IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.999 OF 2007
STATE OF MAHARASHTRA ... Appellant
Versus
GORAKSHA AMBAJI ADSUL ... Respondent
AND
CRIMINAL APPEAL NO.1623 OF 2007
GORAKSHA AMBAJI ADSUL ... Appellant
Versus
1
STATE OF MAHARASHTRA ... Respondent
J U D G M E N T
Swatanter Kumar, J.
The learned trial court, while weighing the mitigating and
aggravating circumstances and keeping in mind the principle of
proportionality of sentence or what it termed as "just-desert" for the
brutal and diabolical killing of three innocent family members,
formed an opinion that the Court could not resist from concluding
that the only sentence that could be awarded to the accused was
death penalty. Thus, it directed that the accused Goraksha Ambaji
2
Adsul be hanged by the neck till he is dead in terms of Section
354(5) of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.'),
subject to confirmation by the High Court in accordance with law.
Aggrieved by this extreme punishment and the order of conviction,
the accused challenged the judgment of the learned trial court
dated 14th February, 2005 by filing an appeal before the High Court
which vide its detailed judgment dated 30th September, 2005,
declined to confirm the death sentence referred under Section 366
of the Cr.P.C. and held the said accused guilty of offence under
Sections 302 and 201 of the Indian Penal Code (for short `IPC'), and
sentenced him to undergo life imprisonment. In other words, the
3
High Court converted the death penalty into life imprisonment while
sustaining the order of conviction.
The State of Maharashtra has preferred the present appeal
bearing Crl.A. No. 999/2007, before this Court claiming that the
said conversion by the High Court is not appropriate in the facts
and circumstances of the case. The State further avers that the
High Court in its judgment has fallen in error of law as well as
failed in appreciation of evidence. It is contended that this Court
should restore the judgment of the trial court on the quantum of
sentence by awarding death penalty. The accused has filed a
separate appeal being Crl.A. No. 1623 of 2007 challenging the very
4
same judgment of the High Court on the ground that the appellant
could not have been held guilty for an offence under Sections 302
and 201 of the IPC and the appellant was entitled to judgment of
acquittal.
Thus, it will be appropriate for us to dispose of both the above
appeals by a common judgment. For that purpose, we may briefly
notice the facts giving rise to the present appeals.
Accused no.1 Goraksha Ambaji Adsul is the son of the
deceased, Ambaji Ahilaji Adsul. Accused no.3 Sow. Sunita
Goraksha Adsul is the wife and Accused no.2 Mininath Ambaji
5
Adsul is the brother of the Accused no.1 Goraksha. Accused no.1
was serving in the Indian Army and used to visit his village Hivare-
Korda where the family had some agricultural land and other
properties. The deceased, Ambaji Ahilaji Adsul was also married to
the second deceased, Janabai and she was his second wife. In
other words, Janabai was the stepmother of the Accused no.1 and 2
and Reshma (deceased) was their stepsister. All these persons
used to jointly reside in their house in the said village. It has come
in evidence that there used to be quarrels between the Accused
no.1, his brother and wife on the one side and the deceased Ambaji
Ahilahi Adsul, his wife Janabai and daughter Reshma on the other.
The accused used to demand partition of the land and other
6
property and allotment of share to the accused and his brother.
This persisted for a considerable time and is said to be the motive
for commission of the offence.
One Premchand Rangarao Jatav, Deputy Station
Superintendent, Railway Station, Bhopal (PW9), received a memo
sent by Sh. R.K. Arora, Train Ticket Examiner (TTE), informing him
that a black coloured trunk was found in Bogie No.S-6 of Train No.
2779 (Goa-Nizamuddin Express) running via Ahmednagar when it
reached Bhopal Railway Station on 25th October, 2002 at about
7.00 p.m. The black trunk was seized under panchnama and when
the same was opened in the presence of Dr. Harsh Sharma it was
7
found that it contained a dead body which was later identified to be
that of Ambaji Ahilaji Adsul. Mr. Someshwari Jogeshwari Prasad
Mishra, ASI, G.R.P. Bhopal (PW11) completed the formalities of
inquest and post-mortem. After the body was received in the
hospital it was inspected by one Dr. Mrs. Rajni Armit Arora, the
then Associate Professor at the Department of Forensic Medicine,
Gandhi Medical College, Bhopal, (PW19). It was noticed that a lace
was found to have been tied to the portion covering neck and throat
of the deceased. Dr. Arora performed the autopsy on 26th October,
2002. She noticed ligature mark of brownish colour and ligature
material of khaki colour shoe lace, two in number, tied around the
neck encircling it and described the injuries as ante-mortem
8
injuries. According to the said doctor, the cause of death was
strangulation and homicidal in nature and was caused two to three
days prior to the post-mortem examination. As nobody had claimed
the body, the blood stained clothes of the deceased were seized and
the body was cremated at Bhadbhada Vishram Ghat, Bhopal. An
FIR (exhibit-82) was registered with regard to the said crime.
On 25th October, 2002 itself, another train, i.e. Train No. 7602-
UP (Nanded Pune Express) reached Ahmednagar Railway Station at
its scheduled time in the morning at about 6.15 a.m. and departed
at 6.30 a.m. Enroute, during the stop at Akolner Railway Station
for crossing of the train coming from opposite direction, Mr. Sanjay
9
Bhujadi, TTE, found one white tin trunk in Bogie No. S-4 placed
between the two toilets of the Bogie No. S-4. After arriving Kasthi
Railway Station, Mr. Sanjay Bhujadi made a report to the Station
Master, Kashti, informing him of the said trunk. This memo was
delivered to GRP, Daund Railway Station (Ex.132). The trunk was
removed from the bogie and a panchnama was prepared.
Thereafter, it was opened and two dead bodies were found in that
trunk. These were later identified as those of Janabai and
Reshma. Inquest formalities were completed and an FIR (exhibit
125) was lodged on 25th October, 2002 as Crime No. 43/2002 for
offence punishable under Sections 302 and 201 of the IPC.
10
The railway police investigating officer, Mr. B.B. Joshi, (PW8)
conducted investigation and registered a case vide Crime No.
237/2002 on 17th November, 2002 against the three accused
namely, Goraksha Ambaji Adsul, Sow. Sunita Goraksha Adsul and
Mininath Ambaji Adsul. On further investigation, it was found that
the accused persons had administered sedative/poisonous
substance mixed in pedas and thereafter strangulated all the three
victims with shoe laces. Thereafter, they placed the bodies of the
these victims in two different trunks . One trunk was kept near
the electricity board D.P. at nearby Village Malkop and the other at
the house of one Mr. Sakharam Thakaji Nabge, a friend of the
accused (PW7), before both were transported to the Ahmednagar
11
Railway Station by the accused Goraksha in a hired maruti van.
Thereafter, as afore-noticed, these trunks were placed in different
trains.
Accused nos. 2 and 3 were arrested on 14th November, 2002
and Accused no.1 on 30th November, 2002. Their statements were
recorded under Section 164 of the Cr.P.C. by Mr. Sayyad, Judicial
Magistrate, First Class, on 6th February, 2003 and 7th February,
2003 respectively. Investigation was completed and the accused
were sent to the court of Judicial Magistrate on 11th February, 2003
for committal to the Court of Sessions so that they could be tried in
accordance with law. All the three accused had taken the defence
12
of total denial and pleaded false implication. Accused no. 1 had
specifically taken up the plea that between 22nd October, 2002 and
25th October, 2002, he was present at his duty place i.e. the Army
Office at Patiala. The prosecution has examined as many as 25
witnesses to bring home guilt of the accused persons and after
recording the statement of the accused under Section 313 of the
Cr.P.C., the trial court after discussing the entire evidence on
record had found Accused no.1 Goraksha Ambaji Adsul guilty of an
offence under Section 302 as well as Section 201 of the IPC and
awarded the sentence of death to him. However, Accused Nos. 2
and 3 were acquitted as according to the trial court, the prosecution
had failed to prove its case beyond reasonable doubt against these
13
accused. The State did not prefer any appeal against the acquittal
of the said two accused and thus, their acquittal has already
attained finality. Resultantly, in the present appeal, we are only
concerned with Accused no.1 Goraksha Ambaji Adsul, who has filed
an independent appeal against the judgment of conviction and
sentence.
As would appear from the above narrated factual matrix, it is a
case of circumstantial evidence and there is no eye-witness or other
direct evidence in regard to the murder of the three deceased
persons. As is clear from the above, Ambaji Ahilaji Adsul was the
real father of Accused nos.1 and 2 while Accused no.3 is the wife of
14
Accused no.1. Deceased Janabai was the second wife of Ambaji
and therefore the step-mother of Accused nos.1 and 2. Deceased
Reshma and PW13 Sunil are the children born to Janabai from
Ambaji, thus, they are the step-sister and step-brother of the
Accused nos.1 and 2. It is the case of the prosecution that there
used to be quarrels and the accused Goraksha used to demand
partition of the land and other properties. In fact, he is stated to
have assaulted his father during those quarrels. The accused
Goraksha had returned home for Diwali. He had brought sweets
(pedas) with him, which he offered to all, i.e. Ambaji, Janabai,
Sunita, Reshma and Sunil on the night of 23rd October, 2002.
These pedas contained sedative/poisonous substance and after
15
supper when the family was asleep, Goraksha killed his father,
stepmother and stepsister by strangulation and packed the dead
bodies in two metallic boxes. One of the boxes was loaded in the
train 2779 UP, Goa-Nizammudin Express while the other was
loaded in train 7602-UP, Nanded-Pune Express and the same were
recovered at Bhopal and Daund Railway Stations respectively, as
noticed above. Sunil and the accused Sunita required medical
assistance on the next day as they suffered from vomiting and
dysentery presumably because of food poisoning caused by the
sedative-infused pedas, which were offered to them by Accused no.1
Goraksha. Another suspicious circumstance which led to the arrest
of the accused was that on enquiry by the brother of the deceased
16
Ambaji, the accused had informed him that Ambaji, Janabai and
Reshma had gone to Ahmednagar for medical treatment and
subsequently claimed that he had received a telephone call from his
father stating that the family was proceeding to the holy place of
Pandharpur. Still another circumstance which connected accused
no.1 with the commission of the crime was that he had hired a
maruti van owned by PW14 Bapusaheb Shinde for the purpose of
carrying the two trunks containing the three dead bodies from
Village Malkop to the Railway Station, Ahmednagar. PW-7
Sakharam Nabge, a friend of the accused had also deposed that the
trunk was kept in front of his house before it was loaded in the
Maruti Van. PW12, Baban Vishnu Thorat is a friend of Bapusaheb
17
Shinde and both of them were together when Goraksha contacted
Bapusaheb for hiring of Maruti Van on 24th October, 2002. They
were again together when two trunks were lifted in the early dawn
hours on 25th October, 2002. Thus, these two persons were
material witnesses for establishing the fact that these trunks/iron
boxes were actually carried from the place afore-indicated to the
Railway Station by the accused. PW17, Pandurang Daobhat is the
brother of the deceased Janabai and had identified the dead bodies.
His statement is of significance in regard to the identification of the
dead bodies as well as the conduct of the accused subsequent to
the recovery of the dead bodies. He is the person who was provided
with incorrect information by the accused Goraksha regarding
18
whereabouts of the deceased. PW13 Sunil is another material
witness as he was also administered the pedas laced with sedatives
and the same was served in his presence to the deceased by the
Accused no.1 Goraksha. Besides this evidence, the statement of
Dr. Sanjay Pande, PW10 also helps in completing the chain of
events leading to the commission of the crime and its subsequent
result. According to this witness, he had treated Sunil (PW13) and
Sunita (Accused no.3) on 24th October, 2002 when they were
brought to him with the complaint of diarrhea. When they went to
the doctor, Goraksha, the Accused no.1 had accompanied them.
19
PW23, Ezaz Ahmed, Judicial Magistrate, First Class at
Sahabad had recorded the statements of PW12, PW14, PW17 and
Meerabai Daobhat, sister of the deceased Janabai under Section
164 of the Cr.P.C. We may also notice that some of the panch
witnesses who had signed the panchnamas turned hostile and PW7
Sakharam, a personal friend of the accused Goraksha also did not
fully support the case of the prosecution.
The above are the main witnesses on whose statement the
entire case of the prosecution rests, of course, in addition to the
statement of the Investigating Officers and other formal witnesses.
Accused nos. 2 and 3 were acquitted by the trial court and the High
20
Court noticed that it was not concerned with the merit or otherwise
of their acquittal by the trial court as the State had not preferred
any appeal against the judgment of acquittal.
At this stage, we may usefully refer to the circumstances
which were relied upon by the prosecution before the courts and
they were as follows:-
i) Motive - dispute over agricultural land/partition.
(Evidence of PW-13 Sunil and PW-17 Pandurang)
i) Last seen together - (togetherness by virtue of joint
family).
i) Administration of sedative through sweets. (Evidence of
PW-13 Sunil and PW-10 Dr. Pande).
21
i) The disposal of dead bodies by Accused no.1 (Evidence of
PW-12 Baban, PW-14 Bapusaheb).
i) Identification of Accused no.1 as person loading one trunk
in Goa-Nizammuddin Express train (PW-15 Aradhana).
i) Homicidal death.
i) False theory/explanation propounded by accused for
absence of the victim. (Evidence of PW-13 Sunil and PW-
17 Pandurang).
In the facts and circumstances of the case, the High Court
expressed the opinion that two circumstances, i.e. the last seen
together and the homicidal death stands proved by themselves and
do not require further evidence to prove that fact. We fully agree
22
with the view expressed by the High Court that, keeping in view the
photographs of the dead body and the doctor's statement, it was
proved to be a homicidal death. The learned counsel appearing for
the Accused no.1 (appellant) argued with some vehemence that the
doctor had not expressed his opinion with regard to the cause of
death particularly in relation to Reshma and Janabai, as is evident
from Exhibits 113 and 114. But this argument does not impress us
at all inasmuch as the death of the two persons have been proved.
From the injury report on the body of the deceased, the
photographs and the circumstances attendant thereto, it is more
than clear that this was a case of homicidal death. The bodies of
the deceased were duly identified. It was practically an admitted
23
case that the deceased as well as the accused were living in a joint
family and had their last meals together, during which the accused
had offered pedas to the family including the deceased. This is fully
substantiated by the statement of PW13 and PW10. PW13, Sunil is
a family member. He had also suffered the consequences of
consuming the pedas and was treated by PW10, Dr. Pande. The
factum of carrying of two boxes and loading them on the respective
trains has also been fully established by the prosecution as we have
above-discussed. At this stage, we may refer to some extracts of the
High Court judgment where in our view the High Court has
correctly appreciated the evidence. It disregarded the statement of
PW7 while fully relying upon and holding that there were witnesses
24
who were truthful and can be safely relied upon, the Court held as
under: -
"To sum-up the assessment of evidence of
these seven vital witnesses, we may say that,
PW-7 Sakharam Nabge has made himself
sufficiently useless for the prosecution.
Evidence of PW-12 Baban Thorat is acceptable
to establish that Accused No.1 had contracted
with PW-14 Bapusaheb and accordingly two
trunks were transported from Malkop D.P. to
Ahmednagar Railway Station at the instance of
Accused No.1 (sic), for which accused no.1
paid hire charges of Rs.200/-. Evidence of
PW-14 Bapusaheb, although shaky, can be
relied upon on the same point, to the extent it
is in harmony with the evidence of PW-12. We
find PW-10 Dr. Pande, in the absence of case-
papers to refresh his memory, to be not
reliable. PW-15 Aradhana also cannot be
25
relied upon for the purpose of identification of
Accused No.1, although she can be believed to
the extent that the trunk was loaded in Goa-
Nizamuddin Express, at Ahmednagar Railway
Station. PW-17 Pandurang can be relied upon
for identification of the victims and subsequent
conduct of Accused No.1, so also to some
extent, possible motive i.e. quarrels on the
point of partition. PW-13 Sunil, although a
child witness, can certainly be believed
regarding togetherness on the fateful night,
more so because that is an admitted position.
His evidence regarding quarrels on the point of
partition can also be accepted, because of
support from Pandurang and probability. The
story of administration of Pedhas containing
some sedative/poisonous substance and
subsequent admission to Mate Hospital, has
become a story not acceptable without risk,
more so when such story is not supported by
any case papers.
26
XXX XXX XXX XXX XXX
We have subjected the evidence to close
scrutiny and only thereafter arrived at our
conclusion as to whether witnesses are to be
believed and if yes, to what extent.
By relying upon Anthony D. Souza - Vs. -
State of Kerala, A.I.R. 2003 S.C. 258 and
Darshansingh -Vs.- State of Punjab, 1995
S.C.C. (Crl.) 702, learned A.P.P. has
propounded that, in case accused makes a
statement under section 313 of Cr.P.C.
completely denying the prosecution case and
established facts and offers false answers or
explanation, that can be counted as providing
missing link from complete chain of the
prosecution evidence and circumstances, in a
case based on circumstantial evidence.
Relying on these cases, an argument that false
explanation can be utilized as one of the links
in the chain of circumstantial evidence was
27
advanced, in order to persuade this Court that
story narrated by accused Goraksha to PW-17
Pandurang about the victims having gone to
Pandharpur should be taken into
consideration as false explanation, although
not to the Court, to the relatives and others.
In fact, as already pointed out earlier, accused
have persisted in sticking to this explanation
even during the curse (sic) of their statement
under Section 313 Cr.P.C., 1973, without
demonstrating to the Court that either of the
two trains, i.e. Goa-Nizamuddin Express and
Nanded-Pune Express travel via Padharpur
(sic). We may state it here itself, that
explanation offered by the accused about his
having received a message from Balasaheb
Sinare of Village Padali, who received
telephone of the deceased Ambaji, of the three
victims having gone to Pandharpur cannot be
said to have been probabilised in the absence
of evidence of said Balasaheb Sinare. The two
trains not having been demonstrate as passing
28
through Pandharpur gives another set back to
the said defence.
24. In the light of acquittal of Accused Nos. 2
and 3 by the trial court, learned Advocate for
the appellant has placed reliance upon the
observations of the Supreme Court in the
matter of Suraj Mal - Vs- State (Delhi
Administration), A.I.R. 1979 S.C. 1408, and
more particularly, observation to the following
effect in para 2: -
"where witnesses make tow (sic)
inconsistent statements in their evidence,
either at one stage or at two stages, the
testimony of such witnesses becomes
unreliable and unworthy of credence, and
in absence of special circumstances, no
conviction can be based on the evidence
of such witness."
29
This was a case under Prevention of
Corruption Act. Three police officers were tried
for allegedly having accepted bribe. PW No.s 6,
8 and 9, Shiv Naryan, Prem Nath and Sham
Sunder resiled from their statements which
they made in their chief examination and all of
them stated that Ram Naryan (one of the three
accused) refused to accept the bribe. Ram
Naryan was, therefore, acquitted by the trial
Court. Another accused Devender Singh was
acquitted by the High Court on the ground
that the sanction was not valid.
We are unable to appreciate the applicability of
the ratio to the matter at hands. As can be
seen from the impugned judgment, in the
present matter, Accused No.s 2 and 3 are
acquitted by the trial Court because there is
no evidence referring to them....."
30
The above conclusion of the High Court does not suffer from
any legal infirmity. It is in conformity with the settled principles of
law and is based on proper appreciation of evidence. In fact,
finding of guilt by both the Courts is concurrent. However, they
differ only on the question of quantum of sentence. On the
appreciation of evidence, we are also of the considered view that the
prosecution has been able to prove a complete chain of events
which points only towards the guilt of the accused. Even in a case
of circumstantial evidence, if the prosecution is able to establish the
chain of events to satisfy the ingredients of commission of an
offence, the accused would be liable to suffer the consequences of
his proven guilt. In the present case, right from the evidence of the
31
entire family having the last dinner together and administering of
pedas with sedatives or poisonous substances to the recovery of
bodies of the deceased at different railway stations the chain of
events stands proved beyond reasonable doubt. In fact, the
statement of the accused under Section 313 of the Cr.P.C. further
supports the case of the prosecution and demolishes the stand of
the defence of complete denial. Thus, we are unable to find any
error in the concurrent findings recorded by the Courts holding the
accused guilty of an offence under Sections 302 and 201 of the
Cr.P.C.
32
Next, we are concerned with whether this Court should
exercise its judicial discretion to enhance his punishment from life
imprisonment to death sentence, as contemplated on behalf of the
State in its appeal.
The factual matrix of the case as well as the evidence which
has been led by the prosecution to bring home the guilt of the
accused, we have already discussed in some detail. Presently, we
may discuss the principles which have been long settled by this
Court for imposition of death penalty. The principles governing the
sentencing policy in our criminal jurisprudence have more or less
been consistent, right from the pronouncement of the Constitution
33
Bench judgment of this Court in the case of Bachan Singh v. State
of Punjab [(1980) 2 SCC 684]. Awarding punishment is certainly an
onerous function in the dispensation of criminal justice. The Court
is expected to keep in mind the facts and circumstances of a case,
the principles of law governing award of sentence, the legislative
intent of special or general statute raised in the case and the impact
of awarding punishment. These are the nuances which need to be
examined by the Court with discernment and in depth. The
legislative intent behind enacting Section 354(3) of the Cr.P.C.
clearly demonstrates the concern of the legislature for taking away
a human life and imposing death penalty upon the accused.
Concern for the dignity of the human life postulates resistance to
34
taking a life through law's instrumentalities and that ought not to
be done, save in the rarest of rare cases, unless the alternative
option is unquestionably foreclosed. In exercise of its discretion,
the Court would also take into consideration the mitigating
circumstances and their resultant effects. Language of Section
354(3) demonstrates the legislative concern and the conditions
which need to be satisfied prior to imposition of death penalty. The
words, `in the case of sentence of death the special reasons for such
sentence' unambiguously demonstrates the command of the
legislature that such reasons have to be recorded for imposing the
punishment of death sentence. This is how the concept of rarest of
rare cases has emerged in law. Viewed from that angle, both the
35
legislative provisions and judicial pronouncements are at ad idem in
law. The death penalty should be imposed in rarest of rare cases
and that too for special reasons to be recorded. To put it simply, a
death sentence is not a rule but an exception. Even the exception
must satisfy the pre-requisites contemplated under Section 354(3)
of the Cr.P.C. in light of the dictum of the Court in the case of
Bachan Singh (supra).
The Constitution Bench judgment of this Court in the case of
Bachan Singh (supra) has been summarized in paragraph 38 in the
case of Machhi Singh vs. State of Punjab (1983) 3 SCC 470 and the
36
following guidelines have been stated while considering the
possibility of awarding sentence of death:
"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 required to
be taken into consideration along with the
circumstances of the `Crime'.
iii) Life imprisonment is the rule and death
sentence is an exception, 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
37
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."
The judgment in the case of Bachan Singh (supra), did not only
state the above guidelines in some elaboration, but also specified
the mitigating circumstances which could be considered by the
Court while determining such serious issues and they are as
follows:
38
"Mitigating circumstances. - In the exercise of
its discretion in the above cases, the court
shall take into account the following
circumstances:
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
(1) The age of the accused. If the accused is
young or old, he shall not be sentenced to
death.
(1) The probability that the accused would not
commit criminal acts of violence as would
constitute a continuing threat to society.
(1) The probability that the accused can be
reformed and rehabilitated. The State shall
39
by evidence prove that the accused does not
satisfy the conditions (3) and (4) above.
(1) That in the facts and circumstances of the
case the accused believed that he was
morally justified in committing the offence.
(1) That the accused acted under the duress or
domination of another person.
(1) That the condition of the accused showed
that he was mentally defective and that the
said defect impaired his capacity to
appreciate the criminality of his conduct."
Now, we may examine certain illustrations arising from the
judicial pronouncements of this Court. In the case of D.K. Basu v.
State of West Bengal [(1997) 1 SCC 416] this Court took the view
40
that custodial torture and consequential death in custody was an
offence which fell in the category of rarest of rare cases. While
specifying the reasons in support of such decision, the Court
awarded death penalty in that case. In the case of Santosh Kumar
Satishbhushan Bariyar vs. State of Maharashtra [(2009) 6 SCC
498], this Court also spelt out in paragraphs 56 to 58 that nature,
motive, impact of a crime, culpability, quality of evidence, socio-
economic circumstances, impossibility of rehabilitation are the
factors which the court may take into consideration while dealing
with such cases. In that case the friends of the victim had called
him to see a movie and after seeing the movie, a ransom call was
made, but with the fear of being caught, they murdered the victim.
41
The Court felt that there was no evidence to show that the criminals
were incapable of reforming themselves, that it was not a rarest of
rare case, and therefore, declined to award death sentence to the
accused. Interpersonal circumstances prevailing between the
deceased and the accused was also held to be a relevant
consideration in the case of Vashram Narshibhai Rajpara v. State of
Gujarat [AIR 2002 SC 2211] where constant nagging by family was
treated as the mitigating factor, if the accused is mentally
unbalanced and as a result murders the family members.
Similarly, the intensity of bitterness which prevailed and the
escalation of simmering thoughts into a thirst for revenge and
42
retaliation were also considered to be a relevant factor by this Court
in different cases.
This Court in the case of Satishbhushan Bariyar (supra) also
considered various doctrines, principles and factors which would be
considered by the Courts while dealing with such cases. The Court
discussed in some elaboration the applicability of doctrine of
rehabilitation and the doctrine of prudence. While considering the
application of the doctrine of rehabilitation and the extent of
weightage to be given to the mitigating circumstances, it noticed the
nature of the evidence and the background of the accused. The
conviction in that case was entirely based upon the statement of the
43
approver and was a case purely of circumstantial evidence. Thus,
applying the doctrine of prudence, it noticed the fact that the
accused were unemployed, young men in search of job and they
were not criminals. In execution of a plan proposed by the
appellant and accepted by others, they kidnapped a friend of theirs.
The kidnapping was done with the motive of procuring ransom from
his family but later they murdered him because of the fear of
getting caught, and later cut the body into pieces and disposed it off
at different places. One of the accused had turned approver and as
already noticed, the conviction was primarily based upon the
statement of the approver. Basing its reasoning on the application
of doctrine of prudence and the version put forward by the accused,
44
the Court, while declining to award death penalty and only
awarding life imprisonment, held as under: -
"135. Right to life, in its barest of connotation
would imply right to mere survival. In this
form, right to life is the most fundamental of
all rights. Consequently, a punishment which
aims at taking away life is the gravest
punishment. Capital punishment imposes a
limitation on the essential content of the
fundamental right to life, eliminating it
irretrievably. We realize the absolute nature of
this right, in the sense that it is a source of all
other rights. Other rights may be limited, and
may even be withdrawn and then granted
again, but their ultimate limit is to be found in
the preservation of the right to life. Right to life
is the essential content of all rights under the
Constitution. If life is taken away, all other
rights cease to exist.
45
XXX XXX XXX XXX XXX
168. We must, however, add that in a case of
this nature where the entire prosecution case
revolves round the statement of an approver or
dependant upon the circumstantial evidence,
the prudence doctrine should be invoked. For
the aforementioned purpose, at the stage of
sentencing evaluation of evidence would not be
permissible, the courts not only have to solely
depend upon the findings arrived at for the
purpose of recording a judgment of conviction,
but also consider the matter keeping in view of
evidences which have been brought on record
on behalf of the parties and in particular the
accused for imposition of a lesser punishment.
A statement of approver in regard to the
manner in which crime has been committed
vis-a-vis the role played by the accused, on the
one hand, and that of the approver, on the
46
other, must be tested on the touchstone of the
prudence doctrine
169. The accused persons were not criminals.
They were friends. The deceased was said to
have been selected because his father was
rich. The motive, if any, was to collect some
money. They were not professional killers.
They have no criminal history. All were
unemployed and were searching for jobs.
Further if age of the accused was a relevant
factor for the High Court for not imposing
death penalty on Accused No. 2 and 3, the
same standard should have been applied to
the case of the appellant also who was only
two years older and still a young man in age.
Accused Nos. 2 and 3 were as much a part of
the crime as the appellant. Though it is true,
that it was he who allegedly proposed the idea
of kidnapping, but at the same time it must
not be forgotten that the said plan was only
47
executed when all the persons involved gave
their consent thereto.
171. Section 354(3) of the Code of Criminal
Procedure requires that 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 thereof. We do
not think that the reasons assigned by the
courts below disclose any special reason to
uphold the death penalty. The discretion
granted to the courts must be exercised very
cautiously especially because of the irrevocable
character to death penalty. Requirements of
law to assign special reasons should not be
construed to be an empty formality.
48
172. We have previously noted that the judicial
principles for imposition of death penalty are
far from being uniform. Without going into the
merits and demerits of such discretion and
subjectivity, we must nevertheless reiterate the
basic principle, stated repeatedly by this
Court, that life imprisonment is the rule and
death penalty an exception. Each case must
therefore be analyzed and the appropriateness
of punishment determined on a case-by- case
basis with death sentence not to be awarded
save in the `rarest of rare' case where reform is
not possible. Keeping in mind at least this
principle we do not think that any of the
factors in the present case discussed above
warrants the award of the death penalty. There
are no special reasons to record the death
penalty and the mitigating factors in the
present case, discussed previously, are, in our
opinion, sufficient to place it out of the "rarest
of rare" category.
49
173. For the reasons aforementioned, we are of
the opinion that this is not a case where death
penalty should be imposed. The appellant,
therefore, instead of being awarded death
penalty, is sentenced to undergo rigorous
imprisonment for life. Subject to the
modification in the sentence of appellant (A1)
mentioned hereinbefore, both the appeals of
the appellant as also that of the State are
dismissed."
The above principle, as supported by case illustrations, clearly
depicts the various precepts which would govern the exercise of
judicial discretion by the Courts within the parameters spelt out
under Section 354(3) of the Cr.P.C. Awarding of death sentence
amounts to taking away the life of an individual, which is the most
50
valuable right available, whether viewed from the constitutional
point of view or from the human rights point of view. The condition
of providing special reasons for awarding death penalty is not to be
construed linguistically but it is to satisfy the basic features of a
reasoning supporting and making award of death penalty
unquestionable. The circumstances and the manner of committing
the crime should be such that it pricks the judicial conscience of
the Court to the extent that the only and inevitable conclusion
should be awarding of death penalty.
In the present case, the accused belonged to the armed forces,
his father had married for the second time and had children from
51
the second wife. There were continuous quarrels with regard to the
division of property and during these quarrels the accused is stated
to have even hit his father. It was a pressure which had increased
with the passage of time and probably this frustration attained the
limit of commission of such a heinous crime by the accused.
Surely, the manner in which the crime has been committed is
deplorable but the attendant circumstances and the fact that he
even administered the sweets (pedas) containing
sedatives/poisonous substance to his own wife Sunita Goraksha
Adsul, the Accused no.3, shows that his frustration, and probably
greed, for the property had attained volcanic dimensions. The
intensity of bitterness between the members of the family had
52
exacerbated the thoughts of revenge and retaliation in him. The
constant nagging would have to be taken as a mitigating
circumstance in the commission of this crime. Resultantly, in view
of the above factual matrix and the legal analysis, we do not find
that the present case falls in the category of `rarest of rare cases'.
For the reasons afore-recorded, we dismiss both the appeals.
....................................J.
[Dr. B.S. Chauhan]
....................................J.
53
[Swatanter Kumar]
New Delhi;
July 7, 2011.
54
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
Thursday, July 7, 2011
The learned trial court, while weighing the mitigating and aggravating circumstances and keeping in mind the principle of proportionality of sentence or what it termed as "just-desert" for the brutal and diabolical killing of three innocent family members, formed an opinion that the Court could not resist from concluding that the only sentence that could be awarded to the accused was death penalty. Thus, it directed that the accused Goraksha Ambaji 2 Adsul be hanged by the neck till he is dead in terms of Section 354(5) of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.'), subject to confirmation by the High Court in accordance with law. Aggrieved by this extreme punishment and the order of conviction, the accused challenged the judgment of the learned trial court dated 14th February, 2005 by filing an appeal before the High Court which vide its detailed judgment dated 30th September, 2005, declined to confirm the death sentence referred under Section 366 of the Cr.P.C. and held the said accused guilty of offence under Sections 302 and 201 of the Indian Penal Code (for short `IPC'), and sentenced him to undergo life imprisonment. In other words, the 3 High Court converted the death penalty into life imprisonment while sustaining the order of conviction.
