Kumar Singh Vs. State of
INSC 563 (2 April 2008)
P.P. NAOLEKAR & LOKESHWAR SINGH PANTA
REPORTABLE CRIMINAL APPEAL NO. 1621 OF 2007 P.P. NAOLEKAR, J.:
1. This appeal arises out of the order of confirmation in Death Reference
No. 1 of 2004 & order in Criminal Appeal No. 4 of 2004 filed by the
accused-appellant, whereby the High Court was of the view that in the facts and
circumstances the case falls under the purview of `rarest of the rare case'
and, thus, the death sentence imposed on the accused-appellant is completely
2. The proceedings in the matter arose in the following facts: In the
fardbeyan of Pawan Kumar Thakur (PW-3), it is said that the accused Prajeet
Kumar Singh, a friend of Prakash Kumar (PW-1) (son of the informant), was
living in the house of PW-3 at Supriya Road in Mirja Toli of Bettiah Town for
the last four years and was also taking his meals for which he was paying Rs.
500/- per month.
However, for the last several months, he had not paid the amount and owed
Rs.4,000/- altogether as rent for the house and for food to the informant for
which the informant was making demands regularly.
Four-five days before the incident, when the informant made a demand, the
accused said that he was going home to bring money and thereafter he went home.
The day before the incident, the accused came back at 3.00 p.m. After having
dinner, when the informant asked the accused for the dues, the accused told him
that he should accompany him to his home where he would be paid his money.
Thereafter, the informant and his wife went to sleep in their room which was on
the third floor of the house. The accused also went to sleep in the adjoining
room on the third floor. All the children of the informant were sleeping on the
second floor. At night, the informant and his wife heard the noise of crying
from the second floor and they suspected that the children had been
quarrelling. Both of them came down and saw that the accused having picked up
dab (dagger like weapon) from the house, had murdered their younger son Deepak
Kumar. When the accused noticed the informant and his wife, he caused injury to
them and their elder son Prakash Kumar, daughter Kiran Kumari and niece Pooja
Kumari, using the same dab.
During the course of investigation, the involvement of three more persons
came to light to the investigating agency and chargesheet was submitted against
the four persons, namely, accused No.1 (the appellant herein) Prajeet Kumar
Singh, accused No.2 Ram Badai Singh, father of accused No.1 as well as Ajit
Singh, brother of accused No.1 and Chandra Bhushan Pandey, relative of accused
No.1. During the course of trial, two accused Ajit Singh and Chandra Bhushan
Pandey remained absent and their cases were separated.
The trial proceeded against two persons only, namely, the accused- appellant
and his father.
3. The accused-appellant has been charged under Section 302 of the Indian
Penal Code (for short "the IPC") for committing the murder of
informant's son Deepak Kumar, aged about 16 years, daughter Kiran Kumari, aged
about 15 years and niece Pooja Kumari, aged about 8 years, and further under
Section 307, IPC for attempting to commit the murder of the informant Pawan
Kumar Thakur (PW-3) and his wife Geeta Devi (PW-2). The Session Court found him
guilty of the offence under Section 302, IPC and sentenced him to death
penalty. He was also found guilty of the offence under Section 307, IPC.
However, as the extreme penalty of death was imposed on the accused-appellant,
the Session Court did not impose a separate sentence under Section 307, IPC.
Father of the accused-appellant, Ram Badai Singh, has been charged for the
offences under both the Sections read with Section 34, IPC. However, he was
acquitted of the charges framed against him as the evidence of the witnesses
that when the accused fled away from the place of incident after jumping from
the top floor, they saw in the light the other accused also present beneath the
house along with other persons, was not believed by the Session Court. The High
Court has accepted the death reference and dismissed the appeal filed by the
4. It is contended by Ms. Ranjana Narayan, the learned Amicus Curiae that on
a minute scrutiny of the evidence of the eye-witnesses examined by the
prosecution, it is clear that the prosecution has failed to prove its case
beyond reasonable doubt and thus the appellant should have been acquitted of
the charges framed against him. Learned Amicus Curiae submitted that in any
case, in the facts and circumstances of the case, the offence committed by the
accused-appellant does not fall within the purview of `rarest of the rare case'
and, therefore, the courts below should not have imposed death sentence on the
5. To prove the case against the accused-appellant, the prosecution examined
Prakash Kumar (PW-1), son of the informant Pawan Kumar Thakur (PW-3), Geeta
Devi (PW-2), wife of PW-3 and the informant Pawan Kumar Thakur himself (PW-3),
who are the injured witnesses residing in the house where the incident took
place in the night between 18th & 19th April, 1998 at about 2.30 a.m. The
prosecution also examined three doctors, namely, Dr. Mahashray Singh (PW-5) who
conducted the post-mortem of Deepak Kumar on 19th April, 1998, Dr. Madhusudan
Shukla (PW-6) who did the autopsy on the dead bodies of Kiran Kumari and Pooja
Kumari on 19th April, 1998 and Dr. Ganga Narayan Singh (PW-7) who examined
PW-1, PW-2 and PW-3 in the afternoon of 19th April, 1998.
6. It has come in the evidence of Prakash Kumar (PW-1) that he was 19 years
of age at the time of the incident and is the son of Pawan Kumar Thakur (PW-3).
PW-1 studied in the same school with the accused-appellant and they were
classmates. The accused used to pay frequent visits at the house of PW-1 and
during this period came in close contact with the family members of PW-1. Three
to four years prior to the occurrence, the accused requested the family members
of PW-1 to allow him to stay with them and in return he would pay Rs.500/- for
lodging & boarding and since then he had started living with them. Five to
six months before the occurrence, the accused stopped making payment but
assured that he would get the money from his home and pay it. In the afternoon
of 18th April, 1998, Ram Badai Singh, the other accused charged for the offence
and father of the accused-appellant, Ajit Singh, brother of the
accused-appellant and Chandra Prakash Pandey, a relative of the
accused-appellant came to the residence of PW-1, at about half past four and
enquired about his father on which he said that his father had gone to the
market. At that very time, two other persons Aseshar Pandey and Sukhaj Pandey
came to the residence and they conveyed the message that his father was
supposed to deposit the money in the bank and not spend it. During the
conversation, the accused and his relatives were present and thereafter the
accused left the residence with the relatives. After dinner, PW-1 went to sleep
in his room on the second floor and his two sisters Kiran Kumari and Pooja
Kumari and his younger brother Deepak Kumar were sleeping in another room
adjacent to the said room. On the night intervening 18th and 19th April, 1998,
he woke up to the sound of screaming, crying and knocking of the door. He saw
the accused assaulting his younger brother Deepak Kumar and as a result thereof
his brother got injured and fell down on the floor. When he tried to intervene,
the accused gave him a blow on his head with a dabiya which resulted in a cut
that extended below the left eye. Thereafter, he gave him a push. He saw his
two younger sisters Pooja Kumari and Kiran Kumari crying in an injured
condition. His father and mother were asleep on the 3rd floor and on hearing
the commotion, they came down to the 2nd floor. The accused assaulted his
father and mother with dabiya and thereafter fled towards the 3rd floor of the
house. It is then said that he looked through the window and identified the
father of the accused Ram Badai Singh, his brother Ajit Singh and relative
Chandra Bhushan Pandey and two unknown persons who had come to his residence
earlier during the day time and saw them fleeing towards the north direction
towards the railway line. In the cross- examination, PW-1 admitted that during
the period of last four years when the accused used to stay in his house the
witness did not come across any enmity of the accused, nor did he get to know
anything about his bad habits.
7. Another witness examined by the prosecution is PW-2 Geeta Devi, the wife
of the informant. According to her, the occurrence took place at 2.30 in the
midnight of 18th and 19th April, 1998. On 18th April, 1998, the accused came to
the house and went to the 3rd floor of the house where his room was situated.
The accused had been staying in their house for the past four years, he being
the friend of her son PW-1. He used to pay Rs.500/- per month as monthly rent.
Though he had not paid that amount for quite some time, a sum of Rs.4000/-
was due from him. The accused had assured her husband that he would get the
said amount from home. At 2.30 a.m., they woke up due to lot of noise and
screaming by their children. They thought that their children were quarrelling
among themselves so they descended from the 3rd floor to the 2nd floor. They
saw that accused Prajeet Kumar with his dabiya assaulted their younger son
Deepak who had succumbed to his injuries. The accused had also assaulted Pooja
Kumari, Kiran Kumari and Prakash Kumar as a result of which they were bleeding
profusely and were running inside the room here and there to save themselves.
Her husband tried to prevent the accused and she approached her children to
save them. But the accused intervened and attacked her on her head and on the
right side of her shoulder with the dabiya as a result of which she sustained
injuries and tumbled on the floor. The accused also assaulted her husband PW-3
with the dabiya as a result of which her husband sustained a deep cut injury on
the right side of his face from the eye to the lower portion of the cheek and a
deep cut injury was caused on the left side of his neck. The accused assaulted
her husband indiscriminately with the intention to kill him who tried to avoid
the assault with the help of a cricket stump. Thereafter, the accused fled to
the 3rd floor. This witness stated that she fell unconscious after that. In her
cross-examination, she said that the accused used to visit her room to watch
T.V. and had been staying at their house for four years prior to the
occurrence. She had never seen the accused indulging in any ill-minded
8. According to the informant witness PW-3 Pawan Kumar Thakur, the
occurrence took place at 2.30 in the midnight of 18th and 19th April, 1998, at
which time he was sleeping in his room with his wife and woke up to the sound
of screaming, which he thought was a quarrel between the children. He came to
the 2nd floor and saw that the accused was holding a dabiya in his hand and had
assaulted his younger son and had killed him. He also saw that the accused had
assaulted his elder son Prakash Kumar, daughter Kiran Kumari and niece Pooja
Kumari with an intention to kill them. He tried to prevent the accused and his
wife tried to rescue the children. In the process, the accused inflicted dab
blows on the right rib of his wife; with the same dabiya, another blow was inflicted
on the elbow of her left hand and she started bleeding profusely and she
ultimately tumbled on the floor. Thereafter, Prajeet Kumar inflicted a blow on
his face below the right eye with the same dabiya. He said that he defended
himself with the help of a cricket stump. Thereafter, Prajeet Kumar fled to the
upper floor of the house. The cross-examination of this witness has not brought
out any material so as to doubt the veracity of the statements made by the
eye-witnesses to the occurrence.
9. Deepak Kumar, Kiran Kumari and Pooja Kumari succumbed to the injuries
sustained by them. The post mortem was conducted by PW-5 Dr. Mahashray Singh
and PW-6 Dr. Madhusudan Shukla. All the three injured witnesses were examined
by PW-7 Dr.Ganga Narayan Singh. On 19th April, 1998, PW-5 Dr. Mahashray Singh
conducted post-mortem on the dead body of Deepak Kumar, aged about 16 years,
and the following ante mortem injuries were found on the body of the deceased:
Incised wound over the right cheek 2"
x 1" x muscle deep;
Incised wound over the occipital region of the head size 4" x
1" (torn) x bone deep;
Incised wound over the back of the
neck transversely 4" x 1" x bone deep;
Incised wound over the right scapular
region 4" x 2" x bone deep;
Incised wound from shoulder to the mid of upra 8" x 3" x bone
one incised wound transversely over the shoulder joint 3" x 1" humeral head transversally;
Incised wound over the right elbow 2"
x 1" bone deep;
Incised wound over the right forearm
3" x 1" bone deep;
Incised wound over the right hand 3" x
= " bone deep;
Incised wound over the right forearm
from the base of the middle finger to the lower part of the forearm 6" x 2" bone
Incised wound over the left hand 2" x
1" x bone deep;
Incised wound over the left palm. All
the thinner muscle up to carpel bone were cut;
Incised wound over the left temporal
region of the (faint) 2" x 2" x up to bone.
All the injuries were ante mortem in nature and caused by sharp cutting
substances. The doctor was of the opinion that the death was caused due to
haemorrhage and shock due to above mentioned injuries. These injuries are
sufficient to cause death in normal circumstances.
10. PW-6 Dr. Madhusudan Shukla conducted post mortem on the dead body of
Kiran Kumari. The external appearances and injuries found on the dead body were
to the effect that the eyes were closed, mouth open, fists clinched, bleeding
from nostril. R. M. present, dried blood smear present on chest, neck and on
feet. Stitched wound on front and left side of the neck. After opening the
stitches, there was an incised wound 4" x =" x 1" deep. Trachea
was found cut. The muscles and jubular vessels on the left side of the neck
were found cut. The doctor stated that the above injuries were caused by sharp
cutting substance and ante mortem in nature. In the opinion of the doctor, the
cause of death was due to shock and haemorrhage due to the above noted injury.
11. On the same day at 5.30 p.m., PW-6 conducted post mortem on the dead
body of Pooja Kumari, niece of PW-3. The following injuries were found on the
Injury No 1: Stitched wound on the right side of the face. After opening the
stitches there was an incised wound of 5" x >" x bone and brain
cavity deep. The wound extends from right ear to the skull. The parietal bone
of the right side was found cut and brain matters were found peeping out from
the cut portion of the bone.
Injury No. 2: Stitched wound on upper portion of right arm. After opening
the stitches the wound was an incised wound 3" x 1" x none deep. The
head of humerus was found cut through and through.
Injury No. 3: Stitched wound on upper portion of right wrist on its dorsem.
After opening the stitches, the wound was an incised wound 2 1/2" x
>" x none deep. The bone beneath the wound were found cut.
Injury No. 4: Stitched wound on the dorsem of the left hand.
After opening the stitches, the wound was an incised wound 1 =" x
>" x none deep. The vessels and bones beneath the wounds were found
The doctor stated that the above injuries were ante mortem in nature and
caused by sharp cutting substance. In his opinion, the cause of death was due
to shock and haemorrhage as a result of above noted injuries. The injuries
found on the dead body were sufficient to cause death in ordinary course.
12. PW-7 Dr. Ganga Narayan Singh in his deposition stated that he examined
PW-3 Pawan Kumar Thakur on 19th April, 1998 in the M.J.K. Hospital in emergency
room and found following injuries on the person:
1) Incised wound on right cheek extending from right angle of mount to right
temporal region 10" x 1" x muscle deep.
2) Incised wound on left side of neck 1" x =" x muscle deep.
Age of injuries was stated to be within 12 hours, caused by sharp cutting
weapon and grievous in nature. Disfiguration of face was stated to be caused by
sharp cutting weapon and dangerous to life.
On the same day and place at about 2.10 a.m., Geeta Devi (PW-2) was also
examined by PW-7 and the following injuries were found:
Incised wound on scalp right side 1
=" x =" x scalp deep.
Incised wound right shoulder region 1"
x 1" x muscle deep.
Incised wound left elbow and forearm
1" x 1" x muscle deep.
It was stated by the doctor that the age of injuries was within 12 hours;
the injuries were caused by sharp cutting weapon and were simple in nature; and
if timely and proper treatment had not been provided the patient might have
On the same day and place at about 2.50 a.m., PW-7 examined Prakash Kumar
(PW-1). The following injuries were found on his person:
Incised wound on the left side of the
skull 1" x =" x scalp deep.
C.T. scan of cranium. Report given by the radiologist P.M. C.H.
dated 24th April, 1998 shows that one bony window fractured of left parietal
bone no. 230/1998.
Injury No. 2 was noted as grievous.
13. PW-17 Dr. Bishnu Kant Pandey stated that on 19th April, 1998 he was
working on the post of R.S.O. in the unit of Dr. Ramesh Prasad Singh. He stated
that on the basis of the discharge ticket it appears that on 19th April, 1998
Geeta Devi, Pawan Thakur and Prakash Thakur were admitted in the said unit for
14. The evidence of the three eye-witnesses is cogent and points to the
guilt of the accused-appellant. They were injured in the same incident wherein
the three persons were killed. They were residing in the house where the
incident happened and their presence at the time of the commission of crime
cannot be doubted. The evidence of the informant-PW3 is supported by the First
Information Report which was recorded at 4.00 a.m. by SI of town P.S. Bettiah
Hospital, where they were taken by the patrolling party which had arrived at
the place of the incident after receiving the information.
The statements of the witnesses implicating the accused-appellant in the
commission of crime and the injuries caused to them and the deceased persons
are fully supported by the medical evidence.
PW-1, PW-2 and PW-3 having been the residents of the same house, their
presence at the place of occurrence in the dead hours of night and they having
witnessed the incident, cannot be ruled out. These witnesses are close and
direct relations of the deceased children and, therefore, implicating a false
person, leaving out the actual culprit, is highly improbable and unacceptable.
These witnesses corroborate each other in the material particulars and the
manner in which the incident happened. PW-3 and PW-2 at the relevant time were
in their room on the 3rd floor and came down on hearing the noise to the 2nd
floor where they watched the drastic act being committed. When they tried to
intervene, they were also attacked. PW-1 was in the adjoining room where the
incident happened and he came to the place of incident immediately after
hearing the noise. Nothing has been brought about in the cross-examination to
disbelieve the ocular version of the witnesses. Two courts below on detailed
scrutiny of the evidence of these witnesses, did not find any infirmity in the
evidence pointing finger towards the accused-appellant. We have also considered
the evidence of PW-1, PW-2 and PW-3. We have no doubt that the statements of
the witnesses fully proves the guilt of the accused-appellant in the commission
of murder of three persons and causing grievous injuries to the witnesses.
15. The next question is as to what punishment should be imposed on the
16. It is submitted by the learned counsel for the State that considering
the nature of the offence committed by the accused- appellant, the punishment
of death sentence will be appropriate punishment, whereas it is urged by the
learned Amicus Curiae that in the facts and circumstances of the case the case
does not fall within the four corners of the `rarest of the rare case' and,
thus, the imposition of death sentence would not be appropriate sentence.
17. A Constitution Bench of this Court in the case of Bachan Singh v. State
of Punjab, (1980) 2 SCC 684, has laid down certain guidelines for imposing
death sentence which have been culled out by a 3-Judge Bench of this Court in
Machhi Singh and Others v.
State of Punjab, (1983) 3 SCC 470, and accordingly the following
propositions emerge from Bachan Singh:
(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
(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 Court thereafter observed that in order to apply these guidelines, the
following questions may be 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?
18. In Machhi Singh, a 3-Judge Bench following the decision in Bachan Singh
observed that in rarest of the rare cases when collective conscience of the
community is so shocked that it will expect the holders of the judicial power
to inflict death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty, the Court said that the
community may entertain such a sentiment in the following circumstances:
When the murder is committed in an
extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to
arouse intense and extreme indignation of the community.
When the murder is committed for a
motive which evinces total depravity and meanness.
(a) When murder of a member of a
Scheduled Caste or minority community, etc., is committed not for personal
reasons but in circumstances, etc., which arouse social wrath. (b) In cases of
"bride burning" and what are known as "dowry deaths"
or when murder is committed in order to remarry for the sake of extracting
dowry once again or to marry another woman on account of infatuation.
IV. When the crime is enormous in proportion. For instance when multiple
murders, say of all or almost all the members of a family or a large number of
persons of a particular caste, community, or locality, are committed.
V. When the victim of murder is (a) an innocent child who could not have or
has not provided even an excuse, much less a provocation, for murder, (b) a
helpless woman or a person rendered helpless by old age or infirmity, (c) when
the victim is a person vis-`-vis whom the murderer is in a position of
domination or trust, (d) when the victim is a public figure generally loved and
respected by the community for the services rendered by him and the murder is
committed for political or similar reasons other than personal reasons.
19. The guidelines laid down in Bachan Singh and Machhi Singh have been
followed by this Court time and again in various cases and the courts are
considering the imposition of death sentence in the light of the guidelines
laid down aforesaid.
20. In the present case, the accused-appellant was living as a family member
of PW-3 and PW-2 and was provided with shelter and meals, although for a sum of
Rs.500/- per month, being a friend of PW-1. He lived with the family not for a
month or two, but for a continuous period of four years. There does not appear
to be any apparent provocation or reason for committing the ghastly brutal
murder of three innocent defenceless children who were aged 8, 15 and 16 years.
We can safely assume that the time at which the incident happened, the children
must be asleep and were not in a position to defend themselves. It has come in
the evidence of PW-1, PW-2 and PW-3 that the accused-appellant had assaulted
them when they were running here and there to save themselves. The medical
evidence led by the prosecution indicates the brutality in the commission of
crime. Several incised wounds were caused to the deceased persons. The victims
apparently did not have any weapon with them. When PW-3 (informant) and PW-2
(his wife) on hearing the noise came down to find out the cause for it and
entered the room, they were also brutally attacked without the slightest of
consideration by the accused-appellant that he had lived with them for four
years. Not only that, when his friend on whose account he was accommodated in
the house reached the place of incident on hearing the noise of his brother and
sisters, he was also attacked and seriously injured. It is clear from the
material placed on record by the prosecution that all these persons were
unarmed and the accused- appellant was the only person in the room having the
deadly weapon in his hand. He could have escaped from the place giving the
threat to the persons without causing any harm to the witnesses, but he acted
in a different manner. The enormity of the crime is writ large.
The accused-appellant caused multiple murders and attacked three witnesses.
Thus, all the members of the family who were present on that day in the house
became the victims of the accused. The brutality of the act is amplified by the
manner in which the attacks have been made on all the inmates of the house in
which the helpless victims have been murdered, which is indicative of the fact
that the act was diabolic of the superlative degree in conception and cruel in
execution and does not fall within any comprehension of the basic humanness
which indicates the mindset which cannot be said to be amenable for any
21. In view of the aforesaid facts, we are of the view that there would be
failure of justice in case death sentence is not awarded in the present case.
The case falls in the category of the rarest of the rare cases. The Session
Court and the High Court were justified in imposing death sentence on the
22. For the aforesaid reasons, the appeal is dismissed.