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Tuesday, September 10, 2013

Section 367(5) reads= Death and if not life, death or life, life and if not death, is the swinging progression of the criminal jurisprudence in India as far as capital punishment is concerned. The Code of Criminal Procedure, 1898, under Section 367(5) reads: “If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.”= In the above facts and circumstances of the case, while upholding the conviction of the appellant under Section 302 and Section 307 of IPC, we modify the sentence as follows: a) For offence under Section 302 of IPC, the appellant is sentenced to life imprisonment. b) For offence under Section 307 of IPC, the appellant is convicted to imprisonment for a period of seven years. 28. Imprisonment for life of a convict is till the end of his biological life as held by the Constitution Bench in Gopal Vinayak Godse vs. The State of Maharashtra and Others[37] case (supra). Hence, there is no point in saying that the sentences would run consecutively. However, we make it clear that in case the sentence of imprisonment for life is remitted or commuted to any specified period (in any case, not less than fourteen years in view of Section 433A of the Cr.PC.), the sentence of imprisonment under Section 307 of IPC shall commence thereafter. 29. The appeals are allowed as above.

published in
                        IN THE SUPREME COURT OF INDIA


                    CRIMINAL APPEAL NOS. 165-166 OF 2011

Sunil Damodar Gaikwad                        … Appellant (s)


State of Maharashtra                               … Respondent (s)

                               J U D G M E N T


1. Death and if not life, death or life, life  and  if  not  death,  is  the
   swinging progression of the criminal jurisprudence in  India  as  far  as
   capital punishment is concerned. 
The Code of Criminal  Procedure,   1898,
   under Section 367(5) reads:
      “If the accused is convicted of an offence punishable with death,  and
      the Court sentences him to any punishment other than death, the  Court
      shall in its judgment state the reason why sentence of death  was  not
                                                         (Emphasis supplied)

This provision making death the rule was omitted by Act 26 of 1955.

2. There have  been  extensive  discussions  and  studies  on  abolition  of
   capital punishment during the first decade of our  Constitution  and  the
   Parliament itself, at one stage had desired to have the views of the  Law
   Commission of India and, accordingly, the Commission submitted a detailed
   report, Report No. 35 on 19.12.1967. A reference to the  introduction  to
   the  35th  Report  of  the  Law  Commission  will  be  relevant  for  our
   discussion. To quote:
      “A resolution was moved in the Lok Sabha on 21st April, 1962, for  the
      abolition of Capital Punishment. In the course of the  debate  on  the
      resolution, suggestions were  made  that  a  commission  or  committee
      should be appointed to go into the question.  However,  ultimately,  a
      copy of the discussion that had taken place in the House was forwarded
      to the Law Commission that was, at that time, seized of  the  question
      of examining the Code of Criminal Procedure and the Indian Penal Code.

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

3. It appears that Parliament finally decided to retain  capital  punishment
   in the Indian  Penal  Code.  However,  when  the  new  Code  of  Criminal
   Procedure was enacted in the year 1973 (hereinafter referred to  as  ‘the
   Cr.PC’), a paradigm shift was introduced, making it mandatory for  Courts
   to state special reasons  for  awarding  death  sentence,  under  Section
   354(3), which reads as follows:
      “When the conviction is for an offence punishable with death,  or,  in
      the alternative, with imprisonment for life or imprisonment for a term
      of years, the judgment  shall  state  the  reasons  for  the  sentence
      awarded, and, in the case of sentence of death,  the  special  reasons
      for such sentence.”

                                                         (Emphasis supplied)

4. In the words of Krishna Iyer J. in  Ediga  Anamma  vs.  State  of  Andhra
           “20. The unmistakable shift in legislative emphasis is that life
      imprisonment for murder is the rule and capital sentence the exception
      to be resorted to for reasons to be stated. …

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

5. It is interesting to note that the requirement for reasons to  be  stated
   for  awarding  any  sentence  for  a  term  of  years  found  legislative
   expression in the Cr.PC for the first time in 1973. In the case of  death
   sentence, there must be special reasons. That shows the paradigm shift to
   life imprisonment as the rule and death, as the exception.

6.  The  above  preliminary  discussion  on  death  sentence   has   special
   significance as far as facts of  the  present  case  are  concerned.  The
   appellant before us faced trial under Section 302 read with  Section  307
   of IPC. The Sessions Court  convicted  him  under  both  Sections.  Under
   Section 302, he was sentenced to death and under  Section  307,  to  life
   imprisonment. On reference, the High Court confirmed the death  sentence.
   The appeal filed by the appellant before the  High  Court  was  dismissed
   confirming the conviction and sentence under Section 307. Thus aggrieved,
   the present appeals.

7. In  view  of  the  overwhelming  evidence,  though  the  learned  counsel
   appearing for the appellant was mainly canvassing for commuting the death
   sentence, in order to satisfy our conscience, we may refer to the  facts,
   evidence and the contentions briefly, on merits as well.

8. The appellant was married to  a  woman  named  Sangita.  They  had  three
   children, one daughter and two sons. They were staying in two rooms in  a
   house belonging to his maternal aunt. He was a tailor by  profession  and
   employed as such in a cloth shop.  One  of  his  sons,  Aakash  had  been
   suffering from asthma which required constant medication. The appellant’s
   income was hardly sufficient to maintain his  family  and  he  was  under
   stress in that regard. On 08.07.2008, it is stated that during the  early
   hours of the morning while the members of the family  were  sleeping,  he
   assaulted his wife Sangita and his two sons with the separated parts of a
   pair of sharp scissors and inflicted multiple stab injuries causing their
   instantaneous  death.  On  his  daughter  Gaitri  alias  Pooja  also,  he
   inflicted stab injuries. However, she somehow could speak and  asked  why
   her father, the appellant was injuring her. The appellant father told her
   that the entire family had to go and he would also follow them.  However,
   he gave her water to drink. Thereafter,  he  took  her  on  his  lap  and
   pressed her mouth with a pillow with the intention  of  suffocating  her,
   and yet the child did not succumb to death. He left  the  child  in  that
   condition, bolted the door from outside and went straight to  the  police
   station and reported the incident. An FIR was registered.  His  statement
   was recorded. In the meanwhile, the daughter Gaitri got assistance from a
   neighbour and  was  immediately  treated  at  a  hospital  and  thus  she
   survived. She is the key witness-PW1. The neighbour is the maternal  aunt
   of the accused and she is PW4.

9. The prosecution examined nine witnesses and based mainly on  the  version
   of PW1-Gaitri, the appellant was convicted under Sections  302  and  307.
   Gaitri alias Pooja was clear and consistent during the  investigation  as
   well as before the Sessions Court. In her evidence before the Court,  she

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

                                                         (Emphasis supplied)

      In cross, she stated thus:

      “… We are financially poor. My father used to work  in  the  shop  for
      whole day and even for late nights during festival season. It is  true
      that sometimes he remained in the shop for whole night and return back
      in the next day. He used to earn money by working in the shop for  us.
      … It is not true to say that I am not  able  to  tell  who  killed  my
      mother and brothers as I was in sleep. … It is  not  true  that  I  am
      deposing false that my father assaulted us. … It is not  true  to  say
      that I am deposing against the accused only on the say of my uncle and
      the Police.”
                                                         (Emphasis supplied)

10. PW2 is the panch witness. PW3 is the  doctor  -  Dr.  Kranti  Raut,  who
   performed the autopsy. In the case of all the three deceased, the  doctor
   has given the opinion that the death was caused due to hemorrhagic  shock
   with heamothorax on account  of  multiple  stab  injuries  to  the  vital
   organs. FSL report has confirmed that the blood on  the  clothes  of  the
   appellant and that of his deceased wife was of the same group. The doctor
   has also treated PW1 Gaitri alias Pooja and has referred in detail to the
   multiple injuries inflicted upon her. It is also deposed that injury  no.
   4-which is a stab wound is sufficient to  cause  death  in  the  ordinary
   course of nature if timely treatment is not given. The doctor stated that
   all the injuries to the deceased persons as well as to the  injured  PW1-
   Gaitri are possible by the weapon-Article No. 6, scissors.  PW4-Sakharbai
   is the aunt of the appellant. She has stated that the elder  son  of  the
   appellant was suffering from asthma. She also deposed as follows:
      “… When I was sleeping in my house I got at  about  5.30  a.m.  I  was
      washing utensils. I heard a sound from Gaitri asking me  to  open  the
      door and that her father had assaulted them. I went near the room  and
      found that the door was bolted from outside which I  opened  and  went
      inside the room. I saw Sangita, Omkar, Aakash were lying in a pool  of
      blood and they were dead. Gaitri had also  bleeding  injuries  to  her
      chest, stomach and chin. She told me that her father assaulted all  of
      them with a scissor in that night. I shouted and went to  Baban,  Anil
      and called them. The said Anil took Gaitri to Hospital. Gaitri is also
      known by name Pooja. ..”

                                                         (Emphasis supplied)

In cross, she submitted that “the accused was a tailor. It is true that  his
financial condition was poor”.

11. PW5 is the one who sold the scissors to the appellant. PW6 is the  panch
   witness to the recovery of weapon of offence and other dress worn by  the
   accused. PW7 is the Police Sub-Inspector. According to him, the appellant
   had told him at around 5.30 a.m. that he had committed the murder of  his
   wife and two sons and had injured his  daughter  Gaitri.  The  statement-
   Exhibit No.29 was recorded by him and appellant signed the same.  PW8  is
   the Police Inspector who conducted the investigation. PW9 is  the  Police
   Inspector who prepared the inquest and spot panchnama. He  collected  the
   blood from the spot and the pillow cover soaked in blood.  He  also  made
   the recovery of the scissors as disclosed  by  the  accused.  Photographs
   were also taken. We may also refer to the statement made by the appellant
   himself before the police on the basis of which the FIR was registered:
      “… In my family my son Omkar is constantly ill due to asthma. For  the
      treatment of his ailment money was required which I had to borrow  and
      hence I had become debt  ridden.  Due  to  the  tension  I  could  not
      concentrate on my work and I had to go on leave frequently.  …Since  I
      was fed up, I decided to leave the house, my wife and  children  would
      have died of hunger and ailment. Therefore, I had thought  to  relieve
      them myself.”
                                                         (Emphasis supplied)

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

12. Under Section 313 statement, however, he flatly  denied  everything  but
   did not lead any evidence in defence.

13. The Sessions Court and the High  Court  have  discussed  in  detail  the
   conduct of the appellant.  The  courts  have  also  considered  his  main
   contention that he was not involved in the incident. Both the Courts have
   found that it was not at all possible to appreciate his contentions since
   the normal conduct of a father in such circumstances would  be  first  to
   help the child  to  obtain  treatment  either  by  himself  or  with  the
   assistance of those  residing  in  the  neighbouring  rooms  and  nearby.
   Suffice it to say that the evidence available on record, some of which we
   have referred to above, would establish beyond doubt that  accused  alone
   was involved in the commission of the offences.

14. We shall, hence, consider the question of sentence. The  Sessions  Court
   and the High Court are of the view that the case falls under  the  rarest
   of the rare category and the appellant did not deserve any mercy.

15. Before awarding a sentence of death, in view of Section  354(3)  of  the
   Cr.PC, the court has to first examine  whether  it  is  a  case  fit  for
   awarding of life sentence and if not and only then,  the  death  sentence
   can be awarded. At the risk of redundancy, we may note that the  rule  is
   life imprisonment for murder,  and  death  is  the  exception  for  which
   special reasons are to be stated.

16. The death sentence has been relegated to  the  ‘rarest  of  rare’  cases
   after the landmark decision of the Constitution Bench in Bachan Singh vs.
   State of Punjab[2].  The most  significant  aspect  of  the  decision  in
   Bachan Singh’s case (supra) is the mandate laid down by the  Constitution
   Bench that Courts must not only look at the crime but also  the  offender
   and give due consideration to the circumstances of the  offender  at  the
   time of commission of the crime. This decision rules the field even today
   and no discussion on the subject of death penalty is complete  without  a
   reference to Bachan Singh’s case (supra). To quote:

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

                              xxx    xxx   xxx

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

                                                         (Emphasis supplied)

17. The three-Judge Bench decision in Machhi Singh and Others vs.  State  of
   Punjab[3]  culled out the guidelines indicated  in  Bachan  Singh’s  case
   (supra), which would be required to be applied to the facts of each  case
   while imposing a sentence of death.  Emphasis was laid in the decision in
   Machhi Singh’s case (supra) on drawing a ‘balance  sheet’  of  mitigating
   and aggravating factors. To quote:
        “38.           xxx  xxx   xxx
              i) The extreme penalty of death need not be  inflicted  except
                 in gravest cases of extreme culpability.
             ii) Before opting for the death penalty  the  circumstances  of
                 the ‘offender’ also require to be taken into  consideration
                 along with the circumstances of the ‘crime’.
            iii) Life imprisonment is the rule  and  death  sentence  is  an
                 exception. In other words death sentence  must  be  imposed
                 only when life imprisonment appears  to  be  an  altogether
                 inadequate  punishment  having  regard  to   the   relevant
                 circumstances  of  the  crime,  and  provided,   and   only
                 provided, the option to impose sentence of imprisonment for
                 life cannot be conscientiously exercised having  regard  to
                 the nature and circumstances  of  the  crime  and  all  the
                 relevant circumstances.
             iv) A balance-sheet of aggravating and mitigating circumstances
                 has  to  be  drawn  up  and  in  doing  so  the  mitigating
                 circumstances have to be accorded full weightage and a just
                 balance has to be struck between the  aggravating  and  the
                 mitigating circumstances before the option is exercised.
        39. In order to apply these guidelines  inter  alia  the  following
        questions may be asked and answered:
           (a)   Is there something uncommon about the crime which  renders
                 sentence of imprisonment for life inadequate and calls  for
                 a death sentence?
           (b)   Are the circumstances of the crime such that there  is  no
                 alternative  but  to  impose  death  sentence  even   after
                 according maximum weightage to the mitigating circumstances
                 which speak in favour of the offender?"

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

18. When there are binding decisions, judicial comity expects  and  requires
   the same to be followed. Judicial comity is an integral part of  judicial
   discipline and judicial discipline the cornerstone of judicial integrity.
   No doubt, in case there are newer dimensions not  in  conflict  with  the
   ratio of larger bench decisions or where there is anything to be added to
   and explained, it is always permissible to introduce the  same.  Poverty,
   socio-economic, psychic compulsions, undeserved adversities in  life  are
   thus some of the mitigating factors to  be  considered,  in  addition  to
   those indicated in Bachan Singh and Machhi  Singh  cases.  Thus,  we  are
   bound to analyze the facts in the light of the aggravating and mitigating
   factors indicated in the binding  decisions  which  have  influenced  the
   commission of the crime,  the  criminal,  and  his  circumstances,  while
   considering the sentence.

19.  In  a  recent  decision  in  Shankar  Kisanrao  Khade  vs.   State   of
   Maharashtra[4], this Court has scanned almost all the post  Bachan  Singh
   (supra) decisions rendered by  this  Court  on  death  sentence  and  the
   principles laid down therein have been restated. Referring to the  recent
   decisions  (fifteen  years),  the   principal   reasons   considered   as
   aggravating factors for conferring death  penalty  have  been  summarized
   with reference to  the  decisions  in  support  of  the  same.  To  quote
   paragraph 122 of Shankar Kisanrao’s case (supra):
      “122. The principal reasons for confirming the death  penalty  in  the
      above cases include:

           (1) the cruel, diabolic, brutal, depraved and gruesome nature of
      the crime (Jumman Khan[5], Dhananjoy  Chatterjee[6],  Laxman  Naik[7],
      Kamta  Tewari[8],  Nirmal   Singh[9],   Jai   Kumar[10],   Satish[11],
      Bantu[12], Ankush Maruti Shinde[13], B.A. Umesh[14], Mohd.  Mannan[15]
      and Rajendra Pralhadrao Wasnik[16]);

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

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

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

           (5) the crime was either unprovoked or that it was  premeditated
      (Dhananjoy Chatterjee  (supra),  Laxman  Naik  (supra),  Kamta  Tewari
      (supra), Nirmal Singh (supra), Jai Kumar (supra), Ankush Maruti Shinde
      (supra), B.A. Umesh (supra) and Mohd. Mannan  (supra))  and  in  three
      cases the antecedents or the prior history of the  convict  was  taken
      into  consideration  (Shivu[17],  B.A.  Umesh  (supra)  and   Rajendra
      Pralhadrao Wasnik (supra)).”

                                                            (Emphasis added)

20. The mitigating factors governing the award of life sentence in a  murder
   case, have been summarized at paragraph 106. To quote:
      “106. A study of the above  cases  suggests  that  there  are  several
      reasons, cumulatively taken, for converting the death penalty to  that
      of imprisonment for life. However, some of the factors that  have  had
      an influence in commutation include:

      (1) the young age of the accused [Amit  v.  State  of  Maharashtra[18]
      aged 20 years, Rahul[19] aged 24 years, Santosh Kumar  Singh[20]  aged
      24 years, Rameshbhai Chandubhai      Rathod (2)[21] aged 28 years  and
      Amit v. State of U.P.[22] aged 28 years];

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

      (3) the accused had no prior criminal record  (Nirmal  Singh  (supra),
      Raju[23],  Bantu  (supra),  Amit  v.  State  of  Maharashtra  (supra),
      Surendra Pal Shivbalakpal[24], Rahul (supra) and Amit v. State of U.P.

      (4) the accused was not likely to be a menace or threat or  danger  to
      society or the community (Nirmal Singh (supra), Mohd. Chaman[25], Raju
      (supra), Bantu  (supra),  Surendra  Pal  Shivbalakpal  (supra),  Rahul
      (supra) and Amit v. State of U.P. (supra));

      (5) a few other reasons need to  be  mentioned  such  as  the  accused
      having been acquitted  by  one  of  the  courts  (State  of  T.N.   v.
      Suresh[26],  State  of  Maharashtra  v.  Suresh[27],   Bharat   Fakira
      Dhiwar[28], Mansingh[29] and Santosh Kumar Singh (supra));

      (6) the crime was not premeditated (Kumudi Lal[30],  Akhtar[31],  Raju
      (supra) and Amrit Singh[32]);

      (7) the case was one of circumstantial evidence (Mansingh (supra)  and
      Bishnu Prasad Sinha[33].

      In one case, commutation was ordered since  there  was  apparently  no
      “exceptional” feature warranting a death penalty (Kumudi Lal  (supra))
      and in another case because the Trial Court had awarded life  sentence
      but the High Court enhanced it to death (Haresh Mohandas Rajput[34]).”

                                                            (Emphasis added)

21. At this juncture, it might be useful to refer also to  the  decision  in
   Ediga Anamma’s case (supra). In that case, this Court has held that where
   the offender suffers from socio-economic, psychic  or  penal  compulsions
   insufficient to attract a legal exception or to downgrade the crime  into
   a lesser one, judicial commutation is permissible. To quote:
      “26. ...Where the offender suffers  from  socio-economic,  psychic  or
      penal compulsions insufficient to attract  a  legal  exception  or  to
      downgrade the  crime  into  a  lesser  one,  judicial  commutation  is
      permissible.  Other  general  social  pressures,  warranting  judicial
      notice, with an extenuating impact may, in special cases,  induce  the
      lesser penalty. Extraordinary features in the judicial  process,  such
      as that the death sentence has hung  over  the  head  of  the  culprit
      excruciatingly long, may  persuade  the  court  to  be  compassionate.
      Likewise, if others involved in the crime and similarly situated  have
      received the benefit of life imprisonment or if the  offence  is  only
      constructive, being under Section 302 read with Section 149, or  again
      the accused has acted suddenly under  another's  instigation,  without
      premeditation, perhaps the court may humanely opt for life, even  like
      where a just cause or real suspicion of wifely infidelity  pushed  the
      criminal into the crime. …”

                                                         (Emphasis supplied)

22. Ediga Anamma’s case (supra)  was  given  the  stamp  of  approval  in  a
   subsequent decision by a three-Judge Bench in Dalbir Singh vs.  State  of
   Punjab[35] holding also that  “undeserved  adversities  of  childhood  or
   later” would also be a mitigating factor.

23. This Court in Ediga Anamma’s case (supra) has referred to  a  few  other
   aggravating factors as well. To quote:
      “26. … On the other hand, the weapons used and  the  manner  of  their
      use, the horrendous features of the crime and hapless, helpless  state
      of the victim, and the like, steal the heart of the law for a  sterner
      sentence. We cannot obviously feed into a judicial computer  all  such
      situations since they are astrological imponderables in  an  imperfect
      and undulating society. A legal policy on life or death cannot be left
      for ad hoc mood or individual predilection and so we  have  sought  to
      objectify to the extent possible, abandoning retributive ruthlessness,
      amending the deterrent creed  and  accenting  the  trend  against  the
      extreme and irrevocable penalty of putting out life.”
                                                         (Emphasis supplied)

24.  Socio-economic compulsions such as poverty are also  factors  that  are
   to be considered by Courts while awarding a sentence. This view has  been
   taken in the decision in Sushil Kumar vs. State of Punjab[36] where  this
   Court refrained from awarding the death sentence because of  the  extreme
   poverty of the accused. The facts in the case of Sushil Kumar (supra) are
   very similar to the present case. In that  case  also,  the  accused  had
   committed the murder of his wife and two young children  due  to  extreme
   poverty. Later, he allegedly attempted to take his own life by  consuming
   some tablets. The accused had been sentenced to death by the trial  court
   and the sentence was confirmed by  the  High  Court.  This  Court,  while
   reducing the sentence to life imprisonment observed:
      “46. Extreme poverty had driven the appellant to commit  the  gruesome
      murder of three of his very near and dear family members -  his  wife,
      minor son and daughter. There  is  nothing  on  record  to  show  that
      appellant is a habitual offender. He appears to be a peace-loving, law
      abiding citizen but as he was  poverty-stricken,  he  thought  in  his
      wisdom to completely eliminate him family so that all  problems  would
      come to an end. Precisely, this appears to be the reason  for  him  to
      consume some poisonous substances, after  committing  the  offence  of
      47. No witness has complained about the appellant’s bad or intolerable
      behaviour in the past. Many people had visited  his  house  after  the
      incident is indicative of the fact that he had cordial relations  with
      all. He is now about thirty-five years of age and there appear  to  be
      fairly good chances of the appellant getting reformed and  becoming  a
      good citizen.”
                                                         (Emphasis supplied)

25. In the case before us, it  has  come  in  evidence  that  the  appellant
   suffered from  economic  and  psychic  compulsions.  The  possibility  of
   reforming and rehabilitating the accused cannot be ruled out. The accused
   had no prior criminal record. On the facts available to the Court, it can
   be safely said that the accused is not likely to be menace or  threat  or
   danger to society. There is nothing to show  that  he  had  any  previous
   criminal background. The appellant had in fact intended to wipe  out  the
   whole family including himself on account of abject poverty. This  aspect
   of the matter has not been properly  appreciated  by  both  the  Sessions
   Court and the High Court which held that the appellant had the  intention
   to only wipe out others and had  not  even  attempted,  and  he  was  not
   prepared  either,  for  suicide.  We  are  afraid  the  Courts  have  not
   appreciated the evidence properly. Had his daughter not  interrupted  him
   asking the question why he was killing her, his  intended  conduct  would
   have followed, as is evident from his response that all of them needed to
   go from the world. The crucial and turning point of the change  of  heart
   is the conversation she had with him. It is significant to note  that  he
   had not permitted, in the way he executed the murder of his wife and  two
   sons to let them even scream, let alone ask any question. It so  happened
   by chance that despite the stab injuries inflicted on the  daughter,  she
   managed to weepingly question her father why he  was  acting  in  such  a
   manner. The change of heart is also discernible from the fact that he had
   given water to the injured daughter. After this, he no  longer  used  the
   weapon for finishing her. He tried once again by taking her  to  his  lap
   and stifling her with the aid of a pillow. However, as can be  seen  from
   his own statement, he could not finish killing her. Thereafter,  he  went
   straight to the police station and gave a statement of what he had done.

26.  If  we  analyse  the  facts  of  the  case  in  the  backdrop  of   the
   circumstances of the appellant at the time of commission of  the  offence
   and on applying the crime test and the criminal test, it is fairly  clear
   that the case does not fall under the rarest of rare category of cases so
   as to warrant a punishment of death. The ‘individually  inconclusive  and
   cumulatively marginal facts  and  circumstances’  tend  towards  awarding
   lesser sentence of life imprisonment.

27. In the above facts and circumstances of the case,  while  upholding  the
   conviction of the appellant under Section 302 and Section 307 of IPC,  we
   modify the sentence as follows:

     a) For offence under Section 302 of IPC, the appellant is sentenced to
        life imprisonment.
     b) For offence under Section 307 of IPC, the appellant is convicted to
        imprisonment for a period of seven years.
28. Imprisonment for life of a convict is till the  end  of  his  biological
   life as held by the Constitution Bench in Gopal  Vinayak  Godse  vs.  The
   State of Maharashtra and Others[37] case  (supra).  Hence,  there  is  no
   point in saying that the sentences would run consecutively.  However,  we
   make it clear that in case the  sentence  of  imprisonment  for  life  is
   remitted or commuted to any specified period (in any case, not less  than
   fourteen years in view of Section 433A of the Cr.PC.),  the  sentence  of
   imprisonment under Section 307 of IPC shall commence thereafter.

29. The appeals are allowed as above.

                                 (SUDHANSU JYOTI MUKHOPADHAYA)

                                   (KURIAN JOSEPH)
New Delhi;
September 10, 2013.

[1]    (1974) 4 SCC 443
[2]    (1980) 2 SCC 684
[3]    (1983) 3 SCC 470
[4]    (2013) 5 SCC 546
[5]    Jumman Khan vs. State of U.P. , (1191) 1 SCC 752:  (1991)  SCC  (Cri)
[6]    Dhananjoy Chatterjee vs. State of W.B., (1994) 2 SCC 220: (1994)  SCC
(Cri) 358
[7]    Laxman Naik vs. State of Orissa, (1994) 3 SCC 381: (1994)  SCC  (Cri)
[8]    Kamta Tiwari vs. State of M.P., (1996) 6 SCC 250:  (1996)  SCC  (Cri)
[9]    Nirmal Singh vs. State of Haryana,  (1999)  3  SCC  670:  (1999)  SCC
(Cri) 472
[10]   Jai Kumar vs. State of M.P., (1999) 5 SCC 1: (1999) SCC (Cri) 638
[11]   State of U.P. vs. Satish, (2005) 3 SCC 114: (2005)  SCC (Cri) 642
[12]   Bantu vs. State of U.P., (2008) 11 SCC 113: (2009) 1 SCC (Cri) 353
[13]   Ankush Maruti Shinde v. State  of  Maharashtra,  (2009)  6  SCC  667:
(2009) 3 (Cri) 308
[14]   B.A. Umesh vs. State of Karnataka,  (2011) 3 SCC  85:  (2011)  1  SCC
(Cri) 801
[15]   Mohd. Mannan vs. State of Bihar, (2011)  5  SCC  317:  (2011)  2  SCC
(Cri) 626
[16]   Rajendra Pralhadrao Wasnik vs. State of  Maharashtra,  (2012)  4  SCC
37: (2012) 2
         SCC (Cri) 30
[17]   Shivu vs. High Court of Karnataka, (2007) 4 SCC 713: (2007) 2 SCC
(Cri) 686
[18]   (2003) 8 SCC 93 : (2003) SCC (Cri) 1959
[19]   Rahul vs. State of Maharastra, (2005) 10 SCC 322 : (2005) SCC (Cri)
[20]   Santosh Kumar Singh vs. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri)
[21]   (2011) 2 SCC 764 : (2011) 1 SCC (Cri) 883
[22]   (2012) 4 SCC 107: (2012) 2 SCC (Cri) 590
[23]   Raju vs. State of Haryana, (2001) 9 SCC 50: (2002) SCC (Cri) 408
[24]   Surendra Pal Shivbalakpal vs. State of Gujarat, (2005) 3  SCC  127:
(2005) SCC (Cri) 653
[25]   Mohd. Chaman vs. State (NCT of Delhi), (2001) 2 SCC 28 :  (2001)  SCC
(Cri) 278
[26]   (1998) 2 SCC 372 : (1998) SCC (Cri) 751
[27]   (2000) 1 SCC 471 : (2000) SCC (Cri) 263
[28]   State of Maharashtra vs. Bharat Faikra  Dhiwar,  (2002)  1  SCC  622:
(2002) SCC (Cri) 217
[29]   State of Maharashtra vs. Man Singh, (2005)  3  SCC  131:  (2005)  SCC
(Cri) 657
[30]   Kumudi Lal vs. State of U.P., (1999) 4 SCC 108  :  (1999)  SCC  (Cri)
[31]   Akhtar vs. State of U.P., (1999) 6 SCC 60 : 1999 SCC (Cri) 1058
[32]   Amrit Singh vs. State of Punjab, (2006) 12 SCC  79  :  (2007)  2  SCC
(Cri) 397
[33]   Bishnu Prasad Sinha vs. State of Assam, (2007) 11 SCC 467 : (2008)  1
SCC (Cri) 766
[34]   Haresh Mohandas Rajput vs. State of Maharastra, (2011) 12  SCC  56  :
(2012) 1 SCC (Cri) 359
[35]   AIR 1979 SC 1384
[36]   (2009) 10 SCC 434
[37]   AIR 1961 SC 600



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