Case: MANOJ SURYAVANSHI Vs. STATE OF CHHATTISGARH

has been condemned or who has been sentenced to death has a ray of hope. It, therefore, could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the doomsday. Therefore, the appellant cannot draw any support from the fact that from the day of the crime till the final verdict, a long time has elapsed. It must be remembered that fair trial is the right of an accused. Fair trial involves following the correct procedure and giving opportunity to the accused to probabilise his defence. In a matter such as this, hurried decision may not be in the interest of the appellant. 25.3 In the case of Absar Alam v. State of Bihar (2012) 2 SCC 728 , it is observed and held by this Court that the mental condition of the accused, which led to assault, cannot be lost sight of. It is further observed that the mental condition or state of mind of accused is one of the factors that can be taken into account in considering the question of sentence. 25.4 Thus, from the catena of decisions of this Court, more particularly, the decisions referred to hereinabove, for deciding on the issue of sentence, the aggravating circumstances and mitigating circumstances must be located and the right balance must be adopted. What can be said to be the mitigating circumstances has been dealt with and considered by this Court in the case of Bachan Singh (supra). As observed by this Court in the case of Bachan Singh (supra), the following can be said to be the mitigating circumstances which are required to be considered while deciding on the issue of death sentence. (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. 25.5 In light of the above judgments, we would now ascertain the factors which we need to take into consideration while deciding on the question of sentence. We must locate the aggravating and mitigating circumstances in this case and strike a right balance. 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 Shivlal 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. 25.6 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, we are of the opinion that 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. Sometimes it is stated that only rights of criminals are kept in mind, the victims are forgotten. However, at the same time, while imposing the rarest of rare punishment, i.e. death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case. The mitigating circumstances as observed by this Court in the case of Bachan Singh (supra) and the mitigating circumstances in the present case, if are considered cumulatively and more particularly, that the accused was under the extreme mental disturbance because of the reasons stated hereinabove, we are of the opinion that, in the peculiar facts and circumstances of the case, the death penalty is not warranted and the same be converted to life imprisonment.

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

Explanation:
1[ds]13.1 The appellant-accused has been held guilty for having committed the murder/killing of three minor children aged about 8 years, 6 years and 4 years respectively and has been convicted by both the Courts below for the offences punishable under Sections 302 and 364 IPC. The learned Trial Court, after having held the appellant-accused guilty for the aforesaid offences, has imposed the death sentence, which has been confirmed by the High Court by the impugned judgment and order14. We are conscious of the fact that it is a case of circumstantial evidence and therefore before convicting the accused on the basis of circumstantial evidence, the prosecution has to prove beyond doubt and complete the chain of events which lead to the conclusion that it is the accused alone who has committed the offence15. Having gone through the impugned judgment and order passed by the High Court as well as the judgment and order of conviction passed by the learned Trial Court and the case of the prosecution, the appellant-accused has been convicted mainly based on three sets of circumstances: (i) last seen evidence; (ii) recovery of bodies pursuant to a disclosure memo and (iii) alleged calls made to the appellant during the search for the missing childrenThe prosecution has been successful in establishing and proving that the accused was having enmity with Shivlal-father of the three deceased minor children. The same has been established and proved by the prosecution by examining Shivlal-P.W.18, Manisha- P.W.20 and Rameshwar-P.W.11. The prosecution has been successful in proving that on 11.02.2011 all the minors deceased Ajay, Vijay and Kumari Sakshi went to the school from their house. The prosecution has also been successful in establishing and proving that on 11.02.2011 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. That, after the incident, the accused was not found at his house and was missing even from the village. During the search by Shivlal-P.W.18 and others and after the accused was not found in the village, there were phone calls on the mobile of the accused. That, thereafter, the accused was found from the house of his relative Ashok Kumar Madhukar-P.W.13. 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 aforesaid are the chain of events which led to the conclusion that the accused first kidnapped the three minor children and thereafter killed all of them. The phone-calls made to the accused has been established and proved by the prosecution by examining the Investigating Officer and by producing the call details from the mobile company as Ex.P.3017. Now, so far as the evidence of the accused having last seen together with the deceased is concerned, the prosecution has heavily relied upon the depositions of P.W.1 and P.W.8. So far as the reliance placed upon the deposition of P.W.1 is concerned, it is the case on behalf of the accused that while recording his statement under Section 313 Cr.P.C., the incriminating material on the basis of the deposition of P.W.1 that he saw the accused with the deceased minors at around 1.00 pm on the afternoon of 11.02.2011, was not put to him and therefore, to that extent, the deposition of P.W.1 cannot be relied upon. However, it is required to be noted that while recording the statement of the accused under Section 313 Cr.PC., the deposition of P.W.1 was specifically referred to. Therefore, not asking a specific question arising out of the deposition of P.W.1, in the facts and circumstances of the case, cannot be said to be fatal to the case of the prosecution. Even otherwise, the accused was last seen together with the deceased minors has been established and proved by the prosecution by examining P.W.8-Ashok Patel. P.W.8-Ashok Patel in his deposition has specifically stated that he saw the accused with all the three minors deceased at around 12.00 hours on 11.02.2011. He has identified/recognized the accused present in the court. He has also stated that he knew the complainant Shivlal and he recognized all the three minor children of Shivlal. The said witness has been thoroughly cross-examined by the defence. However, from the cross-examination, the defence has failed to make out any case which may doubt either the credibility and/or what the said witness has stated in his examination-in-chief. He is an independent witness on the evidence of last seen together. We see no reason to doubt the same. There may be some contradictions, but according to us, those contradictions are not material contradictions, which may doubt the credibility of the said witness and/or may be fatal to the case of the prosecution. Thus, the prosecution has been successful in establishing and proving that the accused was last seen together with all the three minor children at about 12.00 noon on 11.02.2011 after they left the school17.1 At this stage, it is required to be noted that the prosecution has proved beyond doubt that all the three minors went to the school in the morning of 11.02.2011 and thereafter they left for the home at about 11.30 hours. That, thereafter, at about 12.00 hours, the accused was seen with all the three minor children. At this stage, it is required to be noted that after Ashok Patel disclosed to Shivlal-P.W.18 and others that he had seen the accused with the three minor children on 11.02.2011 at about 11.30 hours, the name of the accused was specifically mentioned in the missing report given by Shivlal on 11.02.2011 and the same was also mentioned in the FIR. In the FIR, it was specifically mentioned that during the investigation of missing person No. 3/11, he had enquired the complainant and Ashok Patel and Ashok Patel told that he saw the minor children with the accused. Thus, considering the entire evidence on record, we see no reason to doubt the credibility of P.W.8-Ashok Patel. He is an independent witness and no mala-fides are alleged against him on behalf of the accusedTherefore, 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. The disclosure memo has been exhibited. Therefore, the aforesaid circumstance definitely goes against the accused19.1 However, it is required to be noted that the accused was not present in his house at all. From the evidence on record, it appears that the concerned witnesses – Shivlal and others found that the accused Manoj was not in his house. 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 (produced as Ex.P.30). 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, it is required to be noted that the mobile SIM No. 9179484724 was seized from the accused at the time of his arrest and which is proved as per the seizure memo. Therefore, the prosecution has proved that the mobile SIM No. 9179484724 belonged to the accusedHowever, having considered the so-called contradictions pointed out by the learned counsel appearing on behalf of the accused and other evidences, we are of the opinion that those contradictions are not material contradictions which may ultimately affect the case of the prosecution as a whole. 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. As observed by this Court in the case of Leema Ram v. State of Haryana [AIR 1999 SC 3717 ], there are bound to be some discrepancies between the narrations of different witnesses, when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. It is further observed that corroboration of evidence with mathematical niceties cannot be expected in criminal cases. 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 yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. So it depends upon individuals and individuals. 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, we are of the opinion that 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 proved22. Thus, for the reasons sated above, we are of the opinion that the High Court has not committed any error in upholding the conviction of the accused for the offences punishable under Sections 302 and 364 IPC. We are in complete agreement with the view taken by the learned Trial Court as well as the High Court in so far as convicting the accused for the offences punishable under Section 302 and 364 IPC for having killed three minor children aged about 8 years, 6 years and 4 years respectivelyThus, there is no absolute proposition of law that in no case there can be conviction and sentence on the same day. There is no absolute proposition of law laid down by this Court in any of the decisions that if the sentence is awarded on the very same day on which the conviction was recorded, the sentencing would be vitiated23.1 So far as the reliance placed upon by the learned counsel appearing on behalf the appellant upon the decision of this Court in the case of Santa Singh (supra) is concerned, on considering the entire judgment and the facts in that case, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the accused. In that case before this Court, it was found that the learned Trial Court did not give the accused an opportunity to be heard in regard to the sentence to be imposed on him and by one single judgment convicted the accused and also sentenced him to death23.2 Similarly, the decision of this Court in the case of Allaudin Mian (supra) also shall not be applicable to the facts of the case on hand. In the case before this Court, it was found that the death sentence was imposed by the Trial Court without affording proper opportunity of hearing as contemplated under Section 235(2) Cr.P.C. No reasons were recorded for awarding the death sentence which as such were mandatory and thereafter on merits this Court found that the death sentence was no warranted23.3 Applying the law laid down by this Court in the aforesaid decisions, more particularly, in the case of Accused X (supra) to the facts of the case on hand and on considering the reasoning given by the learned Trial Court as well as the High Court, we are of the opinion that there is sufficient compliance of the provisions of Section 235(2) Cr.P.C. The learned Trial Court heard the accused on the aspect of proposition of sentence separately which is clear from paragraphs 76 to 82 of the judgment of the learned Trial Court. Hence, based on the material on record, we are satisfied that the learned Trial Court fully complied with the requirements of Section 235(2) Cr.P.C. The learned 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 learned Trial Court has not given any special reasons while awarding the death sentenceThus, the submission on behalf of the accused that as the sentence was recorded on the same day on which the conviction was recorded and therefore it has vitiated the award of sentence, cannot be accepted. As observed hereinabove, there is a total compliance of the provisions of Section 235 (2) as well as Section 354 Cr.P.C24. Now, so far as the submission on behalf of the accused that while awarding the capital punishment the learned Trial Court has solely looked to the brutality of the crime is concerned, it is factually incorrect. On considering the rival discussions as well as the reasons given by the learned Trial Court 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 reason25.4 Thus, from the catena of decisions of this Court, more particularly, the decisions referred to hereinabove, for deciding on the issue of sentence, the aggravating circumstances and mitigating circumstances must be located and the right balance must be adopted. What can be said to be the mitigating circumstances has been dealt with and considered by this Court in the case of Bachan Singh (supra). As observed by this Court in the case of Bachan Singh (supra), the following can be said to be the mitigating circumstances which are required to be considered while deciding on the issue of death sentence(1) That the offence was committed under the influence of extreme mental or emotional disturbance(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence(6) That the accused acted under the duress or domination of another person(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. 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 Shivlal 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 now25.6 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, we are of the opinion that 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. Sometimes it is stated that only rights of criminals are kept in mind, the victims are forgotten. However, at the same time, while imposing the rarest of rare punishment, i.e. death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case. The mitigating circumstances as observed by this Court in the case of Bachan Singh (supra) and the mitigating circumstances in the present case, if are considered cumulatively and more particularly, that the accused was under the extreme mental disturbance because of the reasons stated hereinabove, we are of the opinion that, in the peculiar facts and circumstances of the case, the death penalty is not warranted and the same be converted to life imprisonment.