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.
What amounts to - Judicial comity, held, is an integral part of judicial discipline, and judicial discipline the cornerstone of
judicial integrity, which requires binding decisions to be followed - However, in case there are newer dimensions not in
conflict with ratio of larger Bench or where there is anything to be added to or explained, it is always permissible to
introduce the same - Consequently, poverty, socio-economic, psychic compulsions, undeserved adversities in life are
some of the mitigating factors which are to be considered in addition to those indicated in Bachan Singh, (1980) 2 SCC
684 and Machhi Singh, (1983) 3 SCC 470 while awarding capital punishment, (2014) 1 SCC 129-B
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 165-166 OF 2011
Sunil Damodar Gaikwad
V
State of Maharashtra
Citation;(2014) 1 SCC129
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
2Page 3
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 Pradesh1
:
“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.
1
(1974) 4 SCC 443
3Page 4
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 SubInspector.
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.
9Page 10
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 Punjab2
. 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
2
(1980) 2 SCC 684
11Page 12
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)
12Page 13
17. The three-Judge Bench decision in Machhi Singh and
Others vs. State of Punjab3
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
3
(1983) 3 SCC 470
13Page 14
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 Maharashtra4
, 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 Khan5
,
Dhananjoy Chatterjee6
, Laxman Naik7
, Kamta Tewari8
,
Nirmal Singh9
, Jai Kumar10, Satish11, Bantu12, Ankush
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
15Page 16
Maruti Shinde13, B.A. Umesh14, Mohd. Mannan15 and
Rajendra Pralhadrao Wasnik16);
(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 (Shivu17
,
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:
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
16Page 17
“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
Maharashtra18 aged 20 years, Rahul19 aged 24 years,
Santosh Kumar Singh20 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), Raju23, Bantu (supra), Amit v. State of
Maharashtra (supra), Surendra Pal Shivbalakpal24, 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. Chaman25, 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. Suresh26
, State of Maharashtra v.
Suresh27
, Bharat Fakira Dhiwar28, Mansingh29 and
Santosh Kumar Singh (supra));
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
17Page 18
(6) the crime was not premeditated (Kumudi Lal30
,
Akhtar31, Raju (supra) and Amrit Singh32);
(7) the case was one of circumstantial evidence
(Mansingh (supra) and Bishnu Prasad Sinha33
.
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
Rajput34).”
(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 socioeconomic,
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
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
18Page 19
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 Punjab35 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)
35 AIR 1979 SC 1384
19Page 20
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 Punjab36 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
36 (2009) 10 SCC 434
20Page 21
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.
23Page 24
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
Others37 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.
37 AIR 1961 SC 600
24
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