Bombay High Court
The State Of Mah. Thr. Psops Hivarkhed … vs Haribhau Rajaram Telgote And 2 Others on 13 November, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:12437-DB
Judgment con4.24
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL CONFIRMATION CASE No. 4/2024
WITH
CRIMINAL APPEAL NO. 316/2024.
....
CRIMINAL CONFIRMATION CASE No. 4/2024.
State of Maharashtra,
through Police Station Officer,
Police Station Hivarkhed, Tahsil
Talhara, District Akola. ... APPELLANT.
VERSUS
1.Haribhau Rajaram Telgote.
2.Mrs.Dwarkabai Haribhau Telgote,
3.Shyam @ Kundan Haribhau Telgote,
All residents of Rahul Nagar, Akot,
District Akola. ... RESPONDENTS.
---------------------------------
Mr. S.S. Doifode, Addl.P.P. with Mr.A.M. Badar, A.P.P. for the
Appellant/State.
Mr. R.M. Daga, Advocate for Respondents/Accused.
----------------------------------
Rgd.
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WITH
CRIMINAL APPEAL No. 316/2024.
1.Haribhau s/o Rajaram Telgote,
Aged 66 years, Occupation Labour,
2.Mrs.Dwarkabai w/o Haribhau Telgote,
Aged about 55 years, Occupation Labour,
3.Shyam @ Kundan s/o Haribhau Telgote,
Aged about 35 years, Occupation - Labour,
All residents of Rahul Nagar, Akot,
District Akola. (All in jail) ... APPELLANTS.
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Hivarkhed, Tahsil
Telhara, District Akola. ... RESPONDENT.
---------------------------------
Mr. R.M. Daga, Advocate for Appellants/Accused.
Mr. S.S. Doifode, Addl.P.P. with Mr.A.M. Badar, A.P.P. for the
Respondent/State.
----------------------------------
CORAM : VINAY JOSHI AND
ABHAY J. MANTRI, JJ.
Rgd.
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RESERVED FOR JUDGMENT ON : 17.10.2024
JUDGMENT PRONOUNCED ON : 13.11.2024.
JUDGMENT (PER VINAY JOSHI, J.) :
Extreme penalty provided under the Indian Penal Code
(IPC) i.e. Death Penalty imposed by the Sessions Judge is placed
before us for scrutiny due to mandate of Section 366 of the Code, as
well as by virtue of appeal preferred by the accused in terms of Section
374[2] of the Code of Criminal Procedure (Cr.P.C.)
2. Appellant Nos.1 to 3 were tried and convicted by the
Additional Sessions Judge, Akot vide judgment and order dated
17.05.2024 in Sessions Case No.57/2015 for the offence punishable
under Sections 302 read with Section 34 of the IPC and Section 506
[Part-II] read with Section 34 of the IPC. Though they have also been
charged for the offence punishable under Section 323 of the Indian
Rgd.
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Penal Code, however, they were acquitted for the said charge. For
offence punishable under Section 302 read with Section 34 of the
IPC, accused nos.1 to 3 have been sentenced to death penalty along
with fine of Rs.50,000/- each, with stipulation of default. For offence
punishable under Section 506 [Part-II], read with Section 34 of the
IPC, they have been sentenced to undergo rigorous imprisonment for
7 years along with fine of Rs.10,000/- each. Both sentences were
directed to run concurrently. The trial Court has accorded benefit of
set off to accused in terms of Section 428 of the Cr.P.C.
3. Accused were related to each other. Accused no.1
Haribhau and accused no.2 Dwarkabai are husband and wife, whilst
accused no.3 Shyam @ Kundan is their son. They have been charged
for committing murder of 4 persons namely Shubham, Dhanraj,
Gaurav and Baburao. The deceased are also interrelated to each
other. Shubham and Gaurav were sons of Dhanraj, whilst 4 th deceased
Baburao was real brother of Dhanraj. Not only that rival parties are
also related to each other. Accused no.2 Dwarkabai is real sister of
Rgd.
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deceased Dhanraj and Baburao, and thus, all are in relations.
4. It is the prosecution case that family of deceased Dhanraj
and Baburao had 29 Acres of ancestral agricultural land at village
Malpura. Accused no.2 Dwarkabai, who was real sister of both
brothers [Dhanraj and Baburao] was insisting for share in the said
agricultural land. For the said purpose, accused no.2 Dwarkabai has
filed a civil suit for partition long back in the Civil Court at Telhara.
On account of allotment of share to accused no.2 Dwarkabai in
ancestral land, there happened to be a dispute in between two brothers
and sister Dwarkabai [accused no.2]. One month preceding to the
incident accused no.2 Dwarkabai had sown cotton in 2 acres of
ancestral land in between the field of two brothers Dhanraj and
Baburao. For the reason of sowing in the land, accused no.2
Dwarkabai used to pick up quarrel with her two brothers.
5. On 28.06.2015 around 3 p.m., accused no.2 Dwarkabai
was sowing cotton crop in the field to which Dhanraj and his son
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Shubham objected. There was oral altercation in between them.
Dwarkabai rushed on the person of Dhanraj on which Shubham
intervened to pacify. Dwarkabai got annoyed and said to Shubham as
to how he has touched her. Gaurav also arrived on the spot and tried
to convince Dwarkabai. Then Dwarkabai came to the village Malpura
by hurling abuses to Dhanraj and his two sons Shubham and Gaurav.
Dwarkabai informed on mobile about the said quarrel to her two sons
i.e. accused no.3 Shyam and Mangesh, who is child in conflict with
law (CCL).
Within short time i.e. around 5 p.m. accused no.1
Haribhau, accused no.3 Shyam and Mangesh [CCL] arrived on the
spot by giving abuses. Accused no.2 Shyam was armed with a knife,
CCL- Mangesh was armed with sickle, whilst accused no.1 Haribau
was armed with an axe. All of them went towards the ota [platform]
where Shubham was seated. Accused no.3 Shyam and Mangesh
[CCL] rushed on the person of Shubham and started assaulting him.
Since Subham raised alarm, Dhanraj and Gaurav came to his rescue.
Accused no.3 Shyam, CCL- Mangesh and accused no.1 Haribhau
Rgd.
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assaulted all of them. Baburao also arrived and intervened to separate
the quarrel. Accused no.1 Shyam inflicted a knife blow at the
abdomen of Baburao on which his intestine came out. Baburao was
taken to the near by house where handkerchief was tied. Informant
Yash [son of Baburao] and Amol made Baburao to sit on the
motorcycle and were about to proceed to the hospital, however,
accused no.1 Haribhau, accused no.3 Shyam and CCL Mangesh
accosted them in the way. Mangesh and Shyam assaulted him by
means of sharp weapons, as a result of said assault all 4 were lying on
the spot in the pool of blood. At that time Najukrao tried to
intervene, who was also assaulted. Several people of the vicinity have
witnessed the incident.
6. P.W.7 Smt. Kiran Thakare, who was Village Police Patil
also witnessed the incident. She telephonically reported the things to
Police Constable Sheikh Sabir [P.W.12] of Hiwarkhed Police Station.
Police Constable Sk.Sabir informed the incident to Police Inspector
P.W.18 Tanwar, who in turn arrived at the spot with police sleuth.
Rgd.
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Relevant station diary entry was taken. When police came to the spot,
dead bodies of 4 persons namely Shubham, Dhanraj, Gaurav and
Baburao were lying near ota [platform], at the side of village flag post.
Police Inspector Tanwar [P.W.18], carried panchnama of the scene of
offence. While carrying the panchnama, he has seized incriminating
material including blood mixed earth, pair of chappal, one bamboo
stick. Rough sketch of the place of occurrence was drawn. Crowd was
dispersed and spot was guarded by deploying police personnel. Police
Inspector Tanwar passed a message to cordon the area in order to
catch the culprits. P.W.17 Head Constable Mohanlal after receiving
the message has cordoned the possible way outs. Around 6.30 p.m. he
has stopped an auto rickshaw on Hiwarkhed road. Three male and
one female were seated in the said auto rickshaw. It was noticed that
their clothes were stained with blood. On enquiry, they disclosed that
they have committed murder of 4 persons at Malpura, and therefore,
blood stains on their clothes. Immediately P.W. 17 Mohanlal took
them in charge and brought them to the Hiwarkhed Police Station,
which was followed by their arrest.
Rgd.
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7. Dead bodies were sent for autopsy. Inquest panchnama
was drawn, blood stained clothes of deceased were seized. On the
following day autopsy was conducted by P.W.14 Dr. Anil on all dead
bodies. After arresting accused their blood stained clothes were
seized. Since accused no.1 Haribhau has sustained bleeding injury, he
was sent for medical examination. While accused no.3 Shyam was in
custody, he made disclosure statement, pursuant to which the
weapons used in the commission of crime came to be seized. The
seized articles were sent for chemical analyzation. Necessary
statement of witnesses were recorded. After completion of the
investigation, final report came to be filed in the Court of concerned
Magistrate. Since Mangesh was child in conflict with law, he was
produced before the Juvenile Justice Board.
8. On committal, the trial Court has framed the charges.
Though the accused denied the guilt, however, the incident is
admitted. To be specific, the accused denied that they assaulted all the
Rgd.
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deceased and done to death. However, it is their defence that at the
relevant time, quarrel erupted on account of Shubham outraging
modesty of Dwarkabai. In the said quarrel, CCL Mangesh got furied
and in a fit of anger, assaulted all the deceased. Moreover, it is also
their defence that at the relevant time the deceased Shubham and
others were holding weapons by which they started to attack the
accused. Accused no.1 Haribhau and accused no.3 Shyam tried to
snatch the weapons from the deceased, in which they sustained
injuries, whilst the deceased also sustained grave injuries by their own
weapons as a result of which they died. According to the defence,
Dwarkabai was merely present on the spot, but, she did not
participated in the occurrence. To substantiate the defence, the
accused have examined defence witness no.1 Dr. Sujata to establish
the injuries sustained by accused no.1 Haribhau. CCL Mangesh also
stepped into the witness box. Precisely, by denying the guilt and
putting such a defence the accused put the prosecution to the task of
establishing the guilt with requisite standard of proof.
Rgd.
Judgment con4.24
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9. In order to bring home the guilt of the accused, the
prosecution endeavored into examining as many as 20 witnesses. The
prosecution evidence mainly consists of 7 eye witnesses, panch
witnesses, medical officers and police officers. As referred above, the
defence has examined only two witnesses. During recording of
statement under Section 313 of the Cr.P.C., the accused denied
incriminating material and by filing written submission echoed the
defence version.
10. After analyzing oral and documentary evidence, the trial
Court by fully relying on the evidence of eye witnesses and other
corroborating material, held that the prosecution has duly established
that accused nos. 1 to 3 have assaulted all deceased by means of
dangerous weapons. They have caused multiple injuries of grave
nature on the vital parts of the body resulting into death, and thus all
the accused have committed the offence of murder as defined under
Section 300 of the I.P.C. which is punishable under Section 302 of the
I.P.C. read with Section 34.
Rgd.
Judgment con4.24
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11. The learned trial Court has heard the accused on the point
of sentence. It reveals from the impugned judgment that the accused
preferred to remain silent on the point of sentence. The learned
Counsel appearing for the accused stated that whatever they want to
say on the point of sentence, they will state before the High Court. In
short the accused neither stated anything for claiming leniency, nor
stated mitigating circumstances. On the other hand, the learned
Addl.P.P. has strongly recommended for imposition capital
punishment on account of brutality, cruelty, multiple deaths and the
manner in which the crime has been committed.
12. The trial Court has considered the case on set parameters
and was of the opinion that the case squarely falls in the category of
“rarest or rare case” resulting into awarding death penalty. After
pronouncing the capital punishment, the Trial Court has forwarded
the proceeding to this Court for confirmation in terms of Section
366[1] of the Cr.P.C. Likewise, being aggrieved and dissatisfied by
Rgd.
Judgment con4.24
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the order of conviction and proportionality of sentence, the accused
have also filed an appeal under Section 374[2] of the Code.
13. We have heard the learned Addl.P.P. Shri Doifode, for the
State on the point of confirmation of sentence and Shri Daga, the
learned Counsel for the appellants/accused in support of challenge to
the impugned judgment and order. We have given our thoughtful
consideration to the rival submissions, carefully examined the entire
material and also gone through the various precedents cited by both
sides in support of their respective contentions. We prefer to make
contextual reference of the rival submissions, in the later part of this
judgment.
At the inception, we may note that the defence had not
challenged that all the deceased met with homicidal death. The
question falls for consideration is – Whether the evidence adduced by
the prosecution is sufficient to fasten the guilt on the accused and if
so, whether the case falls in the arena of ‘rarest of rare category’, as
explained by the Supreme Court in catena of decisions.
Rgd.
Judgment con4.24
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14. Though the homicidal death of Shubham, Gaurav,
Dhanraj and Baburao was not denied, to satisfy ourselves on said
aspect we have gone through the relevant material. The incident had
occurred on 28.05.2015, whilst P.W.14- Dr. Anil Mal, attached to the
Rural Hospital Telhara has conducted autopsy on all dead bodies on
the following day. For the sake of convenience, we have extracted the
relevant translated portion of medical evidence of Dr.Anil Mal from
the decision of the trial Court (paragraph nos.26 to 36 at page no.633
of the paper book), which reads as below :
“26. First of all, in his examination-in-chief
(Exhibit No. 147, Page no. 1 Paragraph No. 2), Dr.
Anil has stated, “I found the following injuries on
Gaurav’s body.”
1) Cut and crush injury around neck, extending
from angle of mandible to angle of mandible of
size 8 cm x 3 cm x neck deep. Cutting carotid,
trachea, oesophagus and all the vascular
structures.
2) Incised wound of size 4 cm x 2 cm x bone deep
above right eye.
3) Incised wound of size 4 cm x 2 cm x bone deep
over right frontoparital region of skull.
Rgd.
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4) Stab injury of size 4 cm x 2 cm x cavity deep
over right hypochondric region of abdomen
protruding coils.
5) Incised wound of size 5 cm x 2 cm x cavity
deep over centre of back.
27. Dr. Anil (P. W. No. 14) in his examination-in-
chief (Exhibit No. 147, Page No. 2, Paragraph No. 4)
mentioned two injuries that were found in Gaurav’s
internal examination.
1) Laceration with clots at frontoparital region of skull.
2) Thorasic cavity filled with around 800 ml to 1000 ml
of blood and trachea was cut.
28. Dr. Anil has stated that all the injuries on
Gaurav’s body, both external and internal, are his ante-
mortem injuries. All these injuries are described in detail in
the post-mortem report and Gaurav’s post-mortem report
at Exhibit No 148 has been proved by Dr. Anil on all
legal, technical parameters.
29. Similarly, in his examination-in-chief (Exhibit
No. 147, Page No. 2 Paragraph No. 8), Dr. Anil (P. W.
No. 14) has stated, “Then I performed post-mortem
examination on the body of Shubham as well and at that
time, I found the following injuries on Shubham’s body.”
1) Cut and crush injury around neck from angle of
mandible to angle of mandible cutting carotid,
trachea, oesophagus and all the vascular structures.
2) Stab injury of size 3 cm x 2 cm x cavity deep over
right side of chest.
3) cut injury over right upper arm and forearm, cutting
bones.
4) Incised wound of size 5 cm x 2 cm x cavity deep over
Rgd.
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left side of chest.
5) Incised wound 5 cm x 2 cm x bone deep below right
shoulder.
30. Similarly, Dr. Anil has also described in his
examination-in-chief in Paragraph No. 10, the three
internal injuries found in the dead body of Shubham. They
are as follows.
1) There was fracture of multiple ribs.
2) Trachea was cut.
3) Multiple lacerations over both the lungs.
31. Dr. Anil has stated in his examination-in-chief
that all the internal and external injuries on Shubham’s
body are ante-mortem. Dr. Anil has described all those
injuries in detail and proved Shubham’s post-mortem
report marked as Exhibit No. 149 on all legal parameters.
32. In Paragraph No. 14 of his examination-in-chief, Dr
Anil has stated, “Then, on the same day (i.e., on the date
29.06.2015) I performed post-mortem examination of
Dhanraj Sukhdeo Charhate too. I found six external
injuries on the person of Dhanraj” and he has also stated
the following six external injuries found on Dhanraj’s
body.
1) Incise wound of size 8 cm x 2 cm x bone deep
extending from ramus of right side of mandible to
angle of mandible left side.
2) Cut and crush injury around neck extending from
angle of mandible to angle of mandible cutting
carotid, trachea, oesophagus and all the vascular
structures.
3) Incise wound of size 6 cm x 2 cm x right lung deep.
4) Incise wound of size 5 cm x 2 cm x apex of left lung
Rgd.
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near left shoulder.
5) Incise wound of size 3 cm x 1 cm x cavity deep at
centre of chest.
6) Two stab injuries of size 3 cm x 2 cm x cavity deep
over left side of abdomen, protruding coils.
33. In Paragraph No. 16 of his examination-in-
chief, Dr. Anil has stated, “During post-mortem
examination of Dhanraj, I found following five internal
injuries ” and he described all the five internal injuries on
the body of Dhanraj, in detail, as follows.
1) Thorasic cavity filled with around 1.5 to 2 liters of
blood.
2) Trachea cut.
3) Multiple lacerations on both the lungs.
4) pericardium was ruptured.
\5) Lacerations cavity deep over heart.
34. Dr. Anil states that all the above-mentioned
internal and external injuries on Dhanraj’s body are ante-
mortem. All those injuries have been explained in great
detail by Dr. Anil in his examination-in-chief and post-
mortem report at Exhibit No. 150, of Dhanraj with the
description of all those injuries, external and internal, has
been proved by Dr. Anil on all legal technical parameters.
35. Similarly, in his examination-in-chief ( Exhibit
No. 147, Page No 4, Paragraph No. 20), Dr. Anil has
stated, “On the same day, I also performed the post-
mortem of deceased Baburao Sukhdeo Charhate. I found
the following injuries on his body ” and he explained the
following external injuries found on Baburao’s dead body.
1) Cut and crush injury from mandible of left ramus,
Rgd.
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cutting chin of size 6 inch x 3 cm x 2 cm.
2) Crush and cut injury over neck from angle of
mandible to angle of mandible, cutting carotid,
trachea, oesophagus and all the vascular structures.
3) Incise wound of size 4 cm x 2 cm x cavity deep over
left side of chest, piercing lungs.
4) Stab injury of size 3 cm x 2 cm x cavity deep over left
side of abdomen, coils protruded out from injury site.
5) Incise wound of size 3 cm x 2 cm x 2 cm over centre
of back.
36. In his examination-in-chief ( Paragraph No.
22) Dr. Anil has stated, “While performing post-mortem
examination of Baburao Sukhdeo Charhate. I found the
following internal injuries in his body ” and he explained
the following internal injuries found on Baburao’s dead
body.
1) Thorasic cavity filled with around 1 to 1.5 liters of
blood.
2) Lacerations were present over left lung.
3) Pericardium was ruptured.”
15. On examination, the medical officer P.W.14 Dr.Anil has
expressed the cause of death as neck injury as regards to all the 4
deceased. Besides that it is quite evident from the medical evidence
that there were multiple incise wounds all over the body of the
deceased, which were caused by sharp and heavy object. Apparently
Rgd.
Judgment con4.24
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all external injuries coupled with corresponding internal injuries were
fatal. All deceased died due to internal hemorrhage caused due to
deep cut wounds on neck, head, abdomen, lungs etc. In the
circumstances without hiccup it can be held that all of them met with
homicidal death. Moreover, the defence has not challenged the nature
of death and therefore, we may safely return the finding that the
deceased Shubham, Gaurav, Dhanraj and Baburao met with homicidal
death.
16. In view of that, the enquiry proceeds to decide the crucial
issue which pertains to the authorship of the fatal injuries which took
four lives. The prosecution was heavily banking upon the direct
evidence of eye witnesses to establish the guilt of the accused. In this
regard, the prosecution has examined total 7 eye witnesses i.e. P.W.1
Yash Charhate [Exh. 61], P.W.4 Amol Charhate [ Exh. 95], P.W.5
Vishal Gawarguru [Exh. 98], P.W.7 Sau.Kiran Thakre [Exh.120] and
P.W.11 Rajendra Dandge [Exh.135]. Though the prosecution has
relied on other circumstantial evidence, however, as the prosecution
Rgd.
Judgment con4.24
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case is based on the evidence of eye witnesses, initially we prefer to
deal with the direct evidence which is of vital importance.
17. At the inception we remind ourselves that the defence has
not denied the presence of accused at the time of occurrence.
Inasmuch as, the incident was also not denied, but, the defence has
some other version to tell. Keeping in mind the said position, we
have assessed the direct evidence. P.W.1 Yash Charhate [informant],
was the son of deceased Baburao. He has stated about the earlier
quarrel in between the parties dated 24.06.2015. It is his evidence
that on 28.06.2015 around 3 p.m. accused no.2 Dwarkabai was
sowing cotton in the field. Informant Yash was also present in the
field. Deceased Dhanraj desisted Dwarkabai from doing agricultural
activities on which Dwarkabai rushed at his person. Deceased
Shubham [son of Dhanraj], intervened, on which Dwarkabai got
annoyed by saying that as to why Shubham has touched her.
Dwarkabai by giving abuses returned to the village Malpura.
Rgd.
Judgment con4.24
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18. P.W.1 Yash deposed that Dwarkabai in his presence made
phone call to someone. Around 5 p.m. Dwarkabai’s husband accused
no.1 Haribhau and two sons accused no.3 Shyam and CCL Mangesh
arrived with deadly weapons. Particularly accused no.3 Shyam was
holding knife, CCL Mangesh was holding sickle, whilst accused no.1
Haribhau was holding an axe. At the relevant time deceased Shubham
was seated on ota [platform] near village flag post. It is his evidence
that initially accused no.3 Shyam assaulted Shubham by means of
knife, whilst CCL Mangesh assaulted him by means of sickle. As their
was shout, Dhanraj and Gaurav rushed to the spot, who were also
dealt with the same treatment. He deposed that accused no.3 Shyam
assaulted them by means of knife, whilst Mangesh assaulted by means
of sickle and Haribhau by axe.
19. P.W.1 Yash further deposed that his father Baburao came
for rescue, however, accused no.3 Shyam also stabbed at the stomach
of Baburao by means of knife. In order to save Baburao, witness
P.W.1 Yash along with P.W.4 Amol Charhate, took injured Baburao
Rgd.
Judgment con4.24
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to their house, tied a scarf at his stomach, made Baburao to sit on a
motorcycle and were about to proceed for medical treatment.
However, the accused accosted them on which CCL Mangesh again
assaulted Baburao at his neck by means of sickle. Precisely it is the
evidence of informant Yash that after initial quarrel in the field,
Dwarkabai returned to the village Malpura, and telephonically called
her husband and two sons. All three arrived within short time with
deadly weapons and indiscriminately assaulted all four deceased which
took their lives.
20. Evidence of P.W.4 Amol Charhate is on the same line. He
too deposed about the exact incident occurred around 5 p.m. at ota
[platform] near flag post in the village Malpura. It is his evidence that
he saw that while Shubham was seated on the ota [platform], accused
no.3 Shyam and CCL Mangesh assaulted him by means of weapons.
He saw that Baburao was lying in injured condition, hence, with the
assistance of Yash they took Baburao to the house. While they were
carrying Baburao on motorcycle for treatment, accused no.3 Shyam
Rgd.
Judgment con4.24
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accosted and assaulted Baburao on neck by means of sickle. His
evidence is restricted to the exact occurrence wherein he named that
accused no.3 Shyam and CCL Mangesh assaulted deceased Shubham
and Baburao. It emerges from his evidence that he has not witnessed
the entire occurrence, but, when he came out of the house, he saw that
Shubham was assaulted by Shyam and Mangesh, and saw that Shyam
again assaulted Baburao by means of sickle.
21. Before considering the evidence of rest of the eye
witnesses, we would like to note that both these eye witnesses have not
stated about role of accused no.2 Dwarkabai. It emerges that P.W.1
Yash was throughout present during the entire occurrence, however,
he has not ascribed role to Dwarkabai. P.W.4 Amol arrived on the
spot while the incident was going on. Though he has limited occasion
to see the occurrence pertaining to the assault on Shubham and
Baburao, however, the fact remained that both these eye witnesses
have not ascribed any role to Dwarkabai. True, P.W.4 Amol has also
not assigned any role to accused no.1 Haribhau, however, the
Rgd.
Judgment con4.24
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evidence is to be appreciated as a whole.
22. Contextually we may refer to the defence submission that
these two witnesses have not assigned role to Dwarkabai, and thus, it
is quite doubtful about her participation, though it was belatedly
stated by other witnesses. Prima facie, the said submission holds
water, and is required to be tested on the basis of entire material as a
whole.
The prosecution has examined P.W.5 Vishal Gawarguru,
who has stated about the role of all accused. It is his evidence that at
the relevant time Shyam was holding knife, Haribhau was armed with
an axe, while Dwarkabai and Mangesh were holding sickles. Besides
the role of Shyam, Mangesh and Haribhau, he has specified the role of
Dwarkabai. It is his evidence that Dwarkabai and Mangesh assaulted
Shubham at his throat by means of sickle. Both of them assaulted
Gaurav by weapon, so also Dwarkabai and Mangesh assaulted
Haribhau at his neck by means of sickle. Pertinent to note that
though P.W.1 Yash and P.W.4 Amol are silent about the role of
Rgd.
Judgment con4.24
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Dwarkabai, however, P.W.5 Vishal in his evidence has stated that
Dwarkabai and Mangesh assaulted Shubham and Dhanraj at neck by
sickle and also to Gaurav. He has not distinguished the role of
Dwarkabai and Mangesh separately, but, in one breath stated that
both of them did so. Be that as it may, we have turned to the evidence
of another eye witness P.W.6 – Ratnabai Charhate, who has equally
stated about the role of Dwarkabai assaulting all the deceased along
with CCL Mangesh by means of sickle. Her evidence is quite similar
on the line of the version of P.W.5 Vishal. The prosecution has
examined P.W.7 Smt.Kiran Thakre, Police Patil in the capacity of eye
witness, however, we prefer to come to her evidence after short while,
as her evidence stands on somewhat different footing.
23. The next eye witness is P.W.11 Rajendra Dandge. It is his
evidence that all accused were armed with deadly weapons. He has
specified the weapons held by each of the accused. In particular he
deposed that Shyam stabbed at the abdomen of Shubham by means of
knife, Haribhau assaulted Shubham by means of an axe and remaining
Rgd.
Judgment con4.24
26
assaulted him with sickle. It is his evidence that Dhanraj and Gaurav
arrived at the spot, on which Shyam stabbed at the stomach of
Dhanraj and others also assaulted him. Gaurav was also stabbed by
Shyam, whilst Mangesh and Dwarkabai assaulted him by means of
knife. He deposed that on arrival of Baburao, he was also assaulted by
Shyam. While Baburao was about to shift, all accused accosted and
assaulted him. The role assigned to accused no.3 Shyam is quite
consistent that he has assaulted all deceased by means of knife. He has
also stated that Haribhau was holding an axe by which he assaulted
three deceased. As regards to Dwarkabai, he assigned a joint role to
her with CCL Mangesh of assaulting by means of sickle. The last eye
witness is P.W.13 Santosh Charhate, who is a nearby resident. His
evidence is in general form that he saw all four accused assaulting
Shubham, Gaurav, Dhanraj and Baburao by means of weapon. He
has not spelt out the specific role of each of them.
24. So far as P.W.7 Kiran Thakre is concerned, she is village
Police Patil. It is her evidence that she has not witnessed the incident
Rgd.
Judgment con4.24
27
as a whole. She deposed that after hearing alarm, she came out of the
house and saw that Shubham and Dhanraj were lying in the pool of
blood near platform/ota of Panchsheel flag post. Dhanraj was leaning
on the person of Shubham. At that time, Shyam inflicted knife blows
on the abdomen of Dhanraj. She deposed that she was called by her
husband, hence she returned to her house and telephonically
contacted the police. Thus, she did not witnessed the entire incident,
but, has only seen accused no.3 Shyam stabbing at the abdomen of
Dhanraj. Her evidence is not of much assistance, except for the role of
accused no.3 Shyam.
25. The learned Counsel for the appellants/accused has
straneously argued that though as per the prosecution case the genesis
flows from Dwarkabai, however, she did not partake in actual assault.
He would submit that the first information report is totally silent
about the role of Dwarkabai. Likewise, the first informant P.W.1 Yash
has not stated the role of Dwarkabai, which was the initial version. He
would submit that after two days Dwarkabai has been falsely
Rgd.
Judgment con4.24
28
implicated by assigning additional role of joining others in the assault
by use of sickle. In order to appreciate said submission he has invited
our attention to the detailed statement of the eye witnesses who have
stated about the role of Dwarkabai.
26. Per contra, the learned Addl.P.P. would submit that
though initial two witnesses have not stated the role of Dwarkabai,
however, remaining five witnesses have specifically stated that
Dwarkabai assaulted all deceased by means of sickle, therefore, her
presence with the overtact is duly proved. We are not behind the
number of witnesses who spoke from which side. The credibility of
the evidence matters than the quantity. Merely because five witnesses
have deposed about the role of Dwarkabai, it does not mean that the
said evidence has to be accepted as a gospel truth. If on close scrutiny
the Court comes to a conclusion that the evidence of five eye witnesses
who stated about role of Dwarkabai is not free from doubt, then
certainly benefit goes to Dwarkabai. One cannot be convicted on
assumption or surmises, but, law requires that the guilt has to be
Rgd.
Judgment con4.24
29
proved beyond reasonable doubt. Certainly a doubt which clicks to a
prudent mind and not a fanciful one. In the light of said position, we
have revisited the evidence of all seven eye witnesses.
27. The learned defence Counsel would submit that variance
in the evidence of eye witnesses would affect the prosecution case. In
this regard he has relied on the decisions in case of Subhash .vrs. State
of Uttar Pradesh – 2022 All MR (Cri) 1545 (SC). There can be no
dispute, however, it is a factual aspect whether the inconsistencies or
variance is material, so as to create a reasonable doubt. Needless to say
that minor inconsistencies are bound to occur. In case at hand, the
evidence of prosecution witnesses on the core issue is cogent,
consistent and reliable and, therefore, above decision would not assist
the defence in any manner.
28. Admittedly, the incident took place on 28.06.2015 around
5 p.m. on platform near flag post at village Malpura. The incident was
witnessed by several villagers. P.W.1 Yash is son of one of the
Rgd.
Judgment con4.24
30
deceased namely Baburao. Soon after the occurrence, P.W.7 Village
Police Patil Kiran Thakre, telephonically summoned the police.
Around 7.00 p.m. Police arrived on the spot and drew panchnama of
the scene of offence in between 7.25 to 10.25 p.m. Dead bodies were
shifted to the Rural Hospital for autopsy. Thereafter, P.W.1 Yash
went to Hiwarkhed Police Station which was at the distance of 15
kms., and lodged report on the very day around 11.20 p.m. It assumes
significance since the quick lodgment of the first information is
generally presumed to be true version as there are less chances for
adulteration. In said context the first information report [Exh.62]
lodged within few hours from the occurrence carries importance.
29. P.W.1 Yash stated about the entire occurrence, however,
he did not ascribed role to Dwarkabai. To be particular, the first
information report is a detailed narration. He was very specific about
the arms held by each of the accused. He has stated in detail about
earlier dispute in the field, followed by Dwarkabai talking on mobile
with someone, probably with her husband and children and then
Rgd.
Judgment con4.24
31
actual incident occurred at 5 p.m. He has particularly stated that
accused no.3 Shyam was holding knife, CCL Mangesh was holding
sickle, whilst Haribhau was holding an axe. Then he detailed as to
how these three armed men assaulted four deceased. At the cost of
repetition, we may say that neither he stated that Dwarkabai was
holding weapon, nor her participation in the actual assault. His
evidence only speaks about the initial dispute of Dwarkabai with the
deceased in the field, and Dwarkabai telephonically summoning her
kins at village Malpura for help.
30. Had it been the fact that Dwarkabai had actively
participated in the assault, that too by use of deadly weapon, that fact
would not have gone unnoticed by P.W.1 Yash. We have considered
the said aspect from every possible angle. There may be circumstances
in which Yash had no opportunity to witness the entire occurrence or
he was in frightened state of mind. However, we are not prepared to
give such concession to P.W.1 Yash because his police report is not a
cryptic version, but, a detailed narration about the entire occurrence
Rgd.
Judgment con4.24
32
till the end. He has stated all minute details, including the weapons
held by each assailant, particular act of each of them, but, it does not
figure Dwarkabai in such detailed narration.
31. It is to be remembered that P.W.1 Yash is son of one of the
deceased Baburao, and thus, it is highly improbable that he would
exclude one of the culprit who has murdered his father – Baburao,
uncle- Dhanraj and his two sons. It emerges that the genesis of the
occurrence is Dwarkabai, who in fit of anger called her kins, but, on
that basis it cannot be assumed that she has also partaked in the
occurrence, that too in absence of reliable evidence. The absence of
role of Dwarkabai on actual occurrence in the first information report
which was lodged within 3 to 4 hours, gives a body blow to the
prosecution case to the extent of role of Dwarkabai.
32. The incident occurred around 5 p.m. in the village.
Apparently the villagers must have been terrified by witnessing such a
gruesome multiple murders. Yash, P.W.1 who lost his father, went to
Rgd.
Judgment con4.24
33
Hiwarkhed police station which was at a distance of 15 kms., which
must have consumed some time and then lodged report in detail. The
first quick version which is free from concoction excludes Dwarkabai
from the actual occurrence, which according to us is a matter of great
significance. Moreover, during entire evidence P.W.1 Yash did not
state that Dwarkabai also assaulted with weapon to either of the
victim.
33. We have considered the evidence of next eye witness
P.W.4 Amol Charhate, whose father Najukrao also sustained minor
injuries in the occurrence. He is resident of village Malpura and
related to both sides. He has deposed about the entire occurrence
however, did not assigned the role to Dwarkabai. He has deposed
about the assault at the hands of Shyam and CCL Mangesh. Since he
arrived little bit late i.e. after commencement of the occurrence, he has
witnessed Mangesh and Shyam assaulting Shubham by means of
weapon. He saw that Baburao was lying in injured condition to whom
he himself and Yash were about to shift by motorcycle, however, they
Rgd.
Judgment con4.24
34
were accosted and again Shyam dealt sickle blow to Baburao. His
evidence is totally silent about the role of Dwarkabai. Neither he
stated about the weapon held by Dwarkabai, nor overtact on her part.
According to us his evidence carries importance since his statement
was recorded by the police immediately on the following day i.e.
29.06.2015. As noted above, the first information report was lodged
in late hours of 28.06.2015 around 11.20 p.m. and then on the next
morning statement of P.W.4 Amol was recorded by the police. As his
immediate statement which was transmitted into evidence does not
figure the role of Dwarkabai, it accentuates the doubt which flows
from the evidence of P.W.1 Yash.
34. Coming to the next batch of witnesses who speaks about
the role of Dwarkabai, we prefer to deal with the evidence of P.W.6
Ratnabai, since her statement was also immediately recorded on
29.06.2015 i.e. on the following day. Though P.W.6 Ratnabai
deposed about the role of Dwarkabai of assaulting some of the victims
by means of sickle, however, her evidence on said point is full of
Rgd.
Judgment con4.24
35
omissions. The defence has duly proved vital omissions through the
evidence of the investigating officer. The improved version of
Ratnabai on the point of role of Dwarkabai is of no avail. Apparently
her entire evidence to the extent of role of Dwarkabai is totally
improved version, hence, it loses its credibility.
35. P.W.5 Vishal and P.W.11 Rajendra had stated above the
role of Dwarkabai. It is the evidence of P.W.5 Vishal that Dwarkabai
and Mangesh assaulted Shubham by means of sickle on throat. Both of
them assaulted Gaurav and Dhanraj by sickle on neck. Pertinent to
note that this witness has assigned a joint role to Dwarkabai and CCL
Mangesh of assaulting at the same part of the body of each of the
deceased, which is not free from suspicion. Moreover, the statement
of Vishal P.W.5, was recorded after two days i.e. on 30.06.2015,
which leaves room for concoction.
P.W.11 Rajendra do stated the role of Dwarkabai,
however, like Vishal he has also stated that Dwarkabai and CCL
Mangesh assaulted Shubham by means of sickle, assaulted Gaurav by
Rgd.
Judgment con4.24
36
means of knife. Then a joint role was assigned that all accused
assaulted Dhanraj and Baburao. He has equally assigned similar role
to Haribhau and Mangesh. This time he has changed the weapon
from sickle to knife to the extent of Dwarkabai while assaulting
Gaurav. Inasmuch as, the statement of Rajendra was recorded after
three days i.e. on 01.07.2015, which is of great significance.
36. It has come in the evidence of P.W.5 Vishal that on the
date of occurrence in his presence police have prepared panchnama of
the scene of offence. He has stated that he did not personally
approached to the police to say that he has witnessed the incident. He
admits that when he attended funeral, police were present. He stated
that after two days police patil called him for recording statement.
Likewise evidence of P.W.11 Rajendra discloses that after the
incident he was throughout in the village till 01.07.2015. He admits
that police visited the village on 28th and 29th, but, still his statement
was not recorded. No plausible explanation is given by the
investigating officer about delayed recording of statement of these
Rgd.
Judgment con4.24
37
witnesses in terms of Section 161 of the Code. In this regard the
learned Counsel for the defence has rightly relied on the decision of
Supreme Court in case of Shahid Khan .vrs. State of Rajasthan –
[2016] 4 SCC 96, wherein the prosecution case has been discarded on
account of delayed recording of statement in absence of reasonable
explanation.
37. As noted above, though both witnesses P.W.5 Vishal and
P.W.11 Rajendra were very much present in the village, available for
recording statement, police frequented into the village on and often,
still their statements have not been recorded. In such peculiar facts
the delayed recording of their statement raises serious doubt about
truthfulness of their belated version. Since their evidence as regards
the role of Dwarkabai does not find corroboration from the
foundational fact i.e. the first information report, coupled with
evidence of informant P.W.1 Yash and P.W.4 Amol, we are quite
hesitant to accept their version to the extent of role assigned to
Dwarkabai in the occurrence.
Rgd.
Judgment con4.24
38
38. Coming to the evidence of P.W.7 Smt. Kiran Thakre,
police patil, who has admittedly neither witnessed the entire
occurrence, nor has stated about the role of Dwarkabai. Moreover, her
statement has also been recorded after three days despite she being
police patil, which is not free from suspicion. Then the last eye
witness is P.W.13 Santosh Charhate, who has stated in generalized
manner that all accused inflicted blows on 4 victims. He is not
specific about the role of either of them. Moreover, his statement has
also been recorded after three days despite he is a villager and available
throughout.
39. On careful scrutiny of the evidence of all seven eye
witnesses, it prominently surfaces that the initial version which
vouched about the credibility is the narration in the first information
report lodged by Yash, followed by his evidence on oath. At the cost
of repetition, we may say that his evidence is silent about the role of
Dwarkabai which we have discussed above. Likewise, the evidence of
Rgd.
Judgment con4.24
39
P.W.4 Amol is silent about the role of Dwarkabai though his
statement was recorded immediately on the following day. Pertinent
to note that P.W.6 Ratnabai, whose statement was also immediately
recorded by the police on 29.06.2015, her evidence is a pure
improved version to the extent of Dwarkabai. It is apparent that for
first two days from the occurrence Dwarkabai was not in picture about
the actual assault, but, after two days when the police recorded
statement of other eye witnesses, she appeared with a sickle and role of
assault. Thus, for above reasons, our judicial mind does not permit us
to rely on such nebulous evidence to the extent of Dwarkabai as there
is every possibility of belatedly roping her in the actual occurrence.
Therefore, we are not inclined to accept the prosecution case to the
extent of Dwarkabai on slippery path. It is cardinal principle of
criminal jurisprudence that when the situation emerges two views, the
view favouring to the accused would take precedence. Thus, for above
reasons we hold that the prosecution has failed to establish that
accused no.2 Dwarkabai has assaulted either of the deceased and
thereby committed an offence of murder as defined under Section 300
Rgd.
Judgment con4.24
40
of the Indian Penal Code.
40. The learned Addl.P.P. would submit that all the accused
have participated in the deadly assault and thus each one is responsible
by applying the principle of joint liability. In other words, the
prosecution endeavored to state that even if it is assumed that accused
no.2 Dwarkabai has not actually participated in the assault, still by
invoking the principle of joint liability, she is liable for the end result.
The principle enshrined under Section 34 of the Indian Penal Code is
very commonly invoked provision in criminal cases. With a plethora
of judicial decisions rendered on the subject, the contours and its
impact seem still nigh delineated. We have considered the
applicability of Section 34 to the extent of accused no.2 Dwarkabai, as
on the basis of independent analysis we have already concluded that
Dwarkabai did not participated into the act of actual assault.
41. The accused who is to be fastened with the liability on the
strength of Section 34 should have done some act which has nexus
Rgd.
Judgment con4.24
41
with the offence. The said act need not be very substantial, it is
enough that the act is only for guarding or assisting or facilitating the
crime. Act need not necessarily be overt. Even if it is only a covert
act, it is enough, provided it was done in furtherance of common
intention. The leading feature of this Section is an element of
participation and existence of common intention animating the
offenders. It is also necessary to remember that mere presence of the
offender at the place of murder without any participation to facilitate
the offence is not enough.
42. It emerges that since Shubham misbehaved with
Dwarkabai, she got annoyed and called help from her two sons and
husband, who in turn arrived on the spot armed with weapons. There
is nothing on record as to what message was conveyed by Dwarkabai
to her kins. The evidence only points out that due to prior incident of
misbehaviour, she summoned her sons and husband. It has come on
record that no sooner the trio came to the spot with weapons,
immediately they started assaulting Shubham who was seated alone on
Rgd.
Judgment con4.24
42
the platform, and assaulted others who came to his rescue.
Considering the entire occurrence as a whole, there is nothing to
indicate that there was a prior meeting of mind or sharing of common
intention in between Dwarkabai, her husband and two sons.
43. The learned Addl.P.P. has relied on the decision in case of
Shiv Mangal Ahirwar .vrs. State of M.P. – AIR 2023 SC 1919, to
contend to fasten the guilt on accused no.2 Dwarkabai, as she
allegedly shared the common object. The said decision would not
assist to the prosecution, as there is marked distinction between
common intention and common object. On the same line, further
reliance is on the decision in case of Masalti .vrs. State of U.P. – [1964]
8 SCR 133. In said case, by invoking the principles of joint liability
some of the accused have been held guilty. As discussed above, on
facts we have rejected the submission that Dwarkabai has shared
common intention, thus, being distinct fact, the said ruling has no
application.
Rgd.
Judgment con4.24
43
44. Undeniably till 5 p.m. of the date of occurrence, both sons
and husband were at different places following their ordinary pursuit.
They never dreamt that something would happen to Dwarkabai and
on that account they would kill the victims. It is not the case that
when the trio came to the spot, they had a discussion with Dwarkabai,
so as to atleast give some clue to hold that they have planned to
eliminate everyone. It is difficult to come to a conclusion that merely
because Dwarkabai was present at or near the scene, without doing
anything and without even carrying any weapon can also be convicted
with the aid of Section 34 of the Indian Penal Code for the offence
committed by other accused. The essential requirement of Section
i.e. prior meeting of mind and sharing of common intention is totally
missing, therefore, we are not prepared to accept the submissions of
the learned Addl.P.P. to rope Dwarkabai by invoking the principle of
joint liability.
45. Reverting to the role of rest of the accused, it is the
prosecution case that no sooner Dwarkabai telephonically summoned
Rgd.
Judgment con4.24
44
to her sons, both Shyam and CCL Mangesh and their father Haribhau
armed with weapons arrived at village Malpura. As regards to CCL
Mangesh, he being child in conflict with law, we are not concerned
with him. It is informed that his case is still pending before the
Juvenile Justice Board, hence we refrain ourselves from making
comments in his regard. All the eye witnesses have stated specific role
of accused no.3 Shyam and accused no.1 Haribhau. They have
consistently stated that accused no.3 Shyam was holding a knife, who
has opened the attack by stabbing at the stomach of Shubham. There
is specific evidence that accused no.3 Shyam not only assaulted
Shubham, but, particularly assaulted rest of the deceased. Not only
that, while Baburao was being shifted to hospital, he was again made
to stop and was dealt with knife blow at his neck. The evidence of eye
witnesses is consistent about the role of accused no.1 Haribhau also in
assaulting all of them by means of an axe. The first information report
also spells out the specific weapon held by both, coupled with their
positive act of assaulting all the deceased.
Rgd.
Judgment con4.24
45
46. At this juncture, it necessitates us to deal with the defence
version, though irrupted belatedly. CCL Mangesh has stepped into
the witness box as a defence witness. The accused tried to put up
defence theory, through his mouth. It is his evidence that on
28.06.2015, his mother Dwarkabai telephonically called him as she
was misbehaved by Shubham. At the relevant time CCL Mangesh was
at Akot, who immediately rushed to village Malpura. He stated that
his father Haribhau was at another field at Malpura, who also arrived
at the spot. It is his evidence that when he came to Malpura, he saw
that Shubham, Dhanraj and Gaurav were holding weapons. All three
rushed at the person of his father Haribhau. In order to save his
father, CCL Mangesh tried to snatch knife held by Shubham, also
tried to snatch axe held by Dhanraj and tried to snatch sickle held by
Gaurav and in said bid, all of them sustained injuries, in which they
died. In other words, it is the defence version that three deceased
Shubham, Gaurav and Dhanraj were about to assault Haribhau,
hence, CCL Mangesh tried to save his father, snatched weapons. He
became furious and in such maily, all three sustained injuries and died.
Rgd.
Judgment con4.24
46
We may note that though this was the defence version put
forward before the trial Court, however, learned defence Counsel did
not stick to said version. In other words, he did not argue about the
probability of the defence version as tried to be projected before the
trial Court. It appears that Mangesh being CCL, it was a calculated
defence, belatedly raised since law does not provide harsh punishment
to child in conflict with law under the provisions of Juvenile Justice
Act. Be that as it may, the said fragile defence is totally improbable
and unacceptable. The evidence of eye witnesses which we have
detailed above, is very specific and consistent about the role of
accused no.1 Haribhau and accused no.3 Shyam, which is consistent
and worth to be believed. Moreover, no such suggestion was given to
either of the witnesses, but, it appears that a fine idea of raising such
defence erupted at the fag end of the case. Thus, the defence version
is not acceptable which is against the direct consistent and trustworthy
evidence of various eye witnesses, whose presence was quite natural.
47. The learned defence Counsel made another submission
Rgd.
Judgment con4.24
47
that the case to the extent of accused no.1 Haribhau stands on
different footing. It is his submission that since in the same incident,
Haribhau sustained injuries, it is a sign to show that in sudden fight,
Haribhau reacted, bringing his case under Exception 4 of Section 300
of the I.P.C. It is submitted that the injuries sustained by the accused
have been suppressed by the prosecution, and thus, it creates doubt
about the very foundation of the prosecution case. For this purpose,
the learned defence counsel relied on the decisions in case of –
Kumar .vrs. State represented by Inspector of Police – [2018] 7 SCC
536, Dashrath Singh .vrs. State of U.P. – AIR 2004 SC 4488 (SC)
and Gurvinder Singh .vrs. State of Punjab and another – [2018] 16
SCC 525, wherein it is observed that failure of prosecution to explain
injuries on the person of the accused weakens the prosecution case.
48. In above referred decisions it has been observed that
generally failure of prosecution to offer any explanation regarding
injuries suffered by the accused evolves two possibilities that the
evidence of prosecution witnesses may be untrue or the defence plea
Rgd.
Judgment con4.24
48
may be probable. True, it is the duty of the prosecution to furnish
proper explanation about the injuries sustained by the accused. The
investigating officer owes a responsibility to investigate in a fair
manner to elicit truth.
49. Mere non-explanation of the injuries by the prosecution
may not affect the prosecution case in all cases. The principle would
not apply in cases where injuries are minor or where the evidence is so
clear or cogent, so independent and disinterested, so probable and
creditworthy that it far outweigh the effect of omission on the part of
the prosecution to explain the injuries.
50. On facts we have been taken through the evidence of
defence witness no.1 Dr. Sujata Chavhan, who has examined
Haribhau on the following day. She has noted incise wound
measuring 2 cm. over the right arm, incise wound on the middle
finger and injury at left shoulder to accused Haribhau, which is not in
much dispute.
Rgd.
Judgment con4.24
49
51. It has come in the evidence that during initial assault,
fourth deceased Baburao belatedly arrived along with a stick. It is
argued that Baburao dealt stick blow to Haribhau, who in turn tried
to snatch knife from the deceased which resulted into causing him
injuries. On that count it has been argued that in sudden fight, as
Haribhau was assaulted he reacted at the spur of moment, which
brings the case under Exception 4 to Section 300 of the Indian Penal
Code. We have also examined the case from said angle. It is not the
case of erupting sudden quarrel between two groups. In order to
constitute fight, it is necessary that something should be exchanged, at
least verbally. Dwarkabai telephonically called her two sons and
husband Haribhau, who came with weapons. Heat of passion requires
that there must be no time to cool down. The incident as narrated
discloses that armless Shubham was initially assaulted and done to
death. When father of Shubham namely Dhanraj and brother Gaurav
arrived, they were also assaulted. It was quite natural that Baburao in
a bid to save his kins may have inflicted stick blows to Haribhau, but,
that does not mean that it is a case of sudden fight. Attack was brutal,
Rgd.
Judgment con4.24
50
repeated blows were dealt on vital parts of the body, that too without
any overt act from the victim party.
52. It is well established that accused no.1 Haribhau by means
of an axe dealt several blows on vital parts of the body of almost all the
deceased, exposing his clear intention and thus, his case would not fall
under Exception 4 to Section 300 of the Code, as claimed by the
defence. In order to attract Exception 4 to Section 300, there must be
a sudden fight that too, accused acted without taking undue
advantage. In the result, the evidence of eye witnesses unerringly
points out that accused no.1 Haribhau and accused no.3 Shyam [we
have not dealt with the case of CCL Mangesh], arrived on the spot
with deadly weapon and indiscriminately assaulted all four deceased
on their vital parts of the body, which proved to be fatal. It is not the
case of sudden fight as accused came with arms, used indiscriminately
without any resistance or quarrel.
53. The defence counsel pointed from the evidence that fourth
Rgd.
Judgment con4.24
51
deceased Baburao arrived at the place with stick, by which he dealt
blow to Haribhau and thus, in retaliation Haribhau reacted. Though a
specific plea of private defence has not been raised before us, however,
it was endeavored to convince that since Haribhau was attacked by
means of stick, he reacted in causing injuries. It is evident from the
impugned judgment that in trial Court the theory of self-defence was
raised, however, no specific submission was made before us in that
regard. We have also examined said probability from the emerging
material. Undisputedly, the accused need not step into the witness
box to establish the case of private defence, which he could point out
from the cross examination or from attaining circumstances. If we
have a re-look to the entire evidence, it emerges that initially Shyam,
Haribhau along with CCL Mangesh have assaulted Shubham by
means of dangerous weapons. Since Dhanraj and Gaurav intervened,
they have also been assaulted and thereafter Baburao arrived on the
spot with a stick. Thus, it is not a case that at the initiation of the
occurrence, fourth deceased Baburao used stick on which accused no.1
Haribhau reacted. But, the facts are clear enough to convey that
Rgd.
Judgment con4.24
52
already as per the proved facts, Haribhau has assaulted Shubham,
Dhanraj and Gaurav by means of sickle and then Baburao arrived with
a stick. Therefore, the facts does not indicate that in exercise of
private defence, Haribhau caused injuries, which extended to causing
death.
54. The learned Addl.P.P. was right in his submission that in
order to claim exception on account of private defence, the accused
ought to have suggested so to the prosecution witnesses. In this
regard, the learned Addl.P.P. has relied on the decision of Supreme
Court in case of Pulicherla Nagaraju .vrs. State of A.P. [2006] 11 SCC
444, wherein the theory of self defence was rejected for the reason that
such a plea was never put forth in statement under Section 313, nor
brought out in the cross examination of any of the prosecution
witnesses. The said observation clearly applies, as no such specific
defence was raised.
55. The learned Addl.P.P. has rightly pointed out that in
Rgd.
Judgment con4.24
53
absence of specific defence of sudden fight or exercise of private
defence, the said theory cannot be accepted. For this purpose reliance
is placed on the decision in case of Ganga Singh .vrs. State of M.P. –
[2013] 7 SCC 278. In the said decision in absence of cross
examination and specific defence, the stand taken by the accused has
been rejected. On the same line reliance is placed on the decision in
case of Hanumantappa Bhimappa Dalavai and othes .vrs. State of
Karnataka – [2009] 11 SCC 408, which has acode the principle about
the right of private defence.
56. The learned Addl.P.P. has further relied on the decision in
case of V. Subramani and others .vrs. State of T.N. [2005] 10 SCC
358, to contend that in absence of reasonable apprehension, the
theory of exercise of right of private defence cannot be adopted. The
said submission holds merit, as herein also the accused are unable to
point out the necessity of exercising of right of private defence.
Section 96 of the Indian Penal Code provides that anything is not an
offence which is done in exercise of private defence. While
Rgd.
Judgment con4.24
54
considering said defence, the Court must consider all the surrounding
circumstances. It is not necessary for the accused to plead in so many
words that he acted in self defence, however, the onus lies on the
accused to point out reasonable and probable apprehension to exercise
such a right, merely the accused sustained some injuries, it does not
necessitates that the theory of self defence be accepted. The injuries
sustained by Haribhau are minor and superficial. In order to find
whether the right of private defence is available, the entire incident
has to be examined, which we have detailed above. In the result, it is
not possible to accept either of the defence version about applicability
of Exception 4 to Section 300 or exercise of right of private defence
by accused no.1 Haribhau.
57. Apart the prosecution has relied on one other circumstance
to fasten the guilt of the accused. It is the prosecution case that in
pursuance to the disclosure made by accused no.3 Shyam, weapons
used in the commission of crime have been seized. The prosecution
led evidence of P.W.3 Ashok who is panch witness to the
Rgd.
Judgment con4.24
55
memorandum [Exh.92] and consequential seizure [Exh.93] of four
weapons namely two iron sickles, axe and a knife. All these articles
were sealed and sent for chemical analyzation. On chemical
analyzation, it was found that the seized articles were having blood
stains, which were detected to be of some of the deceased. The
defence has strongly criticized the evidence of seizure by claiming to
be a farce. The learned defence counsel would submit that the
evidence of P.W. 9 Prashant auto-driver falsifies the entire evidence of
disclosure and seizure.
58. It is the prosecution case that P.W.9 Prashant, is an auto
rickshaw driver. It is his evidence that on 28.06.2015, around 4 to
4.30 p.m. CCL Mangesh engaged his auto rickshaw so as to proceed to
village Malpura, as he has been telephonically called by his mother
Dwarkabai. Accordingly he took Mangesh by auto to Malpura, who
was holding a nylon bag at the relevant time. Auto left Mangesh 2
kms away at the of the outskirts of village Malapura. When the auto
on return journey reached hardly 2-3 kms, away, auto driver again
Rgd.
Judgment con4.24
56
received a call from Mangesh to fetch them from Malpura as they
wanted to return to the original destination Akot. P.W.9 Prashant
deposed that within short time all 4 accused came near the stream-let.
All of them were holding arms. He particularly deposed that
Mangesh was holding sickle, whilst Shyam was holding knife. All of
them boarded the auto and proceeded towards Akot. The defence has
pointed out that while the accused along with CCL Mangesh were
proceeding by auto towards Akot, they were accosted by police and
took them in charge. It is argued that in above circumstances, it is
difficult to believe the disclosure and recovery on 01.07.2015, as
already weapons were with the accused whose arrest was immediately
effected.
59. More importantly, we have been taken through the
admission of P.W.9 Prashant that while the auto came near the railway
crossing gate, police made them to stop. Particularly he admitted that
he did not stopped the auto any where in the way till the police
accosted. It is apparent from the evidence of this witness that after
Rgd.
Judgment con4.24
57
occurrence when the accused boarded the auto they were holding
weapons which they carried till they have been taken in charge by
police i.e. P.W.17 Head Constable Mohanlal. In view of said evidence
it is difficult to believe the evidence of alleged disclosure by Shyam on
01.07.2015 and consequential recovery. It is the prosecution
evidence itself that soon after the occurrence the accused ran by auto
with weapons and within short time they have been taken in charge.
In the circumstances, it is not possible for the accused to get down
from the vehicle, conceal the weapons in to bushes and proceed
further. Though the trial Court assumed these things, however, in
view of clear admission of P.W.9 Prashant, that he did not stopped the
auto anywhere, it is not possible to accept said assumption. In the
circumstances, it is difficult to accept the prosecution case to the
extent of memorandum and seizure of weapons at the instance of
Shyam on account of improbability.
60. The prosecution has also relied on the seizure of blood
stained clothes of accused and finding of blood of deceased on the
Rgd.
Judgment con4.24
58
clothes. It reveals that the clothes of accused no.1 Shyam have been
seized on the very next day at police station Hiwarkhed, which were
containing jeans pant, full sleeves shirt shoes of action company.
Likewise clothes of Dwarkabai containing saree and blouse have been
seized. Clothes of accused no.1 Haribhau have been seized on
30.06.2015. The chemical analyzers report indicates that on the
clothes of Shyam blood of “A” group was found. On the clothes of
Dwarkabai and Haribhau blood of “AB” group was found. The
chemical analyzers report shows that the blood of deceased Baburao
and Shubham was of “AB” group, whilst blood of Gaurav was of “A”
group. Though the blood group of accused no.2 Dwarkabai was of
“AB” group and accused no.3 Shyam was of “A” group, however, they
did not sustain injury. Accused no.1 Haribhau sustained injuries, but,
his blood group was “O”. Thus it is evident that clothes of accused
were having blood stains of the blood groups of some of the deceased,
which is one of the additional circumstance in favour of the
prosecution. Moreover, since it is the defence itself that there was a
fight in between them, it was as good as an admitted factor that the
Rgd.
Judgment con4.24
59
clothes of accused were stained with the blood of the deceased. This is
one more additional link supporting the prosecution case.
61. The prosecution is also banking upon the evidence of extra
judicial confession made by the accused to P.W.9 Prashant Telgote, an
auto rickshaw driver. We have already referred the role of P.W.9
Prashant above. When the auto driver was called back to fetch the
accused, he saw that the clothes of the accused were stained with
blood, and they were holding weapons. Seeing so he has questioned
the accused on which CCL Mangesh and Shyam replied that they have
returned by committing four murders, and boarded the auto. It is a
piece of extra judicial confession made by the accused. It is settled
position of law that extra judicial confession if true and voluntary, it
may be relied by the Court to convict the accused for commission of
the alleged crime. Though conventionally evidence of extra judicial
confession was treated to be weak, however, it cannot be ignored when
shown confession was made before a person who has no reason to state
falsely and to whom it is made in the circumstances are tent to support
Rgd.
Judgment con4.24
60
the statement. The extra judicial confessions are made to man of
confidence. However, there was a reason for P.W.9 Prashant to
inquire with the accused as they were armed with weapons and their
clothes were full of blood. In response to the query, the accused
replied accordingly, which is quite natural. Moreover, soon after the
occurrence, immediately confession was made. As delineated above,
there was reason for the accused to confess to P.W.9 Prashant about
commission of crime, since the later has questioned as to how there
was blood on their clothes and then had weapons. Thus, everything
was natural, which cannot be doubted and therefore, this piece of
evidence also needs to be used as a corroborative material against the
accused.
62. The learned defence counsel has canvassed various points
with the sole moto to convince that the prosecution evidence is not
worthy of credit, as well as there are procedural lapses of which benefit
shall be accorded to the accused. One of the submission is about non
compliance in strict-sense, of the provisions of Section 313 of the
Rgd.
Judgment con4.24
61
Code. It is submitted that the trial Court failed to seek explanation of
the accused on some incriminating material, which has been relied by
the trial Court while returning the finding of guilt. It is argued that
the circumstances which are not put to the accused in his examination
under Section 313, cannot be used against him and have to be
excluded from consideration. To substantiate said contention reliance
is placed on the decision of Supreme Court in cases of – Raj Kumar
Singh .vrs. State of Rajasthan – 2013 All MR (Cri) 2240 (SC) and
Sujit Biswas .vrs. State of Assam – [2013] 12 SCC 406. There can be
hardly a dispute about the said proposition of law. The intent behind
seeking explanation of the accused on incriminating material flows
from the principles of natural justice. It requires that the accused may
be given an opportunity to furnish his explanation on the
incriminating material which would be used against them. Certainly it
is the duty of the Court to examine the accused and to seek his
explanation as on incriminating material that has surfaced against him.
63. On said count it is submitted that the trial Court did not
Rgd.
Judgment con4.24
62
sought explanation of the accused on the point of chemical analyzer’s
report. In particular it is submitted that it has not been specifically
asked to the accused regarding the blood group found on the seized
clothes and weapons, which almost matched with the blood group of
some of the deceased. In this regard, our attention has been invited to
question no.666 similarly put to all the accused. The said question
no.666 reads as below :
“[666] What have you got to say about the Chemical Analysis
Report from Exh Nos.15 to 23 ?”
It is also submitted that the trial Court has asked exactly same total
700 questions to each of the accused. True though statement of each
of the accused under Section 313 has been separately recorded, but
the same questions were put to all of them. Questions may be the
same, but, the legal requirement is to see whether the explanation of
the accused has been called on every incriminating bit of
circumstance. It may happen that some questions may be irrelevant
for some of the accused, but, the result is that all the questions
Rgd.
Judgment con4.24
63
containing entire incriminating material has to be put to everyone.
There is no scope to say that only because common questions were
framed, it caused prejudice, unless specifically shown.
64. The learned defence Counsel is only able to show a single
circumstance regarding non seeking of specific explanation about the
result of chemical analyzer’s report. Besides that no submission has
been canvassed to point out as to which incriminating material was
not put to the accused. After microscopic analysis, the learned defence
counsel was only able to point towards question no.666 pertaining to
chemical analyzers report. It is not the case that the trial Court did not
sought explanation of accused on the chemical analyzers report. Said
circumstance was put to accused, but, in a generalized manner. The
fact remains that the explanation has been sought though not specific
and thus, the accused cannot muster any strength from the mode
adopted by the trial Court while seeking explanation.
65. The defence has attracted our attention to the overwritten
Rgd.
Judgment con4.24
64
portion in the first information report [Exh.62]. The informant Yash
in his police report stated that after telephonic talk, Haribhau, Shyam
and Mangesh arrived on the spot. At that time ‘Shubham’ was armed
with knife, Mangesh was armed with sickle and Haribhau was armed
with axe. True in the police report, the first assailants name holding
knife was initially mentioned as ‘Shubham’, and then by scoring it has
been replaced by the word ‘Shyam’. Taking us through said
overwriting, it has been argued that at the relevant time deceased
‘Shubham’ was holding knife, but, later it has been converted into
‘Shyam’ by overwriting. We are not prepared to accord any advantage
to the defence by such mistake committed by the police while writing
the report. We have reason to say so, because in the same breath the
informant Yash stated names of other assailants with their weapons
like Haribhau and Mangesh. If entire sentence is read in continuity, it
conveys that the informant intended to state name of Shyam, then
Mangesh and then Haribhau, and therefore, silly mistake committed
by the police writer cannot be capitalized for any purpose. Moreover,
the mistake was corrected then and there only at the time of
Rgd.
Judgment con4.24
65
registration of the crime. Thus, submission on said count need no
consideration.
66. The learned Addl.P.P. would submit that there was
sufficient motive for the accused to commit the crime. It is submitted
that on account of property dispute, the crime was committed.
Accused no.2 Dwarkabai wanted more share in the ancestral property
which the victims denied, hence, the motive for the occurrence. It is
not denied that there was a property dispute in between the parties,
however, that cannot be construed as a motive for commission of
crime. It emerges from the evidence that, 29 acres of ancestral land
was owned by father of Dwarkabai and her two brothers namely
Haribhau and Baburao. Dwarkabai was cultivating 2 acres of land and
was also insisting for more share. Pertinent to note that as per the
evidence Dwarkabai had filed a civil suit for partition, which was
pending since long, therefore, the said land dispute cannot be
construed as a motive as a cause of property dispute was ever lasting.
It appears from the evidence that since Shubham has misbehaved with
Rgd.
Judgment con4.24
66
Dwarkabai, it has triggered the quarrel, which ultimately resulted into
taking four lives. Thus one can not say that there was strong motive
for commission of crime, but, at the place of occurrence there was a
quarrel on account of mis behaviour, which took ugly turn. Besides
that we may hasten to add that when the prosecution case rests on
direct evidence, the motive loses its significance. We have already
detailed above, that there was cogent, reliable and trustworthy direct
evidence on the point of occurrence and thus, the motive for
commission of crime would take back seat.
67. Taking the entire incident as a whole, it is evident that
accused no.1 Haribhau and accused no.3 Shyam by means of deadly
weapon caused multiple injuries at the vital parts of the deceased. The
injuries were specifically aimed at neck, chest, abdomen which clearly
demonstrates their intention to eliminate the victims. The act of
accused causing multiple injuries of grave nature by sharp edge
weapon itself demonstrates their definite intention, attracting the
offence of murder. Since a faint plea of self defence and claim of
Rgd.
Judgment con4.24
67
Exception 4 to Section 300 is rejected, undoubtedly the
overwhelming material indicates that accused no.1 Haribhau and
accused no.3 Shyam are guilty for the offence of murder punishable
under Section 302 of the Indian Penal Code.
68. The next debatable question is about the proportionality
of the sentence. The Trial Court heard both sides on the point of
sentence. After considering the mitigating and aggravating
circumstances, the Trial Court was of the opinion that the case falls in
the category of ‘rarest of rare case’, and thus, awarded capital
punishment. Certainly, it is a matter of concern, which requires
meticulous examination of all relevant factors to see the
proportionality of the sentence.
69. The learned Counsel appearing for the defence has
vehemently argued that the Trial Court has not properly appreciated
the mitigating circumstances in favour of the accused. It is submitted
that the accused are not criminals or professional killers. There was no
Rgd.
Judgment con4.24
68
strong motive, but, at the spur of moment, the incident occurred. It
was not a pre-planned attack, nor the act demonstrates extreme
brutality. In short, the case does not fall into the exceptional category.
Per contra, learned Addl.P.P. on behalf of the State has
supported the capital punishment awarded by the Trial Court. It is
submitted that the Trial Court in detail considered the mitigating
circumstances and also rejected them. Considering that the accused
have committed brutal murder of four defenseless persons, the Trial
Court has properly awarded the punishment. After considering the
balance-sheet of the aggravating and mitigating circumstances, the
Trial Court has imposed the death sentence, which is appropriate one.
In substance, he would submit that the present case can be said to be a
‘rarest of rare’ case, warranting a death sentence.
70. To substantiate death penalty, learned Addl.P.P. has
relied on the various decisions of the Supreme Court in following
cases:
Rgd.
Judgment con4.24 69 [1] Ram Singh vs. Sonia and ors. - [2007] 3 SC 1 [2] Surja Ram .vrs. State of Rajasthan - AIR 1997 SC 18. [3] Govindaswami .vrs. State of T.N. - [1998] 4 SCC 531. [4] Suresh and another .vrs. State of U.P. - AIR 2001 SC 1344. [5] Atbir .vrs. Govt. of N.C.T of Delhi - AIR 2010 SC 3477. [6] Ishwarilal Yadav and another .vrs. State of Chhattisgarh - [2019] 10 SCC 423. [7] Ravji @ Ram Chandra .vrs. State of Rajasthan - [1996] 2 SCC 175. [8] Machhi Singh and others vs. State of Punjab - (1983) 3 SCC 470. [9] Bachan Singh .vrs. State of Punjab - (1980) 2 SCC 684. [10] State of Maharashtra .vrs. Vivek Gulabrao Palatkar -
Criminal Confirmation Case No.2/2023 decided on
27.03.2024 (Bombay High Court, Nagpur Bench).
We have gone through the above decisions and noted the principles
laid therein. We may hasten to add that always precedents would serve
as a guiding factor, but, the Courts have to decide the nature and
Rgd.
Judgment con4.24
70
quantum of punishment on peculiar facts of each case.
71. We appreciate the herculean exercise taken by the learned
Addl.P.P. to find out some what similar cases wherein death penalty
was confirmed on account of cruelty and multiple deaths. In most of
the cases, the deceased were women and minor vulnerable children.
On the basis of given facts and circumstances, death penalty was
confirmed, which cannot be blindly applied to the distinct facts.
However, in order to understand the judicial trend, we have carefully
examined all above decisions.
72. Since long, in series of decisions, this question has been
dealt with whether in the facts and circumstances of the case, death
penalty is warranted ? Almost, in every decision we find reference to
the celebrated decisions in the field, namely Bachan Singh vs. State of
Punjab [supra] and Macchi Singh vs. State of Punjab [supra], wherein
the issue has been extensively dealt and several guidelines are laid
down. Recently the Supreme Court in case of Manoj Pratap Singh vs.
Rgd.
Judgment con4.24
71
State of Rajasthan – (2022) 9 SCC 81, after considering the above
celebrated judgments, made certain observation which would provide
guiding factor. The relevant observations made in paragraphs 76, 77
and 80 read as below :
“76. The Court also stated that ‘special reasons’ in the
context of Section 354(3) CrPC would obviously mean
‘exceptional reasons’, meaning thereby, that the extreme
penalty should be imposed only in extreme cases in the
following terms: – (Bachan Singh vs. State of Punjab (1980)
2 SCC 684)“161. ….The expression “special reasons” in the
context of this provision, obviously means
“exceptional reasons” founded on the
exceptionally grave circumstances of the
particular case relating to the crime as well as the
criminal. Thus, the legislative policy now writ
large and clear on the face of Section 354(3) is
that on conviction for murder and other capital
offences punishable in the alternative with death
under the Penal Code, the extreme penalty
should be imposed only in extreme cases.”
77. After taking note of various circumstances
projected before it, which could be of mitigating factors, and
while observing that the scope and concept of mitigating
factors in the area of death penalty must receive a liberal and
expansive construction, the Court proceeded to uphold the
Rgd.
Judgment con4.24
72
constitutional validity of Section 354(3) CrPC, with the
observations that the legislature had explicitly prioritiesed
life imprisonment as the normal punishment and death
penalty as being of exception, and with enunciation of rarest
of rare doctrine in the following words: – (Bachan Singh
vs.State of Punjab (1980) 2 SCC 684)
“209…..It is, therefore, imperative to voice the
concern that courts, aided by the broad
illustrative guide-lines indicated by us, will
discharge the onerous function with evermore
scrupulous care and humane concern, directed
along the highroad of legislative policy outlined
in Section 354(3), viz., that for persons
convicted of murder, life imprisonment is the
rule and death sentence an exception. A real and
abiding concern for the dignity of human life
postulates resistance to taking a life through
law’s instrumentality. That ought not to be done
save in the rarest of rare cases when the
alternative option is unquestionably foreclosed.”
…..
80. The Court also explained the relevant propositions
of Bachan Singh (supra) and the pertinent queries for
applying those propositions in the following terms: –
(Macchi Singh v. State of Punjab (1983) 3 SCC 470).
“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 propositionsRgd.
Judgment con4.24
73
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 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 isRgd.
Judgment con4.24
74
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.”
73. In the earlier decision in case of Shankar Kisanrao Khade
vs. State of Maharashtra – (2013) 5 SCC 546, the Supreme Court
surveyed a large number of cases on either side, i.e. where the death
sentence was upheld/awarded or where it was commuted; and pointed
Rgd.
Judgment con4.24
75
out the requirement of applying ‘crime test’, ‘criminal test’ and ‘rarest
of rare test’. The Supreme Court recounted with reference to previous
decisions, the aggravating circumstances (crime test), and the
mitigating circumstances (criminal test), in paragraph 49 of the
decision, which reads as under :
“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.
Rgd.
Judgment con4.24
76
(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 lawful
confinement of himself or another. For
instance, murder is 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
Rgd.
Judgment con4.24
77
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
Rgd.
Judgment con4.24
78
facts and circumstances of the case, the accused
believed that he was morally justified in
committing the offence.
(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.”
74. We may also recall the observations made by the Supreme
Court in case of Rajendra Pralhadrao Wasnik vs. State of Maharashtra
– (2019) 12 SCC 460 were in paragraph nos.45 and 47, which read as
follows :
“45. The law laid down by various decisions of
this Court clearly and unequivocally mandates that
the probability (not possibility or improbability or
impossibility) that a convict can be reformed and
rehabilitated in society must be seriously and
earnestly considered by the courts before awarding
the death sentence. This is one of the mandates of
the “special reasons” requirement of Section 354(3)
Rgd.
Judgment con4.24
79
CrPC and ought not to be taken lightly since it
involves snuffing out the life of a person. To
effectuate this mandate, it is the obligation on the
prosecution to prove to the court, through evidence,
that the probability is that the convict cannot be
reformed or rehabilitated. This can be achieved by
bringing on record, inter alia, material about his
conduct in jail, his conduct outside jail if he has
been on bail for some time, medical evidence about
his mental make-up, contact with his family and so
on. Similarly, the convict can produce
evidence on these issues as well.
(46) …
47. Consideration of the reformation, rehabilitation
and reintegration of the convict into society cannot
be overemphasized. Until Bachan Singh (supra), the
emphasis given by the courts was primarily on the
nature of the crime, its brutality and severity.
Bachan Singh placed the sentencing process into
perspective and introduced the necessity of
considering the reformation or rehabilitation of the
convict. Despite the view expressed by the
Constitution Bench, there have been several
instances… where there is a tendency to give
primacy to the crime and consider the criminal in a
somewhat secondary manner. As observed in
Sangeet Vs. State of Haryana (2013) 2 SCC 452. “In
the sentencing process, both the crime and the
criminal are equally important.” Therefore, we
should not forget that the criminal, however ruthless
he might be, is nevertheless a human being and is
entitled to a life of dignity notwithstanding hisRgd.
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80
crime. Therefore, it is for the prosecution and the
courts to determine whether such a person,
notwithstanding his crime, can be reformed and
rehabilitated. To obtain and analyze this
information is certainly not an easy task but must
nevertheless be undertaken. The process of
rehabilitation is also not a simple one since it
involves social reintegration of the convict into
society. Of course, notwithstanding any information
made available and its analysis by experts coupled
with the evidence on record, there could be
instances where the social reintegration of the
convict may not be possible. If that should happen,
the option of a long duration of imprisonment is
permissible.”
75. Recently, Three Judge Bench decision of the Supreme
Court in case of Manoj and ors. Vs. State of Madhya Pradesh – (2023)
2 SCC 353, took review of series of decisions in the field and
observed as under :
“223. The decades that followed, have witnessed a
line of judgments in which this court has
continually taken judicial notice of the
incongruence in application of the ‘rarest of rare’
test enunciated in Bachan Singh, and therefore,
tried to restrict imposition of the death penalty, in
an attempt to strengthen a principled application of
the same.
224. This aspect was dealt with extensively in
Rgd.
Judgment con4.24
81
Santosh Kumar Satishbhushan Bariyar vs. State of
Maharashtra (2009) 6 SCC 498 where the court
articulated the test to be a two-step process to
determine whether a case deserves the death
sentence – firstly, that the case belongs to the ‘rarest
of rare’ category, and secondly, that the option of
life imprisonment would simply not suffice. For the
first step, the aggravating and mitigating
circumstances would have to be identified and
considered equally. For the second test, the court
had to consider whether the alternative of life
imprisonment was unquestionably foreclosed as the
sentencing aim of reformation was unachievable,
for which the State must provide material.
225. …
226. …
227. Recently, while considering a review petition,
this court in Rajendra Pralhadrao Wasnik v. State
of Maharashtra (2019) 12 SCC 460 held that
Bachan Singh had intended the test to be
‘probability’ and not improbability, possibility or
impossibility of reformation and rehabilitation as a
mandate of Section 354(4) CrPC. The court
analyzed numerous earlier precedents, noting that
evidence by the state on this has been sparse and
limited, but was essential for the courts to measure
the probability of reform, rehabilitation and
reintegration. The court located this requirement in
the right of the accused, who regardless of being
ruthless, was entitled to a life of dignity,
notwithstanding his crime. While this process is not
easy, it was noted that the neither is the process of
rehabilitation since it involves reintegration intoRgd.
Judgment con4.24
82
society. When this is found to be not possible in
certain cases, a longer duration of imprisonment
was instead permissible.
227. …
228. …
229. …
230. …
231. …
232. This court in Rajesh Kumar v. State (2011)
13 SCC 706 again reiterated that brutality in itself,
was not enough to impose death sentence – the
accused was convicted for murder of two children
who offered no provocation or resistance to the
brutal and inhuman fashion in which the accused
committed the crime, however, it was held that due
consideration to the mitigating circumstances of the
criminal still had to be given. Evidence had to be
placed on record by the State, demonstrating that
he was beyond reform or rehabilitation, the absence
of which was a mitigating circumstance in itself.
The High Court had merely noted that he was a
first-time offender and had a family to take care of
– which this court noted was a very narrow and
myopic view on the mitigating circumstances.
233. Therefore, ‘individualised, principled
sentencing’ – based on both the crime and criminal,
with consideration of whether reform or
rehabilitation is achievable (held to be ‘probable’ in
Rajendra Pralhadrao Wasnik), and consequently
whether the option of life imprisonment is
unquestionably foreclosed – should be the onlyRgd.
Judgment con4.24
83
factor of ‘commonality’ that must be discernible
from decisions relating to capital offences. With the
creation of a new sentencing threshold in Swamy
Shraddananda (2), and later affirmed by a
constitution bench in Union of India v. V Sriharan
(2016) 7 SCC 1, of life imprisonment without
statutory remission (i.e., Article 72 and 161 of the
Constitution are still applicable), yet another option
exists, before imposition of death sentence.
However, serious concern has been raised against
this concept, as it was upheld by a narrow majority,
and is left to be considered at an appropriate time.
234. …
235. …
236. …
237. …
238. …
239. …
240. …
241. In Santosh Bariyar, making observations on
nature of information to be collected at the pre-
sentencing stage, this court further observed that –
“56. At this stage, Bachan Singh [(1980) 2
SCC 684 informs the content of the
sentencing hearing. The court must play a
proactive role to record all relevant
information at this stage. Some of the
information relating to crime can be culled out
from the phase prior to sentencing hearing.
This information would include aspectsRgd.
Judgment con4.24
84
relating to the nature, motive and impact of
crime, culpability of convict, etc. Quality of
evidence adduced is also a relevant factor. For
instance, extent of reliance on circumstantial
evidence or child witness plays an important
role in the sentencing analysis. But what is
sorely lacking, in most capital sentencing cases,
is information relating to characteristics and
socio-economic background of the offender.
This issue was also raised in the 48 th Report of
the Law Commission.”
76. Per contra, the learned defence Counsel relied on the
following decisions of Supreme Court in cases of –
[1] Manoj and others .vrs. State of Madhya Pradesh – [2023] 2
SCC 353.
[2] Madan .vrs. State of Uttar Pradesh – 2023 SCC Online SC
1473.
[3] Suo Motu Writ Petition (Cri) No.1/2022 – 2022 Live Law
(SC) 777.
[4] Rabbu @ Sarvesh .vrs. The State of Madhya Pradesh –
Criminal Appeal No.449-450 of 2019 decided on
12.09.2024.
[5] Bhagchandra .vrs. State of Madhya Pradesh – AIR 2022 SC
410,
to contend that this case does not falls in the exceptional category
Rgd.
Judgment con4.24
85
namely ‘rarest of rare case’ and thus, the trial Court utterly failed in
awarding capital punishment.
77. The learned trial Judge has assigned reasons in paragraph
nos.333 to 354 for awarding extreme penalty. On account of
aggravated circumstances, the trial Court took into account the
indiscriminate attack on four persons and multiple injuries on vital
parts. The aggravated circumstances culled out by the trial Court in
paragraph nos.337/1 to 337/18 precisely are as below :
[1] Lack of repentance.
[2] Inhuman cruelty.
[3] Accused armed with lethal weapons, whilst victims were
unarmed.
[4] Total absence of provocation.
[5] Absence of life threat to the accused.
[6] Victims did not got chance to defend.
[7] No compulsion to commit crime.
[8] Crime occurred without pressure or coercion.
[9] Determined intention of accused and aggressiveness.
[10] Victims entire family was destroyed.
Rgd.
Judgment con4.24
86
[11] Life threat was also to Yash and Amol who survived.
[12] Disregard of accused to their close relations with victims.
[13] Accused Baburao was a teacher, whilst deceased Dhanraj
was Head Constable, but, there was no apprehension to the
accused of said position.
[14] Accused were of cruel mindset. Tender age of 17 and 19
years of two deceased.
[15] Accused Haribhau was a teacher who tarnished the image
of noble teaching profession.
[16] After initial attack on Baburao, he was chased and killed.
[17] Crookedness of accused in taking defence of thumping
blame on CCL Mangesh by taking disadvantage of legal
position.
[18] Accused have no sanctity of relations.
78. On the other hand, the trial Court has considered the
mitigating circumstances in paragraph nos.333/1 to 333/3, which are
as under :
[1] Age of accused is considered, but, expressed that it is not a
mitigating circumstance.
[2] Gender of accused no.2 Dwarkabai was considered, but, it
was not found to be a mitigating factor [we have already
accorded benefit of doubt to Dwarkabai]
[3] Absence of criminal antecedents, but, held that the accusedRgd.
Judgment con4.24
87
were of criminal tendency.
79. The Trial Court in true sense has not categorized the
mitigating circumstances, which surfaced from the facts of the case. In
the decision of Manoj Pratap Singh vs. State of Rajasthan (supra), the
Supreme Court laid emphasis that the burden of eliciting mitigating
circumstances, lies on the Court, which has to consider them liberally
and expansively. On the other hand, the responsibility of providing
material to show that the accused is beyond the scope of reformation
or rehabilitation, thereby unquestionably falls on the State. In true
sense the trial Court did not endeavored in that regard.
80. The learned Addl.P.P. has made elaborate submissions to
impress us that the case falls in ‘rarest of rare category’. In order to
arrive at such a conclusion, he has attracted our attention to few
circumstances which are – the accused arrived on the spot with
dangerous weapons; all the deceased were unarmed; accused acted in
pre-planned and calculated manner; assault was mainly on vital parts
Rgd.
Judgment con4.24
88
i.e. neck, chest, abdomen of the deceased; false defence has been
raised; motive was a property dispute, and the accused were remorse
less and the entire family has been done to death. We would like to
test this submission on the touchstone of the factual score.
81. It is the prosecution case itself that on the date of
occurrence around 3 p.m. Dwarkabai was sowing cotton crop in the
ancestral field. Deceased objected to such agricultural activities on
which there was ruckus. In the said altercation, deceased Shubham
misbehaved with Dwarkabai, which enraged her. Dwarkabai returned
from the field to the village Malpura by hurling abuses, and in anger
telephonically called her two sons and husband at village Malpura. In
turn the accused arrived with weapons, and saw that the deceased
Shubham was seated alone on the platform near flag post.
Immediately accused no.3 Shyam stabbed Shubham with knife at his
stomach. Hearing shouts, Haribhau and Gaurav came to the rescue of
Shubham, however, accused assaulted and axed them too. It was
followed by Baburao arriving on the spot, but, he was dealt with the
Rgd.
Judgment con4.24
89
same treatment. The entire chain of events is to be appreciated as a
whole to understand whether it was a pre-planned attack.
82. The above facts are clear enough to convey that before 3
p.m. everything was peaceful and normal. Even it is not the
prosecution case that the accused have predetermined to kill all four
deceased, and to execute the plan, they came and done victims to
death. It can be gathered from the prosecution case itself that the
accused i.e. Shyam and Haribhau were leading their normal day to
day affairs till receiving phone message. It can be easily perceived that
Dwarkabai informed that she has been manhandled by Shubham, that
is why they have been called. Perhaps may be to teach a lesson to
Shubham. In response, Shyam and Haribhau got annoyed and came
to the spot with weapons at their own. Undoubtedly Shyam came by
auto from their residential place i.e. Akot, whilst Haribhau who was
working in another field at village Malpura also came to the spot. It is
evident that both of them had no prior communication, but, as
Dwarkabai summoned, they came at their own to the help of
Rgd.
Judgment con4.24
90
Dwarkabai. The evidence discloses that there was no interaction, but,
no sooner they saw Shubham seated on ota [platform], both of them
assaulted him by means of deadly weapons. These facts do not
indicate that it was a pre-planned attack.
Moreover, it requires to be noted that the initial assault
was restricted to Shubham only. Since Gaurav and Dhanraj
intervened to save Shubham, they became the prey. Likewise,
Baburao also arrived on the spot with stick, hence, he was affected by
the angried action of the accused. These circumstances indicate that
accused did not planned to eliminate four persons, but, as the rest
victims at their own came to the spot, it was at their detriment. The
chain of events no where signals that the accused were predetermined
to eliminate entire family of the victim, therefore, we are not in
agreement with the submission advanced by the learned Addl.P.P. that
it was a pre-planned murder of four victims. It is not the prosecution
case that all the accused with predetermined intention to kill came to
the spot in search of victims and by finding, done them to death.
Rgd.
Judgment con4.24
91
83. No doubt, the accused were armed with deadly weapons,
whilst victims were defenseless. The attack was severe as the accused
indiscriminately assaulted at the vital parts of the body of all the four
deceased amounting to the offence of murder. However, we are
considering the case from the point whether it can be fitted in
exceptional category.
84. Though the trial Court has culled out various
circumstances, as referred in the above paragraphs, it needs
consideration whether in real sense those can be termed as aggravating
circumstances. The trial Court has culled out total 18 circumstances,
however, most of them are repetition of one and the other. We fail to
understand as to how the circumstances as delineated in paragraph
nos.337/7 and 337/8, that there was no compulsion to commit
murder or the accused were not under pressure or coercion to commit
crime, can be termed as incriminating circumstance. Likewise, the
circumstances culled out by the trial Court in paragraph no.337/13
and 337/15 that the accused Haribhau was a teacher which is a noble
Rgd.
Judgment con4.24
92
profession, however, how it can be termed as incriminating
circumstance. The trial Court in paragraph no.337/17 has also
observed that the accused took a false defence of shifting the
responsibility on CCL Mangesh in a crooked manner. In our
considered view taking a particular defence cannot be termed as an
aggravated circumstance. It is a statutory right of every accused to
take defence, apart he may succeed or not, but, that cannot be treated
as an aggravated circumstance. True, falsity of defence can be termed
as an additional circumstance while recording finding of guilt, but, it
cannot be termed as an aggravated circumstance while deciding the
case on the set parameters of exceptional category.
85. More interestingly the reasoning assigned by the trial
Court for awarding capital punishment [paragraph nos.341 to 354] are
quite strange. The trial Court has quoted a verse from Mahabharata,
which we feel to be an unwarranted exercise. More interestingly in
paragraph no.344 of the decision, the trial Court has reproduced some
crime data regarding State of Maharashtra of last 10 years. It has been
Rgd.
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93
stated that during last 10 years, 23,222 offence of murder have
occurred in the State. Incidents of 4 murder in a single occurrence in
last 10 years are 19 in number. On the basis of said statistical data, it
has been expressed that such incident of committing 4 murders in a
single incident are rare and therefore, falls in the category of rarest of
rare case. According to us, the said approach of the trial Court is
erroneous, as on the basis of some statistical data, without returning to
the facts of this case, the category cannot be decided. In criminal trial
each case has its own feature and distinctions. The Court has to
evaluate the case strictly on the facts of the case and not to be swayed
by the statistics and numbers of similar cases. The said approach is
wholly erroneous, which shall be kept out of consideration.
86. The trial Court in paragraph no. 347 has expressed that
instances of active involvement of women in committing offence of
murder is normally low. Instances of women committing murder of
her two brothers and nephew is zero, and thus, it is a case of rarest of
rare. Again we repeat that this reasoning to compress the case in
Rgd.
Judgment con4.24
94
exceptional category is wholly unjustified. As we have stated above,
each case has its own feature and distinction, therefore, each and every
case cannot be put in exceptional category by pointing out some
unique feature. If such analogy is applied, then each case by its unique
feature can be said to be falling in rarest of rare category. For example,
by such analogy, murder by mother with two sons and husband
perhaps may be unique, but, that cannot be an aspect for
consideration.
87. The trial Court has further expressed in paragraph no.349
that the incident of murder of four close relatives occurred in bright
day light, infront of various villagers. The community was terrified by
such attack, and thus, it is a rarest of rare case. We quite see that this
can be a little bit of circumstance for consideration, but, not of much
significance.
88. The trial Court has expressed in paragraph no.351, that
none of the accused have expressed slightest remorse for the crime
Rgd.
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95
committed. Accused no.3 Shyam never stated that during his long
incarceration of 9 years he has utilized the time for some fruitful
purpose. Again this line of thinking is misdirected which has no
connection. We fail to understand as what was the criteria or
parameters for the trial Court to express that accused did not have
repentance.
89. The trial Court in paragraph no.352 stated that the
possibility of rehabilitation seems to be impossible. They have killed
their close relatives in total disregard to the virtues, humanity and for
the sake of selfishness. The said analogy like a literature has no place
in the eyes of law. Moreover, it was a personal opinion of the trial
Judge, that there was no possibility of rehabilitation of the accused.
Unless there is some material, we cannot arrive at such a conclusion,
particularly to act against the accused for putting them into gallows.
90. The trial Court has taken into account the conduct of the
accused of non-cooperation. When the trial Court has asked the
Rgd.
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96
accused as to what they went to say on the point of sentence they
declined to express anything. The learned defence Counsel before the
trial Court has stated that whatever they want to say on the point of
sentence, they would say before the High Court. On such response,
trial Court expressed that accused have undermined the trial Court.
According to us, the trial Court went on emotional line, which ought
to have been avoided. Taking note of such conduct, the trial Court
has concluded that the accused did not cooperate the Court, and
therefore, there is no possibility of reformation. Denial of accused to
express on the point of sentence cannot be taken as an adverse, but, it
has only little relevance.
91. Surprisingly the trial Court has expressed in paragraph
no.354 that the Constitutional validity of death penalty has been
upheld by the Supreme Court and thus, if in such a case death penalty
is not awarded, then the blame will be pinned to the trial Court for not
making the best use of upholding of Constitutional validity of death
penalty. Less said is better about such type of reasoning to frame the
Rgd.
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97
accused for capital punishment.
92. In case of Manoj .vrs. State of Madhya Pradesh [supra], the
Supreme Court has held that the Court should consider Psychological
Evaluation report, Probationary Officers report and Prison report
including the material in respect of conduct of the accused and work
done during their jail term. The trial Court did nothing in said regard.
Neither the trial Court called for the report from the expert,
Probationary officer or atleast the conduct report from the concerned
jail for evaluation. The said exercise was done by this Court while
admitting the matter itself by giving appropriate directions to the
Authorities to submit the report.
93. The Jail Superintendent, Nagpur has submitted report
dated 11.07.2024 regarding the conduct of the accused. It is reported
that the conduct of accused no.1 Haribhau and accused no.3 Shyam
was good and satisfactory. Accused no.1 Haribhau being old aged and
infirm, he was kept in medical ward. Accused no.3 Shyam voluntarily
Rgd.
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98
undertook the cleaning work in jail dispensary and canteen.
94. We are in receipt of the report of the Assistant Professor of
Psychology dated 31.07.2024. It is reported that on examination,
accused no.1 Haribhau was found to be psychologically and
physically fit. The same is the opinion as regards accused no.3 Shyam.
The District Probationary Officer in his report dated 05.08.2024,
opined in detail about accused no.1 Haribhau and accused no.3
Shyam. It is stated that the conduct accused no.3 Shyam was
satisfactory. He was not of criminal tendency. In past he was helping
his father in milk business and used to partake in religious village
functions. Accused Shyam has studied upto Bachelor in Science and
was preparing for service in Police Department. It was his first
offence. His behaviour in the vicinity was good and relations were
cordial. As regards to accused no.1 Haribhau, it is stated that due to
old age, he was suffering from neurological problem, diabetes, blood
pressure and was frequently required medical treatment in jail. He has
also studied upto B.Sc. and his over all conduct was good.
Rgd.
Judgment con4.24
99
95. The reports received from the Authorities reflect that both
accused have a record of over all good conduct in the prison and
display inclination to reform. It is evident that while in prison,
accused no.1 Haribhau was majorly suffering from ailments, whilst
accused no.3 Shyam has taken steps towards bettering his life by doing
services. Unequivocally it demonstrates that there is infact a
probability of reformation. There is no material to conclude that they
are beyond reformation. The State has not adduced any material that
the accused are menace or danger to the society. Rather it emerges
that they were leading a normal human life, their conduct prior to the
date of incident was good as well as, during their long incarceration, it
remained good. It was a first offence of both the accused. Meaning
thereby they were not history sheeter. Certainly, the said aspect can be
construed as a strong mitigating circumstance in their favour.
96. Time and again in various decisions the Supreme Court
has expressed that multiple deaths is not the sole criteria to bring the
Rgd.
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100
case into exceptional category. At the cost of repetition, we may say
that the incident was occurred on a momentary quarrel. Before short
time from the occurrence, nothing was planned or arranged, but, when
accused learnt that Dwarkabai was manhandled, they got annoyed and
rushed for her safety. They assaulted Shubham and only because the
rest three came to the rescue of Shubham, in succession they have also
been done to death.
97. We have tested the aforesaid mitigating and aggravated
circumstances on the touchstone of guidelines laid in the cases of
Bachan Singh vs. State of Punjab (supra) and Macchi Singh vs. State of
Punjab (supra). Besides multiple murders, we could see no other
uncommon feature to carve out the exception. It is not a case of brutal
killing of defenseless or vulnerable section of the society, namely
women or minor children. Moreover, there was no motive for the
accused to kill all the four deceased. Everything erupted at a spur of
moment on account of trifling issue of mis-behaviour with the accused
no.2 Dwarkabai at the hands of deceased Shubham. Unfolded
Rgd.
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101
evidence discloses that when the accused nos. 1 and 3 received a
telephone call from accused no.2, they lost temper, and in retaliation,
assaulted the deceased by the weapons which they brought and killed
all four. The circumstances do not indicate that life imprisonment is
altogether inadequate punishment compelling the Court to arrive at a
conclusion that alternative mode would result into failure of justice.
In above circumstances, in our opinion, the present case does not fall
within the category of ‘rarest of rare’ case warranting the death
penalty. Though, we acknowledge the gravity of the offence, we are
unable to satisfy ourselves that the case would fall into the exceptional
category. The offence has undoubtedly been committed, which can
be said to be brutal, but, does not warrant a death sentence. There is
no material to answer with certainty that there are no chances of
reformation. Thus, we are of the considered opinion that it is a fit case
for commutation of sentence.
98. Imposition of punishment is a delicate task of every
criminal trial. The variety of circumstances needs to be considered
Rgd.
Judgment con4.24
102
while imposing punishment. We have elaborately discussed above
that the case does not fall in the category of ‘rarest of rare category’,
thus, capital punishment is unwarranted. The alternate punishment
provided under the statute for committing murder is life
imprisonment. However, in certain cases Constitutional Courts may
feel that mere life imprisonment is an inadequate sentence. In that
perspective, we have independently examined the case of accused no.1
Haribhau and accused no.3 Shyam with its peculiarities.
99. It emerges from the evidence that accused no.3 Shyam
has commenced the attack which he continued till the last victim. His
role was crucial in assaulting all four deceased by means of dangerous
weapon. At the time of commission of offence, Shyam was 25 years of
age and acted in cruel manner. We are sure that mere imprisonment
for life is inadequate punishment in accordance with the atrocities
committed by the accused no.3 Shyam. Certainly, punishment of life
imprisonment may prove too grossly inadequate as to the gravity of
the offense for which the accused no.3 Shyam has been sentenced. In
Rgd.
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103
reported case of Swamy Shraddananda vs. State of Karnataka (2008)
13 SCC 767, the Supreme Court took a note of above situation and
ruled that there can be a third category of sentence without remission.
Recently, in case of Ravinder Singh vs. State of Govt. of NCT of Delhi
(2023) AIR (SC) 2220, the same issue was dealt by the Supreme
Court and ruled that the High Courts are empowered to impose a
modified punishment without remission through out, or for specified
period. Therefore, this Court can always exercise the power to impose
a modified or fixed-term of sentence by directing that a life sentence
shall be of a fixed period of more than 14 years. Undoubtedly accused
no.3 Shyam deserves for this third kind of punishment to meet the
ends of justice.
100. The case of accused no.1 Haribhau lies on some what
different footing, as he did not initiated the attack, but, joined his son
Shyam. Secondly Haribhau was aged 55 years at the time of
occurrence and now he is 65 years of age. The report submitted by
the Jail Authorities, Probation Officer and Psychological Expert
Rgd.
Judgment con4.24
104
indicates that Haribhau is suffering from different ailments and was
treated in jail hospital. Considering said distinguishing feature, we
deem it appropriate to award him the alternate mode suggested by the
statute for the offence of murder, i.e. to under go imprisonment for
life.
101. On careful consideration, we are of the considered opinion
that the present case does not fall in the category of ‘rarest of rare’ case
warranting the death penalty. For the aforesaid reasons, accused no.1
Haribhau is liable for alternate punishment of life imprisonment, as
provided under law. However, considering that the accused no.3
Shyam has brutally attacked four innocents for no reason, allowing
him to be released after 14 years of term is tantamount to trivializing
the very purpose of sentencing policy. The ends of justice would be
sufficiently served if the life imprisonment of the accused no.3 Shyam
is for a minimum of 30 years of actual incarceration. We, accordingly,
convert his death penalty into imprisonment of life, without remission
for the period of 30 years of actual imprisonment.
Rgd.
Judgment con4.24
105
102. The trial Court has convicted all the accused for the
offence punishable under Section 506 (II) of the Indian Penal Code.
There is no material to constitute said offence against accused no.2
Dwarkabai.
103. In conclusion we hold that the conviction rendered by the
trial Court to the extent of accused no.2 Dwarkabai is unsustainable in
law under all charges. However, we maintain the finding of the trial
Court to the extent of holding accused no.1 Haribhau and accused
no.3 Shyam guilty of the offence punishable under Section 302 of the
Indian Penal Code. We also hold that the trial Court seriously erred in
understanding the principle of ‘rarest of rare’ case as delineated by the
Supreme Court in catena of decisions, ultimately misdirecting itself,
by awarding the extreme penalty. Therefore, we commute the death
sentence of both the accused i.e. accused no.1 Haribhau and accused
no.3 Shyam. We convert the sentence of accused no.1 Haribhau into
life imprisonment, whilst convert the sentence of accused no.3 Shyam
to undergo life imprisonment without remission for a period of 30
Rgd.
Judgment con4.24
106
years of actual imprisonment.
104. The trial Court has imposed fine of Rs.50,000/- on both
i.e. accused no.1 Haribhau and accused no.3 Shyam for which we see
no justification. We reduce the fine amount to the extent of
Rs,10,000/- each with default clause as per the trial Court, for the
offence punishable under Section 302 of the Indian Penal Code.
105. Accused no.2 Dwarkabai is acquitted of all charges. She
be released forthwith, if not required in any other offence. The fine
amount, if any, paid by her, be refunded.
106. We maintain rest part of the impugned order as it stands.
107. We decide the Confirmation Reference accordingly and
partly allow the criminal appeal in the above terms.
108. Muddemal property be dealt with in accordance with the
Rules.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 13/11/2024 19:51:18