Bombay High Court
The State Of Maharashtra vs Sunil Rama Kuchkoravi on 1 October, 2024
Author: Prithviraj K. Chavan
Bench: Revati Mohite Dere, Prithviraj K. Chavan
2024:BHC-AS:38777-DB
Digitally
signed by 901-1-2021-CONF-jud.=.doc
UDAY
UDAY SHIVAJI
SHIVAJI JAGTAP
Uday S. Jagtap
JAGTAP Date:
2024.10.01
17:16:36
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO. 1 OF 2021
The State of Maharashtra .. Appellant
Versus
Sunil Rama Kuchkoravi,
presently lodged in Yerawada
Central Prison, Pune .. Respondent
....
Mrs. P.P. Shinde, APP for the appellant - State
Dr. Yug Mohit Chaudhry for the respondent
....
CORAM : REVATI MOHITE DERE &
PRITHVIRAJ K. CHAVAN, J.J.
RESERVED ON : 8th AUGUST, 2024.
PRONOUNCED ON : 1st OCTOBER, 2024.
JUDGMENT :
– (Per Prithviraj K. Chavan, J.)
1. The Additional Sessions Judge, Kolhapur has made a
reference under Section 366 (1), Code of Criminal Procedure for
confirmation of death sentence awarded by him to the convict in
Sessions Case No. 6 of 2018, which was decided on 08.07.2021.
2. The Additional Sessions Judge convicted the accused –
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Sunil Rama Kuchkoravi (for short ‘convict’) of the offence
punishable under Section 302 of the Indian Penal Code and
sentenced him to hang by neck, till he is dead. A fine of
Rs.25,000/- was also imposed and in default, he was directed to
undergo Rigorous Imprisonment for six months.
3. Admittedly, the convict has not preferred an appeal against
his conviction and sentence of death.
4. This is a most brutal, barbaric and gruesome murder of a
60 years old mother by her son on the fateful day of 28.08.2017
at Makadwala Vasahat, Kolhapur. The prosecution case is
described as under.
5. Deceased Yallava alias Chavali Appa has two sons, namely
Sunil (convict) and Raju. Both are married and reside separately
at Makadwala Vasahat, Kolhapur. Convict was accustomed to
consume liquor. He used to harass his wife. The wife could not
tolerate harassment at the hands of the convict and, therefore,
she deserted him with three daughters and a son and came to
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Mumbai. Deceased Yallava was a widow surviving on the
pension of her husband to the tune of Rs.4,000/- per month.
Since the convict was residing alone, Yallava used to provide him
two square meals. However, the convict used to beat her on
account of pension amount, which it seems, he used to demand.
6. On the fateful day of 28.08.2017, PW-6 Rakshata, an eight
year old girl, who was playing in front of the house of the
convict, first noticed Yellava murdered in her house and her dead
body lying in a pool of blood. She also noticed convict standing
over there, whose hands, clothes as well as mouth were smeared
with blood. PW-6 Rakshata made a hue and cry and rushed to
the house of the brother of the convict PW-4 Raju. PW-4 Raju
rushed to the spot of incident only to witness the horrendous
crime, wherein his mother was lying on the floor naked, in a
pool of blood and her body parts i.e. liver, intestine, heart, rib
and breast were eviscerated outside. Trail of blood was found
flowing till the adjoining house of the convict. He also noticed
two knives and one Sattur (Chopper) stained with blood, lying
on the spot. By that time, the police arrived at the scene of
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occurrence. PW-4 Raju slapped convict – Sunil twice out of
extreme anger and anguish. The crowd over there apprehended
the convict, who was later taken into the custody by the Police.
7. PW-11 Bhausaheb Malgunde, Police Sub-Inspector, then
attached to the Shahupuri Police Station, Kolhapur, who arrived
at the scene, had noticed that the heart of the deceased Yallava
was kept in a platter and ribs were inserted in an oil bottle. Rest
of the internal body parts were also found over there. PW-11
Malgunde also noticed blood stained white coloured blouse and
petticoat, white coloured T-shirt with green strips, bed sheet,
Godhadi (quilt) and a gown.
8. The Investigating Officer summoned panch witnesses. The
weapons of offence as well as the blood stained clothes were
duly seized under the panchanama. An inquest panchanama was
also drawn at Exhibit 30. A spot panchanama was drawn in the
presence of two respectable panch witnesses, which is proved at
Exhibit 31. The dead body was forwarded for autopsy. The
autopsy report is proved at Exhibit 63. The seized muddemal
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property was forwarded for chemical analysis to the Forensic
Science Laboratory.
9. PW-12 Sanjay Shivajirao More, the then Police Inspector
attached to Shahupuri Police Station, Kolhapur, conducted
further investigation into the crime. He had sealed the crime
scene. In order to save the life of the convict from the furious
mob, he shifted the convict to the police station.
10. Brother of the convict PW-4 Raju lodged a report, on the
basis of which C.R. No. 347 of 2017 came to be registered
against the convict. The convict was arrested vide arrest
panchanama Exhibit 48. At the time of arrest, the convict had
only a chocolate coloured bermuda on his person with blood
stains. The same was seized under the seizure panchanama at
Exhibit 49.
11. The convict was referred for medical examination at
C.P.R. Hospital, Kolhapur. Opinion of the Doctor was sought on
10 different points. The said letter is proved at Exhibit 65.
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Blood sample, nail clippings as well as hand and foot wash of the
convict were collected and forwarded to the Forensic Science
Laboratory, in a sealed condition.
12. Photographs of the scene of occurrence were snapped by a
photographer, including the photographs of dead body, internal
organs and the spot of incident.
13. After the investigation, a charge-sheet came to be filed
against the convict in the Court of JMFC. Meanwhile, the
Investigating Officer issued a letter to the Land Records Office
for obtaining the map of the spot, which is proved at Exhibit 67.
The Investigating Officer collected FSL’s report on 07.09.2017
qua the weapons of offence used. The reports are proved at
Exhibit 42 to Exhibit 45.
14. In order to ascertain the motive in committing the offence,
a letter was issued to the Chief Officer, Employees Provident
Fund, on 19.09.2017, which is proved at Exhibit 69. This is in
light of the fact that the convict used to harass the deceased for
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the pension amount. The report in respect of DNA was
forwarded by the Forensic Science Department, Kolhapur qua
the blood samples, foot and hand wash and other articles. The
same was received and is at Exhibit 53.
15. Statements of some of the witnesses came to be recorded
by the Judicial Magistrate First Class under Section 164 of the
Cr.P.C. As per the CA report at Exhibit 75, blood stains
appeared on the body, clothes, nail clippings, bermuda of the
convict as well as the spot of incident and over the weapons,
were matched.
16. After investigation, the Investigating Officer laid a charge-
sheet in the Court of the JMFC. After committal of the case to
the Sessions Court, a charge was framed in terms of Exhibit 3.
It was read over and explained to the convict, to which, he
pleaded not guilty and claimed a trial.
17. To substantiate its case, prosecution examined 12
witnesses, coupled with documentary evidence in the form of
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reports of the FSL, seizure, inquest as well as spot panchanamas
and statements of some of the witnesses under Section 164 of
the Cr.P.C. etc.
18. The Additional Sessions Judge, Kolhapur having
meticulously gone through the facts and evidence and after
giving full opportunity to the prosecution and the defence,
found that the prosecution has proved beyond all reasonable
doubts that the convict had committed most gruesome, barbaric
and horrendous murder of his mother by means of a big Sattur
and two knives. He eviscerated her body parts which he was
about to eat. The learned Judge in the judgment, has considered
not only the nature of evidence and the mode and manner in
which the convict had committed the murder of his mother, but
also made elaborate discussion on the motive, defence of the
convict as to intoxication, insanity, false implication and delay in
lodging an FIR etc.
19. The Additional Sessions Judge has also drawn a balance-
sheet of aggravating and mitigating circumstances as enunciated
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in several decisions of the Supreme Court, especially in view of
the decisions in the case of Bachan Singh Vs. State of Punjab1;
Machhi Singh & Ors. Vs. State of Punjab 2 as well as in the case
of Shabnam Vs. State of UP3. The Additional Sessions Judge
had given pre-sentence hearing as mandated in Section 235(2) of
the Cr.P.C. to both the prosecution and the defence and had
concluded that convict deserves death penalty and, therefore,
awarded sentence of death.
20. We heard Dr. Yug Chaudhry, learned Counsel for the
convict and Mrs. P.P. Shinde, learned APP for the respondent
State at a considerable length. We also heard the convict for a
considerable duration, through video conferencing.
21. Although, no appeal has been preferred by the convict
against his conviction and sentence of death, nevertheless, it
would be expedient to reassess and evaluate the evidence
adduced by the prosecution in the trial Court to substantiate his
guilt, apart from the fact as to whether sufficient reasons have
1 AIR 1980, SC 989
2 1983 AIR 957
3 (2015) 6 SCC 632
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been assigned to award death sentence.
22. In order to bring home guilt of the convict, prosecution
examined 12 witnesses. The case is based on circumstantial
evidence. Apart from oral testimonies of 12 witnesses,
prosecution has placed reliance on several documents in the
form of inquest panchanama Exhibit 30, spot panchanama
Exhibit 32 etc.
23. Indisputably, deceased Yallava died a homicidal death. The
testimony of PW-5 Dr. Nikhil Jagtap, who conducted the
autopsy indicates that in column no.17 of the autopsy report at
Exhibit 41, he had described following surface injuries :-
“1. Cut throat incised injury of length 7 cm., maximum
breadth 3 cm in center, neck cavity deep, obliquely
present over anterior neck at thyroid cartilage level, with
tailing on right end and right end at higher level than left
end. On dissection of neck thyroid cartilage cleanly cut
at the vocal cord, both carotid arteries and jugular veins
cleanly cut at thyroid cartilage level, esophagus and
anterior neck muscles with other soft tissues cleanly cut
at the level of thyroid cartilage level, below trachea and
other soft tissues absent.
2. Incised injury of length 34 cm and maximum
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cutting right breast, sternum and ribs on right side
exposing chest and abdominal cavity. Portion of 6 th, 7th
and 8th ribs on right side not present. All thoracic and
abdominal organs already eviscerated outside (brought in
separate plastic bags by police).
3. Incised injury of 15 cm x 4 cm, muscle deep
present over upper part of right inguinal region medial
aspect with infiltration of blood in margins.
4. Incised injury of 12 cm x 4 cm, muscle deep
present over upper part of right thigh medial aspect with
infiltration of blood in margine.
5. Two incised injuries of 4 cm x 1 cm, muscle deep
present horizontally over middle part of pubic region
with infiltration of blood in margins.”
On internal examination, he found that all injuries
(except second injury) are antemortem in nature.
According to him, haemorrahagic shock due to multiple
injuries was the probable cause of death of Yallava.”
24. The defence could not even slightly rebut the testimony of
PW-5 Dr. Nikhil Subhash Jagtap. The witness ruled out any
possibility of the death being either suicidal or accidental.
Rather, there is no question of disputing the fact of a homicidal
death of the deceased. The cause of Death Certificate Exhibit 40
and the Post Mortem Notes Exhibit 41 as well as inquest
panchanama Exhibit 30 established that the deceased Yallava
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died a homicidal death. The autopsy report Exhibit 41 also
indicates following thoracic injuries:-
“20. Thorax –
a. Walls, ribs, Shows injury as mentioned in
cartilages column no.7.
b. Pleura Thoracic cavity empty and
only contains 500 ml blood
c. Larynx, Trachea Trachea cleanly cut below
and Bronchi thyroid cartilage.
d. Right Lung Both lungs pale cleanly cut &
eviscerate along with trachea
e. Left lung and brought in separate
plastic bag.
f. Pericardium Lacerated at places
g. Heart with Heart cleanly cut &
weight eviscerate at the level of arch
of aorta and brought in
i. Additional remark separate plastic bag.
21. Abdomen -
Walls Cut at places as mention in
column no.17.
Peritoneum
Cavity Cavity empty
Buccal cavity, teeth, Intact
tongue and pharynx
Oesophagus Pale cut at the level of thyroid
cartilage
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Stomach and its Small and large intestines
contents already eviscerated and
brought separately in plastic
Small intestine and bags.
its contents
Large intestine and
its contents
Liver (with wt.) and All abdominal organs
gall bladder eviscerated and brought in
separate plastic bag. All
Pancreas and organs were pale. Left kidney
Suprarenal absent.
Spleen with weight
Kidneys with weight
Bladder Empty
Organs of generation Intact. Uterus empty
Additional remark Nil
with where possible,
medical officer's
deduction from the
state of the contents
of the stomach as to
time of death and
last meal.
State which viscera 1) One sealed pocket
(if any) have been containing one bottle of
retained fro chemical blood and one gauze piece
examination and also containing blood for
quote the numbers grouping.
on the bottles Pocket sealed, labeled and
containing the same. handed over to police
22. Spine and Spinal Intact not opened.
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Opinions as to the cause of death:-
“Haemorrhagic shock following multiple
injuries (Unnatural)”. ”
25. As already stated, the prosecutions case revolves around
circumstantial evidence. The trial Court has culled out following
circumstances:-
i. The deceased was last seen together with the convict.
ii. The convict had a motive to commit murder.
iii. It was a homicidal death.
iv. Weapons of offence stained with blood were recovered at
the scene of occurrence itself immediately after the
incident. Blood stained clothes of the deceased, convict
and other articles forensically proved that it was the
convict and none other, responsible for the death of the
deceased and; lastlyv. The over-all conduct of the convict.
26. PW-2 Mayur, PW-4 Raju and PW-6 Rakshata are the
natural and chance witnesses, who have been examined by the
prosecution in order to substantiate its case. As per the
testimony of PW-2 Mayur, he heard a quarrel between the
convict and the deceased on the fateful day at about 12 O’clock.
Thereafter, around 2.00 p.m. PW-6 Rakshata who was in 8 th
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standard at the relevant time testified that she was playing near
the house of the convict. She further testified that Sunil
committed murder of “Chavali Appa” (deceased). She is almost
a direct witness, in the sense, she is as good as an eye-witness,
though she did not witness the actual incident. We say so
because by the time she reached the spot, the convict had almost
eviscerated the inner parts of the body of the deceased and was
about to proceed further to place some of the parts in the
kitchen on a stove with chilli powder and salt. It can be easily
inferred from all the circumstances as what might have been
cooking in his mind. She noticed blood stains on the person of
the convict.
27. PW-2 Mayur heard sound of the convict and Yallava
around 12.00 pm. He also noticed deceased lying in a pool of
blood. PW-4 Raju, who reached the spot immediately after
getting the information about the act of the convict, noticed him
standing on the spot itself with blood smeared Bermuda. His
hands were also smeared with blood. There is hardly any cross-
examination of any of the witnesses indicating possibility of any
third element or third person entering into the house of the
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deceased and committing her murder in such a brutal manner. It
is testified by these witnesses that the hands, body and face of
the convict was smeared with blood. Even PW-6 Rakshata, who
was playing in the courtyard of the house of the convict, entered
inside only to notice the deceased lying in a pool of blood and
the convict was standing beside her.
28. We do not find anything, even remotely, to suspect the
testimonies of any of these witnesses, who had seen the deceased
in the company of the convict before her death. We shall
discuss the scene of occurrence, inquest and other material
evidence on record in context with the duration of time which
must have been taken by the convict to commit the murder of
the deceased, which perhaps lasted for about two hours.
29. Evidence of Investigating Officer PW-12 Sanjay More,
who reached the spot of incident immediately after receiving the
information, indicates that the convict was apprehended by the
mob and in order to save his life from the furious crowd, he was
immediately taken to the police station. It has not been seriously
disputed by the defence that the convict always had a quarrel
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with the deceased on account of money. The convict, therefore,
had a requisite motive to eliminate his mother.
30. There is no question of PW-6 Rakshata being tutored by
any one merely because her evidence came to be recorded after a
span of 1½ years from the date of incident. The testimony of
this witness is quite natural, acceptable and believable as neither
she nor any other witness had any axe to grind against the
convict. This is especially in the light of the fact that before
recording the evidence of PW-6 Rakshata, the learned trial Judge
had ascertained the fact that she understood the sanctity of oath.
The Investigating Officer – PW-12 More had assigned
satisfactory reason as to why there was delay in recoding the
statement of PW-6 Rakshata. The reason assigned by the
Investigating Officer is that after the incident, the family
members of PW-6 Rakshata shifted her to an unknown place in
view of the gruesome murder of the deceased by the convict and
she being the first witness to witness the convict standing on the
spot near the dead body with blood smeared clothes, face and
body. Obviously, this could have adversely impacted the mind
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of a small child and, therefore, she was taken away by the family
members. Merely because PW-6 Rakshata was eight years old at
the relevant time, does not ipso facto mean that her testimony
should be viewed with some suspicion, especially in view of the
other facts and circumstances proved by the prosecution on
record.
31. There is one more very crucial angle to this case. The
circumstances further indicate pathological cannibalism of the
convict. Pathological cannibalism is rooted in some form of
psychopathology i.e. at the core of the person’s motivation such
as, someone who is actually psychotic or committing the act of
cannibalism to act out paraphilia. It is in the realm of
pathological cannibalism that most criminal acts of cannibalism
are discussed. The act of the convict was quite close to
cannibalism. We do not wish to venture much into that arena
for want of sufficient investigation in that regard. Nevertheless,
the overall circumstances speak volumes while considering the
aspect of reformation or rehabilitation of the convict. Be that as
it may.
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32. Turning to the spot of incident, recovery of the weapons
and other articles by the Investigating Officer, the prosecution
has tendered and proved the following documentary evidence:-
“1. Inquest panchanama (Exh.30)
2. Spot panchanama (Exh.31)
3. Complaint by PW-4 Raju, dated (Exh.37)
28.08.2017
4. Cause of death certificate by Dr. Nikhil (Exh.40)
Jagtap, dated 28.08.2017
5. Post Mortem Notes (Exh.41)
6. Report in respect of weapon of offence (Exh.42)
i.e. knife
7. Report in respect of another weapon (Exh.43)
(Sattur)
8. Report in respect of another knife (Exh.44)
9. Opinion of Dr. Nikhil Jagtap in respect (Exh.45)
of Weapon
10. Arrest panchanama (Exh.48)
11. Panchanama in respect of seizure of (Exh.49)
bermuda of the accused
12. Muddemal forwarding letter to the C.A. (Exh.51)
Office, Pune dated 13.09.2017
13. DNA sample letter dated 13.09.2017 to (Exh.53)
the C.A. Office, Pune
14. Form B ie. Police Report to the Civil (Exh.63)
Surgeon with the dead body
15. Letter to Medical Officer, CPR Hospital, (Exh.65)
Kolhapur for medical examination of the
accused
16. Opinion letter to Forensic Department of (Exh.66)
Medication College, CPR Hospital,
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17. Letter to Land Record Office, Kolhapur (Exh.67)
for map of spot of incident
18. Letter to Kolhapur Municipal (Exh.68)
Corporation for obtaining Death extract
of the deceased
19. Letter to Chief Officer, Employee (Exh.69)
Provident Fund
20. Letter to MSDCL Co. for continuty of (Exh.70)
electricity on the Spot
21. C.A. report dated 07.02.2018 in respect (Exh.71)
of Godhadi, cloth of deceased, blood
sample from the spot, knife and barmoda
of the accused
22. C.A. report dated 13.12.2018 (Exh.72) &
(Exh.73)
23. C.A. report dated 30.11.2019 (Exh.74)
24. C.A. report dated 16.08.2019 (Exh.75)
25. Pursis filed by the prosecution to close (Exh.77)”
the evidence
33. PW-1 Guruprasad Jadhav, PW-3 Navnath Davari and PW-
11 Bhausaheb Malgunde – Police Sub-Inspector, are the witnesses
of spot panchanama Exhibit 31. As per the evidence of PW-1
Guruprasad, the spot of incident was shown by the Police Officer
and accordingly a panchanama was drawn. This witness noticed
a knife lying on the ground. He also noticed inner body parts
scattered on the floor as well as on the platform of the kitchen.
Some inner body parts were kept in an utensil. One more knife
was found placed on the kitchen platform. Similarly, PW-3
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Navnath spoke in tune with PW-1 Guruprasad. He added that
thoracic portion of the deceased was cut. Blood was found all
over the floor surrounding the dead body. One quilt stained
with blood, a knife and T-shirt were also found in the first room.
In the kitchen, this witness noticed heart of the deceased placed
on the platform of the kitchen alongwith salt and chilli powder
kept near the utensil. He corroborated the testimony of PW-1
Guruprasad that there was one more knife in the kitchen. The
witnesses also noticed an oil bottle in the kitchen, wherein piece
of rib was inserted. The Investigating Officer collected the blood
samples and seized all the articles in the presence of these
witnesses. Both these witnesses identified all the articles during
trial. Photographs of the scene of occurrence were also taken.
34. The defence has not seriously disputed drawing of the spot
as well as recovery panchanama. Similar is the evidence of PW-
11 Malgunde – Police Sub-Inspector, who has reiterated in his
cross-examination that three knives, a gown, petticoat, blous, T-
shirt, bed-sheet, quilt all stained with blood were seized in the
presence of panch witnesses. Both the witnesses also noticed one
Sattur, a knife with wooden handle stained with blood near the
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cupboard.
35. Chapter VII of the Indian Evidence Act deals with
production and effect of evidence. Section 101 contemplates
that whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which he
asserts, must prove that those facts exist. When a person is
bound to prove the existence of any fact, it is said that the
burden of proof lies on that person. It is a fundamental principle
of criminal jurisprudence that an accused is presumed to be
innocent and, therefore, the burden lies on the prosecution to
prove the guilt of the accused beyond reasonable doubt. It
would be apposite to extract the relevant part from Dahyabhai
Chhaganbhai Thakkar Vs. State of Gujarat 4, which reads thus :-
“5. …..
Section 101 : Whoever desires any Court to give
judgment as to any legal right or liability dependent on
the existence of facts which he asserts, must prove that
those facts exist.
When a person is bound to prove the existence of
any fact, it is said that the burden of proof lies on that
person.
It is fundamental principle of criminal
jurisprudence that an accused is presumed to be innocent4 AIR 1964, SC 1563
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prove the guilt of the accused beyond reasonable doubt.
The prosecution, therefore, in a case of homicide shall
prove beyond reasonable doubt that the accused caused
death with the requisite intention described in S. 299 of
the Indian Penal Code. This general burden never shifts
and it always rests on the prosecution. But, as S.84 of
the Indian Penal Code provides that nothing is an
offence if the accused at the time of doing that act, by
reason of unsoundness of mind was incapable of
knowing the nature of his act or what he was doing was
either wrong or contrary to law. This being an
exception, under S.105 of the Evidence Act the burden
of proving the existence of circumstances bringing the
case within the said exception lies on the accused, and
the court shall presume the absence of such
circumstances. Under S.105 of the Evidence Act, read
with the definition of “shall presume” in S. 4 thereof, the
court shall regard the absence of such circumstances as
proved unless, after considering the matters before it, it
believes that said circumstances existed or their existence
was so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that they did exist. To put it in other words,
the accused will have to rebut the presumption that such
circumstances did not exist, by placing material before
the court sufficient to make it consider the existence of
the said circumstances so probable that a prudent man
would act upon them. The accused has to satisfy the
standard of a “prudent man”. If the material placed
before the court, such as, oral and documentary
evidence, presumptions, admissions or even the
prosecution evidence, satisfies the test of “prudent man”,
the accused will have discharged his burden. The
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raise a reasonable doubt in the mind of a judge as
regards one or other of the necessary ingredients of the
offence itself. It may, for instance, raise a reasonable
doubt in the mind of the judge whether the accused had
the requisite intention laid down in S. 299 of the Indian
Penal Code. If the judge has such reasonable doubt, he
has to acquit the accused, for in that event the
prosecution will have failed to prove conclusively the
guilt of the accused. There is no conflict between the
general burden, which is always on the prosecution and
which never shifts, and the special burden that rests on
the accused to make out his defence of insanity.”
(emphasis supplied)
36. It would be quite crucial to state something about the
coloured photographs taken at the scene of occurrence by a
photographer namely Anjum Shaikh on the day of incident.
These are proved at Exhibit 91 to Exhibit 96. There are eight
photographs of the deceased. Two photographs of both the
breasts which had been chopped off the body by the convict and
two photographs indicating blood on the floor with some
internal body parts. A common man would find it quite
difficult, distressing, frightening and unsettling even to have a
glance at the photographs, which would speak more than
thousand words. Words would fall short to describe the
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grotesque, brutal, inhuman and most cruel act committed by the
convict with his mother.
37. All the seized articles have been sent for chemical analysis
to the Forensic Science Laboratory, through Police Head
Constable PW-8 Tanaji Chougule and PW-9 Nathuram Gaikwad.
Both these witness have testified about the same. Both these
witnesses carried the muddemal articles to the Forensic Science
Laboratory at Kolhapur and Pune respectively. There is no
dispute or any reason to doubt that all the sealed muddemal
properties have been duly forwarded to the FSL in a sealed
packet and without any scope of tampering or manipulating any
of the articles.
38. From the chemical analyzer’s report Exhibit 71, the
prosecution has proved that the quilt, gown, blouse, petticoat,
half T-shirt, bermuda, Sattur, knives, Cotton Swabs, Earth
were stained with human blood. The CA report is proved at
Exhibit 71.
39. The report of the Chemical Analyzer dated 13.12.2018
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Exhibit 72 forwarded by the Office of the Chemical Analyzer,
Pune, in respect of gown, bermuda, half T-shirt, Sattur, knives
shows that the DNA profiling has been done in respect of the
blood stains obtained from the aforesaid articles, which were
then referred to the Regional Forensic Science Laboratory, Pune
(RFSL, Pune). Exhibit 73 forwarded by the RFSL, Pune is in
respect of nails swab, hand wash, foot wash, vomits of the
convict and the blood on the gauze piece. The report forwarded
by the FSL, Pune Exhibit 75 reveals following results after the
analysis :-
“Interpretation :-
1) DNA profiles obtained from Ex.1 Blood stain from
Ex.2 (Gown), Ex.4 Blood stain from Ex.6 (Knife), Ex.5
Blood scrapings from Ex.7 (Knife), Ex.6 Blood scrapings
from Ex.8 (Sattur) and Ex.8 Blood stained cuttings from
Ex.12 (Bermuda) are identical and from one and the
same source of female origin and matched with DNA
profile obtained from Ex.7 Blood on gauze piece of
Yallava Rama Kuchkoravi.
2. Mixed DNA profiles obtained from Ex.1 Nails of
Sunil Rama Kuchkoravi is identical and matched with
DNA profile obtained from Ex.7 Blood on gauze of
Yallava Rama Kuchkoravi at all loci and DNA profile
obtained from Ex.1 Blood stain prepared from Ex.1
Blood of Sunil Ratna Kochkoravi at 20 loci.
Analysis started on : 04/12/2018
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Analysis completed on : 30/12/2018″
40. Thus, unchallenged CA report strengthens, substantiates
and proves that gown, two knives, Sattur which were seized
from the spot of incident and the bermuda of the convict with
blood stains, matched with the blood stains of the deceased
Yallava. The CA report further proved that the DNA profile
from the nails of convict are identical with the blood on the
gauze piece of Yallava.
41. It can thus be seen from the evidence of the prosecution
witnesses and the CA report that the convict used three different
weapons in brutally murdering his mother – Yallava in a cold
blooded manner. It would also be pertinent to describe the
weapons in order to understand and evaluate not only the
impact of those weapons, but the manner in which, the convict
must have used different weapons while committing the offence,
which perhaps lasted for more than two hours. It also reflects
as to how the convict had already preplanned and premeditated
a design in his mind as to how he would dissect the body of the
deceased after killing her brutally. A bare look at the
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photographs would make the picture clear.
42. In that context, evidence of PW-4 Dr. Nikhil Jagtap would
be relevant to whom the weapons were sent by the Investigating
Officer Shri. More. The reports of PW-5 Dr. Nikhil Jagtap are
proved at Exhibit 42 to Exhibit 44. He testified that Sattur and
knives are sharp edged weapons. Sattur has a heavy sharp edge
while both the knives were of sharp edged. He opined that the
injuries described by him in the autopsy report are possible by
means of all these weapons. According to this witness, the chop
injuries, incised injuries, the cut throat injury, fracture of bones,
linear abrasion, all could be caused by a Sattur.
43. It reveals from the record that during the trial, the defence
had raised a point that the offence has been committed by the
convict under the influence of liquor. The prosecution did not
produce medical certificate, which could be a missing link in the
chain of circumstances and, therefore, the convict is entitled to a
benefit of doubt. The record reveals and it has come in the
evidence as well as in the statement of the convict under section
313 of the Cr.PC. that he was addicted to liquor. However,
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there has been no suggestion to any of the prosecution witnesses
that at the time of his arrest, the convict was under the influence
of liquor. There is neither any whisper or suggestion to any of
the witnesses regarding the convict being under the influence of
liquor at the relevant time, in view of Section 85 of the Indian
Penal Code. Even, there is no defence evidence adduced by the
convict to substantiate the said fact. Interestingly, it is not the
defence of the convict in view of Section 85 of the I.P.C. that he
was intoxicated or was forced to consume liquor without his
knowledge or against his will. Rather, it seems that he had
voluntarily consumed liquor and, therefore, he is not entitled to
avail the said defence which is ex facie unacceptable, improbable
and unbelievable. In that context, we had already discussed the
ratio laid down by the Supreme Court in the case of Dayabhai
Chhaganbhai Thakkar hereinbefore.
44. It is also evident from the impugned judgment that the
defence has also raised a ground of unsoundness of his mind in
view of Section 84 of the IPC. However, there is absolutely no
material placed on record in that regard. Section 84 of the IPC
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reads thus :-
“84. Act of a person of unsound mind – Nothing is an
offence which is done by a person who, at the time of
doing it, by reason of unsoundness of mind, is incapable
of knowing the nature of the act, or that he is doing
what is either wrong or contrary to law.”
45. While determining whether the convict is entitled to the
benefit of Section 84 of the Code, the Court has to consider the
circumstances as that preceded, attended or followed the crime
but it is equally true that such circumstances must be established
by credible evidence. The trial Court rightly rejected the said
plea for want of any evidence or material during trial. Even,
there is no suggestion put to any of the prosecution witnesses in
that regard.
46. At this stage, it would be advantageous to look into a
decision of the Supreme Court in case of Seralli Wali
Mohammed V. State of Maharashtra5. The ratio decidendi is
that it would be most dangerous to admit the defence of insanity
upon arguments derived merely from the character of the crime.
The mere fact that no motive was proved as to why the convict
5 AIR 1972, SC 2443
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murdered his wife and child nor the fact that he made no
attempt to run way when the door was broken open, could not
indicate that he was insane or that he did not have the necessary
mens rea for the commission of the offence. The convict in that
case was charged under section 302 of the IPC for having caused
the death of his wife and a female child with a chopper. While
rejecting his plea of insanity the Supreme Court observed that
the law presumes every person of the age of discretion to be sane
unless the contrary is proved.
47. In the case of Ravinder Kumar and Anr. Vs. State of
Punjab6, the Hon’ble Supreme Court held that :-
“No doubt it is a sound principle to remember that every
criminal act was done with a motive but its corollary is
not that no criminal offence would have been committed
if the prosecution has failed to prove the precise motive
of the accused to commit it. When the prosecution
succeeded in showing the possibility of some ire for the
accused towards the victim, the inability to further put
on record the manner in which such ire would have
swelled up in the mind of the offender to such a degree
as to impel him to commit the offence cannot be
construed as a fatal weakness of the prosecution. It is
almost an impossibility for the prosecution to unravel6 (2001) 7 SCC 690
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offender towards the person whom he offended.”
(emphasis supplied)
48. The prosecution herein, has proved the motive behind the
offence, as already discussed. Similarly, from the entire
circumstances on record, the prosecution has succeeded in
showing that the convict had some ill-intention towards his
mother and, as such, the said ill-intention swelled up in his mind
to such a degree as to impel him to commit the murder of the
deceased in such a brutal manner. This cannot be construed as a
fatal weakness of the prosecution. The Supreme Court, has,
therefore, rightly observed that it is almost impossible for the
prosecution to unravel a full dimension of the mental disposition
of an offender towards the person whom he offended.
49. By taking a false defence in view of Section 85 of the
Indian Penal Code, the convict impliedly admitted his guilt.
Such an admission in a criminal proceeding cannot be construed
as a confession, nevertheless, it can be said to be proved on
behalf of the convict himself and he is estopped from denying
the same. It could be said to be the best evidence against the
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convict himself, though not conclusive. It shifts the onus upon
the maker on the principle that what he himself admits to be
true, may be reasonably presumed to be true unless the
presumption is rebutted.
50. The trial Court, after having taken into consideration all
the facts, evidence and circumstances on record concluded that
the prosecution has proved its case beyond reasonable doubt and
having drawn a balance-sheet of aggravating and mitigating
circumstances, reached a conclusion that despite giving
maximum weightage to the mitigating circumstances,
aggravating factors out-weighed the mitigating circumstances
and, therefore, in his wisdom, awarded death penalty.
51. At the cost of repetition, we deem it necessary to elaborate
a bit on Section 105 of the Indian Evidence Act. Essentially, in
the case at hand, the convict had attempted to bring his case
within the purview of Section 105 of the Indian Evidence Act in
view of Section 85 of the Indian Penal Code. It was, therefore,
incumbent upon the convict to discharge the said burden in view
of Section 105 of the Evidence Act. The law contemplates that
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the Court shall presume the absence of such circumstances. If
Section 105 of the Indian Evidence Act is read with the
definition of “shall presume” in Section 4 thereof, the Court
shall regard the absence of such circumstances as proved unless,
after considering the matters before it, it believes that the said
circumstances existed or their existence was so probable that a
prudent man ought, under the circumstances of the particular
case, to act upon the supposition that they did exist. In the case
at hand, the convict failed to rebut the said presumption as no
material has been placed by him in that regard, indicating that he
had been intoxicated or was forced to consume liquor without
his knowledge or against his will. There is absolutely nothing to
hold that the convict was intoxicated or under the influence of
liquor. It is even not the defence of the convict that he did the
act which he did not intend and did not know that it would
likely to cause death of his mother. As such, taking a false
defence would also tantamount to an additional circumstance
pointing towards the guilt of the convict. It has strengthen the
chain of circumstances already firmly established.
52. The Supreme Court in case of G. Parshwanath Vs. State of
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Karnataka7 has categorically observed that taking a false defence
would also tantamount to an additional circumstances pointing
towards the guilt of the convict. It would be apposite to extract
para 23 of the said judgment, which reads thus :-
“23. If all the circumstances mentioned above are taken
together coupled with the absence of any material to
indicate that Chethana had committed suicide with the
child, they lead to only one inference that in all human
probability the murders of the deceased were committed
by the appellant alone and none else. From the evidence
of PW-3 ASI Nagaraj, it is clear that the appellant
knowing fully well that he had committed murders of his
wife and child gave false opinion to the police on the basis
of which UDR proceedings were initiated. By examining
the refrigerator repairer it was sought to be suggested by
the appellant that he was not present in his house when
the incident had taken place. Thus, the defence of the
appellant was that a fire had taken place in his house and
both the deceased had died because of inhaling of carbon
monoxide after which their bodies were burnt because the
house was engulfed in fire. However, at another stage the
defence of the appellant was that his deceased wife with
his child had committed suicide because her parents were
pressurizing her to leave matrimonial home for their
selfish purpose of having income of the deceased.
Whereas, the deceased was not inclined to leave her
matrimonial home, thus more than one and totally
inconsistent defences have been taken by the appellant.
All the defences were false to the knowledge of the
appellant. Not a single defence was found to be probable
or plausible either by the trial court or by the High Court.
The appellant could not explain satisfactorily the
circumstances in which his wife and child met violent
deaths. Therefore, offering of false explanation by the7 AIR 2010 SC 2914
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appellant regarding death of his wife and child will have
to be regarded as an additional circumstance against him
strengthening the chain of circumstances already firmly
found.”
53. It can be seen that all the defences taken by the convict
were false to his knowledge. Not a single defence was found to
be probable or plausible by the trial Court. As already stated,
offering a false explanation or giving a false defence, can be
regarded as an additional circumstance against the convict
strengthening the chain of the circumstances, already firmly
found.
54. The law on the aspect of circumstantial evidence is no
more res integra as there are numerous decisions of this Court as
well as the Supreme Court in that regard. When there is no
direct evidence and the decision has to be based on the
circumstantial evidence, a few guidelines and salient features
have been enunciated in various decisions, including a well
known judgment in the case of Sharad Birdhi Chand Sarda Vs.
State of Maharashtra8. Broadly speaking, the evidence must
satisfy the following tests :-
8 1984 AIR 1622
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is sought to be drawn must be cogently and firmly
established;
(b) Those circumstances should be of definite
tendency unerringly pointing towards the guilt of the
accused;
(c) The circumstances, taken cumulatively, should
form a chain so complete that there is no escape from
the conclusion that within all human probability the
crime was committed by the accused and none else;
(d) The circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should be
inconsistent with his innocence.”
55. Learned trial Court has correctly appreciated all the
circumstances emerged from the over all evidence adduced by
the prosecution. The chain of all the circumstances is intact. All
the circumstances unerringly points towards the guilt of the
convict. There is no reason for inferring any other hypothesis
than that of the guilt of the convict. The evidence is consistent,
inspiring, well corroborated and cogent in nature. Rather, the
convict himself admitted the guilt by taking a false defence of
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committing such a brutal murder of his mother while under the
influence of liquor, which could also be an important
circumstance against the convict. The deceased was, through out
in the custody of the convict when she was done to death by
him. The prosecution has established that the convict always
used to pickup quarrel with the deceased on account of demand
of the pension amount.
56. Dr. Yug Choudhry, would argue that the convict belongs to
a de-notified tribe. He has two children and a wife to look
after. He is an illiterate labour, who was accustomed to consume
liquor heavily. There are no criminal antecedents or history. He
had no vices and, therefore, he deserves leniency. Dr. Choudhry
would also argue that in view of the report of the Probationary
Officer, the convict used to consume flesh of cats and pigs and,
therefore, perhaps he might have committed the said act, which
according to the Counsel is a mitigating circumstance thereby
entitling him to have his sentence reduced to the period which
he has already undergone. The wife of the convict alongwith the
children had already abandoned his company due to the
harassment and ill-treatment by him and, therefore, there is no
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question of he being worried about them. The second argument
of Dr. Choudhry is quite shocking that the convict used to
consume flesh of cats and pigs and, therefore, perhaps he might
have committed the offence, meaning thereby Mr. Choudhry
impliedly admits that the convict has in fact a tendency of
cannibalism. To release such a person would amount to giving
him a free ride and freedom to commit similar offence qua the
members of the society. There is no question of considering it
as a mitigating circumstance and showing any leniency to the
convict. Rather, it is the most aggravating circumstance. We,
therefore, out rightly reject the argument of Dr. Choudhry. We
are surprised as to how such an argument can be made, when in
fact, the conviction of the appellant has not been challenged by
Mr. Choudhry.
57. The trial Court, after holding the convict guilty of the
offence of murder, heard him on the point of sentence. It
reveals from the record that advocate for the convict sought two
days time and accordingly it was granted. The learned Judge
heard the convict, his advocate and the learned Public
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Prosecutor. The convict has been granted full opportunity and
was also made aware about the punishment which could be
awarded. It appears that the convict feigned innocence as
regards the incident in question by contending that he had no
knowledge as to how and in what manner it had occurred. He
being the only bread earner of his family, prayed for taking a
lenient view before the trial Court. Apart from the said aspect,
learned Counsel for the convict had also put-forth ground of
young age as well as two daughters to be looked after by him.
58. Learned APP, however, strongly advocated awarding death
penalty to the convict categorizing the case as the one falling
under the doctrine of “rarest of the rare case”. It appears that
the learned APP in the trial Court placed reliance on several
decisions of the Supreme Court in order to bring home the point
as to how it was a premeditated and cold blooded murder by the
convict of his mother.
59. The learned Judge, thereafter, jotted down various
aggravating and mitigating circumstances and finally concluded
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that the convict deserve death penalty.
60. Before we embark upon the issue as to whether death
penalty awarded by the trial Court needs to be confirmed or
whether the convict deserves life sentence in the alternative, it
would be essential to revisit the crime and the mode and manner
in which it has been committed by the convict as well as the
criminal. In fact, we have sufficiently and elaborately discussed
the mode and the manner in which the convict had committed
the crime, which needs no reiteration.
61. It was indeed an extremely barbaric, inhuman, heinous as
well as grotesque murder of a hapless, helpless and fragile old
mother by her son. It was indeed a cold blooded and preplanned
murder. The convict used to pickup quarrel with the deceased
Yallava on account of demand of money to fulfill his vice of
liquor. As such, on the fateful day, he entered her house. He
was armed with a small knife, admeasuring 7 inch long with a
steel blade admeasuring 3.5 inch long with a yellow grip.
Another knife admeasuring 10.5 inch long with 6 inch blade and
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a Sattur, admeasuring 14.5 inch long with 9.5 inch long steel
blade. The width of the blade is around 2 inch. Sattur is mostly
used by the butchers. Use of such kind of dangerous weapons
itself indicates that the convict had a well hatched plan in his
mind and was determined not only to simply kill his mother but
to butcher her in a most cruel and barbaric manner. In view of
the report of the Probationary Officer, the convict was
accustomed to slaughter pigs and cats for eating their flesh
(meat). Since he was habituated of slaughtering and eating flesh
of pigs and cats, perhaps he must have killed his mother in the
similar manner in order to eat her flesh, which is evident from
the record. We have, therefore, in para 31 of our judgment
expressed our view as to how there is a strong probability of the
convict having syndrome of pathological cannibalism. The
convict cannot be said to be a naive person. Rather, he feigned
innocence. This could also be a motive of the convict which is
almost an impossibility for the prosecution to unravel the full
dimension of his mental disposition towards the deceased as has
been enunciated by the Supreme Court in the case of Ravinder
Kumar & Anr. (supra).
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62. It is apparent from the evidence on record that he
removed the clothes of his mother and thereafter inflicted
multiple blows by means of the Sattur and knives. He did not
stop there. He cut and removed both of her breasts. He
removed her intestine, heart, liver and ribs and eviscerated
outside. He kept the ribs in an oil bottle. He kept heart of his
deceased mother in a utensil over the platform of the kitchen.
He soaked and moped the blood scattered on the floor, meaning
thereby he tried to destroy the evidence also. As already stated,
the cause of death was due to multiple injuries caused to the
victim by sharp edged weapons. The brutality and cruelty with
which the convict had dealt with the body of his mother is
evident from the fact that he had even cut the genital organ of
his mother, which is one of the causes associated with her death.
Torture and pain with which the deceased must have suffered is
unimaginable and unfathomable. The convict had torn apart
right portion of her body and thereafter removed the soft organs
as above. He had also cut neck of the deceased. An old fragile
defenseless lady had absolutely no chance to defend herself from
a well built hefty son to whom she used to provide meals twice a
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day, in view of the fact that wife and children of the convict had
already abandoned him, perhaps because of his such conduct.
The act of the convict in committing the murder of his mother
even cannot be compared with an act of a butcher, who chops
the flesh. It is unfathomable as to what must have been in the
mind of the convict when he used the weapons such as knives
and sattur while committing the murder of his mother. The
conduct of the convict even cannot be regarded as a “Betrayal of
Trust” of his mother as it would be too small a word to describe
what he did. We do not think anything more is required to be
said in that regard as we have already stated in the foregoing
paragraphs.
63. Following are the aggravated circumstances, which can be
culled out from the facts and evidence on record :-
i. The deceased was in the custody of the convict, in the
sense, she was last seen alive together in his company for
more than two hours.
ii. The body of the deceased was lying on the floor with most
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liver, heart, ribs and intestine etc.
iii. The heart was found kept in a platter on the kitchen
platform.
iv. The ribs were found in an oil bottle along with chilli
powder and salt. This also indicates an additional motive
of cannibalism.
v. Bermuda, cloths, hands and even mouth of the convict was
found stained with blood, which was a case quite close to
cannibalism, albeit, there is no direct evidence in that
regard.
vi. The motive to commit the murder was the refusal on the
part of the deceased to fulfill the demand of her pension
by the convict to satisfy his addiction of liquor.
vii. No regards for human life and limb by the convict looking
to the manner in which the offense had been committed.
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viii. False defence under Sections 84 and 85 of the IPC.
ix. For the first time, in his statement under Section 313 of
the Cr.P.C., the convict raised another false defence as
regards his alleged illicit relationship with the mother of
PW-6 Rakshata. However, no such suggestion had been
given to any of the prosecution witnesses or to the
Investigating Officer during the course of evidence. The
defence, therefore, is improbable, unacceptable and
unbelievable. Rather, the testimony of PW-6 Rakshata was
found to be quite natural. It inspires full confidence. She
was the one who first noticed deceased lying in a pool of
blood and the convict standing near her body. She was
just short of an eye witness, for, had she entered the house
a few minutes before, she could have noticed the act.
64. There are very few mitigating circumstances namely, there
are no antecedents to his discredit. The case is based on
circumstantial evidence. The convict was around 35 years of age
at the time of committing offence. Since his wife and children
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had already abandoned him much before the incident, there is
no question of looking after them. There was no complaint
from the Jail authorities till date.
65. In order to ascertain whether life imprisonment can be
said to be completely futile, as the sentencing aim of reformation
can be said to be unachievable and to get ourselves satisfied
whether there is any remote possibility of the convict getting
reformed, if awarded life sentence, we have asked the learned
APP to tender material in that regard. We are mindful of the fact
that we should also focus on the circumstances relating to the
criminal, along with other circumstances and not only to the
crime. We have, therefore, asked the learned APP to place on
record all the relevant material in order to achieve the said
purpose.
66. The Superintendent of Yerawada Central Prison, Pune by
his communication dated 09.07.2024 forwarded a
comprehensive report which comprises a report of the
Probationary Officer, Kolhapur, in respect of the financial, social
and educational background of the convict as well as the report
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of a Psychologist and a Psychiatrist. It also comprises the
medical examination report of the convict. He was lodged in
Nagpur Central Prison and in Kolhapur Central Prison also.
67. The report dated 03.07.2024 forwarded by the District
Probationary Officer, Kolhapur to the Superintendent of
Yerawada Central Prison, Pune, indicates that the convict is a
resident of a locality called Makadwala Vasahat, Kolhapur with a
criminal background. He was earning his livelihood by working
as a labourer. He was a habitual drunkard. He used to assault
and abuse his wife, children and his mother under the influence
of liquor. On the day of murder of his mother, he had
purchased certain tablets from a medical store and had
consumed the same. Since he was residing in the locality known
as Makadwala Vasahat, the convict used to kill pigs and cats and
used to consume their flesh. His friends’ circle has criminal
background. In that year, one of his daughters was admitted in
an Ashram School. His wife works as a domestic maid and fulfill
the basic needs of the family. His wife used to earn Rs.9,000/-
per month while doing the work as a domestic help. The convict
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had no agricultural land or any income other than labour. The
eldest daughter of the convict was aged about 20 years, who is
married and resides at Belgaum with her husband. The second
daughter is 17 years old, who is prosecuting her studies in 11 th
standard (Arts). She resides with her mother. The third
daughter is aged about 15 years, studying in 10 th standard and
also resides in a Ashram school. He has a son aged about 8 years
studying in 4th standard. As such, the so called mitigating
circumstance to look after his family has collapsed.
68. The Medical Superintendent, Sassoon General Hospital,
Pune by communication dated 09.07.2024 has forwarded a
Psychiatric Assessment Report received from its Department of
Psychiatry to the Superintendent of Yerawada Central Prison,
Pune about over all health and behaviour of the convict, which is
extracted below :-
“DEPARTMENT OF PSYCHIATRY
B.J. Government Medical College & Sassoon General Hospital, Pune
———————————————————————————
BJGMC/PSY/316/2024 Date : 09/07/2024
To,
The Medical Superintendent,
Sassoon General Hospital,
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Pune
Subject: Psychatric assessment report of Mr. Sunil Rama
Kuchkorvi
Reference : 1) Letter from Deputy Superintendent Yerawada
Central Prison, Yerwada, Pune OW No. 7380/2024 dated
03/07/2024
2) Letter from Deputy Superintendent Yerwada Central
Prison, OW No.4913/2024 dated 08/07/2024
3) Psychological assessment report from Lecturer,
Department of Clinical Psychology, Maharashtra Institute of
Mental Health, Pune dated 08/07/2024Respected Sir,
This is to inform you that Mr. Sunil Rama Kuchkorvi, 41
years old male, was admitted in the Psychiatry ward from
02/07/2024 to till date as per the above mentioned reference
letters. His MRD no: I/08/041246 and his MLC no: 20643
dated 02/07/2024. His identification marks are 1) Black mole
over left elavicle and 2) Black mole mover palmar surface of left
hand.
The details of history of Mr. Sunil Rama Kuchkorvi were
obtained from the examinee himself. The Deputy Superintendent
of Yerwada Central Prison also provided additional information
as per reference letter no.2. As per available documents he had
complaints of headache, constipation in the past for which he
was treated with medications however there were no behavioural
complaints or evidence of any psychiatric illness noted in the
examinee.
Behaviour of Mr. Sunil Rama Kuchkorvi was observed
while his stay in ward by staff nurses and doctors. He
complained of intermittent headache, decreased sleep and
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worrying thoughts about his and his family’s well-being. He was
started on Tab Amitriptyline 25mg and Tab Clonazepam 0.25
mg on which he reported significant improvement. His
dermatology referral was done in view of complaints of itching
all over body for which he was started on Tab. Cetrizine 10 mg.
Tab. Ivermeetin 2 mg and 5% permethrin cream 30 gm all over
body below neck which was continued during his stay in the
ward. His psychological assessment was done by Lecturer,
Department of Clinical Psychology. Maharashtra Institute of
Mental Health, Pune on 05/07/2024 which did not find any
significant psychopathology as per reference no.3.
He was speaking and behaving properly with medical staff
and police personnel during his stay in the ward. He was taking
proper self-care during ward stay. He did not show any
abnormal behaviour during ward stay. He was not given any
psychiatric treatment during his stay in the ward.
Conclusion
1) As per history given by Mr. Sunil Rama Kuchkorvi,
documents provided by jail authorities, psychological assessment
report and clinical examination during the stay in this ward from
02/07/2024 to till date, Mr. Sunil Rama Kuchkorvi doesn’t have
any significantly active psychopathology at present.
2) Mr. Sunil Rama Kuchkorvi has real life worries about his
and his family’s well-being.
Sd/-
Dr. Sachin G. Mahajan
Assistant Professor,
Department of Psychiatry,
B.J. Government Medical (College
and Sassoon General Hospital, Pune
Forwarded by
Sd/-
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Dr. Niteen Abhivant
Associate Professor and Head
Department of Psychiatry,
B.J. Government Medical College
and Sassoon General Hospital, Pune”
69. This report indicates that the convict does not have any
significantly active psychopathology at present. However, he has
real life worries about his and his family’s well being. His
behaviour, conduct, proper self care etc. is evident from the
report, which needs no reiteration.
70. The convict cannot be said to be quite young or even old,
as he was 35 years of age at the relevant time.This cannot be said
to be a mitigating circumstance. He is already a married man
with three daughters and one son. His eldest daughter appears to
have been married. The convict was matured enough at the time
of commission of the offence to understand and differentiate
between good and bad. It is not the case that due to grave or
sudden provocation, he committed such an act. Merely because
there are no antecedents, would not ipso facto mean that he
would not commit any such offence in future, in light of the fact
that the report of the Probationary Officer indicates that he is
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from the community having criminal background. The report of
the Probationary Officer dated 03.07.2024 has already been
referred hereinabove. The report further indicates that he was a
habitual drunkard who used to abuse and beat his wife, children
and mother under the influence of liquor. It seems that on the
day of incident, he had purchased certain tablets from a medical
store and thereafter consumed liquor. The Probationary Officer
could not find as to what kind of tablets were taken by the
convict before consuming liquor, if any. Perhaps the convict
might have been suggested to take such a defence, however,
neither there is any material to indicate the name of any such
Medical Store nor anything to indicate what kind of tablets were
allegedly consumed. Normally, no Pharmacist would sell any
schedule drug across the counter sans a prescription of a doctor.
It is, therefore, difficult to construe that the convict was not in
his senses at the time of committing the offence.
71. The report also reveals that he being a resident of
Makadwala Vasahat, was accustomed to consume flesh (meat) of
pigs and cats after killing them. His friends’ circle has a criminal
background. It is an important aspect to be considered while
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awarding the sentence. There is no question of the convict being
worried about the welfare of his wife and children since the wife
herself appears to have been earning her livelihood and residing
separately from the convict, much before the incident in
question, as already stated.
72. Apart from the extreme brutality, cruelty and barbarism
with which the convict had murdered his mother in a cold
blooded manner, one cannot turn nelson’s eye that his conduct
was akin to cannibalism and, therefore, he could be a potential
threat and danger to the inmates in the jail, in case, sentence of
life imprisonment is awarded. A person who could commit such
a heinous crime by killing his mother, can do so with anyone
else, including his own family. His social integration, therefore,
is unquestionably foreclosed. These are ‘special reasons’ as
mandated in Section 354(3) of the Cr.P.C. It would be extremely
difficult to fathom his psychology and mindset, though the
report of the Psychiatrists, Psychologist and his overall conduct
in different jails, appear to be normal.
73. The case, therefore, falls within the doctrine of ‘rarest of
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rare’ dictum in light of several pronouncements, especially the
law laid down by the Supreme Court in the case of Bachan Singh
(supra). In line of precedents of the Supreme Court, there has
been an elaborate discussion on whether a separate hearing on
the issue of sentence is mandatory after recording the conviction
of a convict for the offences punishable with death. The trial
Court has indeed followed the dictum in Section 235(2) and
354(3) of the Cr.P.C. The trial Court has assigned special
reasons for awarding death penalty. The Constitution Bench
decision in the case of Bachan Singh (supra) reiterated the
importance of sentencing hearing. The Court noted thus :-
“151. Section 354(3) of the Cr.P.C. 1973 mark a
significant shift in the legislative policy underlying the
Code of 1898, as in force immediately before April, 01,
1974, according to which both the alternative sentences
of death or imprisonment for life provided for murder
and for certain other capital offences under the Penal
Code, where normal sentences. Now according to this
changed legislative policy which is patent on the face of
Section 354(3), the normal punishment for murder and
six other capital offences under the Penal Code, is
imprisonment for life (or imprisonment for a term of
years) and death penalty is an exception.
[….]
152. In the context, we may also notice section
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235(2) of the Code of 1973, because it makes not only
explicit, what according to the decision in Jagmohan’s
case was implicit in the scheme of the Code, but also
bifurcates the trial by providing for two hearings, one at
the preconviction stage and another at the pre-sentence
stage.
[….]
163. [….] Now, Section 235(2) provides for a bifurcated
trial and specifically gives the accused person a right of
pre-sentence hearing, at which stage, he can bring on
record material or evidence, which may not be strictly
relevant to or connected with the particular crime under
inquiry, but nevertheless, have, consistently with the
policy underlined in Section 354(3) a bearing on the
choice of sentence. The present legislative policy
discernible from Section 235(2) read with Section 354(3)
is that in fixing the degree of punishment or making the
choice of sentence for various offences, including one
under Section 302, Penal Code, the Court should not
confine its consideration “principally’ or merely to the
circumstances connected with particular crime, but also
give due consideration to the circumstances of the
criminal.”
(emphasis supplied)
74. The law laid down in Bachan Singh (supra) requires
meeting the standard of “rarest of rare” for award of death
penalty which requires the Courts to conclude that the convict is
not fit for any kind of reformatory and rehabilitation scheme. As
noted in Santosh Kumar Satishbhushan Bariyar Vs. State of
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Maharashtra9, this requires looking beyond the crime at the
criminal as well. It is noted in para 66 thus :-
“66. The rarest of rare dictum, as discussed above, hints
at this difference between death punishment and the
alternative punishment of life imprisonment. The
relevant question here would be to determine whether
life imprisonment as a punishment will be pointless and
completely devoid of reason in the facts and
circumstances of the case? As discussed above, life
imprisonment can be said to be completely futile, only
when the sentencing aim of reformation can be said to
be unachievable. Therefore, for satisfying the second
exception to the rarest of rare doctrine, the court will
have to provide clear evidence as to why the convict is
not fit for any kind of reformatory and rehabilitation
scheme. This analysis can only be done with rigour
when the court focuses on the circumstances relating to
the criminal, along with other circumstances. This is
not an easy conclusion to be deciphered, but Bachan
Singh sets the bar very high by introduction of the rarest
of rare doctrine.”
(emphasis supplied)
75. A similar point was enunciated by the Supreme Court in
case of Anil Vs. State of Maharashtra10. We extract para 33 of
the said decision as below :-
“33. In Bachan Singh this Court has categorically stated,
9 2009 (6) SCC 498
10 2014 (4) SCC 6957 of 71
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criminal acts of violence as would constitute a
continuing threat to the society’, is a relevant
circumstance, that must be given great weight in the
determination of sentence. This was further expressed
in Santosh Kumar Satishbhushan Bariyar. Many a times,
while determining the sentence, the court take it for
granted, looking into the facts of a particular case, that
the accused would be a menace to the society and there
is no possibility of reformation and rehabilitation, while
it is the duty of the court to ascertain those factors, and
the State is obliged to furnish materials for and against
the possibility of reformation and rehabilitation of the
accused. The facts, which the courts deal with, in a
given case, cannot be the foundation for reaching such a
conclusion, which, as already stated, calls for additional
materials. We, therefore, direct that the criminal courts,
while dealing with the offences like Section 302 IPC,
after conviction, may, in appropriate cases, call for a
report to determine, whether the accused could be
reformed or rehabilitated, which depends upon the facts
and circumstances of each case.”
(emphasis supplied)
76. In a recent decision, the Hon’ble Supreme Court in case of
Sundar @ Sundarrajan Vs. State by Inspector of Police 11 has
elaborately discussed on the aspect of death penalty. It has been
stated that the State must equally place all material and
circumstances on the record bearing on the probability of
11 2023 Live Law (SC) 2017
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reformation. The Supreme Court observed that many such
materials and aspects are within the knowledge of the State
which has had custody of the accused both before and after the
conviction. Moreover, the Court cannot be an indifferent
bystander in the process. The process and power of the Court
may be utilized to ensure that such material is made available to
it to form a just sentencing decision bearing on the probability of
reform. It would be expedient to extract para 69 to 76, which
reads thus :-
“69. In Suo Motu W.P. (Crl.) No. 1/2022 titled In re:
Framing Guidelines Regarding Potential Mitigating
Circumstances to be Considered while Imposing Death
Sentences, this Court took note of the difference in
approach in the interpretation of Section 235(2) of CrPC
and referred the question for consideration of a larger
bench. While it took note of the conflict on what
amounted to ‘sufficient time’ at the trial court stage to
allow for a separate and effective sentencing hearing, it
noted that all the decisions also had the following common
ground:
27. The common thread that runs through all these
decisions is the express acknowledgment that
meaningful, real and effective hearing must be
afforded to the accused, with the opportunity to
adduce material relevant for the question of
sentencing.
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70. In the present case, the judgment of the Trial Court
dealing with sentencing indicates that a meaningful, real
and effective hearing was not afforded to the petitioner.
71. The Trial Court did not conduct any separate
hearing on sentencing and did not take into account any
mitigating circumstances pertaining to the petitioner before
awarding the death penalty. In the course of its judgment,
the trial court merely noted the following, before awarding
the death penalty:
In present day circumstances it has become common
of kidnapping of children and elders for ransom and
kidnapped being murdered if expected ransom is not
received. In this situation unless the kidnappers for
ransom are punished with extreme penalty, in future
kidnapping of children and elders for ransom would
get increased and the danger of society getting totally
spoiled, would have to faced is of no doubt. Hence
having regard to all these it is decided that it would
be in the interests of justice to award to the 1st
accused the extreme penalty. Not only that the court
saw the mother of the deceased boy profusely crying
and weeping in court over the death of her son in
court and the scene of onlookers in court having
wept also cannot be forgotten by anyone. Hence it is
decided that such offenders have to be punished with
extreme penalty; in the interests of justice
72. The High Court took into account the gruesome and
merciless nature of the act. It reiterated the precedents
stating that the death penalty is to be awarded only in the
rarest of rare cases. However, it did not specifically look at
any mitigating circumstances bearing on the petitioner. It
merely held that:
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28. In a given case like this, it is an inhuman and a
merciless act of gruesome murder which would
shock the conscience of the society. Under the
circumstance, showing mercy or leniency to such
accused would be misplacing the mercy. That apart,
showing leniency would be mockery on the criminal
system. Therefore, the death penalty imposed by the
trial Judge, has got to be affirmed, and accordingly, it
is affirmed.
73. This Court examined the aggravating circumstances
of the crime in detail. However, as regards the mitigating
circumstances, it noted that:
31. As against the aforesaid aggravating
circumstances, learned counsel for the accused-
appellant could not point to us even a single
mitigating circumstance. Thus viewed, even on the
parameters laid down by this Court, in the decisions
relied upon by the learned counsel for the accused-
appellant, we have no choice, but to affirm the death
penalty imposed upon the accused appellant by the
High Court. In fact, we have to record the aforesaid
conclusion in view of the judgment rendered by this
Court in Vikram Singh & Ors. Vs. State of Punjab,
(2010) 3 SCC 56, wherein in the like circumstances
(certainly, the circumstances herein are much graver
than the ones in the said case), this Court had upheld
the death penalty awarded by the High Court.
74. The above sequence indicates that no mitigating
circumstances of the petitioner were taken into account at
any stage of the trial or the appellate process even though
the petitioner was sentenced to capital punishment.
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75. In terms of the aggravating circumstances that were
taken note of by this Court in appeal, our attention has
been drawn to the following circumstance:
30. […]
(vii) The choice of kidnapping the particular child
for ransom, was well planned and consciously
motivated. The parents of the deceased had four
children – three daughters and one son. Kidnapping
the only male child was to induce maximum fear in
the mind of his parents. Purposefully killing the sole
male child, has grave repercussions for the parents of
the deceased. Agony for parents for the loss of their
only male child, who would have carried further the
family lineage, and is expected to see them through
their old age, is unfathomable. Extreme misery
caused to the aggrieved party, certainly adds to the
aggravating circumstances.
We wish to note that the sex of the child cannot be in itself
considered as an aggravating circumstance by a
constitutional court. The murder of a young child is
unquestionably a grievous crime and the young age of such
a victim as well as the trauma that it causes for the entire
family is in itself, undoubtedly, an aggravating
circumstance. In such a circumstance, it does not and
should not matter for a constitutional court whether the
young child was a male child or a female child. The
murder remains equally tragic. Courts should also not
indulge in furthering the notion that only a male child
furthers family lineage or is able to assist the parents in old
age. Such remarks involuntarily further patriarchal value
judgements that courts should avoid regardless of the
context.
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76. In Rajendra Pralhadrao Wasnik v State of
Maharashtra 2019 (12) SCC 460, a three judge bench of
this Court took note of the line of cases of this Court
which underline the importance of considering the
probability of reform and rehabilitation of the convicted
accused before sentencing him to death. The court
observed:
43. At this stage, we must hark back to Bachan Singh
and differentiate between possibility, probability and
impossibility of reform and rehabilitation. Bachan
Singh requires us to consider the probability of
reform and rehabilitation and not its possibility or its
impossibility.
[…]
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)
Cr.PC. 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
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issues as well.
46. If an inquiry of this nature is to be conducted,
as is mandated by the decisions of this Court, it is
quite obvious that the period between the date of
conviction and the date of awarding sentence would
be quite prolonged to enable the parties to gather
and lead evidence which could assist the trial court in
taking an informed decision on the sentence. But,
there is no hurry in this regard, since in any case the
convict will be in custody for a fairly long time
serving out at least a life sentence.
47. Consideration of the reformation, rehabilitation
and reintegration of the convict into society cannot
be overemphasised. Until Bachan Singh, 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, some of which have been
pointed out in Bariyar and in Sangeet v. State of
Haryana where there is a tendency to give primacy to
the crime and consider the criminal in a somewhat
secondary manner. As observed in Sangeet “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 his 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
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analyse 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.
(emphasis supplied)”
77. We have considered the entire material as regards
educational, financial, social, psychological and psychiatric
aspects qua the convict placed before us by the State in order to
ascertain whether there is any possibility or probability of
reformation or rehabilitation of the convict. We have also given
due consideration not only to the entire facts and evidence
connected with the crime, but also the circumstances of the
convict. He is not at all fit for any kind of reformatory and
rehabilitation scheme. Life imprisonment would be completely
futile as the sentencing aim of reformation is completely
unachievable. During interaction with the convict through
Video Conferencing, we do not find any remorse, penitence or
repentance on his face. Normally, a deep regret should have
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come from him by a deep sense of guilt. He just feigned
innocence contending that he does not remember anything.
78. From the evidence discussed hereinabove and having given
due consideration to the aggravating and mitigating
circumstances, we have absolutely no doubt or second thought in
our mind that the convict is not at all fit for any kind of
reformation. Having juxtaposed the aggravating and mitigating
circumstances, we find that the aggravating circumstances out
weighed the mitigating circumstances. We are quite conscious
of the fact that it is not an easy conclusion to be deciphered to
categorize the case as a ‘rarest of the rare’ one. The convict
would be a continuing threat to the society even after
completion of his sentence of life, if awarded. We are mindful of
the fact that in view of the dicta in the case of Bachan Singh
(supra), in which it has been succinctly differentiated between
possibility, probability and impossibility of reform and
rehabilitation. Bachan Singh (supra) requires us to consider the
probability of reform and rehabilitation and not its possibility or
its impossibility. We have given a meaningful, real and effective
hearing to Dr. Yug Choudhry, who in his erudite arguments tried
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to impress upon us as to how it is probable for the convict to get
reformed if he is released having already undergone the sentence
till the date of hearing. We are afraid, we cannot buy such an
argument. We have taken into account not only the gruesome,
merciless, brutal and inhuman act of the convict but also the
improbability of his reformation in case he is awarded an
alternative sentence of life imprisonment. The act of the convict
had indeed shocked the conscious of the society.
79. Under the circumstances, showing mercy or leniency to
such a person, would be misplacing the concept of mercy. That
apart, showing leniency would be a mockery on the criminal
justice system. Therefore, death penalty imposed by the trial
Court, needs to be confirmed and accordingly stands confirmed.
It is a well settled law that possibility of reformation and
rehabilitation of the convict is an important factor which is to be
taken into account as a mitigating circumstance before
sentencing him to death.
80. We have elucidated all the important information and
factors regarding the probability of reformation and
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rehabilitation from the State and considered the same. The
conduct of the convict in the Jail as per the reports of the
Superintendent of Jail at Yerawada, Pune and Nagpur Central
Prison, Nagpur has already been discussed hereinbefore. In the
sentencing process, both the crime and 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 his 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 analyse this
information is certainly not an easy task but must nevertheless be
undertaken. This has been observed by the Supreme Court in
case of Sundar @ Sundarrajan (supra).
81. The Supreme Court went on to observe that 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 integration of the convict may not be
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possible. If that should happen, the option of a long duration of
imprisonment is permissible. Here in the case at hand, indeed
reintegration of the convict into Society apart from the
improbability of rehabilitation, would be quite risky in light of
the discussion made hereinabove. It would be equally risky even
to award imprisonment for life, for, he would be a potential
danger to the other inmates in the Jail looking to his propensity
and inclination towards cannibalism. The case, therefore, falls
within the ‘rarest of rare’ category justifying award of capital
punishment.
82. The Supreme Court in the case of Manoj & Ors. Vs. State
of Madhya Pradesh12, while reiterating on the aspect of
sentencing in para 247 held thus :-
“247.The goal of reformation is ideal, and what society
must strive towards – there are many references to it
peppered in this court’s jurisprudence across the decades
– but what is lacking is a concrete framework that can
measure and evaluate it. Unfortunately, this is mirrored
by the failure to implement prison reforms of a
meaningful kind, which has left the process of
incarceration and prisons in general, to be a space of
limited potential for systemic reformation. The goal of12 2022 Live Law (SC) 510
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901-1-2021-CONF-jud.=.docreformative punishment requires systems that actively
enable reformation and rehabilitation, as a result of
nuanced policy making. As a small step to correct these
skewed results and facilitate better evaluation of whether
there is a possibility for the accused to be reformed
(beyond vague references to conduct, family background,
etc.), this court deems it necessary to frame practical
guidelines for the courts to adopt and implement, till the
legislature and executive, formulate a coherent
framework through legislation. These guidelines may
also offer guidance or ideas, that such a legislative
framework could benefit from, to systematically collect
and evaluate information on mitigating circumstances.”
(emphasis supplied)
83. We have given a liberal and expansive scope to the
mitigating circumstances. We have also meticulously considered
the reports of the State as regards the psychological and
Psychiatrist evaluation. The report of the Probationary Officer,
the report of the concerned persons and having taken a holistic
view of all the aggravating and mitigating circumstances as well
as the probability of reformation of the convict, we are of the
considered view that this is a fit case to confirm the death
penalty awarded by the trial Court.
84. A corollary of the entire discussion made hereinabove is
that there is absolutely no chance of reformation or
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rehabilitation of the convict. Life imprisonment would be
completely futile since the sentencing aim of reformation is
completely unachievable. Having given due consideration to all
the aggravating and mitigating circumstances, we are of the firm
view that this is a fit case wherein the death penalty awarded by
the trial Court needs to be confirmed.
85. We, accordingly, confirm the sentence of the death,
awarded by the trial Court to the convict – Sunil Rama
Kuchkoravi.
A certified copy of the judgment shall immediately
be given to the convict, free of cost in view of the proviso
to Sub-Section (2) of Section 363 of the Code of Criminal
Procedure.
The convict is informed about his right to prefer an
appeal before the Hon’ble Supreme Court within 30
days.
86. Reference is answered accordingly.
(PRITHVIRAJ K. CHAVAN, J.) (REVATI MOHITE DERE, J.)
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