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Friday, September 30, 2011

whereby the High Court dismissed the appeal preferred by the appellant-accused and allowed the appeal preferred by the State of Maharashtra, respondent herein and enhanced the sentence of life imprisonment to death which was imposed by = murders were not pre-planned or pre-meditated. No weapon much less dangerous was used in commission of offence. As pointed out earlier, only on account of property dispute, the appellant went to the extent of committing murders.=In our opinion, it is not a rarest of rare case where extreme penalty of death is called for instead sentence of imprisonment for life as ordered by the trial Court would be appropriate.


                                                            REPORTABLE



                                                           


               IN THE SUPREME COURT OF INDIA




              CRIMINAL APPELLATE JURISDICTION








              CRIMINAL APPEAL NO. 868 OF 2006










Sham @ Kishor Bhaskarrao Matkari                      .... Appellant(s)






            Versus






The State of Maharashtra                              .... Respondent(s)










                            J U D G M E N T 




P. Sathasivam, J.




1)      This   appeal   is   directed   against   the   common   final 






judgment   and   order   dated   03.05.2006   passed   by   the   High 






Court   of   Judicature   of   Bombay,   Bench   at   Aurangabad   in 






Criminal   Appeal   Nos.   183   of   2004   and   391   of   2003   whereby  






the   High   Court   dismissed   the   appeal   preferred   by   the 






appellant-accused   and   allowed   the   appeal   preferred   by   the 






State   of   Maharashtra,   respondent   herein   and   enhanced   the 






sentence of life imprisonment to death which was imposed by 








                                                                           1



the   First   Ad-hoc   Additional   Sessions   Judge,   Jalgaon   in 






Sessions Case No. 160 of 2001.      










2)    Brief facts:






a)    Sham   @   Kishor   Bhaskarrao   Matkari,   the   appellant-






accused was residing with his brother Manohar Matkari (since 






deceased)   and   his   family   consisting   of   his   wife,   Meena   (since 






deceased)   and   three   children,   namely,   Akhilesh   (since 






deceased), Monika (PW-7) and Vishwesh in a rented premises 






owned by one Pandurang Patil (PW-3).  Manohar, the deceased 






was   serving   in   the   Railway   Mail   Service,   Bhusawal.     Dipak 






Narayan Thakur (the Complainant) was their neighbour.    






b)    On   28.06.2001,   at   about   9.00   to   9.15   p.m.,   when   the 






Complainant  came  out  of  his  house  for   collecting  the   clothes 






which were kept for drying, he noticed that some quarrel was 






going   on   between   the   appellant-accused   and   his   brother 






Manohar  in their house.   He heard the accused saying to his 






brother Manohar that you raised hands on me today, I will see 






you   later.     Since   it   would   be   a   dispute   over   the   household 






matter,   he   neglected   and   went   inside   the   house.     In   the  










                                                                            2



midnight, at about 3.00 to 3.30 a.m., the Complainant heard 






some hue and cry from the house of Manohar.  He also heard 






the   cries   of   Meena,   the   wife   of   Manohar   and   the   noise   of 






beating and groaning of small child from the house.   He also 






noticed   the   smell   of   leakage   of   gas   and   something   burning 






from   the   house   of   Manohar.     Immediately,   he   informed 






Pandurang Patil (PW-3) - the landlord and also one  Pitamber 






Choudhary, who was residing on the upper floor.   Thereafter, 






all of them proceeded to the house of the deceased-Manohar. 






When they were going towards the house of the deceased, they 






saw   the   accused   coming   out   of   the   house   and   when   they 






enquired, the accused told that three thieves entered into their 






house and assaulted them.  Thereafter, the accused demanded 






water   for   drinking.     They   also   noticed   that   the   hands   and 






clothes   of   the   appellant-accused   were   stained   with   blood. 






When   they   approached   near   the   house   of   the   deceased,   they 






noticed smoke  coming out  of the  house.   Immediately, PW-3, 






the landlord, telephoned the police.  






(c)    On   receipt   of   the   information,   the   Inspector   of   Police, 






Dilip   Shankarwar   (PW-14)   rushed   to   the   place   of   occurrence 










                                                                            3



immediately.  He saw the appellant-accused sitting by the side 






of water tank and having suffered bleeding injury on his head. 






When enquired, the accused narrated the same story that 3 to 






4   persons   entered   into   their   house   and   assaulted   him,   his 






brother, his brother's wife and children and they tried to burn 






his brother's wife and after taking household articles, they fled 






away.   Since blood was oozing out from his head, PW-14 sent 






the   accused   to   the   hospital   for   treatment   in   a   police   jeep.  






When they entered into the house, they noticed smoke coming 






out of the room and Akhilesh, the son of Manohar, was lying 






in injured condition on the cot and blood was oozing from his  






head.     They   also   noticed   that   Manohar,   his   wife   Meena, 






daughter   Monika   and   son   Vishwesh   were   lying   in   injured 






condition   on   the   floor   of   the   house.     They   also   noticed   that 






Meena   was   partially   burnt   and   a   stone   of   big   size   and   a   gas 






cylinder   with   tube   were   lying   near   her   body.     PW-14 






immediately   sent   the   two   injured   boys   and   girl   to   the 






Municipal   Hospital,   Bhusawal   in   a   police   jeep.     As   Manohar 






and   his   wife   were   dead,   their   bodies   were   sent   for   post-






mortem.     At   the   same   time,   spot   Panchanama   (Ex.24)   was 










                                                                                4



drawn   by   PW-14   and   he   also   seized   the   articles   found   lying 






there including wooden rafter having stains of blood and a big 






stone.        Since   the   condition   of   injured   Akhilesh   was 






deteriorating, he was shifted to Civil Hospital, Jalgaon and he  






expired   on   29.06.2001.     Injured   Monika   and   Vishwesh   were 






shifted to Civil Hospital, Jalgaon.   Later on, both were shifted 






to a private hospital at Aurangabad.     






(d)    A crime was registered being Crime No. 41 of 2001 for the 






offences   punishable   under   Sections   302,   307   and   201   of   the  






Indian Penal Code, 1860 (in short "IPC").  During the course of  






investigation, the Investiating Officer recorded the statements 






of Pandurang Patil (PW-3) and others.   He also seized clothes  






of   the   deceased,   Manohar,   Meena   and   Akhilesh.     Since   the 






accused   was   detected   as   perpetrator   of   the   crime,   he   was 






arrested.  His nail clippings and blood samples were collected. 






PW-14 also recorded the statements of Monika and Vishvesh, 






the injured children.  






(e)    After   necessary   investigation,   charge-sheet   was   laid   in 






the   Court   of   Judicial   Magistrate,   First   Class,   Bhusawal,   who 






committed the case to the Court of Sessions.  The First Ad-hoc 










                                                                            5



Additional   Sessions   Judge,   Jalgaon,   after   examining   16 






witnesses including Monika, an injured minor girl as PW-7, by 






judgment   dated   04/05.03.2003   convicted   the   appellant-






accused for the offence punishable under Section 302 IPC and  






sentenced   him   to   imprisonment   for   life   and   to   pay   a   fine   of 






Rs.25,000/-,   in   default   of   payment   of   fine,   to   suffer   rigorous 






imprisonment for  two years and also sentenced him to suffer 






rigorous   imprisonment   for   seven   years   for   the   offence   under  






Section 307 IPC, and to pay a fine of Rs.1,000/-, in default of 






payment   of   fine,   to   suffer   rigorous   imprisonment   for   three 






months   and   acquitted   him   for   the   offence   punishable   under 






Section 201 IPC.  






(f)    Against   the   aforesaid   judgment,   the   State   of 






Maharashtra,   respondent   herein   filed   an   appeal   being 






Criminal   Appeal   No.   391   of   2003   before   the   High   Court   of 






Judicature of Bombay, Bench at Aurangabad for enhancement 






of   sentence   from   imprisonment   for   life   to   death   and   the 






appellant-accused also filed appeal being Criminal Appeal No. 






183 of 2004.   Both the appeals were heard together and by a 






common   impugned   judgment   dated   03.05.2006,   the   High 










                                                                              6



Court dismissed the appeal filed by the appellant-accused and 






allowed   the   appeal   filed   by   the   State   and   enhanced   the 






sentence of life imprisonment to death.   Aggrieved by the said 






judgment,   the   appellant-accused   has   filed   this   appeal   before 






this Court by way of special leave petition.  






3)    Heard   Mr.  Tara   Chand  Sharma,  learned   counsel   for   the 






appellant-accused and Mr. Sushil Karanjkar, learned counsel 






for the respondent-State.  






4)    Learned counsel for the appellant though canvassed the 






ultimate conviction imposed by the trial Court and affirmed by 






the High Court mainly contended before us with regard to the 






death sentence awarded by the High Court.  According to him, 






in view of several mitigating circumstances highlighted before 






the High Court, without adverting to the same, the High Court 






awarded   the   extreme   penalty   of   death   sentence   which   is   not 






warranted in the facts and circumstances of the case.  On the 






other   hand,   learned   counsel   for   the   State,   by   taking   us 






through the relevant materials, submitted that in view of death 






of three persons and causing injuries to two, all in one family, 










                                                                          7



the   High  Court  was   justified  in   awarding  capital  punishment 






(death sentence) to the appellant-accused.  






5)    We have carefully perused all the relevant materials and  






considered the rival submissions. 






6)    Very briefly, let us consider the prosecution case and the 






ultimate   conviction   under   Sections   302   and   307   IPC.     The 






appellant-accused   was   the   real   brother   of   Manohar   Matkari-






the   deceased   and   was   residing   with   him   in   a   rented   premise 






owned by Pandurang Patil, (PW-3).  The said Manohar and his 






wife   Meena   were   having   three   children.     The   incident   took  






place in the night intervening 28/29.06.2001.  Dipak Narayan 






Thakur   (PW-1)   was   the   neighbour   of   Manohar   in   one   of   the  






premises   owned   by   Pandurang   Patil,   (PW-3)   as   tenant   at   the 






relevant point of time.   According to PW-1, on the said night,  






at about 9.00 to 9.15 p.m., when he came out of his house to 






collect the clothes which were kept for drying, he noticed that  






some   quarrel   was   going   on   between   the   accused   and   his 






brother   Manohar   in   their   house.     In   the   mid-night,   at   about 






3.00 to  3.30 a.m., PW-1 again  heard  some  hue  and  cry from 






the   house   of   Manohar.     He   also   heard   cries   of   the   wife   of 










                                                                             8



Manohar and the noise of beating and groaning of small child 






from  the   house.    He  also noticed smell  of leakage  of gas and 






something burning in the house of Manohar.   On noticing all  






these   things,   PW-1   rushed   to   his   landlord,   Pandurang   Patil, 






(PW-3)   and   also   woke   up   one   Pitamber   Choudhary,   who   was 






residing   on   the   upper   floor.     It   is   further   seen   from   his 






evidence   that   he   then   along   with   those   persons   proceeded 






towards   the   house   of   Manohar   and   saw   the   accused   coming 






out   of   the   house   and   when   they   enquired   him,   the   accused 






told   that   three   thieves   had   entered   into   their   house   and 






assaulted   him,   his   brother,   his   brother's   wife   and   their 






children.     On   hearing   this,   PW-3   informed   the   police   over 






phone.    The  police   arrived   there   within   10   minutes  and   took  






the accused to the hospital as he had sustained head injury. 






The police also took all the three children to the hospital in a 






police   jeep.     Thereafter,   PW-1   entered   the   house   of   Manohar 






along with the police officers.  They noticed that Manohar and 






his wife Meena were lying dead and Meena was partially burnt. 






PW-1   narrated   the   incident   to   the   police   which   was   reduced 






into writing and treated as FIR (Ex.P-22). 










                                                                            9



7)    When   the   appellant-accused   was   undergoing   treatment 






in   the   hospital,   on   30.06.2001,   the   Police   Officer,   Zillapeth 






Police   Station,   Jalgaon   thought   that   the   accused   may   not 






survive and sent a requisition to Muralidhar Sapkale, (PW-16) 






who was the Executive Magistrate working in Treasury Office, 






Jalgaon   to   record   his   statement.     Pursuant   to   the   same, 






PW-16   visited   the   Civil   Hospital,   Jalgaon   and   recorded   the  






statement of the accused which is Ex.73.   All were under the 






impression   that   on   the   death   of   the   accused,   the   said 






statement   will   be   treated   as   dying   declaration.     The   said 






statement,   Ex.73,   contains   confession   on   the   part   of   the 






accused.     The   prosecution   also   relied   on   the   statement   of 






Monika, (PW-7), daughter of Manohar, who has stated to have 






seen the part of the occurrence. 






8)    Learned counsel for the appellant-accused has taken us 






through   the   evidence   of   PWs-1,   3,   7   and   16   and   all   other  






connected   documents.     We   have   already   stated   that   Dipak 






Narayan   Thakur,   (PW-1)   is   residing   in   one   of   the   premises 






adjoining   to   Manohar   owned   by   one   Pandurang   Patil,   (PW-3) 






as   tenant,   at   the   relevant   time.     PW-1   noticed   the   first 










                                                                            10



occurrence, that is, between 9.00 to 9.15 p.m., namely, at the 






time  of  collecting his  clothes  which  were kept  for  drying  that 






some   quarrel   was   going   on   between   the   accused   and   his 






brother   Manohar.     It   was   he   who   witnessed   the   second 






incident also, that is, in the mid-night, at about 3.00 to 3.30 






a.m., in the house of Manohar.  He not only heard the cries of 






Manohar but also heard noise of beating and groaning of small  






children from the house.   He also noticed leakage of gas from 






the   house   of   Manohar.     It   is   further   seen   that   on   his 






information,   PW-3,   their   landlord,   and   one   Pitamber 






Choudhary,   also   joined   and   noticed   the   occurrence   in   the 






early morning.   When PW-1 and PW-3 proceeded towards the 






house   of   Manohar,   they   saw   the   accused   coming   out   of   the 






house   and   when   they   enquired,   the   accused   told   that   three 






thieves had entered into their house and they assaulted him, 






his   brother,   his   brother's   wife   and   their   children.     They   also 






noticed blood stains in the hands and clothes of the accused. 






PW-1 also  informed that  when they went inside  the  house  in 






the   morning   along   with   the   police   and   others,   they   noticed 






that Manohar and his wife Meena were lying dead and Meena 










                                                                              11



was   burnt   to   some   extent.     They   also   noticed   a   square   sized 






stone weighing roughly 25 kgs. near the dead body.   The two 






injured   boys   and   girl   were   also   taken   to   the   hospital.     Dr. 






Sandip Ingale (PW-6) and Dr. Sangram Narwade (PW-11), who 






conducted   the   post-mortem,   were   also   examined.     They   also 






noted   the   injuries   of   all   the   three   persons.     We   have   already 






noted   the   statement   of   accused   himself   to   the   Executive 






Magistrate   (PW-16)   at   the   time   when   he   was   admitted   in   the 






hospital.     Since   he   was   alive,   the   statement   recorded   by   the 






Executive   Magistrate   had   been   treated   as   statement   under 






Section 164 of the Code of Criminal Procedure, 1973 (in short  






"the Code") and proceeded further.  Though the said statement 






is   not   a   dying   declaration,   however,   the   accused   knowing   all 






the seriousness confessed about the killing of his brother, his 






wife and their child and causing injuries to other two children. 






There is no reason to disbelieve the version of Monika (PW-7)  






who   witnessed   the   occurrence,   neigbours   and   landlord   of 






Manohar (PWs 1 and 3) as well as the confessional statement 






of   the   accused   before   the   Executive   Magistrate.     Considering 






the opinion of the doctors, (PWs-6 and 11), cause of death and 










                                                                               12



recovery  of a  stone  inside   the   house  of  Manohar  where   three 






different   bodies   were   lying,   we   are   satisfied   that   the 






prosecution has established its case beyond reasonable doubt 






for   an   offence   under   Section   302   IPC.     The   trial   Court 






considering   the   fact   that   the   murders   were   neither   pre-






meditated nor pre-planned on the part of the appellant, and a  






simple   case   of   land   dispute   which   led   to   altercation   and 






murdering of three persons, imposed life imprisonment under 






Section   302   IPC   and   rigorous   imprisonment   for   seven   years 






under Section 307 IPC.  The said conclusion is acceptable. 




About Sentence




9)    Learned   counsel   for   the   respondent-State,   by   drawing 






our attention to the recent decision of this Court in Ajitsingh  




Harnamsingh   Gujral  vs.  State   of   Maharashtra,   JT   2011 




(10)   SC   465   submitted   that   the   award   of   death   sentence   is 






appropriate   in   the   facts   and   circumstances   of   this   case.     In 






that case, the accused was charged under Section 302 IPC for 






committing   murders   of   his   wife,   his   son   and   two   daughters 






and the trial Court, after finding that four members from the 






same   family  were  murdered  and  it   was  a   rarest  of   rare  case, 










                                                                            13



imposed   penalty   of   death   upon   the   accused.     The   death 






sentence was confirmed by the High Court and the matter was 






taken up before this Court by way of appeal.  This Court, after  






adverting to the earlier decisions as regards to award of death  






sentence   including   the   principles   enunciated   in  Bachan  




Singh vs. State of Punjab, (1980) 2 SCC 684, Machhi Singh  




and   Others  vs.  State   of   Punjab,  (1983)   3   SCC   470, 




C. Muniappan and Others  vs.  State of Tamil Nadu, (2010) 




9   SCC   567   and   various   other   judgments,   agreeing   with   the 






conclusion   arrived   at   by   the   trial   Court   and   the   High   Court  






and   finding   that   all   the   requisites   for   death   penalty   as 






discussed   and   noted   in   the   various   decisions   are   satisfied, 






confirmed the same.   Absolutely, there is no quarrel as to the  






propositions of law and principles laid down in those decisions 






and   the   ultimate   conclusion   in  Ajitsingh   Harnamsingh  




Gujral   (supra).    In   the   case   on   hand,   the   appellant-accused 




had   no   pre-meditated   plan   or   mind   to   eliminate   the   entire 






family of his brother, he himself slept with the victims on the  






fateful   night,   due   to   land   dispute   quarrel   started   and   ended 






with   murdering   three   persons.     In   those   circumstances   and 










                                                                             14



the   background   and   no   bad   antecedents   of   the   accused,   the 






above   decision   relied   on   by   the   State   is   distinguishable   and 






not helpful to the claim for retaining the death penalty.     






10)    When   the   matter   was   taken   up   before   the   High   Court, 






both   by   the   accused   and   the   State,   after   thorough   analysis, 






the   High   Court   confirmed   the   conviction.     As   an   appellate 






Court,   the   High   Court   once   again   analysed   the   prosecution 






evidence   and   the   defence   taken   by   the   accused   and   finally 






concurred   with   the   conclusion   arrived   at   by   the   trial   Court 






insofar   as   conviction   under   Sections   302   and   307   IPC   are 






concerned.     On   going   through   all   the   materials,   we   are   in  






entire agreement with the said conclusion. 






11)    In   the   appeal   filed   by   the   State   for   enhancement   of 






sentence   from   life   imprisonment   to   death   sentence,   from   the 






evidence   on   record   and   considering   the   materials,   the   High 






Court   identified   the   following   circumstances   for   imposing 






extreme penalty of death:






       "(i)    The date and place of incident not disputed.






       (ii)    In   the   incident   that   occurred,   admittedly,   victim 


       Manohar, his wife Meenabai and son Akhilesh lost their lives 


       and   as   has   been   established   on   medical   evidence, 


       undoubtedly,   these   three   victims   died   homicidal   death.     In 


       that, victim Manohar and his wife Meenabai died on the spot  










                                                                                     15



having suffered head injuries and in addition to that, so far  


as   Meenabai   is   concerned,   she   suffered   burn   injuries, 


indicating   that   the   assailant   i.e.   the   respondent   (original 


accused)   before   the   Court,   caused   burns   by   setting   her   on 


fire by leaking the gas from Gas Cylinder.  






(iii)     The assault on victims by the respondent was aimed at 


midnight when the victims were fast asleep and as such they 


were   defenceless,   showing   that   the   respondent   acted 


dastardly   and   was  completely   depraved.     The   nature   of   the 


injuries, which were inflicted on the child, more particularly, 


the injuries on his head itself show that how the respondent  


acted brutally showing extreme depravity and ruthlessness.






(iv)      The   respondent   was   alone   in   the   house   during   the 


time the occurrence took place at midnight.   This is, in the 


sense,   that   there   was   no   third   person   in   the   house,   much  


less, having entered the house.






(v)       As against this, the Respondent put forth a false story 


that   3   to   4   unknown   persons   entered   the   house   and 


committed   murders   and  murderous  assault   on   the   victims. 


This  plea  of the respondent  (original accused)  was found to 


be false and misguiding the investigating machinery.






(vi)      The   respondent   (original   accused),   in   his   statement 


Ex.-73, has clinchingly stated that the victims were done to 


death   by   him,   so   also   the   injured   children   at   the   time   and 


place of incident.






(vii)     In the early morning, witnesses Dipak Narayan Thakur 


and   Pandurang   Patil   noticed   the   respondent   coming   out   of 


his   house   having   his   hands   and   clothes   on   his   person 


stained with blood.






(viii)       Though  the   respondent  came  up with the  case  that 


unknown   persons   assaulted   the   victims   in   the   house,   he 


remained   silent   in   the   house,   though,   in   his   presence,   the 


victims were done  to death and two small children suffered 


serious injuries.






(ix)      The   respondent   did   not   raise   hue   and   cry,   though 


according to him, in his presence, unknown persons entered 


the   house   and   assaulted   the   victims.     He   did   not   cause 


alarm to the persons in the vicinity, thereby exhibiting most 


queer and unnatural conduct.










                                                                                     16



(x)       The  witnesses, particularly, witness  Dipak Thakur,  in 


the Midnight, heard cries of a woman groaning  in pain and 


early in the morning, saw the respondent coming out of the 


house with blood on his clothes and hands.






(xi)      Both   these   witnesses   Dipak   Thakur   and   Pandurang 


Patil   stated   in   their   evidence   that   on   that   night,   no   third 


person   from   outside   came   to   the   premises,   much   less, 


entered in the house of the victims.






(xii)     The   respondent,   in   his   statement   Ex.-73,   which   is 


accepted and found to be truthful, candidly admitted to have 


assaulted   the   victims   acting   in   a   brutal   manner   out   of  


vengeance arising out of the dispute over the property.






(xiii)     The respondent did not deter, much less felt ashamed 


even while assaulting small children of his real brother when  


they were caught helpless, as they were sleeping when one of  


them was done to death and other two were injured.






(xiv)       Admittedly,   the   earlier   incident   took   place   at   about 


08:30 p.m., which ended after quarrel and some beating by 


victim   Manohar   to   the   respondent.     The   later   incident 


occurred at midnight when the victims were fast asleep.  The  


respondent assaulted them one by one and what is shocking 


is   that   victim   Monika   had   seen   the   respondent   committing 


assault after assault on her father, mother and her brothers 


Akhilesh and Vishwesh.






(xv)      It is seen that the murders have been committed and 


three   persons   were   done   to   death   in   ruthlessness,   showing 


that the respondent was totally depraved of and acted most 


beastly.






(xvi)       Since   the   earlier   incident   took   place   at   08:30   p.m., 


and   the   accused,   after   taking   meals   at   night,   remained   in 


the house and then at midnight, surreptitiously killed one by 


one   and   also   caused   murderous   assault   on   the   victims 


showing   extreme   brutality.     This   shows   that   the   attack   by  


the   accused   was   predetermined,   so   also   premeditated. 


Therefore, it is a case of cold-blooded murders."                










                                                                                     17



12)    With   the   above   aggravating   circumstances   put   forth 






against   the   accused,   various   mitigating   circumstances   were 






also   pressed   into   service   and   pointed   out   that   the   extreme 






penalty  of  death  is  not   warranted.    It is  pointed out  that   the  






accused is 38 years old and his antecedents are unblemished 






and   not   having   any   criminal   tendency,   there   can   be   no 






apprehension even of danger to the society, it cannot be ruled  






out   that   rehabilitation   of   the   accused   is   impossible   and   it   is 






not a rarest of rare case causing for extreme penalty of death. 






13)    Taking   into   consideration   of   both   aggravating   and 






mitigating   circumstances,   the   High   Court,   after   finding   that 






the  accused  having  slept  with  the  victims  in  the   same  house 






proceeded   to   assault   one   after   another,   it   must   be   said   that 






the   assault   was   pre-meditated   and   the   accused   was 






determined to do the same, hence, it cannot be construed that 






the accused was on the spur of the moment, after having done 






to   death   his   brother,   brother's   wife,   the   accused   also   gave 






murderous   assault   on   their   children   and   noting   that   it   is   a 






case   of   extreme   culpability   concluded   that   the   sentence 






awarded   by   the   trial   Court   of   imprisonment   of   life   is 










                                                                               18



inadequate   and   it   is   a   rarest   of   rare   case   where   extreme 






penalty of death is called for accepted the appeal preferred by  






the State and enhanced the penalty of death by hanging.




Conclusion:




14)    Since   this   Court,   in   series   of   decisions   starting   from 




Bachan   Singh   (supra)  indicated   various   aggravating   and 




mitigating circumstances, there is no need to refer to all those 






decisions.     Though   the   appellant   caused   death   of   three 






persons, he  had no  pre-plan  to  done  away with  the  family  of 






his   brother   and   the   quarrel   started   due   to   the   land   dispute 






and,   in   fact,   on   the   fateful   night,   he   was   sleeping   with   the 






other victims in the same house.  In those circumstances and 






other materials placed clearly show that he has no pre-plan or 






pre-determination   to   eliminate   the   family   of   his   brother.     At 






the time of the incident, i.e., in the year 2001, the accused was  






28 years  old and  was jobless.   He is in  jail  since  30.06.2001 






and   in   the   death   cell   since   the   date   of   the   judgment   of   the 






High Court that is on 03.05.2006.  It is clear that he remained 






in   jail   for   more   than   10   years   and   more   than   five   years   in 






death   cell.     The   materials   placed   on   record   show   that   the  










                                                                                19



antecedents   of   the   accused-appellant   are   unblemished   as 






nothing   is   shown   by   the   prosecution   that   prior   to   this 






incident, he was indulged in criminal activities.  The appellant 






had no bad antecedents.  We have already concluded that the 






murders   were   not  pre-planned   or   pre-meditated.     No   weapon 






much less dangerous was used in commission of offence.   As  






pointed   out   earlier,   only   on   account   of   property   dispute,   the 






appellant   went   to  the  extent   of   committing  murders.     This   is 






clear from the prosecution evidence and the conclusion of the 






trial   Court.     As   rightly   pointed   out   by   the   counsel   for   the 






appellant,   there   is   no   reason   to   disbelieve   that   the   appellant 






cannot   be   reformed   or   rehabilitated   and   that   he   is   likely   to 






continue   criminal   acts   of   violence   as   would   constitute   a 






continued   threat   to   the   society.     Considering   the   facts   and 






circumstances,   it   cannot   be   said   that   the   appellant-accused 






would   be   a   menace   to   the   society.     We   are   satisfied   that   the 






reasonings   assigned   by   the   High   Court   for   awarding   extreme 






penalty of death sentence are not acceptable.   It is relevant to  






point   out   that   the   trial   Court   which   had   the   opportunity   of 






noting   demeanour   of   all   the   witnesses   and   the   accused 










                                                                                20



thought   it   fit   that   life   sentence   would   be   appropriate. 






However, the High Court while enhancing the same from life to 






death, in our view, has not assigned adequate and acceptable 






reasons.   In our opinion, it is not a rarest of rare case where 






extreme   penalty   of   death   is   called   for   instead   sentence   of 






imprisonment   for   life   as   ordered   by   the   trial   Court   would   be 






appropriate.  






15)    In   the   light   of   the   above   discussion,   while   maintaining 






the   conviction   of   the   appellant-accused   for   the   offence   under 






Section   302   IPC,   award   of   extreme   penalty   of   death   by   the  






High   Court   is   set   aside   and   we   restore   the   sentence   of   life  






imprisonment   as   directed   by   the   trial   Court.   The   appeal   is 






allowed in part to the extent mentioned above.                         










                                            ..........................................J. 


                                            (P. SATHASIVAM) 








                                            ..........................................J. 


NEW DELHI;                                    (DR. B.S. CHAUHAN) 


SEPTEMBER 30, 2011.                     










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