Sonu Sardar Vs. State
[Criminal Appeal Nos.
1333-1334 of 2010]
J U D G M E N T
A. K. PATNAIK, J.
are appeals against the judgment of the High Court of Chhattisgarh in Criminal Reference
No.1 of 2008 and Criminal Appeal No. 240 of 2008 confirming the conviction of
the appellant and the death penalty imposed on him under Section 396 of the Indian
Penal Code (for short `IPC').
prosecution case very briefly is that on 26.11.2004, Shamim Akhtar (for short `Shamim'),
a scrap dealer and a resident of village Cher, Distt. Baikunthpur, Chhattisgarh,
had gone to Raipur for selling scrap. He sold the scrap and received cash of Rs.1,70,000/-
and returned to his house with the cash. His wife, Ruksana Bibi, kept the cash in
different places of her house, which was to be deposited in the bank the next day.
At about 6.00 p.m. on 26.11.2004, Sonu Sardar, the appellant herein, and Ajay Singh
@ Fotu along with three other persons came with scrap to the shop of Shamim and
left after selling scrap for Rs.480/-.
The appellant and
Ajay Singh and three other persons, however, returned at about 7.00 p.m. on the
same day and knocked on the door of the house of Shamim. When the door was opened,
the appellant and Ajay Singh and three other persons demanded money from Shamim.
One of these five persons then bolted the door from inside and two other persons
caught hold of Asgar Ali, driver of Shamim, and one of them caught hold of Shamim.
They kept a knife on the
neck of Shamim and compelled him to give cash which he was having in his pocket.
Shabana Khatun (for short `Shabana'), the daughter of Shamim, who was present
inside, tried to fight but an attempt was made by the appellant and his people
to assault her and she somehow escaped through the back door and went to the
house of Ramlal, a kilometer away from the house of Shamim. Shabana told Ramlal
3about the incident at her house and when Ramlal wanted to go to their house,
Shabana asked him not to go because she was afraid that Sonu Sardar and others
may kill him.
That night Shabana stayed
at the house of Ramlal and next morning at about 4-5 a.m., Shabana, Ramlal and his
wife Dhanpatbai came to the house of Shamim and found that Yakut and Asna, 3
years old son and 5 years old daughter of Shamim, were crying near the dead bodies
of Shamim, Ruksana Bibi, Yakub and Kumari Rana, 7 years old son and 9 years old
daughter of Shamim. Shabana then went to Baikunthpur and narrated the incident to
her uncle Nasim Akhtar, who reported the matter the Police. The Police reached
the spot and the FIR was lodged. The dead bodies were sent for autopsy to the Community
Health Centre, Baikunthpur, and a team led by Dr. Ashok Kumar carried out the post
mortem. In course of investigation, the Investigating Officer recorded statements
of several persons under Section 161, Cr.P.C.
The appellant and his
co-accused, Ajay and Chhoti Bai, were arrested but the other persons absconded
after commission of crime. Blood-stained T-shirt and turban of the appellant
and an axe with broken handle, a rod and a knife were seized. Test Identification
Parade was carried out on 01.12.2004 in which Shabana identified the appellant as
well as Ajay as two of the five persons who had come to the house of Shamim on 26.11.2004
and were demanding money. The seized articles were sent to the Forensic Science
Laboratory, Raipur. After completion of investigation, a chargesheet was filed and
Sessions Trial No.06/2006 was conducted by the Sessions Judge, Koriya,
course of the trial, the prosecution examined 38 witnesses. Shabana was examined
as PW-1, Ramlal was examined as PW-2, Nasim Akhtar was examined as PW-3 and Dhanpatbai
was examined as PW-4. Dr. Ashok Kumar was examined as PW-36 and the Investigating
Officer was examined as PW-37. A large number of documents and the seized
articles were also exhibited.
The trial court recorded
the statements of the appellant under Section 313, Cr. P.C. After hearing the
arguments, the trial court held that it was clear from the evidence of PW-1,
PW-2, PW-3 and PW-4 that the appellant had committed the dacoity at the house of
Shamim between 7.00 p.m. of 26.11.2004 and 4.00 a.m. of 27.11.2004 and thereafter
committed murder of Shamim, Asgar, Ruksana Bibi, Yakub and Kumari Rana with rod,
knife and axe and that the prosecution had succeeded in establishing the guilt of
the appellant under Section 396, IPC, beyond reasonable doubt.
After hearing counsel
for the parties on the question of sentence, the trial court also held that the
case falls in the category of rarest of rare cases and imposed the sentence of death
on the appellant. By the impugned judgment, the High Court has confirmed the conviction
of the appellant under Section 396, IPC, and also the sentence of death.
counsel for the appellant submitted that the appellant had been convicted on the
sole testimony of Shabana (PW-1), a ten years old child who could not have identified
the appellant as one of the five persons who committed the dacoity and murder on
the night of 26.11.2004. She submitted that it is on the information received
from PW-1 that PW-3 had lodged the FIR, but in the FIR the appellant has not
been named. She argued that had PW-1 known the appellant, she would have told PW-3
the name of the appellant and PW-3 would have mentioned the name of the
appellant in the FIR. She submitted that it will therefore not be safe for this
Court to sustain the conviction of the appellant.
counsel for the State, on the other hand, submitted that although PW-1 is a
minor, her evidence was reliable and she had stood the test of
cross-examination. He further submitted that PW-1 narrated the incident not only
to PW-3, but also to PW-2 and PW-4 and the evidence of PW-2 and PW-4 would show
that PW-1 had clearly mentioned that out of the five persons, who had committed
the dacoity and murder on the night of 26.11.2004, there was a sardar.
He further submitted that
PW-1 has also stated in her evidence that the appellant had gone to her father's
shop 5 to 6 times before the 26.11.2004 to sell scrap and hence she could identify
him as one of the five persons who had committed the dacoity and murder on the night
of 26.11.2004. Moreover, at the time of the Test Identification Parade
conducted by the Magistrate (PW-11), PW-1 identified the appellant as one of
the five persons, who had come to the house of Shamim on 26.11.2004 and were demanding
He submitted that the
evidence of PW-1 that the appellant participated in the dacoity and murder on 26.11.2004
is corroborated by the recovery of the iron rod and axe on the statement of the
appellant and by the fact that the seized T-shirt and turban of the appellant were
have considered the submissions of learned counsel for the parties and we find that
during investigation a Test Identification Parade was carried out on 01.12.2004
and out of the ten persons who were presented, the appellant and Ajay Singh @ Fotu
were identified by PW-1 as the two persons, who were amongst the five persons
who had come to the house of Shamim and were demanding money from him.
From the evidence of
PW-2 as well as the evidence of PW-4, we find that PW-1, soon after she escaped
from the house of Shamim, has mentioned that one of the five persons who had gone
to the house of Shamim was a sardar. In her cross-examination, PW-1 has stated
that she knew the appellant as he had come to their house for selling scrap. Moreover,
the broken axe with broken handle and iron rod (Ext. P.24) were recovered pursuant
to the statement of the appellant (Ext. P.16). PW-36, Dr. Ashok Kumar, after
narrating the injuries 8on the dead bodies of Shamim, Asgar Ali, Ruksana Bibi, Yakub
and Kumari Rana, has opined that the death has been on account of shock as a
result of fatal injuries.
The injuries described
by them are not only incised wounds but multiple fractures of temporal and parietal
bones and on the head which could have been caused by the axe and the iron rod.
The report of the Forensic Science Laboratory (Ext.P.61) confirms presence of human
blood on the clothes of the deceased persons, axe and iron rod (Ext. P.24) as
well as the turban and T-shirt of the appellant (Ext. P.37) which had been
Thus, the conviction
of the appellant is not only based on the oral testimony of PW-1, but also the
evidence of PW-2, PW-3, PW-4, PW-36, the seized articles and also the report of
the Forensic Science Laboratory. It is further established from the evidence of
PW-1 and the Panchanama of the house of Shamim made on 28.11.2004 that only
cash of Rs.65,760/- was available and the remaining cash out of Rs.1,70,000/- was
missing. The prosecution has, in our considered opinion, proved beyond
reasonable doubt that the appellant participated in the offence of dacoity and murder
9and has been rightly convicted for the offence under Section 396, IPC.
the question of sentence, learned counsel for the appellant submitted that this
Court has held in Ramesh and others v. State of Rajasthan [(2011) 3 SCC 685] that
before awarding death sentence, the trial court was expected to give elaborate
reasons. She submitted that the reasons given by the trial court for awarding
death sentence on the appellant were not elaborate.
She submitted that in
Ramesh and others v. State of Rajasthan (supra) this Court did not find clear evidence
as to which of the three persons who participated in the crime was the actual author
of the injuries on Ramlal and Shanti Devi and held that as it is difficult to say
that Ramesh alone was the author of the injuries on Ramlal as well as Shanti Devi,
death sentence awarded to Ramesh should be modified to life imprisonment. She
submitted that in the present case also five persons have committed the offence
under Section 396, IPC, and as the actual role of the appellant in the offence is
not known the death sentence should be modified to life imprisonment.
counsel for the State, on the other hand, submitted that the appellant has
participated in the offence under Section 396, IPC, and as many as five innocent
persons, including two children, have lost their lives and the trial court has given
sufficient reasons for awarding death sentence to the appellant. He cited the
decision of this Court in Sushil Murmu v. State of Jharkhand [(2004) 2 SCC 338]
for the proposition that the punishment should be proportionate to the crime
committed by the accused.
He submitted that in the
facts of the present case, since the crime was heinous in nature and resulted in
the death of five persons, death sentence would be proportionate to the crime committed
by the appellant. He also relied on Atbir v. Government of NCT of Delhi [(2010)
9 SCC 1] in which this Court held that preventing persons in the house to escape
and committing brutal murder of as many as three persons inside the house are aggravating
circumstances warranting imposition of death sentence on the accused.
He submitted that in the
present case also, as the appellant had closed and bolted the door to prevent
an escape of any person from the house, and had then brutally murdered as many
as five persons, death sentence should be imposed on the appellant.
have considered the submissions of the learned counsel for the parties and we find
that the trial court has recorded the following special reasons under Section
354 (3) of the Criminal Procedure Code, 1898 for awarding the death sentence on
crime was pre-meditated.
crime has struck fear and terror in the public mind.
and defenceless women and two minor children aged eight and four years besides two
adult men were murdered.
Ali, the driver of Shamim, who had only stopped in the house for his food, was
also not spared.
advantage of earlier business relations with Shamim, the appellant made a
friendly entry and committed the murders.
intention was to kill all members of the family though surprisingly a six month
old baby and a four year old child remained alive.
five murders were brutal, grotesque, diabolical, revolting and dastardly, which
indicated the criminality of the perpetrators of the crime.
physical or financial harm appears to have been caused by the deceased to the
As against these aggravating
circumstances, the trial court did not find any mitigating circumstance in favour
of the appellant to avoid the death penalty. This is, therefore, not one of
those cases in which the trial court has not recorded elaborate reasons for awarding
death sentence to the appellant as contended by learned counsel for the
the role of the appellant in the commission of the offence of dacoity and murder,
we have already found that the turban and T-shirt of the appellant, which were seized
and sent for examination to the Forensic Science Laboratory, had presence of human
blood. We have also found that the axe and the iron rod, which were recovered pursuant
to the statement of the appellant, had also blood-stains.
We have also found
from the evidence of PW-1 that when her mother was cooking food and came out on
hearing the commotion, the appellant was demanding money from her father and
her father gave to the appellant all the money which he was having in his
pocket. There is, therefore, clear and definite evidence in this case to show
that the appellant not only participated in the crime, but also played the lead
role in the offence under Section 396, IPC. This is, therefore, not a case
where it can be held that the role of the appellant was not such as to warrant death
sentence under Section 396, IPC.
a recent judgment in Sunder Singh v. State of Uttaranchal [(2010) 10 SCC 611], this
Court found that the accused had poured petrol in the room and set it to fire
and closed the door of the room when all the members of the family were having their
food inside the room and, as a result, five members of the family lost their lives
and the sixth member of the family, a helpless lady, survived.
This Court held that the
accused had committed the crime with pre-meditation and in a cold blooded manner
without any immediate provocation from the deceased and all this was done on
account of enmity going on in respect of the family lands and this was one of
those rarest of rare cases in which death sentence should be imposed. The facts
in the present case are no different.
Five members of a
family including two minor children and the driver were ruthlessly killed by the
use of a knife, an axe and an iron rod and with the help of four others. The crime
was obviously committed after pre-meditation with absolutely no consideration
for human lives and for money. Even though the appellant was young, his criminal
propensities are beyond reform and he is a menace to the society. The trial court
and the High Court were therefore right in coming to the conclusion that this
is one of those rarest of rare cases in which death sentence is the appropriate
the result, we find no merit in these appeals and we sustain the conviction of the
appellant as well as the sentence of death under Section 396, IPC, and dismiss the
(A. K. Patnaik)