Kumar Vs. State of Punjab  INSC 1523 (1 September 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.670
OF 2009 Sushil Kumar ....Appellant Versus State of Punjab ....Respondent
Life or death is the question involved in this appeal.
appellant Sushil Kumar alias Lucky has been awarded death sentence in Sessions
Case No. 70 of 2006, by Additional Sessions Judge, Jalandhar vide judgment and
order dated 13/17.4.2007 holding him guilty of commission of offence under
Section 302 of Indian Penal Code (for short 'I.P.C.') on three counts, i.e.,
for committing murder of his wife Pooja, son Jatin (6 years) and daughter Sofia
he was acquitted of the offence punishable under Section 309, IPC. Feeling
aggrieved thereof, appellant preferred Criminal Appeal No. 447-DB of 2007 in
the High Court of Punjab and Haryana at Chandigarh and as required under law,
Death Reference under Section 366 of the Code of Criminal Procedure, 1973 (for
short 'Cr.P.C.') was sent for Crl.A.No.670/09 .... (contd.) - 2 - confirmation
to the High Court by the learned Additional Sessions Judge vide Murder
Reference No. 3 of 2007.
Vide impugned judgment and order pronounced on 30.5.2008 by Division
Bench of the High Court, Murder Reference No. 3 of 2007 has been answered
against the appellant and capital punishment awarded to the appellant stands
affirmed, as a necessary consequence thereof, Criminal Appeal No. 447-DB of
2007 filed by appellant stands dismissed. Hence, this appeal, but only against
Murder Reference and not against the dismissal of his Criminal Appeal on
merits. In other words, he is challenging only the capital punishment awarded
to him and not the conviction under Section 302 IPC.
The genesis of the prosecution story was set at motion on the
strength of telephonic information given to Police Station, Division No.5,
Jalandhar on 4.3.2005 by Mr. Ram Lal, Councillor of Basti Danishmandan about
the incident, which triggered off the police in action. S.I. Onkar Singh
(PW-11), Investigating Officer, reached the place of occurrence alongwith other
police personnel, where he found Sukhdev Kumar (PW-2), brother of deceased
Pooja, who gave details of the unfortunate incident. The information, as
narrated by him, to PW-11, I.O. is mentioned hereinbelow:
Crl.A.No.670/09 .... (contd.) - 3 -
His younger sister Pooja @ Ashma was married to appellant Sushil Kumar about
seven years back. They were blessed with two children: a son, Jatin @ Babu,
aged six years and a daughter, Sofia, aged four years. They had been residing
in a rented accommodation of Pawan Kumar.
Earlier, appellant Sushil Kumar was working in a shop of Babbu of Kishanpura
but for the last about 7-8 months he was unemployed and was thus passing
through great financial difficulties. He was borrowing money from others to
meet his daily needs.
Just two days prior to the incident, i.e. on 2.3.2005, at about 1.30 p.m. PW-2
Sukhdev had visited their house to enquire about their welfare and at that time
had noticed a minor scuffle between his sister and her husband, the present
appellant. He tried to intervene and advised them to live peacefully and
4.3.2005 at about 6.30 in the morning PW-2 Sukhdev received a telephonic call
from appellant informing him that he has been admitted in the hospital and he
requested Sukhdev to visit his house to enquire about the welfare of his wife
and children, who were alone at home. He further asked him to enter the house
by climbing its wall.
Sukhdev enquired from the appellant if there had been Crl.A.No.670/09 ....
(contd.) - 4 - any unpleasantness between the two, he was told to first visit
his house, then to inform him and abruptly snapped the phone.
foul-play, Sukhdev rushed to the house of his sister and entered through the
gate. He then saw the dead bodies of his sister Pooja, her son Jatin and
daughter Sofia lying on bed. It appeared that they were strangulated to death
with the aid of plastic rope which was lying on the bed. Both hands of son
Jatin were tied and all of them had also sustained incised wounds.
While Sukhdev was still hovering under a great shock and agony, he received yet
another phone call from appellant at about 6.45 a.m. Sukhdev enquired from the
appellant as to what he has done and also requested him to reach home at the
earliest but appellant once again snapped the phone.
Later on Sukhdev came to know that appellant had also consumed 'Sulphas
tablets' and got himself admitted in Civil Hospital at Jalandhar. Sukhdev
appeared to be confident that appellant has done away with his wife Pooja, son
Jatin and daughter Sofia by strangulating their necks and by inflicting
injuries on their persons and thereafter allegedly consumed 'Sulphas tablets'
as he was poverty stricken.
.... (contd.) - 5 -
On the strength of the aforesaid statement having been recorded by
P.W-11, Onkar Singh (I.O.) marked as Exh. PD/1, endorsement was made by him,
which was sent to the Police Station for recording formal First Information
Report, marked Exh. PD/2. He thereafter conducted inquest proceedings of dead
bodies and removed them to Civil Hospital, Jalandhar, for post-mortem
Dr. S.K. Sharma (PW-1) conducted post-mortem on all the three dead
bodies. As is clear from the impugned judgment, Pooja had sustained as many as
seven injuries including incised wounds and multiple abrasions on her body,
Jatin @ Babbu had sustained single incised injury on his chest and Sofia had
sustained six incised wounds on her body. The cause of death of all the three
persons according to Dr. Sharma was shock and haemorrhage.
It is pertinent to mention here that doctor had specifically
mentioned in all the post-mortem reports that probable time elapsed between
injury and death within few minutes and between death and postmortem within 24
It has neither been disputed before us nor it was disputed in the
High Court that they all had met with homicidal deaths. Thus, the question that
arises before us is, whether the same has been committed by the appellant and
Crl.A.No.670/09 .... (contd.) - 6 - if yes, what sentence would be just and
appropriate to be awarded to him, keeping in mind the enormity and dastardly
manner in which they were murdered.
The Investigating Officer (PW-11) took possession of blood stained
bed sheet and pillows vide recovery memo (Ex. PH. Plastic rope allegedly used
for strangulation of the deceased was also taken into possession by a separate
recovery memo. During the course of investigation, statements of witnesses were
recorded and a rough site plan of scene of occurrence with correct marginal
notes was prepared.
Accused was arrested on 7.3.2005. During interrogation, appellant
made a disclosure Memo (Ex.PE) and pursuant thereto, a blood-stained knife
(Chhura) (Ex.P/5) allegedly used for commission of the offence was recovered from
the place shown by him i.e. under some clothes in the same room where dead
bodies were found.
On completion of the investigation, challan was filed against the
appellant. Learned Addl. Sessions Judge framed charges against the appellant
under Section 302 IPC for murder of his wife, son and daughter and also under
Section 309 of the IPC for his attempted suicide. Subsequently, charges were
amended to three separate charges on account of three murders having been
committed by the appellant in one incident.
.... (contd.) - 7 - Appellant pleaded not guilty and prayed to be tried.
To bring home the charges against the appellant, evidence of
Sukhdev (PW-2) brother of deceased and complainant, Raj Kumar (PW-3), who had
received information about murder of wife and children of the accused from his
landlord, Satpal (PW-4) appellant's neighbour, who had seen him last at 5.00
a.m. coming out from his house and Pushpa (PW-5) mother of deceased Pooja, was
recorded at the instance of prosecution, which we would scan deeply later.
Apart from the aforesaid witnesses, prosecution had examined Dr. S.K. Sharma
(PW-1), who had performed the post-mortem on the bodies of deceased, (P.W-10)
Dr. Kamaljit Singh Bawa, Medical Specialist, Civil Hospital, Jalandhar, Onkar
Singh, Investigating Officer (PW- 11) and other formal witnesses to prove the
seizure memos, disclosure memos etc.
The appellant had taken a plea of alibi that on the fateful day,
he was not in Jalandhar and had gone to Amritsar to complete the work of his
employer. Since he was delayed at Amritsar, he decided to stay back with his
maternal uncle. To prove the plea of alibi, he examined Dharam Pal (DW-1) as a
defence witness. However, learned Trial Judge as also High Court have not found
the plea of alibi established, on account of serious contradictions in the
statement of appellant Crl.A.No.670/09 .... (contd.) - 8 - recorded under
Section 313 of Cr.P.C and that of his defence witness DW-1.
In the light of the aforesaid backdrop of the factual aspect as
has been unfolded, we have to see whether it is a fit case for confirming the
death sentence on the appellant or to award him some other punishment.
At the cost of repetition we reiterate that this appeal has been
preferred only against Murder Reference No. 3 of 2007 as is manifest from the
memo of appeal. Thus, initially finding it difficult to challenge the
conviction and sentence under Section 302 IPC awarded to appellant, learned
counsel for appellant advanced arguments only on the question of quantum of
sentence but later on prayed for leave of this Court to permit him to argue
both on the question of conviction and sentence. With an intention to do
complete justice between the parties, we granted him permission.
Accordingly, we have heard Mr. Rishi Malhotra, learned counsel
appearing for appellant and Mr. Kuldip Singh, learned counsel appearing for the
respondent-State at great length and have perused the record.
Learned counsel for the appellant has seriously and sincerely
attempted to convince us that in the light of several serious discrepancies
appearing in the evidence of Crl.A.No.670/09 .... (contd.) - 9 - Sukhdev (PW-2)
brother of deceased Pooja, Raj Kumar (PW-3) and Satpal (PW-4), who had last
seen the accused coming out of his house in the morning at 5.00 a.m. and Pushpa
(PW-5)- mother of the deceased, it was a case for acquittal or in the light of
said discrepancies at least benefit of doubt should be extended to the
appellant. It was also contended by him that substantial part of evidence of
Rajkumar (PW-3) was hit by Section 25 of the Indian Evidence Act, 1872.
On the other hand, learned counsel for the respondent- State Mr.
Kuldip Singh, vehemently urged before us that it is a fool-proof case and
prosecution has proved beyond shadow of doubt that it was the appellant alone
who committed the crime.
calls for no interference. He also contended that looking to the brutality and dastardly
commission of crime by appellant, he does not deserve to be dealt with
leniently. It was also contended by him that to send a proper signal to the
society and as a matter deterrence, capital punishment alone as awarded by
learned Trial Judge and confirmed by High Court, would meet the ends of
Even though in this appeal, we are not legally obliged to look
into or to critically re-appreciate the evidence available on record but with
the intention to examine if justice has been meted out to him or not, we have
gone through Crl.A.No.670/09 .... (contd.) - 10 - the entire evidence.
Now, we shall deal with material evidence which is necessary to be
considered in this appeal. First, in this line is the evidence of Sukhdev
(PW-2)complainant and brother of the deceased. He has deposed that the deceased
was his younger sister, having married to appellant about seven years back.
They were blessed with two children, Jatin aged six years and daughter Sofia
aged four years. Earlier, they were living in Amritsar but had shifted to
Jalandhar some time back. In Jalandhar, earlier they were living in a rented
house of Badri but then shifted to Basti Danishmandan close to the residence of
this witness, who was living along with his mother (PW-5) Smt. Pushpa. Earlier
the appellant was working in a shop but about seven to eight months back he
lost his job, thus was rendered jobless.
He has then deposed that on 4.3.2005 at about 6.30 a.m. he had
received a telephonic call from accused Sushil Kumar asking him to go to his
house to see Pooja and her children, after climbing the wall. He further
informed him that he is talking to him from Civil Hospital, where he has been
admitted. Sukhdev (PW-2) made enquiries if there had been any differences with
Pooja the previous night, to which he answered that he should first go and see
wife and Crl.A.No.670/09 .... (contd.) - 11 - children thereafter to talk to
him. He then abruptly snapped the phone. He has further deposed that he
immediately rushed to his sister's house and found the door open. He entered
their bed room and was shocked to see dead bodies of his sister, nephew and
niece lying on the bed. Hands of Jatin were tied behind his back and they had
also sustained bodily injuries. A plastic rope was also lying on the bed, which
gave an indication that the same might have been used for strangulating them.
At about 6.45 a.m. he received another call from the accused, who
once again enquired about his wife and children.
informed him about dead bodies lying on the bed and enquired as to what he has
done, to which he once again abruptly snapped the phone.
This witness thereafter gave details of the incident to SI. Onkar
Singh (PW-11), who as mentioned hereinabove, after recording it sent it to the Police
Station for formal registration of the FIR. Even though he was cross-examined
at length but nothing came in the same to discard his evidence.
Rajkumar (PW-3) has also deposed that on receiving the information
about the murders having taken place, he visited the house of the appellant who
is known to him and found three dead bodies. He also gave information to the
police, Crl.A.No.670/09 .... (contd.) - 12 - which reached the spot shortly. He
has deposed that accused was not present in the house. The clothes of dead
bodies were blood-stained. He was also a witness to disclosure statement of the
accused. The other evidence given by him would neither be relevant nor can be
considered, in the light of the provisions contained in Section 25 of the Indian Evidence Act.
The other material witness is Satpal (PW-4), who stays close to
the house of the appellant and is well acquainted with him. He has deposed that
on 4.3.2005 at 5.00 a.m while he was going for morning walk and when he crossed
the house of appellant, he saw him coming out from his house. He was called
from behind, he stopped for a while but was in a perplexed condition and after
stopping for a while the accused moved ahead. Thereafter at about 6.45 a.m. he
came to know about the murder of the wife and two children of the accused.
of rope, bed sheet, pillows stained with blood was completed in his presence.
He is a witness to the memo Ex.PH.
this witness is important as he had last seen the appellant coming out from his
house, to which no explanation has been offered by the appellant.
The last material evidence to connect the appellant with the
commission of crime is of Pushpa (PW-5)-mother-in-law of the appellant. She has
also deposed in great details with Crl.A.No.670/09 .... (contd.) - 13 - regard
to the strained relations between appellant and his wife on account of
financial problems. She has further deposed as to how the phone call was
received on 4.3.2005 at 6.30 a.m. by her son Sukhdev from the accused. She has
further deposed that on 2.3.2005 on receiving a phone from Pooja, she had sent
her son to their house, who later on informed that they were fighting,
obviously on account of financial difficulties and on his intervention, the
dispute was settled.
Microscopic examination of the evidence of Pushpa (PW- 5) and that
of Sukhdev (PW-2) would show that they are in conformity with each other. Minor
discrepancies are bound to be there otherwise they would be termed as tutored
also pertinent to mention here that evidence of (PW-2) is in line with F.I.R.
and his statement given to the police.
Even though we have critically gone through the evidence of all
these witnesses and have thoroughly scanned the same but apart from minor
discrepancies which are bound to appear in a natural course of conduct of a
normal human being, there are no serious material discrepancies in the evidence
warranting us to completely discard their evidence.
There is no reason to doubt the credibility of all these
witnesses. Apart from the above, there is no reason why Crl.A.No.670/09 ....
(contd.) - 14 - they would falsely try to implicate the appellant, more so,
when they had already lost Pooja and her children. Nothing has come on record
that these witnesses were having strained relations with the appellant. On the
other hand, it is clearly made out from the evidence that they were having
cordial relations and were visiting each other quite often.
It is manifest from the evidence mentioned hereinabove that the
appellant had got himself admitted in Civil Hospital, Jalandhar on 4.3.2005 and
was under treatment of Dr. Kamaljit Singh Bawa (PW-10), Medical Specialist of
the Civil Hospital.
to Dr. Kamaljit Singh Bawa (PW-10), the appellant was admitted on 4.2.2005 at
about 6.30 a.m. and was discharged on 7.3.2005. Dr. Kamaljit Singh Bawa has not
been able to conclusively say that any Sulphas tablet was taken by the
appellant or not. He has deposed that after taking tablets, it is difficult to
survive for a long period.
Appellant has not offered any explanation as to where was he
before his admission in the hospital on the fateful day.
alibi taken by him has not been found to be truthful and in our opinion rightly
so as the same stands falsified from the evidence of Satpal (PW-4) who had seen
him coming out of his own house at 5.00 a.m. This is only indicative of the
fact that after commission of the alleged Crl.A.No.670/09 .... (contd.) - 15 -
crime, he got himself admitted in the Civil Hospital. It is certain that he had
committed the crime sometime in night and then got himself admitted in the
hospital at 6.30 a.m.
For all these reasons, as far as plea of alibi is concerned, we
concur with the findings recorded by learned trial Judge as also High Court.
In the light of the aforesaid evidence, learned counsel for
appellant submitted that the only evidence against the appellant is, recovery
of one rope and knife but in view of medical evidence it was not a case that
they had died on account of strangulation, which is manifest from the post-
mortem reports prepared by Dr. S.K. Sharma (PW-1), thus recovery of rope was of
no consequence. As far as knife was concerned, same did not have any blood
stains much less human blood, which would leave only with the evidence of
Satpal (PW-4) who had last seen the appellant coming out from his own house. It
was therefore, contended that doctrine of last seen, is a weak type of evidence
and it is not enough to hold the appellant guilty.
On the other hand, learned counsel for respondent strongly
contended before us that in any case it is not a case of acquittal for the
bodies were found from the house of appellant Crl.A.No.670/09 .... (contd.) -
16 - where he was also living with them and has not explained about the
Blood stained bed sheets, clothes, pillows were recovered from the bed room,
where the dead bodies were found which was shared by the appellant too;
Recovery of knife and rope from the same place;
appellant was last seen by (PW-4) at 5.00 a.m., while he was coming out from
his house in a perplexed condition;
Sukhdev (PW-2) had no occasion to visit the house of the appellant at 6.30 a.m.
on the fateful day unless he was informed about the incident by the appellant;
couple was having strained relations and was passing through bad financial
conditions; and (vii) taking of false plea of alibi is also one of the strong
circumstances against the appellant to connect him with the commission of
Thus, looking to the totality of the facts and features of the
case and keeping in view the evidence available on record, we have no doubt in
our mind that the offence was committed by the appellant and appellant only.
While holding that he alone is guilty of commission of the murder
of his wife and two children, now the question that Crl.A.No.670/09 ....
(contd.) - 17 - arises for consideration is what should be just and proper
sentence to be awarded.
On this question also we have heard learned counsel for the
parties at length and given our anxious consideration.
counsel for the appellant contended that looking to the mitigating circumstances
available on record, no case for awarding death sentence has been made out and
he deserves to be acquitted whereas learned counsel for respondent submitted
that it is a sure-shot case for awarding of death sentence to the appellant.
To press the respective contentions in this regard they have cited
the most celebrated leading case on this point, in (1980) 2 SCC 684. This is a
Constitution Bench Judgment of this Court. In para 206 of the said judgment,
mitigating circumstances have been described which can be taken into
consideration while awarding death sentence. Paras 206 and 207 dealing in this
regard are reproduced hereinbelow which read as thus :
Dr. Chatale has suggested these mitigating factors:
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 Crl.A.No.670/09 .... (contd.) - 18 - influence of extreme
mental or emotional disturbance.
age of the accused, if the accused is young or old, he shall not be sentenced
probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society.
probability that the accused can be reformed and rehabilitated.
shall by evidence prove that the accused does not satisfy the conditions (3)
and (4) above.
in the facts and circumstance of the case the accused believed that he was
morally justified in committing the offence.
the accused acted under the duress or domination of another person.
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.
will do no more than to say that these are undoubtedly relevant circumstances
and must be given great weight in the determination of sentence.
these factors like extreme youth can instead be of compelling importance. In
several State of India, there are in force special enactments, according to
which a 'child', that is, a person who at the date of murder was less than 16
years of age', cannot be tried, convicted and sentenced to death or for life
for murder, nor dealt with according to the same criminal procedure as an
adult. The special Acts provide for the reformatory procedure for such juvenile
offenders or children."
40.The case of Bachan Singh (supra), is of course, the
Crl.A.No.670/09 .... (contd.) - 19 - leading case on the said question which
was considered by a three Judge Bench of this Court in the case of Machhi Singh
& same principles of law have been reiterated. In the case of it has been
explained as to why death sentence will not be proper and what are the relevant
factors to be considered and it has further been observed that court must
balance the mitigating and aggravating circumstances of the case, mental
condition of the accused, the dispute between the families which ultimately
resulted in multiple murders. Even though it was a case of murder of seven
persons, but Division Bench of this Court came to the conclusion that it was
not a fit case which would fall within the ambit of "rarest of rare
On the other hand, learned counsel for the respondent has placed
reliance on the judgments in the case of Bablu @ Satyendra & Ors. reported
in (2009) 4 SCC 736 to strongly contend that in the facts and circumstances of
the case, ends of justice would be met only when the appellant is awarded death
Learned counsel for the appellant has brought to our
Crl.A.No.670/09 .... (contd.) - 20 - notice yet another recent judgment of this
Court in the case of Santosh Kumar Satish Bhushan Boriyar etc. vs. State of
Maharashtra etc. reported in (2009) 6 SCC 498. In this judgment, all the
previous judgments on the said issue have been considered and analysed. The law
on the question of Capital Punishment has been re-stated. Thereafter,
guidelines have been formulated to be observed while awarding death sentence.
Lastly, it has been held that there have to be very special reasons to record
death penalty and if mitigating factors in the case are stronger then it is
neither proper nor justified to award death sentence and it would be sufficient
to place it out of "rarest of rare category". We have critically gone
through the said judgment.
In the case in hand, weighing the mitigating circumstances the
following facts are manifest:
appellant had been unemployed for last 7 to 8 months (ii) he used to borrow
money from others to meet his daily needs.
himself had consumed 'sulphas tablets' to commit suicide even though not
therefore, was keen that his whole family should be finished and no one should
be alive to suffer the pain and agony alone.
.... (contd.) - 21 - (v) he was fed up with his life and was seen in a
perplexed condition by PW-4.
any case, he cannot be a threat to the society and there are fairly good
chances of his reformation as he has learnt sufficient lesson from it.
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
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. No witness has complained about his bad or intolerable
behaviour in the past. Many people had visited his house after the incident is
indicative of the fact that he had cordial relations with all. He is now about
35 years of age and there appear to be fairly good chances of the appellant
getting reformed and becoming a good citizen.
Thus, looking to the matter from all angles and after giving our
serious consideration to the whole matter, we are Crl.A.No.670/09 .... (contd.)
- 22 - of the opinion that it is not a fit case where it would fall within the
category of "rarest of rare case" and therefore death sentence as
awarded to him by learned trial Judge and confirmed by High Court deserves to
be set aside and quashed and is accordingly done so by us instead he is held
guilty of commission of offence under Section 302 of the IPC on three counts
and is awarded life imprisonment for the same. The impugned judgment and order
stands modified to the aforesaid extent and the appeal accordingly stands
.......................J. (V.S. SIRPURKAR)
.......................J. [DEEPAK VERMA]
September 01, 2009.