Murder of six members of a family including helpless women and children having been committed in a brutal, diabolic and bristly manner and the crime being one which is enormous in proportion which shocks the conscious of law, the death sentence as..

Murder of six members of a family including helpless women and children having been committed in a brutal, diabolic and bristly manner and the crime being one which is enormous in proportion which shocks the conscious of law, the death sentence as awarded in respect of accused Sattan and Guddu was the appropriate sentence and the High Court ought not to have altered it. So far as the acquittal of the Hari Pal son of Kiran Singh and Hari Pal son of Ram Charan are concerned, the High Court has noted that the evidence so far as their involvement is concerned was not totally free from doubt. The High Court have analysed the factual scenario in detail to direct the acquittal. We find no reason to differ from the conclusions of the High Court. The acquittal as directed stands affirmed. So far as other four respondents i.e. appellants in Criminal Appeal No.2237 of 1999 is concerned they were charged under Section 120 B. It has been recorded by the High Court that except the suspicion which the informantwas having in her mind about the involvement of these four accused persons there was neither any direct or circumstantial evidence to fasten the charge of criminal conspiracy. That being so the High Court was justified in 28directing their acquittal. Criminal Appeal No. 314 is allowed. The State’s appeal so far as Sattan and Upendra are concerned is allowed to the extent that the death sentence as was awarded by the trial court is restored so far as they are concerned. The appeal fails so far as respondents Hari Pal son of Kiran Singh and Hari Pal son of Ram Charan are concerned

An overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances 38of the case are such that de..

An overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances 38of the case are such that death sentence is warranted, the court would proceed to do so. What is culled out from the decisions noted above is that while deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up.  This position is highlighted in Union of India & Ors. v. Devendra Nath Rai [ 2006 (2) SCC 243].  The case at hand falls in the rarest of rare category. The past instances highlighted above, the depraved acts of the accused call for only one sentence that is death sentence. Looked at from any angle the judgment of the High Court, confirming the conviction and sentence imposed by the trial court, do not warrant any interference. 

It is true that either in the complaint or in the first information report, no one was specifically named for the commission of offence. Though a suggestion was made to prosecution witnesses that the accused persons are from the nearby villages, t..

It is true that either in the complaint or in the first information report, no one was specifically named for the commission of offence. Though a suggestion was made to prosecution witnesses that the accused persons are from the nearby villages, the same was stoutly denied and in such circumstance, miscreants being outsiders, it would not be possible to name those persons in the complaint itself without further verification. On the other hand, the prosecution through their witnesses particularly, PWs 1 to 4, established that it was the appellants, who along with few more persons committed the offence by killing five persons mercilessly for non-payment of ransom amount which they demanded for the release of five persons caught hold by them. In view of the same, though none was named in the FIR, subsequently, the name of the appellants came into light during investigation. [Para 8] [649-E-H; 650-A] 1.2. PW 1 had asserted that he had seen the faces of all the accused persons in the light of the torch. However, he admitted that he could not go and attend the identification parade due to his illness. In cross- examination also, he asserted that he had seen the guns in the hands of the accused and three of the victims were assaulted by the accused persons by the butt of the gun. He informed that he had witnessed the incident from the distance of 10 mts. He also informed the court that one of the deceesed who came from the western side had lantern and torch and when he focused his torch on criminals they assaulted him and snatched away his torch and extinguished the lantern. [Para 9] [651-C-E] 1.3. PW 2 corroborated the evidence of PW 1. It is further seen from his evidence that he also sustained injuries by one of the miscreants and this is also clear from his assertion and statement as well as the evidence of PW 7. There is no reason to disbelieve the version of PW-2 that he did not see these persons on any other occasion except on the date of occurrence and at the time of identification parade. He being an injured eye-witness as well as identified the appellants in the identification parade, the trial Judge as well as the High Court rightly accepted his version. He deposed about his visit to District Jail, for test identification parade of miscreants. He informed the court that he had identified three miscreants. These persons had also been identified in the jail. He further explained that these accused had been seen for the first time by him at the time of incident and thereafter, he saw them in the test identification parade. He also reiterated that before the incident, these miscreants were neither known nor seen by him. In his cross-examination, he reiterated that in the test identification parade which was conducted in District Jail, he identified the three accused. [Paras 10 and 11] [653-C-D; G-H; 654-A; 652- F-H; 653-A] 1.4. PW 3 asserted that on the date and time of the incident, he witnessed the occurrence along with PW 2. He explained to the court that when the miscreants detained him and others for about half an hour, he noticed the faces of the miscreants in the light of their torches. Like PW 2, he also explained that in view of their inability to pay the ransom as demanded by the miscreants, initially they killed one of the deceased and thereafter killed other four. PW 3 also asserted before the court that none of the accused was known to him earlier. He also explained that he had gone to jail for identification of the accused. Before the court, he identified, by putting his hand on the accused persons and said that these miscreants were involved in the incident and for the first time he had seen these persons at the time of occurrence and second time in jail at the time of test identification parade. In his cross-examination, his evidence about the incident, the involvement of the accused, threat to kill the persons in custody, recovery of dead bodies, identifying the accused in the test identification parade, could not be shattered in any way. He being an injured eye-witness, corroborated the evidence of PW 2 and identified the accused persons in the properly constituted test identification parade, his evidence was fully relied on by the prosecution and rightly accepted by the trial Court as well as by the High Court. [Paras 12 and 15] [654-B-E; 655- A-D] 1.5. It is not correct to say that PW-4, who claimed to be a victim of the accused person, is not competent to narrate the present incident and implicate the very same accused as in her earlier case she had deposed that the appellant-accused had nothing to do with the incident. Just prior to the incident the very same accused, that is, appellant-accused set fire to her house and took her to the forest. She was in the custody of miscreants for 10-12 days. It is true that at one stage she complained that they attempted to rape her. However, in the said case, before the court she failed to mention their names and implicate them in the said crime. In the present case, when she was examined, she explained that due to threat and fear she made a statement in the earlier case disowning these accused. Considering her explanation, particularly, because of the threat and fear she was forced to make such statement and in view of the categorical statement about the present occurrence implicating the miscreants including the present appellants, explaining all the details about keeping three youngsters in their hands and five villagers demanding ransom for their release, identifying the five dead bodies at different places, there is no reason to disbelieve her version. [Paras 16 and 17] [655-E-F; 656-G-H; 657- A-C] 1.6. The trial Judge has accepted her conduct in making a statement about the earlier case and relied on her present statement with reference to abduction and killing of five persons. The statement of PW-4 also corroborates with the evidence of injured eye-witnesses PWs 2 and 3. Further she was in the clutches of these miscreants for a period of 10-12 days and because of her familiarity of their faces, in categorical terms, she informed the Court that it was appellant-accused `M', who killed three persons and appellant-acused `G', who killed two persons by slitting their neck. Her explanation about her own case and detailed narration in respect of the present case are acceptable and rightly relied on by the trial court and accepted by the High Court. [Para 18] [657-D-F] 1.7. Medical evidence also supports the case of prosecution. Medical Officer, who conducted autopsy on the five dead bodies was examined as PW 5. In all the reports, he mentioned cut in the nerves and muscles of neck and blood vessels apart from other injuries. He also opined that death was caused due to shock and hemorrhage and approximately one day before the post mortem. Though the police could not produce the knife used for killing the five persons, one of the accused had admitted about possession of knife apart from unlicensed gun at the time of the occurrence. [Para 19] [657-G- H; 660-C-D] 1.8. It is not correct to say that in the absence of proper light at the time of occurrence it is highly improper to accept the version of prosecution witnesses particularly, PWs 2 and 3 identifying these appellants. Apart from the evidence of PWs 1 to 3, about the information that through their torch lights they were able to recognize the faces of miscreants, PW 4 who was taken away by the miscreants to the forest in respect of the first incident informed the name of the accused correctly. Inasmuch as her association with the accused was longer than others, she mentioned the name of the accused without any difficulty. In those circumstances, the trial Judge is perfectly right in holding that the prosecution witnesses were able to correctly identify these persons and rightly rejected the defence plea. [Paras 36 and 37] [668-B-G] 2.1. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in court. There is no provision in the Cr. P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial.

Dismissing the appeal filed by accused Nos. 1, 4 and 8; dismissing State's appeal against accused Nos. 1 and 7; and partly allowing State's appeal against accused Nos. 5 and 6, the Court HELD: Per Dr. Mukundakam Sharma, JJ: 1.1. Accused No..

Dismissing the appeal filed by accused Nos. 1, 4 and 8; dismissing State's appeal against accused Nos. 1 and 7; and partly allowing State's appeal against accused Nos. 5 and 6, the Court HELD: Per Dr. Mukundakam Sharma, JJ: 1.1. Accused No. 1 is guilty of all the charges which were already found to be proved and established by the trial court and affirmed by the High Court. The sentence passed by the High Court is confirmed and the punishment awarded by the trial court u/s. 212 r/w Section 52(A) r/w. Section 120-B IPC is also restored. [Para 58] [1148-B] 1.2. Conviction under Maharashtra Control of Organized Crime Act, 1999 could be based solely on the basis of the confessional statement and such conviction is also permissible on the basis of the confessional statement of the co-accused which could be used and relied upon for the purpose of conviction. [Para 59] [1148-C] State v. Nalini (1999) 5 SCC 253; Devender Pal Singh v. State of NCT of Delhi (2002) 5 SCC 234; Jameel Ahmed v. State of Rajasthan (2003) 9 SCC 673, relied on. 1.3. Though it is proved and established from the records that accused No. 1 did not himself participate in the actual shootout, it is alleged against him that he was a part of the gang and he was in touch with the gang leaders in Karachi (Pakistan) and he also acted on behalf of the said gang so much so that he had effected payment of money arranged by the leaders of the gang to accused Nos. 5, 6, and 8 for causing the shootout. The evidence placed before this court clearly establishes that accused No. 1 was responsible for procuring a pistol and handing over the same to accused No. 5 which was used in the shootout. The said fact is also established and proved by the confessional statement of accused No. 5. [Paras 47 and 48] [1142-B-F] 1.4. The confessional statement of accused No. 1 substantially complies with the requirements of Section 18 of Maharashtra Control of Organized Crime Act, 1999 (MCOCA) r/w. rule 3 (6) of Maharashtra Control of Organized Crime Rules (MCOC Rules). It was a categorical case of the prosecution that PW-51 who recorded the said confessional statement was never involved with the investigation of the case. On going through all the material available on record, the High Court came to the categorical finding that the aforesaid confessional statement was made voluntarily and while recording the same, post confessional formalities were followed. It was held by the High Court that although the confessional statement does not bear any certificate in the identical terms as specified under Rule 3(6) of the MCOC Rules, it nevertheless complies with the requirements of Section 18 MACOCA. Apart from that, there is also evidence on record indicating that accused No. 1 made several phone calls to gang leaders in Pakistan from various phone booths. The said fact is also accepted by the trial court as well as by the High Court. [Paras 51 and 52] [1145-E-H; 1146-A-C] 1.5. The confessional statement of accused No. 8 was held to be admissible by both the courts below in which he had categorically stated that he knew accused No. 1 from childhood and that accused No. 1 had brought him to act as a driver in the said shootout and also paid him Rs. 10,000/- for the job. Accused No. 8 in his confessional statement had also stated that accused No. 5 visited accused No. 1. The confessional statements of accused No. 5 and 6 are also relevant to prove and establish the involvement of accused No. 1 with the incident. 

The assertion by PW 1 that after the incident was over he had gone near his injured brother and tried to know as to who were his assailants, whereupon his injured brother had replied that the respondents had caused injuries to him, could not be ef..

The assertion by PW 1 that after the incident was over he had gone near his injured brother and tried to know as to who were his assailants, whereupon his injured brother had replied that the respondents had caused injuries to him, could not be effectively challenged during cross-examination of the witness nor could it be brought on record that because of the nature of the injuries received by `B' he would not have survived even for few minutes and must have died immediately on the receipt of the injuries. [Para 16] 7.1 The High Court acquitted the respondents who were charged for commission of six murders in a casual and slipshod manner. The approach of the High Court in appreciating the evidence is not only contrary to the well settled principles of appreciation of evidence but quite contrary to the ground realities of life. The High Court recorded reasons for acquittal of the respondents which are not borne out from the record and quite contrary to the evidences adduced by the reliable eye-witnesses. The High Court was not justified in upsetting the well reasoned conviction of the respondents recorded by the trial court which after observing demur of the eye-witnesses had placed reliance on their testimony. The High Court did not take into consideration the full text of the evidence adduced by the witnesses and picked up sentences here and there from the testimony of the witnesses. [Para 17] 7.2 There is no manner of doubt that killing six persons and wiping almost the whole family on flimsy ground of honour saving of the family would fall within the rarest of rare case and, therefore, the trial court was perfectly justified in imposing capital punishment on the respondents. However, the incident had roughly taken place before 20 years, i.e., on August 10/11, 1991. The High Court had acquitted the respondents by judgment dated April 12, 2002. After April 12, 2002 till this date, nothing adverse against any of the respondents is reported to this Court. To sentence the respondents to death after their acquittal in the year 2002 would not be justified on the facts and in the circumstances of the case. [Para 19] 7.3 The judgment passed by the High Court, acquitting the respondents of the offences punishable u/s. 302/34 IPC is set aside. The judgment of the trial court convicting each of the respondents u/s. 302/34 IPC is restored and each respondent is convicted u/s. 302/34 IPC. For the commission of offence punishable u/s. 302/34 IPC, each respondent is sentenced to RI for life and fine of Rs.25,000/- each, in default, RI for two years. Out of the amount of fine, if paid, a sum of Rs.50,000/- be paid to PW2, as compensation in view of the provisions of s. 357 Cr.P.C. [Para 20] Case Law Refence: AIR 1988 SC 1998 Referred to. Para 10 AIR 2003 SC 4140 Referred to. Para 15 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1180 of 2004. From the Judgment & Order dated 12.04.2002 of the High Court of Judicature at Allahabad in Criminal Appeal No. 574 of 2001. Ratnakar Dass, Shekhar Raj Sharma, Chandra Prakash Pandey for the Appellant

The prosecution thus succeeded in proving that these appellants have committed series of murders. [654-c-e] 1.2. It is true that the evidence of the approver is always to be viewed with suspicion especially when it is seriously suspected that he i..

The prosecution thus succeeded in proving that these appellants have committed series of murders. [654-c-e] 1.2. It is true that the evidence of the approver is always to be viewed with suspicion especially when it is seriously suspected that he is suppressing some material facts. Here the approver's evidence was not fully accepted by the High Court. High Court was of the view that he had suppressed some material facts. The observation made by the High Court was justified. The tenor of the evidence given by the approver is to the effect that he was only a silent spectator and all these heinous crimes were committed by the appellants and their mother. It is difficult to believe that these women alone had committed all the crimes unless there is strong support from the approver. [654-f-g] 1.3. The approver was given pardon under Section 306 of the Cr.P.C. and thereafter he was examined as a witness for prosecution under Section 308 of the Cr.P.C. The Code prescribes a procedure for prosecuting the approver who gave false evidence or wilfully suppressed anything. [655-a-d] 1.4. In the instant case, the approver was present when many of the murders had taken place and it is quite possible that he also must have been an active participant and the High Court was justified in saying that the approver had not given full details of the crimes. The approver was moving with the two appellants for a long period and despite the repeated criminal acts committed by them, the approver did not inform the police or any authorities. Some of the children kidnapped by the appellants were in the custody of the appellants and the approver, and later their bodies were found. The post mortem examination showed that the child was subjected to some unnatural offence. The approver himself had admitted that he had bribed the police many times and saved the appellants from the clutches of law. Despite all these startling revelations, the approver could not be proceeded against and the Public Prosecutor had not taken any step to proceed against him. Under such circumstances, the court itself has inherent powers to proceed against the approver in case he is wilfully suppressing material facts or is giving false evidence. [655-d-g] 2.1. The two appellants kidnapped several children and committed their murder in the most dastardly manner. In some cases, even the body could not be found. The High Court felt that the five cases of murders have been proved against these appellants. The murder committed by the appellants are proved by satisfactory evidence. The approver's evidence is fully corroborated by other items of evidence. There is no reason to interfere with the order of conviction passed by the Court of Session and confirmed by the High Court. [655-g-h; 656-a] 3. The appellants have been awarded capital punishment for committing these murders and their sentence was confirmed by the High Court. Going by the details of the case, there are no mitigating circumstances in favour of the appellants, except for the fact that they are women. Further, the nature of the crime and the systematic way in which each child was kidnapped and killed amply demonstrates the depravity of the mind of the appellants. These appellants indulged in criminal activities for a very long period and very cleverly executed their plans and continued it till they were caught by the police. The appellants had been a menace to the society and the people in the locality were completely horrified and could not send their children even to schools. The appellants had not been committing these crimes under any compulsion but they took it very casually and killed all these children, least bothering about their lives or agony of their parents. Having carefully considered the whole aspects of the case and also being alive to the new trends in the sentencing system in criminology, the Court does not think that these appellants are likely to be reformed. The conviction and the death penalty imposed on them are confirmed. [656-b-e] Prem Kishan Sharma, Nitesh Kr. Singh and Aparna Bhat for the Appellants. A.P.

Though no general guidelines are laid down in the Code for awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensur..

Though no general guidelines are laid down in the Code for awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances vis--vis an accused in each case. In such situation, the obligation of the court in making the choice of death sentence for the person who is found guilty of murder becomes more onerous indeed. [Para 12] [871-E-H; 872-A] Bachan Singh v. State of Punjab (1980) 2 SCC 684; Machhi Singh v. State of Punjab (1983) 3 SCC 470, relied on. Om Prakash v. State of Haryana (1999) 3 SCC 19, referred to. 2. On the question of awarding the sentence for the offences for which life imprisonment as well as the death sentence is prescribed, sub-section (3) of Section 354 CrPC enjoins that in the case of sentence of death, special reasons for such sentence shall be stated. Whether the case is one of the rarest of the rare cases is a question which has to be determined on the facts of each case. The choice of the death sentence has to be made only in the rarest of the rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society; where the crime is committed in an organized manner and is gruesome, cold-blooded, heinous and atrocious; and where innocent and unarmed persons are attacked and murdered without any provocation. [Paras 13 and 17] [872-A-B; 873-E-G] Allauddin Mian v. State of Bihar (1989) 3 SCC 5, relied on. 3. Both the respondents behaved in a most cruel manner, killed four persons while they were asleep. Three, out of the four deceased persons, were murdered within the precincts of a Gurdwara. But, there were certain mitigating circumstances in the case which cannot be lost sight of. Both the respondents, as is disclosed from the records, had illicit relationship with the third accused, who was wife of one of the deceased and when she narrated her woes and the harassment, both the accused persons, lost their balance and acted in a cruel manner by entering into the house of deceased in the dead night and killing in the house and other three sons in the Gurdwara. Thereafter, they also gave threat to everybody outside the house by stating that they have killed those persons and, therefore, no one should dare to come near them. This behaviour on the part of the accused- respondents would show that they acted in the manner being driven more by infatuation and also being devoid of their sense on coming to know about the ill treatment meted out to 'BK'. Though the act of the accused is a gruesome one but it was a result of human mind going astray. No doubt, they acted in a ghastly manner for which, they were adequately punished.

 It is clear that the appellant had no other intention but to commit murder. A had suffered as many as six injuries referable to the sharp cutting weapon on the most vital parts of her body like neck. The other two injuries were on her thigh ..

 It is clear that the appellant had no other intention but to commit murder. A had suffered as many as six injuries referable to the sharp cutting weapon on the most vital parts of her body like neck. The other two injuries were on her thigh and left knee joint. S had suffered 10 injuries on the equally vital parts of the body like head, right eye, face, shoulders, and right arm. His wrist of the right hand was separated from the hand completely. Thus, the appellant-accused was rightly found guilty of murdering these two helpless and defenceless persons apparently for no fault on their part. [Para 7] [857-H; 858-A-C] 1.3. The submission that appellant was on inimical terms with the witnesses and, therefore, the witnesses had falsely implicated him, is unsustainable as there does not seem to be any enmity brought out on the cross- examination of these witnesses. Therefore, even if there was enmity between the parties then that would bring a clear cut evidence of the motive. [Para 8] [858-D-E] 1.4. The evidence of witnesses PW-10 and PW-12 which was corroborated by other witnesses PW-26, PW-29, PW-30, PW-17 and PW-27 clearly brings out that the appellant, immediately after murdering A and S assaulted J. The evidence of J is seen along with the medical evidence regarding the injuries and there is no doubt about the correctness of the findings reached by the Sessions Judge and the High Court. The assault on J was so severe that he lost one of his fingers, being right hand index finger. The trial court and the appellate court correctly concluded that the accused is guilty for the offence punishable u/s. 307 IPC. In fact, on that count it was not necessary for the trial court to additionally convict him for the offence u/s. 326 IPC. That part dealing with the conviction and sentence of the appellant u/s.326 IPC is set aside. [Para 9] [858-F-H; 859-A-C] 2.1. There cannot be a straightjacket formula depending on the number of murders committed or the manner in which the murder was committed or that the appellant was already undergoing the sentence of rigorous imprisonment for life. 

The present appeal - Appellant contented that he should not be convicted as he is a person of unsound mind and incapable of understanding the nature of his actions and that he should be absolved of any liability as per under Section 84 of the IPC ..

The present appeal - Appellant contented that he should not be convicted as he is a person of unsound mind and incapable of understanding the nature of his actions and that he should be absolved of any liability as per under Section 84 of the IPC - Held, to avail the benefit of this provision a person who at the time when the act was done was incapable of knowing the nature of his act or that what he was doing was wrong or contrary to law - In the present case, plea cannot be allowed as said plea with regard to the Appellant’s mental condition had been taken for the first time at the SLP stage - Plea rejected - Appeal dismissed Criminal - Murder - Conviction - Circumstantial evidence - Whether in the absence of eye witness there exists relevant circumstances which point towards the guilt of the Accused - Held, in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct - In the present case, there are relevant circumstance pointing towards Appellant’s involvement - Medical evidence corroborated the fact that knife recovered at the instance of the Appellant could have been used to commit the murders - After murder the fact that Appellant tried to commit suicide is well corroborated by medical evidence where doctor reported six superficial incised injuries on his person as well as by the testimony of the witness to whom Appellant told that he tried to commit suicide after the murder. 

Even if both the tests are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test which depends on the perception of the society and not `judge-centric', that is whether the society will approv..

Even if both the tests are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test which depends on the perception of the society and not `judge-centric', that is whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factOTHERS like society's abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women with those disabilities etc. Courts award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people, and not Judge centric. [Para 13] 2. In the instant case, the appellants do not deserve death sentence. Some of the mitigating circumstances, as enunciated in *Machhi Singh case, come to the rescue of the appellants. Age definitely is a factor which cannot be ignored, though not determinative factor in all fact situations. The probability that the accused persons could be reformed and rehabilitated is also a factor to be borne in mind. Due to the fact that the appellants are instrumental for the death of four persons and nature of injuries they have inflicted, in front of PW1, whose son, daughter-in-law and two grand children were murdered, the appellants deserve no sympathy. Considering the totality of facts and circumstances of the present case, imposition of death sentence on the appellants was not warranted but while awarding life imprisonment to the appellants, it is held that they must serve a minimum of thirty years in jail without remission. The sentence awarded by the trial court and confirmed by the High Court is modified from death to life imprisonment. 

Juvenile Justice (Care and Protection of Children) Act, 2000

Indian Penal Code, 1860

Legality of - Circumstantial evidence - Section 313 of Show

Legality of - Circumstantial evidence - Section 313 of Code of Criminal Procedure, 1973 (CrPC) - Appeals were against judgment of High Court of Madhya Pradesh, confirming judgment of conviction passed by trial Court - Whether case of prosecution was to be accepted as proved beyond reasonable probability or whether defense of Appellant was to be accepted by Court - Whether instant case fell under category of 'rarest of rare' cases - Whether any other sentence, except death penalty, would be inadequate in facts and circumstances of present case - Held, statement of an Accused under Section 313 of CrPC, could be used as evidence against Accused, insofar as it supported case of prosecution - Statement under Section 313 of CrPC, simplicitor normally could not be made basis for conviction of Accused - But, where statement of Accused under Section 313 of CrPC, was in line with case of prosecution, then certainly heavy onus of proof on prosecution was, to some extent, reduced - FIR was recorded by Sub-Inspector based on statement of Appellant itself, made in Police Station - This could not be treated, in law and in fact, as a confessional statement made by Accused and it would certainly attain its admissibility in evidence as an FIR recorded by competent officer in accordance with law - It was not a case of direct evidence but, conviction of Accused was founded on circumstantial evidence - Prosecution had to satisfy certain conditions before a conviction based on circumstantial evidence could be sustained - Circumstances should be conclusive and proved by prosecution - There must be a chain of events so complete so as not to leave any substantial doubt in mind of Court - Circumstances forming chain of events should be proved and they should cumulatively point towards guilt of Accused alone - In such circumstances, inference of guilt could be justified only when all incriminating facts and circumstances were found to be incompatible with innocence of Accused or guilt of any other person. 

The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstanti..

The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. [Para 10] [195-G, 196-A,B,C] 1.2. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. [Para 11] [196-C,D] 1.3. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. [Para 11] [196-E] 1.4 In the present case, it is obvious that Appellant wanted to camouflage the serious crime of rape committed by him over the 5 years old girl. So in a planned manner, after committing rape, he mercilessly inserted stem/stick deep inside the fragile vagina of the girl to the extent of 33 cms. to cause her death, with a view to masquerade the crime as an accident. It was his cruel innovation that he inserted a stick deep into her vagina causing death of the victim. It was just by providence that due to timely reach of the witnesses (PWs 2, 3 & others) (who were frantically searching the girl) he could be caught in naked condition while inserting stick into the vagina of the victim. He was near the lifeless body of the victim.

Code of Criminal Procedure, 1973

Indian Penal Code, 1908

 There was plausible explanation available on record of case file which explained delay in lodging FIR - Statement of sole eye-witness did not suffer from any legal or factual infirmity and appeared to be true and correct version of what actu..

 There was plausible explanation available on record of case file which explained delay in lodging FIR - Statement of sole eye-witness did not suffer from any legal or factual infirmity and appeared to be true and correct version of what actually happened at scene of occurrence - Delay, if any, in lodging FIR, stood explained and was, in no way, fatal to case of prosecution - There had to be a very strong and compelling reason for Court to disbelieve an eye-witness - Statement of sole eye-witness did not suffer from any contradictions nor was at variance with case of prosecution - Both, external and internal injuries that deceased suffered as a consequence of rape and strangulation clearly indicated that crime could not have been committed by a single person - Therefore, involvement of two or more persons was most probable and in line with story of prosecution - Cumulative effect of oral/documentary and expert evidence was that prosecution had been able to prove its case beyond any reasonable doubt - Obligation to put material evidence to Accused under Section 313 of CrPC, was upon Court - One of main objects of recording of a statement under this provision of CrPC was to give an opportunity to Accused to explain circumstances appearing against him as well as to put forward his defence, if Accused so desired - But once he did not avail this opportunity, then consequences in law must follow - Where Accused took benefit of this opportunity, then his statement made under Section 313 of CrPC., in so far as it supported case of prosecution, could be used against him for rendering conviction - Even under latter, he faced consequences in law - In present case, Accused had denied their presence on spot, at time of occurrence - Thus, it was for them to prove that they were not present at place of occurrence and were entitled to plea of alibi - They had miserably failed to establish this fact - Behaviour explained by defence witnesses appeared to be somewhat unnatural in social set up in which Accused, deceased and even some of prosecution witnesses were living - Version put forward by Accused in their statement underhttp://olisindia.in/files/cases/CrPC%201973%20_new.pdf Section 313 of CrPC was unbelievable and unacceptable - There was no cogent evidence on record to support their plea - Prosecution had been able to prove its case beyond reasonable doubt - Accused were guilty of committing offence under Sections 499, 376(2)(g) and 302 of IPC - It was neither possible nor prudent to state any universal formula which would be applicable to all cases of criminology where capital punishment had been prescribed - It would always depend upon facts and circumstances of a given case - Law required Court to record special reasons for awarding such sentence - It was imperative for Court to examine each case on its own facts, in light of enunciated principles - It was only upon application of these principles to facts of a given case that Court could arrive at a final conclusion whether case in hand was one of 'rarest of rare' cases and imposition of death penalty alone would serve ends of justice - Court should examine all or majority of relevant considerations to spell comprehensively special reasons to be recorded in order, as contemplated under Section 354(3) of CrPC - Merely because a crime was heinous per se might not be a sufficient reason for imposition of death penalty without reference to other factors and attendant circumstances - 

Partly allowing the appeal, the Court HELD: 1. To award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the te..

Partly allowing the appeal, the Court HELD: 1. To award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test which depends on the perception of the society and not `judge-centric', that is whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factOTHERS like society's abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women with those disabilities etc. Courts award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people, and not Judge centric. [Para 13] 2. In the instant case, the appellants do not deserve death sentence. Some of the mitigating circumstances, as enunciated in *Machhi Singh case, come to the rescue of the appellants. Age definitely is a factor which cannot be ignored, though not determinative factor in all fact situations. The probability that the accused persons could be reformed and rehabilitated is also a factor to be borne in mind. Due to the fact that the appellants are instrumental for the death of four persons and nature of injuries they have inflicted, in front of PW1, whose son, daughter-in-law and two grand children were murdered, the appellants deserve no sympathy. Considering the totality of facts and circumstances of the present case, imposition of death sentence on the appellants was not warranted but while awarding life imprisonment to the appellants, it is held that they must serve a minimum of thirty years in jail without remission. 

Code of Criminal Procedure, 1973                        Indian Pebal Code, 1860

Criminal Procedure Code, 1973--Show

Criminal Procedure Code, 1973--Section 235(2)--Adjournment against proposed sentence--No request for--Held--Sentence imposed was not vitiated for noncompliance with Section 235(2) of the Code. [Para 14]Indian Penal Code, 1860--Section 302 read with 149--Murder of 13 persons--Others seriously injured--Death sentence--Challenged--No evidence that the appellants were involved in any other criminal case--No direct evidence regarding motive except earlier confrontation--No direct evidence--But 13 persons killed on spot and eight seriously injured--One of them was 7 years old and three between 15 to 17--Held--Aggravating circumstances for outweigh the mitigating circumstances--Imprisonment for life not adequate sentence--Order of staying the execution of capital punishment is vacated. 

Appellant, submitted that the case on hand was not the one which falls in the category of "rarest of rare" warranting capital punishment and further there was no intention to kill - Whether the present case would fall under the category ..

Appellant, submitted that the case on hand was not the one which falls in the category of "rarest of rare" warranting capital punishment and further there was no intention to kill - Whether the present case would fall under the category of "rarest of rare", warranting the death sentence - Held, even if the crime test and criminal test have been fully satisfied, to award the death sentence, the prosecution has to satisfy the R-R Test - One of the factors which weighed with the trial court as well as the High Court to award death sentence to the accused was his criminal antecedents - One of the factors which weighed with the High Court to affirm the death sentence was that the accused was charge-sheeted for commissioning of 24 criminal cases, out of which three were under Section 302 IPC and two were under Section 307 IPC, consequently, the Court held that there was no probability that the accused would not commit the act of violence in future and his presence would be a continuing threat to the society - No materials were produced to show that the accused stood convicted in any of those cases - Accused was only charge-sheeted and not convicted, hence, that factor was not a relevant factor to be taken note of while applying the R-R test so as to award capital punishment - Accused in the present case had the full knowledge i.e., if he fires the shot on the temporal area, that is between the forehead and the ear, it would result in death of the child of one year who was in the arms of PW1 - Appellant had taken out the pistol and fired at the right temporal area of the child, as retaliation of not meeting with his demand and there was nothing to show that, at the time of the incident, he was under the influence of liquor - Consequently, while conviction was affirmed it was held that the present was not a rarest of rare case, warranting capital punishment - Death sentence as awarded by the trial Court and affirmed by the High Court was set aside and conviction was converted into imprisonment for life. 

The present appeal - Held, testimony of the two eye-witnesses was natural, convincing and well corroborated by the evidence of other relevant witnesses and the medical evidence - There was nothing on record to suggest any dispute between the two e..

The present appeal - Held, testimony of the two eye-witnesses was natural, convincing and well corroborated by the evidence of other relevant witnesses and the medical evidence - There was nothing on record to suggest any dispute between the two eye-witnesses and the Appellant or hint towards bitterness in their relationships so as to suggest their false testimony against him - Additionally, no such close alliance of the witnesses with the deceased persons has surfaced so as to prove their bias towards the Appellant - Thus, the evidence of the two eye-witnesses was credible and trustworthy - There was though no evidence to establish the genesis of the incident as it occurred within the four walls of the Appellants house - When the Appellant suspected the deceased persons illicit relationship with A2, the deceased would not have dared to enter the house of Appellant, with his wife and child and attempted to rape A2 and on her resistance threatened to assault her with the knife - Statement of Appellant that when A2 was shouting for help, the wife of the deceased and the child continued to sit outside on the terrace while the Appellant intervened to protect A2 and the deceased assaulted the Appellant and on the intervention in the scuffle the wife and the child received the fatal injuries - Plea of right to private defence and nonorchestrated nature of the offence stand vitiated by the evidence of a witness who testified that A2, immediately after the fateful incident narrated the version of the genesis of the incident absolutely contrary to the version stated by the Appellant - Prosecution case stood well supported and established by the evidence of witnesses coupled with the evidence of Doctors, the post-mortem report and medical evidence and does not leave any room for doubt as to the guilt of the Appellant - Courts below held to be right in convicting the Appellant for the murder of the three persons under Section 302 of the IPC and the conviction accordingly upheld Criminal - Award of death penalty - Appeal against sentencing - Held, as well settled awarding of life sentence is the rule, death is an exception - Number of deaths or the factum of whole family being wiped off cannot be the sole criteria for determining whether the case falls into the category of rarest of rare - Further, brutality also cannot be the only criterion for determining whether a case falls under the rarest of rare categories - In the instant case, the genesis of crime and the manner of occurrence inside the house of the Appellant remained clouded while the guilt was clearly established with the aid of available evidence - Factum of the crime being pre-ordained and the motive of the Appellant in brutally assaulting the deceased with a knife after having invited him at his house for lunch stems from his suspicion on his wifes fidelity and his abhorrence for her relationship with the deceased .

The High Court noted that the whole incident is extremely revolting, it shocks the collective conscience of the community and the aggravating circumstances have utweighed the mitigating circumstances in the case of accused persons 1, 2 & 4; bu..

The High Court noted that the whole incident is extremely revolting, it shocks the collective conscience of the community and the aggravating circumstances have utweighed the mitigating circumstances in the case of accused persons 1, 2 & 4; but held that in the case of others it was to be altered to life sentence. The High Court itself noticed that five members of a family were brutally murdered, they were not known to the accused and there was no animosity towards them. Four of the witnesses were of tender age, they were defenseless and the attack was without any provocation. Some of them were so young that they could not resist any attack by the accused. A minor girl of about fifteen years was dragged in the open field, gang raped and done to death. There can be no doubt that the case at hand falls under the rarest of rare category. There was no reason to adopt a different yardstick for A2, A3 and A5. In fact, A3 was the main person. He assaulted PW1 and took the money from the deceased.33. Above being the position, the appeal filed by the accused persons deserves dismissal, which we direct and the State’s appeal deserves to be allowed. A2, A3 and A5 are also awarded death sentence. In essence all the six accused persons deserve death sentence.

CrPC, 1973

Indian Penal Code, 1908