Absar Alam @ Afsar
Alam Vs. State of Bihar
Jurisdiction Criminal Appeal No. 1436 of 2010]
J U D G M E N T
A. K. PATNAIK, J.
is an appeal by way of special leave under Article 136 of the Constitution of India
against the judgment and order dated 16.07.2009 of the Patna High Court in Death
Reference No. 7 of 2008 with Criminal Appeal (DB) No.169 of 2008. On 18.01.2010,
this Court issued notice in the Special Leave Petition confined to the question
of sentence only and on 02.08.2010 after hearing learned counsel for the
parties, granted leave. Hence, the only question that we have to decide in this
appeal is whether the High Court was right in confirming the death sentence of the
appellant imposed by the trial court.
deciding this question, the relevant facts as have been found by the trial
court are that in the midnight of 14/15.02.2007, the appellant killed his mother
by cutting her neck and severing her head and thereafter fled from the house
with the head of his mother leaving behind her body. The trial court, after
convicting the appellant under Sections 302 and 201 of the Indian Penal Code (for
short `IPC'), held that the appellant committed the murder of his mother in an extremely
brutal, grotesque, diabolical and revolting manner and hence it is one of those
rarest of the rare cases calling for a death sentence on the appellant.
The High Court, while
upholding the conviction, confirmed the death sentence relying on the decision of
this Court in Machhi Singh and others v. State of Punjab [(1983) SCC 470]. In
the aforesaid case of Machhi Singh, this Court has inter alia held that the manner
of commission of murder and the personality of the victim of murder have to be taken
into consideration while making the choice of the sentence to be imposed for the
offence under Section 302, IPC: life imprisonment or death sentence. The High
Court has taken a view that considering the abhorrent, dastardly and diabolical
nature of the crime committed by the appellant on none other than his mother, who
had given birth to him, the penalty of death has been rightly awarded by the
the hearing of this appeal, learned counsel for the appellant, relying on the decision
of this Court in Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of
Karnataka [(2008) 13 SCC 767], submitted that even if it is a case of a son
beheading his mother, this is not one of the rarest of rare cases in which the death
penalty should have been imposed because the offence had been committed by the
appellant in a fit of passion and not after pre-meditation.
Learned counsel for the State, on the other hand, submitted that considering the
law laid down by this Court in Prajeet Kumar Singh v. State of Bihar [(2008) 4 SCC
434], Surja Ram v. State of Rajasthan [(1996) 6 SCC 271] and Atbir v. Government
of NCT of Delhi [(2010) 9 SCC 1], the imposition of death sentence on the
appellant for the cruel act of beheading his mother was proper.
find on reading the FIR lodged by the brother of the appellant on the morning of
15.02.2007 at 09:45 hours marked as Ext.2 that the appellant's wife Sakerun Nisha
had run away to her maternal house three or four days before the incident and the
appellant had been accusing his mother to have been the cause of his wife running
away from this house and out of anger and excitement the appellant severed the neck
of his mother and fled with the head.
The appellant was an illiterate
rustic and was a cultivator residing in a village with virtually no control over
his emotions and has over-reacted impulsively to the situation and has severed
the neck of his mother. On these facts, the appellant is no doubt guilty of the
offence under Section 302, IPC, and has to suffer the punishment of
imprisonment for life normally awarded for the offence, but should not be
condemned to death. We may cite a few authorities in support of this view.
Lehna v. State of Haryana [(2002) 3 SCC 76], the facts were that there was a quarrel
between the accused and other members of his family, namely, his father, his brother
and sister-in-law, over a piece of land and in the assaults that followed the
quarrel, the accused killed his mother, his brother and sister-in- law.
While upholding the conviction
of the accused under Section 302, IPC, this Court held that the mental condition
of the accused, which led to the assault, cannot be lost sight of and while
such mental condition of the accused may not be relevant to judge culpability,
it is certainly a factor while considering the question of sentence. This Court
further held that the factual scenario gave impressions of impulsive act of the
accused and not of planned assaults and in this peculiar background, death sentence
would not be proper.
Gyasuddin Khan alias Md. Gyasuddin Khan v. State of Bihar [(2003) 12 SCC 516],
the facts were that in the morning hours of 09.04.1996, in the precincts of a
6 police camp stationed near a village in Bihar, a policeman deployed in the
police picket to contain the terrorist activities, unleashed terror by indulging
in a firing spree, killing three of his colleagues instantaneously and this Court,
relying on Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430], Lehna v. State of
Haryana (supra) and Om Prakash v. State of Haryana [(1999) 3 SCC 19], held that
the mental condition or state of mind of the accused is one of the factors that
can be taken into account in considering the question of sentence and in the facts
of the case, the killing of two other policemen without premeditation and
without any motive whatsoever was an act done out of panic reaction and in a state
of frenzy and it was not one of the rarest of rare cases where death sentence
could be awarded.
the aforesaid reasons, we convert the sentence of death to one of life
imprisonment for the offence under Section 302, IPC, committed by the appellant
and allow the appeal in part.
(A. K. Patnaik)