Rajasthan High Court - Jodhpur

Rupa vs State Of Rajasthan on 18 December, 2024

Author:
Pushpendra Singh Bhati

Bench:
Pushpendra Singh Bhati

[2024:RJ-JD:51380-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Murder Reference No. 1/2023

State Of Rajasthan, Through Pp Banswara.
----Petitioner
Versus
Rupa S/o Kachru, Aged About 50 Years, Matasula, P.s. Danpur,
Banswara.
----Respondent
Connected With
D.B. Criminal Appeal (Db) No. 77/2023
Rupa S/o Kachru, Aged About 50 Years, R/o Matasula Ps Danpur
Dist. Banswara Raj. (Accused Lodge At Central Jail Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent

For Petitioner(s) : Mr. Vineet Jain, Sr. Advocate assisted
by Mr. Kuldeep Sharma, Pro-Bono
Counsel
Mr. Vijay Kumar
For Respondent(s) : Mr. Deepak Choudhary, GA-cum-AAG

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN

Judgment

Reserved on 08/10/2024
Pronounced on 18/12/2024

Per Dr. Pushpendra Singh Bhati, J:

1. The accused-appellant in this appeal, through Jail, has been

convicted and sentenced as below vide judgment of conviction and

order of sentence dated 19.01.2023 (in Sessions Case No.

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128/2018 - CIS Reg. No. 128/2018 - State of Rajasthan v. Rupa),

passed by the learned Additional Sessions Judge, Banswara.

Offence Sentence

Section 302
, Indian Penal Code Death Sentence
1.1. As indicated above, the accused-appellant had been convicted

under the aforementioned provision, and while doing so, the

learned Trial Court, being the Court of Sessions, had passed the

death sentence against the accused-appellant vide the impugned

judgment of conviction and order of sentence. Therefore, in

accordance with
Section 366
of the Code of Criminal Procedure

1973, the matter has been submitted before this Hon'ble High

Court for confirmation of such sentence, by way of Murder

Reference No. 01/2023.

1.2. We also have noticed that on behalf of the accused-appellant,

an appeal being the above-numbered D.B. Criminal Appeal (Db)

No. 77/2023 has been preferred against the impugned judgment

of conviction and order of sentence. Accordingly, both the murder

reference and the criminal appeal are being decided together by

this common judgment.

2. Brief facts of the case are that the prosecution was set in

motion by a written report (Ex.P. 1) dated 15.06.2018 submitted

by the one Heera (PW-1) in Mahatma Gandhi Hospital, Banswara

to the then present Head Constable Omprakash No. 567, Police

Thana, Danpur, district Banswara. It stated that, on 15.06.2018 at

around 02:00 am when he was sleeping outside his house,

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Reshma (daughter of the accused-appellant) came running and

screamed that her father Rupa, is assaulting her mother (Iteri)

and her brother (Dilip). Upon hearing the same, he ran towards

the place of incident and in the light of torch, saw Rupa hitting his

wife and son on their heads with lathi, with an intention to cause

their death. After seeing PW-1 at the place of incident, the

accused-appellant fled away from the spot. Thereafter, Heera (PW-

1) called Bada, Prabhu Lal, Tulsi Ram on the spot of offence in

question, wherein they saw Ittari and Dilip lying on the ground

and they were having head injuries and blood was flowing out of

their heads. Ittari died on her way to the hospital and Dilip was

admitted to Mahatma Gandhi Hospital, Banswara for treatment.

3. On the basis of the aforementioned report, the police registered

a First Information Report bearing No. 92/2018 against the

present accused-appellant for the offences under
Sections 307
and
of the Indian Penal Code, 1860, and the investigation

commenced accordingly.

3.1. During the course of the investigation, the police arrested the

accused-appellant on 17.06.2018. Later on, after the death of

Dilip during the course of his treatment, and after completion of

the investigation, a charge-sheet under
Section 302
, IPC was filed

by the concerned investigating authority. The accused-appellant

was furnished the copy of the charge-sheet as required under

Section 207
CrPC and accordingly, the Sessions Case bearing No.

128/2018 was registered against the accused-appellant.

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4. Thereafter, the charges were read over to the accused-

appellant, and since he denied the same and claimed trial, the trial

of the case commenced accordingly before the learned Trial Court.

5. During the course of Trial, on behalf of prosecution, 19

witnesses were produced for examination, 37 documents were

exhibited and 2 articles were produced.

6. After recording of the evidence of the prosecution witnesses,

during trial, the statement of the accused-appellant was recorded

under
Section 313
CrPC, during course whereof, he stood by the

denial of the charges and the contents of the statements of the

prosecution witnesses in toto, however, he did not adduce any

evidence in defence. Thus, since the accused-appellant pleaded

'not guilty' and claimed to be innocent while challenging the

veracity of the prosecution's case and alleging its evidence to be

unworthy of credit, he was made to stand the trial, and the trial

proceeded accordingly.

7. The learned Trial Court, to reiterate, after due scrutiny of the

evidence available on record and after duly analyzing the rival

contentions, passed the impugned judgment of conviction and

order of sentence, as above. Thereafter, upon his failure to secure

acquittal order before the learned Trial Court, the accused-

appellant challenged the said judgment convicting and sentencing

him. At this stage, it is noted that the prosecution story was

developed on the strength of testimonies of the eye witnesses

given by PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-8 and it was

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supported by the recovery of weapon of the offence and clothes of

the deceased at the instance of the accused.

8. We have heard Mr. Vineet Jain, learned Senior Counsel assisted

by Mr. Kuldeep Sharma, Pro-Bono Counsel and Mr. Vijay Kumar

appearing on behalf of petitioner and Mr. Deepak Choudhary,

learned GA-cum-AAG appearing on behalf of the State, as well as

perused the record of the case.

9. Before adverting to the evidence adduced, it would be

expedient to notice the defence plea for a purposeful appreciation

thereof.

10. Learned Senior Counsel for the petitioner (accused) has

drawn attention of this Court to the fact that in the instant case,

the accused Rupa stands accused of causing death of his own wife

and son, however, the prosecution is absolutely silent on the

motive for the said incident. Not a whisper has been alleged as to

why the accused, who otherwise was having admittedly no quarrel

or matrimonial or domestic disturbance, would take the extreme

step of murdering his wife and son.

10.1. Learned Senior Counsel further submitted that the

prosecution may argue that in cases of eye-witnesses, motive is

not of much relevance, however, when the nature of offence as

alleged, is the case of uxoricide (murder of wife) and filicide

(murder of son), the reason behind the said act cannot be brushed

away lightly, because it is against the human nature when a

person takes resort to murder his own kith and kin, particularly

when there is absolutely no allegation, whisper or evidence that

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there was any reason for him to take this extreme step. Under

such circumstances, when the prosecution is absolutely silent on

the motive, it becomes essential that the evidence of the

eyewitnesses is scrutinized with greater circumspection and is

corroborated material particulars before it is relied upon.

10.2. Learned Senior Counsel also submitted that the prosecution

in this case has examined as many as 5 eyewitnesses i.e. PW-1 to

PW-5, however, in the FIR which has been lodged by Heera (PW-

1), he only mentions the name of one Reshma, on whose cries, he

rushed to the place of occurrence. As far as the other witnesses

are concerned, namely Jeeva (PW-3) and Bedi (PW-4), their

names do not find mention in the FIR as the persons, who reached

on the spot and saw the alleged actual assault being committed by

the accused.

10.3. Learned Senior Counsel further submitted that as far as the

PW-2 (Beda) is concerned, the FIR narrates that after the accused

ran away, Heera called out and summoned Beda along with

Prabhulal and Tulsi Ram, upon which, they came on the spot,

which makes it apparent that Beda too did not witness the assault

and reached the place of occurrence subsequently along with Tulsi

Ram (PW-6) and Prabhulal (PW-8). Both these witnesses PW-6

and PW-8 in their evidence categorically mention that they

reached the place of occurrence after the accused had run away,

which makes it apparent that Beda himself is not an eyewitness.

This leaves the prosecution with the two so-called eyewitnesses as

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far as the act of the accused is concerned i.e. PW-1 Heera and

PW-5 Reshma, the daughter of the deceased and the accused.

10.4. Learned Senior Counsel also submitted that the statement of

Heera (PW-1) upon examination would reveal that he claims in his

chief that he along with his daughter-in-law Jeeva, Beda and Bedi,

all four reached the house of the accused on hearing the screams

of Reshma and saw the accused hitting both the deceased. He

further claims that he saw the accused in the light of torch which

he carried and on seeing them, the accused ran away. The

evidence of this witness clearly reveals that in his examination-in-

chief, he has made a material improvement which are contrary to

his own FIR, wherein he has made three other persons as

eyewitnesses and the same is admittedly an embellished and

improved version, as it is absolutely missing from the FIR of

which, the said witness is the author.

10.4.1. Learned Counsel in continuation submitted that Heera

(PW-1) claims to have seen the accused assaulting the deceased

in the light of the torch. The same is also rendered suspicious,

because as per the FIR (Ex.P.-1), PW-1 alleges that Reshma (PW-

5) screamed out of fear and said that her father Rupa was

assaulting her mother and brother. If the aforementioned version

set out in the FIR itself is correct, then the identity of the accused

was nowhere in doubt and there was no need for this witness to

go and confirm the same by using a torch to see by throwing light

on the person assaulted. Again, at the cost of repetition, learned

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senior counsel submitted that there is absolutely no motive for the

alleged act of the accused.

10.4.2. Learned Counsel further submitted that admittedly, during

the investigation, the investigating officer has not seized the said

torch, which was used by this witness. However, according to the

version of the witness, the incident allegedly took place at 02.00

A.M. in the midnight and use of battery makes it apparent that the

place of occurrence did not have any source of light to identify the

person carrying out the said act. Therefore, the counsel submitted

that in light of the circumstances above and in the absence of

recovery of the concerned weapon of offence, the veracity of the

testimony of the eye-witnesses does not remain untainted.

10.5. Learned Senior Counsel also submitted that this witness has

further in his cross-examination specifically stated that when he

reached the place of occurrence, he saw both the deceased lying

on the floor and the accused ran away on seeing them implying

that the initial version as well as the version in the examination-

in-chief that this witness saw the accused causing injuries to the

deceased is suspicious because as per his own admission when he

reached the place of occurrence, the accused ran away, which also

makes it plausible that this witness never saw the alleged act of

assault, as he claims in his examination-in- chief.

10.6. Learned Senior Counsel also submitted that as far as

evidence of PW-5 (Reshma) is concerned, it suffices to state that

she is a child witness, and the evidence of a child witness must be

carefully examined and materially corroborated by other

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circumstances before it can be relied upon. A bare perusal of PW-

5's statement reveals that she cannot be considered a witness of

sterling quality. Her evidence is wavering in nature, as she first

claims that she is not a witness to any incident, but subsequently

states that she saw the accused assaulting her mother and

brother with a lathi.

10.6.1. Learned counsel further submitted that, PW-5 (Reshma)

testified that upon raising alarm, Heera along with Tulsi, Badiya,

Bedi, and Jeevni rushed to her house, whereupon the accused

fled. However, this version is entirely at variance with the

testimony given by PW-1 Heera and other prosecution witnesses.

In cross-examination, PW-5 claims that she went to sleep between

8:00 and 9:00 PM and only woke up in the morning, thereby

casting serious doubt on the prosecution's version that it was she

who raised an alarm and summoned PW-1 to the place of

occurrence. Under these circumstances, it cannot be concluded

that PW-1 and PW-5 are witnesses of sterling worth, nor can their

testimony be deemed creditworthy enough to base a conviction

upon.

10.6.2. Learned counsel also submitted that this witness has been

examined more than one year after the alleged occurrence and

claims that she is presently also studying in the school, however,

there is no material available on record to show as to who is

taking care of the said witness. The possibility that the said

witness has been tutored, cannot be ruled out, because admittedly

after the accused has been sent to custody, all the agricultural

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land in possession of the accused became open for being

possessed and cultivated by others and they would definitely take

advantage of the current situation and tender age of this child

witness to ensure that they continue to enjoy the agricultural land

of the accused.

10.7. Learned counsel further submitted that as far as other

eyewitnesses are concerned, admittedly their names were not

mentioned in the FIR, as the persons who went along with Heera

to see the accused causing the injuries. Further, PW-2 (Beda)

claims that he saw the accused running away from a distance of

100 meters, he claims that he saw Heera standing near the

bodies; PW-3 (Jeeva) claims that she reached the place of

occurrence after Heera and this witness has categorically admitted

that the deceased Iteri and the accused Rupa had a cordial marital

life, however, all these witnesses in one breath claim that the

accused was quarrelsome with the other neighbors and used to

quarrel with them on regular basis.

10.7.1. Learned counsel also submitted that similarly, PW-4 Bedi

also claims that when she reached the place of occurrence, the

deceased were lying down on the floor and Jeeva and Heera were

standing there, which makes all the witnesses, who are not

mentioned in the FIR, at a variance with the version set out by the

PW-1 and the same discredits witnesses, which is also apparent

from the fact that they are all relatives of PW-1 Heera.

10.8. Learned counsel further submitted that, with regard to the

medical evidence, the prosecution in this case has examined PW-

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14 Dr. Ravi Upadhyay and presented Ex.P.-29 (Post-mortem

Report of Smt. Iteri) and Ex.P.-31 (Post-mortem Report of Dilip).

As per the evidence of the said witness, both the deceased had

only one fatal injury on head, both lacerated wounds, which were

subsequently found to be the cause of death. This witness in his

cross- examination has admitted that the injury which is referred

to could be a result of fall as well.

10.9. Learned counsel also submitted that with regard to the

evidence of recovery, the prosecution has relied upon the

circumstance of recovery of weapon of offence i.e., the lathi as

well as apparel of accused i.e., dhoti with an assertion that these

articles were having bloodstains which on analysis were found to

be of B-group, which was also the group found at the place of

occurrence. Counsel also stated that it is suffice to say that the

accused in this case was arrested on 17.06.2018 at about 02.37

P.M., by Ex.P.-26 and the recovery of lathi was made at 06.00 P.M.

on the same day from an open place at some distance from the

house of the accused.

10.9.1. Learned counsel further submitted that similarly, the dhoti

was found and seized at 02:45 Ρ.Μ. subsequent to his arrest. It is

humbly submitted that recovery of the lathi is absolutely

suspicious in view of the fact that it is made after a lapse of two

days, that too from an open place, for which, there is no

explanation as to why the accused would allegedly throw the lathi

at a place nearby his own house when he had already escaped

from the place.

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10.9.2. The recovery has been witnesses by two motbirs PW-11

and PW-12. PW-11 (Shankar) in his evidence claims that recovery

was effected at about 10-11 A.M., three days after the incident,

which makes it apparent that the recovery is nothing but a planted

recovery because it has been affected on 17.06.2018 and three

days had not elapsed, further as per the recovery memo (Ex.P.-

22), the recovery was effected on 17.06.2018 at 06.00 P.M.

whereas according to this witness, the recovery had already taken

place between 10:00-11:00 A.M. This witness has further

destroyed the case of the prosecution when he in his cross-

examination admits that he was made to sign the memos at the

police station and the articles were also sealed at the police

station.

10.9.2. Learned counsel also submitted that, similarly, PW-12

Bahadur has stated in his evidence that the recovery was made at

about 4:00 or 5:00 P.M. and he asserts that they signed the

memos at the place of recovery and not at police station. The

witness has absolutely contradicted PW-11 and therefore, both of

the witnesses lose their credibility when it comes to the

circumstance of recovery.

10.10. Learned counsel further submitted that the prosecution has

connected the said recovery with the offence on the strength of

FSL report Ex.P.-36 as per which, the dhoti and the Lathi

recovered at the instance of the accused were found to be

carrying stains of B-blood group. Learned counsel submitted that

when viewed in light of the motbir witnesses, the recovery as well

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as sealing of the articles becomes highly suspicious and the

possibility of tempering cannot be ruled out. This also gains

importance in view of the statements of PW-15 (Mahendra Pal),

Constable, who allegedly carried the articles for comparison and

deposited it with the FSL. This witness claims that he was handed

over the articles from malkhana at about 11.00 A.M. on

27.06.2018 and he again deposited the same in the Malkhana in

the evening of 27.06.2018, because the requisite paper work in

the office consumed the whole day and therefore, he took the

same again in the morning of 28.06.2018 and deposited it for FSL.

10.10.1. Learned counsel submitted that when the

aforementioned evidence is viewed with the malkhana register

produced by the prosecution (Ex.P.-27-A), would reveal that the

articles were submitted on 27.06.2018 and the receipt was

handed over to PW-15 (Mahendrapal), which was presented on

28.06.2018. The receipt Ex.P.-34 does not bear the seal of the

FSL, which fact has also been admitted by PW-15.

10.10.2. Learned counsel further submitted that, the prosecution

in this case has not examined the malkhana in-charge and the

evidence of PW-15 (Mahendrapal) regarding re-deposition of

articles on 27.06.2018 and re-handing over on 28.06.2018 is

absolutely contradicted by Ex.P.-27-A, which bears no such

entries. Therefore, it cannot be said that the prosecution has

proved that it was the accused, who has committed the said

murders beyond all shadow of doubt so as to warrant his

conviction.

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10.11. In support of the aforementioned submissions, the learned

counsel for the respondent (accused) has relied upon the

judgments rendered in the following cases:

1. Shahabudeen and ors. v. State of Rajasthan (D.B. Appeal

No. 966/16, Para 66)

2. Trappa Siddappa Murgannavar v. State of Karnataka (Cri.

Appeal 1473-74/2017, Para 23)

3. Pappu v. State of Uttar Pradesh (Cri. Appeal No. 1097-

98/2018, Para 42).

11. Mr. Deepak Choudhary, learned GA cum AAG has opposed

the aforesaid submissions made on behalf of the accused-

appellant.

12. We have gone through the impugned judgment and order of

the learned Trial Court and analysed all the evidence brought on

record through the depositions by the witnesses as well as the FSL

report which are on record along with other exhibits, and the case

laws cited at the Bar.

13. At this stage, this Court deems it appropriate to deal with the

evidence of the prosecution witnesses to the extent necessary for

the present adjudication.

14. This Court observes that Heera (PW1) has very clearly in this

examination-in-chief as testified that upon hearing the cries of his

brother's daughter (Reshma) he along with his daughter-in-law

Jeeva, Bada and his wife Badi ran towards the place of incident,

whereupon in the light of torch they saw Rupa causing injuries to

his wife (Iteri) and son (Dilip) on their heads with lathi and upon

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seeing them all, Rupa ran away from the spot, whereafter Iteri

died on the spot and Dilip died after 2 days while undergoing the

treatment. This witness only got the complaint (Ex.P. 1)

registered, testified the veracity of Naksha Mauka (Ex.P. 2) and

also witnessed the seizure of the blood-stained clothes of both the

victims and the attested the seizure memo of blouse and petticoat

(Ex.P. 5) and seizure memo of pant and shirt (Ex.P. 8). He also

attested the Ex.P. 6 i.e., the seizure memo and soil sample.

Furthermore, no inconsistencies have been found in the

aforementioned during his cross-examination so as to vitiate the

testimony given during examination-in-chief.

15. This Court further observes that the testimony of PW1 is

further corroborated by the testimony of PW 2 (Bada), who was

said to have accompanied PW1 to the place of incident when the

accused was committing the crime in question. PW 2 has testified

in his examination-in-chief that he along with his wife (Badi) and

Heera upon hearing the cries of Reshma, went to the place of

offense and reiterated the complete story as is narrated by PW1 in

his testimony. No such fact is found in the testimony of PW 2

which can shake its veracity.

16. This Court also observes that testimonies of PW 3 (Jeeva) and

PW 4 (Badi) also are in tandem with and duly corroborate the

story narrated by the PW 1 and PW 2. Further, there is no such

fact found in their cross-examination which questions the

credibility of their statements given in examination-in-chief.

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17. This Court further observes that broadly the testimonies of all

the aforementioned eye-witnesses are in line with each other and

therefore, any minor contradictions in their statements are

naturally plausible to occur over a period of time and thus, are

insufficient to disbelieve their testimonies.

18. This Court also observes that, as far as testimony of PW-5,

Reshma is concerned, it has been contended by the learned

counsel on behalf of the accused that she is child witness and her

statement has been recorded after a gap of one year and

therefore should be considered with caution. However, it is

noteworthy that, even though she is a child, her statement was

recorded only after subjecting her to the questions testing her

ability to understand the questions posed to her and her ability to

answer those questions using her intellect.

18.1. Reshma in her testimony clearly stated that she saw her

father hitting her mother and brother with lathi, whereafter she

started screaming and upon hearing her screams Heera along with

Tulsi, Badiya, Bedi, and Jeevni rushed to her house, whereupon

the accused fled.

19. This Court further observes that, in a similar manner PW-6

(Tulsiram) has also supported the testimony of other witnesses.

He states to have heard the screams of Reshma and to have run

towards the place of incident. He also states that to have seen the

victims lying on the ground and blood coming out of their heads.

He further supports rest of the prosecution story as is narrated by

the other witnesses. Even if this court considers that contention of

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the learned counsel on behalf of the accused that this witness was

not present exactly at the time when the incident took place and

he was present only after the offense in question was committed,

then also the facts narrated by him which are said to have

occurred before and after the commission of the main act

constituting offense is also relevant under the
Section 6
, Indian

Evidence Act as forming part of the same transaction.

20. This Court also observes that, similarly PW-8 (Prabhulal) also

in his testimony has testified that he was present at the spot of

crime after the accused fled away from the place and saw the

victims lying on the floor, which again becomes relevant as

forming part of same transaction under
Section 6
, Indian

Evidence Act.

21. This court further observes that PW-7 (Nagla) and PW-10

(Rakulal) testifies to have attested the Ex.P.-2 (Naksha Mauka)

and Ex.P. 5 and 6 (Seizure Memo of the blood stained clothes of

the victims and the soil sample)

22. This Court also observes that as far as the recovery of the

weapon of offense is concerned, the prosecution has produced two

witnesses from its side in his regard i.e., PW-11 (Shankar) and

PW-12 (Bahadur). Both these prosecution witnesses testified in

their examination-in-chief to have witnessed the recovery of lathi

in between stones on one 'Matasulla Hill' upon information given

by the accused. They have also attested the recovery memo

(Ex.P.-22) and have testified the presence of blood on the lathi.

They also state to have witnessed the preparation of Ex.P.-23

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(Naksha Mauka) in their presence and to have attested both the

memos.

22.1 This Court also observes that even though the

aforementioned witnesses state to have witnessed recovery of the

weapon of offence from an open place; they also in their cross-

examination deny the fact that the place from where the said lathi

was recovered had similar lathis over there. Further, no such fact

has been brought to the light which can discredit the veracity of

these witnesses.

23. This Court further observes that PW-13 (Basulal) testifies the

deposition of 7 seized articles by the investigating officer in the

Malkhana and thereafter giving the same to PW-15 (Mahendra Pal)

for their deposition in the FSL Branch, Udaipur and thereafter

presented its receipt on 28.06.2018. The aforementioned is

corroborated by Ex.P. 27A (Copy of Malkhana Register) and the

statements of PW-15, wherein he has also referred to Ex.P. 32

(Forwarding Letter of his thana) and Ex.P. 33 (Forwarding Letter

from the Superintendent of Police) to show that the seized items

were in same condition from malkhana to FSL, Udaipur. Therefore,

the factum of investigating officer sealing and depositing the

seized items in the malkhana and thereafter, safely depositing it in

the FSL, Udaipur is duly proved.

24. This Court also observes that PW-14 (Dr. Ravi Upadhyay) was

produced before the learned trial court as an expert witness by

the prosecution to show that the death of the victims was caused

due to injuries in their head, which is ante-mortem in nature. His

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signatures have also been shown to have been present on the

Post-mortem report (Ex.P. 29) and Ex.P. 31, in order to prove their

genuineness.

25. This Court further observes that the investigating officer while

duly certifying the whole of the investigation has proved all the

discoveries and seizures. On the point of recovery, the

investigating officer even though as agreed to the factum of

discovery being made from an open space, has also clarified in his

testimony that the said weapon was recovered underneath the

stones, on the basis of the information provided by the accused.

The information vis-a-vis the presence of the weapon of offence is

specific and exclusive to the knowledge of the accused; further no

such information has been found during the cross-examination of

investigating officer i.e., PW-17 (Sajjan Singh) which could render

the investigation so done unreliable.

26. This Court also observes that, it is noteworthy that the

accused admits to have committed the act of hitting his wife and

sone their heads; however, he takes the defense of unsoundness

of mind at the time of committing the crime in question.

27. This Court therefore observes that upon the basis of the

aforementioned analysis and appreciation of oral and documentary

evidence available on record, it is duly proved that the prosecution

has proved its case beyond reasonable doubts, that at around

2:00 am in the night of 15-06-2018, the accused assaulted his

wife and son with lathi, with an intention of causing their death. In

such a situation, the burden lies upon the accused-appellant to

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prove unsoundness of mind in order to bring his case within the

purview of general exceptions under
IPC
.

28. This Court further observes that, on the point of the defense

regarding unsoundness of mind, learned counsel on behalf of the

accused contended that the accused was unsound at the time of

commission of offence and therefore was incapable of knowing the

nature of the act, or that he is doing what is either wrong or

contrary to law. However, the medical examination of the accused

available on record and reproduced below shows that the he was

not suffering from mental condition and therefore could not be

termed as one having unsound mind:

"Mental Status Examination:- On mental status examination he
is conscious, cooperative and oriented to time, place and
person. He is fairly ciad and kempt. Eye to eye contact present.
Psychomotor activity with normal limits. Speech and language
relevant with normal tone, volume and pressure. Reaction time
is normal. Mood/affect euthymic. No abnormalities found in
though and perception. Higher mental function is intact. No
active psychopathology found at present.
Conclusion: On the basis of the detailed behavioural
observation, Mental Status and physical examination, members
of medical board are of opinion that patient rupa is not suffering
from any psychiatric illness at present."

28.1. The aforementioned point regarding the absence of

unsoundness of mind is also supported by the fact that the none

of the witnesses in their statements mentioned about the

unsoundness of the accused; at the most PW-2 and PW-3 among

others made statements in their cross-examination regarding the

fact of the accused entering into altercations with the other

villagers and picking up fights with others due to his habit of

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alcoholism. But the same does not go on to prove the accused's

unsoundness of mind.

29. This Court therefore observes that the accused has failed to

discharge his burden udner
Section 105
, Indian Evidence Act,

1872 to prove unsoundness of mind and thereby is not entitled to

defense under
Section 84
of the Indian Penal Code, 1860 and the

prosecution has been able to prove the case against him beyond

all reasonable doubts.

30. This Court, in light of the aforementioned factual matrix,

witnesses produced, the documentary evidences adduced and the

cases cited, finds that the prosecution in the instant case has

been successful in proving the case against the accused (Rupa)

beyond all reasonable doubts and therefore the learned trial court

has rightly convicted him under
Section 302
of the IPC.

31. Once this Court has arrived at a conclusion that the impugned

judgment of conviction does not suffer from any infirmity and the

appellant's crime has been demonstrated by the prosecution with

the help of the aforestated evidence no case for making any

interference in the impugned judgment of conviction is made out.

32. The second issue which now requires consideration of this

Court is regarding the sentence and this Court is conscious of the

fact that learned Senior Counsel for the appellant submitted that

the capital sentence would require this Court to apply the test of

rarest of rare cases, and also this Court shall have to look at the

gravity and the mitigating circumstances which are applicable in

the present case.

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32.1. Learned counsel for the appellant submitted that the learned

trial court, while considering the sentence, has held that upon

weighing the aggravating and mitigating circumstances in the case

at hand, the scales tip towards aggravating circumstances and

only when the aggravating circumstances outweigh the mitigating

circumstances, the approprpriate sentence is a capital

punishment. He submitted that the mitigating circumstances as

delineated by Hon'ble Apex Court in the case of Ram Naresh &

Ors. Vs. Chattisgarh, AIR 2012 SC 1357, specifically provide for

the mitigating circumstances which should be given weightage

while considering the awarding of sentence. One of the

circumstance, which should be considered and weighed as a

mitigating circumstance are those conditions or circumstances in

which, the said offence has been committed or in other words,

whether at the time of commission of the said offence, the

accused was either mentally or emotionally disturbed or was

under provocation. Similarly, one of the circumstances is where

the sole eyewitness was not creditworthy. In the case at hand, the

accused was admittedly not having any criminal antecedent nor

was he having any psychological tendencies, which would have

made it apparent that the said accused would be a threat to

society at large.

32.2. Learned counsel further submitted that, admittedly the

accused was a family man, who was taking care of his family,

which is apparent that he had a son 12 years of age, a daughter 8

years of age, and admittedly the accused never assaulted the said

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daughter nor was any evidence that he was regularly assaulting

his wife. Under such circumstances, considering these mitigating

factors- particularly the absence of any acts that could be

characterized as cruel or inhuman, so as to warrant the awarding

of capital punishment, the said order of sentence is not

sustainable. Though it is true that the allegation is of causing

death of wife and son, however, the time of the occurrence,

mitigating circumstances and the fact that only one injury was to

each, makes it apparent that the case at hand does not fall in the

category of rarest and rare cases, so as to justify awarding of

capital punishment and therefore, the order of learned trial court

deserves to be appropriately modified.

32.3. While taking into consideration the perspectives raised, this

Court finds that the gravity of the circumstances including the

gruesomeness and heinousness of the crime and condition in

which it was committed are of extreme nature and do not call for

any leniency.

32.4. This Court also observes that the principle of death penalty

has been dealt with in various cases by the Hon'ble Apex Court

from time to time and the principle was laid down to the effect of

"Aggravating circumstances -- (Crime test) and Mitigating

circumstances -- (Criminal test)", to ascertain whether the

case falls under the rarest of rare case or not. A proper evaluation

was laid down by the Hon'ble Apex Court in a recent case of

Manoj Pratap Singh Vs State of Rajasthan (Special Leave

Petition (CRL.) Nos. 7899-7900/2015), decided on

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24.06.2022), relevant portion of the said judgment is reproduced

as hereunder:-

"Death sentence: Evolution of principles and norms
.....

44. We may now usefully summarise the salient features of
evolution of legal principles and norms for dealing with the
question of sentencing in such matters where the sentence of
death could also be awarded, particularly with reference to the
leading cases and expositions therein.

44.1.
In the case of
Jagmohan Singh v. The State of U.P.
:

(1973) 1 SCC 20, the questions in their broader spectrum were
raised about the constitutional impermissibility of death sentence
with the submissions: (i) that the death sentence was
unreasonable for it would put an end to all the rights guaranteed
under clauses (a) to (g) of
Article 19(1)
of the Constitution of
India; (ii) that the discretion vested in the Judges to impose
capital punishment was not based on any standards or policy
and hence, the provision suffered from the vice of excessive
delegation of legislative function; (iii) that the uncontrolled and
unguided discretion in the Judges to impose capital punishment
or imprisonment for life was hit by
Article 14
of the Constitution
of India; and (iv) that under
Article 21
of the Constitution, no
person shall be deprived of his life except according to the
procedure established by law but, the provisions of law did not
provide a procedure for trial of factors and circumstances crucial
for making the choice between the capital punishment and
imprisonment for life.

44.2. Two major factors/events after the decision in
Jagmohan

(supra) led to another reference to the Constitution Bench of this
Court in regard to the constitutional validity of death penalty for
the offence of murder as also of the sentencing procedure. One
had been the amendment of the law relating to criminal
procedure with advent of the
Code of the Criminal Procedure
,
1973 in replacement of the old Code of 1898, which introduced,
as regards sentencing procedure, the above-quoted subsection (2)
of Section 235 and sub-section (3) of Section 354. Several persons
convicted of murder and sentenced to death filed the petitions
under
Article 32
of the Constitution of India challenging the

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constitutional validity of death penalty provided in
Section 302

IPC for the offence of murder and that of the sentencing
procedure provided in sub-section (3) of
Section 354
CrPC.

The
other one had been the majority opinion of a 3 Judge Bench of
this Court in the case of
Rajendra Prasad v. State of Uttar
Pradesh
: (1979) 3 SCC 646, purportedly seeking to whittle down
the ratio of
Jagmohan
(supra); and correctness of such an
opinion having been doubted by another Bench of this Court. The
reference so made to the Constitution Bench came to be
answered in locus classicus Bachan Singh (1980) 2 SCC 684
with its 'rarest of rare' doctrine. The opinion of majority in
Bachan Singh is the guiding light and foundational discipline for
all the later developments and enunciations on the subject.

.....

44.3.
In
Bachan Singh
(supra), the Constitution Bench of this
Court examined two major questions, i.e., as to whether death
penalty provided for the offence of murder under
Section 302
IPC
was unconstitutional; and if not, as to whether the sentencing
procedure in
Section 354(3)
CrPC was unconstitutional on the
ground that it invested the Court with unguided and
untrammelled discretion. 44.3.1. After having examined a
variety of features and factors pertaining to
Articles 19(1)
and
of the Constitution of India, the Court (per majority of the
Constitution Bench) answered the first question in the negative,
while observing and pointing out, inter alia, as under: -

"132. To sum up, the question whether or not death penalty
serves any penological purpose is a difficult, complex and
intractable issue. It has evoked strong, divergent views. For the
purpose of testing the constitutionality of the impugned provision
as to death penalty in Section 302 of the Penal Code on the
ground of reasonableness in the light of
Articles 19
and
of the
Constitution, it is not necessary for us to express any categorical
opinion, one way or the other, as to which of these two
antithetical views, held by the Abolitionists and Retentionists, is
correct. It is sufficient to say that the very fact that persons of
reason, learning and light are rationally and deeply divided in
their opinion on this issue, is a ground among others, for
rejecting the petitioners argument that retention of death penalty
in the impugned provision, is totally devoid of reason and

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purpose. If, notwithstanding the view of the Abolitionists to the
contrary, a very large segment of people, the world over,
including sociologists, legislators, jurists, judges and
administrators still firmly believe in the worth and necessity of
capital punishment for the protection of society, if in the
perspective of prevailing crime conditions in India, contemporary
public opinion channelized through the people's representatives
in Parliament, has repeatedly in the last three decades, rejected
all attempts, including the one made recently, to abolish or
specifically restrict the area of death penalty, if death penalty is
still a recognised legal sanction for murder or some types of
murder in most of the civilised countries in the world, if the
framers of the Indian Constitution were fully aware -- as we shall
presently show they were -- of the existence of death penalty as
punishment for murder, under the Penal Code, 1860, if the 35th
Report and subsequent reports of the Law Commission
suggesting retention of death penalty, and recommending
revision of the
Criminal Procedure Code
and the insertion of the
new Sections 235(2) and 354(3) in that Code providing for
presentence hearing and sentencing procedure on conviction for
murder and other capital offences were before the Parliament
and presumably considered by it when in 1972-1973 it took up
revision of the Code of 1898 and replaced it by the
Code of
Criminal Procedure
, 1973, it is not possible to hold that the
provision of death penalty as an alternative punishment for
murder, in Section 302 of the Penal Code is unreasonable and not
in the public interest. We would, therefore, conclude that the
impugned provision in Section 302, violates neither the letter nor
the ethos of
Article 19.
....

...

44.4.
In fact,
Bachan Singh
(supra) judgment has been succinctly
summarised and its principles explained by another Constitution
Bench of this Court in the case of
Mithu v. State of Punjab
:

(1983) 2 SCC 277 while dealing with the question of
constitutional validity of
Section 303
IPC, which provided for
death sentence as the mandatory punishment for a person who,
being under sentence of imprisonment for life, would commit
murder.
In the course of declaring the said provision contained in

Section 303
IPC constitutionally invalid, the Constitution Bench

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dealt with a large number of arguments; and one of them had
been that the validity of death sentence had already been upheld
in
Bachan Singh
(supra ) and, therefore, such questions should
not be allowed to raise their head over again. While pointing out
the fallacy of this argument, the Constitution Bench explained as
to what exactly had been the ratio of Bachan Singh in the
following words: -

"7.....The majority did not lay down any abstract proposition in
Bachan Singh that "death sentence is Constitutional", that is to
say, that "It is permissible under the Constitution to provide for
the sentence of death". To be exact, the question which arose for
the consideration of the Court was not whether, under the
Constitution, it is permissible to provide for the sentence of
death. The precise question which arose
in that case
was whether
Section 302 of the Penal Code which provides for the sentence of
death as one of the two alternative sentences is valid. It may be
recalled that Section 302 provides for the sentence of death as an
alternative sentence which may be imposed. The normal sentence
for murder is life imprisonment; and if the death sentence has to
be imposed, the Court is under a legal obligation under
Section
354(3)
of the Criminal Procedure Code to state the special
reasons for imposing that sentence. That explains why, in Bachan
Singh, Sarkaria J., who spoke for the majority, underscored the
words "alternative" and "may" in paragraph 19 of the judgment,
whilst observing that prescribes death as an alternative
punishment to which the offender may be sentenced in cases
relating to seven kinds of offences. The majority concluded that
of the Penal Code is valid for three main reasons: Firstly, that the
death sentence provided for by Section 302 is an alternative to
the sentence of life imprisonment, secondly, that special reasons
have to be stated if the normal rule is departed from and the
death sentence has to be imposed; and, thirdly, because the
accused is entitled, under
Section 235(2)
of the Code of Criminal
Procedure, to be heard on the question of sentence. The last of
these three reasons becomes relevant, only because of the first of
these reasons......

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44.5. Thereafter, in
Machhi Singh
(supra), a 3-Judge Bench of
this Court, while considering a case where the appellant was
convicted of orchestrating and executing a conspiracy, which
resulted in the murder of as many as 17 people due to a family
feud, explained the philosophy pertaining to the death sentence
in the following words: -

"32. ...Every member of the community owes a debt to the
community for this protection. When ingratitude is shown instead
of gratitude by "killing" a member of the community which
protects the murderer himself from being killed, or when the
community feels that for the sake of self-preservation the killer
has to be killed, the community may well withdraw the protection
by sanctioning the death penalty. But the community will not do
so in every case. It may do so "in rarest of rare cases" when its
collective conscience is so shocked that it will expect the holders
of the judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of
retaining death penalty. The community may entertain such a
sentiment when the crime is viewed from the platform of the
motive for, or the manner of commission of the crime...."

(emphasis supplied)

44.5.1. The Court also explained the relevant propositions of

Bachan Singh
(supra) and the pertinent queries for applying
those propositions in the following terms: -

"38.
In this background the guidelines indicated in
Bachan Singh

case will have to be culled out and applied to the facts of each
individual case where the question of imposing of death sentence
arises.

The following propositions emerge from
Bachan Singh

case: (i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability. (ii) Before opting for the
death penalty the circumstances of the 'offender' also require to
be taken into consideration along with the circumstances of the
'crime'. (iii) Life imprisonment is the rule and death sentence is
an exception. In other words death sentence must be imposed
only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant

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circumstances of the crime, and provided, and only provided, the
option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant circumstances.

(iv) 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.

39. In order to apply these guidelines inter alia the following
questions may be asked and answered: (a) Is there something
uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which
speak in favour of the offender?

40. If upon taking an overall global view of all the circumstances
in the light of the aforesaid proposition and taking into account
the answers to the questions posed hereinabove, the
circumstances of the case are such that death sentence is
warranted, the court would proceed to do so."

(emphasis supplied)

44.6. Another relevant decision to be noticed is that in the case of

Swamy Shraddananda (2) v. State of Karnataka
: (2008) 13
SCC 767. The said decision was rendered by a 3- Judge Bench of
this Court in the backdrop that though a 2-Judge Bench of this
Court upheld the conviction of the appellant of offences under

Sections 302
and
IPC but, one of the learned Judges felt that
in the facts and circumstances of the case, punishment of
imprisonment till the end of the natural life of the convict would
serve the ends of justice, whereas the other learned Judge was of
the view that the appellant was liable to the punishment of death.
In keeping with the ever-progressing canons of penology, the 3-
Judge Bench carved out a different course, being of not awarding
death penalty but, of conditioning the sentence of imprisonment

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for life with a rider that the convict shall not be released from
the prison for the rest of his life. The Court explained the logic of
such sentencing, which overrides the availability of remission, in
the following terms: -

"92. The matter may be looked at from a slightly different angle.
The issue of sentencing has two aspects. A sentence may be
excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to this
Court carrying a death sentence awarded by the trial court and
confirmed by the High Court, this Court may find, as in the
present appeal, that the case just falls short of the rarest of the
rare category and may feel somewhat reluctant in endorsing the
death sentence. But at the same time, having regard to the
nature of the crime, the Court may strongly feel that a sentence
of life imprisonment subject to remission normally works out to a
term of 14 years would be grossly disproportionate and
inadequate. What then should the Court do? If the Court's option
is limited only to two punishments, one a sentence of
imprisonment, for all intents and purposes, of not more than 14
years and the other death, the Court may feel tempted and find
itself nudged into endorsing the death penalty. Such a course
would indeed be disastrous. A far more just, reasonable and
proper course would be to expand the options and to take over
what, as a matter of fact, lawfully belongs to the Court i.e. the
vast hiatus between 14 years' imprisonment and death. It needs
to be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the case, the
sentence of 14 years' imprisonment would amount to no
punishment at all.

93. Further, the formalisation of a special category of sentence,
though for an extremely few number of cases, shall have the
great advantage of having the death penalty on the statute book
but to actually use it as little as possible, really in the rarest of
rare cases. This would only be a reassertion of the Constitution
Bench decision in Bachan Singh besides being in accord with the
modern trends in penology."

(emphasis supplied)

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44.7. We need not elongate this discussion by assembling various
other decisions rendered in variegated circumstances and factual
matrices but deem it appropriate to refer to the decision in the
case of
Shankar Kisanrao Khade v. State of Maharashtra
:

(2013) 5 SCC 546, wherein this Court surveyed a large number
of cases on either side that is, where death sentence was upheld/
awarded or where it was commuted; and pointed out the
requirement of applying 'crime test', 'criminal test' and 'rarest of
rare test'. This Court recounted, with reference to previous
decisions, the aggravating circumstances (crime test) and the
mitigating circumstances (criminal test) as follows: -

49.
In Bachan Singh and Machhi Singh cases, this Court laid
down various principles for awarding sentence: (
Rajendra
Pralhadrao
case, SCC pp. 47-48, para 33)

"Aggravating circumstances -- (Crime test)

(1) The offences relating to the commission of heinous crimes like
murder, rape, armed dacoity, kidnapping, etc. by the accused
with a prior record of conviction for capital felony or offences
committed by the person having a substantial history of serious
assaults and criminal convictions.

(2) The offence was committed while the offender was engaged in
the commission of another serious offence.

(3) The offence was committed with the intention to create a fear
psychosis in the public at large and was committed in a public
place by a weapon or device which clearly could be hazardous to
the life of more than one person.

(4) The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
(5) Hired killings.

(6) The offence was committed outrageously for want only while
involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful
custody.

(8) The murder or the offence was committed to prevent a person
lawfully carrying out his duty like arrest or custody in a place of

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lawful confinement of himself or another. For instance, murder is
51 of a person who had acted in lawful discharge of his duty
under
Section 43
of the Code of Criminal Procedure.
(9) When the crime is enormous in proportion like making an
attempt of murder of the entire family or members of a
particular
community.

(10) When the victim is innocent, helpless or a person relies upon
the trust of relationship and social norms, like a child, helpless
woman, a daughter or a niece staying with a father/uncle and is
inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences
total depravity and meanness.

(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks
not only the judicial conscience but even the conscience of the
society.

Mitigating circumstances -- (Criminal test)

(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or
emotional disturbance or extreme provocation in
contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.

(3) The chances of the accused of not indulging in commission of
the crime again and the probability of the accused being
reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally
defective and the defect impaired his capacity to appreciate the
circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would
render such a behaviour possible and could have the effect of
giving rise to mental imbalance in that given situation like
persistent harassment or, in fact, leading to such a peak of
human behaviour that, in the facts and circumstances of the
case, the accused believed that he was morally justified in
committing the offence.

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(6) Where the court upon proper appreciation of evidence is of
the view that the crime was not committed in a preordained
manner and that the death resulted in the course of commission
of another crime and that there was a possibility of it being
construed as consequences to the commission of the primary
crime.

(7) Where it is absolutely unsafe to rely upon the testimony of a
sole eyewitness though the prosecution has brought home the
guilt of the accused."

This Court further said: -

"52. Aggravating circumstances as pointed out above, of course,
are not exhaustive so also the mitigating circumstances. In my
considered view, the tests that we have to apply, while awarding
death sentence are "crime test", "criminal test" and the "R-R test"

and not the "balancing test". To award death sentence, the "crime
test" has to be fully satisfied, that is, 100% and "criminal test"

0%, that is, no mitigating circumstance favouring the accused. If
there is any circumstance favouring the accused, like lack of
intention to commit the crime, possibility of reformation, young
age of the accused, not a menace to the society, no previous
track record, etc. the "criminal test" may favour the accused to
avoid the capital punishment. Even if both the tests are satisfied,
that is, the aggravating circumstances to the fullest extent and
no mitigating circumstances favouring the accused, still we have
to apply finally the rarest of the rare case test (R-R test). R-R test
depends upon the perception of the society that is "society-
centric" and not "Judge-centric", that is, whether the society will
approve the awarding of death sentence to certain types of
crimes or not. While applying that test, the court has to look into
variety of factors like society's abhorrence, extreme indignation
and antipathy to certain types of crimes like sexual assault
and murder of intellectually challenged minor girls, suffering
from physical disability, old and infirm women with those
disabilities, etc. Examples are only illustrative and not
exhaustive. The courts award death sentence since situation
demands so, due to constitutional compulsion, reflected by the
will of the people and not the will of the Judges."

(emphasis and extra emphasis supplied)"

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32.5. This Court further observes that after evolution of the death

penalty (capital punishment), there are two relevant factors,

namely, Aggravating Circumstances -- (Crime test) and Mitigating

Circumstances -- (Criminal test). The Aggravating Circumstances

(Crime Test) is for awarding the death penalty, wherein the

parameters to ascertain that the case is falling under the rarest of

rare category are laid down. As regards the present case, the

same leaves no room for doubt and this Court is satisfied that the

case is not falling under the rarest of rare category and comes

under the Mitigating Circumstances -- (Criminal test). This Court

further observes that the Mitigating Circumstances -- (Criminal

test) basically comes into play where there is a doubt and this

Court is satisfied to avoid the death sentence (Capital

Punishment) in the present case, as it was stated by the Hon'ble

Apex Court, in a catena of judgments from time to time "To award

death sentence, the "crime test" has to be fully satisfied, that is,

100% and "criminal test" 0%, that is, no mitigating circumstance

favouring the accused"."

33. The Court has to respond to the cry of justice, against the

accused, of the complainant family on one hand, and the society

on the other hand while imposing the punishment befitting to the

crime, but at the same time, has to balance the parameters of

rarest of rare cases for awarding the capital punishment.

34. This Court also observes that as per the above-quoted

Aggravating Circumstances -- (Crime test) and Mitigating

Circumstances -- (Criminal test), as well as the possibility of

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reformation, family background of the accused, the manner in

which he has lived with his family amicably, without any

substantial evidence vis-a-vis any altercation or dispute between

him and his wife, the accused not being a menace to the society,

no previous criminal record, the award of capital punishment to

the accused-appellant can be avoided as his case is considered

under the Mitigation Circumstance (Criminal Test) for his re-

integration in the society, after serving his sentence, as has been

held by the Hon'ble Apex Court in the case of the State of

Haryana Vs Anand Kindo & Anr. (Criminal Appeal Nos. 1797-

1798/2010 along with other connected matters, decided on

08.09.2022)' the relevant portion of the said judgment is

reproduced as hereunder: -

"12. On consideration of the matter, we consider appropriate to
impose a fixed term sentence of 30 years. Even at that age, the
convicts would be in their 50s and we hope and pray that they
would have learned their lesson and joined the society as
responsible members at that stage.

13. In Shankar Kishanrao khade vs. State of Mahrashtra (2013) 5
SCC 546, it was held that if there is any circumstance favouring
the accused such as lack of intention to commit the crime,
possibility of reformation, young age of the accused, accused not
being a menance to the society, no previous criminal record etc.,
the accused may avoid capital punishment. The Court opined
that the crime is important but so is the criminal and hence the
Supreme Court in recent past has substituted death penalty with
fixed term sentences exceeding 14 years. In appropriate cases
such as the present case, imposing a fixed term sentence creates
a possibility for the convict to re-integrate into society after
serving his/her sentence. It strikes a delicate balance between
the victims' plea for justice and rehabilitative justice for the
convicts."

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34.1. At this juncture, this Court considers it appropriate to

reproduce the relevant portion of the judgment rendered in Kashi

Nath Singh alias
Kallu Singh Vs. State of Jharkhand
, (2023) 7

SCC 317 as hereunder:

"6. The argument raised by the learned counsel for the appellant
was that there is no reasoning given by the High Court that there
are no chances of his reformation. As there is no criminal history
of the appellant, there are chances of his reformation. Therefore,
this Court may modify the sentence awarded to the appellant
while granting him benefit of remission, to whatever he is
entitled to. He has further submitted that if the benefit of
remission cannot be granted, the sentence awarded to the
appellant may be reduced to certain limited period instead of
whole of his biological life. Reference was made to the decision of
this Court in Shiva Kumar alias
Shivamurthy v. State of
Karnataka
(2023) 9 SCC 817.

7. On the other hand, learned counsel for the respondent
submitted that it is a case of brutal rape and murder of a 14
year old girl. The appellant, after committing the rape, was in
the process of killing her by hitting her head and body with
stone. He was trying to deface her face so that she could not be
recognised. He was seen doing so by family members of the
deceased when they went out for search. Keeping in view the
mindset of the appellant, he does not deserve any further
leniency in sentencing as the High Court had already commuted
the death sentence to life imprisonment.

10. Though notice was issued only to consider whether the
appellant could be extended the benefit of remission, however,
considering the severity of the offence committed by the
appellant, we do not find any merit in that submission. However,
still considering the fact that the appellant was 26 years of age
when the offence was committed and there may be chances of his
reformation, but still undue leniency in sentencing shakes public
confidence in the criminal justice system, the deterrent effect
may not be there. The rights of the victim and his family
members are also to be considered.

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11. Keeping in view the totality of circumstances, the sentence of
life imprisonment for the whole of the biological life of the
appellant, without any benefit of remission deserves to be
modified to the fixed term sentence for a period of 30 years
without any benefit of remission so that prime period of his life is
spent in jail. The appellant shall be released from jail only after
undergoing full sentence of 30 years, excluding the period of
imprisonment already undergone."

34.2. This Court also considers it appropriate to reproduce the

relevant portion of the judgment rendered by the Hon'ble Apex

Court in the case of Navas @ Mulanavas Vs. State of Kerala

(Criminal Appeal No.1215/2011, decided on 18.03.2024), as

hereunder:

"57. A journey through the cases set out hereinabove shows that
the fundamental underpinning is the principle of proportionality.
The aggravating and mitigating circumstances which the Court
considers while deciding commutation of penalty from death to
life imprisonment, have a large bearing in deciding the number
of years of compulsory imprisonment without remission, too. As
a judicially trained mind pores and ponders over the aggravating
and mitigating circumstances and in cases where they decide to
commute the death penalty they would by then have a
reasonable idea as to what would be the appropriate period of
sentence to be imposed under the
Swamy Shraddananda

(supra) principle too. Matters are not cut and dried and nicely
weighed here to formulate a uniform principle.
That is where the
experience of the judicially trained mind comes in as pointed out
in V. Sriharan (supra). Illustratively in the process of arriving at
the number of years as the most appropriate for the case at
hand, which the convict will have to undergo before which the
remission powers could be invoked, some of the relevant factors
that the courts bear in mind are:- (a) the number of deceased
who are victims of that crime and their age and gender; (b) the
nature of injuries including sexual assault if any; (c) the motive
for which the offence was committed; (d) whether the offence was
committed when the convict was on bail in another case; (e) the

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premeditated nature of the offence; (f) the relationship between
the offender and the victim; (g) the abuse of trust if any; (h) the
criminal antecedents; and whether the convict, if released, would
be a menace to the society. Some of the positive factors have
been, (1) age of the convict; (2) the probability of reformation of
convict; (3) the convict not being a professional killer; (4) the
socioeconomic condition of the accused; (5) the composition of
the family of the accused and (6) conduct expressing remorse.

These were some of the relevant factors that were kept in mind
in the cases noticed above while weighing the pros and cons of
the matter. The Court would be additionally justified in
considering the conduct of the convict in jail; and the period
already undergone to arrive at the number of years which the
Court feels the convict should, serve as part of the sentence of
life imprisonment and before which he cannot apply for
remission. These are not meant to be exhaustive but illustrative
and each case would depend on the facts and circumstances
therein.

Conclusion:

60. For the reasons stated above, we uphold the judgment of the
High Cout insofar as the conviction of the appellant under

Sections 302
,
and
IPC is concerned. We also do not
interfere with the sentence imposed on the accused for the
offence under Section 449 and
Section 309
of IPC. We hold that
the High Court was justified on the facts of the case in following

Swamy Shraddananda
(supra) principle while imposing
sentence for the offence under
Section 302
IPC. However, in view
of the discussion made above, we are inclined to modify the
sentence under Section 302 imposed by the High Court from a
period of 30 years imprisonment without remission to that of a
period of 25 years imprisonment without remission, including the
period already undergone. In our view, this would serve the ends
of justice."

35. This Court while applying the above test finds that the present

accused-appellant is not having any criminal antecedent nor is he

having any psychological tendencies, which would make it

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apparent that the said accused would be a threat to society at

large. The accused was a family man, who was taking care of his

family, which is apparent that he had a son 12 years of age, a

daughter 8 years of age, and admittedly the accused never

assaulted the said daughter nor was any evidence that he was

regularly assaulting his wife. Further, considering the mitigating

factors viz., particularly the absence of any acts that could be

characterized as cruel or inhuman, so as to warrant the awarding

of capital punishment, the said order of sentence is not

sustainable. Though it is true that the allegation is of causing

death of wife and son, however, the time of the occurrence,

mitigating circumstances and the fact that only one injury was to

each caused, makes it apparent that the case at hand does not fall

in the category of rarest and rare cases, so as to justify awarding

of capital punishment. This Court also finds that the mitigating

factors which have been settled in the precedent law settled by

the Hon'ble Apex Court and also the Hon'ble Apex Court's

pronouncements making it clear that merely because a crime is

heinous, it cannot become a sole ground for awarding capital

punishment to the perpetrator without weighing the other factors.

36. This Court, while weighing the different parameters which has

been observed as above, as well as the precedent laws cited

above, is of the view that the fixed term of twenty years will serve

the purpose of justice in the present case.

37. Thus, in view of the above the above-numbered murder

reference for confirmation of death sentence is answered in

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negative. The appeal preferred by the accused-appellant to assail

the impugned judgment is partly allowed. His conviction as

recorded by the learned Trial Court for the offences mentioned

above is affirmed. For the offence under
Section 302
IPC, the

death sentence awarded to the accused-appellant is commuted to

20 years imprisonment, without any possibility of parole or

premature release. The above-numbed Murder Reference is

disposed of accordingly. The record be returned to the learned

Trial Court forthwith.

38. This Court is thankful to Mr. Vineet Jain, learned Senior

Counsel assisted by Mr. Kuldeep Sharma, Pro-Bono Counsel for

the assistance so provided by appearing for the accused-appellant,

who have not only provided precedent laws and have taken this

Court to each and every prosecution witness but also the exhibits

to demonstrate the criminal jurisprudence applicable in the

present case.

(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J

SKant/-

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