that the son of the accused,
Amandeepsingh had certain injuries on his body. Because of fire,
the glass pieces were shattered in the room and one piece was
removed from one of the injuries on the stomach of the son. An
expert electrician was called, and he inspected the premises and
opined that there was no short circuit. The Air-Conditioner's
compressor was intact. Post mortem of all the bodies was
conducted and it was found that all the four persons died as a result
of burning.
10. During the course of investigation the statements of relatives
of the deceased, neighbours, and the servants of the accused were
recorded. All the seized property was sent to the Chemical
Analyzer for opinion. Thereafter the charge sheet was filed.
Separate charges under Section 302 of the Indian Penal Code was
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framed against the accused for committing murders of his wife
Kanwaljeet Kaur, his son Amandeepsingh and two daughters Neeti
and Taniya. The accused pleaded not guilty to the charges.
Thereafter, the Additional Sessions Judge, recorded the evidence
of the prosecution witnesses. In all 19 witnesses were examined as
the prosecution witnesses. Thereafter the statement of the accused
under Section 313 of the Criminal Procedure Code was recorded.
The accused expressed his desire to examine witnesses in defence
of his plea of alibi and, accordingly four witnesses were examined
by the accused. The Additional Sessions Judge heard the
arguments and also took on record the written arguments submitted
by the advocate for the accused and, ultimately came to the
conclusion that the prosecution had proved its case beyond
reasonable doubt that the accused committed murders of all four
members of his family. So far as sentence was concerned, the
Additional Sessions Judge came to the conclusion, after
considering the cases cited before him by both the sides, that this
was a rarest of the rare case and imposed penalty of death upon the
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accused.
11. Two question arise before us (a) is the appellant guilty of
murder? (b) if he is, should he be given the death sentence? We
shall deal with these separately.
12. The appellant filed an appeal before the Bombay High Court
and the matter was also sent for confirmation for the death
sentence. By the impugned judgment the High Court dismissed
the appeal and upheld the death sentence, and hence this appeal
before us.
Is the appellant guilty of murder ?
13. Mr. Jaspal Singh, learned counsel for the appellant, first
submitted that the appellant was leading a happy married life for
more than 25 years before the incident and hence he had no motive
to kill his wife and 3 children. He submitted that the prosecution
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has not been able to prove any motive, and motive is important in
cases of circumstantial evidence like the present one.
14. This is a case relying entirely on circumstantial evidence, as
there are no eye witnesses of the crime. It is true that motive is
important in cases of circumstantial evidence, but that does not
mean that in all cases of circumstantial evidence if the prosecution
has been unable to satisfactorily prove a motive its case must fail.
It all depends on the facts and circumstances of the case. As is
often said, men may lie but circumstances do not.
15. The mother in law of the appellant Smt. Bhagwantkaur
Oberoi, PW5 has stated in her deposition :
........."I was having three daughters Kanwaljeetkaur,
Harjeetkaur and Harvinderkaur. Accused before the
court is my son-in-law. He was married to my daughter
Kanwaljeetkaur 25-26 years before. Accused was
residing along with his wife and children at Sher-e-
Punjab colony, Andheri, Mumbai. Accused came to
Mumbai two years before. The relations between my
daughter and accused were not cordial and their
matrimonial life was unhappy due to very angry nature of
the accused. I used to go to the house of my daughter
and vice-versa occasionally. There was talk between me
and my daughter Kanwaljeetkaur. I used to ask my
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daughter how she is and how her husband is. At that
time, she used to narrate to me that her husband is of very
angry nature. She was very unhappy in her matrimonial
life. She was subjected to the cruelty by the accused.
She further told me that accused was behaving like a
dictator. Children of my daughter Kanwaljeetkaur also
used to tell me regarding angry nature of accused. My
daughter also told me that accused used to beat her by
leather belt. However, my daughter was behaving with
the accused by way of adaptive nature. Whenever
Kanwaljeetkaur was narrating me regarding ill treatment
and harassment, I used to persuade her. I also told my
daughter Kanwaljeetkaur that she should leave accused
and reside separately along with her children. As I know
the nature of the accused I never dared to persuade him.
On 19th March, 2003, there was birthday ceremony
of my grandson Simarpalsingh. I invited my daughter
Kanwaljeetkaur and her family members telephonically
to attend the function at Mira road at my residence.
Kanwaljeetkaur replied on telephone that she is unable to
attend the function as she is busy with some work. After
sometime my daughter Kanwaljeetkaur again made a
telephone call to me and told that at the time of earlier
telephone her husband was present and he quarreled and
she along with her children were not allowed to attend
the said function. At that time, Kanwaljeetkaur was
crying on the telephone and while crying she told that she
is very unhappy and she may die. I told my other
daughter namely Harjeetkaur to ring Kanwaljeetkaur as
there was quarrel between her and the accused. On that
very day, at about 7 p.m. I received a telephonic call
from Niti and she told that her father agreed and
accordingly, we are attending the function. Accordingly,
Kanwaljeetkaur and accused and both daughters attended
the function. At that time, accused was under the
influence of liquor. While leaving my residence after the
function accused told Kanwaljeetkaur and her daughters
that he will put you all below the running truck to die.
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On 9th April, 2003, at about 11.30 p.m. I received a
telephonic call from the accused from his residence. On
10th April, 2003, at about 6 a.m. I received telephonic call
from Phuldeepsingh Marva-PW3 regarding fire on the
flat of accused. Accordingly, I went to the place of the
incident. When I reached, I did not find the accused
present. When I reached, four dead bodies were already
kept in front of the flat. I became unconscious noticing
the dead bodies. Police recorded my statement."
16. Phuldeepsingh Marva, PW3 also supported the prosecution
case. His wife and the wife of the appellant were real sisters. In
his deposition he has stated :
..........."Before shifting to Mumbai, accused was doing
business at Ludhiana, Punjab in automobile spare parts.
Accused suffered loss in his business at Ludhiana and
that is why he shifted to Mumbai. We were having
cordial relations and we family members used to visit his
house and vice-versa. The relations between accused and
his entire family members were tense. Accused used to
behave with his family members as a dictator. He was
not having cordial relations with his family members.
Son and daughters of the accused did not like the
dictatorship of accused and that is why there were always
quarrels between accused and his family. Accused used
to tell me also that 75% decisions would be mine in my
house. I persuaded the accused several times to change
his nature. However, the accused never changed his
nature and he was not ready to reduce his dictatorship.
There was also telephone in the house of accused.
On 10th April, 2003, I was at my residence. I received a
telephonic call from the landlord and estate agent of the
accused at about 5.30 to 5.45 a.m. that there is a fire in
the flat of the accused. I along with my wife rushed to
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the place of incident in my car. At about 6.30 a.m. I
reached the place of incident. When I reached I saw fire
brigade vehicles, police staff, fire brigade staff and four
dead bodies which were kept in front of the flat. I saw all
those four dead bodies. I identified four dead bodies i.e.
of Kanwaljeetkaur, Amandeepsingh, Niti and Taniya. I
noticed that accused along with his car was not present.
Accused used to park his Zen car in front of the flat near
the gate. I saw four dead bodies who sustained burn
injuries on their person. I saw the bangles in the wrist of
Kanwaljeetkaur. I also saw a piece of glass in the body
of Amandeepsingh near wrist. Article 1 - pair of bangles
before the court was in the hands of Kanwaljeetkaur.
Police recorded my statement."
17. We see no reason to disbelieve PW3 or PW5. From their
testimony it is evident that the appellant was a dictatorial
personality, who wanted to dominate over his family and was also
hot tempered. He would even beat his wife (deceased) with a
leather belt.
18. Mr. Jaspal Singh, learned counsel for the appellant, submitted
that if the relations between the accused and his wife were strained
why did his wife Kanwaljeetkaur continue to live with him for 25
years. In this connection, we have only to point out that in India
many women accept the bad treatment of their husbands and
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continue living with them because a girl at the time of marriage is
told by her parents that after marriage her place is with her
husband and she has to accept whatever treatment she gets from
her husband and in- laws. She has to `nibhao' all treatment after
marriage. Hence she continues living with him even if her
husband is a brutish, nasty and loathsome person. However, it is
evident that when the children of the accused grew up they often
resisted and protested against the dictatorial behaviour of the
appellant, and this led to a lot of friction in the family. Hence we
are of the opinion that the appellant did not have a happy married
life with his wife, rather it was just the reverse.
19. As to what motivated the appellant to commit this gruesome
and ghastly act is impossible for us to say because the Court cannot
enter into the mind of a human being and find out his motive. We
can only speculate.
20. This is a case of circumstantial evidence and in cases of
circumstantial evidence the settled law is that the prosecution must
14
establish the entire chain of circumstances which connects the
accused to the crime vide Wakkar and Anr. vs. State of Uttar
Pradesh 2011(3) SCC 306 = JT 2011(2) SC 502, Krishnan vs.
State represented by Inspector of police 2008(15)SCC 430=JT
2008(6) SC 282, Sharad Birdhichand Sarda vs. State of
Maharashtra AIR 1984 SC 1622, Mohd. Mannan alias Abdul
Mannan vs. State of Bihar 2011(5) SCC 317 (vide para 14), etc.
21. We have, therefore, to see whether the prosecution has been
able to establish the chain of circumstances connecting the accused
to the crime.
22. The accused was last seen with the deceased. It has come in
the evidence of Vinodkumar Gudri Mandal, PW16 that he was
working with the accused at Sher-E-Punjab caterers. This witness
along with some servants used to sleep near the bedroom of the flat
of the accused in the veranda. He has stated that at about midnight
when he was in the veranda in front of the flat of the accused he
15
heard loud sound of quarrels from the flat of the accused. He
identified the sounds as the voice of the accused and his wife.
23. This witness has stated that he was on talking terms with the
family members of the accused. Since he was known to the
accused and his family members he could obviously recognize
their voices. Hence we see no reason to disbelieve his evidence
that at about midnight of 9.4.2003 there was a quarrel between the
appellant and his wife. No reason has been ascribed by the
defence counsel as to why this witness should make a false
statement.
24. This witness has also stated that on 10.4.2003 at 4.30 a.m. he
heard a big sound in the building. He and the other servants saw
fire in the flat of the accused. They tried to extinguish the fire with
the help of water and sand but were unsuccessful. One member of
the society informed the fire brigade telephonically and the fire
brigade came and extinguished the fire. This witness identified the
4 dead bodies inside the flat of the accused. He also noticed that
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the Zen car was not at its parking place and the accused was also
not present.
25. This witness has also stated in his evidence that one month
before the incident when he returned to the building where the
incident took place he went inside the flat of the accused and
inadvertently opened a white color plastic can and he noticed
petrol in the said can. The witness identified the said can before
the court.
26. We see no reason to disbelieve this witness Vinodkumar
Gudri Mandal. No enmity has been shown between him and the
accused and no motive shown why he should give a false statement
against the accused.
27. PW4, Kamalsingh Mahipatsingh Rawat was working as a
cook in the hotel cum catering of the appellant. He has stated in
his evidence that after his duty ended at 11.30 p.m. he used to sleep
in front of the flat of the accused in Jyotsna building where the
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accused was residing with his wife and children. He said that he
knows all the family members of the accused.
28. In his evidence he has stated that at about 11.30 to 11.45 p.m.
he left the hotel and went towards the Jyotsna building where he
sleeps in front of the flat of the accused. He has further stated that
about half an hour thereafter the accused also returned to his
residence. At about 4.00 to 4.30 a.m. he heard a noise of bursting
of something and smoke was coming out from the flat which was
on fire. He also heard the sound of crying from the said flat. He
could not enter the flat as it was too smoky. Thereafter the fire
brigade came and extinguished the fire. He entered the flat and
saw the dead bodies of the deceased. The accused was not found
there, nor his Maruti car. The witness had seen the Maruti car
parked in front of the flat when he went to sleep but it was not
found in the morning.
29. The evidences of PW3, PW4 and PW 5, which we see no
reason to disbelieve, thus fully establish that the appellant was last
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seen with his wife at about midnight and was in fact quarreling
with her at that time.
30. The incident happened at 4 or 4.30 a.m. and hence there was
a time gap of only about 4 hours from the time when the appellant
was seen with his wife (deceased) and the time of the incident.
Thus he was last seen with his wife and there was only a short
interval between this and the fire.
31. The last seen theory comes into play where the time gap
between the point of time when the accused and deceased were last
seen alive and when the deceased is found dead is so small that the
possibility of any person other than the accused being the author of
the crime becomes impossible, vide Mohd. Azad alias Samin vs.
State of West Bengal 2008(15) SCC 449 = JT 2008(11) SC658
and State through Central Bureau of Investigation vs.
Mahender Singh Dahiya 2011(3) SCC 109 = JT 2011(1) SC 545,
S.K. Yusuf vs. State of West Bengal, J.T. 2011 (6) SC 640 (para
14).
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32. In our opinion, since the accused was last seen with his wife
and the fire broke out about 4 hours thereafter it was for him to
properly explain how this incident happened, which he has not
done. Hence this is one of the strong links in the chain connecting
the accused with the crime.
33. The victims died in the house of the accused, and he was
there according to the testimony of the above witnesses. The
incident took place at a time when there was no outsider or
stranger who would have ordinarily entered the house of the
accused without resistance and moreover it was most natural for
the accused to be present in his own house during the night.
34. Another link in the chain of circumstances connecting the
accused with the crime is his sudden disappearance from the scene
after the incident. The version of the accused is that he left the
scene as he had received a message that his sister in Delhi who was
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suffering from cancer had become critical, and hence he rushed
from Mumbai to be with her. We are not at all convinced with the
story. When a person living in Mumbai receives a message that
his relative is critical in Delhi, he would have ordinarily take a
flight from Mumbai to Delhi, and would not go by car, which
journey would take several days. A flight from Mumbai to Delhi
takes two hours. There was no shortage of money with the
appellant as he was found with cash of Rs.7,68,080/-.
35. Leaned counsel for the appellant submitted that the appellant
first went by car to the Dargah in Ajmer to pray for his sister. We
cannot accept this version. When a relative in Delhi is critical, a
person in Mumbai would have rushed to Delhi by flight to see her
and would have gone to a Dargah only subsequently. Under
Section 114 of Evidence Act we have to presume the natural
conduct of persons. Section 114 states :
"The Court may presume the existence of any fact which
it thinks likely to have happened, regard being had to the
common course of events, human conduct, and public
and private business"
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36. We agree with the High Court which has observed in the
impugned judgment :
........."We are not at all in agreement with the
submissions made by the advocate for the accused in this
regard. There are many reasons for this. The first reason
is that there is nothing on record to show that a day or
two before the accused left Mumbai on 10th April, 2003,
the accused had received any urgent message from the
wife of D.W.3 that his presence was imminently and
immediately required at Delhi and her condition was
critical or that the accused received SOS, that he should
immediately rush to Delhi. Secondly, if the accused had
earlier planned to go to Delhi in such a case of urgency
and exigency, ordinarily he should have and could have
traveled by flight or train and would not have driven to
Delhi by his car. Thirdly, looking to the age of accused,
who was around 50 to 52 years at that time, ordinarily the
accused would not have gone alone on such a long
journey. He had a number of servants at his disposal, at
least 7 were sleeping in front of his flat in the veranda at
that very night, he could have taken one of them as
assistant on the road. Fourthly, there was no reason for
the accused not to have taken a driver for such a long
journey. Fifthly, there is no one examined from the hotel
to whom the accused had disclosed that he would not be
available for looking after the business for at least a
couple of weeks or one week. The fact that the accused
had with him 7 safari dresses and 7 turbans when he was
arrested, clearly shows that the accused had an intention
to stay for quite a long time away from his house and
away from his business. There is nothing on record to
show that prior to this incident the accused was not on
talking terms or visiting terms with his mother in law.
Not a single suggestion was give to this witness by the
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accused that they were informed by the accused that he is
going to Delhi to see his sister or wife of D.W.3. Next
impossibility in the theory of alibi is that there is no
earthly reason for the accused to leave his house at odd
time of 2.00 a.m. He could have traveled either before
mid night or he could have traveled after sunrise. Further
there is no explanation from the accused as to why he
was carrying such a huge amount of Rs.7,68,080/- and 24
silver coins."
37. We, therefore, agree with the High Court that the plea of alibi
was totally false and bogus.
38. It is difficult for us to speculate as to why the accused fled
from the scene of the crime carrying cash of Rs.7,68.080/- apart
from 7 safari suits and that too without a driver or an assistant, all
of whom were easily available to him. It is quite possible that after
having committed this horrible crime the accused may have
himself realized the gravity of his crime and in this shocked state
fled from the scene. However, this is only a speculation and
nothing turns on it.
39. It has then been argued that ordinarily the accused and his
wife used to sleep in one bedroom, while the 3 children used to
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sleep in the other bedroom. However, all 4 victims were found
burnt in the children's bedroom. This has been explained by the
prosecution by pointing that in the night of 9.4.2003 when the
accused came from his hotel he had a heated quarrel with his wife
and due to this quarrel the wife decided to sleep with the children
and not with the accused. This version seems quite probable, and
the defence cannot make much out of the fact that all 4 bodies
were found in one bedroom.
40. When the police party carried out panchanama of the house
of the accused, that is, after the fire was fully extinguished and
when the FIR was lodged by PW1, PSI Prakash Kamble, he
found, as stated by him, that in the bedroom to the northern side of
the hall on the bed i.e. on the mattress of the bed a 10 litre white
plastic can was seen and it had some petrol in it. It was also found
and noticed that the can was new. It is a fact that all the four
inmates were burned to death by using petrol. Therefore, the
finding of the 10 litre can with some petrol in its clearly shows that
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petrol, sufficient in quantity to burn and kill all the four persons,
was brought by the accused.
41. In addition to this, the prosecution has also tendered one
more piece of evidence which is in the form of recovery at the
instance of the accused under Section 27 of the Evidence Act. In
this regard, the prosecution has examined PW14 Nilesh Kamalakar
Aarate the panch witness and proved Exhibit 50 and 50-A. Exhibit
50 is the statement of the accused under Section 27 of the Evidence
Act and Exhibit 50-A is recovery panchanama. In his evidence
PW14 has stated that on 14th April, 2003 he was called by
Meghwadi Police as the accused made a voluntary statement that
he will point out the bucket in which he took petrol from the
plastic can. This statement was recorded and thereafter the
accused led the police party to his flat. The seal of the flat was
removed and from the bath room of the said flat the accused
pointed out the red bucket. Discovery panchanama was Exhibit
50-A and red bucket was Article 14.
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42. This red bucket was sent to a Chemical Analyzer. The report
of the C.A. (Exhibit 67) is that the bucket showed positive result
regarding detection of petrol. This means that this bucket was used
for pouring petrol on all the four victims.
43. Regarding this piece of evidence, the learned counsel for the
appellant contended that this was a fabrication by the police.
Learned counsel contended that if on 10th April, 2003 a detailed
search of the house of the accused for finding out incriminating
articles was made and if a detailed panchanama was prepared and a
number of articles were seized, then how was it that the police
could not find out this bucket on 10th April, 2003 itself and why
they waited for recovery for this bucket till the accused was
arrested and brought to Mumbai and made discovery statement on
14th April, 2003.
44. We are not at all convinced by this submission. It is true that
on 10th April, 2003 the flat of the accused was searched, but it is
quite natural that the investigating officer did not understand the
26
significance of this bucket even if it was seen on that day. They
could not visualize or imagine the use of the bucket for splashing
or spreading the petrol on the four victims. They came to know
about it only after the accused made the disclosure statement, and
then they recovered this bucket. The investigating office,
regarding other aspects of the matter appears to be truthful and
sincere. There is no reason to suspect the bona fide of the
investigating officer, and therefore there is nothing on record from
which it can be inferred that this bucket was planted by the police
to strengthen the case against the accused.
45. Learned counsel for the appellant submitted that the appellant
was making phone calls to his mother-in-law after leaving his flat
in Mumbai on 10.4.2003. In our opinion nothing turns on that. It
has come in evidence that Amandeep Singh, son of the accused,
was looking after the business, and if the accused was going away
for 3 to 4 days it was natural for him to expect calls from, and
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make calls to, his son Amandeep Singh and his wife and other
relatives, but that was not done.
46. The learned counsel for the appellant then submitted that as
per the prosecution case, all the four victims were in one bed room.
Two bodies were found on the bed and two were lying on the
ground. The learned counsel contended that if all four victims
were sleeping on one bed then how were two bodies found on the
ground. He also argued that if petrol was splashed on the persons
of four victims then why did none of them wake up before the
accused set them to fire. In our opinion, the presence of the 10
litre can and using the bucket clearly show that petrol in large
quantity was used. Use of the bucket further fortifies the
prosecution case because if the petrol was sprinkled from a can it
would have taken time to cover all the bodies of four persons, the
bed and the surroundings. But use of the bucket clearly shows that
splashing of petrol could be achieved within a second and that
profuse splashing of petrol could be achieved by using the bucket
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and then setting the petrol on fire would not even require five
seconds. Petrol is a very combustible material. It might be that
before the actual death occurred two persons rolled down from the
bed and fell on the ground. All this is speculation on which
nothing turns. Since there were no eye witnesses, and since
presence of the accused a few hours before the crime is proved, it
was for the accused to explain all this.
47. Mr. Jaspal Singh submitted that several of the circumstances
were not put to the accused under Section 313 Cr.P.C. It is true
that circumstances which were not put to the accused in his
examination under Section 313 cannot be used against him, vide
State of U.P. vs. Mohd. Ikram, J.T. 2011 (6) SC 650 (para 13).
However, we have carefully examined the statements of the
accused under Section 313 Cr.P.C., and we find that as many as
168 questions were put to him relating to all the relevant
circumstances. Hence there is no merit in this submission.
29
48. Mr. Jaspal Singh then submitted that the incised wounds on
the son of the appellant, Amandeep, have not been explained by
the prosecution. In this connection we wish to say that since there
were no eye witnesses and the entire prosecution case rests on
circumstantial evidence it is hardly for the prosecution to explain
these injuries, rather it was for the appellant, who was present at
the time of the incident (as we have found) to explain them.
Moreover, the question of explaining the injuries ordinarily arises
when the injuries are on an accused, and not on the victim. At any
event, the prosecution has explained that these were due to the
broken glass pieces found on the spot.
49. Thus, in our opinion the prosecution has been able to
establish the entire chain of circumstances which connect the
accused to the crime. These are :
1. There were strained relations between the accused
and his family members including his wife. He
used to beat his wife with a leather belt, and was
dictatorial, which attitude was resented by the
family members.
30
2. The accused came to his flat on 9th April, 2003 at
midnight, and was last seen with his wife in his
flat where his children also lived.
3. The accused had quarrel with his wife for five or
ten minutes on the night of the incident.
4. Ten litre can with petrol residue was found in the
house.
5. The bucket showing positive result in the test
conducted by the Chemical Analyzer was found to
have been used for splashing or throwing the
petrol.
6. The incident happened in the flat of the accused
where there was no one else inside except his
family members. All the deceased were asleep
when the petrol was poured over them and their
bodies set on fire. They were killed in a most
gruesome, diabolical and cruel manner.
7. It was a pre-planned murder, because the accused
had brought sufficient petrol into his flat to kill
everyone. Ordinarily no one keeps so much petrol
in his residential apartment.
8. The accused absconded from the scene of the
offence immediately thereafter, and did not
disclose to his family members or servants about
his departure.
9. The incident occurred between 4 to 4.30 A.M.,
and the accused was the person last seen with his
wife before the incident.
31
10. The accused pointed out the bucket in his
statement under Section 27 of the Evidence Act;
11. The accused was arrested at Kisangadh,
Madanganj in Ajmer District (Rajasthan) four
days thereafter with huge cash of Rs.7,60,080/-,
with safari dresses, turbans and 24 silver coins
etc..
12. He raised false defence of alibi
13. There was full opportunity for the accused to kill
all the four persons. No one else was present in
the flat.
Does the Appellant deserves the death sentence ?
Death Penalties Worldwide
50. There is a wide divergence in various countries in the world
whether to permit or not permit the death penalty. According to
Amnesty International as per 31.12.2010, 96 countries have legally
abolished the death penalty, 34 countries have not used it for a
considerable period of time while 58 countries have still retained
it. Most European countries have abolished the death penalty .
The United Kingdom abolished death penalty in 1973, France in
1981, Germany in 1949, Italy in 1947 etc. Canada abolished it in
1976. Russia legally permits death penalty, but has not used it
after 1996. Australia last used the death penalty in 1967, and
32
formally abolished it in 2010. China has death penalty for a
variety of crimes, e.g. aggravated murder, drug trafficking, large
scale corruption etc. China executes more people than all the rest
of the world put together. In African and Latin American countries
some permit death penalty while others do not. Most Asian and
Arab countries permit death penalty. As regards the United States
of America, some States permit it while others do not. The US
Supreme Court in Furman vs. Georgia 408 US 238 (1972) held
the death penalty to be unconstitutional, but this decision was
reversed four years later in Gregg vs. Georgia 428 US 153 (1976)
which held that the death penalty is not unconstitutional.
51. The UN General Assembly in 2007-08 passed a non binding
resolution calling for a global moratorium of execution with a view
to eventual abolition. However, 65% of the world population live
in countries like China, India, Indonesia and the US which
continue to apply death penalty, although both India and Indonesia
only use it rarely. Each of these four nations voted against the UN
General Assembly resolution. Of the 194 independent States in
the world that are members of the United Nations or have UN
observer status, 42(22%) maintain the death penalty both in law
and practice, 95 (49%) have abolished it, 8(4%) retain it for crimes
committed in exceptional circumstances such as in time of war and
49(25%) permit its use for ordinary crimes, but have not used it for
33
at least 10 years and have a policy or established practice of not
carrying out an execution or it is under a moratorium.
52. In the present case, we are not going into the validity or
otherwise of various theories of criminal penology viz., the
retributive, deterrent, preventive and reformative theories. Suffice
it to say that there are conflicting views and even conflicting data
on this topic (see `Theories of Punishment' edited by Stanley E.
Grupp, `Punishment' by Ted Honderich, `Punishment' by Philip
Bean, `The Death Penalty' edited by Irwin Isenberg, `The Penalty
of Death' by Thorsten Sellen, `The Death Penalty' by Roger Hood,
etc.). We shall, therefore, confine ourselves to the case before us.
Death Penalty in India
53. Section 302 provides the punishment for murder. It
stipulates a punishment of death or imprisonment for life and fine.
Once an offender is found by the court to be guilty of the offence
of murder under Section 302, then it has to sentence the offender to
either death or for imprisonment for life. The court has no power
to impose any lesser sentence.
34
54. If there is a reasonable doubt about the guilt of the offender,
the only proper verdict is to acquit him and not to impose a
sentence lesser than imprisonment for life vide Santosh vs. State
of MP AIR 1975 SC 654.
55. The Law Commission of India in its 35th Report, after
carefully sifting all the materials collected by them, recorded their
views regarding the deterrent effect of capital punishment as
follows:
"In our view capital punishment does act as a deterrent. We have
already discussed in detail several aspects of this topic. We state
below, very briefly, the main points that have weighed with us in
arriving at the conclusion:
(a) Basically, every human being dreads death.
(b) Death, as a penalty, stands on a totally different level
from imprisonment for life or any other punishment.
The difference is one of quality, and not merely of
degree.
(c) Those who are specifically qualified to express an
opinion on the subject, including particularly the
majority of the replies received from State
Governments, Judges, Members of Parliament and
Legislatures and Members of the Bar and police
35
officers - are definitely of the view that the deterrent
object of capital punishment is achieved in a fair
measure in India.
(d) As to conduct of prisoners released from jail (after
undergoing imprisonment for life), it would be
difficult to come to a conclusion, without studies
extending over a long period of years.
(e) Whether any other punishment can possess all the
advantages of capital punishment is a matter of doubt.
(f) Statistics of other countries are inconclusive on the
subject. If they are not regarded as proving the
deterrent effect, neither can they be regarded as
conclusively disproving it".
56. Prior to 1955, under the old Criminal Procedure Code 1898,
Section 367 (5) of the Code stipulated that the Court had to give
reasons, if the sentence of death was not imposed in a case of
murder. In other words, imposition of death sentence for the
offence of murder was the rule, and if the court desired to make a
departure from the rule and impose the lesser punishment of
imprisonment for life, it was required to give reasons for the same.
In 1955, sub- Section 5 of Section 367 was deleted. The result of
such deletion was that the discretion available to the Court in the
matter of the sentence to be imposed in a case of murder was
36
widened. Several High Courts also interpreted the consequence of
the deletion to mean that the sentence of life imprisonment was the
normal sentence for murder and the sentence of death could be
imposed only if there were aggravating circumstances. The Code
of the Criminal Procedure was further amended in 1973, making
life imprisonment the normal rule. Section 354 (3) of the new
Code provides:
"When the conviction is for an offence punishable with
death or, in the alternative, imprisonment for life or
imprisonment for a term of years, the judgment shall
state reasons for the sentence awarded and, in the case
of sentence of death, the special reasons for such
sentence".
57. Thus in the new Code, the discretion of the judge to impose
death sentence has been narrowed, for the court has now to provide
special reasons for imposing a sentence of death. It has now made
imprisonment for life the rule and death sentence an exception, in
the matter of awarding punishment for murder.
58. In Bachan Singh vs State of Punjab, AIR 1980 SC 898, a
Constitution Bench (5 Judge Bench) of this Court, while upholding
37
the constitutional validity of death sentence observed (vide para
207):
" 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".
59. After Bachan Singh's case (supra) this Court again
considered the question as to when death sentence should be
imposed in Machhi Singh and others vs State of Punjab AIR
1983 SC 957 (a 3 Judge Bench decision). In that case the accused
had methodically in a pre planned manner murdered seventeen
persons of a village including men, women and children. The
accused were awarded death sentences but the Court held that in
order to apply the guidelines of Bachan Singh's case (supra) inter-
alia the following questions should be asked: (a) Is there something
uncommon about the crime which renders sentence of
imprisonment for life inadequate and called 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
38
in favour of the offender. The Court held that if the answer to the
above is in affirmative, then death sentence is warranted.
60. In Macchi Singh's case (supra) this Court further observed:
"The reasons why the community as a whole does not
endorse the humanistic approach reflected in `death
sentence-in-no- case' doctrine are not far to seek. In the
first place, the very humanistic edifice is constructed on
the foundation of `reverence for life' principle. When a
member of the community violates this very principle by
killing another member, the society may not feel itself
bound by the shackles of this doctrine. Secondly, it has to
be realized that every member of the community is able
to live with safety without his or her own life being
endangered because of the protective arm of the
community and on account of the rule of law endorsed by
it. The very existence of the rule of law and the fear of
being brought to book operates as a deterrent to those
who have no scruples in killing others it if suits their
ends. Every member of the community owes a debt to the
community for this protection. When ingratitude is
shown instead of gratitude by killing a member of the
community which protects the murderer himself from
being killed, or when the community feels that for the
sake of self- preservation the killer has to be killed, the
community may well withdraw the protection by
sanctioning the death penalty. But the community will
not do so in every case. It may do so (in rarest of rare
cases) when its collective conscience is so shocked that it
will expect the holders of the judicial power centre to
inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death
penalty. The community may entertain such a sentiment
when the crime is viewed from the platform of the
motive for, or the manner of commission, of the crime, or
39
the anti-social or abhorrent nature of the crime, such as
for instance:
I. Manner of Commission of Murder
When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the
community. For instance,
(i) when the house of the victim is set aflame with the
end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of
torture or cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his
body is dismembered in a fiendish manner.
II. Motive for commission of murder
When the murder is committed for a motive which
evinces total depravity and meanness. For instance when
(a) a hired assassin commits murder for the sake of
money or reward (b) a cold-blooded murder is committed
with a deliberate design in order to inherit property or to
gain control over property of a ward or a person under
the control of the murderer or vis-`-vis whom the
murderer is in a dominating position or in a position of
trust, or (c) a murder is committed in the course of
betrayal of the motherland.
III. Anti Social or Socially abhorrent nature of the crime
(a) When murder of a member of a Scheduled Caste or
minority community etc., is committed not for personal
reasons but in circumstances which arouse social wrath.
For instance when such a crime is committed in order to
terrorize such persons and frighten them into fleeing
from a place or in order to deprive them of, or make them
surrender lands or benefits conferred on them with a view
to reverse past injustices and in order to restore the social
40
balance. (b) In cases of 'bride burning' and what are
known as 'dowry deaths' or when murder is committed in
order to remarry for the sake of extracting dowry once
again or to marry another woman on account of
infatuation.
IV. Magnitude of Crime
When the crime is enormous in proportion. For instance
when multiple murders say of all or almost all the
members of a family or a large number of persons of a
particular caste, community, or locality, are committed.
V. Personality of victim of murder
When the victim of murder is (a) an innocent child who
could not have or has not provided even an excuse, much
less a provocation, for murder (b) a helpless woman or a
person rendered helpless by old age or infirmity (c) when
the victim is a person vis-`- vis whom the murderer is in
a position of domination or trust (d) when the victim is a
public figure generally loved and respected by the
community for the services rendered by him and the
murder is committed for political or similar reasons other
than personal reasons."
61. In Macchi Singh's case (supra) this Court further observed
that in determining the culpability of an accused and the final
decision as to the nature of sentence, a balance sheet of the
aggravating and mitigating circumstances vis-a-vis the accused had
to be drawn up and in doing so the mitigating circumstances had to
be given full weight so that all factors were considered before the
option is exercised.
41
Some decisions where death penalty has been affirmed
by this Court
62. We may now consider some decisions where death penalty
has been given by the court holding the crimes to belong to the
`rarest of the rare cases'.
63. In Sunder Singh vs. State of Uttaranchal, (2010) 10 SCC
611 the accused had gone to the place of occurrence well prepared
carrying jerry cans containing petrol, sword, pistol with two
bullets, which showed his pre-meditation and cold blooded mind.
In the incident five persons lost their lives while the sole surviving
lady survived with 70% burn injuries. The murder was committed
in a cruel, grotesque and diabolical manner, and closing of the door
of the house was the most foul act by which the accused actually
intended to burn all the persons inside the room and precisely that
happened. There were no mitigating circumstances, and hence it
was one of the rarest of rare cases. Consequently, the death
sentence was justified.
42
64. In C. Muniappan vs. State of T. N., (2010) 9 SCC 567 three
members of an unlawful assembly engaged in road blocking (in a
public demonstration against a court verdict), committed planned
murder by burning a bus carrying helpless, innocent, unarmed, girl
students in a totally unprovoked situation. Three girls died and 20
got burn injuries in the incident. This Court held that it was one of
the rarest of rare cases, one where the accused would be a menace
and threat to the harmonious and peaceful co-existence of the
society. The accused deliberately indulged in a planned crime
without any provocation and meticulously executed it, and hence
the death sentence was the most appropriate punishment. There
being aggravating circumstances and no mitigating circumstance
death sentence imposed on the three members of the unlawful
assembly was upheld.
65. In M. A. Antony vs. State of Kerala, (2009) 6 SCC 220 all
six members of a family were murdered at their residence at night.
The motive was money, and the absence of the accused from his
43
own residence during the corresponding periods i.e on the night of
the occurrence till next morning, and recovery of clothes under
Section 27 of Evidence Act 1872, finger prints on the door steps of
the house matching with those of accused, and recovery of scalp
hair of accused from place of occurrence were damning
circumstantial evidence. Having regard to the chain of
circumstances the death sentence was upheld.
66. In Jagdish vs. State of M. P., (2009) 9 SCC 495 the
assailant murdered his wife and five children (aged 1 to 16 years)
in his own house. The murders wee particularly horrifying as the
assailant was in a dominant position and a position of trust as the
head of the family. The assailant betraying the trust and abusing
his position assailant murdered his wife and minor children
(youngest being the only son just 1 year old ). This Court held that
the balance sheet of aggravating and mitigating circumstances was
heavily weighted against the assailant making it a rarest of rare
case. Consequently the award of death sentence was just.
44
67. In Prajeet Kumar Singh vs. State of Bihar, (2008) 4 SCC
434 the accused was a paying guest for a continuous period of four
years in lieu of a sum of Rs. 500/- for food and meals. He brutally
executed three innocent defenseless children aged 8, 15 and 16,
attempted to murder the father (informant) and mother who
survived the attack with multiple injuries. There was no
provocation or reason for committing this ghastly act at a time
when the children were sleeping. There were several incised
wounds (muscle deep or bone deep) caused to the deceased.
Considering the brutality, diabolic, inhuman nature and enormity
of the crime (multiple murders and attacks), this Court held that the
mindset of the accused could not be said to be amenable to any
reformation. Therefore it came under the rarest of rare category
where not awarding a death sentence would have resulted in failure
of justice.
68. In Ram Singh vs. Sonia, (2007) 3 SCC 1 the wife in
collusion with her husband murdered not only her step brother and
45
his whole family including three tiny tots of 45 days, 2 and = years
4 years, but also her own father, mother and sister so as to deprive
her father from giving property to her step brother and his family.
The murders were committed in a cruel, pre-planned and diabolic
manner while the victims were sleeping, without any provocation
from the victim's side. It was held that the accused persons did not
possess any basic humanity and completely lacked the psyche or
mindset amenable to any reformation. It was a revolting and
dastardly act, and hence the case fell within the category or rarest
of rare cases and thus death sentence was justified.
69. In State of U.P. vs. Satish (2005) 3 SCC 114 the victim
was a six year old girl who lost her life on account of the bestial
acts of the respondent who raped and murdered her. The body was
found in a sugarcane field and blood was oozing from her private
parts and there were marks of pressing on her neck (suggesting
death by strangulation). It was held that this diabolic, iniquitous,
flagitious act reached the lowest level of humanity when the rape
46
was followed by brutal murder. Hence death sentence was
justified.
70. In Holiram Bordoli vs. State of Assam (2005) 3 SCC 793
the accused persons were armed with lathis, and various other
weapons. They came to the house of the victim and started pelting
stones on the bamboo wall of the said house. Thereafter, they
closed the house from the outside and set the house on fire. When
the son, daughter and the wife of the victim somehow managed to
come out of the house, the accused persons caught hold of them
and threw them into the fire again. Thereafter the elder brother
who was staying in another house at some distance from the house
of the victim was caught and dragged to the courtyard of the
accused where the accused cut him into pieces. It was held that
there was absence of any strong motive and the victims did not
provoke or contribute to the incident. The accused was the leader
of the gang, and the offence was committed in the most barbaric
manner to deter others from challenging the supremacy of the
47
accused in the village. Held, that no mitigating circumstances to
refrain from imposing death penalty were found.
71. In Saibanna vs. State of Karnatka (2005) 4 SCC 165 the
accused was out on parole in the case of murder of his first wife, in
which he was already convicted and sentence to life imprisonment.
He pre-planned the murder of his second wife and daughter (aged
1 to 1 = years) when the victims were sleeping by using a hunting
knife (jambia) which is not ordinarily available in a house. There
were no justified reasons for any extenuating circumstances in
favour of the accused. Putting the case under the `rarest of rare
case' category death sentence was upheld.
72. In Karan Singh vs. State of U.P. (2005) 6 SCC 342 the two
appellants chased the deceased persons and butchered them with
axes and other weapons in a very dastardly manner. After killing
three adults, the appellants entered their house and killed two
children who in no way were involved with the alleged property
dispute with the appellants. It was held that the sole intention here
48
was to exterminate the entire family. Thus, it was a `rarest of the
rare' case.
73. In Gurmeet Singh vs. State of U.P. (2005) 12 SCC 107,
appellant G, along with his friend L killed thirteen members of his
family including small kids for a flimsy reason (objection of family
of G to the visits and stay of L at their house) while they were
asleep. Award of death sentence was held proper.
74. In Sushil Murmu vs. State of Jharkhand (2004) 2 SCC
338, the accused sacrificed a child of another person before
Goddess Kali in a most brutal and diabolic manner for personal
gain and to promote his fortunes by appeasing the deity with blood.
It was held that superstition can not and does not provide
justification for any killing, much less a planned and deliberate
one.
75. In State of Rajasthan vs. Kheraj Ram (2003) 8 SCC 224,
the accused deliberately planned and executed his two innocent
49
children, wife and brother-in-law when they were sleeping at night.
There was no remorse for such a gruesome act which was
indicated by the calmness with which he was smoking "chilam"
after the commission of the act. As it was pre-planned and after
the entire chain of events and circumstances were comprehended,
the inevitable conclusion, was that the accused acted in a most
cruel and inhuman manner and the murder was committed in an
extremely brutal, grotesque, diabolical, revolting and dastardly
manner.
76. In Om Prakash vs. State of Uttaranchal (2003) 1 SCC 648
the accused, a domestic servant killed three innocent members and
attempted to kill the fourth member of the family of his employer
in order to take revenge for the decision to dispense with his
service and to commit robbery. The death sentence was upheld.
77. In Gurdev Singh vs. State
of Punjab, AIR 2003 SC 4187,
the appellants, having known that on the next day a marriage was
to take place in the house of the complainant and there would be
50
lots of relatives present in her house, came there on the evening
when a feast was going on and started firing on the innocent
persons. Thirteen persons were killed on the spot and eight others
were seriously injured. The appellants thereafter went to another
place and killed the father and brother of PW 15. Out of the
thirteen persons, one of them was a seven-year old child, three
others had ages ranging between 15 and 17 years. The death
sentence was held justified.
78. In Praveen Kumar vs. State of Karnataka (2003) 12 SCC
199 the accused was accommodated by one of the victims (who
was his aunt) despite her large family, and she gave him an
opportunity to make an honest living as a tailor. The accused
committed the pre-planned, cold-blooded murders of relatives and
well wishers (including one young child) while they were sleeping.
After the commission of the crime the accused absconded from
judicial custody for nearly four years, which indicates the fact that
51
the possibility of any remorse are rehabilitation is nil. Held the
extreme penalty of death was justified.
79. In Suresh vs. State of U. P. AIR 2001 SC 1344 the brutal
murder of one of the accused's brother and his family members
including minor children at night when they were fast asleep with
axe and chopper by cutting their skulls and necks for a piece of
land was considered to be a grotesque & diabolical act, where any
other punishment than the death penalty was unjustified.
80. In Molai vs. State of M.P. AIR 2000 SC 177, the Jail officer
sent to his quarter a guard and a prisoner to work in the house. The
16 year old daughter of the said officer was at that time alone in
the quarter and was preparing for her class 10th examination.
Taking advantage of her loneliness, both the guard and the prisoner
raped her, strangulated her and stabbed her. Thereafter with an
intention to hide their crime they threw her dead body into a septic
tank. This Court held that death was a fit punishment.
52
81. In Ramdeo Chauhan vs. State of Assam AIR 2000 SC
2679, the accused committed a pre-planned cold-blooded brutal
murder of four inmates of a house including two helpless women
and a child aged 2 = years during their sleep with a motive to
commit theft. The accused also attacked with a spade another
inmate of the house, an old woman, and a neighbour when they
entered the house. The Court held that the young age (22 years) of
the accused at the time of committing the crime was not a
mitigating circumstance, and death penalty was a just and proper
punishment.
82. In Narayan Chetanram Chaudhary vs. State of
Mahrashtra AIR 2000 SC 3352 there was a pre-planned,
calculated, cold-blooded murder of five women, including one
pregnant woman and two children aged 1 = years and 2 = years,
all inmates of a house, in order to wipe out all evidence of robbery
and theft committed by two accused in the house at a time when
male members of the house were out. It was held that the young
53
age (20-22 years) of the accused persons cannot serve as a
mitigating circumstance.
83. In State of U.P. vs. Dharmendra Singh AIR 1999 SC 3789,
5 persons were murdered, an old man of 75 years, a woman aged
32 years, two boys aged 12 years and a girl aged 15 years, at night
when they were asleep by inflicting multiple injuries to wreak
vengeance. This Court held that the ghastly and barbaric murder
can be termed as rarest of the rare case and death penalty was just
for such a diabolic act.
84. In Ronny vs. State of Mahrashtra AIR 1998 SC 1251, the
accused was the nephew of the deceased, and because of the
relationship he gained access inside the house for himself and his
friends. The victims were unarmed and the crime was committed
for gain i.e. to rob the valuables of the deceased family. The
accused then killed all three members and then committed rape on
the lady who was the wife of his maternal uncle and as old as his
mother. Considering the facts of the case this Court held that it
54
cannot be said that the offences were committed under the
influence of extreme mental or emotional disturbance as
everything was done in a preplanned way, and hence death penalty
was upheld.
85. In Surja Ram vs. State of Rajasthan AIR 1997 SC 18, the
appellant murdered his bother, his two minor sons and an aged
aunt by cutting their neck with a kassi while they were all sleeping.
He also attempted to murder his brother's wife and daughter but
they survived with serious injuries. The dispute between them
only related to putting a barbed fence on a portion of their
residential complex. The death sentence was held to be justified.
86. In Umashankar Panda vs. State of M.P AIR 1996 SC
3011, the accused and his wife and five children took dinner
together and went to bed in the same room. At midnight the
accused started to attack his wife with a sword and on hearing the
shouting the children woke up. On being questioned by the wife as
to why he was trying kill her he did not give an answer but rather
55
inflicted on her head, hand and foot more injuries. When the eldest
daughter intervened, he did not spare her either. The wife and two
children died but three others escaped death. On being asked, the
accused confessed to a witness that he had slaughtered all of them
but he did not know how three others had escaped the death. This
attitude of the accused clearly showed that he had purposely
caused injuries to all his family members in order to liquidate them
and was not happy that even the three children had escaped from
death. There was no provocation or other circumstances to suggest
that there was any quarrel between the accused and his wife or the
children. The way in which the crime was executed showed that it
was pre-meditated and not on account of sudden provocation.
87. In Ravji vs. State of Rajasthan AIR 1996 SC 787, the
accused in a cool and calculated manner wanted to kill his wife and
three minor children while they were asleep. When his mother
intervened he injured her with an axe with an intention to kill her.
He then silently went to the neighbour's house and attempted to
56
kill his neighbour's wife who was also asleep. When his
neighbour intervened he killed him too and fled from the place of
occurrence and tried to hide himself. The accused had a solemn
duty to protect his family members and maintain them but he
betrayed the trust reposed in him in a very cruel and calculated
manner without any provocation whatsoever. Hence the death
penalty had to be upheld.
88. In Suresh Chandra Bahri vs. State of Bihar AIR 1994 SC
2420, the wife of accused wanted to sell her house and migrate to
USA with her children against the wishes of her husband. Hence,
the accused killed his wife after torturing her by truncating her
body into two parts in a devilish style evincing total depravity only
to gain control over the property. Further he killed his own two
innocent children making them believe that they were being taken
on a pleasure trip to the farm, killing them by inflicting severe
injuries on their neck and other parts of the body and throwing
them in the river.
57
89. In Bheru Singh vs. State of Rajasthan (1994) 2 SCC 467,
the accused slaughtered his own wife and five children for no fault
of theirs but only on mere suspicion that his wife was having an
affair. This deserved a death sentence.
90. In Sevaka Perumal vs. State of T. N. AIR 1991 SC 1463,
the accused indulged in illegal business of purchase and sale of
"ganja". They conspired to entice innocent boys from affluent
families, took them to far flung places where the dead body could
not be identified. Letters were written to the parents purporting to
be by the deceased to delude the parents that the missing boys
would one day come home alive and that they should not give any
report to the police so that the crime would go undetected. Four
murders in a span of five years were committed for gain in cold-
blooded, premeditated and planned way. This Court held that any
other penalty except the death penalty would amount to a
miscarriage of justice.
58
91. In Sudam @ Rahul Kaniram Jadhav vs. State of
Maharashtra (Criminal Appeal Nos. 185-186 of 2011 decided on
4.7. 2011 this Court held that where an accused was found guilty
of committing murder of four children and a woman with whom he
was living with as husband and wife, the death penalty was
justified. In that decision Hon'ble C. K. Prasad, J. observed :
"Now we proceed to consider as to whether the case in
hand falls in the category of rarest of the rarest cases.
The appellant had chosen to kill the woman with whom
he lived as husband and wife, a woman who was in deep
love with him and willing to pay Rs. 15,000/- to PW. 6,
Muktabai, to save the relationship. Appellant had not
only killed the two children of the deceased who were
born from the first husband but also killed his own two
children. He projected himself to be single and changed
his name to dupe a woman and in fact succeeded in
marrying her. However, when the truth came to light, he
killed five persons. The manner in which the crime has
been committed clearly shows it to be premeditated and
well planned. It seems that all the four children and the
woman were brought near the Pod in a planned manner,
strangulated to death and dead bodies of the children
thrown in the pond to conceal the crime. He not only
killed Anita but crushed her head to avoid identification.
Killing four children, tying the dead bodies in bundles of
two each and throwing them in the pond would not have
been possible, had the appellant not meticulously planned
the murders. It shows that the crime has been committed
in a beastly, extremely brutal, barbaric and grotesque
manner. It has resulted in intense and extreme
indignation of the community and shocked the collective
59
conscience of the society. We are of the opinion that the
appellant is a menace to the society who cannot be
reformed. Lesser punishment in our opinion is fraught
with danger as it may expose the society to peril once
again at the hands of the appellant. We are of the opinion
that the case in hand falls in the category of the rarest of
the rare cases and the trial court did not err in awarding
the death sentence and the High Court confirming the
same."
92. In Ranjeet Singh vs. State of Rajasthan (1988) 1 SCC 633,
the entire family was murdered when they were fast asleep and this
Court observed as under:
"With regard to the sentence of death, there cannot be
two opinions. The manner in which the entire family was
eliminated indicates that the offence was deliberate and
diabolical. It was pre-determined and cold blooded. It
was absolutely devilish and dastardly".
93. In Atbir vs. Govt. of NCT Delhi AIR 2010 SC 3477 this
Court confirmed the death sentence given to the appellant who had
committed multiple murders of members of his family, who are
none other than step-mother, brother and sister in order to inherit
the entire property of his father. The appellant, in consultation
with his mother planned to eliminate the entire family of his step-
60
mother, and with this intention went to her house, closed the doors
and mercilessly inflicted 37 knife injuries on the vital parts of the
victims' bodies.
94. In Surendra Koli vs. State of U.P. AIR 2011 SC 970, the
accused was a serial killer who used to lure small girls inside a
house, strangulate them, have sex with their bodies, cut off their
body parts, and eat them. This Court held that no mercy could be
shown to his horrifying and barbaric deeds, and upheld the death
sentence.
Present Case
95. Having considered the law on the point and several decisions
of this Court where death sentence was affirmed, we may now
consider whether this case deserves the death sentence. This Court
held in Bachan Singh vs. State of Punjab (Supra) that death
sentence should only be given in the rarest of rare cases. In our
opinion this is one of such cases. Burning living persons to death
61
is a horrible act which causes excruciating pain to the victim, and
this could not have been unknown to the appellant.
96. In our opinion, a person like the appellant who instead of
doing his duty of protecting his family kills them in such a cruel
and barbaric manner cannot be reformed or rehabilitated. The
balance sheet is heavily against him and accordingly we uphold the
death sentence awarded to him.
97. In the present case the accused did not act on any spur of the
moment provocation. It is no doubt that a quarrel occurred
between him and his wife at midnight, but the fact that he had
brought a large quantity of petrol into his residential apartment
shows that he had pre-planned the diabolical and gruesome murder
in a dastardly manner.
98. In our opinion a distinction has to be drawn between ordinary
murders and murders which are gruesome, ghastly or horrendous.
While life sentence should be given in the former, the latter
62
belongs to the category of rarest of rare cases, and hence death
sentence should be given.
99. This distinction has been clarified by a recent judgment of
my learned brother Hon'ble C. K. Prasad, J. in Mohd. Mannan @
Abdul Mannan vs. State of Bihar (2011) 5 SCC 317 (vide paras
23 and 24), wherein it has been observed:
"23. It is trite that death sentence can be inflicted only in
a case which comes within the category of the rarest of
rare cases but there is no hard-and-fast rule and
parameter to decide this vexed issue. This Court had the
occasion to consider the cases which can be termed as the
rarest of rare cases and although certain comprehensive
guidelines have been laid to adjudge this issue but no
hard-and-fast formula of universal application has been
laid down in this regard. Crimes are committed in so
different and distinct circumstances that it is impossible to
lay down comprehensive guidelines to decide this issue.
Nevertheless it is widely accepted that in deciding this
question the number of persons killed is not decisive.
24. Further, the crime being brutal and heinous itself does
not turn the scale towards the death sentence. When the
crime is committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to
arouse intense and extreme indignation of the community
and when collective conscience of the community is
petrified, one has to lean towards the death
sentence. But this is not the end. If these
factors are present the court has to see
as to whether the accused is a menace to the society and
would continue to be so, threatening its peaceful and
harmonious coexistence. The court has to further enquire
and believe that the accused condemned cannot be
reformed or rehabilitated and shall continue with the
criminal acts. In this way a balance sheet is to be prepared
while considering the imposition of penalty of death of
aggravating and mitigating circumstances and a just
balance is to be struck. So long the death sentence is
provided in the statute and when collective conscience of
63
the community is petrified, it is expected that the holders
of judicial power do not stammer dehors their personal
opinion and inflict death penalty. These are the broad
guidelines which this Court had laid down for imposition of
the death penalty".
We fully agree with the above view as it has clarified the meaning
of the expression `rarest of the rare cases'. To take a hypothetical
case, supposing `A' murders `B' over a land dispute, this may be a
case of ordinary murder deserving life sentence. However, if in
addition to murdering `B', `A' goes to the house of `B' and wipes
out his entire family, then this will come in the category of rarest
of the rare cases' deserving death sentence. The expression `rarest
of the rare cases' cannot, of course, be defined with complete
exactitude. However, the broad guidelines in this connection have
been explained by various decisions of this Court. As explained
therein, the accused deserves death penalty where the murder was
grotesque, diabolical, revolting or of a dastardly manner so as to
arouse intense and extreme indignation of the community, and
when the collective conscience of the community is petrified, or
outraged. It has also to be seen whether the accused is a menace to
society and continues to do so, threatening its peaceful and
64
harmonious coexistence. The Court has to further enquire and
believe that the accused cannot be reformed or rehabilitated and
shall continue with his criminal acts. Thus a balance sheet is to be
prepared in considering the imposition of death penalty of the
aggravating and mitigating circumstances, and a just balance is to
be struck.
100. We fully agree with the above view and we are of the opinion
that all the requisites for death penalty as noted above are satisfied
in the present case for the reasons given above.
Abolition of Death Sentence
101. It is only the legislature which can abolish the death penalty
and not the courts. As long as the death penalty exists in the
statute book it has to be imposed in some cases, otherwise it will
tantamount to repeal of the death penalty by the judiciary. It is not
for the judiciary to repeal or amend the law, as that is in the
domain of the legislature vide Common Cause vs. Union of
65
India 2008(5) SCC 511 (vide paragraphs 25 to 27). The very fact
that it has been held that death penalty should be given only in the
rarest of the rare cases means that in some cases it should be given
and not that it should never be given. As to when it has to be
given, the broad guidelines in this connection have been laid down
in Macchi Singh's case (supra) which has been followed in several
decisions referred to above. This Court has also held that honour
killing vide Bhagwan Dass vs. State (NCT) of Delhi AIR 2011
SC 1863, fake encounter by the police vide Prakash Kadam vs.
R.V. Gupta AIR 2011 SC 1945 and dowry death vide Satya
Narayan Tiwari vs. State of U.P. (2010) 13 SCC 689 comes
within the category of `rarest of rare cases'. Hired killing would
also ordinarily come within this category.
102. In view of the foregoing, there is no merit in this appeal
which is accordingly dismissed.
66
103. Before parting with this case, we would like to mention that
we are not dealing with mercy petitions under Article 72 and 161
of the Constitution, but are confining ourselves to the question of
imposing death penalty on the judicial side.
....................................J.
(Markandey Katju)
.....................................J.
(Chandramauli Kr. Prasad)
New Delhi;
September 13, 2011
