Penal Code, 1860: ss.302, 364 – Murder of three minor children – Case based on circumstantial evidence – Prosecution case was that the complainant lodged missing report of his three minor children aged about 8 years, 6 years and 4 years respectively – During search, PW-8 stated that he saw the minor children along with the appellant near their school – Appellant was not found in his house and was missing even from the village – Thereafter appellant was contacted on his mobile and he told that he was 60 Kms away – Police traced the location of mobile and found him in the house of PW-13 – At the instance of appellant, dead bodies along with the school bags were recovered – Conviction by courts below – Held: Prosecution was able to prove beyond doubt that all the three minors went to the school in the morning and thereafter they left for the home at about 11.30 hours – That, thereafter, at about 12.00 hours, the appellant was seen with all the three minor children – There was a prior enmity between the appellant and the complainant father of the deceased minor children as the wife of the accused had eloped with the brother of the complainant-father and the children of the accused were without their mother – Immediately after his arrest, the dead bodies were recovered/found along with the school bags etc. from the place shown by the accused himself – The phone-calls made to the accused was established and proved by the prosecution by examining the Investigating Officer and by producing the call details from the mobile company – These chain of events led to the conclusion that the accused first kidnapped the three minor children and thereafter killed all of them – No interference with the order of conviction called for. Sentence/Sentencing: Death sentence – Conviction and death sentence for murder of three minor children – For deciding on the issue of sentence, the aggravating circumstances and mitigating circumstances must be located and the right balance must be adopted – In the instant case, the mitigating factors/circumstances were that the offence was committed under the influence of extreme mental or emotional disturbance – Appellant was emotionally disturbed due to the elopement of his wife with the uncle of the deceased and that his children were suffering in absence of their mother; there were no criminal antecedents; at the time of commission of the offence the appellant was 28 years of age and his conduct in prison was reported to be good; he belonged to a poor family and was the only son of his parents, and his aged mother was taking care of his daughters – On the other hand, the only aggravating circumstance pointed out by the State was the manner in which the incident took place and three minors were brutally killed – Except this, no other aggravating circumstances were pointed out on behalf of the State – Therefore, striking the balance between aggravating circumstances and mitigating circumstances, in the facts and circumstances of the case, more particularly, the mental condition of the appellant at the time of the commission of the offence, the mitigating circumstances are in favour of the accused to convert the death sentence to life imprisonment – Thus, the death sentence converted into the life imprisonment – It is directed that the life means till the end of the life with the further observation and direction that there shall not be any remission till the accused completes 25 years of imprisonment. Evidence: Minor discrepancies and inconsistencies in evidence – Held: The minor discrepancies and inconsistencies in the statements of the prosecution witnesses and the minor lacuna in the investigation led by the police cannot be a reason for discarding the entire prosecution case, if the evidence is otherwise sufficient and inspiring to bring home the guilt of the accused. Code of Criminal Procedure, 1973: s.235(2) – Object and purpose – Held: The object and purpose of s.235(2) is that the accused must be given an opportunity to make a representation against the sentence to be imposed on him – Sub-section (2) of s.235 satisfies a dual purpose; it satisfies the rule of natural justice by affording to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded – There is no absolute proposition of law that in no case there can be conviction and sentence on the same day or that if the sentence is awarded on the very same day on which the conviction was recorded, the sentencing would be vitiated.
Partly allowing the appeal, the Court
HELD: 1.1 The prosecution has been successful in establishing and proving that the accused was having enmity with PW.18-father of the three deceased minor children. The same has been established and proved by the prosecution by examining P.W.18, P.W.20 and P.W.11. The prosecution has been successful in proving that on 11.02.2011 all the minors deceased went to the school from their house and at about 11.30 hours, the deceased minors left for home on foot; that the minors did not return to their home. On 11.02.2011 at about 12.00 noon–1.00 pm, the deceased were seen going with the accused in school uniform with their school bags. Therefore, the accused was last seen together with the deceased minors. [Para 16][26-D-F]
1.2 The next important evidence against the accused is the recovery of dead bodies which were found from the places shown by the accused after his arrest. During the course of the investigation, the dead bodies were found from the places shown by the accused, the places which the accused alone could have known. Therefore, there is a recovery of the dead bodies along with the school dress and bags at the instance of the accused. It has been established and proved from the disclosure memo. Therefore, the said circumstance definitely goes against the accused. [Para 18][28-D-E]
1.3 One another circumstance which goes against the accused is that after the incident of missing of three minor children, the accused was not found in his house and even in the village. Phone calls made at 11.00 pm on the mobile of the accused in the night of 11.02.2011 has been established and proved by the prosecution by producing the call details from the mobile company. The accused has failed to give any explanation on the same in his statement under Section 313 Cr.P.C. Non-examination of the officer of the mobile company cannot be said to be fatal to the case of the prosecution, more particularly, when the CDR has been got exhibited, through the deposition of the Investigating Officer and when the same was exhibited, no objection was raised on behalf of the defence. Even otherwise, the mobile SIM was seized from the accused at the time of his arrest. Therefore, the prosecution has proved that the said mobile SIM belonged to the accused. [Paras 19, 19.1][28-E; 29-A-C]
1.4 One other important evidence against the accused is the deposition of P.W.13. The fact that the accused was found from the house of P.W.13 has been established and proved, despite P.W.13 has turned hostile. As per the settled proposition of law, even the deposition of the hostile witness to the extent it supports the case of the prosecution can be relied upon. The accused has failed to explain his conduct in his statement under Section 313 Cr.P.C. about his missing from the house and even the village after the incident of kidnapping. He has also failed to explain the reason why he was found from the house of P.W.13. It may be that there is some doubt created by the defence about the place where the accused was arrested. However, the fact remains that the accused was arrested from village Lakharam on 13.02.2011. Immediately thereafter, during the course of the investigation and as per the disclosure memo, the dead bodies of the deceased minor children were recovered at the instance of the accused. [Para 20][29-D, F-H; 30-A-B]
2. Minor embellishment, there may be, but variations by reason therefore should not render the evidence unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless; some start wailing while some others run away from the scene and some who may come forward with courage, conviction and belief that the wrong should be remedied. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive. Therefore, the so-called minor discrepancies/contradictions do not ultimately affect the case of the prosecution. The benefit of such minor discrepancies/ contradictions should not go to the accused, more particularly, when from the other evidences on record the guilt of the accused has been established and proved. [Para 21][31-C-F]
Leema Ram v. State of Haryana AIR 1999 SC 3717 : [1999] 3 Suppl. SCR 435 – relied on.
3. The object and purpose of Section 235(2) Cr.P.C. is that the accused must be given an opportunity to make a representation against the sentence to be imposed on him. Sub-section (2) of Section 235 satisfies a dual purpose; it satisfies the rule of natural justice by affording to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. There is no absolute proposition of law that in no case there can be conviction and sentence on the same day. There is sufficient compliance of the provisions of Section 235(2) Cr.P.C. The Trial Court heard the accused on the aspect of proposition of sentence separately. The Trial Court had considered the mitigating circumstances pointed out on behalf of the accused and also considered the aggravating circumstances which warranted the death sentence. Thus, it cannot be said that the accused was not given any sufficient opportunity to put forward his case on sentence. It also cannot be said that the Trial Court has not given any special reasons while awarding the death sentence. [Paras 23, 23.3][32-B-C; 34-G; 35-A-B]
Accused ‘X’ v. State of Maharashtra (2019) 7 SCC 1; Machhi Singh v. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413 – relied on.
Santa Singh v. State of Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229; Allaudin Mian v. State of Bihar (1989) 3 SCC 5 : [1989] 2 SCR 498 – held inapplicable.
4.1 While awarding the capital punishment, it appears that the brutality of the crime was considered to be one of the reasons and not the sole reason. For deciding on the issue of sentence, the aggravating circumstances and mitigating circumstances must be located and the right balance must be adopted. In the present case, the following are the mitigating factors/circumstances: (i) That the offence was committed under the influence of extreme mental or emotional disturbance. The accused was emotionally disturbed due to the elopement of his wife with the uncle of the deceased and that his children were suffering in absence of their mother with them. The accused was so much disturbed and troubled is also born out from the deposition of one of the witnesses that on mobile the accused told how father of the missing children is feeling without his children. (ii) There are no criminal antecedents. (iii) At the time of commission of the offence the accused was 28 years of age and his conduct in prison is reported to be good. (iv) That he belongs to a poor family and is the only son of his parents, and (v) That he has got an old aged mother who is taking care of two daughters of the accused, out of which one is married now. [Paras 24, 25.4, 25.5][37-B-C; 40-G; 41-F-H; 42-A]
4.2 On the other hand, the only aggravating circumstance pointed out by the State is that the manner in which the incident took place and three minors were brutally killed. Except the above, no other aggravating circumstances are pointed out on behalf of the State. Therefore, striking the balance between aggravating circumstances and mitigating circumstances, in the facts and circumstances of the case, more particularly, the mental condition of the accused at the time of the commission of the offence and that the accused was under extreme mental disturbance due to his wife eloped with the uncle of the deceased and his children were deprived of the company of their mother, the mitigating circumstances are in favour of the accused to convert the death sentence to life imprisonment. It is true that the court must respond to the cry of the society and to settle what would be the deterrent punishment for an abominable crime. It is also equally true that a larger number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. It is also true that the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis, the society suffers and a criminal get encouraged. The mitigating circumstances as observed by this Court in the case of Bachan Singh and the mitigating circumstances in the present case, if are considered cumulatively and more particularly, that the accused was under the extreme mental disturbance, in the peculiar facts and circumstances of the case, the death penalty is not warranted and the same be converted to life imprisonment. The Judgment and Order convicting the accused for the offences punishable under Sections 302 and 364 IPC is hereby confirmed. However, the death sentence imposed by the Trial Court, confirmed by the High Court, is converted into the life imprisonment. It is further observed and directed that the life means till the end of the life with the further observation and direction that there shall not be any remission till the accused completes 25 years of imprisonment. [Paras 25.6, 26][42-B-G; 43-B]
Bachan Singh v. State of Punjab (1980) 2 SCC 684; Sushil Sharma v. State (NCT) of Delhi (2014) 4 SCC
317 : [2013] 16 SCR 616; Absar Alam v. State of Bihar (2012) 2 SCC 728 : [2012] 1 SCR 890 – relied on. Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC 28; Aloke Nath Dutta v. State of W.B. (2007) 12 SCC
230 : [2006] 10 Suppl. SCR 662; State of Punjab v. Manjit Singh (2009) 14 SCC 31 : [2009] 9 SCR 864; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90; Sebastian v. State of Kerala (2010) 1 SCC 58; Ramesh v. State of Rajasthan (2011) 3 SCC 685 : [2011] 4 SCR 585; Mohinder Singh v. State of Punjab (2013) 3 SCC
294 : [2013] 3 SCR 90; Digamber Vaishnav v. State of Chhattisgarh (2019) 4 SCC 522 : [2019] 2 SCR 844; Anjan Kumar Sarma v. State of Assam (2017) 14 SCC
359 : [2017] SCR 991; Ganpat Singh v. State of Madhya Pradesh (2017) 16 SCC 353 : [2017] 9 SCR 706; Chhannu Lal Verma v. State of Chhattisgarh (2019)
12 SCC 438 : [2018] 14 SCR 355; Rajesh Kumar v. State (NCT of Delhi) (2011) 13 SCC 706 : [2011] SCR 92; Ajay Pandit @ Jagdish v. State of Maharashtra (2012) 8 SCC 43 : [2012] 10 SCR 70; Gurvail Singh v. State of Punjab (2013) 2 SCC 713 : [2013] 1 SCR 783; Amit v. State of Uttar Pradesh (2012) 4 SCC 107 : [2012] 1 SCR 1009; Kalu Ram v. State of Rajasthan (2015) 16 SCC 492; Sudam v. State of Maharashtra (2019) 9 SCC 388; Baba Vishwakarma v. State of M.P. (2019) 9 SCC 689; Shaikh Ayub v. State of Maharashtra (1998) 9 SCC 521; Dharmedrasinh v. State of Gujarat (2002) 4 SCC 679: [2002] 3 SCR 193; Nemu Ram Bora v. State of Assam & Nagaland (1975) 1 SCC 318; Brajendra Singh v. State of M.P. (2012) 4 SCC 289 : [2012] 3 SCR 599 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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