published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40743
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 165-166 OF 2011
Sunil Damodar Gaikwad … Appellant (s)
Versus
State of Maharashtra … Respondent (s)
J U D G M E N T
KURIAN, J.:
1. Death and if not life, death or life, life and if not death, is the
swinging progression of the criminal jurisprudence in India as far as
capital punishment is concerned.
The Code of Criminal Procedure, 1898,
under Section 367(5) reads:
“If the accused is convicted of an offence punishable with death, and
the Court sentences him to any punishment other than death, the Court
shall in its judgment state the reason why sentence of death was not
passed.”
(Emphasis supplied)
This provision making death the rule was omitted by Act 26 of 1955.
2. There have been extensive discussions and studies on abolition of
capital punishment during the first decade of our 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
Pradesh[1]:
“20. The unmistakable shift in legislative emphasis is that life
imprisonment for murder is the rule and capital sentence the exception
to be resorted to for reasons to be stated. …
21. It is obvious that the disturbed conscience of the State on
the vexed question of legal threat to life by way of death sentence
has sought to express itself legislatively, the stream of tendency
being towards cautious, partial abolition and a retreat from total
retention.”
(Emphasis supplied)
5. It is interesting to note that the requirement for reasons to be stated
for awarding any sentence for a term of years found legislative
expression in the Cr.PC for the first time in 1973. In the case of death
sentence, there must be special reasons. That shows the paradigm shift to
life imprisonment as the rule and death, as the exception.
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
stated:
“… My father, mother and all we children were in the house. My father
assaulted my mother, my two brothers and me with the help of scissor.
My two brothers and mother died on the spot. I was assaulted over my
chest and abdomen and to my both hands. I asked my father as to why he
was assaulting us although we did nothing. My father told me that all
of us need to go and he would be following us. Then my father gave me
water to drink. He then took me on his laps and then pressed my mouth
with the help of pillow. He then went to Police Station. While going
out he bolted the door from outside. One Sakharbai Sadashiv Sonwane
was staying in the same house in their neighbourhood. I shouted for
help. I told her to save us and that we were bleeding. She then opened
the door. Then my uncle Anil Gaikwad came there and we were taken to
Govt. Hospital at Gevrai for treatment. From there I was brought to
Beed in the Civil Hospital by my uncle. Police came to me for making
inquiry in the Hospital. I narrated the whole incident to them. The
accused in the dock is my father. The accused was a tailor and he was
working in somebody’s shop owned by one Anil. I can identify the
scissor shown to me today. (Witness identified Article No. 15 the
scissor in the Court). I was in the Hospital for about 21 days.”
(Emphasis supplied)
In cross, she stated thus:
“… We are financially poor. My father used to work in the shop for
whole day and even for late nights during festival season. It is true
that sometimes he remained in the shop for whole night and return back
in the next day. He used to earn money by working in the shop for us.
… It is not true to say that I am not able to tell who 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.
(supra));
(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
murder.
47. No witness has complained about the appellant’s bad or intolerable
behaviour in the past. Many people had visited his house after the
incident is indicative of the fact that he had cordial relations with
all. He is 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.
………………………………….…..…………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
……….……..…...……..……………………J.
(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)
283
[6] Dhananjoy Chatterjee vs. State of W.B., (1994) 2 SCC 220: (1994) SCC
(Cri) 358
[7] Laxman Naik vs. State of Orissa, (1994) 3 SCC 381: (1994) SCC (Cri)
656
[8] Kamta Tiwari vs. State of M.P., (1996) 6 SCC 250: (1996) SCC (Cri)
1298
[9] Nirmal Singh vs. State of Haryana, (1999) 3 SCC 670: (1999) SCC
(Cri) 472
[10] Jai Kumar vs. State of M.P., (1999) 5 SCC 1: (1999) SCC (Cri) 638
[11] State of U.P. vs. Satish, (2005) 3 SCC 114: (2005) SCC (Cri) 642
[12] Bantu vs. State of U.P., (2008) 11 SCC 113: (2009) 1 SCC (Cri) 353
[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)
1516
[20] Santosh Kumar Singh vs. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri)
1469
[21] (2011) 2 SCC 764 : (2011) 1 SCC (Cri) 883
[22] (2012) 4 SCC 107: (2012) 2 SCC (Cri) 590
[23] Raju vs. State of Haryana, (2001) 9 SCC 50: (2002) SCC (Cri) 408
[24] Surendra Pal Shivbalakpal vs. State of Gujarat, (2005) 3 SCC 127:
(2005) SCC (Cri) 653
[25] Mohd. Chaman vs. State (NCT of Delhi), (2001) 2 SCC 28 : (2001) SCC
(Cri) 278
[26] (1998) 2 SCC 372 : (1998) SCC (Cri) 751
[27] (2000) 1 SCC 471 : (2000) SCC (Cri) 263
[28] State of Maharashtra vs. Bharat Faikra Dhiwar, (2002) 1 SCC 622:
(2002) SCC (Cri) 217
[29] State of Maharashtra vs. Man Singh, (2005) 3 SCC 131: (2005) SCC
(Cri) 657
[30] Kumudi Lal vs. State of U.P., (1999) 4 SCC 108 : (1999) SCC (Cri)
491
[31] Akhtar vs. State of U.P., (1999) 6 SCC 60 : 1999 SCC (Cri) 1058
[32] Amrit Singh vs. State of Punjab, (2006) 12 SCC 79 : (2007) 2 SCC
(Cri) 397
[33] Bishnu Prasad Sinha vs. State of Assam, (2007) 11 SCC 467 : (2008) 1
SCC (Cri) 766
[34] Haresh Mohandas Rajput vs. State of Maharastra, (2011) 12 SCC 56 :
(2012) 1 SCC (Cri) 359
[35] AIR 1979 SC 1384
[36] (2009) 10 SCC 434
[37] AIR 1961 SC 600
-----------------------
REPORTABLE
-----------------------
17
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 165-166 OF 2011
Sunil Damodar Gaikwad … Appellant (s)
Versus
State of Maharashtra … Respondent (s)
J U D G M E N T
KURIAN, J.:
1. Death and if not life, death or life, life and if not death, is the
swinging progression of the criminal jurisprudence in India as far as
capital punishment is concerned.
The Code of Criminal Procedure, 1898,
under Section 367(5) reads:
“If the accused is convicted of an offence punishable with death, and
the Court sentences him to any punishment other than death, the Court
shall in its judgment state the reason why sentence of death was not
passed.”
(Emphasis supplied)
This provision making death the rule was omitted by Act 26 of 1955.
2. There have been extensive discussions and studies on abolition of
capital punishment during the first decade of our 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
Pradesh[1]:
“20. The unmistakable shift in legislative emphasis is that life
imprisonment for murder is the rule and capital sentence the exception
to be resorted to for reasons to be stated. …
21. It is obvious that the disturbed conscience of the State on
the vexed question of legal threat to life by way of death sentence
has sought to express itself legislatively, the stream of tendency
being towards cautious, partial abolition and a retreat from total
retention.”
(Emphasis supplied)
5. It is interesting to note that the requirement for reasons to be stated
for awarding any sentence for a term of years found legislative
expression in the Cr.PC for the first time in 1973. In the case of death
sentence, there must be special reasons. That shows the paradigm shift to
life imprisonment as the rule and death, as the exception.
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
stated:
“… My father, mother and all we children were in the house. My father
assaulted my mother, my two brothers and me with the help of scissor.
My two brothers and mother died on the spot. I was assaulted over my
chest and abdomen and to my both hands. I asked my father as to why he
was assaulting us although we did nothing. My father told me that all
of us need to go and he would be following us. Then my father gave me
water to drink. He then took me on his laps and then pressed my mouth
with the help of pillow. He then went to Police Station. While going
out he bolted the door from outside. One Sakharbai Sadashiv Sonwane
was staying in the same house in their neighbourhood. I shouted for
help. I told her to save us and that we were bleeding. She then opened
the door. Then my uncle Anil Gaikwad came there and we were taken to
Govt. Hospital at Gevrai for treatment. From there I was brought to
Beed in the Civil Hospital by my uncle. Police came to me for making
inquiry in the Hospital. I narrated the whole incident to them. The
accused in the dock is my father. The accused was a tailor and he was
working in somebody’s shop owned by one Anil. I can identify the
scissor shown to me today. (Witness identified Article No. 15 the
scissor in the Court). I was in the Hospital for about 21 days.”
(Emphasis supplied)
In cross, she stated thus:
“… We are financially poor. My father used to work in the shop for
whole day and even for late nights during festival season. It is true
that sometimes he remained in the shop for whole night and return back
in the next day. He used to earn money by working in the shop for us.
… It is not true to say that I am not able to tell who 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.
(supra));
(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
murder.
47. No witness has complained about the appellant’s bad or intolerable
behaviour in the past. Many people had visited his house after the
incident is indicative of the fact that he had cordial relations with
all. He is 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.
………………………………….…..…………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
……….……..…...……..……………………J.
(KURIAN JOSEPH)
New Delhi;
September 10, 2013.
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[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)
283
[6] Dhananjoy Chatterjee vs. State of W.B., (1994) 2 SCC 220: (1994) SCC
(Cri) 358
[7] Laxman Naik vs. State of Orissa, (1994) 3 SCC 381: (1994) SCC (Cri)
656
[8] Kamta Tiwari vs. State of M.P., (1996) 6 SCC 250: (1996) SCC (Cri)
1298
[9] Nirmal Singh vs. State of Haryana, (1999) 3 SCC 670: (1999) SCC
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[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)
1516
[20] Santosh Kumar Singh vs. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri)
1469
[21] (2011) 2 SCC 764 : (2011) 1 SCC (Cri) 883
[22] (2012) 4 SCC 107: (2012) 2 SCC (Cri) 590
[23] Raju vs. State of Haryana, (2001) 9 SCC 50: (2002) SCC (Cri) 408
[24] Surendra Pal Shivbalakpal vs. State of Gujarat, (2005) 3 SCC 127:
(2005) SCC (Cri) 653
[25] Mohd. Chaman vs. State (NCT of Delhi), (2001) 2 SCC 28 : (2001) SCC
(Cri) 278
[26] (1998) 2 SCC 372 : (1998) SCC (Cri) 751
[27] (2000) 1 SCC 471 : (2000) SCC (Cri) 263
[28] State of Maharashtra vs. Bharat Faikra Dhiwar, (2002) 1 SCC 622:
(2002) SCC (Cri) 217
[29] State of Maharashtra vs. Man Singh, (2005) 3 SCC 131: (2005) SCC
(Cri) 657
[30] Kumudi Lal vs. State of U.P., (1999) 4 SCC 108 : (1999) SCC (Cri)
491
[31] Akhtar vs. State of U.P., (1999) 6 SCC 60 : 1999 SCC (Cri) 1058
[32] Amrit Singh vs. State of Punjab, (2006) 12 SCC 79 : (2007) 2 SCC
(Cri) 397
[33] Bishnu Prasad Sinha vs. State of Assam, (2007) 11 SCC 467 : (2008) 1
SCC (Cri) 766
[34] Haresh Mohandas Rajput vs. State of Maharastra, (2011) 12 SCC 56 :
(2012) 1 SCC (Cri) 359
[35] AIR 1979 SC 1384
[36] (2009) 10 SCC 434
[37] AIR 1961 SC 600
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REPORTABLE
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17
