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Court No. 46.

1.Case:- Capital Cases No. 5003 of 2010

Petitioner: Saleem

Respondent: State of U.P.

Petitioner Counsel: R.K. Pandey, Pawan Kumar Shukla.

Respondent Counsel: Govt. Advocate.

2.Case: Capital Cases No. 5245 of 2010.

Petitioner: Sabnam.

Petitioner Counsel: A.G.A, Arshiyam Nasir, Braham

Singh, From Jail, S.I. Siddiqui, Tahira Kazmi.

Respondent Counsel: From Jail. A.G.A

AND

3.Capital Reference No. 8 of 2010.

Hon'ble Amar Saran, J

Hon'ble S.C. Agarwal, J

(Delivered by Hon'ble Amar Saran, J)

These two connected capital appeals arise from the

judgement of Sessions Judge dated 15.7.2010 convicting and

sentencing the two appellants Saleem and Shabnam to death

sentence under section 302/34 I.P.C.

An FIR was lodged by PW-1 Lateef Ullah who was a

neighbour of appellant Shabnam and the deceased at Police

Station Kotwali Hasanpur which was 4 ½ Km away from the

place of incident on 15.4.2008 at 3.05 a.m. The said report

was scribed by Sabir Ali. This FIR alleged that at 2.15 A.M in

the night of 14/15.4.2008, the informant had heard the cries

of Shabnam “Bachao-Bachao Maare-Maare”. He rushed to the

house of the deceased Shaukat and on climbed up the stairs of

the house he found Shabnam lying in an unconscious condition

and found the corpse of Shaukat in the verandah with his neck

Neutral Citation No. - 2013:AHC:63781-DB

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cut. In the eastern room, Rashid was lying dead on a cot. In

the South-Western room, Shaukat's son Anees and his

daughter-in-law Anjum were seen lying on the cot with fatal

injuries on their necks, and their ten month old child Arsh was

also lying dead on the same cot. In the north-eastern room,

Hashmi the wife of Master Shaukat and Master Shaukat 's

niece Rabia were also lying dead with injuries on their necks.

Blood was spread all over. On his alarm, the villagers gathered

and he proceeded to the police station for lodging the FIR.

After registering the FIR, PW-26 SI Babu Ram Sagar

started investigation of this case. After recording the

statements of the informant and the scribe, he reached village

Bawankhera, and found seven dead bodies at the house of the

deceased Shaukat. After conducting inquests, the copses were

sealed and sent for the post-mortem through PW 15 Constable

Virendra Singh. PW-24 Dr. Deewan Ram conducted the post-

mortem on the dead bodies of Shaukat, Arsh and Rashid at

District Hospital, Moradabad.

The deceased Shaukat Ali, whose post-mortem was conducted

on 15.4.2008 at 3.30 P.M had the following ante-mortem

injuries:

1.Multiple stab wound 9 x 5 cm on front of chin and left cheek

x bone deep.

2.Multiple two stab wound 6x5 cm x trachea cut x front of

neck.

Stomach contained about 350 ml food content. There was gas

in small intestine and large intestine. The cause of death was

shock and haemorrhage due to ante mortem injuries and the

viscera was preserved. Rigor mortis had passed from the neck

and it was present on the upper and lower parts of the body.

The time of death was about one day.

The post-mortem on the body of 10 month old Arsh was

carried out on 15.4.2008 at 4.00 P.M. Rigor mortis had passed

from the upper part of the body but it was present on the

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lower part. The following ante-mortem injuries were seen:

1.Multiple abrasion and contusions on both side of front of

neck.

The cause of death was Asphyxia as a result of ante-mortem

throttling. The viscera of the child was also preserved.

Post-mortem was conducted on the body of Rashid Ali aged

22 years on 15.4.2008 at 4.30 P.M.

Rigor mortis in the neck present, upper and lower limbs,

passed. The following ante-mortem injuries were found:

1.Incised wound 12 x 6 cm x Trachea cut in front of neck, both

carotid arteries cut.

Both lungs were congested. Both chamber of hearts were

empty. The small and large intestines contained gas. The

cause of death was shock and haemorrhage. The viscera was

preserved.

PW-27 Dr. R.P. Sharma conducted the postmortem on

the remaining four deceased persons at District Hospital. He

conducted the post-mortem on Smt. Hashmi at 3.40 P.M on

15.4.2008. She was aged about 50 years.

Rigor mortis was present on both upper and lower limbs.

Clotted blood was present. Decomposition had not started. The

time of death about half a day old. Ante-mortem injuries were

as under:

1.An oblique incised wound of size 4 cm x 2 cm x trachea

deep on the front of right side neck. Clotted blood present and

its direction from above downwards.

2.Stab wound 2.5 cm x 2 cm x bone deep on right side chest

from upper part 4 cm above right tip of shoulder tapering

from medial to lateral. Clotted blood present.

3.Transverse incised wound 7 cm x 5 cm x trachea cut just

above right side manubrial sterni, direction from medical to

lateral. Clotted blood present. Viscera was preserved.

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PW-27 Dr. R.P. Sharma also conducted autopsy on the

body of Km. Rabia aged 14 years on 15.4.2008 at 4.00 P.M.

Rigor mortis was present in both upper and lower limbs.

Decomposition was not present and clotted blood was present

from both nostrils. The following ante-mortem injuries were

seen:

1.Transverse incised wound of size 8 cm x 5 cm x trachea,

esophagus and blood vessels were cut. Wound direction from

right to left. Clotted blood present. Gall bladder, spleen and

both lungs were congested. Both chambers of heart were

empty. Stomach contained unidentified food material and

gases. Death was due to shock and haemorrhage as a result of

ante-mortem injuries. Viscera was preserved.

Dr. R.P. Sharma conducted post-mortem on the body of

Anees aged 35 years on 15.4.2008 at 4.30 P.M. Rigor mortis

was present in upper and lower limbs. Decomposition was not

present. Blood from both nostrils coming out. Following ante-

mortem injuries were found:

1.An oblique incised wound 1 cm x .5 cm x muscle deep on the

right side face just outside the right eye. Clotted blood

present. Wound's direction from above downward.

2.An oblique incised wound 3 cm x 0.8 cm cartilages cut on

upper part of right ear pinna. Clotted blood present. Wound is

directing from outer to inwards.

3.Transverse incised wound 8 cm x 5 cm trachea cut in front of

lower part neck 3 cm above Manubrium sterni esophagus,

blood vessels and nerves are cut. Clotted blood present.

Larynx was congested. On internal examination, membranes

of brain, both lungs, spleen and both kidneys were congested.

C 6 vertebra was cut. Death was due to Asphyxia as a result of

shock and haemorrhage as a result of ante-mortem injuries.

The viscera was preserved.

Dr. R.P. Sharma also conducted postmortem of Smt. Anjum

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aged 25 years on 15.4.2008 at 4.45 P.M. Time of death was

about half a day old and rigor mortis was present. No

decomposition was present. The following anti-mortem injuries

were found:

1.An oblique incised wound 3 x 2 cm trachea cut on the

front of neck, lower part on the right side . Clotted blood

present. Wound is directing from medial to lateral.

2. An oblique transverse incised wound 4.5 x 2 cm x trachea

cut on front of neck lower part 2 cm behind injury no. 1.

Wound is directing from medial to laterally. Clotted blood

present.

On external examination, both lungs were congested. Both

chamber of hearts were empty. Lever and kidneys were

congested. The viscera was preserved. The cause of death as

due to Asphyxia due to shock and haemorrhage due to ante-

mortem injury.

The viscera of all the seven deceased persons was sent to the

Forensic Laboratory at Agra. In the case of Shaukat Ali , Smt.

Hashmi, Anees Ahmad, Smt. Anjum, Rasid Ali and Km. Rabia,

diazepam tranquillizer poison was found in the organs of the

viscera. It was however, not found in the viscera of the 10

month old child Arsh. The empty wrapper of 10 tabs biopose

tablest was also sent in Forensic Science Laboratory but there

was no chemical poison seen in the said wrapper.

After the charge sheet was submitted by the IO PW-29

on 21.6.2008, the learned Sessions Judge framed the charges

on 22.8.2008 against the accused persons under sections 302

and 302/34 I.PC to the effect that in the night of 14/15.4.2008

at about 2.15 A.M, in prosecution of their common intention

after administering biopose tablets in their tea to the

deceased persons namely Shaukat Ali , Smt. Hashmi, Anees

Ahmad, Smt. Anjum, Rasid Ali and Km. Rabia other than

deceased Arsh by, they were murdered by causing injuries on

their necks with an axe and baby Arsh was done to death by

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throttling.

The prosecution has examined 29 witnesses in this case.

PW-1, informant Lateef Ullah who was the neighbour of

the deceased Master Shaukat and the appellant Shabnam

lodged the report containing the allegations as mentioned

above. He supported his FIR (Ext. Ka-1) in his examination in

court. He further clarified in his testimony that Shabnam was

lying on the ground in an unconscious condition. By her side,

in the Verandah, her father's corpse was lying with his neck

cut. He further mentioned that one empty unused bedding was

lying near the corpses of Rabia and Hashmi in the room where

they were sleeping. He identified all the deceased persons and

stated that apart from Arsh, the neck of the other six deceased

persons had been cut, as a result of which, blood had spread

all over in the room. It was also clarified that the necks of

none of the deceased was severed from their bodies. He

further mentioned that as his access to the house from the

main door was blocked, as it was shut, he entered the house

from another place, where there was no wall. When he tried to

shake Shabnam on reaching her, she did not respond. He

further stated that as he did not know the names of the

assailants, he did not mention the same in the report. After

Hashmat gave some water to Shabnam, she became

conscious and as she kept on crying, he could not speak to

her.

PW-2 Husain who lived in front of the house of the

deceased stated that he was a regular visitor to the house of

Master Shaukat. He was a retired teacher. At about 2.00 A.M

in the night, he had heard the cries of Shabnam, whereupon

he had rushed to the house. Shabnam was crying from the

stairs and on great persuasion, she opened the door of the

stair way. On all the beddings, Gaddas sheets, and pillow

cases there was blood. There was also blood on Rabia and

Shaukat and his wife Smt. Hashmi. He remained at the house

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till arrival of the police and was present at the time of inquests

and post-mortem. He further disclosed that there was a love

affair between Shabnam and Saleem. He had seen them going

together on a motorcycle. On the night of the incident at about

1.00 A.M, he had seen Saleem going in the Southern direction

when he stopped to urinate. The claim of Shabnam that she

was sleeping alone on the roof appeared to be false when the

others were sleeping inside, hence when he had gone on the

roof, he found that there was no cloth or bedding etc. lying

there but that Shabnam had closed her eyes and was lying on

the floor. He further stated that on 16.4.2008, when his

statement was recorded by the police, he disclosed his version

and he further disclosed to the police that Master Shaukat was

annoyed with Shabnam on account of her love affair.

PW-3 Lal Mohammad, resident of village Rajhaiti, P.S.

Bahadurgarh, district Ghaziabad was the father of deceased

Anjum, who had married deceased Anees son of Shaukat two

and a half years earlier and they had given birth to Arsh. He

received information of this incident on the mobile of

Shabnam's mama Abdul Rahman on 15.4.2008 at 6.00 A.M.

When he arrived at the spot, he saw seven dead bodies lying

there and when he enquired from the appellant Shabnam, she

disclosed that in the night she was feeling hot and hence she

had gone to the terrace to sleep but when it started raining at

about 2.00 A.M she came down and then she saw all the

bodies lying there and hence she had raised an alarm. She

also stated that some miscreants had caused the incident. The

inquest was conducted in his presence but he was distressed

owing to the murder of his daughter. He further mentioned

that Anjum had earlier disclosed to him that the conduct of

Shabnam was not good. She was insisting on marrying

Saleem, making the atmosphere of the house very

uncongenial. His daughter had also told him that Shabnam's

father had even beaten her and had snatched away her

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mobile, but she did not know how Shabnam had got another

mobile. PW-3 also stated that on 18.4.2008, the I.O had taken

him on his vehicle on which the accused Saleem was also

sitting. They parked the vehicle at some distance from

Saleem's house. They then reached Saleem's house from

where Saleem took out a checked gray coloured shirt which

had blood stains on it and which was lying behind a wheat

coloured tin trunk. He also gave a mobile which was sealed

and the recovery memo was prepared on which he signed.

PW-3 also disclosed that on 19.4.2008, the I.O recovered the

Salwar- Kameez, mobile, a SIM, an empty wrapper of ten

tablets. The Salwar-Kameez had spots of blood. He further

disclosed that Saleem had entered in a pond and taken out an

axe whose handle was broken. Mud and blood stains were

visible on the axe. It was exhibited, on which he appended his

signature.

PW-4 Mahendra Singh had stated that he was Block

Pramukh of Hasanpur. On 16.4.2008 at 7.15 A.M, Saleem had

come to his house in Hasanpur and began to make excuses

and confessed to his guilt stating that he was in love with

Shabnam and that he along with Shabnam had committed the

murders. Saleem further stated that he had given intoxicating

(Nashe ki golis) tablets to Shabnam, who had administered

the same to her family members, making them unconscious.

Thereafter Shabnam had caught each of the deceased by their

hair, whilst Saleem cut their necks with the axe. According to

Saleem, Shabnam throttled the 10 month child Arsh herself.

He claimed to have thrown the axe in the Pond and clothes in

the jungle. PW-4 disclosed this fact to the I.O on 17.4.2008.

PW-5 Nischal Tyagi deposed that he was an-Incharge

Teacher in the primary School Bawankheri. Km. Noor Fatima

and Km. Shabnam were working as Shiksha Mitras with him in

the school. Shabnam had told him on a number of occasions

that she would marry Saleem and Saleem used to come to

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visit her at the school. Shabnam used to travel on his

motorcycle. She did not deposit her wages at her home and

had collected Rs. 16,000/ which as per information furnished

to him by Shabnam, she had given to Saleem. Shabnam had

two mobiles bearing numbers 9917812717 and 9917838184.

She further told him that her mobile had been snatched by her

family members.

PW-6 Belal Ahmad who is the other witness of extra-

judicial confession stated that on 16.4.2008 at about 1.00 P.M

the accused Saleem had come to his hotel and had told him

that he had fallen in love with one co-villager Shabnam. As the

family members of Shabnam were educated and belonged to

another caste and Saleem was poor hence they were not

agreeable to marry Shabnam with Saleem. Saleem also

disclosed to this witness that he given ten sleeping tablets to

Shabnam who mixed it with the tea meant for the deceased,

and when they became unconscious after partaking of the

same, she called him, whereupon Saleem reached there along

with an axe. Thereafter he cut the necks of the six deceased

and Shabnam throttled the deceased Arsh herself. He threw

the axe in the pond whilst running to the jungle.

PW-7 Sukkhan Ali disclosed that in the night of incident

i.e. 14/15.4.2008, he had gone from his village to Taharpur.

When he was returning to his village, he saw Saleem in the

jungle, and when he questioned him about what he was doing

there, Saleem had become nervous.

PW-8 Rais Ahmad claims to recognise Saleem very well

from before. On 14.4.2008 at about 10.00 A.M, he saw Saleem

asking for some intoxicating/sleeping tablets from Dr. Mobeen

at S.K. Nisha Medical Store but the doctor refused to give him

the said medicines. Then Saleem asked Pappu, a fruit seller

from where he could get the tablets. Pappu disclosed that it

could be brought from Moradabad. Then Saleem gave him Rs.

25/- and the keys to his motorcycle. After one and a half

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hours, Pappu returned with ten calmpose tablets which he

handed over to Saleem.

PW-9 Fareed alias Boby disclosed that during the period

of incident, he used to deal in Mobiles. Saleem who had an

earlier mobile, had sought a fresh mobile connection from him.

Saleem had shown his Driving Licence as his identity proof and

this witness had given a new SIM to Saleem. He had filed the

photo copy of the Driving Licence (DL) and the application

form in the Court ( Ext. Ka-2 to Ext. Ka-3). The photograph

and DL of Saleem were present on the application form.

PW-10 Sajil Ali had disclosed in his evidence that he

used to sell SIMs. He had sold a SIM bearing number

9917812718 to Saleem who had filled his identity card with

the application. Photo copies of these papers are Ext. ka-4 and

Ka-5.

PW-11 Mobeen Husain had disclosed that he had a

Hakeem shop at Hashimpur Chauraha, where he used to sell

juice and Chatni. Earlier, Noor Mohammad was running S.K.

Nisha Medical Store in the said shop which he had taken on

hire from Noor Mohammad in December 2007 and which he

transferred to his father-in-law. The appellant Saleem who was

running a Saw Mill and a brick-kiln nearby used to visit him.

Ten days before the incident, Saleem had come to him and

told him that he was suffering from great tension and he was

in need of sleeping pills but he had refused to give them to

Saleem. The latter had met him in the morning on 14.4.2008

at 10.00 A.M, at that time Pappu Thelawala who was present

nearby overheard their conversation that Saleem was in need

of medicines. Then Pappu agreed to get them for Saleem from

Moradabad for which the appellant Saleem had given him Rs.

25/- and his motorcycle. Pappu returned after 1 ½ hours and

gave Saleem 10 biopose tablets . As it appeared in the news

paper on 24.4.2008 that the tablets had been purchased from

S.K. Nisha Medical Store, he shut the shop and had run away

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from the place. Pappu had also left the place. When the police

came to his residence two months later searching for Pappu

then he disclosed the aforesaid facts to the police.

PW-12 Dr. Vandana disclosed that she was a Law Officer

at the Forensic Laboratory, Moradabad unit. She disclosed that

she had visited the spot with her team on 19.4.2008 and

prepared the inspection report ( Ext. Ka-6).

PW-13 Constable 406 CP Manveer Singh of Forensic

Laboratory, Moradabad Unit deposed that he had gone to the

place of incident with the Dog Squad. Six corpses, whose

necks were cut and the corpse of a little child Arsh who had

been strangulated were lying there. They inspected the spot

but found no finger prints there nor did the field unit find any

weapon of attack at the spot. There was no facility of climbing

up the wall. It appeared to him that the deaths had been

caused by the same person with the same weapon. There

appears to be no resistance at the time of murder and that it

appears that some intoxicating substance had been given to

the deceased persons in order to facilitate the crime. Nothing

was disturbed in the house. No Almirah or Box were broken,

hence it did not appear that any miscreants had come for the

purpose of loot. There was only one door for reaching the

second floor of the house. This was a strong steel door which

could be closed from the inside. On questioning Shabnam

when they had gone to sleep as to whether the door had been

locked from the inside, Shabnam replied that the door was

locked from the inside. When Shaukat's house was inspected

from all sides, then no signs of any attempt of scaling the wall

were seen.

PW-14 Noor Mohammad disclosed that he has a shop by

the name of S.K. Nisha Medical Store at Deegarpur Road

Hasampur Chauraha in 2005. In 2007, he had given the shop

on rent to one Mobeen.

PW-15 Constable 295 Virendra Singh of P.S. Hasanpur

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deposed that after the inquests, he along with Constable

Teekam Singh took the four corpses of Rabia, Shaukat,

Hashmi and Arsh for the post-mortem.

PW-16 SI, Ganesh Dutt Joshi deposed that on receiving

orders, he tried to search out the accused and in this

connection, they interrogated Saleem who got a mobile and

Gray colour Shirt recovered from a tin trunk. The mobile

number was 9917812718. He had noted the IMEI number and

prepared the recovery memo ( Ext. Ka-9). The mobile along

with his SIM Card were marked as material Ext. -1. The sealed

bundle was marked as Ext. 2.

According to SI Ganesh Dutt Joshi, the accused

Shabnam was arrested on 19.4.2008 and she got her Salwar

suit and mobile with Nokia paper and SIM recovered. She also

got recovered an empty wrapper of Bipose tablets (Ex. Ka-10).

According to this witness, on 19.4.2008, Saleem got an axe

recovered from the pond which was Exhibited as Ext. Ka-7 to

Ext. Ka-11.

PW-17 Sayeed Ahmad disclosed that he possessed no

SIM Card but someone had got a fake SIM card made in his

name. Paper No. 5/29 and 5/30 did not contain any

photograph of this witness.

PW-18 Pankaj Sharma, Assistant Nodal Officer, Idea

Cellular Ltd, gave out call details as sought by the police

person and verified the same (Ext. Ka-12) which contained

seal of the company and Tower number. The details given by

him were mentioned in paper nos. 178 to 261. When he

prepared the call details, the computer was in a fit condition.

PW-19 SI Madan Pal Singh stated that he prepared the

inquest papers and got the signatures and opinions of the

witnesses scribed therein. He sealed the clothes of the

deceased persons and sent them for post-mortem through

Constable Virendra Singh and Constable Preetam Singh. He

had filled the inquest detailed in the inquest of Smt. Hashmi

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and prepared the relevant papers viz form 33, photo lash,

challan lash, Seal mohar, letter for CMO, letter for RI, Nakal

Chik and Nakal G.D, under his signature (Exts. Ka-13 to Ka-

20). He also prepared inquest and other relevant papers

relating to deceased Arsh (Ext. ka-20 to Ext. Ka-30).

PW-20 Chandra Prakash Sharma, the photographer had

deposed that he took 10 photographs of all the seven corpses

which were present on record. The negatives numbering 13

were also present (which are marked as material exhibits 8 to

17) and the photographs have been exhibited as material

exhibit 8 to 27.

PW-21 SI Dinesh Kumar Singh stated that he collected

one and a half litres of milk which were lying in a steel bucket

on the spot. This was marked as Exhibit Ka-32. He prepared

the inquest note and relevant papers regarding the death of

Rasid Ali (Ext. Ka 33 to Ext. ka-41) and also relating to

deceased Anees ( Exts. ka-42 to Ext. ka-50). He sent the

viscera of all the deceased to Forensic Laboratory, Agra. He

further deposed that Shabnam and Saleem used to talk by

using a fake ID on mobile No. 9837873493 and 9837873503.

PW-22 SI Sanjay Kumar has deposed that he had

conducted the inquest on the dead body of Smt. Anjum and

prepared other relevant papers at Exts. ka-51 to ka-59. The

axe which was recovered at the instance of accused Saleem

from a pond on 19.4.2008 and was marked as Ext. Ka- 11 also

bears the signature of this witness.

PW-23 Karanveer Singh deposed in his evidence that he

prepared the inquest of Shaukat Ali and Km. Rabia, which

have been exhibited as Exts. Ka- 60 to 77.

PW- 24 Dr. Deewan Ram, Medical Officer, Moradabad,

who has conducted the post-mortem as mentioned above of

the dead bodies of deceased Shaukat, Arsh and Rashid, the

reports of which are Exts. Ka 78 to 80 respectively.

PW-25 Dr. Jagmal Singh conducted the ultrasound of

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appellant Shabnam and certified that Shabnam was pregnant

of about 7 weeks and prepared the report ( Ext. Ka-81).

PW-26 Babu Ram Sagar, S.O. P.S. Hasanpur got the

inquest conducted and also collected the blood stained pillow

near the corpse of Anees Ahmad. He dictated the recovery

memo to SI Madan Pal Singh on which he signed ( Ext. ka 82).

From near Rashid's corpse, he took a piece of blood stained

Gadda (Ext. Ka- 83). From near Smt. Hashmi's corpse, he took

a piece of Razai ( Ext. ka-84) and from Shaukat's corps, he

also cut out a piece of rope and Razai from Shaukat Ali's cot

(Ext. Ka 85). He took a piece of blood stained mattress and

Razai from near Anjum corpse ( Ext. ka 86), from near Km.

Rabia he collected a blood stained piece of Gadda ( Ext. ka

87). The milk-can ( Ext. ka 88) and piece of Gadda were found

near Anees's corpse. He also made a spot inspection and

prepared the site plan (Ext. Ka 89).

PW-27 Dr. R.P. Sharma conducted the post-mortems as

mentioned above on the corpses of Smt. Hashmi ( Ext. ka-

90), Rabia ( Ext. ka- 91), Anees Ahmad ( Ext. Ka-92), Smt.

Anjum( Ext. Ka-93). PW-27 was also shown the axe and he

stated that the injuries received by the aforesaid deceased

could have been caused by the said axe.

PW-28 Constable Shailendra Kumar was posted as Head

Constable at P.S. Hasanpur on 15.4.2008. On the basis of a

written report, he registered a case at crime No. 880 of 2008

under section 302 against unknown persons and prepared the

chik and G.D. Entry at 3.05 A.M. The chik FIR was marked as

Ext. ka- 94 and the carbon copy of G.D. Entry, was marked

Ext. ka 95.

PW-29 Incharge SI R.P. Gupta, P.S. Hasanpur assumed

the investigation of this case under the order of S.P.

Moradabad on 16.4.2008. He also investigated the case at

crime No. 880 of 2008 under Section 302 IPC. He prepared

C.D. no. 11 in which he entered the inquest reports of all the

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deceased Shaukat Ali, Hashmi, Rabia, Rashid, Anees, Smt.

Anjum and Arsh. After that he recorded the statements of Km.

Shabnam, Lal Mohammad, Hashmat, Sukkhan Ali, Shahnawaj,

Mahendra Singh, Nischal Tyagi and Bilal Ahmad and he also

arrested the appellant Saleem and made an entry in the G.D.

On the pointing out of Saleem, he recovered Nokia Phone No.

2300 bearing SIM No. 9917812718 from his house and also

one blood stained shirt (Ex.Ka-9). He arrested the accused

Shabnam from her house on 19.4.2008 ( vide Ext. 96-97). On

Shabnam's pointing out, from the room in the basement, he

recovered a Nokia mobile and an empty wrapper of 10 biopose

tablets, one SIM which was wrapped in a paper, one blood

stained Salwar suit (ext. ka-10). The wrapper of tablets was

marked as Ext. Ka-37, which was sent to Forensic Laboratory

at Agra whose report is on the record, bearing paper No.

5/177.

On 22.4.2008, he prepared C.D. Paper no. 7A, in which

he mentioned that SIM No. 9837873493 and 9837873503

were purchased from Muskan Telecom on fake IDs. Against

accused Irfan and Mohd. Nawaj, a case under section 420 IPC

was earlier got registered and their statements were recorded

on paper no. 8 on the same day. In paper no. 9, a site plan

and recovery of an axe was entered ( Ext. Ka- 98). On the

same day, the memos of the mobile recovered from the

appellant Saleem, SIM and blood stained shirt were also

prepared by this witness (Ex. Ka 99). The site plan and

recovery of mobile phone, SIM, clothes and wrapper of tablets

was also prepared ( Ex. Ka 100). On 25.4.2008, the case

property viz. clothes, crime weapon, blood stained clothes of

Saleem and Shabnam, wrapper of intoxicating tablets were

sent through constable Rakesh Kumar to the Forensic

Laboratory. On 28.4.2008, he recorded the statement of Dr.

R.P.Sharma and on 30.4.2008 this witness recorded the

statements of S.K. Tyagi, SO, Aman Dehat, Ganesh Dutt Joshi,

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S.O.G. Incharge , J. P. Nagar, Constable Vikal Kumar, Const.

ChandraPal Singh, Constable Mohd. Arif, Constable Rajendra

Singh and Constable Yogendra Singh. Thereafter he recorded

the statements of the remaining constables. On 11.5.2008 he

received the report of the Forensic Laboratory, Agra. On

13.5.2008, he sent the blood stained shirt of Saleem to the

Forensic Laboratory. On 29.5.2008, he received the viscera

reports which were recorded in the case diary. On 30.5.2008,

he recorded the statement of Dr. Deewan Ram. On 5.6.2008,

he recorded the statement of Pankaj Sharma, Nodal Officer,

Idea Company and received C.D.R and I.D from Pankaj

Sharma (Ext. ka 12). On 7.6.2008, he received the Forensic

report. After that he recorded the statements of Constable

Manveer Singh, HC Rakesh Singh, Constable Mahesh, HCP

Nahar Singh, Dr. Smt. Vandana Dubey, Forensic Officer,

Mobeen alias Pappu and Rais Ahmad. On 20.6.20-08, he

recorded the statement of Constable Rakesh Singh, Constable

Dinesh Kumar, Pargana Magistrate M.M. Khan. On 21.6.2008,

he submitted the charge sheet (Ext. Ka 101).

We have heard Shri Saiful Islam Siddiqui and Mrs. Tahira

Kazmi for the appellant-Shabnam and Shri R.P. Pandey and

Shri Pawan Kumar Shukla for the appellant-Saleem and

learned Government Advocate assisted by Shri Anand Tiwari,

learned Additional Government Advocate.

Learned counsel for the parties have also filed some case

laws.

Shri Anand Tiwari, learned Additional Government

Advocate has also filed written arguments. After additional

hearing S.I. Siddiqui and Tahira Kazmi have also filed written

arguments on behalf of appellant Shabnam. However no

written arguments have been filed by learned counsel for

appellant Saleem.

Arguments for appellant Shabnam

17

It is argued by the learned counsel for the appellants

that the incident has been committed by some unknown

persons. The FIR does not mention the names of any accused

persons. When the informant Latifullah arrived and entered the

house of the appellant-Shabnam on his own at 2.15 a.m., he

found her lying in an unconscious condition. The appellant-

Shabnam was sleeping on the terrace and when she came

down subsequently she saw that seven of her family members

had been murdered and after raising a cry she became

unconscious. No blood was seen on her clothes, which

negatives her participation in the crime. There was no

evidence of administration of tranquilizer by the appellant-

Shabnam. The motive suggested by the prosecution that the

deceased Master Shaukat and other family members used to

object to the liaison between Shabnam and Saleem, provides

an inadequate motive for committing the murders. The

appellant Shabnam being an educated lady could have taken

legal advice regarding her proposed marriage to Saleem, being

an earning person she would not have acted in this manner

which would have jeopardized her future. She also had the

option of leaving her home with Saleem.

The field unit which reached the house of the deceased and

appellant Shabnam did not find any finger or foot prints or

blood stains or any other marks anywhere in the house.

The trial court has wrongly treated the 313 Cr.P.C statement

of the appellant as a confession of guilt, which was factually

and legally incorrect.

In the alternative the learned counsel contended that award of

death sentence in this case was unwarranted, as it was not the

rarest of rare case, and the lesser option of imprisonment for

life was not unquestionably foreclosed in the light of the law

laid down in Bachan Singh's case, (1980) 2 SCC 684. Before

imposing the death penalty the earlier circumstances of the

threat to the appellant's life because of her liaison with Saleem

18

which may have prompted her to adopt this extreme measure

ought to have been taken into account. Another reason for

commuting the death sentence awarded to the appellant with

a sentence of imprisonment for life, was that the appellant

Shabnam had given birth to a child in jail, Taj Mohammad,

who would be orphaned if the appellants were executed.

Arguments for Appellant Saleem

Learned counsel for the appellant-Saleem further argued that

in this case there was no direct evidence, but only

circumstantial evidence, and the chain of circumstances for

establishing the complicity of the appellant in this incident was

not complete. PW 2 Hashmat did not disclose to the

investigating officer in his statement under section 161 Cr.P.C.

that he had seen Saleem at 1.00 a.m. in the village on the

date in question. PW 6, Bilal Ahmad and Bhure, who are said

to be the so-called independent witnesses of the recoveries

were in fact the pocket witnesses of the police. Much reliance

could not be placed on the alleged extra-judicial confession

made by Saleem to PW 4 Mahendra Singh and PW 6 Bilal

Ahmad. In any case an extra-judicial confession is regarded as

a weak kind of evidence. Only the co-appellant Shabnam had

committed the crime because of her dispute with her family,

and the appellant had nothing to do with the offence.

Submissions on behalf of the State

Learned Government Advocate on the other hand argued

that there was a clear motive for the appellants for committing

this crime as the appellant-Shabnam was in love with Saleem,

who belonged to another caste group and was comparatively

poor, and the deceased Master Shaukat used to object to the

liaison. Shabnam had a six weeks pregnancy at the time of

incident and she admitted in her 313 Cr.P.C. statement that

the said child (Taj Mohammad), who was born later had been

fathered by Saleem. The appellant-Saleem purchased the

19

tranquilizer and gave it to Shabnam, who administered it to six

of the deceased other than Arsh, the ten months old child and

in pursuance of that conspiracy the six grown up deceased

persons other than Arsh were given axe blows on their necks

and done to death and Arsh was murdered by throttling. At the

time of incident, the residential house of Shabnam, who used

to live with the other deceased was closed from inside and

there was no other way to reach the first floor where the

incident occurred. According to PW 1 and PW 2, Shabnam

herself had opened the door. At the time of spot inspection by

the forensic team, Shabnam stated that the main door of the

house was closed from inside when the entire family went to

sleep. No other sign of ingress in the house by any other

means was found, as per the evidence of P.W. 13 Manveer

Singh, the Forensic Expert. Under section 106 of the Evidence

Act, a heavy burden lay on Shabnam to explain as to how the

deceased persons had died in her house and she has failed to

discharge this burden. Furthermore, in her statement under

section 313 Cr.P.C., she admits her presence by taking the

stance that the co-accused Saleem had committed the murder

and she herself has seen Saleem having a Chhoori in his hand

at the place of occurrence.

Learned Government Advocate further submitted that

administration of the tranquilizer diazepam to six persons of

the house was only possible with the help of an inmate. The

viscera report of six of the seven deceased persons other than

the minor child Arsh, showed the presence of a tranquilizer in

the visceras, which no outsiders would have been able to

administer.

On the pointing out of Shabnam, her Salwar and Kurta

were recovered (item Nos. 43 and 44), which were found to be

bloodstained in the report of the forensic expert. This shows

that she was very near to the deceased when the incident took

place. Furthermore, after the incident she has changed the

20

clothes and concealed the bloodstained clothes, which were

recovered later on her pointing out after her arrest. This was

another circumstance against her. She did not deny the

recovery of bloodstained clothes, wrapper of biopose tables

and mobile phone. When a specific question was put to her

under section 313 Cr.P.C., that her claim that she was sleeping

on the roof alone is improbable and unreliable as she had

earlier stated that she never used to sleep alone and she used

to sleep along with her mother or father. It was also not

explained why on that date, she chose to sleep alone. The call

details showing the repeated calls on the date of incident

between the mobile phone of Shabnam (number 9837873493)

to Saleem 9917812718 show the frequent calls on the date of

incident. They talked on the said mobile numbers since

7.30.52 to 1.9.41 and there was a gap of 31 minutes. This was

the time when the co-accused Saleem would have been in the

house of Shabnam and had not talked on the telephone.

Thereafter they made conversations on the aforesaid mobile

numbers from 1.40.19 to 2.9.35. Thereafter Shabnam chose

to raise a hue and cry to attract the persons of the locality by

saying that “ Bachao Bachao Mar Dala Mar Dala” after the safe

departure of the appellant-Saleem. There was no evidence of

any loot or dacoity in the house and there was no occasion for

any other person for committing the said offence and if any

other person for any other motive has committed the offence,

then Shabnam would not have been left unharmed and she

would also have been assaulted.

So far as the appellant Saleem is concerned, learned

Government Advocate contended that motive was established

against both Saleem and Shabnam on account of their love

affair and inability of Saleem to marry Shabnam because

Saleem was very poor and the liasion was opposed by the

family members. The extra-judicial confession by Saleem to

PW 4, Mahendra Singh and PW 6, Bilal Ahmad is reliable and

21

finds corroboration from the other circumstances of the case.

There was last seen evidence of Sukhan Ali as he had seen the

accused between Bavankhedi and Tehpur on the date of

incident after mid-night and the accused Saleem himself

admitted his presence in the house of the co-accused

Shabnam in the night of incident in his written statement

under section 313 Cr.P.C.

On the pointing out of accused-Saleem the recovery of

bloodstained shirt and bloodstained axe, which was confirmed

to have human blood on them as per the report of the forensic

expert, is also a very important circumstance against this

accused, which is unexplained by the appellant-Saleem. The

call details, which have been mentioned in the case of

Shabnam also apply in the case of Saleem.

The evidence of PW 8 Raes Ahmad and PW 11 Mobin

Husain with regard to the talk between accused-Saleem and

Mobin Husain in respect of sleeping pills is the another piece of

evidence for showing that accused-Saleem procured sleeping

pills through one Pappu, who brought the sleeping pills after

he got Rs. 25/- and motorcycle from Saleem. In his written

statement under section 313 Cr.P.C. each and every aspect of

the matter has been admitted by the accused-Saleem, but he

stated that the murder has been committed by accused-

Shabnam.

Analysis of the evidence and findings

So far as the analysis of the motive is concerned,

learned counsel for the appellants argued that in case

Shabnam wanted to marry Saleem and her family members

were objecting to the liaison , there was no reason for them to

have murdered all the family members as they could have

simply gone away.

This is also an undeniable fact that Shabnam at the time

of incident, was carrying a six weeks' fetus of Saleem, whom

22

she allowed to take birth. In her 313 Cr.P.C. statement, she

clearly stated that Saleem was the father of the said infant.

In our view it is the idiosyncratic reaction of an accused

when faced with such a situation when there had been a major

confrontation in the house of Shabnam regarding the

relationship of the two appellants as has been mentioned by

PW 2, Hashmat, PW 5 Nischal Tyagi and PW 7 Sukhan Ali, who

even stated that Shaukat had beaten accused-Shabnam

because of her relations with accused-Saleem, who was of

another caste and of poorer economic status and who had

snatched away her mobile. It is possible that in such

circumstances, one couple may decide to leave their house

and to go elsewhere to get married and another couple may

decide to murder the inconvenient persons going to the extent

of eliminating every single member including the ten months

infant so that no co-sharer remains for inheriting the property

of the deceased.

The issue of motive can never be conclusive for

establishing as to whether a particular accused has committed

the crime, but the other circumstances have to be examined

for reaching a conclusion as to whether the accused persons

have committed the crime.

An important circumstance that has been relied on in

this case for connecting the two appellants with the crime are

the recoveries of bloodstained clothes from the two accused-

appellants and the bloodstained axe from the appellant-

Saleem. The appellant Saleem after he was arrested on

18.4.2008 at about 5.30 PM by the investigating officer Shri

R.P. Gupta was taken to the police station Hasanpur at 6.05

PM as has been mentioned in GD No. 27. He was interrogated

as is mentioned in GD No. 28 at 6.30 PM. On his disclosure, a

mobile phone Nokia 2300, SIM No. 9917812718 and a

bloodstained white and gray shirt were got recovered from his

house from behind a tin trunk, whose recovery memo (Ext. Ka

23

9) were made. The said recoveries were also corroborated by

P.W. 29, S.H.O Shri R.P. Gupta, , PW 16, Shri Ganesh Dutt

Joshi and public witness Lal Mohammad, PW 3. As per the

report of the Forensic Laboratory, Agra dated 13.5.2008 (Ext.

Ka 102), big bloodstains were seen on a large part of the shirt

which was recovered from the accused-Saleem. The biggest

bloodstain being 3 cm in length. The shirt contained human

blood, although the blood group could not be determined.

On the pointing out of Saleem, an axe with a broken

handle was got recovered on 19.2.2008 by S.H.O. Shri R.P.

Gupta, PW 29, PW 16, Ganesh Dutt Joshi and other police

personnel and witness Lal Mohammad, PW 3 and Bhure from a

pond about 200 yards from the road. On close examination,

the said axe was found to contain small spots of blood and it

was also covered with wet mud. According to the report of

Forensic Laboratory, Agra dated 5.5.2008 at item No. 45 the

said axe contained a big spot of blood. Also the blood on the

axe was of human origin. In response to question No. 44 in his

examination under section 313 Cr.P.C, which inter alia

mentions about the recoveries of the Nokia phone and

bloodstained shirt, the accused offered no explanation. Again

in response to question No. 30, as to how the appellant-

Saleem got recovered the axe from the pond on 19.4.2008 in

the presence of police party and witness, the appellant-Saleem

stated nothing in his initial statement under section 313

Cr.P.C.

However, in his written statement, which he handed over

on 17.6.2010, he stated that Shabnam had called him after

committing the seven murders and then Shabnam gave him a

knife and clothes wrapped in a polythene and asked him to

throw them at some distant place. The knife was about 10-12

inches long and it had bloodstains. He put the clothes of

Shabnam and knife on a truck loaded with timber, which was

standing there. So far as the recovery of axe is concerned, he

24

stated that he himself came to the police station on 18.4.2008

at about 10-11 AM to one constable Vijay Pal, but was

detained by the S.H.O, who beat and tortured him and forced

him to confess. After than the police picked up the axe whose

handle was broken from the police station and took him in the

night on a car to a pond in the village, and there the police

threw the axe in the water. After few minutes the police

personnel with some divers reached there. He was asked to

tell the divers about the location of the axe, so he pointed out

the direction, and after 6-7 minutes, the divers took out the

axe. Then the SHO asked the divers to again place the axe in

the same place. On the next morning on 19.4.2008, he was

taken to the pond at 8-9 AM, then he was forced to point out

to the police where the axe was thrown and the axe was got

recovered by the divers. This version of the accused does not

commend itself to us. Clearly, as the said axe had human

blood and which has been corroborated in the report of the

Forensic Expert, it is wholly improbable that the police would

be in a position to obtain such a bloodstained axe and they

would engage in the complicated operation as described by the

appellant-Saleem only for the purpose of falsely implicating

him in this case.

Significantly, in his written statement, Saleem does not

mention that the axe, which has been given to him by the

police had no bloodstains on it. Also, if the said axe was

planted by the police, the police would never risk throwing the

axe in the water not once, but twice because in such

circumstances the blood stains may vanish or disappear.

The appellant Saleem appears to have developed the

theory of use of knife by the co-accused Shabnam for

committing the crime only because two doctors PW 24, Dr.

Deewan Ram and PW 27, Dr. R.P. Sharma have found some

stab wounds on the six dead bodies of Master Shaukat,

Rashid, Smt. Hashmi, Anees, Smt. Anjum and Rabia. However

25

the recovered axe was shown to the two doctors, who have

clearly stated that the said axe could have caused the stabbed

wounds if its edge had struck the deceased persons.

The theory of the accused that he had put the weapon of

assault and the bloodstained clothes of Shabnam on a truck,

which was standing there is also belied by the fact that

Shabnam got her bloodstained clothes recovered from the

storeroom under her house on 19.4.2008. No doubt the

bloodstains were dim as by that time, 4 days after the incident

the appellant could have been expected to have washed off

the bloodstains.

Another problem with the theory of Saleem that

Shabnam had handed over the bloodstained knife and her

clothes in a cellophane sheet to him when he was standing

downstairs and she was also standing downstairs when the

deceased had already been murdered on the upper floor. As

per this theory, there was no question of any blood stains

being found on his shirt, which have actually been found as

per the report of the Forensic Laboratory and he has given no

explanation as to how his shirt, which was got recovered from

his house from behind the tin trunk contained human blood.

Even otherwise, it is highly improbable that Shabnam

could have single handedly cut the necks of six deceased

persons with the axe and also throttled the little child Arsh

with her bare hands, without the assistance of appellant-

Saleem, who appears to be hands in gloves with Shabnam at

every stage of the crime.

So far as Shabnam is concerned, when she was arrested

by the S.H.O. R.P. Gupta, PW 29 and SI G.D. Joshi, PW 16 and

other police personnel on 19.4.2008 at 4.45 a.m., from her

house, on interrogation, she is said to have confessed to her

guilt and to have agreed to get the intoxicant bio-pose,

mobile, SIM and clothes which she was wearing at the time of

the incident recovered. Even though the said confession may

26

not be admissible in evidence, but the discovery of the empty

10 tablet wrapper of bio-pose, the bloodstained Salwar Kurta

and Nokia mobile set whose number was 9837873493 and

another SIM No. 9917542440 from the storeroom in a

basement of her house, at the instance of the accused

Shabnam points to her complicity in the crime in view of

section 27 of the Evidence Act. This recovery memo (Ext. Ka

10) bears the signature of Shabnam and also that of the police

personnel and Lal Mohammad, PW 3.

The report of the Forensic Laboratory, Agra dated

5.5.2008 (Ext. Ka 104) clearly establishes that the Kurta and

Salwar (item Nos. 43 and 44) contained bloodstains in large

parts, although the origin of the blood could not be determined

as it had disintegrated.

To the specific question Nos. 29 and 44 put to Shabnam

that on 19.4.2008 after the police arrested her, she got

recovered Salwar suit, mobile and SIM wrapped in a paper and

tranquilizer (Exts. 3 to 6) respectively, in her explanation she

had stated nothing regarding these recoveries.

When the witnesses arrived, they saw Shabnam wearing

normal clothes, which were not blood stained. The recovery of

the blood stained clothes from the basement of her house and

their concealment in the said portion of the house, was

another circumstance for suggesting that Shabnam had

hurriedly changed her clothes which she would not have done

had her clothes got blood stained when she was embracing the

deceased after she had found that they had been murdered

by some outsider. This is another circumstance which suggests

her complicity in the offence.

The forensic field unit not finding finger or foot prints,

blood stains or other marks in the house of the appellant

Shabnam and the deceased rather than being a circumstance

in favour of the appellant, is either a neutral circumstance or

an inculpatory circumstance. Even if some outsiders had

27

committed the crime, such marks would be present if the field

unit had carefully searched for them, unless they had all been

wiped off by Shabnam, in the same manner that she had

changed her clothes before she dramatically raised the alarm

for drawing the attention of the witnesses, and then feigned

unconsciousness.

The viscera report of the Forensic Laboratory, Agra

dated 16.4.2008 regarding the six deceased persons (Ext. Ka

105 to 110) showing the presence of diazepam tranquilizer

and absence of any poison in the viscera of the ten month old

deceased Arsh who may still only have been drinking milk, also

supports the prosecution suggestion that the grown up

deceased persons were given tranquilizer probably in some

food substance such as tea, so that when the murder was

committed, they could offer no resistance, and this indeed

appears to have been the case as the six deceased persons

appear to have been murdered when they were still lying on

their beds as established by the fact that the beddings, pillows

etc. of all the deceased persons had bloodstains and except

the injuries on their necks and chest portion of the deceased,

they appears to have received no injury on any other part of

the body. Only the little child Arsh was not given any

tranquilizer as it was not needed for throttling the little child.

None, but a family member who has normal access in the

house could have administered the tranquilizer to the

deceased persons in order to accomplish the job of murdering

the deceased. The finger of guilt would point for this reason

also on Shabnam the only other surviving inmate of the house.

The explanation given by Shabnam that she was

sleeping on the roof alone and hence the assailants had

murdered the other seven members of her house sparing her,

appears wholly unbelievable. If outsiders had arrived at the

house and tried to murder the deceased with sharp edged

weapons then some of the deceased would have woken up in

28

the noise which was likely and there would be marks of

injuries on arms etc. as some kind of scuffle would have taken

place. Also diazepam would not have been found in the

visceras of the the 6 deceased other than the child Arsh, as no

outsiders could have had any opportunity to administer the

same.

The explanation given by Shabnam to question No. 3 that

there were beddings laid down next to the two corpses of her

mother Hashmi and niece Rabia, she had replied that on the

night in question she was sleeping on the roof otherwise

normally she either sleeps with her mother or her father. This

conduct appears to be improbable and unnatural. The Forensic

team and witnesses have not found any bedding on the roof.

No doubt Shabnam claimed that she brought the bedding

down when the rain started. No bed was found by the side of

the stairway, but only an unused bedding was found in the

room where the deceased were sleeping.

The learned AGA is also right in his contentions that the field

unit did not find any other signs of ingress or egress by any

outsider. No robbery or dacoity was committed. None else had

a motive for committing these serial killings. The appellant

Shabnam who was the solitary person who remained alive in

the house was required to explain how the 7 persons had been

killed on the night in question. A heavy burden was cast on her

in view of section 106 of the Evidence Act to explain these

circumstances of which she alone could have special

knowledge, which burden has not at all been discharged by

her.

On a close scrutiny of the entire evidence and material on

record we find that the chain of circumstances for establishing

the complicity of the two appellants in this offence is complete.

We therefore find that the prosecution has succeeded in

establishing the charges against the two appellants under

section 302 read with section 34 IPC beyond the shadow of

29

any reasonable doubt.

Question of sentence, whether life imprisonment or

death sentence appropriate

One final question which remains is whether this Court ought

to accept the death reference and to confirm the sentence of

death awarded to the two appellants or would it be proper to

substitute the same with a sentence of imprisonment for life.

The Apex Court in the Constitutional Bench decision in Bachan

Singh v State of Punjab, AIR 1980 SC 898 has broadly

approved the description of the aggravating and mitigating

circumstances mentioned by Chitaley whose balance sheet

must be prepared before a decision may be taken whether a

death sentence of a sentence of imprisonment for life would be

appropriate. The aggravating circumstances are mentioned in

paragraph 200 which reads as follows:

“200. Drawing upon the penal statutes of the States in U. S. A.

framed after Furman v. Georgia, in general, and clauses 2 (a),

(b), (c), and (d) of the Indian penal Code (Amendment) Bill

passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale

has suggested these "aggravating circumstances" :

"Aggravating circumstances : A Court may, however, in the

following cases impose the penalty of death in its discretion :

(a) if the murder has been committed after previous planning

and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of

the Union or of a member of any police force or of any public

servant and was committed -

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done

by such member or public servant in the lawful discharge of

his duty as such member or public servant whether at the time

of murder he was such member or public servant, as the case

may be, or had ceased to be such member or public servant;

or

(d) if the murder is of a person who had acted in the lawful

discharge of his duty under Section 43 of the Code of Criminal

Procedure, 1973, or who had rendered assistance to a

Magistrate or a police officer demanding his aid or requiring

his assistance under Section 37 and Section 129 of the said

Code."

30

The mitigating circumstances are mentioned in paragraph 204

as follows:

204. Dr. Chitaley has suggested these mitigating factors :

"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.

(2) The age of the accused. It the accused is young or old, he

shall not be sentenced to death.

(3) The probability that the accused would not commit criminal

acts of violence as would constitute a continuing threat to

society.

(4) 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.

(5) That in the facts and circumstances of the case the

accused believed that he was morally justified in committing

the offence.

(6) That the accused acted under the duress or domination of

another person.

(7) 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."

A three Judge decision of the Apex Court in Machhi Singh v

State of Punjab, AIR 1983 SC 957 has further thrown some

light on the balance sheet of circumstances for determining

when life sentence would be adequate in a case of murder and

when death sentence would be the only appropriate option.

The relevant paragraphs 32 to 35 are extracted below:

'32. The reasons why the community as a whole does not

endorse the humanistic approach reflected in "death sentence

in no case" doctrine are not far to seek. . In the first place, the

very humanistic edifice is constructed on the foundation of

"reverence for life" principle. When a member of the

community violates this very principle by killing another

member, the society may not feel itself bound by the shackles

of this doctrine. Secondly, it has to be realised that every

member of the community is able to live with safety without

his or her own life being endangered because of the protective

arm of the community and on account

of the rule of law enforced by it. The very existence of the rule

of law and the fear of being brought to book operates as a

31

deterrent to those who have no scruples in killing others if it

suits their ends. Every member of the community owes a debt

to the community for this protection. When ingratitude is

shown instead of gratitude by 'killing' a member of the

community which protects the murderer himself from being

killed, or when the community feels that for the sake of self

preservation the killer has to be killed, the community may

well withdraw the protection by sanctioning the death penalty.

But the community will not do so in every case. It may do so

(in rarest of rare cases) when its collective conscience is so

shocked that it will expect the holders of the judicial power

centre to inflict death penalty irrespective of their personal

opinion as regards desirability or otherwise of retaining death

penalty. The community may entertain such a sentiment when

the crime is viewed from the platform of the motive for, or the

manner of commission of the crime, or the anti-social or

abhorrent nature of the crime, such as for instance :

I Manner of Commission of Murder

When the murder is committed in an extremely brutal,

grotesque, diabolical, revolting, or dastardly manner so as to

arouse intense and extreme indignation of the community. For

instance.

(i) When the house of the victim is set aflame with the end in

view to roast him alive in the house,

(ii) When the victim is subjected to inhuman acts of torture or

cruelty in order to bring about his or her death.

(iii) When the body of the victim is cut into pieces or his body

is dismembered in a fiendish manner.

II Motive for commission of murder

When the murder is committed for a motive which evinces

total depravity and meanness. for instance when (a) a hired

assassin commits murder for the sake of money or reward; (b)

a cold-blooded murder is committed with a deliberate design

in order to inherit property or to gain control over property of

a ward or a person under the control of the murderer or vis-a-

vis whom the murderer is in a dominating position or in a

position of trust; (c) a murder is committed in the course for

betrayal of the motherland.

III Anti-social or socially abhorrent nature of the crime.

(a) When murder of a member of a Scheduled Caste or

minority community etc., is committed not for personal

reasons but in circumstances which arouse social wrath. For

instance when such a crime is committed in order to terrorize

such persons and frighten them into fleeing from a place or in

order to deprive them of, or make them surrender, lands or

benefits conferred on them with a view to reverse past

injustices and in order to restore the social balance.

(b) In cases of 'bride burning' and what are known as 'dowry-

deaths' or when murder is committed in order to remarry for

the sake of extracting dowry once again or to marry another

32

woman on account of infatuation.

IV Magnitude of crime

When the crime is enormous in proportion. For instance when

multiple murders say of all or almost all the members of a

family or a large number of persons of a particular caste,

community, or locality, are committed.

V Personality of victim of murder

When the victim of murder is (a) an innocent child who could

not have or has not provided even an excuse, much less a

provocation, for murder. (b) a helpless woman or a person

rendered helpless by old age or infirmity. (c) when the victim

is a person vis-a-vis whom the murderer is in a position of

domination or trust, (d) when the victim is a public figure

generally loved and respected by the community for the

services rendered by him and the murder is committed for

political or similar reasons other than personal reasons.

33. In this background the guidelines indicated in Bachan

Singh's case (supra) will have to be culled out and applied to

the facts of each individual case where the question of

imposing of death sentence arises. The following propositions

emerge from Bachan Singh's case :

(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 require to be taken into consideration along

with the circumstances of the 'crime';

(iii) Life imprisonment is the rule and death sentence is an

exception. In other words death sentence must he 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.

34. In order to apply these guidelines inter alia the following

questions may be asked and answered:

(a) Is there something uncommon about the crime which

renders sentence of imprisonment for life inadequate and calls

for a death sentence?

(b) Are the circumstances of the crime such that there is no

alternative but to impose death sentence even after according

maximum weightage to the mitigating circumstances which

speak in favour of the offender?

35. If upon taking an overall global view of all the

33

circumstances in the light of the aforesaid proposition and

taking into account the answers to the questions posed

hereinabove, the circumstances of the case are such that

death sentence is warranted, the Court would proceed to do

so.

Aggravating circumstances in the present case

Tested in the light of these binding decisions, we find that in

the present case, the aggravating circumstances would include

the diabolical and calculated nature of the crime which was

committed after methodical planning. Biopose sedative tablets

appear to have been obtained by the appellant Shabnam with

the help of Saleem, and were mixed in some food substance

which was given to all the 6 grown up family members, all of

whom were murdered with an axe in their sleep. Their bodies

were found in their beds, with no injuries on the arms or hands

of any deceased. All the injuries were on the neck, face or

trunk regions which supports the hypothesis that the murders

were committed when the deceased had been strongly

sedated. The visceras of all these 6 grown up deceased

indicated the presence of diazepam tranquilizer. The axe which

was got discovered by the appellant Saleem contained human

blood. No mercy was even showed to the 10 month old child

Arsh who was strangulated, and thus the only other person

from the household who could have inherited the property was

also eliminated.

The subsequent conduct of the accused Shabnam in removing

all signs of the crime, by changing her clothes, removing any

signs, and finger prints etc. and then raising an alarm for help

and thereafter pretending to be unconscious for creating an

impression that some outsiders had committed this crime, all

indicate the cold blooded planning before, during and after the

commission of the crime. These features would fall within the

aggravating circumstances (a) and (b) mentioned in para 200

of Bachan Singh, i.e. “(a) if the murder has been committed

after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity;”

34

The special features of the crime would indicate that it was

covered under the heading I :Manner of Commission of Murder

– i.e. the murder being had been committed in an extremely

brutal, grotesque and diabolical manner, which would give rise

to intense indignation in the community; heading II :Motive

for commission of murder- the depravity and meanness of the

motive, and the cold blooded attempt to acquire the property

by eliminating all family members; heading IV :Magnitude of

crime, the crime of eliminating all 7 family members was very

grave; heading V :Personality of victim of murder, the victim is

an innocent child or helpless woman (or even a man) rendered

helpless by old age or infirmity, (and in this case by a

sedative). These are referred to in paragraph 32 in Machhi

Singh

Mitigating circumstances

(i) Appellant Shabnam under great mental stress

The mitigating circumstances could be that the appellant

Shabnam was under great emotional and mental stress

(Mitigating circumstance (a) in paragraph 204 of Bachan

Singh), as the appellant's father was not agreeable to the

alliance of Shabnam with Saleem and even her mobile phone

had earlier been snatched away and she may have once been

beaten by him. Indeed learned counsel has likened their

situation to a situation where an honour killing was in the

offing because of Shabnam's was not agreeable to her family's

objection to the alliance. But we find no basis for such a

supposition. There was no evidence of any previous attack on

the lives of the appellants, even if their liaison was frowned

upon because of the economic and caste disparity between

Shabnam and Saleem. In any case the elimination of all 7

members of her family, including the 10 month old child Arsh

was a grossly disproportionate and uncalled for response for

any apprehensions that the appellants may have nurtured

35

regarding their proposed alliance from the deceased. Moreover

there could be no threat of honour killing from the baby Arsh,

who was also throttled.

(ii) No positive evidence for showing that the appellants

non-reformable or likely to abstain from future violence

– need to read down requirement

No affirmative evidence has been led by the prosecution to

show that the appellants could not be reformed, or that they

could commit such violent acts in the future. This requirement

is mentioned in relation to the third and fourth mitigating

circumstances, i.e (c) and (d) enumerated by Chitaley, which

passage has been incorporated in paragraph 204 (supra) in

Bachan Singh. But we think there is need to read down this

requirement. It may be pointed out that logically it would be

impossible for the State to give affirmative evidence for

showing that the offender was unlikely to reform in the future

or that he was bound to indulge in violence again. No such

prediction can affirmatively be made even for a killer for hire

or a dreaded terrorist or a dacoit, as theoretically it is possible

for anyone to reform and to abstain from future violence. If a

burden is cast on the State to furnish positive evidence on

these aspects in each case, then such an effort is bound to be

fruitless, and can hardly conceive of any case where a death

sentence could be awarded. That would amount to indirectly

repealing the death penalty, which has been held to be

constitutional in Bachan Singh itself, even in the rarest of rare

cases where the exceptional and special reasons for awarding

the death penalty exist.

ii) Nature of the crime as important as the criminal –

features of the criminal can be inferred from the crime.

That exaggerated importance need not be given to this aspect,

whether the prosecution has led evidence for repelling the

36

defence claim that the appellant is likely to reform and not

engage in future violence is apparent from the fact that

Bachan Singh's has disputed the correctness of the proposition

in Rajendra Prasad v State of U.P., (1979) 3 SCC 646 that the

'special reasons' in section 354(3) Cr.P.C for awarding the

death penalty “must relate not to the crime as such but to the

criminal.” In paragraphs 200 and 201 Bachan Singh records its

disapproval of the “murder most foul” test laid down in Ram

Prasad in these words:

“200. …....According to it, after the enactment of Section

354(3), 'murder most foul' is not the test. The shocking nature

of the crime or the number of murders committed is also not

the criterion. It was said that the focus has now completely

shifted from the crime to the criminal. 'Special reasons'

necessary for imposing death penalty 'must relate not to the

crime as such but to the criminal'.

201. With great respect, we find ourselves unable to agree

to this enunciation. As we read Sections 354(3) and 235(2)

and other related provisions of the Code of 1973, it is quite

clear to us that for making the choice of punishment or for

ascertaining the existence or absence of 'special reasons' in

that context, the court must pay due regard both to the crime

and the criminal. What is the relative weight to be given to the

aggravating and mitigating factors, depends on the facts and

circumstances of the particular case. More often than not,

these two aspects are so intertwined that it is difficult to give a

separate treatment to each of them. This is so because 'style

is the man'. In many cases, the extremely cruel or beastly

manner of the commission of murder is itself a demonstrated

index of the depraved character of the perpetrator. That is

why, it is not desirable to consider the circumstances of the

crime and the circumstances of the criminal in two separate

watertight compartments. In a sense, to kill is to be cruel and

therefore all murders are cruel. But such cruelty may vary in

its degree of culpability. And it is only when the culpability

assumes the proportion of extreme depravity that 'special

reasons' can legitimately be said to exist.” (Emphasis added).

Thus from the style and gravity ('depravity') of the crime, also

the criminality of the accused and his likelihood for repeating

crimes in future may be inferred.

iii) Bachan Singh clarifies that death sentence possible

in crimes against individuals, not only in major crimes

37

affecting the state, society and public order

We would also like to point out that Bachan Singh clarifies that

a sentence of death, need not be confined only to crimes

affecting large masses of people, which affect public order,

such as major dacoities or acts of terrorism, by persons with

criminal antecedents, about whom a presumption may be

raised that it was highly probable that they would not reform

or abstain from violence in the future, but also for murders of

individuals, if the crime shows extreme cruelty or culpability.

Bachan Singh therefore in paragraph 204 also overrules as

Constitutionally impermissible the propositions that the 'special

reasons' only apply to cases where the murder threatens or

has the potentiality to threaten the security of the State and

Society, public order and the interests of the general public.

According to Bachan Singh for making the choice of

punishment the court must give due regard both to the crime

and the criminal and also the narrow categorization that the

'special reasons' only apply to crimes against the State and

Society threatening public order is constitutionally

impermissible. Thus capital punishment is not only permissible

for habitual criminals engaged in murders after dacoities or

abductions for ransom or in terror crimes, or by hired

assassins, but also where murders are of individuals, where

there may not be evidence of the likelihood of the repetition of

the crime, but where the culpability and heinous character of

the crime indicates ”aggravation of an abnormal or special

degree”. In this context Bachan Singh in paragraph 199

reiterates these lines from the decision in Ediga Anamma, AIR

1974 SC 799 that : “The weapons used and the manner of

their use, the horrendous features of the crime and hapless,

helpless state of the victim, and the like, steel the heart of the

law for a sterner sentence.” Likewise in paragraph 200 it

approves the award of death penalty in Paras Ram, (SLP (Cri)

Nos. 698 and 678 decided on 9.10.1973) to a person who in a

38

fit of anti social piety commits a “blood-curdling butchery” of

his child. These crimes of great butchery or depravity against

individual victims are usually one-time events and not

committed by accused with criminal antecedents, and

therefore it could not ordinarily be assumed that the offenders

would not reform, or invariably engage in violence again. But

Bachan Singh has approved the award of the death penalty in

these situations. The aggravating circumstances for awarding

the death penalty in paragraph 200 of the law report, include

cases where the murder has been committed after previous

planning and involves extreme brutality, or if the murder

involves exceptional depravity and is not only confined only to

murders disturbing public order or affecting the safety of the

State or society.

iv) Chitaley's guidelines are only indicative, judicial

discretion lies with Courts on weight to be attached to

aggravating and mitigating circumstances

Even if it is accepted for the sake of arguments that the

prosecution has failed to lead positive evidence for showing

that the appellants were non-reformable or they would not

abjure from future violence, the Court is not precluded from

exercising an independent judicial mind for reaching a

conclusion, whether on an overall consideration of the balance

sheet, the nature of the aggravated circumstances, could be

outweighed by the mitigating circumstances.

Bachan Singh points out how the U.S. Supreme Court in Gregg

v Georgia, 428 US 153, and other companion cases was forced

to read down the fixed criteria for the capital sentence, which

had been introduced in some U.S. States following Furman v.

Georgia, 408 US 238(1972) which had struck down the death

penalty as violating the Eighth and Fourteenth Amendments

because clear, definite and articulate standards for channeling

the sentencing discretion for imposition of the death penalty

39

had not been laid down in a statute. Stewart J speaking for the

Court in Gregg v Georgia, 428 US 153, had pointed that

Furman had called for fixed criteria in the matter of capital

sentences, “so as to minimize the risk of wholly arbitrary and

capricious action.” But Gregg v Georgia emphasized that it was

necessary to give a role for judicial discretion in the matter of

sentencing, which could not be completely fettered by rigid

statutory requirements, because exhaustive standardization

was not feasible and indeed could prove counter-productive.

As Bachan Singh puts it in paragraph 186:

“186. ...... by reading down the concerns expressed in

Furman. In this connection, Stewart, J. said, all that Furman

mandates is that discretion in so grave a matter must be

suitably directed “so as to minimize the risk of wholly arbitrary

and capricious action”. This was, if we may say so with

respect, an admission of the fact that a considerable range of

sentencing discretion has perforce to be left with the

sentencing body to be exercised by it according to its own

good sense and reason; and that no standards howsoever

meticulously drafted can totally exclude scope for arbitrary

and capricious action.

Paragraphs 192 and 193 of Bachan Singh may also usefully be

perused in this connection:

192. It appears to us that in Gregg v. Georgia and the

companion cases, the Supreme Court of U.S.A. was obliged to

read down the requirements of Furman and to accept these

broadly worded, loose-ended and not-all-inclusive ‘standards’

because in the area of sentencing discretion, if it was to retain

its judicial character, exhaustive standardisation or perfect

regulation was neither feasible nor desirable.

193. Moreover, over-standardisation of the sentencing

process tends to defeat its very purpose, and may actually

produce opposite results.

Again paragraph 195 of Bachan Singh reads as follows:

“195. Critically examined, it is clear that the decisions in

Gregg v. Georgia (428 US 153) and its companion cases

demonstrate the truth of what we have said earlier, that it is

neither practicable nor desirable to imprison the sentencing

discretion of a judge or jury in the strait-jacket of exhaustive

and rigid standards. Nevertheless, these decisions do show

that it is not impossible to lay down broad guide-lines as

40

distinguished from ironcased standards, which will minimise

the risk of arbitrary imposition of death penalty for murder

and some other offences under the Penal Code.”

The requirement for a judicial role for interpreting what weight

is to be given to the aggravating and mitigating circumstances

is much greater in India where Chitaley's guidelines favoured

by Bachan Singh do not have any statutory status, and indeed

have only been described as guide-lines and not an all-

inclusive charter enumerating the cases where capital penalty

is appropriate or inappropriate. Bachan Singh cautions against

fixing of inflexible criteria for fettering the jurisdiction of the

Courts for exercising their judicial discretion for determining as

per their good sense and wisdom the weight to be attached to

the aggravating and mitigating circumstances in the balance

sheet for reaching a decision on the facts of the particular case

whether the normal sentence of life imprisonment was called

for, or whether the 'special reasons' exist where only a

sentence of death would satisfy the ends of justice.

Thus it has been observed in paragraph 203 of the law report:

“203. Stated broadly, there can be no objection to the

acceptance of these indicators but as we have indicated

already, we would prefer not to fetter judicial discretion by

attempting to make an exhaustive enumeration one way or

the other.”

V) Application of the principles to the present case:

In the present case only because some objections had been

raised to Shabnam's liaison with Saleem, in a cold blooded and

pre-planned manner the two conspiring appellants had

executed the crime. They had acquired diazepam tablets which

were administered to 6 of the deceased, who were Shabnam's

father, mother, two brothers, two sisters in law and a 14 year

old niece, who were then hacked on the head, face and trunk

regions with an axe in their sedated sleep by the appellants

and the blood stained axe was got discovered by the appellant

Saleem. Even the seventh deceased Arsh, the 10 month old

41

child of Shabnam's brother, who could not have protested to

the liaison of the appellants was not spared and was throttled,

so as to leave no survivors for claiming the property in the

future. Then the clothes and other marks of the crime were

removed from the scene, and a cry was raised by Shabnam

who tried to insinuate that this crime had been committed by

some outsiders and to feign unconsciousness. There was no

injury on her person, even though the rest of the family had

been eliminated. The appellants had even shown disloyalty to

each other in their 313 Cr.P.C. statements as both the

appellants had tried to shift the burden for the crime on the

other whilst exonerating themselves. All these features

indicates the extreme brutal, calculated and diabolical nature

of the crime, which suggested that there was little likelihood of

reform of these accused and of their abstaining from future

crime. In any case the aggravating circumstances are such

that they substantially outweigh the mitigating circumstances.

Shabnam's pregnancy and subsequent delivery of child,

no ground for reducing sentence

It was also contended that the Salma was carrying a child in

her womb whom she has delivered in jail and who would be

orphaned if the appellants are executed. In most murder cases

the accused have minor children, or aged parents or a spouse

who would be bereaved if the convict is executed. This

according to the Supreme Court in Sevaka Perumal v State of

Tamil Nadu, 1991 Cri.L.J. 845 (SC) can not provide a

legitimate reason for not awarding the death penalty, if the

case is one, where looking to the heinous nature of the crime

and the criminal a death penalty is the only appropriate

sentence.

Conclusion:

On an overall consideration of the balance-sheet of

42

aggravating and mitigating circumstances, even if the

maximum weightage is accorded to the mitigating

circumstances, for the reasons mentioned above we are of the

considered opinion that the the 'special reasons' as required

under sections 354(3), and 235(2) Cr.P.C exist for treating this

case as one of the 'rarest of rare' cases where the normal

sentence of imprisonment for life would prove grossly

inadequate and that option is unquestionably foreclosed on the

facts of this case, and the only appropriate course would be to

confirm the sentence of death awarded by the trial judge. We

therefore uphold the conviction and also confirm the sentence

passed by the trial Court.

The appeals are dismissed and the reference under

section 366 Cr.P.C. is accepted.

Date: 26.4.2013

sfa/ishrat