1. Learned IV Additional Sessions Judge, Bhopal, has award the sentence of death to respondent/accused and has made reference of the proceedings to this Court for confirmation of the death sentence passed by the impugned judgment. The appellant has challenged the conviction and the sentence of death and other sentences awarded to him by the trial court. Since the reference and the appeal arise out of the same impugned judgment, both are being disposed of by this common judgment.
2. Appellant Mohd. Shafiq has filed the appeal against the judgment dated 18.1.2010, passed by the IV Additional Sessions Judge, Bhopal, in Sessions Trial No.329/2009, convicting him under Sections 302, 307 and 309 of the Indian Penal Code and sentencing him to death for committing murders of Sanjida, Rubina and Amina with fine of Rs.3000/-, rigorous imprisonment for 10-10 years with fine of Rs.1000/- - 1000/- on two counts and simple imprisonment for one year, on each count respectively. Sentences of imprisonment have been directed to run concurrently.
3. The prosecution case is that on 4.2.2009 Head Constable Ramkripal of Police Station, Habibganj, district Bhopal, received information that some incident had taken place in a house situated near Ahle Hadis Maszid in New Kabad Khana locality. Somebody's neck had been chopped and blood was spread. After recording this information in General Diary, Sub Inspector Chandraveer Singh Rathore (PW-11) and Head Constable Devi Singh rushed to the spot in the mobile van. Chandraveer Singh Rathore found five persons lying injured in pool of blood. He shifted the injured persons to hospital. Injured Amina and Rubina, who were the daughters of the appellant, were declared dead. Sanjida, wife of accused, died on 5.2.2009. Other two daughters of accused viz. Arsi and Ayna were injured. Dead bodies of three deceased persons were sent for postmortem examination and injured girls were sent for treatment and medico legal examination. A dying declaration (Ex.P/39) of injured Ayna @ Seema was recorded by Executive Magistrate Chandra Shekhar Shrivastava. During investigation, an iron hammer, a Churi, blood stained clothes, bed sheets etc. were seized from the room and were sent to FSL for chemical examination. Since there were injuries on the body of appellant also, he was also sent for medical examination. Some pieces of papers, purporting to be suicidal notes, were seized from the room where the incident took place. The first information report (Ex.P/26) was recorded by Nagendra Kumar Pateria (PW-16), Station Officer of Police Station Hanumanganj, Bhopal under Sections 307, 302 and 309 of the Indian Penal Code.
4. After investigation, charge sheet was filed and the case was committed for trial. The defence of the appellant was that some unknown person had committed murders of his wife and two daughters and also caused injuries to him and other daughters. Prosecution witnesses spoke false against him under the influence of his in-laws.
5. Prosecution, to substantiate its case, examined 19 witnesses. Daughters of appellant viz. Ayna (PW-1) and Arsi (PW-6) were examined as eyewitnesses in the case. Raeesa Bi (PW-7), the sister of deceased Sanjida, who reached the spot immediately after the occurrence, was also examined. Chandra Shekhar Shrivastava (PW-18), the Executive Magistrate deposed about recording of dying declaration (Ex.P/39) of Seema @ Ayna. Dr. Jayanti Yadav (PW-2), Dr. Ravi Upadhyay (PW-3), Dr. Neelam Shrivastava (PW-4), Dr.Mahendra Pal Singh (PW-12), Dr. Devendra Sharma (PW-13) and Dr.Keshav S. Budhwani (PW-17) were examined to prove the injuries found on the bodies of victims as well as the appellant.
6. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, held the accused/appellant guilty and convicted and sentenced him as mentioned earlier. The appellant has challenged his conviction and sentence by this appeal, whereas the learned trial judge has referred the proceedings of the case to this Court for confirmation of death sentence awarded to accused/appellant.
7. We have heard the learned counsel for the parties and perused the evidence on record.
8. It was no longer disputed that deceased Amina, Rubina and Sanjida died of homicidal injuries and Arsi and Ayna suffered grievous injuries.
9. Dr. Jayanti Yadav (PW-2), Assistant Professor in Forensic Department of Gandhi Medical College, Bhopal, conducted postmortem examination of the dead bodies of Rubina and Amina. Rubina was a girl aged about 14 years. Dr. Jayanati Yadav (PW-2) found following injuries on the body of Rubina: "A Lacerated wound present over right forehead situated obliquely 5 x 3 cms. With medial upper end bone above mid of right eyebrow scalp ecchymosed internally over right parieto temporal region. Right temporal muscle ecchymosed. A depressed fracture triangular in shape present over right frontal bone with its base over coronal suture and directed anteriorly. Posteriorly radiating fracture goes from lateral edge upto tempro parietal suture and continue over it as sutural fracture going downwards beyond mastoid upto right middle cranial fossa. Size of depressed fracture is 1.5x1x1.5 cm. Another depressed fracture present over right parietal bone from medial to parietal eminence. Underneath subdural haemorrhage present all over vault. Sub arachnoid haemorrhage all over. Contusion present over base of frontal and temporal region."
In the opinion of doctor, death of deceased was caused due to shock and haemorhage as a result of injuries. The injuries were caused by hard and blunt object. Death was homicidal in nature. Duration of death was within six hours since postmortem examination (11.05 am/4.2.2009). Postmortem report of Rubina is Ex.P/1.
Dr. Jayanti Yadav (PW-2) also performed the postmortem examination of the body of Amina, a girl aged about 16 years, and found following injuries on her body:
"Lacerated wound present over right forehead 2.5 above lateral end of left eyebrow 3.5 x 3 cms oblique with lower end medial. Scalp is ecchymosed on left temporal region. Left temporalis muscle ecchymosed on upper and lower aspect. Underneath depressed fracture of skull of size 2 x 1 cm and sagital plane present over left fronto temporal bone. Sub dural haemorrhage present over right side vault and sub arachnoid haemorrhage present all over."
According to Dr. Jayanti Yadav, death of Amina was caused due to shock and haemorrhage as a result of injuries caused by hard and blunt object. Death was homicidal in nature. Duration of death was within six hours since postmortem examination. Postmortem report of Amina is Ex.P/2.
10. Dr. Neelam Shrivastava (PW-4), who was posted in Medico Legal Institute, Bhopal, conducted the postmortem examination of the body of deceased Sanjida, wife of accused Mohd. Shafiq. She found: "A surgically stitched lacerated wound present on the forehead from medial end of left eyebrow running obliquely upward on right forehead up to hairline with 6 stitches of size 9 cms long and 4 cms above right eyebrow. Underneath scalp was haemorrhagic. Frontal and parietal bones were fractured into multiple pieces. Depressed fracture with radiating fracture of size 2 cms to 6 cms backward transversely. Sub dural and sub arachnoid haemorrages were present all over. CSF was haemorrhagic. She also found a normal male foetus of 21 cm x 20 cm x 13 cm (8-9 months old in the uterus)."
In her opinion, death of Sanjida was due to cardio respiratory failure as a result of head injury and its complications. Injury was sufficient to cause death in ordinary course of nature and was caused by hard and blunt object. Death was homicidal in nature. Postmortem report of Sanjida is Ex.P/6.
11. According to Inspector Nagendra Kumar Pateria (PW-16) on 4.2.2009 alongwith other articles he seized an iron hammer (Article-A) from the spot vide seizure memo Ex.P/21. This hammer was sent for chemical examination to FSL, Sagar. As per reports of FSL (Ex.P/34 and Ex.P/36), human blood was found on the hammer. This hammer was also sent to Dr. Jayanti Yadav (PW-2) for obtaining her opinion whether the injuries found on the bodies of Rubina and Amina could have been caused by the said hammer. Dr.Jayanti Yadav (PW-2), vide her report Ex. P/3, opined that the injuries found on the bodies of Amina and Rubina and described in their respective postmortem examination reports could have been caused by such type of weapon.
12. From the above evidence, it is clearly evident that deceased Rubina, Amina and Sanjida died due to homicidal injuries found on their heads by some heavy hard and blunt object.
13. Dr. Ravi Upadhyay (PW-3), RSO, Gandhi Medical College, Bhopal, examined the injuries of Ayna and Arsi on 4.2.2009. He found following injuries on the body of Ayna:-
"(1) Lacerated wound 4x1.5 cm on right frontal region with palpable fracture.
(2) Lacerated wound at mid occipital 2 x 1 cm.
(3) Lacerated wound behind right ear 2 x 1 cm." He referred the injured for X-ray examination of her skull. In his opinion, the nature of injury was grievous. The injury report of Ayna is Ex.P/4. Dr. Ravi Upadhyay (PW-3) found following injuries on the body of Arsi:- "(1) Lacerated wound over occipital region 2 x 0.5 cm. (2) Swelling on right parietal region of skull. (3) Right black eye."
He referred the injured for X-ray examination of her skull. In his opinion, injuries were grievous in nature. The injury report of Arsi is Ex.P/5.
14. According to Dr. Keshav S. Budhwani (Ex.P/17), Assistant Surgeon of Gandhi Medical College, he also examined injured Arsi and found fractures in her skull bones. The injury report given by him is Ex.P/37.
15. Dr. Swati Paliwal (PW-19), RMO Radiologist of Medical College, Bhopal performed the X-ray examinations of injured Arsi and Ayna. According to him also, there were fractures in the skull bones of Arsi. Her X-ray report is Ex.P/41. Since X-ray plate of Ayna was not clear, she performed CT Scan examination and found a fracture on the forehead of Ayna. CT Scan report is Ex.P/42. The evidence of the aforesaid doctors has not been challenged. Thus, it is established that Arsi and Ayna suffered grievous head injuries. Though it has not been specifically stated by the doctors that the injuries were dangerous to life, yet from the nature of injuries and the part of body on which these injuries were found, it can be inferred with certainty that the injuries were dangerous to life.
16. Learned counsel for the appellant, however, submitted that the trial Court gravely erred in placing implicit reliance on the evidence of alleged eyewitnesses Seema @ Ayna (PW-1) and Arsi (PW-6). They were child witnesses and their evidence was not reliable. The possibility of their being tutored could not be ruled out. He submitted that it was not established that appellant committed murders of Rubina, Amina and Sanjida and attempted to cause death of Ayna and Arsi. He also submitted that it was not established that appellant attempted to commit suicide, as there was no evidence on record in this regard. On the other hand, learned counsel for the State justified and supported the conviction of the appellant.
17. We have gone through the entire evidence on record. Seema @ Ayna (PW-1), the daughter of appellant, categorically stated that in the night when she was sleeping with her mother and sisters, on hearing some sound, she saw her father inflicting blow of hammer on the head of her mother. When she tried to run away, her father started assaulting her also. She suffered injuries on her head and back. She further stated that there was only one room in the house in which all the persons were sleeping. Only door of the room remained closed in the night. Her father also assaulted Rubina with the hammer. She became unconscious after receiving injuries. After discharge from the hospital, she lived with her aunt (Mami). She stated that on the day of incident they had come back after attending a marriage feast. When they were sleeping, light was on. She firmly denied that she gave her statement before the Court on being tutored by her Mumani (Mami).
18. Another daughter of appellant viz Arsi (PW-6), aged about 4 years, pointing to her father deposed that he assaulted her mother by a hammer on her head. He also assaulted to her (witness) on her head with a plate. In cross-examination, she stated that at the time when she was assaulted, she was awake and the light was on. She did not see any injury on the neck of her father and that at that time none had come to her house.
19. Seema @ Ayna (PW-1), is a girl of 11 years. She and Arsi happened to be the daughters of accused. There appeared no reason for their speaking false against their father. No suggestion was put to Arsi that she was tutored by anybody. Ayna firmly denied the suggestion that she had given the statement on asking of her aunt (Mumani). There were no contradictions or discrepancies in the statement of these child witnesses. It is true that Ayna (PW-1) stated that she saw the assault on her mother and sister Rubina only, and Arsi (PW-6) saw the assault on her mother and herself but this cannot be said to be a discrepancy. Since there was light in the room, it cannot be said that she could not have seen the assailant. Merely because the child witnesses did not say about the assault on all the deceased persons, it cannot be held that they did not see the occurrence especially when their presence in the single room house of their father has not been challenged. The evidence of both the witnesses finds support from the medical evidence i.e. postmortem examination reports of deceased Sanjida and Rubina, who were found to have suffered injuries on their heads by a hard and blunt object like a hammer. A hammer was also seized from the place of occurrence by Inspector Nagendra Kumar Pateria (PW-16) in presence of Abdul Hakim (PW-15). This hammer was sent for chemical examination to Forensic Science Laboratory, Bhopal and vide FSL report Ex. P/34 it was found to have human blood stains.
20. Evidence of Ayna and Arsi finds further support from the evidence of Raeesa Bi (PW-7), the elder sister of deceased Sanjida. Raeesa Bi was married to elder brother of appellant. According to her, when she was called by Raees, the son of appellant, in the morning, she went to the house of appellant and saw Sanjida and four daughters of accused lying injured. None of them were speaking. Ayna and Arsi were unconscious. Appellant was standing at the place of occurrence. There were some injuries on his neck.
21. In the case of Panchhi v. State of UP-AIR 1998 SC 2726 it has been held by the Apex Court that it cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. Evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. It is more a rule of practical wisdom than a law.
22. In the case of Suryanarayana v. State of Karnataka-AIR 2001 SC 482 it has been held that the evidence of a child witness cannot be discarded only on the ground of her being of teen age. The fact of a child witness would require the Court to scrutinies the evidence with care and caution. If the evidence is shown to have stood the test of cross-examination and there is no infirmity in the evidence, then a conviction can be based upon such testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness.
23. While considering the acceptability of the evidence of a child of about 6 years of age, the Apex Court in Bhagwan Singh v. State of M.P.-AIR 2003 SC 1088 observed that "the law recognizes the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony."
24. In the above case, accused persons had caused the death of mother of the child of six years of age at mid night and the child after having seen his mother being assaulted by accused went back to sleep and the prosecution did not examine the person to whom the child met first after the incident and took him to other village. It was said that child did not narrate the incident to that person. In these circumstances, the trial Court as well as the Apex Court found it hazardous to rely on the sole testimony of the child in the absence of any corroboration.
25. In the instant case, we find that the evidence of child witnesses Ayna (PW-1) and Arsi (PW-6) is natural and untutored. It is clear, cogent and trustworthy. Apart from it, it finds corroboration from the medical evidence also. Both the girls had suffered injuries, which have been proved by Dr. Ravi Upadhyay (PW-3), Dr. Keshav S. Budhwani (PW-17) and Dr. Swati Paliwal (PW-19). We are of the considered opinion that the trial Court committed no error in relying on the testimony of these two child eyewitnesses.
26. Apart from the evidence of eyewitnesses, the circumstances proved by the prosecution indicate that it was only appellant who inflicted injuries to deceased persons as well as to injured victims. In Trimukh Maroti Kirkan v. State of Maharashtra-(2006) 10 SCC 681 the Apex Court observed that "it is necessary to keep in mind Section 106 of the Evidence Act, which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him". It was observed that "where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." It must be kept in mind that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances. The Apex Court observed that "where an accused is alleged to have committed murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
27. On applying the above principles in the instant case, we find that in the night the appellant was in his dwelling house where his four daughters and wife were asleep. In the morning, when Raeesa Bi (PW-7) reached at the place of occurrence, she found appellant present at the spot. It was stated by Raeesa Bi that the appellant also had injury on his neck. On being brought by a constable, Dr. Mahendra Pal Singh (PW-12), RSO Hamidiya Hospital had examined the appellant and had found two injuries on his body; (1) incised wound (sharp edged) on upper abdomen below bilateral sub coastal region horizontal 30 x 8 cms and (2) incised wound 18 x 5 cms in neck horizontal extending upper part of thyroid cartilage. Ext. Jugular vain was cut, upper part of thyroid cartilage was cut. In the opinion of doctor, injury no.1 was simple in nature and for injury No.2 appellant was referred to ENT expert. The injury report is Ex.P/16. Dr. Devendra Sharma (PW-13) RSO, ENT, Hamidiya Hospital, Bhopal examined the injuries of appellant on 4.2.2009. He found an incised wound size 18 x 5 cms on neck horizontally, extending up to thyroid cartilage. External jugular vain was cut. In his opinion, the injury was grievous in nature.
28. In the statement of accused recorded under Section 313 of the Code of Criminal Procedure, accused, in answer to question No.6, admitted that he, his wife and daughters were sleeping on the floor of the house, but in answer to question No.107, he stated that he was falsely implicated, some unknown person had assaulted his wife and daughters. Thus, it is undisputed that the appellant was present in his house in the night when his wife and daughters were assaulted, however, his explanation that some unknown person had caused injuries to victims does not appear truthful for the reason that he even did not make any hue and cry when the victims were assaulted and also when he received injuries. He even did not disclose anything to Raeesa Bi (PW-7) and to other persons, who reached at the spot in the morning. His conduct is clearly suspicious and the explanation offered by him appears patently false. It is also important to note that while other victims received injuries by a heavy hard and blunt object like a hammer, he was found to have suffered injuries by a sharp edged weapon. Thus, in addition to the evidence of eyewitnesses Ayna (PW-1) and Arsi (PW-6), the principle recognized in the case of Trimukh Maroti Kirkan (supra) becomes clearly applicable and offering of false explanation by the appellant becomes an additional piece of incriminating circumstance against him.
29. On 4.2.2009, Executive Magistrate Chandra Shekhar Shrivastava (PW-18) recorded the statement of Seema @ Ayna (PW-1) in the hospital. This statement was recorded by way of her dying declaration. Ayna (PW-1) disclosed to him that in the night she was assaulted by Shafiq, her father. The dying declaration is Ex. P/39. Learned trial judge discarded this evidence from consideration on the ground that it was in the nature of hearsay evidence as Seema @ Ayna was alive. In our opinion, the trial judge committed error in ignoring this piece of evidence. Since this statement was not recorded by police officer, therefore, it was not inadmissible. Though it could not have been accepted as a dying declaration under Section 32 of the Indian Evidence Act, yet it could be used as a former statement made by Ayna (PW-1) in order to corroborate her testimony as a witness, relating to occurrence in view of the provisions of Section 157 of the Indian Evidence Act. There appeared no reason for the Executive Magistrate to have recorded the said statement as dying declaration (Ex. P/39) false. Thus, the evidence of Ayna that she was assaulted by her father stands further corroborated by her statement (Ex.P/39).
30. After sincerely scanning and scrutinizing the evidence of eyewitnesses Seema @ Ayna (PW-1) and Arsi (PW-6) and the other circumstances, found proved, we are of the considered opinion that it has been established beyond doubt that it was the appellant only and none else who committed murders of his wife Snjida and daughters Rubina and Amina by a hammer and attempted to commit murder of his daughters viz. Ayna and Arsi. The trial court was fully justified to convict him for the offences under Sections 302 and 307 of the Indian Penal Code. The finding of conviction for these offences is therefore affirmed.
31. As far as the commission of offence under Section 309 of the Indian Penal Code is concerned, there is no direct evidence on record. From the evidence of Raeesa Bi (PW-7) it stood proved that the appellant was found at the place of occurrence in the morning and there were injuries on his body. His injuries were examined by Dr. Mahendra Pal Singh (PW-12) on 4.2.2009. These injuries were the incised wounds on his abdomen and neck. The external jugular vain of the neck was cut. On being referred to ENT expert, Dr. Devendra Sharma (PW-13) also examined his injuries and found a 18 x 5 cms incised wound on his neck extending to thyroid cartilage. This injury was grievous in nature. The injuries were caused by sharp edged weapon. A Chhuri was seized vide seizure memo Ex. P/21 from the spot by Investigating Officer Nagendra Kumar Pateria (PW-16). As per the FSL report (Ex. P/34), human blood was detected on this Chhuri. On the basis of this evidence, learned trial judge concluded that the only possible inference, which could be drawn, was that appellant had caused these injuries himself in an attempt to commit suicide.
32. According to Investigating Officer Nagendra Kumar Pateria (PW-16), he sought a query from Dr. Mahendra Pal Singh that whether the injuries found on the body of accused Shaifq could be self inflicted. Dr. Mahendra Pal Singh (PW-12) replied the query (Ex.P/32) opining that the said injuries could be self inflicted. We are afraid that this opinion of doctor Mahendra Pal Singh (PW-12) cannot be accepted as an admissible piece of evidence, because he did not depose it before the Court about this fact. This statement made by doctor to the police officer was clearly inadmissible under law.
33. Another piece of evidence is the seizure of an alleged suicide note, which was seized by Investigating Officer Nagendra Kumar Pateria (PW-16) vide seizure memo Ex. P/21. It was recorded on the back of an invitation card, its envelop and on some other small pieces of papers. It indicated that the author of the note was taking this step because of poverty. He was unable to get any job; he was unable to provide food to his three sons and four daughters; his wife was also pregnant. Learned trial judge held this evidence inadmissible because it was not proved by the prosecution by tendering any evidence to indicate that the writing of the note was that of accused, but at the same time he concluded that the other evidence was sufficient to hold the accused guilty under Section 309 of the Indian Penal Code.
34. In our opinion, merely by the presence of injuries on the body of accused and his presence at the place where his family members were murdered, it could not be inferred that the accused inflicted injuries to himself also. In the statement recorded under Section 313 of the Code of Criminal Procedure he stated that some unknown person had inflicted injuries to him as well as to his other family members. Though this explanation we have already found false, yet in the absence of any positive evidence of clinching incriminating nature, we are unable to hold that accused attempted to commit suicide. It is true that the circumstances make it appear probable and give rise to a strong suspicion that he attempted to commit suicide, but the suspicion howsoever strong, cannot take place of proof. In our opinion, therefore, the conviction of the accused under Section 309 of the Indian Penal Code, recorded by the trial Court, cannot be approved and the same deserves to be set aside.
35. On the question of sentence, learned counsel for the appellant submitted that the appellant was a very poor person, who had no adequate means to earn livelihood and provide bread to his wife and seven children. In the state of acute mental stress and frustration he was compelled to take the extreme step. He also suffered agony and, therefore, himself attempted to end his life by causing injuries to himself. Still there are three minor sons to be looked after by him. The case does not fall in the category of a rarest of rare case calling for imposition of death penalty.
36. In Bachan Singh v. State of Punjab-(1980) 2 SCC 684 the Apex Court observed that there are numerous circumstances justifying passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasized that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expensive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be bloodthirsty.
37. In Machhi Singh & others vs. State of Punjab-(1983) 3 SCC 470 the Apex Court observed that the following guidelines, which emerge from Bachan Singh case will have to be applied to the facts of each case where the question of imposition of death sentence arises: (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. 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.
(iv)A balance-sheet of aggravating and mitigating circumstances has to be drawn up.
38. In case of Maghar Singh vs. State of Punjab-AIR 1975 SC 1320 the death sentence awarded to accused was approved by the Apex Court as there was a preplanned cold-blooded dastard murder. As many as 17 injuries were caused on the deceased, most of which were on vital part of her body. In Raoji v. State of Haryana-AIR 1996 SC 787 also the Apex Court affirmed the death sentence to accused where he committed murder of his wife who was in advance stage of pregnancy and three minor children for no fault on their part. He also attacked his mother with the axe. The brutality and cruelty with which the crime had been committed, in view of the Apex Court, shocked the conscience of the society. After causing death of four persons he did not become remorseful and went to his neighbour's house and attempted to kill his wife while she was asleep. In case of Umashanker Panda vs. State of M.P. AIR 1996 SC 3011 accused, while all members of family were asleep in a room, started killing his wife with a sword. When his daughter tried to save her mother, accused inflicted wounds on her. Other children were also attacked. As a result of assault, his wife and two children succumbed to injuries. The attack was premeditated and not on account of any provocation or mental derange. The Apex Court in these circumstances fell satisfied that their appeared no mitigating circumstances for not imposing death sentence. In Ramdeo Chauhan vs. State of Assam-AIR 2000 SC 2679 the Apex Court observed that it is true that the life sentence is a rule and death sentence is an exception, but when the crime committed by the appellant was not only shocking, but also jeopardized the society, the award of lesser sentence only on the ground of the appellant being a youth at the time of occurrence cannot be considered as a mitigating circumstances. In this case the accused was convicted for causing death of four persons of family by sharp edged weapon. In Bablu v. State of Rajasthan-AIR 2007 SC 697 accused was alleged to have killed his wife, three daughters and son under drunkenness. The Apex Court held that acts of the accused were not only brutal but also inhuman for no fault. Merely because accused claimed to be under state of drunkenness at the relevant point of time it did not in any way dilute his acts and the case fell under rarest of rare category.
39. Keeping in view the above proposition of law with respect to imposition of death sentence, we find no mitigating circumstances in favour of appellant for not imposing the death penalty on him. He brutally committed the murders of his wife and two innocent minor daughters. He also attempted to cause death of two other minor daughters while all the victims were sleeping in the room. He did not appear remorseful at any stage after commission of the crime. Though it was said that he attempted to commit suicide on the basis of some writings found on the piece of papers at the place of occurrence, but the appellant on all the occasions including in his statement recorded under Section 313 of the Code of Criminal Procedure stated that some unknown person had committed the crime. He killed his wife when she was carrying a full term pregnancy. He committed the offence with extreme brutality against all the female members of his family at the time when his three sons were away. We are not impressed by the submission for leniency made by the learned counsel for the appellant that on account of extreme poverty, the offence was committed. We do not wish that society may get a signal that a person guilty of committing such a heinous and diabolical crime is dealt liberally on that account. Such type of dastardly act should not be taken as a solution of any problem. In our considered opinion, the case comes within the category of 'rarest of rare case' calling for the extreme penalty of death sentence.
40. In the result, the reference made by the trial Court is accordingly answered. The sentence of death awarded to accused/appellant Mohammad Shaifq @ Munna @ Shafi is affirmed. The conviction of the appellant under Section 307 of the Indian Penal Code and the sentence awarded to him by the trial Court is also affirmed. However, the conviction of the appellant under Section 309 of the Indian Penal Code and the sentence awarded to him on this count is set aside.
41. Subject to above modification, for the aforesaid reasons, Criminal Appeal No.157/2010 is dismissed.