Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY, THE 23RD DAY OF JULY 2013 1ST SRAVANA, 1935 CRL.A.No. 1171 of 2012 () -------------------------- (SC 360/2010 of PRINCIPAL SESSIONS COURT, ERNAKULAM DATED 29 11-2010) --------------- APPELLANT: --------- SAJU @ UNNI, C.NO.5757, S/O.JANARDHANAN, CENTRAL PRISON, THIRUVANANTHAPURAM BY ADV. PARTY-IN-PRISON BY STATE BRIEF SMT.K.R.KRISHNAKUMARI RESPONDENT: ----------- STATE OF KERALA BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.TOM JOSE PADINJAREKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2.7.2013, ALONG WITH DSR. 4/2010, THE COURT ON 23-07-2013 DELIVERED THE FOLLOWING: VK S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.
-------------------------------------------------------------------------- Criminal Appeal No.1171 of 2012 & DSR No.4 of 2010 -------------------------------------------------------------------------- Dated this, the 23rd day of July 2013 Judgment Ramakrishnan, J.
Criminal Appeal No.1171/12 is filed by the accused in SC No.360/2010 on the file of the Principal Sessions Judge, Ernakulam, through jail authorities, while D.S.R.No.4/2010 is a reference made by the Sessions Judge, for confirmation of the death sentence awarded for the accused in that case under Section 366 (1) of the Code of Criminal Procedure Code. Since both the appeal and death reference are in respect of the very same judgment, the same are being heard together and disposed of by this common judgment.
2. The accused in this case was charge sheeted by the Circle Inspector of Police, Kuruppampady Police Station, under Sections 302 and 307 of the Indian Penal Code in Crime No.1039/2009 of Kuruppampady CRA 1171/12 & DSR 4/10 2 Police Station. The case of the prosecution, in a nutshell, was that on 1.11.2009 at about 6.30 pm, at the courtyard of the house of the accused, the accused, with an intention to commit murder of PW1, his mother-in-law, inflicted injuries on her neck with a chopper and also inflicted injuries on PW2, his father-in-law, with the same intention. When the wife of the accused, deceased Usha tried to intervene, he inflicted cut injuries on her head indiscriminately with the chopper, with an intention to cause her death and thereby committed the offences punishable under Sections 302 and 307 of the Indian Penal Code. After investigation, the Investigating Officer submitted final report against the accused for the above said offence before the Judicial First Class Magistrate, Perumbavoor, who, in turn, committed the case to the Court of Sessions, Ernakulam, under Section 209 of the Code of Criminal Procedure (In short, Cr.P.C.), as per order in CP No.7/2010. After committal, the Sessions CRA 1171/12 & DSR 4/10 3 Judge took cognizance of the case as SC No.360/2010 under Sections 302 and 307 of the Indian Penal Code.
3. Since the accused was in custody, legal aid was provided to him in the lower court and on his production before the Court, after hearing the Public prosecutor and the legal aid counsel, the learned Sessions Judge framed charges under Sections 302 and 307 of the Indian Penal Code against the accused and the same was read over and explained to him, to which he pleaded not guilty. In order to prove the case of the prosecution, PWs1 to 16 were examined, Exts.P1 to P16 were marked and MOs 1 to 10 were identified and marked. After closure of the prosecution evidence, the learned Sessions Judge questioned the accused under Section 313 Cr.PC and he denied the incriminating circumstances brought out in evidence against him. He further stated that he married Usha, the deceased, who is the only daughter of PWs 1 and 2. On 1.11.2009 at CRA 1171/12 & DSR 4/10 4 about 6.30 pm, his father-in-law and mother-in-law came to his house. At that time, he was sitting in a chair and watching television. His wife, Usha was sitting on the floor and cutting mutton. Their six months' old child was sleeping on the cot in the next room. When PWs 1 and 2, his parents-in-law came there, he got up and he asked him as to why they were late in coming there. They told him that they decided to sell the house and the property at Nellikuzhy to one Moideen for an amount of Rs.3 lakhs and on the next day, he would give Rs.1 lakh as advance and an agreement of sale had to be executed. For that purpose Usha was also asked to go along with them with the child and asked Usha to come after changing the dress. The accused told them that they could go on the next day as there was no bus at that time. But, PW2 told that they could go by an auto rickshaw. They told him that they would take Usha and the child on the same day, which, the accused prevented. At that time, his mother- CRA 1171/12 & DSR 4/10 5 in-law pulled his dhoti. When the accused insisted that he would not send Usha and the child on that day, his father-in-law caught hold of the collar of his shirt, whereupon the accused pushed him. His father-in-law hit on the wall and fell down. Due to the fall, the wooden plank and the knife kept for cutting the mutton, flew off and inflicted injuries on the neck of his mother-in-law. Then, his father-in-law got up and saw blood was coming from her neck. He, then shouted " " and then, came towards him with the knife. At that time, his wife Usha pushed him and he fell down. The attempted cut made on him by his father-in-law fell on his wife and she sustained injuries. Immediately, his mother-in-law caught hold of his father-in-law and his father-in-law inflicted cut injury on his mother-in-law. Thereafter, he lifted PW2 and threw him. By that time, Usha took the child and went to the courtyard and when she was about to fall, he caught hold of her. When he went near his father-in-law, he went CRA 1171/12 & DSR 4/10 6 inside the room and closed the door and shouted loudly " " . Upon hearing this, the neighbouring people (Molly, Jijo and Mathai) gathered there. By the time his father-in-law came near his wife and sat near her and cried loudly - " ". Thereafter, Jijo and Eldo asked him, why he had done so and beat him. Mathai also beat him and then, he went into the rubber plantation nearby. Mathai, Prabhakaran and others took Usha, PW1 and PW2 to hospital in an auto rickshaw and he went to the nearby thodu and washed off his dress. He went to Perumbavoor Police Station on the next day to inform about the same and he was taken to Kuruppampady Police Station. A police constable, who was present in the station, asked him whether he knew Saji and he told that he knew him. It was Saji, who had produced the knife before the police. He had not produced MO1 before the police. He had not run away from that place and he CRA 1171/12 & DSR 4/10 7 had not committed any offence.
4. Since the learned Sessions Judge thought that it was not a case to be acquitted under Section 232 Cr.P.C, he called upon the accused to adduce defence evidence, but no defence evidence was adduced, except marking Exts.D1 and D2 contradictions in the evidence of PW2 in his 161 statement.
5. After considering the evidence on record, the learned Sessions Judge found the appellant guilty under Sections 302 and 307 of the Indian Penal Code and convicted him thereunder. Thereafter, he questioned the accused on the question of sentence. Since the learned Sessions Judge found that it was the rarest of the rare cases where death penalty has to be imposed and sentenced the accused to be hanged by neck till his death under Section 302 of the Indian Penal Code and further sentenced him to undergo imprisonment for life, as also to pay a fine of Rs.5 lakhs and in default, to CRA 1171/12 & DSR 4/10 8 undergo rigorous imprisonment for four more years under Section 307 of the Indian Penal Code. Set off was allowed, subject to orders to be passed by the appropriate Government under Sections 432/433A of Cr.PC. The fine amount, if recovered, was directed to be paid to PW1 as compensation under Section 357(1)(b) of Cr.P.C. It is thereafter that the Sessions Judge referred the case to this Court for confirmation under Section 366 (1) Cr.PC. Till then, the accused was directed to be in custody in Central Prison, Thiruvananthapuram till execution warrant was issued under Section 366(2) Cr.PC.
6. Aggrieved by the order of conviction and sentence passed by the learned Sessions Judge, the accused has preferred his appeal through jail authorities. After receipt of the death reference from the Sessions Court, this Court has entertained the same as DSR No.4/2010 and posted for hearing along with the CRA 1171/12 & DSR 4/10 9 appeal filed by the accused. Since the accused was in custody, Smt.K.R.Krishnakumari was appointed as legal aid counsel to argue the case for the appellant.
7. Heard the legal aid counsel for the appellant and Sri.Tom Jose Padinjarekkara, Additional Director General of Prosecution and perused the records.
8. The learned counsel for the appellant argued that except the interested testimonies of PWs 1 and 2, there is no other evidence to prove the incident. There is inconsistencies in the evidence of PWs 1 and 2 regarding the incident. According to PW1, after getting injury, she became unconscious and she did not know what had happened thereafter. So, her evidence is not helpful to prove the case of the prosecution that it was the accused, who had inflicted injuries on the deceased, which caused her death. Further, PW1 had admitted that at the time when she sustained the injuries, her husband CRA 1171/12 & DSR 4/10 10 was standing behind her. This probablises the case of the accused that when PW2 attempted to inflict injury on him, since he moved away, that accidentally fell on the neck of PW1 and caused injuries. Further, there are contradictions in the evidence of PWs1 and 2 regarding the manner, in which the incident happened. There was no motive suggested for the accused to commit the crime. The evidence of PWs 1 and 2 will go to show that at the time when the alleged incident happened, except themselves, the accused and the deceased, none were there and people in the neighbourhood had gathered only on hearing the hue and cry. By that time, the entire incident completed and so, the presence of PW3 at the place of occurrence is doubtful. Further, according to PW3, on the evening of the date of incident itself, the police had come and she had told about the incident to them. But, the First Information Statement Ext.P6 was recorded after 12 hours of the incident, on the next day CRA 1171/12 & DSR 4/10 11 and that too, on the basis of the statement given by PW11, who is not an eyewitness to the incident. The delay has not been explained as well. PW15 also admitted that he went to the place of occurrence on the date of incident itself. But, he could not get the statement of witnesses, who had seen the incident and before receiving Ext.P5 statement given by PW11, none had informed about the incident, which is highly improbable. That shows that there was a possibility of discussion and deliberation to give the First Information Statement in such a way as to suppress the real genesis of the incident, so as to save PW2 and falsely implicate the accused in the incident. The evidence of the Investigating Officer will go to show that there was no possibility of the accused, going to the police station and handing over the chopper, as claimed by them. All these things create suspicion regarding the manner, in which the incident happened and in fact, there is no evidence CRA 1171/12 & DSR 4/10 12 to show that the incident had happened as alleged by the prosecution. Further, the evidence adduced on the side of the prosecution itself will probabilise the case of the accused that the injuries were sustained by PWs 1 and the deceased in the manner stated by him, when PW2 attempted to attack the accused and not in the manner stated by the prosecution witnesses. So, according to the learned counsel for the appellant, the prosecution has failed to prove beyond reasonable doubt that the accused had committed the crime and the trial court has not considered these aspects, but simply believed the evidence of PWs 1 to 3 and came to the conclusion that the prosecution had proved the case beyond reasonable doubt, which is unsustainable in law and the accused is entitled to get the benefit of doubt. So, according to the learned counsel for the appellant, the accused is entitled to get acquittal of the charges levelled against him. Though the prosecution had a case that PW2 had CRA 1171/12 & DSR 4/10 13 sustained injuries and the charge was framed against the accused for attempt to murder PW2 as well, there was no finding by the court below regarding this aspect. That also probabilises the case of the accused that it was PW2, who had inflicted injuries on the deceased though not intentionally, but accidentally and that benefit may also be given to the accused.
9. On the other hand, the learned Additional Director General of Prosecution argued that the delay in lodging the First Information Report in this case is not fatal. Though PW15 had gone to the place of occurrence and to the Government Hospital, Perumbavoor, on getting information regarding the incident, he could not get the particulars as to which hospital, the injured persons were taken from that hospital. Further, unless the Station House Officer is satisfied about the statement given regarding the incident, he need not register a crime on the basis of the cryptic statement given by the CRA 1171/12 & DSR 4/10 14 witnesses, regarding the incident. The deceased died on 2.11.2009 at 3.50 am from the Medical College Hospital, Kottayam and the First Information Report was registered at 7.45 am on the the same day and as such, it cannot be said that the delay was fatal in this case. Further, the presence of the accused was admitted at the place of occurrence. The presence of PWs 1 and 2 and the deceased at the place of occurrence is also admitted by the accused. The fact that the deceased sustained injuries and she died on account of the injuries was also not disputed by the accused. The fact that MO1 chopper was used for inflicting the injuries is also, in a way, admitted by the accused. The fact that PW3 is a neighbour and she is a possible witness, coming to the place of occurrence on hearing the hue and cry, is proved from the evidence of PW3. Merely because PWs 1 and 2 did not state as to who all are the persons, who had seen the incident, it is not sufficient to disbelieve the CRA 1171/12 & DSR 4/10 15 evidence of PW3 regarding the incident. PWs 1 and 2 were under shock, on seeing the accused inflicting injuries on their only daughter and they also sustained injuries in the incident. So, it may not have been possible for them to ascertain at that time as to who all are the persons who had come to the place of occurrence and witnessed the incident. Further, the place from where PW3 had seen the incident, could not have been noticed by PWs 1 and 2, at that time as well. Further, the evidence of PWs 7 and 12 will prove the conduct of the accused, after the incident that they had seen him going with MO1 chopper and cutting on the electric post. Further, the conduct of the accused after the incident will show that it was he, who had committed the crime. The mere lapses on the part of the investigation in not doing certain things, by themselves, is not sufficient to acquit the accused if there are other reliable evidence to support the case of the prosecution. In this case, the CRA 1171/12 & DSR 4/10 16 incident was proved through the evidence of PWs 1 to 3, who had no enmity towards the accused to falsely implicate him in a case like this. So, according to him, the prosecution has proved the case against the accused beyond reasonable doubt and the lower court was perfectly justified in convicting him for the offences punishable under Sections 302 and 307 of the Indian Penal Code.
10. The points that arise for consideration in these cases are : (i) Whether the deceased died on account of the injuries sustained in the accident (ii) Whether the appellant had, with an intention to commit murder, inflicted injuries on his wife, deceased Usha (iii) Whether the appellant had, with an intention to commit murder, inflicted injuries on his mother- in-law (iv) Whether the Sessions Judge was justified in CRA 1171/12 & DSR 4/10 17 convicting the appellant for the offences punishable under Sections 302 and 307 of the Indian Penal Code? (v) Whether the death sentence imposed by the Sessions Judge is liable to be confirmed (vi) If not, what is the sentence to be awarded Points i to iv 11. The case of the prosecution, as emerging from the prosecution witnesses, was as follows : Deceased Usha was the only daughter of PWs 1 and 2 and she was given in marriage to the accused, two years prior to the incident. The accused used to ill-treat Usha and when the ill-treatment became unbearable, she along with her child, went to her parental house at Nellikkuzhi and started residing there. Four days prior to the date of incident, at the request of PWs 1 and 2, PW6 Moideen and others intervened and in the mediation held under their leadership, a settlement was arrived at between them and they decided to live CRA 1171/12 & DSR 4/10 18 together again. The accused, thereafter, brought Usha and the child to his house. According to the Prosecution, even thereafter, the ill-treatment continued and so, Usha telephoned PWs 1 and 2 and told them that it was not possible for her to live there and wanted them to come and take her, in the morning on 1.11.2009. On that day, at about 5.45-6 pm, PWs 1 and 2 went to the house of the accused and enquired about the incident and wanted to take Usha and child with them. When the deceased Usha took her dress in a plastic kit and tried to go along with PWs 1 and 2, it provoked the accused and he prevented that, but when they decided to proceed, he went inside the kitchen, took a chopper and first inflicted a cut injury on PW2. On seeing this, when PW1 and Usha ran to the courtyard, the accused chased them and inflicted cut injury on the neck of PW1 with MO1 chopper. When his wife Usha prevented him, he inflicted cut injuries on her head and body indiscriminately. On CRA 1171/12 & DSR 4/10 19 hearing the cries of PWs 1 and 2 and Usha, when the neighbours came there, the accused ran away from the place with MO1 chopper. On the way, PW7 tried to prevent the accused and at that time, Molly, a neighbour shouted that he had come after murdering two persons. Immediately, he moved away and the accused cut the electric post with the chopper and then, ran into the nearby rubber plantation. The persons gathered there took PWs 1 and 2 and deceased Usha, in an auto rickshaw, first, to a hospital at Perumbavoor and from there, to a hospital at Ernakulam. Since the injuries were grievous, PW1 and deceased Usha were referred to the Medical College Hospital, Kottayam, from where, PW1 was treated by PW10 - Dr.Reji Varghese, who issued Ext.P5 discharge certificate. On 2.11.2009, at about 3.50 am, Usha succumbed to the injuries sustained by her from Medical College Hospital, Kottayam, while she was undergoing treatment there for the injuries sustained. CRA 1171/12 & DSR 4/1”
12. According to the Prosecution, though PW15 - the then Sub Inspector of Police got some vague information from the passengers in a bus about the incident and he went to the place of occurrence, since there was none to give information regarding the incident, he went to the Government Hospital, Perumbavoor and he was informed that the injured persons were removed to another hospital, but, they did not disclose the name of the hospital, to which, the injured were taken. On the next day, at about 7.45 am, PW11 - a neighbour of the accused went to the police station and gave Ext.P6 statement, which was recorded by PW15 and Ext.P6(a) First Information Report was registered, as Crime No.1039/09 of Kuruppampady Police Station, under Sections 302 and 307 IPC against the accused and express report was sent to PW16 - the then Circle Inspector of Police, Kuruppampady Police Station. According to the prosecution, on 2.11.2009, at CRA 1171/12 & DSR 4/10 21 about 8 am, the accused came to the police station and produced MO1 chopper, which, PW15 had seized as per Ext.P3 mahazar in the presence of PW9 - the Assistant Sub Inspector of Police, Kuruppampady Police Station. MO3 mundu, MO4 shirt and MO5 thorthu, found on the body of the accused were also seized by PW15, as per Ext.P4 mahazar in the presence of PW9. Thereafter, he informed about the same to PW16 - the Circle Inspector of Police and he had instructed to keep the accused under surveillance in the police station. On getting the express report from PW15, PW16 undertook the investigation of the case. He went to Medical College Hospital, Kottayam. He conducted inquest of the body of the deceased and seized the dress seen on her body. He also prepared Ext.P1 inquest report in the presence of PW4 and other panchayatdars. After inquest, he sent the body of the deceased for post-mortem examination. PW14 - Dr.Thankamma.P.George, the then Assistant CRA 1171/12 & DSR 4/10 22 Professor of Forensic Medicine of Medical College, Kottayam and Deputy Police Surgeon conducted post- mortem examination on the body of the deceased and issued Ext.P9 post-mortem certificate. PW16 went to the place of occurrence and prepared Ext.P2 scene mahazar in the presence of PW8 and another and seized MO6 bloodstained mud, MO7 mud without blood, MO8 hair- bunch and MO9 bloodstained piece of cloth, seen at the place of occurrence, after describing the same in Ext.P2 scene mahazar. He collected MO10 cotton gauze collected by PW14 at the time of postmortem examination and handed over to him as per Ext.P13 mahazar. Thereafter, he went to Kuruppampady Police Station and arrested the accused and prepared Ext.P10 arrest memo, Ext.P11 inspection report and thereafter, produced him before the Magistrate, along with Ext.P12 remand report. He went to the place of occurrence again and as pointed by PW7, he prepared a mahazar of the CRA 1171/12 & DSR 4/10 23 electric post, on which the accused had cut with MO1 chopper and prepared Ext.P7 mahazar of the electric post in the presence of PW12 and another. He sent the material objects collected during the investigation to court along with Ext.P14 series property lists. He sent Ext.P15 forwarding note with a request to Court to send these articles to the Forensic Science Laboratory, Thiruvananthapuram for examination. The articles were sent for examination from court and Ext.P16 report from the Forensic Science Laboratory was obtained. In Ext.P16, it was mentioned that human blood was detected on MO1 chopper. He completed the investigation and submitted final report against the accused.
13. PW14 conducted autopsy on the body of the deceased and issued Ext.P9 postmortem certificate, wherein she has noted the following ante mortem injuries on the body of the deceased : CRA 1171/12 & DSR 4/10 24 "i. Sutured incises wound 12 cm.long obliquely placed on the right side of head with its front lower end 5 cm. outer to outer angel of right eye. The temporalis muscles, skull bone and dura were seen cleanly cut for a length of 9 cm. Outer aspect of tempero-parietal lobe of brain was softened (7x3x1.5 cm) ii. Linear abrasion 2.5cm obliquely placed on the right side of face with its upper outer end 2.5cm outer to and 2cm below the outer angle of right eye. iii. Sutured incised wound 7cm long horizontally placed on the back of head with its right end 6 cm, behind an d4 cm above top of ear. Underneath skull bone was seen cleanly cut, through its entire thickness. iv. Sutured curved incised wound 7 cm long with its concavity upwards, on the back of head in the middle, its right end 8 cm behind top of right ear. Brain showed flattening of gyri, narrowing of sulci and diffuse subdural, subarachnoid and CRA 1171/12 & DSR 4/10 25 intraventriculur haemorrhage v. Contusion 2x1.5x0.5cm on the left side of chin 1cm outer to midline. vi. Contusion 1.5x0.5x0.3cm on the inner aspect of lower lip on the left side at the muco-cutaneous junction, just outer to midline. vii. Lacerated wound 1x0.5x0.2cm on the inner aspect of lower lip on the left side 0.5cm outer to midline. viii. Contusion 5x1x0.5cm on the outer aspect of left arm 10cm below top of shoulder ix. Contusion 10x2x0.5cm on the left side of front of chest 3 cm outer to midline 2.5 cm below collar bone x. Abraded contusion 6x3x0.8cm on the top of left shoulder 3cm outer to root of neck xi. Contusion 5x5x0.5cm on the outer aspect of left arm 3cm below its top xii. Incised wound 2.5x0.5x0.5 cm horizontally placed on the outer aspect of left arm 2cm below its top CRA 1171/12 & DSR 4/10 26 xiii. Incised wound 8.5x0.5x0.2cm on the back of left hand 3cm below wrist xiv. Incised wound 1.8x0.8x0.2cm on the outer aspect of back of left wrist. xv. Incised wound 2.5x1x0.8cm on the front of left knee." She opined that the deceased died on account of the head injuries sustained in the accident. When she was examined before court, she deposed that injury Nos.1, 3 and 4 with its internal effect, are sufficient, in the ordinary course of nature, to cause her death. She also deposed that injury Nos.12, 13 and 14 would be defensive wounds while the victim was trying to ward off the attack on her. She also deposed that all the injuries noted on the body of the deceased could be possible by cutting with a weapon like MO1 chopper. The fact that the deceased died on account of the injuries sustained in the incident, is not disputed by the accused. So, the learned Sessions Judge was perfectly justified in coming to the conclusion CRA 1171/12 & DSR 4/10 27 that the deceased died on account of the injuries sustained by her in the incident and the injuries could be possible by using a weapon like MO1 chopper. The fact that the injuries were caused by MO1 chopper was also not disputed by the accused, but, he had only disputed the fact that the incident had not happened as described by the Prosecution, but as stated by him in his examination under Section 313 of Cr.P.C. So, the fact that MO1 weapon was used for the commission of the offence is also proved by the prosecution beyond reasonable doubt.
14. Now, the question to be considered is whether the prosecution was able to prove that the accused had committed the offence, beyond reasonable doubt. The prosecution relies on the the evidence of PWs 1 to 3 to prove the incident. PWs 1 and 2 are the mother and father of deceased Usha and PW3 is a neighbour of the accused. PWs 1 and 2 are injured CRA 1171/12 & DSR 4/10 28 witnesses as well. PW1 had categorically stated that the deceased was given in marriage to the accused and the accused used to ill-treat her. When the ill-treatment became unbearable, she was constrained to come and reside in their house. She had further deposed that four days prior to the date of incident, there was a mediation talk held under the leadership of PW6 and others and in that mediation, a settlement was arrived at between them. She had also deposed that on the basis of the settlement, the accused had taken deceased Usha and the child to his house. She also deposed that on 1.11.2009, namely, the date of the unfortunate incident, the deceased had called her over phone and informed that the accused again started to ill-treat her and it was not possible for her to live there. So, she wanted them to come and take her to her house. According to PW1, she along with her husband - PW2 went to the house of the accused and at that time, the accused was in the house. CRA 1171/12 & DSR 4/10 29 The deceased was cutting mutton from inside the house. On seeing them, the deceased started to pack off her clothes and wanted to go along with them. But, the accused prevented her and snatched the plastic kit in which she had taken her clothes and threw it away. At that time, PW2 was sitting in the verandah with the child. She, along with Usha came to the courtyard of the house and at that time, the accused went inside the kitchen, took MO1 chopper and first inflicted cut injuries on the neck and chest of PW2. On seeing this, herself and deceased Usha ran away from there, but the accused chased them and inflicted injuries on the back of her neck with MO1 chopper and then inflicted a cut injury on the head of the deceased Usha. Though the deceased was pleading for mercy and requested not to kill her by saying - '' '', he inflicted injuries on her head indiscriminately. On hearing their hue and cry, when people gathered there, the accused left the place CRA 1171/12 & DSR 4/10 30 with the chopper. The persons gathered there took them first to the Government Hospital, Perumbavoor and from there, to the General Hospital, Ernakulam. Later, they were shifted to the Medical College Hospital, Kottayam from where her daughter Usha succumbed to the injuries sustained by her on the morning of 2.11.2009. She identified MO2 as the churidar worn by the deceased at the time of the incident and MO1 as the chopper used by the accused for inflicting the injuries. It is true that she gave statement to the police after 5 or 6 days of the incident while she was undergoing treatment in the hospital. She had further stated that on getting injury, she became unconscious and she did not know what happened thereafter. She had also admitted that while she was attacked, her husband was standing behind her. She further admitted that there was some altercation between the accused and the deceased, regarding the pledging of some gold ornaments and there was some CRA 1171/12 & DSR 4/10 31 push and pull happened between the accused and her husband. She has also stated in the re-examination that before herself and her daughter got injured, her husband also sustained injuries. She has further stated in the re- examination that when the incident happened, herself, her husband, the deceased and the accused were the only persons present there and only after hearing the hue and cry, people gathered there.
15. It is true that in the cross examination, she had stated that she did not know about the things happened after she became unconscious and according to the prosecution, it is only after inflicting injuries on PWs 1 and 2 that the accused inflicted injuries on the deceased. The learned counsel for the appellant wanted to take advantage of the fact that PW1's evidence is not helpful to prove as to how the deceased had sustained injuries in the incident. No suggestion was given to PW1 that it was PW2, who had attempted to attack the CRA 1171/12 & DSR 4/10 32 accused and at that time, PW1 and deceased Usha sustained injuries as claimed by the accused in his statement under Section 313 of Cr.PC. Further, merely because PW1 had stated that only on hearing the hue and cry, people in the neighbourhood gathered there, it does not mean that except themselves, none could have seen the incident. They may not be knowing about the presence of the persons, who came there and whether there was any possibility of other persons seeing the incident as well, in the circumstances of the case.
16. PW2 is the husband of PW1 and he had corroborated the evidence of PW1 regarding the incident. He had also deposed that on the date of incident, they received a phone call from the deceased and accordingly, they came to the house of the accused to take her to their house, in the evening of that day. According to him, when they reached the house, the deceased told that it was not possible for her to reside CRA 1171/12 & DSR 4/10 33 there and that she along with the child would be coming with them and started gathering her clothes in a plastic bag. But, the accused took the kit containing the clothes and threw it away. His daughter took the kit again and got out of the house and PW1 also followed her. He had also gone out of the house with the child. At that time, the accused came with MO1 chopper and inflicted cut injury on his neck and it fell on the collar of his shirt and he escaped, but he sustained injuries. Then, he saw the accused inflicting injury on the back of his wife and the neck and head of his daughter. The accused was inflicting cut injury on the deceased indiscriminately. According to him, thereafter, the accused left the place with MO1 chopper. He also stated that on hearing their hue and cry, people gathered there and took them to the Government Hospital, Perumbavoor first and from there, to the General Hospital, Ernakulam, from where PW1 and the deceased were taken to the Kottayam Medical CRA 1171/12 & DSR 4/10 34 College. He had identified MO1 as the chopper used by the accused for inflicting injuries on them. He had also deposed that the accused had first inflicted injury on him and then, on his wife and thereafter, on the deceased. He denied having stated as stated in Exts.D1 and D2, when he was questioned by the police. It is true that in the cross examination, he had stated - "" . ( ." But, in the later part of his cross examination, he had stated that he had seen the accused inflicting injury on his daughter and going away from there. He denied the suggestion that he came to their house heavily drunk and picked up quarrel with the accused. He had also denied the suggestion that when he tried to manhandle the accused, the deceased interfered and in that, she sustained injuries. He also denied the suggestion that PW1 sustained injuries when he tried to inflict injury on CRA 1171/12 & DSR 4/10 35 the accused. He also stated that at the time when the entire incident had happened, except themselves and the accused, none were there in the house and it was after inflicting the injuries on them and the accused had left the place that the neighbouring people gathered there. So, his evidence will also go to show that it was the accused, who had inflicted injuries on PWs 1 and 2 and the deceased with MO1 chopper.
17. It is true that there are some contradictions in the evidence of PWs 1 and 2 regarding the manner in which the incident happened. But, these contradictions cannot be said to be material in nature so as to disbelieve their evidence regarding the incident. Further, the manner in which the incident had happened, as narrated by the accused in his 313 examination is an impossibility as well. Moreover, considering the nature of injuries seen on the bodies of the deceased and PW1, such injuries could not be possible in an incident as narrated CRA 1171/12 & DSR 4/10 36 by the accused as well. Further, from the evidence of PW14 - the doctor who conducted the post-mortem examination, it is clear that injury Nos.12, 13 and 14 were defensive wounds, which could have been caused while the victim was trying to ward off the attacks. If really the injuries had happened as suggested by the accused, there is no possibility of so many injuries being caused on the body of the deceased, as noted in the post- mortem certificate. So, all these will go to show that the incident had not happened as stated by the accused, but, as deposed by PWs 1 and 2.
18. PW3 is an eye witness to the incident. According to her, she is residing near to the house of the accused. On the date of the incident, while she was inside the house, at about 5.45 pm, she heard some cries and tumult from the house of the accused and immediately, she rushed towards the courtyard of the house of the accused. At that time, she had seen the CRA 1171/12 & DSR 4/10 37 accused catching hold of the hair bunch of the deceased and inflicting injury on the neck of PW1 and inflicting injuries on the head of the deceased indiscriminately and the deceased was crying '' '' and she was also pleading for mercy with the accused. After inflicting injuries on PW1 and the deceased Usha, he left the place by shouting - " '' Thereafter, she came near Usha, lifted her and gave water to her. The deceased was looking around for the child and when she asked whether she was looking for the child, she just nodded her head. Thereafter, CW6 and others came there and took the injured to the hospital. She identified MO1 chopper as the weapon used by the accused for inflicting the injuries. She also stated that on the morning of the fateful day, the deceased had told her that it was not possible for her to live with the accused. She had also stated in the cross examination that she was watching the incident from CRA 1171/12 & DSR 4/10 38 near the washing stone in her property, which was very close to the house of the accused. It is true that she stated that she had narrated the incident to the police when they came there on the evening of the date of incident itself. But, she had also stated that she did not know when the police had questioned her. She denied the suggestion that she had only seen the deceased and PW1 lying on the ground with injuries and she had not seen the incident as claimed by her. There is no suggestion given to PW3 as to whether she has got any enmity towards the accused for giving false evidence against him. There is nothing brought out to disbelieve the evidence of PW3 regarding the incident. So, the evidence of PWs 1 to 3 will go to show that it was the accused, who had inflicted injuries on PWs 1 and 2 and the deceased and the incident had not happened as stated by the accused. No suggestion was given to PW3 that it was PW2, who had inflicted injuries on the CRA 1171/12 & DSR 4/10 39 deceased and PW1 so as to probabilise his case. Under such circumstances, the manner in which the incident happened as stated by the accused in his 313 examination, can only be an afterthought and the incident had not happened as stated by him, but happened as stated by PWs 1 to 3.
19. Further, the evidence of PW7, who is also a neighbour of the accused, will go to show that after the incident, he had seen the accused going along the road and he tried to stop him when he saw him with MO1 chopper. At that time, Mollichechi told him to leave him as he was coming after murdering a person. Immediately, he released him and the accused cut on the electric post situated on the side of the road with MO1 chopper and then, went into the rubber plantation with MO1 chopper. The statements of the witness on these aspects had not been challenged in cross examination. His evidence shows that after the incident, the accused CRA 1171/12 & DSR 4/10 40 had left the place with MO1 chopper and cut on the electric post and this fact was not challenged in cross examination as well.
20. PW12 is an attestor to Ext.P7 mahazar, which was prepared by verifying the electric post, on which the accused had made a cut with MO1 chopper. He also stated that he had also seen the accused cutting the electric post with MO1 chopper along with PW7. This aspect was also not challenged in cross examination. So, the evidence of PWs 7 and 12 will prove the conduct of the accused immediately after the incident, which is relevant under Section 8 of the Evidence Act.
21. PW15 is the Station House Officer, who registered Ext.P6(a) First Information Report, after recording Ext.P6 statement given by PW11. He had also deposed that on 2.11.2009 at about 8 am, the accused came to the police station and produced MO1 chopper which he seized as per Ext.P3 mahazar, in the presence CRA 1171/12 & DSR 4/10 41 of PW9 - the Assistant Sub Inspector of Police attached to that police station. He had also deposed that he prepared Ext.P4 mahazar, regarding the seizure of MOs 3 to 5 dress of the accused, in the presence of PW9. PW9 had corroborated the evidence of PW15 on this aspect. PW9 had stated that he had not arrested the accused and according to him, he was arrested by PW16 - the Investigating Officer, who prepared Ext.P10 arrest memo in which it was noted that he was arrested at 7.50 pm on 2.11.2009. It is true that there is some discrepancy regarding the time of arrest mentioned in Ext.P11 inspection report and Ext.P10 arrest memo. But, that is not going to make much difference in this case. The fact that the accused was arrested from Kuruppampadi Police Station on 2.11.2009 was not disputed by the accused as well.
22. The question as to whether MO1 chopper was produced by the accused or not, is also not much CRA 1171/12 & DSR 4/10 42 relevant because the use of MO1 chopper for the commission of the offence has not been disputed by the accused. He has got dispute only regarding the person, who committed the crime. Further, the fact that MO1 chopper was seen in the hands of the accused after the incident was also proved by the evidence of PWs 7 and 12. So, even if there is any discrepancy regarding the seizure of MO1, as alleged by the prosecution, it is not going to have any impact in this case as use of the weapon for the commission of the offence is not in dispute.
23. The learned counsel for the appellant argued that though the incident happened on 1.11.2009 at about 6.30 pm, Ext.P6 First Information Statement was recorded only on 2.11.2009 at 7.15 am and the delay has not been explained. It is further pointed out that according to PW3, she had narrated the incident to the police, who came there on the evening of the date of CRA 1171/12 & DSR 4/10 43 incident. If that be so, according to the learned counsel, there is suppression of the earlier First Information Statement and therefore, benefit of the same has to be given to the accused. She relied on the decisions reported in Thulia Kali v. State of Tamil Nadu (AIR 197.SC 501), Rajeevan v. State of Kerala (2003) 3 SCC
355) and Kailash Gour v. State of Assam (2012) 2 SCC 34), in support of her case. It is true that in those cases, it was mentioned that if there was any possibility of recording the First Information Statement given by any person earlier and if that fact was suppressed and another First Information Statement was taken, then, it can be presumed that there was a possibility of deliberation, embellishment and false implication of the accused in such cases. But, in the decision reported in Sher Singh v. State of Punjab (1979 KHC 628), the Honourable Supreme Court has held that in a case where the entire family members were the victims of the CRA 1171/12 & DSR 4/10 44 attack and there was none to give correct statement regarding the incident, then, the delay occurred in giving the statement is not fatal. The very same view has been reiterated in the decision reported in Dhana v. State of West Bengal (1994 KHC 1124), wherein it has been observed that a cryptic telephonic message received at the police station is not sufficient for the police to register a crime and unless the police is satisfied regarding the commission of a cognizable offence, no case need be registered on that basis. The facts of this case are similar to the facts in that decision.
24. In the decision reported in Bhimappa Jinnappa Naganur v. State of Karnataka (AIR 199.SC 1469), it has been observed that if, in the First Information Statement, the names of the witnesses are not mentioned, then, the presence of those witnesses subsequently examined is doubtful regarding their presence at the place of incident. But, in the present CRA 1171/12 & DSR 4/10 45 case, the First Information Statement was given by a person, who had not seen the incident. So, the non- mentioning of the names of the witnesses present, in the First Information Statement is not fatal. Further, it was admitted by PW15 that till Ext.P6 statement was given by PW11, none had come and informed about the incident so as to enable the police to register a case in respect of the incident. He had also deposed that no intimation was received from any of the hospitals regarding admission of the injured persons involved in this case. PW15 also deposed that though he went to the place of occurrence on the date of incident itself, on getting some information regarding the incident, he could not find a person, who might be able to give a full description of the incident, so as to enable him to register a case. He had also deposed that he went to the hospital at Perumbavoor, to which, the injured persons were said to be taken, but the nurse present in that hospital was not able to give the name of CRA 1171/12 & DSR 4/10 46 the hospital, to which the injured persons were taken from that hospital. Further, it is seen from the evidence of PWs 1 and 2 that except the injured persons, the deceased and the accused, none were present at the place of occurrence and they were not sure as to whether any other person had witnessed the incident. It is also an admitted fact that the deceased had sustained severe injuries and PW1 also sustained grievous injury on her neck. PW2 also sustained some injury. So, all the three persons were taken to the hospital and in these circumstances, it was not possible for them to go to the police station and give a statement regarding the incident, as they will be much interested in treating their daughter and also getting treatment for PW1, who also sustained grievous injuries on her neck. Under such circumstances, the delay in giving the First Information Statement is not fatal in this case and from the circumstances, it can be safely concluded that the delay CRA 1171/12 & DSR 4/10 47 has been properly explained as well.
25. It is true that PW3 had stated that on the date of incident itself, she had narrated the incident to the police, who came to the place of occurrence. But, she was not sure as to who had come and to whom she had made the statement as well. Further, the fact that she had given such a statement earlier, was not stated by her before the police, when she was questioned. So, it is not possible to believe that PW3 would have narrated the incident to the police on the date of incident itself, as claimed by her, so as to come to a conclusion that the earlier statement given by PW3 regarding the incident has been suppressed by the Investigating Officer so as to give benefit of doubt to the accused on that count.
26. The dictum laid down in Musheer Khan @ Badshah Khan v. State of Madhya Pradesh (AIR 201.SC 762), is not applicable to the facts of this case. That was a case, where, the identification of the accused by CRA 1171/12 & DSR 4/10 48 the witnesses in the circumstances mentioned therein, was found to be not reliable and that benefit was given to the accused. In this case, there is no dispute regarding the identity of the accused.
27. In the decision reported in Gosu Jayarami Reddy v. State of AP (2011) 11 SCC 766), it has been held that it is not always easy for an eyewitness to a ghastly murder to remember the precise number of injuries inflicted by assailants and on which part of the body the same were inflicted. The evidence of a witness, who has only a momentary view of the incident, which is over within a few minutes, cannot be rejected only because there was some discrepancy in the evidence of that witness regarding the part of the body on which the injury was inflicted. It is also held in the same decision that if the medical evidence and the ocular evidence tallies with each other, then, merely because some discrepancy is there in the evidence of CRA 1171/12 & DSR 4/10 49 the eyewitness regarding the nature of injuries sustained, that is not sufficient to disbelieve his evidence. There may be possibility of some discrepancy to occur, if the witness is examined after the lapse of a long time. In the same decision, it has been held that courts need to be realistic in their expectation from the witness and go by what would be reasonable, based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. It is the totality of the evidence on record and its credibility that would eventually determine whether the prosecution has proved the charge against the accused.
28. In the decision reported in Anna Reddy Sambasiva Reddy v. State of Andhra Pradesh (2009 KHC 5013), it has been held that the golden principle is not to weigh such testimony in golden scales, but to view it from the cogent standards that lend assurance about its trustfulness. If there was mass attack on the CRA 1171/12 & DSR 4/10 50 deceased, it is not possible for the eyewitness to specify each injury sustained by the deceased and also as to which person among the accused had inflicted such injury. Merely because the witnesses did not specify each injury so specifically, that is not a ground to discredit their evidence.
29. In the decision reported in Muniappan v. State of Tamil Nadu (2010 KHC 4621), it has been held that court should not give undue importance to omissions, contradictions and discrepancies, which do not go to the root of the matter. Court has to evaluate the entire evidence and then come to a conclusion as to whether the witness is telling the truth before Court.
30. In the decision reported in Kirtan Bhuyan v. State of Orissa (1992 Crl.LJ 2325), it has been held that mere suggestion or suspicion of the defence alone is not sufficient to discredit the evidence of an eyewitness. Each and every suggestion of the defence at the CRA 1171/12 & DSR 4/10 51 investigation need not lead to the investigator to follow it. Had there been a counter version and the suggestion was that the Investigating Officer had wrongly not recorded a cross F.I.R., it might have been a different matter. But, in the case on hand, except a vague suggestion given by the accused to PW2, there is nothing on record to show that the incident had happened as suggested by the accused or there was any possibility of such an incident having happened as narrated by him in his 313 examination. Under such circumstances and in view of the dictum laid down in the above decisions, the delay in registering the First Information Report in this case and some minor discrepancies in the evidence of PWs 1 to 3, cannot be said to be fatal and that cannot be made a ground for acquittal of the accused.
31. Further, some discrepancy in the evidence of PWs 1 and 2 regarding the incident is also not fatal, as it cannot be said to be material contradictions, which CRA 1171/12 & DSR 4/10 52 goes to the root of the matter. Moreover, the evidence of PWs 1 and 2 was supported by the evidence of PW3, whose presence at the place of occurrence is probable and believable and there is nothing brought out to discredit her evidence regarding her presence near the place of occurrence and witnessing the incident.
32. It is true that there are some lapses on the part of the Investigating Officer in conducting the investigation. If PW15 had further pursued his enquiry regarding the hospital to which the injured were taken from the hospital at Perumbavoor, he could have succeeded in that attempt and there was possibility of getting the statements of the deceased as well as the injured - PW1 on the date of incident itself. That was not done in this case. Further, the wound certificates of the injured as well as the deceased, prepared by the hospital authorities, to which they were taken first, may have also thrown some light in this regard. But, that was not CRA 1171/12 & DSR 4/10 53 collected and produced in this case. It is settled law that a defective investigation alone is not a ground to acquit the accused. This was so held in the decision reported in Surajit Sarkar v. State of West Bengal (2013 (1) SC Cr.R.102) relying on the decisions in Visveswara v. State (2003) 6 SCC 73), Muniappan's case (supra) and Sheo Shankar Singh v. State of Jharkhand (2011) 3 SCC 654). So, merely because there was some defect in the investigation, that is not sufficient to come to the conclusion that the accused is entitled to get acquittal unless it is proved by the defence that it has caused some prejudice to him. Further, if there is other evidence adduced on the side of the prosecution to prove the incident beyond reasonable doubt, then, that will have to be taken into account by the Court while appreciating the evidence regarding the incident. In this case, the evidence of PWs 1 to 3 will go to show that the incident had happened as alleged by the prosecution and not as CRA 1171/12 & DSR 4/10 54 alleged by the defence and there is nothing brought out in evidence to discredit their evidence on this aspect as well. It has been observed in the decision reported in Hema v. State, Thr.Inspector of Police, Madras (2013 (1) Supreme Today
627) that any defect in the investigation by itself, cannot be a ground for acquittal, if primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Hence CRA 1171/12 & DSR 4/10 55 investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of trial in the case cannot be allowed to depend solely on the probity of investigation.
33. The learned counsel for the appellant submitted that even assuming that the entire prosecution case is accepted, the offence will not fall under Section 302 of the Indian Penal Code, but it may fall only under Section 304 Part I or II thereof as there is no case for the prosecution that it was a pre-meditated murder. The evidence will go to show that the incident had happened all of a sudden when PWs 1 and 2 wanted to take the wife of the accused from his house to their house and it can be taken only as an act of the accused, due to sudden provocation. It is true that if something had happened due to sudden provocation, then, the accused may be entitled to get benefit of that situation. But, in this case, there was ample opportunity for the accused to CRA 1171/12 & DSR 4/10 56 cool down from the alleged sudden provocation and to control himself, to avoid the unfortunate incident. Further, he had inflicted several injuries on the body of the deceased, though she was trying to ward off certain blows. He had also inflicted injuries on PWs 1 and 2 as well. The evidence of PW10 - the doctor, who treated PW1 and issued Ext.P5 discharge certificate would also show that PW1 sustained grievous injuries on her neck. So, it cannot be said that he is entitled to get the benefit of the defence of sudden provocation so as to bring down the offence to a lesser grade as claimed by the learned counsel for the appellant. It is clear from the evidence of PW14 that the accused had inflicted the injuries on the vital parts of the body of the deceased, knowing fully well that those injuries are sufficient, in the ordinary course, to cause her death. Further, he had also inflicted injuries on the neck of PW1, which was likely to cause her death as well. Under such circumstances, CRA 1171/12 & DSR 4/10 57 there is no merit in the submission made by the counsel for the appellant that the offence under Section 302 of the Indian Penal Code is not attracted. It will really fall under Thirdly of Section 300 and not under the Third Exception and Explanation 1 of Section 300, which is punishable under Section 302 of the Indian Penal Code. Merely because the learned Sessions Judge has not recorded any specific finding regarding the charge of attempt to murder in respect of the injury inflicted on PW1, it is not a ground to disbelieve the entire case of the prosecution as contended by the learned counsel for the appellant and it cannot be taken as a ground to disbelieve the entire prosecution case and give that benefit to the accused as a ground for acquittal.
34. In view of the discussions made above and also considering the evidence available on record, it can be safely concluded that the prosecution has proved beyond reasonable doubt that the accused had inflicted injuries on PW1 with an intention to commit murder, with CRA 1171/12 & DSR 4/10 58 MO1 chopper and also inflicted injuries on deceased Usha, his wife, with an intention to cause that particular injury, which is likely to cause her death in the normal course and thereby, he had committed the offences punishable under Sections 302 and 307 of the Indian Penal Code and the learned Sessions Judge was perfectly justified in convicting the appellant for the offences punishable under Sections 302 and 307 of the Indian Penal Code. Therefore, no interference is called for on this aspect and the points are answered against the accused and in favour of the prosecution. Points (v) & (vi) 35. The learned counsel for the appellant argued that the learned Sessions judge had treated this case as the rarest of the rare cases to impose the death penalty. Further, the learned Sessions Judge imposed life imprisonment even for the offence under Section 307 of the Indian Penal Code, which is unsustainable in law. CRA 1171/12 & DSR 4/10 59 The circumstances of the case will go to show that it was a not a pre-meditated murder and it was not done with any prior motive and it cannot be said to be a preplanned murder in a ghastly manner. The lower court has not considered the mitigating circumstances in favour of the accused to avoid death penalty. So, according to the learned counsel for the appellant, the learned Sessions Judge was not justified in imposing the death penalty as it will not fall under the category of offences of the rarest of the rare cases and the punishment imposed is harsh.
36. On the other hand, the learned Additional Director General of Prosecution would argue that the conduct of the accused, the manner in which the injuries were inflicted, the number of injuries inflicted on the deceased and the helpless condition of the victims, the infliction of injuries on the deceased, in spite of the fact that she was pleading for mercy and the conduct of the CRA 1171/12 & DSR 4/10 60 accused after the incident, all will go to show that the aggravating circumstances are outweighing the mitigating circumstances in favour of the accused and therefore, according to him, the learned Sessions Judge was perfectly justified in coming to the conclusion that it is the rarest of the rare cases and that the alternate punishment of imprisonment for life is not adequate as otherwise, the people will lose confidence in the criminal justice delivery system and rightly imposed the death penalty for the offence under Section 302 of the Indian Penal Code and life imprisonment for the offence under Section 307 of the Indian Penal Code.
37. The learned Sessions Judge relied on the decisions reported in State of Rajasthan v. Kheraj Ram (2003) 8 SCC 224), Lehna v. State of Haryana (2002) 3 SCC 76), Bachan Singh v. State of Punjab (AIR 198.SC 898), Ediga Anamma v. State of AP (AIR 197.SC
799) and Machi Singh v. State of Punjab (1983) 3 SCC CRA 1171/12 & DSR 4/1”
47. , analysed the circumstances of the case and came to conclusion that the act of the accused in murdering the deceased will fall under the rarest of the rare cases category and also that in this case, culpability has assumed the proportion of extreme depravity and the accused is a perfect example of a blood thirsty, hardened criminal and there is no possibility for his reformation and death penalty is the only punishment that could be possible in this case and awarded death penalty in this case. Further, the maximum sentence of life imprisonment was also awarded for the offence under Section 307 of the Indian Penal Code.
38. Before going to the question as to whether the sentence of death penalty imposed by the court below is to be confirmed or not, we may refer to the principles laid down by various decisions of the Apex Court on this aspect. CRA 1171/12 & DSR 4/1”
39. Section 354(3) of the Code of Criminal Procedure reads as follows : "When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence." It is clear from the above provision that special reasons will have to be stated for the purpose of awarding death penalty.
40. In the decision reported in Sangeet v. State of Haryana (2013 (1) SC Cr. R.114), the Honourable Supreme Court has, after considering several decisions of the Apex Court, namely, Bachan Singh's case (supra), Dalbir Singh v. State of Punjab (1979) 3 SCC 745), Dilip Premnarayan Tiwari v. State of Maharashtra (2010) 1 SCC 775), Gopal Vinayak Godse v. State of Maharashtra (AIR 196.SC
600) and Jagmohan Singh v. State of UP (1973) 1 SCC
20) observed that the normal rule is that the offence of CRA 1171/12 & DSR 4/10 63 murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death, only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing death sentence. The Honourable Supreme Court has also enumerated as to what all are the aggravating and mitigating circumstances, as follows : "Aggravating circumstances (a) if the murder has been committed after previous planning and involves extreme brutality, or (b) if the murder involves exceptional depravity ; or ) 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 CRA 1171/12 & DSR 4/10 64 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 Code, 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. Insofar as the mitigating circumstances are concerned, they refer to the criminal. They are : (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If 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) CRA 1171/12 & DSR 4/10 65 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 effect impaired his capability to appreciate the criminality of his conduct." 41. In the decision reported in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498), it has been observed as follows : "........the balance-sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan Singh threshold of "rarest of rare cases" has been most variedly and inconsistently applied by the various High Courts as also this court." CRA 1171/12 & DSR 4/10 66 The very same view has been reiterated in the decision reported in Sunder @ Sundararajan v. State by Inspector of Police (2013 (1) Supreme Today 641), relying on the decision in Haresh Mohandas Rajput v. State of Maharashtra (2011) 12 SCC 56), wherein it has been observed as follows : "Death sentence - when warranted :
18. The guidelines laid down in Bachan Singh v. State of Punjab, AIR 198.SC 898.may be culled out as under: "(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 be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the CRA 1171/12 & DSR 4/10 67 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 just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." 19. In Machhi Singh and Ors. v. State of Punjab, AIR 198.SC 957.this Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community is so shocked that it will expect the holders of the judicial powers centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, such a penalty can be inflicted. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances.
20. "Rarest of the rare cases" comes when a convict would be a menace and threat to the harmonious and peaceful co-existence of the society. The crime may be heinous or brutal but may not be in the category of "rarest of the rare cases". There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as CRA 1171/12 & DSR 4/10 68 would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious co-existence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fiber of the society, e.g. crime committed for power or political ambition or indulge in organized criminal activities, death sentence should be awarded. (See: C. Muniappan and Ors. v. State of Tamil Nadu, AIR 201.SC 3718.Rabindra Kumar Pal alias Dara Singh v. Republic of India, (2011) 2 SCC 49.: (AIR 201.SC 1436); Surendra Koli v. State of UP and Ors., (2011) 4 SCC 8.: (AIR 201.SC 970); Mohd. Mannan (supra); and Sudam @ Rahul Kaniram Jadhav v. State of Maharashtra, (2011) 7 SCC 12.: The same principle has been reiterated in the decision in Mohinder Singh v. State of Punjab (2013(1) Supreme CRA 1171/12 & DSR 4/10 69 Today 452).
42. It is clear from the dictum laid down in the above decisions that life imprisonment is the rule and death penalty is an exception. It is also true that murder is a grave offence and is brutal in nature. But, merely because murder was committed, that is not a ground to award death penalty, unless the court is satisfied that it comes under the category of the rarest of the rare cases, where there is no alternate punishment, except to impose death penalty and the conscience of the court and the community has been shocked on account of the gruesome act committed by the accused. The questions as to whether the death penalty imposed by the learned Sessions Judge has to be confirmed or not and whether the sentence imposed for the offence under Section 307 of the Indian Penal Code is to be interfered with or not, will have to be considered with the above principles in mind and also after considering the facts and CRA 1171/12 & DSR 4/10 70 circumstances of this case.
43. The learned Sessions Judge has found that the accused had murdered a young helpless woman, ignoring the fact that she was pleading for mercy and has also attempted to murder PW1, an old woman. The learned Sessions Judge has also come to the conclusion that the presence of the accused will be a menace to the society and he was in the habit of taking alcohol during festival days and he has not repented for the acts done by him. These findings were entered by the learned Sessions Judge, taking into consideration, the manner in which the accused had answered the questions put to him when he was examined under Section 313 of the Code of Criminal Procedure and also when he was questioned regarding the sentence to be imposed. He had only stated that he wants to live with the child and his old parents, which the lower court had considered as not stated by the accused from his heart. CRA 1171/12 & DSR 4/10 71 The lower court also projected the accused as a person thirsty of blood and a hardened criminal. This observation was made by the learned Sessions Judge, without any evidence adduced on the side of the prosecution on these aspects. Neither the prosecution nor the witnesses examined in the case had a case that he is having any previous criminal background and that he was a threat to the people in the locality. Merely because he had stated that he used to consume alcohol during festival days, it is not sufficient to come to the conclusion that he is a coldblooded man with criminal tendency. He had only reiterated his stand as to how the incident occurred as claimed by him, when he was questioned under Section 313 of the Code of Criminal Procedure and it cannot be taken as a ground to come to the conclusion that he had no repentance for the acts committed by him. He had only pleaded his innocence in the incident. CRA 1171/12 & DSR 4/1”
44. It can be seen from the evidence that it was not a pre-meditated, pre-planned, coldblooded murder. The incident happened all of a sudden, which could not be controlled by anyone. It may be mentioned here that the incident happened, when PWs 1 and 2 came to the house of the accused to take his wife to their house, which was not liked by him. Further, when he objected the act of the wife going along with her parents, she ignored the same, which provoked him and in that provocation, he lost his control and committed these acts. The prosecution had also no case that the accused had involved in any other crime and there is possibility of the accused being involved in further crimes, if leniency is shown in his favour. He is also young. Further, the fact that he had stated in the further questioning regarding sentence that he wanted to spend the rest of his life with his child and his ailing parents, will show that he has the liking to live for others. That is also an CRA 1171/12 & DSR 4/10 73 indication that he wants to reform himself and spend the rest of his life for the welfare of others. It is settled law that the mere fact that a murder has been committed, is not a ground to come to the conclusion that it comes under the category of the rarest of the rare cases, where no alternate punishment other than death penalty has to be imposed.
45. The learned Sessions Judge had not considered the mitigating circumstances in favour of the accused before awarding death penalty against him. Considering the entire facts and circumstances of the case and also the circumstances under which the incident had happened and the subsequent conduct of the accused of going to the police station and surrendering himself, all will go to show that it cannot be treated as the rarest of the rare cases, where no alternate sentence less than the sentence of death penalty would be the suitable punishment. Under such CRA 1171/12 & DSR 4/10 74 circumstances, we feel that the act of the accused will not fall under the category of the rarest of the rare cases, to award death penalty and the learned Sessions Judge was not justified in awarding death penalty to the appellant in this case. We feel that the same can be set aside and converted to imprisonment for life. Apart from that, imposing a fine of Rs.50,000/- and in default, to undergo rigorous imprisonment for five years, will be sufficient punishment for the offence under Section 302 of the Indian Penal Code apart from the sentence of imprisonment for life and that will meet the ends of justice in this case. The learned Sessions Judge also imposed the maximum punishment of life imprisonment and also a fine of Rs.5 lakhs and in default, to undergo rigorous imprisonment for 4 years more for the offence under Section 307 of the Indian Penal Code. It is true that the second part of Section 307 of the Indian Penal Code says that if the act involves causing of hurt to the CRA 1171/12 & DSR 4/10 75 injured, then, he can be sentenced to imprisonment for life or other punishment provided as aforesaid. So, the maximum punishment that has been provided in the first part for the offence under Section 307 may extend to imprisonment for a period of 10 years or life imprisonment and with fine. So, considering the circumstances of the case, we feel that sentencing the appellant to undergo rigorous imprisonment for 7 years and also to pay a fine of Rs.50,000/- and in default, to undergo rigorous imprisonment for four years, will be sufficient punishment for the offence under Section 307. Accordingly, the sentence imposed by the court below stands modified as follows : The death penalty imposed by the court below is set aside and the same is converted to imprisonment for life and the appellant is also sentenced to pay a fine of Rs.50,000/- CRA 1171/12 & DSR 4/10 76 (Rupees Fifty Thousand only) and in default, to undergo rigorous imprisonment for four years, under Section 302 of the Indian Penal Code. The sentence imposed by the court below for the offence under Section 307, namely imprisonment for life and also to pay a fine of Rs.5 lakhs and in default to undergo rigorous imprisonment for four years, is also set aside and the same is modified as follows : The appellant is sentenced to undergo rigorous imprisonment for 7 years and also to pay a fine of Rs.50,000/- and in default, to undergo rigorous imprisonment for four years under Section 307 of the Indian Penal Code. If the fine amount is realised, an amount of Rs.20,000/- shall be paid to PW1 as compensation and the balance CRA 1171/12 & DSR 4/10 77 amount of Rs.80,000/- shall be paid to the child, who has lost her mother at a young age, as compensation and this amount shall be paid to PW1, the grandmother, with whom the child is now living, with a direction to deposit the amount in the name of the minor child till she attains majority, with liberty to PW1 to withdraw the interest being accrued during the period of minority and utilise the same for the welfare of the child and after attaining majority, the amount can be paid to the child for her welfare, invoking the power under Section 357(1)(b) of the Code of Criminal Procedure in this regard. The appellant is entitled to set off for the period of detention undergone by him as an under-trial prisoner, subject to the appropriate orders passed by the appropriate Government under Sections 432 and 433/433A of the Code of Criminal Procedure. CRA 1171/12 & DSR 4/10 78 The substantive sentences shall run concurrently. The points are answered accordingly. In the result, the appeal is allowed in part and the death sentence reference is answered as follows : The order of conviction entered by the court below against the appellant for the offences punishable under Sections 302 and 307 of the Indian Penal Code, is hereby confirmed. The death penalty is converted to imprisonment for life and the accused is also sentenced to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default, to undergo simple imprisonment for four years, under Section 302 of the Indian Penal Code. The sentence of imprisonment for life and fine of Rs.5 lakhs and in default to undergo rigorous imprisonment for four years, imposed by the court CRA 1171/12 & DSR 4/10 79 below for the offence punishable under Section 307 is set aside and the same is modified as follows: The appellant is further sentenced to undergo rigorous imprisonment for 7 years and also to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default, to undergo rigorous imprisonment for four years, for the offence punishable under Section 307 of the Indian Penal Code. If the fine amounts are realised, the learned Sessions Judge is directed to pay an amount of Rs.20,000/- to PW1 as compensation under Section 357(1)(b) of the Code of Criminal Procedure and further directed to pay the balance amount of Rs.80,000/- to the minor child of the accused, which shall also be paid to PW1, with whom the child is now living, to be deposited in the name of the minor CRA 1171/12 & DSR 4/10 80 child till she attains majority with liberty to PW1 to receive interest being accrued thereon for spending the same for the welfare of the child, under Section 357(1)(b) of the Code of Criminal Procedure. On attaining majority, the child will be at liberty to withdraw the amount for her purpose. The appellant is entitled to set off for the period of detention undergone by him in this case as an under-trial prisoner under Section 428 of the Code of Criminal Procedure, subject to appropriate orders that may be passed by the appropriate Government under Section 432, 433/433A of Cr.P.C. in this regard. The substantive sentences shall run concurrently. The Sessions Court shall issue modified committal warrant to the jail authorities in accordance with law. CRA 1171/12 & DSR 4/10 81 With the above modification of the Judgment of the lower court, the death sentence reference is answered and the appeal is allowed in part. We place our appreciation on record for the enthusiasm and interest shown by Adv.Smt.K.R.Krishnakumari, Legal Aid Counsel appointed for arguing the case for the appellant, who is in custody. S.SIRI JAGAN, JUDGE K.RAMAKRISHNAN,JUDGE sta CRA 1171/12 & DSR 4/10 82 CRA 1171/12 & DSR 4/10 83