Case: Vithal Vs. State of Maharashtra

persons were around and particularly when the accused took away the boy mentioning to everybody that he would warm him up, he would not have killed him in the manner suggested by the prosecution. But the accused had no explanation at all as to how he parted with the company of deceased 2 when lie himself had taken him inside his house. Taking the other circumstances particularly attack on PWs 6 and 7 and deceased 1 into consideration, the only irresistible conclusion is that the appellant alone must have caused the death of Bandu, deceased 2. Therefore the accused has been rightly convicted under Section 302 IPC. So far the sentence is concerned, the High Court held that the accused committed these offences only with a view to grab the property and with that greedy motive he did not even spare the young boy and designed to eliminate the entire family of PW 6. At more than one place, the High Court observed that : "The only intention as explicit is to extinguish all the members of the family and grab the land which was in the name of his father and brother." With that motive the accused, according to the High Court, acted in a beastly and ghastly manner and that this is one of the rarest of rare cases where the crime was perpetrated to grab the property. In this context the High Court also observed that "with the elimination of the accused, the society would be much better of and its safety will no longer be endangered" and accordingly awarded the death sentence. So far the motive aspect namely that the accused with a view to grab the property of PW 6 designed to eliminate all the members of his family, cannot, in our view, readily be inferred because if that was the only motive, then PW 6 should have necessarily been done away with. The Doctor, PW 13, who examined PW 6 found only one incised injury near the left ear and it resulted in separating the pinna of the ear and resulted in bleeding. Injuries No. 2 and 3 are described as follows : "2. Contusion left 2nd intercostal space 2"x 1", tenderness over clavicle present. 3. Patient was complaining pain in neck. Tenderness over cervical spine present." The third injury was not an injury as such and the pain complained of could be due to injury No. 2 or injury No. 1. It can thus be seen that injury No. 1 alone if at all was a serious injury but that was also comparatively not serious so as to infer that whoever inflicted this injury wanted to kill him. It is only after attacking PW 6 that the accused is said to have dealt some blows to PW 7. If as suggested his motive was to eliminate PW 6 and his family members to grab the property, this would not have been the nature of attack. Even PW 7 after receiving the injury coolly sat for some time near the courtyard warming, himself. We are referring to these aspects only to show that these deaths were not caused only to grab the property and there was no reason why he should cause the death of deceased 1 without causing any serious injuries to Ramesh, PW 6 himself. We think that something must have preceded this occurrence which has not come to light. 8. The High Court has referred to a decision of this Court which deals with circumstances under which death sentence could be imposed. It may also not be necessary to refer to all those cases cited by the counsel. In Bachan Singh v. State of Punjab, (1980) 2 SCC 684 this Court considered the circumstances under which the death sentence could be imposed and finally observed that taking life by imposing death sentence should be done only in the rarest of rare cases when the alternative option is unquestionably foreclosed. In Machhi Singh v. State of Punjab, (1983) 3 SCR 413 after referring to the ratio laid down in Bachan Singh case this Court observed that a balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 9. The High Court in awarding the death sentence relied on a judgment of this Court in Sarveshwar Prasad Sharma v. State of Madhya Pradesh, AIR 1977 SC 2423 . In that case the Supreme Court confirmed the death sentence taking into consideration that gruesome murders wiping out an entire family of nine persons including aged parents and two infants were committed by the accused with a deliberate motive of wrongful gain and that there were no extenuating circumstances to award a lesser sentence. 10. As discussed above we are not able to agree with the High Court that the appellant, in the instant case, committed the murder of deceased 1 and 2 and inflicted injuries on PWs 6 and 7 with a deliberate motive of wrongful gain and with extreme greed and therefore he does not deserve to exist and be a member of the society and that the death sentence is the only appropriate sentence to be awarded and that there are no extenuating circumstances at all. The High Court in arriving at this conclusion has failed to note that PW 6, who is the main person to be eliminated, has not been attacked by the accused in the manner expected of him with such motive. As already pointed out, what has exactly preceded the attack is not clear. However, the participation of the accused is proved. But what prompted him to inflict those injuries on his own kith and kin is not clearly established by the prosecution. Therefore we cannot say that this is one of the rarest of rare cases where death sentence alone should be awarded.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]That apart, no father would immediately come out and speak against his own son and for that reason also PW 6 could not have immediately disclosed the incident. However, PW 8, who went there and inquired was told by PW 7 that they had to blame their own fate. Learned counsel, however, submitted that due to suspicion they might have implicated the accused. We do not think that any father on mere suspicion would implicate his own son falsely without witnessing the occurrence as such. If really some outsider has committed the crime as suggested by the learned counsel, PW 7, the father, would be the last person to implicate his own son. Therefore the evidence of PWs 6 and 7 corroborated by other evidence amply establishes beyond all reasonable doubt that the accused committed the murder of deceased 1 by causing injuries on her person with a crowbar and also during the same occurrence he caused injuries to PWs 6 andthe other circumstances particularly attack on PWs 6 and 7 and deceased 1 into consideration, the only irresistible conclusion is that the appellant alone must have caused the death of Bandu, deceased 2. Therefore the accused has been rightly convicted under Section 302 IPC. So far the sentence is concerned, the High Court held that the accused committed these offences only with a view to grab the property and with that greedy motive he did not even spare the young boy and designed to eliminate the entire family of PW 6. At more than one place, the High Court observed that : "The only intention as explicit is to extinguish all the members of the family and grab the land which was in the name of his father and brother." With that motive the accused, according to the High Court, acted in a beastly and ghastly manner and that this is one of the rarest of rare cases where the crime was perpetrated to grab the property. In this context the High Court also observed that "with the elimination of the accused, the society would be much better of and its safety will no longer be endangered" and accordingly awarded the death sentence. So far the motive aspect namely that the accused with a view to grab the property of PW 6 designed to eliminate all the members of his family, cannot, in our view, readily be inferred because if that was the only motive, then PW 6 should have necessarily been done away with. The Doctor, PW 13, who examined PW 6 found only one incised injury near the left ear and it resulted in separating the pinna of the ear and resulted in bleeding.As discussed above we are not able to agree with the High Court that the appellant, in the instant case, committed the murder of deceased 1 and 2 and inflicted injuries on PWs 6 and 7 with a deliberate motive of wrongful gain and with extreme greed and therefore he does not deserve to exist and be a member of the society and that the death sentence is the only appropriate sentence to be awarded and that there are no extenuating circumstances at all. The High Court in arriving at this conclusion has failed to note that PW 6, who is the main person to be eliminated, has not been attacked by the accused in the manner expected of him with such motive. As already pointed out, what has exactly preceded the attack is not clear. However, the participation of the accused is proved. But what prompted him to inflict those injuries on his own kith and kin is not clearly established by the prosecution. Therefore we cannot say that this is one of the rarest of rare cases where death sentence alone should be awarded.