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