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CASE NO.:

Appeal (crl.) 927 of 2001

PETITIONER:

D@HAMRAMNESNIDNRGASRIANTHANSINH

Vs.

RESPONDENT:

STATE OF GUJARAT

DATE OF JUDGMENT: 17/04/2002

BENCH:

Doraiswamy Raju & Brijesh Kumar

JUDGMENT:

BRIJESH KUMAR, J.

This appeal has been preferred by the appellant from

Jail against the judgment and order dated 5th,7th and 10th July,

2001 passed by the Gujarat High Court upholding his

conviction under Section 302 I.P.C. and sentence of death as

awarded by the Additional Sessions Judge Sabarkantha, at

Himmatnagar. The reference for confirmation of the death

sentence was also accepted.

We have heard the Amicus curiae representing the

appellant at length as well as the learned counsel representing

the State.

The facts of the case are in a narrow campass. The

appellant and PW-3 Ashaben, were married about 15 years

before the incident. They had two sons, Jigarsinh and

Vimalsinh aged about 12 and 7 years respectively. They were

residing in Village Bhadresar along with the parents of the

appellant. The brother of the appellant, namely Dashrathsinh

was living separately. The prosecution case is that on

24.8.1998 while the appellant, the complainant PW-3

Ashaben and their two sons were sleeping on cots inside the

house, the appellant woke her up early in the morning. She

milched the cow and requested her husband to deliver the

milk at the dairy. The appellant declined to do so upon which

she tried to awake Jigarsinh for delivering the milk but the

appellant asked her to go herself for the purpose. She

accordingly went to the dairy and reached back home at about

7 a.m. She found her husband assaulting the sleeping boys,

namely their sons. She raised alarm and rushed into the room

thereupon her husband left the house from the other door.

Ratansinh her father-in-law and Dasrathsinh her brother-in-

law and others arrived. She told them about the incident.

The two sons died as a result of injury received by them.

PW-4 Mangusinh Tetsinh, father of the complainant, PW-3

Ashaben on getting information of the incident through

Sarpanch of his village went to Village Bhadresar, his

daughter narrated the whole story to him. He brought her to

his village Mhudi from Bhadresar. According to him on the

way they also went to the Police Station, Jadar. According to

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PW-3 her report was written and lodged at the Police Station.

The PSI, Police Station, Jadar, Bhurjibhai, who has been

examined as PW-8 stated about the lodging of the FIR and

registration of the case at the Police station at 5 p.m. on

24.8.1998. Thereafter PW-9 conducted the investigation into

the case interrogating the complainant and other witnesses at

the spot and taking into custody the other material exhibits

and prepared their respective recovery memos including that

of the weapon Dharia. He also took into custody the plain

and blood stained earth etc. Inquest reports were also

prepared. He arrested the accused on 17.9.1998 at 11.15

A.M. The post-mortem examination on the dead bodies of

the two deceased was held by PW-1 Dr. Ganpatsinh

Ambadan Charan, on 24.8.1998. He found three external

injuries on the dead body of Jigarsinh, which consisted of one

sharp cut wound on the left cervical region up to the middle

line of neck and two other incised wounds. On internal

examination he found fracture of the jaws. So far Vimalsinh

is concerned he was found to have one sharp cut wound on

the neck from left mandible to right ear lobule. There was

fracture of occipital bone as well as that of 1st and 2nd

cervical spine. The Doctor opined that the injuries were ante-

mortem and they were caused by sharp edged weapon. On

looking to the exhibit article No.9, Dharia he stated that the

said injuries could be caused by the said weapon. He also

stated that injuries were sufficient in the ordinary course of

nature to cause death. He denied the suggestion made in the

cross-examination that the nature of the injuries indicated

could be caused only by axe. He also denied the suggestion

that the injury Nos. 2 and 3 could not be caused by Dharia.

PW-2, Nathosinh is a witness of recovery and the articles and

memos prepared there on. PW-3 is the complainant namely,

the mother of the two deceased children and wife of the

appellant. She has stated that the appellant right from the

beginning had suspicion about her character and in that

connection he quite often quarreled with her. She however,

denied a suggestion made on behalf of the defence in her

cross-examination that the appellant used to tell her that the

two sons Jigar and Vimal were not born of him. PW-4,

Mangusinh Tetsinh, is father of the complainant. PW-5

Dineshbhai Paragbhai, who was examined as witness to the

recoveries of his clothes etc. made on the arrest of the

accused on 17.9.1998, PW-6, is yet an another witness in

connection with the same. PW-7 Dalpatsinh is a neighbour,

who claims to have reached the house of the appellant on the

shouts of PW-3, but had found no one else there. PW-8

Bhurjibhai Kavjibhai Damor was PSI and was posted at P.S.,

Jadar and had registered the case at the Police Station. PW-9

Babubhai Kodarbhai Patel is the Investigating Officer.

The Trial Court believed the testimony of PW-3

Ashaben, and accepting the prosecution case that the murders

have been committed by none else but the appellant convicted

him under Section 302 and awarded the capital punishment.

The High Court also, after appraising the evidence and

considering the points raised by the appellant upheld the

judgment of the Trial Court as well as the conviction and the

sentence awarded.

It is clear that the case rests on the only ocular

testimony of PW-3 Ashaben the mother of the slain children

and the wife of the appellant. The other prosecution witness

of fact regarding the alarm raised by Ashaben in the morning

is PW-7 Dalpatsinh, but he has not stated about the presence

of the appellant at the spot at the time he reached there. On

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the other hand he has stated that he reached on the alarm

raised by Ashaben whom he had seen returning from the

dairy, no one else was present at her house. In connection

with the evidence of this witness it has been held that he has

not disclosed the full truth and had only tried to help his

neighbour namely the appellant. Apart from other evidence

adduced as indicated earlier, there are certain circumstances

pointed to the fact that the offence was committed by the

present appellant.

Learned counsel for the appellant has assailed

judgment and conviction broadly on the grounds that there

was discrepancy between the oral and the medical evidence.

The next point, which has been urged with some vehemence

is that there being glaring contradiction in regard to lodging

of the FIR, the investigation made in the case cannot be relied

upon nor a case based on such an FIR could be believed. He

also submitted that the presence of the appellant at the

relevant time is not established at the spot nor that of the

complainant PW-3 Ashaben. Yet another submission is that

FIR was lodged according to the prosecution case itself after

arrival of the parents of the complaint and the complainant

not having happy relationship with the accused, falsely

implicated him in the case. Yet another ground raised is that

the appellant suffered from mental disorder and insanity.

Therefore, he could not be liable for the offence convicted

for.

Before dealing with each submission made we feel it

appropriate to have an over view of the factual position of the

case.

According to the complainant as disclosed in the FIR

itself besides in her statement in the Court, the appellant had

suspicion about her character right from the beginning. A

suggestion made in the cross-examination though denied by

her was that the accused used to tell her that two slain

children were not born of him. In that background in the

night preceding the incident the appellant told that they would

be sleeping inside the house though usually they slept outside

in the open. In the early hours of the morning he woke up his

wife and after milching of the cow told her to go to the dairy

to deliver the milk. He had himself declined to go to the

dairy when asked by the complainant and had also not

allowed her to awake Jigarsinh to go to the dairy for the

purpose. According to the prosecution case after the

complainant had left and he was alone was in the house, he

committed the crime which was witnessed by PW-3 on her

return from the dairy. According to the complainant she

raised alarm on seeing the appellant assaulting the children,

upon which the appellant slipped away by the back door

leaving the weapon at the spot. It is also stated by her that on

her shouts her father-in-law, brother-in-law and others also

arrived. Out of these persons Dalpat Sinh has been examined

as PW-7. He is a neighbour of the appellant. The

prosecution case as disclosed by PW-3 Ashaben, the

complainant, is corroborated by the witness to the extent that

he saw her returning from the dairy and that she raised alarm

upon which he reached the spot and found that her two sons

were lying murdered but thereafter he adds that he had not

found anyone else at the spot meaning thereby that he does

not state about the presence of the appellant there at that point

of time.

So far PW-3 is concerned, it is her own case that the

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appellant had been quarreling with her quite often having

suspicion on her character. The appellant also used to drink

and sometimes gave beating to her. Her father PW-4

Mangusinh Tetsinh stated that his daughter at times told that

the appellant had been having quarrels with her but other

details were not brought to his notice. As observed by the

High Court, and in our view, rightly, that the husband and

wife had still been living together with the differences

whatever were there in between them which had not grown

to such proportion that she might have told about it to her

father or may not be prepared to live together. It also comes

out from her statement that the appellant had been having

his say in the matters at home and he woke her up and

desired her to go to the dairy to deliver the milk refusing to do

so himself even though asked by her. He also did not allow

to awake Jigarsinh for the purpose. That is to say she was

still obeying the wishes of her husband in the household

chores and affairs. It has been observed in the judgment that

PW-7 while saying that on reaching at the spot, he found no

one else there, he was not speaking the full truth. It is

however, to the be noted that to a very great extent the

statement of PW-3, Ashaben stands supported by his

statement. The circumstances which undisputedly flow from

these facts are that after PW-3 Ashaben left for dairy there

was none else at the house except the appellant with two

children asleep. On her return from the dairy she raised

alarm seeing the appellant assaulting the children upon which

the accused slipped away. PW-7, who arrived at the spot, it

would not be surprising that he did not find accused present

at that time. In the background of whatever has been

indicated above it is clear that the relations between the

appellant and PW-3 had not strained from her side at least to

the extent that PW-3 would falsely implicate her husband for

the murder of her two children leaving the real culprit who

may have murdered their two sons. She was still complying

with whatever the appellant desired her to do. It is also to be

noted that father of the appellant though resides in the same

house and having arrived at the spot, did not proceed to lodge

the FIR. Brother of the appellant who also resides there

though separately, failed to inform the police even though he

had also arrived at the spot on the alarm raised by the

complainant. The obvious reason appears to be that they

might not be ready to lodge report against the appellant, the

own son and the brother. Not this alone, once the father and

the brother of the accused would find that the appellant was

being falsely roped in by his wife, there was no reason for

them not to come forward to inform the police about the

correct position or to say that the crime was not committed

by the appellant. They also did not appear in his defence in

the Court to say that it was a case of false implication of the

appellant by none else but his daughter-in-law. Normally a

brother or father will also not be a silent spectator to the false

implication of his brother/son by his wife.

Now taking up the points as raised by the appellant

regarding the medical evidence, we may at the outset indicate

that there is no force in it. Learned counsel for the appellant

has submitted that according to the statement of the doctor

PW-1Ganpat Sinh Ambadan Charan the injuries found on the

dead bodies of the deceased could only be caused by an Axe

and not by a Dharia. On going through the statement of the

doctor we do not find that the submission made is supported

in any manner. The doctor has very clearly stated that all the

injuries found on the dead bodies were caused by some sharp

edged weapon. He has categorically stated that those injuries

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could be caused by Dharia which was exhibited in the Court

though a suggestion was made and denied by the doctor that

such injuries could be caused only by an axe. In this

connection the other related argument which has been raised

is that in the FIR PW-3 had mentioned that the appellant had

assaulted the children with an axe but later on changed her

statement in the Court saying that it was by mistake she had

mentioned `axe' in the FIR but in fact it was Dharia. In our

view it is a very insignificant contradiction which may not

lead to any worthwhile conclusion in view of the fact that it

was immaterial whether the weapon was an axe or a dharia

as both are sharp edged weapons and according to the

statement of the doctor the injuries as received by two

children were caused by a sharp edged weapon. There was

thus no design or purpose in changing the statement or

deliberately giving out something wrong in the First

Information Report about the weapon used by the appellant to

cause the injuries upon the deceased persons. The medical

evidence supports the prosecution case in all respects. We

therefore find no force in this submission as well.

Learned counsel for the appellant then submitted that

presence of the appellant at the relevant time at the spot is

not established and in this connection he has mainly relied

upon the statement of PW-7. We have already made our

observations in that regard. We find that it has rightly been

found by the courts below that PW-7 has not come out with

full truth, may be with a view to help out his neighbour

otherwise to a great extent prosecution case finds supports

from his statement up to the stage, the PW 3 on return

from the dairy had raised an alarm. In this view of the matter

the presence of PW-3 can also not be doubted in respect of

which an effort was made to raise an argument in vain.

The next argument upon which much stress has been

given by the learned counsel for the appellant is about the

contradiction relating to the lodging of the FIR. According to

the PW-3 she had gone to the police station where inquiries

were made from her by the police personnel and thereafter

report was lodged on 24.8.98 itself at 5.00 P.M. PW-9 also

states that complaint was given by Ashaben on the basis of

which a case was registered at the police station. In the cross-

examination, he has however stated that on his way back from

the Court, he got a wireless message from the Control,

regarding this incident thus he straightaway went to village

Bhadresar from Himmatnagar. The report was written at the

house of Ashaben who was present there. The report was

forwarded to the police station for registration of the case. He

also states that mother-in-law and father-in-law of the

complainant were also present at the house. He inspected the

spot and completed the other formalities of the investigation.

He has also stated that two dead bodies were identified by

PW-3 who had also shown him the place of occurrence.

There is no doubt about the fact that there is definitely a

contradiction about the lodging of the FIR but the effect of

such contradiction or discrepancy may have to be viewed in

the light of the facts and circumstances of each case. There

may be cases where such a discrepancy may prove fatal to

the prosecution case whereas in other cases it may not have

the same effect. The high Court has considered this matter in

some detail taking into account all the discrepancies in regard

to this point and came to the conclusion that PW-9 the

Investigating Officer had come straight to the village

Bhadresar while returning from the Court after obtaining the

remand of accused persons in some other case and the FIR

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was scribed there at the house of Ashaben which was

forwarded to the Police Station for its registration. It has

been observed that for an uneducated village person, it is not

unlikely that one may make some embellishment in the

statement saying that the FIR was recorded at the police

station since normally it is recorded there. It has also been

observed that the complainant Ashaben was present in

Village Bhadresar when the police reached there and that the

Panchnamas etc. had also been prepared in her presence and

that she had also identified the bodies and pointed out the

place of occurrence to the Investigating Officer. As observed

earlier the discrepancy in regard to the lodging of the FIR is

certainly there and the conduct of the Investigating Officer in

carrying out the investigation of the case has also been

commented upon by the trial court but we are of the view that

the consequences of such discrepancies or defective or

doubtful investigation is not necessarily only one leading to

discredit the main prosecution case if the prosecution

evidences inspires confidence and circumstances lead to such

a conclusion and the prosecution story rings true. No doubt

that in that event it would be necessary to evaluate as to what

extent such faulty investigation or discrepant statement on

certain facts relating thereto, shall cause damage to the

prosecution case as a whole. In the judgment of the High

Court a few decisions on the point with their relevant

observations made thereunder have been referred to which we

may to reproduce. They are as follows:

" In State of Rajasthan versus Kishore

[1996 SCC (Crl) 646] has pointed out

that mere fact that the investigating

officer committed irregularity or

illegality during the course of

investigation would not and does not

cast doubt on the prosecution case nor

trustworthy and reliable evidence can be

cast aside to record acquittal on that

account. In that case piece of evidence

was not considered by the High Court

but it fell it doubtful like Doubting

Thomas with vacillating mind to accept

the prosecution case for the reasons

which the Apex Court pointed out were

invalid reasons and has wrongly given

benefit of doubt to the respondent.

Suffice it to say that in the instant case,

there is sufficient, reliable, trustworthy

and acceptable evidence and therefore

the discrepancy pointed out is of no

importance and does not affect the

prosecution case and therefore, not only

the evidence was rightly accepted by the

trial court but the trial court on

appreciation of evidence and

circumstances in which offence was

committed, made the order.

The Apex Court in the case of

Karnail Singh versus State of Madhya

Pradesh (1995) 5 SCC 518 has observed

as under:

"In case of defective

investigation, it would not be proper to

acquit the accused if the case is

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otherwise established conclusively

because in that event, it would

tantamount to the falling into the hands

of an erring investigating officer."

In the case of Ram Bihari Yadav versus

State of Bihar, (1998) 4 S.C.C. 517, the

Apex Court observed in Para 13 as

under:

"In such cases, the story of the

prosecution will have to be examined

dehors such omissions and contaminated

conduct of the officials otherwise the

mischief which was deliberately done

would be perpetuated and justice would

be denied to the complainant party and

this would obviously shake the

confidence of the people not merely in

the law-enforcing agency but also in the

administration of justice"

In the case of Paras Yadav versus State

of Bihar (1999) 2 SCC 126 the Court

held as under:

"It may be that such lapse is

committed designedly or because of

negligence. Hence, the prosecution

evidence is required to be examined

dehors such omission to find out whether

the said evidence is reliable or not"

The High Court has also referred to a decision reported in

2000 S.C.C. (Crl.) 522 Ambica Prasad and another versus State

(Delhi Administration) in which this Court observed that faulty

investigation or witnesses turning hostile may not ultimately affect

the merit of the case nor it could be a ground to disbelieve the

statement of the prosecution witnesses.

In our view the High Court taking into account the

observations made in the decision referred to above came to the

conclusion that otherwise reliable statement of the witness PW-3

Ashaben could not be discarded or discredited even though there

had been any fault or negligence in conducting the investigation,

that too by itself, be not sufficient to dislodge the prosecution case

as a whole. The chances of making some embellishment here and

there in the statement are not ruled out even in cases of otherwise

truthful and reliable witnesses. The concept of falsus in uno and

falsus in omnibus" has been discarded long ago. Therefore in such

circumstances the Court may have to scrutinize the matter a bit

more closely and carefully to find out as to how far and to what

extent the prosecution story as a whole is demolished or it is

rendered unreliable. For this purpose the statement of the witnesses

will have to be considered along with other corroborating evidence

and independent circumstances so as to come to a conclusion that

the contradiction in the statement of a witness could be considered

as an embellishment by the witness under one or the other belief or

notion or it is of a nature that the whole statement of the witness

becomes untrustworthy affecting the prosecution case as a whole.

The same principle will apply to a faulty or tainted investigation.

Other relevant facts and circumstances cannot be totally ignored

altogether. While appreciating the matter one of the relevant

considerations would be that chances of false implication are totally

eliminated and the prosecution story as a whole rings true and

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inspires confidence. In such circumstances despite the

contradictions of the defective or tainted investigation, a conviction

can safely be recorded.

We may next consider the argument made on behalf of the

appellant that he was suffering from mental ailment and had

received medical treatment for the same. First of all a reference has

been made to the statement of PW-7 Danpatsinh who is neighbour

of the appellant. He has stated that the appellant had been suffering

from mental disease and had been admitted in the hospital of Dr.

Navin Modi. He further stated that the appellant was like a mad

person and did not have any sense. It was also stated by him that

the husband and wife were not on good terms and quarrel used to

take between them. Whenever he got ill, his father used to take him

to the hospital. So far the nature of illness of the appellant is

concerned, PW-3 denied the suggestion that he was suffering from

any mental illness. She stated that he had been taking liquor. She

further goes on to say that he was admitted in Himmatnagar

Hospital but did not know if it was hospital of Dr. Navin Modi or

some other hospital. We do not think that on the basis of the

statement of these witnesses, any conclusion can be drawn that the

appellant was suffering from any mental illness or he used to

become mad. We find no infirmity in the finding of the High Court

that in case it was so, evidence should have been led on behalf of

the defence to prove the fact of mental illness. The prescription of

the treatment given to the appellant in the hospital should have been

brought in the record or the Doctor who may have treated him could

be produced to show that the appellant suffered from any mental

illness. Obviously these facts if at all, would be in the special

knowledge of the defence and in case the defence wanted to take

advantage of any such ground of mental illness, this plea should

have been substantiated by adducing relevant and cogent evidence.

No circumstance has been indicated on the basis of which any such

inference could be drawn. We therefore, find no force in this

argument as advanced on behalf of the appellant.

The Submission made on behalf of the appellant that the

complainant had actually not witnessed the occurrence also has no

basis. She has made the statement to that effect and nothing could

be elicited in her cross-examination by reason of which any doubt

could arise about the veracity of her statement. On return from the

dairy she found her husband assaulting the deceased and on her

alarm raised he slipped away from the other door. It is also strange

that after the incident the appellant was not available for more than

15 days until he was arrested by the police. In the normal course,

on the murder of his two sons, he should have been moving around

the scene and to have lodged the report against the real assailants or

in case real assailants were not known, he could have lodged the

report without naming any accused therein. PW-3 has made her

statement in a very natural way without trying to hide anything.

She has stated categorically that her husband suspected her

character from the beginning and had been quarreling on that

account . She also stated that about a week before he was drunk

and had also given a beating to her. She has given a vivid

description of the incident most naturally the way she was

awakened and was told by her husband to go to deliver the milk at

the dairy. She did go and on return as soon as she entered into the

house, she raised alarm, this part of statement is supported by PW-7

also, but for the fact that according to him on his arrival, he found

no one else at the scene of occurrence. It would be a matter of

minutes or a fraction thereof, if the accused had at once left the

place by the other door, the moment he heard the alarm of PW-3.

The PW-7 though a neighbour lives in different house and by the

time he reached, it is not unlikely that he may have missed the

appellant who had left the spot. Therefore, on the basis of the mere

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statement of PW-7 that on his arrival he found no one else it can not

be said that PW-3 told a lie while stating that her husband had

slipped away from the other door on hearing her cries. At the same

time, we also find no good reason to suspect that she would falsely

implicate her husband for the killing of their sons by some one else.

The real assailants of her own children would not be spared. It is

true, as pointed out by the learned counsel for the appellant that her

husband suspected her and there had been quarrel between them yet

the fact remains that they continued to live together. It is difficult

to accept that after loosing sons she would be prepared to loose her

husband too by falsely implicating him though she had been living

with him for last 15 years along with his parents in the same house.

As indicated earlier also at the risk of repetition we may again point

out the question which stares for an answer is as to why the

appellant himself, his father or brother would not lodge the report or

in any case if it was correct that he was being falsely fixed then too

they would prefer silence rather to come forward to save the life of

his son or the brother.

In the above background we find that the Trial Court and the

High Court have rightly placed implicit reliance upon the statement

of PW-3 despite the infirmities which crept in due to careless

investigation and contradiction regarding the place of lodging of the

report. PW-3 was quite categorical that after the report was scribed

she had put her thumb impression upon the same. According to I.O.

PW-9, it was forwarded to the police station for registration of the

case, which according to PW-3 was lodged at the police station

itself. The Trial Court and the High Court have already appreciated

the position and have rightly observed that it may be due to some

confusion or carelessness or under an impression that the reports are

lodged at police station. PW-3 had stated that she has lodged the

report at the police station, whereas it has been found that it was

written at Village Bhadresar at her place. Learned counsel for the

appellant relying upon the decision reported in 1994 (Suppl) 1 SCC

590, submitted that if the Investigating Officer reaches the spot

without recording the FIR first, the statement given by the

complainant is to be treated as under Section 162 Cr.P.C. and it

would not be safe to rely upon it and as it can not be treated as a

FIR. It is also submitted that the prosecution case also becomes

doubtful and unreliable. We feel that we have substantially dealt

with this aspect of the matter in the earlier part of the judgment even

what has submitted by the learned counsel for the appellant is

accepted, in our view, it will have no effect on the merit of the case

based on the unimpeachable evidence on the record supported by

the medical evidence and the independent circumstances of the case.

Statement of PW-3 Ashaben totally inspires confidence. It

also appears that she was not ill-disposed to her husband to the

extent that it could be inferred that she would be falsely implicating

him in such a crime. This fact would be apparent from the statement

of her father PW-4 who had stated that he knew that sometimes

quarrels took place between her daughter and the appellant but he

was never given any details about the same. Had she been ill-

disposed to him, she might have been making all sorts of complaints

to her parents but that does not appear to be so. The prosecution

story as per her statement rings true and stands established by cogent

evidence on the record and independent circumstances.

We may now turn to the question of sentence. In Bachan

Singh versus State of Punjab AIR 1980 SC 898 this Court said

that death sentence is to be awarded only in the rarest of rare cases.

In Manoharlal @ Munna and others versus State of NCT of

New Delhi AIR 2000 SC 420 death penalty was not awarded even

though four innocent children of the family of the witness were burnt

to death. It was however a case of rioting. In the case of Kishori

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versus State (NCT) Delhi AIR 2000 SC 562 also death sentence

was not awarded as it was a case of mob attack and frenzy. A

number of persons were killed. It was not considered to be the rarest

of rare cases. Apart from these cases a reference has also been

made to a decision reported in AIR 1999 SC 1332 Om Prakash

versus State of Haryana, where accused a member of para military

force had killed seven members of a family in a pre-planned manner

as he was labouring under the strain that the accused and the

members of his family were suffering agony at the hands of the

family of the victims. He had a feeling of injustice being meted out

to them. The Court considered it to be a mitigating circumstance

and not treated it to be rarest of rare cases. Similarly, in the case of

Krishan versus State of Haryana (2000) 10 SCC 451 punishment

of life imprisonment was awarded where the murder was committed

while the accused was already undergoing life imprisonment and

was on parole. It was observed that this fact alone would not be

sufficient to inflict the death penalty. Other facts and circumstances

would also have to be taken into account. In Machhi Singh and

others versus State of Haryana AIR 1983 SC 957 it has been

observed that extreme penalty of death need not be inflicted except

in gravest cases of extreme culpability. Circumstances of the

offender are also required to be taken into account while considering

the question of awarding the death penalty. Imprisonment for life is

the rule as punishment for murder and death sentence is an

exception. It has then been observed that a balance-sheet of

aggravating and mitigating circumstances has to be drawn up and a

balance has to be struck. The other facts which need to be

considered are magnitude of the crime, the anti-social nature of the

crime, personality of the victim, motive and the manner of

commission of the murder etc. In State of Madhya Pradesh

versus Shyam Sunder Trivedi 1994 (4) SCC 262 also it has been

observed that the Court must balance the mitigating and aggravating

circumstances of the case which would depend upon the particular

and peculiar circumstances of each case. On the other hand the

cases in which death sentence was awarded and taken note of by the

High Court are Kuljeet Singh alias Ranga versus Union of India

and another AIR 1981 SC 1572. In this case also two innocent

children were murdered. However, we find that they were

kidnapped first with oblique motive and were murdered. In

Asharafi Lal and Sons versus State of U.P. AIR 1987 SC 1721

the accused persons had killed their two innocent nieces to wreak

personal vengeance regarding property dispute with the mother of

the victims. In this case also death sentence was awarded by this

Court. A reference is also made to a case reported in (2000) 7

S.C.C. 455 Ramdeo Chauhan alias Rajnath Chauhand versus

State of Assam. It was observed that when a man becomes beast

and menace to the society, he could be deprived of his life according

to the procedure established by law. In Dhananjoy Chatterjee

alias Dhana versus State of West Bengal (1994) 2 S.C.C. 220 the

accused had killed his pregnant wife and three minor children for no

reason and without provocation. He had assaulted his mother also

who came to their rescue. The incident was described to be

shocking to the conscience of the society. Hence, death sentence

was awarded.

Every murder is a heinous crime. Apart from personal

implications, it is a crime against the society but in every case

of murder death penalty is not to be awarded. Under the present

legal position imprisonment for life is the normal rule for punishing

crime of murder and sentence of death, as held in different cases

referred to above, would be awarded only in the rarest of rare cases.

The number of factors are to be taken into account namely, the

motive of the crime, the manner of the assault, the impact of the

crime on the society as a whole, the personality of the accused,

circumstances and facts of the case as to whether the crime

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committed, has been committed for satisfying any kind of lust,

greed or in pursuance of anti-social activity or by way of organized

crime, drug-trafficking or the like. Chances of inflicting the society

with the similar criminal act that is to say vulnerability of the

members of the society at the hands of the accused in

future and ultimately as held in several cases mitigating and

aggravating circumstances of each case has to be considered

and a balance has to be struck. The learned State counsel has

already indicated the aggravating circumstances by reason of which

it has been vehemently urged that sentence of death deserves to be

confirmed.

Now considering the facts of the present case in the

background of our observations made in the preceding paragraph,

we take note of the fact that the appellant had been labouring under

the strain suspecting character of his wife. This fact is mentioned

by none else but by the complainant Ashaben herself in her report.

She also admitted in her statement in Court that quite often there

has been quarrel between the two on that count. Though denied, a

suggestion has been made to PW-3 Ashaben in her cross-

examination that the appellant had been telling her that their sons

were not born of him. It is true that there does not seem to be any

immediate cause before the commission of offence, yet the fact

remains that rightly or wrongly such a painful belief was being

entertained by the appellant since long which constantly engaged

his mind as admittedly there had been quarrels on that count

between the two. Obviously he would have been brooding under

that idea, which perhaps he could not contain any more. It is true

that two innocent children lost their lives for no fault of theirs. We

also notice that Dharia is a weapon, which is ordinarily to be found

in the house of any farmer or agriculturist in that area as stated by

PW-3. He seems to have used the weapon as lying in the house.

The offence was obviously not committed for lust of power or

otherwise or with a view to grab any property nor in pursuance of

any organized criminal or anti-social activity. Chances of repetition

of such criminal acts at his hands making the society further

vulnerable are also not apparent. He had no previous criminal

record.

For the above reasons in our view it cannot be said that the

case falls in the category of rarest of rare cases so as to make the

appellant liable for extreme penalty of death. The crime committed

is no doubt heinous and unpardonable. The act of the appellant is

condemnable. In our view however the normal sentence of life

imprisonment for the offence of murder would meet the ends of

justice.

In the result, while dismissing the appeal against his

conviction, we set aside the sentence of death as awarded by the

trial court and confirmed by the High Court and commute to that of

imprisonment for life. The appellant shall serve out the sentence of

imprisonment for life.

---------------------J.

(Doraiswamy Raju)

--------------------J

(Brijesh Kumar)J.

April 17, 2002

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