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Tuesday, January 29, 2013

the death sentence= every murder is brutal, and the difference between the one from the other may be on account of mitigating or aggravating features surrounding the murder.; It is well settled law that awarding of life sentence is a rule and death is an exception. ; Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather it always means the whole natural life.; there is misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 years imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code which in turn is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code.;The appellant-accused, therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life, meaning thereby, the end of his life but subject to any remission granted by the appropriate Government satisfying the conditions prescribed in Section 432 of the Code and further substantiate check under Section 433-A of the Code by passing appropriate speaking orders. The appeals are disposed of on the above terms.


                                     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                  1 CRIMINAL APPEAL NOs. 1278-1279 OF 2010



Mohinder Singh                                  .... Appellant(s)

            Versus

State of Punjab                                  .... Respondent(s)

                                      2


                               J U D G M E N T



P.Sathasivam,J.

1)     These appeals are filed against the common final judgment  and  order
dated 30.05.2008  passed  by  the  High  Court  of  Punjab  and  Haryana  at
Chandigarh in Murder Reference No. 8 of 2007 and Criminal Appeal  No.  1033-
DB of 2007  whereby  
the  High  Court  accepted  the  murder  reference  and
confirmed the  death  sentence  imposed  on  the  appellant  herein  by  the
Sessions Judge, Ludhiana by order dated 22.11.2007 in Session  Case  No.  32
of  2006 and dismissed the appeal filed by him.
2)    Brief facts:
(a)   According to the prosecution,
 on  08.01.2006,  
the  appellant-accused
has committed murder of his wife-Veena Verma  and  daughter-Geetu  Verma 
 in the background of inimical relationship between them on account of  criminal
cases registered against him by his wife 
for committing rape  on  his  minor daughter–Geetu Verma, for which he was sentenced  to  rigorous  imprisonment
for 12 years, and for attacking her after  release  on  parole  in  January, 2005 for which an FIR was registered against him.
(b)  On the date of incident, i.e., 08.01.2006, at around 06:30  p.m.,  when
Shalu Verma-the complainant, daughter of the appellant-accused  was  present
along with her mother-Veena Verma and sister-Geetu Verma in their  house  at
village Partap Singh Wala, Haibowal, Ludhiana, at that time, the  appellant-
accused, who was living separately in a rented accommodation,  came  to  the
said place carrying a Kulhara (axe) in his hand.
The  complainant  informed
her mother about the same.  When Veena  Verma  came  to  the  lobby  of  the
house, the appellant-accused gave an axe blow on her   head.   She  fell  on
the ground and, thereafter, he gave two more blows using  axe  on  her  neck
and hand.
Immediately after that, he stepped towards Geetu Verma  and  gave
3 repeated blows on her head.  Both of them smeared with blood and  died  on
the spot.
When he approached Shalu, she went into the room and  bolted  the
same from inside.  The appellant-accused fled away leaving the  axe  at  the
spot.
After sometime, she came outside the room and raised hue and cry.
(c)   On the basis of the statement of Shalu  (PW-2),  a  First  Information
Report (FIR) being No. 6 was registered against the appellant-accused  under
Section 302 of the Indian Penal Code, 1860 (in  short  “the  IPC”)  at  P.S.
Haibowal, Ludhiana.  On the same day,  the  appellant-accused  was  arrested
from his rented house and the case was committed to the  Court  of  Session,
Ludhiana and numbered as Session Case No. 32 of 2006
(d)   The Sessions Judge, Ludhiana, by  order  dated  22.11.2007,  convicted
the appellant under Section 302 of IPC and sentenced him to death.
(e)   Against the said order, the appellant preferred an appeal  before  the
High Court and the State filed a reference under Section 366 of the Code  of
Criminal Procedure, 1973 (in short ‘the Code’)  for  confirmation  of  death
sentence.  By a common impugned  order  dated  30.05.2008,  the  High  Court
while accepting the murder reference confirmed the death  reference  imposed
by the trial Court and dismissed the appeal filed by the  appellant-accused.

(f)   Aggrieved by the said judgment, the appellant preferred these  appeals
by way of special leave before this Court.
(g)   This Court, by order dated 20.07.2009, issued notice  on  the  special
leave petitions confining to sentence only.  Even on  16.07.2010  when  this
Court granted leave, nothing has been stated about the  above  said  initial
notice.
Hence, in these appeals, we are  concerned  about  the  quantum  of sentence imposed on the appellant.
3)    Heard Mr. Tripurari Raj, learned counsel for the appellant and Mr.  V.
Madhukar, learned Additional Advocate General for the respondent-State.
4)    Though at the outset, learned counsel for the  appellant  insisted  us
to go into the entire merits of the case including the circumstances  relied
on by the prosecution and accepted by the Courts below, in view of the  fact
that this Court has issued notice confining to sentence  only,  we  rejected
his plea.
5)    We are conscious of the fact that in terms of Section  366(1)  of  the
Code, when the Court of Session passes a sentence of death, the  proceedings
shall be submitted to  the  High  Court,  and  the  sentence  shall  not  be
executed  unless  it  is  confirmed  by  the  High  Court.  
The  scope  and
application of the above section is only in cases where a sentence of  death
has been passed by the Court of Session.  The Court of Session should  refer
the proceedings to the High Court and the High  Court  can  only  deal  with
them as a Court of reference.  
It is the practice of the High  Court  to  be
satisfied on the facts as well as the law of the case, that  the  conviction
is right, before it proceeds to confirm that sentence.  In other words,  the
High Court has to come to its own independent conclusion as to the guilt  or
innocence of the accused, independently of the opinion of the Judge.   In  a
reference for confirmation of death sentence, the High  Court  must  examine
the entire evidence for itself independent of  the  Session  Court’s  views.
While  confirming  the  capital  sentence,  the  High  Court  is  under   an
obligation to itself consider what sentence should be  imposed  and  not  be
content with the trial Court’s decision on the point unless some  reason  is
shown for reducing the same.  
Where, in addition to an appeal  filed  by  an
accused sentenced to death, the High Court has to dispose of  the  reference
for confirmation of death sentence under Section 366 of the Code,  the  High
Court, while dealing with reference, should consider the proceedings in  all
its aspects and come to an independent conclusion on the material on  record
apart from the views expressed by the Sessions Judge.  
The  confirmation  of
death sentence cannot be based only on the  precedents  and  or  aggravating
facts and circumstances of any other case.
6)    Keeping the above principles in mind, let  us  analyze  the  materials
placed before the trial Judge as well as the confirmation order of the  High
Court.  In view of the limited notice and  in  the  light  of  the  mandates
provided under Section 366 of the Code relating  to  confirmation  of  death
sentence by the High Court, we are of the view that considering two  earlier
orders passed by this Court on 20.07.2009 and 16.07.2010  confining  to  the
sentence,  we  intend  to  concentrate  only  to   the   question,   namely,
acceptability or otherwise of the “sentence” hereunder.
7)    No doubt, it is a case of double murder by the  appellant-accused  who
murdered his wife and daughter in a gruesome manner  in  the  background  of
inimical relationship between  the  family  on  account  of  criminal  cases
registered against the appellant-accused at the  instance  of  his  deceased
wife – Veena Verma and deceased daughter-  Geetu  Verma  for  which  he  was
sentenced to rigorous imprisonment for 12 years’ for committing rape on  his
daughter-Geetu Verma.  In that case his deceased wife was a witness.  It  is
seen that after release on parole in January, 2005, he attacked on his  wife
and an FIR was registered  against  him  for  violating  the  conditions  of
release.  It is further seen that the accused committed the offence  in  the
presence of his youngest daughter Shalu (PW-2).  It is also proved that  the
appellant had entered the scene of occurrence to  commit  the  said  offence
carrying a deadly  weapon  i.e.  ‘Kulhara’  (Axe)  which  was  used  in  the
commission of both the killings.  The members present in the house were  his
family members, viz., wife and two daughters.
8)    We noticed the following special reasons given by the trial Court  for
warranting the death sentence and the High Court  for  confirming  the  same
which are as follows:
i)    The appellant-accused had  earlier  committed  rape  on  his  deceased
daughter – Geetu Verma in the year 1999 when she was a  minor  after  giving
beatings and threat to her and in that  case  his  wife-Veena  Verma  (since
deceased) was a witness and that a case under Sections 376 and 506  IPC  was
registered against him which finally resulted in rigorous  imprisonment  for
12 years.
ii)    While  on  parole  in  January  2005,  the  appellant-accused  having
violated the conditions of release, attacked his  wife-Veena  Verma  and  an
FIR being No. 58 dated 06.04.2005 was registered against him under  Sections
323, 324 and 506 IPC which is pending in the Court of JMIC, Ludhiana on  the
date of alleged occurrence.
iii)  The appellant-accused entered into the  house  with  a  deadly  weapon
‘Kulhara’ (Axe) and caused unprovoked brutal attacks on the victims.
iv)   The appellant-accused caused repeated blows on the vital parts of  the
body of his wife and daughter  resulting  in  instantaneous  deaths  in  the
presence of his youngest daughter of tender age, who by running into a  room
and bolting its from  inside,  saved  herself  when  the  accused  proceeded
towards her.
v)   The appellant-accused gave first blow to his wife –  Veena  Verma  from
behind with Kulhara (axe) on her head and when she fell down on  the  ground
he caused successive blows on her neck and  the  head  and,  thereafter,  he
attacked his daughter–Geetu Verma and caused  repeated  Kulhara  blows  till
her death.  Thereafter, he proceeded towards  his  youngest  daughter  Shalu
(PW-2) and showed Kulhara to her, who ran into a room  and  bolted  it  from
inside.
vi)   In the case of the deceased - Veena Verma, out of  4  incised  wounds,
Injury Nos. 1 & 2 were caused on head, Injury No.3 on neck and Injury No.  4
resulted in partial amputation of left index finger from  1/3rd  with  clean
cut margins.  Regarding the deceased - Geetu Verma,  who  had  been  earlier
subjected to diabolical act of rape  by  the  appellant-accused  during  her
minority in 1999, as many as 9 injuries were caused, out  of  which  7  were
incised wounds and 2 were abrasions.  Further,  out of 7  incised  wounds  3
had been caused on head region itself, 1 on the left mastoid and rest  3  on
left and right elbow and fingers.  In  both  the  cases,  the  victims  died
instantaneous death.
vii)  Apart from  taking  revenge  for  his  conviction  and  sentence,  the
appellant-accused has committed the offence for personal gain as  he  wanted
the house, being occupied by his deceased wife and children, to  be  vacated
for his personal use.
9)    The crime of double murder of his wife and daughter in a gruesome  and
diabolical  manner  will  irrefutably  be  taken   into   consideration   as
aggravating circumstance.  However, for some reasons,  the  High  Court  did
not find any mitigating circumstance  in  favour  of  the  accused  for  the
purpose of balancing aggravating against mitigating.  Even, the  High  Court
recorded at page 38 of the impugned order as under:-
      “… In this background, looking for a strong  mitigating  circumstance,
      may not yield any result and this  offence  has  in  fact,  ceased  to
      remain a simple case of murder.  This has rather acquired an  enormity
      to the extent of rushing into the category  of  the  “rarest  of  rare
      case.”

It is pertinent to mention that in spite of the  onerous  duty  bestowed  on
the  reference   court   to   balance   the   aggravating   and   mitigating
circumstances, the High Court evaded the same.
10)   On the other hand, the Sessions Court had attempted to draw a  balance
of aggravating  and  mitigating  circumstances  by  stating  two  mitigating
circumstances as follows:
      1.    Firstly, his age at the time of  commission  of  crime  i.e.  41
           years.
      2.    Secondly, that the accused is a poor man, who had no livelihood.
While it is true that the above two circumstances alone will not  make  good
for commuting the death sentence to life sentence,
however, before  we  move
on to enumerate the other mitigating  circumstances  in  this  case,  it  is
necessary to consider few case laws which reiterate that  brutality  is  not
the sole criterion of determining whether a case falls under the “rarest  of
rare” categories.
11)   In Panchhi & Ors. vs. State of U.P., (1998)  7  SCC  177,
this  Court
held that brutality is not the sole criterion of determining whether a  case
falls  under  the  “rarest  of  rare”  categories,  thereby  justifying  the
commutation of a death sentence to life imprisonment.  This Court observed:
      “No  doubt  brutality  looms  large  in  the  murders  in  this   case
      particularly of the old and also the tender age child.  It may be that
      the manner in which a murder was perpetrated may be a ground  but  not
      the sole criterion for judging whether the case is one of the  “rarest
      of rare cases” as indicated in Bachan Singh’s case.”

12)   The Constitution Bench of  this  Court,  by  a  majority,  upheld  the constitutional validity of death sentence  in  Bachan  Singh  vs.  State  of Punjab, (1980) 2 SCC 684.
This Court  took  particular  care  to  say  that
death sentence shall not normally be awarded for the offence of  murder  and
that it must be confined to the “rarest of rare” cases when the  alternative
option is foreclosed.
In other words, the Constitution Bench did  not  find
death sentence valid in all cases except in the aforesaid cases wherein  the
lesser sentence would be wholly inadequate.
13)   In Machhi Singh and Ors. vs. State of Punjab,  (1983)  3  SCC  470,  a
three-Judge Bench of this Court while following the ratio  in  Bachan  Singh
(supra)  laid  down  certain  guidelines  amongst  which  the  following  is
relevant in the present case:
     A balance-sheet of aggravating and mitigating circumstances has to be
      drawn up and in doing so  the  mitigating  circumstances  have  to  be
      accorded full weightage and a just balance has to  be  struck  between
      the aggravating and the mitigating circumstances before the option  is
      exercised.”

14)   We have extracted the above reasons of the two courts  only  to  point
out that, in a way, every murder is brutal, and the difference  between  the one from the other may be on account of mitigating or  aggravating  features surrounding the murder.
15)   In the instant case, as already mentioned,  the  accused  had  earlier
committed rape on his deceased daughter-Geetu Verma  in  1999  and  in  that
case, his deceased wife - Veena Verma was a witness wherein the accused  was
convicted under Sections 376 and 506 IPC and sentenced to RI for  12  years.
It is also subsequently taken on record that  his  deceased  wife  sent  the
accused out of his house and as a consequence, he had to live separately  in
a rented house with no means of livelihood.  It was thirst for  retaliation,
which became the motivating factor  in  this  case.   In  no  words  are  we
suggesting that the motive of the accused was  correct  rather  we  feel  it
does not come within the category of “rarest of rare” case  to  award  death
penalty.
16)   The doctrine of “rarest of rare”  confines two aspects 
and
when  both
the aspects are satisfied only  then  the  death  penalty  can  be  imposed.
Firstly, the case must clearly fall within the ambit  of  “rarest  of  rare”
and secondly, when the  alternative  option  is  unquestionably  foreclosed.
Bachan Singh (supra) suggested selection of death punishment as the  penalty
of last resort when, alternative punishment of  life  imprisonment  will  be
futile and serves no purpose.
17)   In life sentence, there is  a  possibility  of  achieving  deterrence,
rehabilitation and retribution in different degrees.  But the same does  not
hold true for the death penalty.
It is unique in its absolute rejection  of
the potential of convict to rehabilitate and reform.  
It  extinguishes  life
and thereby terminates the being, therefore, puts  an  end  anything  to  do
with the life.  
This is the big difference between two  punishments.   
Thus,
before imposing death penalty, it is imperative to consider the same.
18)   “Rarest of rare” dictum, as discussed above, hints at this  difference
between  death  punishment  and   the   alternative   punishment   of   life
imprisonment.  The relevant question here  would  be  to  determine  whether
life imprisonment as a punishment would be pointless and  completely  devoid
of any reason in the facts and circumstances  of  the  case.   As  discussed
above, life imprisonment can be said to be completely futile, only when  the
sentencing aim of reformation can be said to  be  unachievable.   Therefore,
for satisfying the second aspect to  the  “rarest  of  rare”  doctrine,  the
court will have to provide clear evidence as to why the convict is  not  fit
for any kind of reformatory and rehabilitation scheme.
19)   Treating the case on the touchstone of the  guidelines  laid  down  in
Bachan  Singh  (supra),   Machhi  Singh  (supra)  and  other  decisions  and
balancing the aggravating and mitigating  circumstances  emerging  from  the
evidence on record,
  we are  not  persuaded  to  accept  that  the  case  can
appropriately be called the “rarest of rare” case warranting death  penalty.
 We also find it difficult to hold that the appellant is  such  a  dangerous
person that sparing his life will endanger the community.  
We are  also  not
satisfied that the circumstances of the crime are  such  that  there  is  no
other alternative but to impose death sentence even after according  maximum
weightage to the mitigating circumstances in favour of the accused.  In  our
considered view, this case is the one in which  humanist  approach  must  be
taken in the matter of awarding punishment.
20)   It is well settled law that awarding of life sentence is  a  rule  and death is an exception.  
The  application  of  the  “rarest  of  rare”  case
principle is dependant upon and differs from case  to  case.   However,  the
principles laid down and reiterated in various decisions of this Court  show
that in a deliberately planned crime, executed meticulously  in  a  diabolic
manner, exhibiting  inhuman  conduct  in  a  ghastly  manner,  touching  the
conscience of everyone  and  thereby  disturbing  the  moral  fiber  of  the
society, would call for imposition of capital punishment in order to  ensure
that it acts as a deterrent.  While we are convinced that the  case  of  the
prosecution based  on  the  evidence  adduced  confirms  the  commission  of
offence by the appellant, however, we are of  the  considered  opinion  that
still the case does not fall within the  four  corners  of  the  “rarest  of
rare” case.
21) Life imprisonment cannot be equivalent to imprisonment for 14  years  or 20 years or even 30 years, rather it always means the  whole  natural  life.
This Court has always clarified that the  punishment  of  a  fixed  term  of
imprisonment so awarded would be subject to any order passed in exercise  of
clemency powers of the President of India or the Governor of the  State,  as
the case may be.  Pardons, reprieves and  remissions  under  Article  72  or
Article 161 of  the  Constitution  of  India  are  granted  in  exercise  of
prerogative power.  As observed in State of Uttar Pradesh vs. Sanjay  Kumar,
(2012) 8 SCC 537,
there is no  scope  of  judicial  review  of  such  orders
except on very limited grounds such as the  non-application  of  mind  while
passing the order, non-consideration of relevant material, or if  the  order
suffers from arbitrariness.
The power  to  grant  pardons  and  to  commute
sentences is coupled with a duty to exercise  the  same  fairly,  reasonably
and in terms of restrictions imposed in several provisions of the Code.
22)   In order to check all arbitrary remissions, the Code  itself  provides
several conditions.  Sub-sections (2) to (5) of Section 432 of the Code  
lay
down  basic  procedure  for  making  an  application  to   the   appropriate
Government for suspension or remission of sentence either by the convict  or
someone on his behalf.  
We are of the view that exercise  of  power  by  the
appropriate Government under sub-section (1) of  Section  432  of  the  Code
cannot be suo motu for the simple reason  that  this  is  only  an  enabling
provision and the same would be possible subject to fulfillment  of  certain
conditions.  
Those conditions are mentioned either in the Jail Manual or  in
statutory rules.  
This Court in various decisions has held  that  the  power
of remission cannot be exercised arbitrarily.  In other words, the  decision
to grant remission has to be well  informed,  reasonable  and  fair  to  all
concerned.  
The statutory procedure laid down in Section  432  of  the  Code
itself  provides  this  check  on  the  possible  misuse  of  power  by  the
appropriate Government.  
As rightly observed by this Court  in  Sangeet  and
Anr. vs. State of Haryana, 2012 (11) Scale 140, 
there is misconception  that
a prisoner serving life sentence has an indefeasible  right  to  release  on
completion  of  either  14  years  or  20  years  imprisonment.  
A   convict undergoing life imprisonment is expected to remain in custody till  the  end
of his life, subject to any remission granted by the appropriate  Government
under Section 432 of the Code which in turn is  subject  to  the  procedural
checks mentioned in the said provision  and  further  substantive  check  in
Section 433-A of the Code.
23)   One significant factor in this case, which we should not  loose  sight
of is that he did not harm his other daughter, namely,  Shallu  (PW-2)  even
though he had a good chance for the same.
Further, it was highlighted  that
he being a poor man and unable to earn his livelihood since  he  was  driven
out of his house by his deceased wife.  
It is also his claim that if he  was
allowed to live in the house, he could easily meet both his ends and  means,
as the money which he was spending by paying rent  would  have  been  saved.

It is his further grievance that  his  deceased  wife  was  adamant  and  he
should live outside and should not lead a happy married life  and  that  was
the reason that their relations were strained.  
This  also  shows  that  the
accused was feeling frustrated because of  the  attitude  of  his  wife  and
children.  
Moreover, the probability of the  offender’s  rehabilitation  and
reformation is not foreclosed in this case.  
Likewise, we can see  from  the
affidavit filed by the sister  of  the  accused  that  his  family  has  not
totally renounced as yet.  
This  is  also  clear  that  pending  the  above
appeals, the appellant-accused, through his sister – Pramjit Kaur, filed  an application  for  modification  of  earlier  orders  of  this  Court   dated 20.07.2009 and 16.07.2010 for widening the scope of the appeals  and  sought permission to raise all available grounds.  
For this application,  only  his
sister – Pramjit  Kaur  has  filed  an  affidavit  strengthening  the  above
points.  
As mentioned above, the affidavit of  his  sister  shows  that  his
family has not totally renounced him.  
Hence, there  is  a  possibility  for
reformation in the present appellant.  Keeping in mind all these  materials,
we do not think that the present  case  warrants  the  award  of  the  death
penalty.
24)   For the reasons aforementioned, we are of the  opinion  that  this  is
not a case where death penalty should be  imposed.   The  appellant-accused,
therefore, instead of being awarded death penalty, is sentenced  to  undergo
rigorous imprisonment for life, meaning thereby, the end  of  his  life  but
subject to any remission granted by the  appropriate  Government  satisfying
the  conditions  prescribed  in  Section  432  of  the  Code   and   further
substantiate check under Section 433-A of the Code  by  passing  appropriate
speaking orders.  The appeals are disposed of on the above terms.

                 …………………..………….…………………………J.
                 (P. SATHASIVAM)


























                 ..……………….………….………………………..…J.


                   (FAKIR MOHAMED IBRAHIM KALIFULLA)



NEW DELHI;
JANUARY 28, 2013.
                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                   CRIMINAL APPEAL NO(S).1278-1279 OF 2010

Mohinder Singh                                     ….Appellant
                                   VERSUS


State of Punjab                                    ….Respondent

                               J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1.    I had the opportunity of reading the judgment of  my  learned  brother
Justice P. Sathasivam  who  has  dealt  with  the  issue  in  extenso  while
modifying the death sentence to one of imprisonment for life i.e.  till  the
end of his life. I only wish to supplement my views  while  fully  endorsing
and concurring with the judgment of  His  Lordship  Justice  P.  Sathasivam.
Since, the facts have  been  elaborately  stated  in  the  judgment  of  His
Lordship Justice P. Sathasivam, I do not refer the same in detail.  For  the
purpose of my reasoning, in toeing  with  the  conclusion  of  His  Lordship
Justice P. Sathasivam, I only wish to refer to certain  factors  to  support
our conclusions.

2.    These appeals were entertained on 20.07.2009, however,  while  issuing
notice, the appeals were confined to sentence only. The appellant was  found
guilty of the offence under Section 302 IPC and was sentenced to  death  for
committing the murder of his wife Veena Verma and his daughter  Geetu  Verma
on 08.01.2006 in the area of Pratap Singh Wala, Ludhiana. The above  appeals
arose out  of  the  confirmation  of  death  sentence  in  Murder  Reference
No.8/2007 as well as the connected Criminal Appeal No.1033-DB of 2007  filed
by the appellant.

3.    It is necessary to state that  the  appellant  indulged  in  grotesque
crime of murdering his wife and daughter one after  another  on  08.01.2006.
The motive for such a heinous crime was that there  was  a  dispute  between
him and his wife Veena Verma as regards the house which he  owned  and  that
he was deprived of having access to his own house. In fact it was  a  matter
of record that in the year 1999 there was an FIR against  the  appellant  in
FIR No.27 wherein the appellant was charged for offences under Sections  376
and 506 IPC for having committed rape on his deceased daughter  Geetu  Verma
which ended in a conviction of 12 years rigorous  imprisonment  by  judgment
dated 15.05.2001. There was yet another FIR No.58 dated  06.04.2005  against
the appellant for offences  under  Sections  323  and  506  IPC  for  having
assaulted and for having given threat to his  wife  Veena  Verma  which  was
also proved as per Ex.PAA. There was yet another  record  of  criminal  case
No.2531 dated 01.08.2005 (FIR  No.58  of  2005)  again  for  offences  under
Sections 323 and 324 IPC which was pending in the Court of  JMIC,  Ludhiana.
In fact, the present  offence  of  murder  of  his  wife  and  daughter  was
committed by the appellant when he was on parole while  undergoing  rigorous
imprisonment of 12 years for the conviction of the offence of  rape  of  his
daughter committed in the year 1999. It was also relevant to  keep  in  mind
that for holding the appellant guilty of the charge of murder  of  his  wife
and daughter apart from the other evidence, the evidence of  his  own  minor
daughter Shalu PW.2 who was an eye-witness  to  the  occurrence  weighed  to
very great extent along with the evidence  of  his  own  son  Malkiat  Singh
PW.7.

4.    The trial Court having  noted  the  above  factors  held  that  having
regard to his involvement in various criminal cases in the past as  well  as
the gravity of the offence of murder of his own wife and daughter, whom  the
appellant felt were responsible for his conviction for the offence  of  rape
committed on his own minor daughter, took  the  view  by  stating  elaborate
reasons as to why the case fell within the principles  of  ‘rarest  of  rare
cases’ for the award of death sentence and inflicted the same on him.


5.    The High Court after setting out  the  principles  laid  down  in  the
celebrated Constitution Bench decisions of this Court in  Bachan  Singh  Vs.
State of Punjab – (1980) 2 SCC 684 and the  subsequent  judgment  in  Machhi
Singh and others Vs. State of Punjab –  (1983)  3  SCC  470  held  that  the
murder reference deserved  to  be  accepted  and  the  death  sentence  was,
therefore, confirmed. The  Division  Bench  of  the  High  Court  took  into
account the circumstances which are to be kept  in  mind  for  applying  the
‘rarest of the rare case’ theory based on the above referred  two  decisions
and noted the same as under:
      “I.   Manner of commission of murder.
      II.   Motive for commission of murder.
Anti-social or socially abhorrent nature of the crime.
Magnitude of crime
Personality of victim of murder.”


6.    The High Court has also noted the injuries found on the  body  of  the
deceased insofar as it related to Veena Verma, the wife  of  the  appellant,
who suffered four incised wounds of which injury No.  1  was  on  the  right
lateral side and upper part of the neck and injury No.2  was  on  the  head,
third one was on the neck and fourth one resulted in partial  amputation  of
left index finger from its lower one-third with clean cut  margins.  As  far
as the deceased daughter Geetu Verma is concerned, there  were  as  many  as
nine  injuries  out  of  which  seven  were  incised  wounds  and  two  were
abrasions. Out of the seven incised wounds three were  caused  on  the  head
region itself, fourth was on the left mastoid and the remaining  three  were
on left and right elbow and fingers.  Both  the  victims  had  instantaneous
death. The basic grievance of the appellant was nothing but  his  desire  to
occupy his house which  was  occupied  by  none  else  than  his  own  wife,
daughters and son.


7.    By noting the special  reasons,  the  Division  Bench  held  that  the
conduct of the appellant in causing the murder  of  his  wife  and  daughter
acquired enormity to the extent that the case  was  fully  governed  by  the
principle of ‘rarest of rare cases’ and ultimately held that the  imposition
of death sentence by the trial Court was fully justified.

8.    In this context we analyzed the various principles laid  down  in  the
subsequent decisions reported in Swamy Shraddananda @ Murali Manohar  Mishra
Vs. State of Karnataka - (2008) 13  SCC  767,  Santosh  Kumar  Satishbhushan
Bariyar Vs. State of Maharashtra -(2009)  6  SCC  498,  Mohd.  Farooq  Abdul
Gafur & Anr. Vs. State of Maharashtra -(2010) 14 SCC  641,  Haresh  Mohandas
Rajput Vs. State of Maharashtra -(2011) 12 SCC 56, State of Maharashtra  Vs.
Goraksha Ambaji Adsul - AIR 2011 SC 2689 and the  recent  decision  reported
in Mohammed Ajmal Mohammadamir Kasab @ Abu Mujahid Vs. State of  Maharashtra
- JT 2012 (8) SC 4. From conspectus consideration  of  the  above  decisions
apart from the four principles laid down in Bachan Singh  (supra)  and  also
the  requirement  of  a  balance  sheet  of   aggravating   and   mitigating
circumstances, the following principles are required to be borne in mind:
              i)     A conclusion as to the ‘rarest  of  rare’  aspect  with
                 respect  to  a  matter  shall  entail   identification   of
                 aggravating and mitigating circumstances relating  both  to
                 the crime and the criminal.

             ii)  The   expression   ‘special   reasons’   obviously   means
                 (‘exceptional reasons’) founded on the exceptionally  grave
                 circumstances of the particular case relating to the  crime
                 as well as the criminal.

            iii) The decision in Ravji @ Ram Chandra Vs. State of  Rajasthan
                 – (1996) 2 SCC 175 which was subsequently followed  in  six
                 other cases, namely, Shivaji  @  Dadya  Shankar  Alhat  Vs.
                 State of Maharashtra - (2008) 15 SCC 269, Mohan Anna Chavan
                 Vs. State of Maharashtra - (2008)  7  SCC  561,  Bantu  Vs.
                 State of Uttar Pradesh - (2008) 11 SCC 113, Surja  Ram  Vs.
                 State of Rajasthan -(1996) 6 SCC 271, Dayanidhi  Bisoi  Vs.
                 State of Orissa - (2003) 9  SCC  310  and  State  of  Uttar
                 Pradesh Vs. Sattan @ Satyendra & Ors. - (2009)  4  SCC  736
                 wherein  it  was  held  that  it  is  only  characteristics
                 relating to crime, to the exclusion of the ones relating to
                 criminal, which are  relevant  to  sentencing  in  criminal
                 trial, was rendered per incuriam qua Bachan  Singh  (supra)
                 in the decision reported  in  Santosh  Kumar  Satishbhushan
                 Bariyar (supra) at 529.

             iv) Public opinion is difficult to fit in the ‘rarest of  rare’
                 matrix.  People’s  perception  of  crime  is   neither   an
                 objective  circumstance  relating  to  crime  nor  to   the
                 criminal. Perception of public is extraneous to  conviction
                 as  also  sentencing,  at  least  in   capital   sentencing
                 according to the mandate of Bachan Singh (supra). (2009)  6
                 SCC 498 at p.535.

              v) Capital sentencing is one such field where  the  safeguards
                 continuously take strength from the Constitution.  (2009) 6
                 SCC 498 at 539.

             vi) The Apex Court as the final reviewing authority has  a  far
                 more serious and intensive duty to discharge and the  Court
                 not only has to ensure that award of death penalty does not
                 become a perfunctory exercise of discretion  under  Section
                 302 after an ostensible consideration of ‘rarest  of  rare’
                 doctrine,  but  also  that  the   decision-making   process
                 survives  the  special  rigours   of   procedural   justice
                 applicable in this regard. (2010) 14 SCC 641 at 692.

            vii) The ‘rarest of rare’ case comes when a convict would  be  a
                 menace  and  threat  to   the   harmonious   and   peaceful
                 coexistence of the society. The crime  may  be  heinous  or
                 brutal but may not be in the category of “the rarest of the
                 rare case”. There must be no reason  to  believe  that  the
                 accused cannot be reformed or rehabilitated and that he  is
                 likely to continue  criminal  acts  of  violence  as  would
                 constitute a continuing threat to the  society.  2011  (12)
                 SCC 56 at p.63 para 20.

           viii)       Life sentence is the rule and the  death  penalty  is
                 the exception. The condition of providing  special  reasons
                 for  awarding  death  penalty  is  not  to   be   construed
                 linguistically but it is to satisfy the basic features of a
                 reasoning supporting and  making  award  of  death  penalty
                 unquestionable.

        (ix)           The circumstances and the manner of  committing  the
        crime should be such that it pricks the judicial conscience of  the
        Court to the extent that the only and inevitable conclusion  should
        be awarding of death penalty.(AIR 2011 SC 2689)

        (x)      When the case falls under the category of ‘rarest of rare’
        case penalty of death is clearly called for and any leniency  shown
        in the matter of sentence would not  only  be  misplaced  but  will
        certainly give rise to and foster  a  feeling  of  private  revenge
        among the people leading to  destabilization  of  the  society.(AIR
        1983 SC 585)

        (xi)           Death penalty has been held to  be  constitutionally
        valid. The test is what case would attract death penalty if not the
        case of the appellant.  JT (2012) 8 SC 4.



9.    Keeping the above settled principles in  mind,  when  we  examine  the
case on hand, it is needless to state that the conduct of the appellant,  if
analyzed, based on the previous crimes committed by him,  we  find  that  in
the year 1999 as found by the courts below the appellant committed  rape  on
his deceased daughter Geetu Verma when she was  minor  and  that  too  after
beating her.  To which beastly  action,  unfortunately  the  other  deceased
(viz) his wife, was an eye-witness. One cannot  comprehend  to  visualize  a
situation of such nature in which father himself committed rape on  his  own
minor daughter in the presence  of  her  own  mother.  The  conduct  of  the
appellant in the commission of the said offence was not  only  bordering  on
immorality of the highest order but would be extremely difficult for  anyone
to lightly brush aside  such  a  conduct  by  stating  that  either  it  was
committed in a fit of anger or rage or  such  other  similar  situation.  If
such grotesque offence of rape had been committed by anyone, other than  the
father himself, the victim would have  had  every  opportunity  to  cry  for
solace in her father or mother.   In this context, we are only  reminded  of
the Tamil proverb “??????  ????? ??????? ???” which  means  in  English  “When
the fence eats the crops”.   When the  father  himself  happens  to  be  the
assailant in the commission of such beastly crime,  one  can  visualize  the
pathetic situation in which the girl would have been  placed  and  that  too
when such a shameless act was committed in the presence of her  own  mother.
When the  daughter  and  the  mother  were  able  to  get  their  grievances
redressed by getting the appellant convicted for the said  offence  of  rape
one would  have  in  the  normal  course  expected  the  appellant  to  have
displayed a conduct of remorse. Unfortunately,  the  subsequent  conduct  of
the appellant when he  was  on  parole  disclosed  that  he  approached  the
victims in a far more vengeful manner  by  assaulting  the  hapless  victims
which resulted in filing of an FIR once in the year  2005  and  subsequently
when he was on parole in  the  year  2006.  The  monstrous  mindset  of  the
appellant appears to have not subsided by mere assault on  the  victims  who
ultimately displayed  his  extreme  inhuman  behaviour  by  eliminating  his
daughter and wife in such a  gruesome  manner  in  which  he  committed  the
murder by inflicting the injuries on the vital parts  of  the  body  of  the
deceased and that too with all vengeance at his command in order  to  ensure
that they met with instantaneous death. The nature of injuries as  described
in the postmortem report speaks for itself as to the  vengeance  with  which
the appellant attacked the hapless victims. He  was  not  even  prepared  to
spare his younger daughter (viz) PW-2 who, however,  escaped  the  wrath  of
the appellant by bolting herself inside  a  room  after  she  witnessed  the
grotesque manner in which the appellant took away the life of his  wife  and
daughter.

10.   Be that as it may when  we  come  to  the  question  of  applying  the
various  principles  culled  out  from  the   decisions   right   from   the
Constitution Bench decision in Bachan Singh (supra) right  up  to  the  case
Mohammed Ajmal Mohammadamir Kasab (supra) as  held  by  my  learned  brother
Justice P. Sathasivam for the various reasons referred to therein,  we  find
that the case still does not fall within the category  of  ‘rarest  of  rare
case’  though  it  calls  for  a  stringent  punishment.  Therefore,   while
modifying  the  sentence  from  one  of  death  penalty  to  that  of   life
imprisonment till the end of his life we  apply  the  earliest  decision  of
this Court reported in Gopal Vinayak Godse Vs. State of Maharashtra  &  Ors.
- AIR 1961 SC 600 wherein this Court held in paragraph 5 as under:

      “It does not say that transportation for life shall be  deemed  to  be
      transportation for twenty years for all purposes; nor does the amended
      section which  substitutes  the  words  ‘imprisonment  for  life’  for
      ‘transportation for life’ enable the drawing of any such all-embracing
      fiction. A sentence of transportation for  life  or  imprisonment  for
      life must prima facie be treated as transportation or imprisonment for
      the whole of the remaining period of the  convicted  person’s  natural
      life.”

11.   The said principle was followed subsequently in Mohd. Munna Vs.  Union
of India and Ors. - (2005) 7 SCC 417. Applying the above decisions, we  have
no hesitation in holding that the appellant  deserves  to  be  sentenced  to
undergo rigorous imprisonment for life meaning thereby the end of  his  life
subject,  however,  to  remission  granted  by  the  appropriate  Government
satisfying the conditions prescribed in Section 432 of the Code of  Criminal
Procedure and further substantiate check under Section 433A of the  Code  by
passing appropriate speaking orders.




                                                          …………………………………………J.
                              [Fakkir Mohamed Ibrahim Kalifulla]


 New Delhi;
 January 28, 2013

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