Judgment:
B.C. Patel, J.
1. Joint District Judge and Additional Sessions Judge, Sabarkantha at Himmatnagar has forwarded the Record & Proceedings of Sessions Case No. 117 of 1998 under Sub-section (1) of Section 366 of the Code of Criminal Procedure, 1973 for confirmation of death sentence awarded to accused Dharmendrasinh @ Mansinh Ratansinh Makwana, by the Additional Sessions Judge, Sabarkantha at Himmatnagar on 28-4-2000. The said accused has preferred Criminal Appeal No. 500 of 2000 against the order awarding death penalty for double murder of his minor sons Jigarsinh and Vimalsinh, aged about 12 years and 7 years respectively on 24-8-1998. The facts briefly leading to the present prosecution as they emerge from the First Information Report are as under.
2. Ashaben, wife of the accused lodged First Information Report pointing out that before about 15 years, she got married with the accused and was residing at Bhadresar. Out of the wedlock, she delivered two sons namely Jigarsinh aged about 12 years and Vimalsinh aged about 7 years. She stated that her brother-in-law, namely Dashrathsinh was residing separately while her family and her in-laws were residing in the same house by dividing it by closing the door which was in the middle of the house. It is stated in the First Information Report that (on 23-8-1998) after supper, as usual it was time to sleep outside the house, in open, and therefore, cots were arranged. However, her husband stated that on that day, they should sleep inside the house and therefore, cots were taken inside and they slept in the house. Early in the morning, her husband-accused got up and awakened her. After milking buffaloes, she requested her husband to deliver the milk in the Dairy, but he refused. She thereupon tried to awaken Jigarsinh, her son, however, her husband, the accused stated in angry mood that she should go to deliver the milk. She thereupon went to Dairy and returned at about 7-00 a.m. Upon reaching the home, she found her husband delivering axe blows on the son who was sleeping, as a result of which she rushed to the room. She found that her elder son Jigarsinh had injuries. She raised shouts,as a result of which, her husband left the house from the back-door. Listening her shouts, her father-in-law Ratansinh and her brother-in-law - Dashrathsinh and Halusinh, Dalpatsinh and others came. She stated that her husband had delivered blows by means of axe.
2.1 In the First Information Report, she stated that her husband had some suspicion about her character, as a result of which, he was beating her. Her sons used to convey these facts to near relatives. It is in view of this, according to her, that her husband committed murder of two innocent sons. Soon after the information, the police commenced investigation and on completion of investigation, charge-sheet was filed against the accused. Learned Magistrate, before whom the charge-sheet was filed, committed the accused to the Court of Sessions for trial, where charge - Exh. 4 was framed against the accused on 17th May, 1999 to which the accused pleaded not guilty and claimed to be tried. On appreciation of evidence led by the prosecution and hearing the submissions made by the learned Public Prosecutor and the defence Advocate, Additional Sessions Judge, Sabarkantha at Himmatnagar recorded a finding as aforesaid and hence this Confirmation Case and the Criminal Appeal.
3. Before us, learned Counsel appearing for the accused did not challenge the evidence insofar as the homicidal death of the two kids is concerned. Dr. Ganpatsinh Ambadan Charan, P.W. No. 1 who performed autopsy on 24-8-1998 has pointed out the injuries found on the person of Jigarsinh as under :-
(1) Sharp cutting wound on left cervical region of about 5 cm. x 1 cm. x 1 cm. which starts from left T.M. Joint to midline of neck left jugular and left carotid cut and cut overlying structures.
(2) Below first wound incised wound of 2 x 1 x 1 cm.
(3) Incised wound starts from right T.M. Joint going towards left angle of mouth of 7 cm. x 2 x 1 cm.
(4) Fracture of mandible present in midline.
Dr. Charan opined that the death was due to acute cardio-respiratory failure by haemorrhagia shock by neck sharp cutting injury. It appears that before the doctor, it was disclosed that son was killed by his father by sharp cutting instrument.
4. So far as the deceased Vimalsinh, younger son of the accused and the informant is concerned, external injuries were found as under :
(1) Sharp cutting wound on the neck starting from angle of left mandible to right ear lobule having size of about 1 ft. x 5 cm. x 5 cm.
(2) All underlying structure had been cut.
(3) Fracture of occipital bone.
(4) Fracture of 1st and 2nd cervical spine present.
(5) Contused cerebellum seen outside the wound from posterior part of neck.
The doctor also noticed fracture of first and second cervical spine. So far as the internal examination is concerned, the doctor noticed fracture of occipitalbone. There was a fracture below wound having size of 6 cm. x 7 cm. and contused cerebellum was seen outside wound. Dura was also ruptured. Spinal Cord was pale. There was cut above C1 spine and caused at C2 level.
5. In the opinion of the doctor, death was due to acute Cardio-respiratory failure by haemorrhagic shock and spinal cord injury by sharp cutting wound of neck. The doctor also noted that the said Vimalsinh was killed by his father by sharp cutting instrument.
6. So far as cross-examination is concerned, a suggestion was made that the injury sustained on the person of Jigarsinh on cervical region and the injury No. 1 shown in column No. 17 could have been caused by an axe. However, the Medical Officer has denied the said suggestion. Even with regard to the injury sustained on the person of Vimalsinh, a suggestion was made that the injuries could have been caused by an axe. However, the Medical Officer has denied this suggestion. From the evidence, it is clear that he has pointed out the difference between the blade of an axe and a dhariya. Reading the medical evidence and the injuries found on the person of the deceased, it is very clear that the injuries could have been caused by means of a dhariya only. It is required to be noted that the suggestion was made that injury on the person of Jigarsinh could have been caused only by an axe which has been denied by the Medical Officer. No arguments were advanced before us and the reasonings given by the learned Additional Sessions Judge with regard to homicidal death are required to be accepted.
7. Mr. Shethna, the learned Counsel, appearing for the accused-appellant submitted that it is a case of interested solitary eye-witness. Other witnesses residing in the area and the witnesses who arrived soon after the shouts of Ashaben, wife of the husband have not been examined. He further submitted that there is improvement in the version of the informant -- Ashaben insofar as weapon used at the time of occurrence is concerned. He further submitted that the police was not informed immediately though there was a telephone and only after the arrival of relatives of the first informant, the police was informed. Much time elapsed between the time of occurrence and lodging of the First Information Report, and therefore, there was every possibility of concocting a story against the accused as he had serious grievances. He submitted that in the First Information Report, weapon shown is 'axe' while in the panchnama, weapon is not specifically mentioned, but it is only stated that it was sharp edged weapon and before the Court, theory of 'dhariya' is brought as dhariya was found from the place of occurrence i.e. beneath the cot as per panchnama. Mr. Shethna submitted that conveniently, story is put that the accused by leaving dhariya left the place, but that story is not supported by an independent witness who came to the spot soon after hearing the shouts. According to Mr. Shethna, learned Counsel, there is discrepancy as to where First Information Report was recorded which goes to the root of the matter. In his submission, considering the totality of the circumstances, it can be said that the prosecution has not led sufficient evidence to establish the guilt and in any case, benefit of doubt should be given to the accused and should be acquitted.
8. Against this, Mr. K. T. Dave, learned A.P.P., appearing in the matter submitted that as usual, her husband was required to go for supplying milk to the Dairy. It is the husband who sent the wife for supplying milk and got the opportunity of committing this crime. He had strong reasons to commit this crime because children were complaining about the ill-treatment at his hands to Ashaben, their mother. The learned A.P.P., submitted that the husband realising that sons are coming in his way, he decided to commit the crime and attacked on defenceless two minor children who were sleeping in the cot. According to learned A.P.P., the medical evidence supports the prosecution version. According to him, there is no need to examine all the witnesses and particularly nearest relatives of the accused. He further submitted that in the instant case, the incident took place in the house of the accused. Inmates would not support the prosecution as they would have more love and affection towards the family member. Similarly, neighbours would have more love and affection towards neighbour than an outsider. In any case, according to Mr. Dave, neighbours have not seen the incident, and therefore, they could not have thrown any light on the incident. Father of the accused would be interested in seeing that no harm is caused to son. He was the first person to enter the room soon after shouts raised by Ashaben. The accused left the place only after arrival of his father. So far as eye-witness is concerned, Ashaben was the only witness. Others including father arrived only after hearing shouts of Ashaben.
8.1 It is the case of solitary witness and when the wife is giving evidence on oath against her husband, who had killed two minor sons, there is nothing to discard her evidence. Learned A.P.P. invited our attention to the evidence and the cross-examination whereby suggestions are made about her chastity. He submitted that in this country, women who are required to be respected are not being respected and when crime is committed, allegations are made in such a way that no woman would tolerate. From the cross-examination, learned A.P.P. pointed out that at one stage, defence Counsel has suggested in para 9 of the evidence of Ashaben, P.W. No. 3 that she knew one Gobarsinh Motisinh Makwana, who was a friend of her husband and was frequently visiting the house. It was also put to her that her husband was suspecting that she had illicit relations with Gobarsinh Motisinh Makwana. Ashaben has denied these suggestions and has stated that she does not know Gobarsinh Motisinh. It is required to be noted that after putting these suggestions, the defence Counsel has put question to Ashaben, P.W. No. 3 that on previous night, Gobarsinh Motisinh and her husband both had taken illicit liquor at her house and that there was quarrel between the two. It is suggested to Ashaben that her husband was suspecting, then in ordinary course, he would not have invited Gobarsinh Motisinh for liquor. This itself indicates that baseless allegations have been made against this lady. When we put a question to the learned Counsel for the defence as to whether the Advocate in the trial Court was given in writing to put questions pertaining to the chastity of the woman, we are told that the instructions may be oral. When the questions are put to a woman about her chastity, care is required to be taken before putting such questions.
9. Ashaben in her evidence has pointed out that before about 15 years, she got married with the accused. She has stuck to the version given in the F.I.R., with regard to the arrangement of the residence which we have stated earlier. With regard to the incident in question, she has stated that the incident took place before about 9 months before the date of recording of the evidence. At about 7-00 a.m. she went to the Society for supplying milk and at that time, the husband-accused and her two sons were at home. She further stated that her children were sleeping. After about half an hour, she came back and she saw her husband assaulting younger son and the elder son was lying dead. She has stated that the accused was causing injuries by means of dhariya. Her elder son sustained injuries in the front part of the body while the younger son sustained injuries on the back side of the neck, and, as a result of the injuries, both the sons expired. She raised shouts and as a result of this, her father-in-law came immediately, and thereafter, her husband went towards the hind side. She could not talk with her father-in-law as she became unconscious. In such a situation, the condition of her i.e. becoming unconscious is not unnatural.
10. She has fairly stated that her husband used to ill-treat her and that ill-treatment was seen by the children. They were complaining to the in-laws and other relatives. On account of this, the husband killed the two sons. She has stated that the F.I.R. Exh. 24 was given by her. She stated that in the F.I.R., by mistake she has stated the word 'axe'. However, she stated that in fact, the accused had a dhariya. In her further statement, she has clarified this aspect. She stated that she raised shouts, and therefore, her husband placed the dhariya below the cot and ran away. She identified the dhariya article No. 9. The said weapon was blood-stained. There is a report of an expert which indicates that there was human blood. Other articles such as mattress, towels, blue colour pant, jersey, underwear etc. were shown to her and she identified the said articles. She stated that the towels were used for covering the bodies. Clothes were put on by her sons. We do not describe as to which clothes were put on by which son as there is no dispute.
10.1 She stated that after lodging the information, she went to her parental home, and thereafter, she did not come back. In the cross-examination of Ashaben, a suggestion is made that in the front portion, her in-laws are residing. It is suggested to her that there are doors abutting to southern as well as western directions. The door in the northern direction leads to the portion of house occupied by the in-laws and if one leaves from the western door, he would be on the road. It is put to her that road leads to village Dungari and is a public street. It is also suggested that there is movement of vehicles and carts. It is also put to her that on the western direction, there is a house of Kanaksinh, and thereafter, there is a public street. Topography of the house of Kanaksinh is also put to her. To the west of the house, there are houses of Lakshmansinh Narsinh, Badesinh Magansinh, Badarsinh Magansinh and Bhikhusinh Madansinh. On the eastern direction, there are houses of Mulsinh Takhatsinh and Sureshsinh Pujsinh. It is also put to her that the persons are residing there with their families.She stated that her brother-in-law and sister-in-law are residing separately in a different house. She also stated that on the western direction of the road, there are about 15 to 20 houses of the caste people. From this, it is suggested by the learned Counsel that in the house which is situated on the main road, the accused would not commit a crime because passers-by would have seen that. He submitted that even if the shouts would have been raised by the sons while sustaining injuries, the people would have come to their rescue. Under such circumstances, it is not possible to believe that the accused would commit a crime knowing full well that there is movement of many people. This has no bearing so far as merit of the case is concerned. The children were sleeping when they were assaulted. If any other person would have caused injuries, would the neighbours as suggested above, have not come? The fact remains that he was the only adult present in the house when children were sleeping. On arrival, mother of children has seen accused, her husband and father of children delivering blows. The argument has no substance as in the instant case, it is clear from the inquest panchnama that the place of incident is not the room on the road, but is the room which is interior. It is stated in the panchnama that in the last room on the back side of the house, on a cot, dead bodies were found. Thus, it is not possible to accept the contention raised by the Counsel. Over and above this, it is not the case that in the morning time or at about 7-00 a.m., there would be movement of passers-by or of the vehicles and the carts. In para 6, it is also suggested that the people pass through the house even for supplying milk. It is also stated by her that the person passing through the road can see movement in the house from the western door of the house. This is required to be considered. If the people have habit of peeping in the doors, the people would notice what is happening in the house. Secondly, the incident has not taken place in the front room, but in the rear room. The way in which directions are put, it appears that an illiterate and a rustic person would be confused during the cross-examination and would not be able to answer exactly keeping in mind the directions. Even passersby are hardly concerned as to what is happening at other places because they would be equally busy in their own work and it is also known that the people by and large have their own problems and they do not pay attention unless there is specific reason for them. It is also required to be noted that in villages in morning hours, people are normally busy and they would pay more attention to their own work. No doubt, Ashaben has given the names of the persons who are residing in the vicinity, however, it is also required to be noted that she has stated that soon after hearing her shouts, her father-in-law came, and thereafter, her husband, the accused ran away. In the F.I.R., she has stated that others also came. Further, she has stated that she became unconscious. The latter version is required to be accepted because she saw the ghastly murders of her own two kids who were defenceless and were killed while they were sleeping, by none other than her own husband. It is not necessary that all persons educated or not can control themselves seeing such situation. Such questions which are put in the cross-examination are not to be given any importance unless the evidence has become impossible for acceptance.
11. Much more is stated before us as to how two sons were found in one cot, more particularly when she stated that both were sleeping separately. Nonetheless, finding is that both were found in one cot. There was none else in the house except the accused and the two children. It may be that he might have requested one to go to other bed to take rest. But it leads nowhere. We do not give importance to change of cots which is of no importance.
12. Before us, learned Counsel for the defence submitted that the accused was a person of unbalanced mind. He was in the habit of drinking liquor. It is submitted that as per the admission made by Ashaben, he was admitted in hospital at Himmatnagar. Ashaben has denied the suggestion that he was admitted in a hospital of one Dr. Navin Modi. She has denied that she accompanied her husband when he was admitted in the hospital. She stated that her in-laws were with her, husband where he was kept for 15 days. She was asked as to why he was in the hospital, to which she has answered that her husband was ill-treating her, and therefore, he was taken to the hospital. She has stated that during the period when her husband was in hospital, she has not gone for attending him or even to inquire about his health. She has denied the suggestion that her husband became insane, and therefore, he was kept in the hospital of Dr. Navin Modi.
13. It is required to be noted that before the Court, no evidence is placed by the accused. If one takes up the defence that he was insane, then it is for him to prove that defence. Whether act was committed at the time when he was insane or he was under the influence of alcohol is for him to prove. Law has cast a duty on the accused to prove such defence. We are required to state that in this matter except some suggestions, nothing has been stated. Even, the medical papers of the hospital where the accused was treated could have been produced, but they are not produced. Surprisingly, when we examined the original record, it is found that one prescription which is on the printed letterhead of Dr. Navin Modi is produced which is undated and unsigned. This speaks a lot about the assistance rendered to the trial Court and to this Court. We would say that by placing such unsigned and undated prescription and some medical bills, defence is not relieved of its burden of proving the defence.
14. The Apex Court in the case of State of Madhya Pradesh v. Ahmadullah, (AIR 1961 SC 998) has pointed out as under :
'Burden of proof that the mental condition of the accused was at the crucial point of time, such as is described by this Section lies on the accused who claims the benefit of this exemption.'
The duty which is cast on the accused is thus clarified before many years and it is of no use to make suggestions to the witness. It is required to be noted that wife is the best person to say whether her husband ever suffered on account of insanity or not. Neither the father nor the mother of the accused entered the box to convey to the Court that the accused was a person of insane mind or at the relevant point of time, he was insane. It is required to be noted that had the person being of insane mind, he would not have absconded for a period of three weeks. It is also required to be noted that the accused suggested thathe invited his friend on a previous night for liquor. Of course, Ashaben has denied the suggestion. Defence suggested and in fact contended that the act was under the influence of alcohol. If he invited, then there is no question of imbalance of mind i.e., insanity. There is nothing to show that he was incapable of taking care of himself. In morning there was normal behaviour and after committing crime he was absconding.
15. Dalpatsinh, P.W. 7 serving in the school as Senior Clerk at Poshina stated before the Court that on the date of incident, he heard the shouts from the house of Dharmendrasinh, i.e., house of the accused and hence, he went there. He found dead bodies of the two boys aged about 12 years and 7 years. He came out of the house after seeing the dead bodies. He has stated that thereafter, he went to village Mahudi where father of Ashaben is residing to convey the information. He conveyed the information to Sarpanch Somsinh Rathod that sons of Ashaben have been killed.
16. In the cross-examination, he stated that the accused was insane and was admitted in the hospital of Dr. Navin Modi. However, he has not stated as to when he was admitted. He stated that the accused was like a mad person. He stated that there were quarrels between the couple and that they were not pulling on well. As and when there were attacks of insanity, his father used to take him to the hospital. Relying on this evidence, it is submitted before the Court by Mr. Shethna, learned Counsel, that sufficient evidence is led to show that the accused was insane. The question is whether at the time of the incident, accused was insane? No evidence is led by the defence. We have pointed out earlier that merely by producing unsigned and undated prescription, it cannot be said that the accused was insane. This does not help the defence in proving its case. We have read the evidence of this witness, and we would like to state that the witness has admitted that he is a neighbour of Ratansinh, father of the accused. He stated that the house which was occupied had three doors in three different directions. He further stated that he saw Ashaben going towards the Dairy in the morning and coming from the Dairy and at that time, he was brushing his teeth. He had seen Ashaben entering the house. She raised shouts when she entered the house that her sons are dead. Hearing this shout, he reached the house of Ashaben. He stated that there is distance of about 15 to 20 feet between his house and the house of Ashaben. He has stated that when he reached the house, there was none. He has stated in the cross-examination that if someone would have gone towards left direction he would have seen him. He has not seen any person leaving the house from southern direction. From this evidence, it is suggested that when Ashaben reached the house, she found her sons dead, and therefore, she raised shouts. According to learned Counsel for the defence, this witness has not stated that Ashaben raised shouts to the effect that sons are assaulted or son is being assaulted. Learned Counsel further submitted that this witness has stated that when he reached the house, he saw none leaving the house and from this, only inference that can be drawn is that Ashaben is not telling the truth in view of cross-examination of this witness. It is required to be noted that this witness is a neighbour and he is telling the half truth. He has admitted that there is distance between the two houses. Even Ashabenhas not stated as to what words she used. However, learned Counsel submitted that therefore, whatever this witness has stated should have been believed as to what Ashaben uttered. It is required to be noted that when she reached home, she raised shout, her father-in-law arrived and her husband, leaving the weapon ran away from the back side. Now, this witness namely Dalpatsinh, after hearing the shouts has started proceeding towards the house of Ashaben, but in the meanwhile, hearing the shouts, father-in-law immediately came and the accused fled away. This witness does not refer the presence of the father-in-law. Even looking to the suggestion of the defence and even as suggested by the star witness Ashaben, they were staying separate from in-laws, but the house was not separate. It is on account of the door, they could manage to stay separately and father was required to open the door for entering the house. In our opinion, that would not have taken much time for the father to reach the room as he was already there in the house. Therefore, what witness Ashaben has stated inspires confidence that after reaching, she raised shouts and her father-in-law came and not this witness. He might have reached at a later point of time, but by that time, the accused had fled. Therefore, from this, it can be said that the accused after committing crime, left the house.
17. It is required to be noted that the police officer who recorded the statement on 17-9-1998 has deposed before the Court and has denied the suggestion that the accused was like a mad person. He has denied the suggestion that during the interrogation, accused was giving answers like mad person. It is also denied that during his investigation, it was found that there were frequent attacks of madness or insanity and accused was taking treatment of Dr. Navin Modi. He has denied the suggestion that the accused was becoming insane frequently and that he was being treated regularly. Defence has put a question that after the accused was arrested, he was threatened, and therefore, he was afraid and became a person like a mad man. From the cross-examination of the police officer, there is nothing to show that during investigation it was revealed that there was any attack of insanity at any point of time. Nearest relatives of accused have not entered the witness box to prove the case that the accused was insane at the time of occurrence or Dr. Navin Modi is not examined even to raise a doubt, and therefore, these arguments must be rejected in toto.
18. It is required to be noted that between the husband and wife, there were quarrels. Ashaben stated that her husband was doubting her character, but she has denied the suggestion that the accused used to quarrel by stating that her two sons namely Jigarsinh and Vimalsinh were not begotten through him. Looking to the age of the children and the fact that they were staying together since last 15 years as husband and wife and Ashaben has never complained to her parents, it appears that the quarrel must be happening in the routine manner. The learned trial Judge has also observed that witness Ashaben has stated that her husband was doubting about her character, and therefore, there were quarrels between them. She has specifically stated that the accused was not stating that the sons are not begotten through him, but he was doubting about her character. If they were living together for 15 years and after the marriage she has delivered two children, it is difficult to accept the suggestion of the defence that relationswere so strained that she would like to involve her husband falsely in a murder case of her two sons. If the relations were so strained soon after the marriage, possibly there would have been no question of issues or possibly they would have separated much earlier. We have evidence on record indicating that even she has not complained to her father and that shows that though her husband was doubting her character, she did not take the allegations seriously and that has never taken a serious turn in the past, and therefore, these aspects are not required to be taken into consideration by giving much importance.
19. The prosecution has examined Mangusinh Tetsinh father of Ashaben. He stated that before about 15 years, his daughter Ashaben got married with the appellant-accused, and since then, they were staying at Bhadresar together. She had two sons namely Jigarsinh and Vimalsinh. Sarpanch Somsinh conveyed information about the incident that sons of Ashaben had been killed by their father. On reaching the house of Ashaben, this witness inquired from his daughter Ashaben and she stated that her husband has killed both the sons. She stated that after supplying milk, when she returned home, she saw her husband causing injuries. It is required to be noted that to the father she only complained in past that the accused used to take liquor and used to quarrel with her. This witness has denied a suggestion that his son-in-law i.e., accused was doubting the character of Ashaben and used to ill-treat her, and therefore, she used to come at her parental house. Witness also denied the suggestion that she conveyed her mother that she is tired and she should be relieved from this botheration and there should be separation. If the daughter was being ill-treated, ordinarily, she would have complained. Looking to the protection provided under the law, the fadier would have taken shelter under the law and would have seen that his daughter and her two sons are living separate and happily. It transpires from the evidence of this witness that Ashaben, the informant and daughter of the witness Mangusinh Tetsinh that no complaints were made about ill-treatment on the pretext of illicit relations, but, he was informed by his daughter Ashaben that the accused was taking liquor and misbehaving. It seems that there were no serious quarrels between them. If Ashaben had taken the quarrels seriously, she would have informed her parents. Some ill-treatment given to her by beating and by words did not affect their normal routine life. Had it been so, they would have separated much earlier. Accused would have driven her out of house on account of allegations which he used to make. But it transpires, on suspicions he used to ill-treat. The nature of ill-treatment was not of such magnitude which would even compel her to convey to her father.
20. In the cross-examination, Mangusinh P.W. 4, has stated that at about 10-00 a.m. they reached Bhadresar. They had no discussion with the parents of the accused. After talking for about 10 minutes with his daughter, they removed her forcibly to village Mahudi, and since thereafter, she is staying with them. In the cross-examination, it is brought out that they went to Himmatnagar Police Station where Ashaben narrated the incident and the police officer asked them to go to Jadar Police Station. Suggestion put to the witness that they engaged a lawyer has been denied. It is stated that Ashaben, Fatesinh and Sarpanch Somsinh and witness himself went to Jadar. It is taken out from the mouth of the witnessthat at Jadar, complaint was recorded which took for about half an hour to one hour. Suggestion is put to this witness that after taking Ashaben, a false case is lodged against the accused. It is further suggested that the witness himself, Ashaben and others conspired together for falsely involving the accused and that they have given false statements before the police. It is required to be noted that before the police, this witness has stated that while questioning Ashaben, she stated that in the early morning, after milking, she went to Dairy for delivering the milk and in the meanwhile, her husband killed both her sons by delivering blows by means of dhariya. From the evidence of this witness, it is suggested by the defence Counsel that the information is not lodged at the place where it is alleged to have been lodged and witness Ashaben P.W. 3 could not have seen the incident. Whatever discussion took place between the father and the daughter has not been exactly reproduced by father before the police. After discussion between them, some time has elapsed and they were in such a mental condition i.e., of stress-agony that it is difficult to accept that they would remember exactly as to what transpired and what was conveyed. They would not have photographic memory to reproduce the same what was seen and what was heard. It is required to be noted that the witnesses are coming from backward strata and backward area. They are not educated persons residing in the city.
21. Others who arrived at the scene of occurrence are not examined is the say of the learned Counsel. It may be noted that others, including the father of the accused-appellant arrived at the spot. P.W. 7 Dalpatsinh, a neighbour has been examined.
22. With regard to contention that though there was telephone, police was not informed and only after arrival of relatives of informant, police was informed, we would say that, it was the duty of the father of the appellant-accused and father-in-law of the informant to inform the police on telephone. Conduct of informant cannot be commented for not informing as she became unconscious soon after seeing cruel murders of her two sons. The members of the family of the accused have played partisan role and that is required to be condemned. If the information was lodged with the police, there would have been no reason to make grievance at a later stage that the members of the family knowing full well that an offence, non-bailable and cognizable, has been committed, yet they have neglected to inform the police. Section 39 of the Code of Criminal Procedure casts a duty on the members of the public to convey information. Relevant part of Section 39 of Code of Criminal Procedure reads as under :
Section 39(1) : Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following Sections of the Indian Penal Code (XLV of 1860), namely :-
(i) xxx xxx xxx xxx(ii) xxx xxx xxx xxx(iii) xxx xxx xxx xxx(iv) xxx xxx xxx xxx(v) Sections 302, 303 and 304 (that is to say, offences affecting life);
(vi) xxx xxx xxx xxx(vii) xxx xxx xxx xxx(viii)xxx xxx xxx xxx(ix) xxx xxx xxx xxx(x) xxx xxx xxx xxx(xi) xxx xxx xxx xxx(xii) xxx xxx xxx xxxshall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.
(2) For the purposes of this Section, the term 'offence' includes any act committed at any place out of India which would constitute an offence if committed in India.'
As the member of public is not expected to be familiar with the numbers of the Sections of the Indian Penal Code, a brief description of various offences has been inserted in addition to the reference to the Sections of Indian Penal Code. Similarly, every person residing in a village is required to forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station whichever is nearer, any information which he may possess relating to offences which include the commission of an offence under Section 302 of Indian Penal Code. Thus, members of the family, were required to remove the persons to the hospital and under the law, they were required to inform the police or the Magistrate. Though the police was required to be informed, having not informed, the informant, a female who lost her two children is not to be blamed.
23. It is required to be noted that there is evidence to show that father-in-law had a telephone at his residence i.e., the place where the incident took place. It is also clear that Ashaben became unconscious. It also appears that Dalpatsinh, P.W. 7 went to village Mahudi to convey information. It is not his case that at the instance of father of the accused and father-in-law of informant Ashaben, he went to Mahudi to convey information. Ordinarily, father of the accused would have informed about the incident to the father-in-law of the accused and father of Ashaben, but that is not done. That aspect is clear from the evidence of Mangusinh Tetsinh, P.W. 4. Having not made any arrangements for a doctor or for informing the police though there was a telephone at the home speaks a lot about the conduct of the members of family of the accused. Obviously, in such situation, it is improper to blame by saying that Ashaben tailed to lodge F.I.R., who became unconscious after seeing ghastly murders of her own minor sons. It is not expected from Ashaben that she should have conveyed the information immediately. An uneducated rustic woman who was in helpless condition is not to be blamed for delay, but the persons who were residing in the house and that too male members who were there are required to be blamed. Therefore, we do not accept the contention of the learned Counsel with regard to delay.
24. In the instant case, witness Ashaben is a rustic village woman. Obviously, it is not expected that she should be precise while conveying timings. In thevillage, normally people do not move with the wrist watches. People in the villages usually convey time approximately and that too on the basis of sunrise and sunset. Many times, witnesses are giving time by general impression. In view of this, when the witness has stated about the time, it is to be understood approximately. It is also required to be noted that in the instant case, the woman belongs to an area which is a backward and interior area. It must also be borne in mind that she witnessed ghastly murders of her own minor sons. She was mentally disturbed cannot be lost sight of. The Apex Court has pointed out that inconsequential and immaterial mistake should not be taken note of. If it was realty case of urban witnesses, the version would have been different. If it was an intention to concoct the case, there was sufficient time and the case would have been concocted. From the evidence, it is clear that her version is quite natural. The trial Court had an advantage of seeing the witnesses before the Court and the observations made by the trial Court cannot be brushed aside lightly. The trial Court had an occasion of observing demeanour and reading straightforwardness of witnesses who deposed before the Court in natural way.
25. In the case of Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra, (AIR 1973 SC 2622), the Apex Court has pointed out as under :
'Witness to a criminal trial is a rustic and so his behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in Courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered.'
The aforesaid aspect has been reiterated in the case of Ranbir Yadav v. State of Bihar (1995 (4) SCC 392).
26. Mr. Shethna, learned Counsel appearing for the appellant - accused submitted that the prosecution has not examined all witnesses, and therefore, story is doubtful. It is required to be noted that the real test is whether a person sought to be examined is a witness essential for unfolding of narratives on which prosecution case is based. The prosecution is not bound to call all witnesses who may have seen the occurrence and to duplicate the evidence. The Apex Court has pointed out that the prosecution is not bound to produce each and every witness of the occurrence irrespective of consideration where such witness is essential for unfolding narratives on which prosecution case is based. Non-examination is not fatal. In any case, except Ashaben, none has seen the accused in action. It is not the prosecution case that anyone else has seen the occurrence. Therefore, she was the only witness capable of unfolding prosecution case. Prosecution has examined one witness namely Dalpatsinh P.W. 7. This witness would not throw any light on the manner in which the incident took place. The Apex Court pointed out in the case of Sarvan Singh and Ors. v. State of Punjab, (AIR 1976 SC 2304) that the law is well settled that prosecution is bound to examine only such witnesses as are essential for unfolding prosecutionnarratives. The Court must be satisfied that the witnesses who hail been withheld were eye-witnesses who had actually seen the occurrence and were therefore, material witnesses to prove the case. It is also pointed out that it is not necessary to multiply the witnesses for proving facts on the same point. We find no substance in the contention raised by learned Counsel that the prosecution ought to have examined all the witnesses who came subsequently to the scene of occurrence.
27. The Apex Court in the case of State of Uttar Pradesh v. Anil Singh, (AIR 1988 SC 1998) pointed out as under. Para 15 :
'It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.'
28. So far as recording of First Information Report is concerned, learned Counsel for the defence has also commented on the evidence of the police officer. Police Sub-Inspector Babubhai Kodarbhai Patel stated in the examination-in-chief that on 24-8-1998, he was on duty at Jadar Police Station and Ashaben, wife of Dharmendrasinh - the accused had given information, which was recorded in writing at Exh. 24. He stated that on the basis of the complaint, P.S.O. Bhurjibhai, registered the offence at about 17-00 hrs and he proceeded with the investigation. In the cross-examination, this witness admitted that he had been to Court of Chief Judicial Magistrate on 24-8-1998 in connection with Cr. No. 54 of 1998 of Jadar Police Station. He was required to take remand of the accused in that connection, and therefore, he had gone in Government vehicle. Questions have been put with regard to police diary and the entries. He has been further questioned as to whether he made an entry while leaving the Court or not, to which he stated that he does not recollect any further. He has stated that after completion of procedure of taking accused on remand before the Chief Judicial Magistrate in connection with the case referred earlier, he left the Court at about 1-00 p.m. At about 2-15 p.m. he went to Himmatnagar City to lodge the accused of that case in the jail. He further stated that at that time, he received information on wireless about the incident which he had noted in his case diary. Receiving this message, he straightaway went to village Bhadresar at 3-30 p.m. Reaching the house of Ashaben, he found Ashaben at her home, where she gave her complaint which was recorded at her residence. He further stated that he commenced investigation at about 15-30 hrs. Question is put to him that only after recording information, investigation commences and in the instant case, no offence was registered at Jadar Police Station when he commenced the investigation. It is required to be noted that the police officers are investigating several crimes and are required to depose before the Court,and therefore, when some documentary evidence is there, that is also required to be preferred in a situation where two different versions are noticed. In the instant case, inquest panchnama Exh. 16 is required to be referred. The same is addressed to Sub-Divisional Magistrate, Himmatnagar. Reading the contents of that documents, it is clear that Police Sub-Inspector had been to the Court at Himmatnagar for the purpose of obtaining remand of the accused in connection with Jadar Police Station Cr. No. 54 of 1998 and 60 of 1998. He received message from the control room, Himmatnagar that two murders have taken place at village Bhadresar, and therefore, he reached Bhadresar straight from Himmatnagar, where he recorded the First Information on 24-8-1998. Ashaben conveyed that Mansinh Ratansinh Makwana, her husband caused death of her two sons Jigarsinh and Vimalsinh by sharp edged weapon. After recording the First Information Report, the same was forwarded to the police station for registration which was registered as Cr. No. 61 of 1998 and he proceeded with the investigation. Thus, it is very clear that first information report is not recorded at police station, but it is recorded at the house of Ashaben, where incident took place and the first information was forwarded to the police station for registration.
29. Ordinarily, uneducated people would believe that the police works in the police station, and therefore, complaint should have been recorded in the police station and under this belief, they must have stated that the complaint was recorded at the police station. This embroidery is required to be taken into consideration. In the cross-examination, this witness has come out with the version that he has recorded the complaint in the police station. But, the documentary evidence rules out possibility of any foul play and in our opinion, the first information report must have been recorded at the house of Ashaben.
30. Investigating Officer has denied the suggestion that the dead bodies were not identified by Ashaben or she has not shown the place of occurrence or that she was not present at that time. It seems that the question was put to the Investigating Officer with a view to indicate that after leaving the house, she never came back, and therefore, she could not have identified the dead bodies or she could not have shown the place of occurrence. As stated earlier, there may be embroidery in the version of the prosecution witness and fear that what they say may not be believed, she might have stated. Learned Counsel for the defence has put emphasis on admission of Ashaben that she left Bhadresar, and thereafter, she never turned back. If this aspect is considered, then she could not have identified the dead bodies or she could not have shown the place of occurrence. It is required to be noted that her complaint was not only recorded at village Bhadresar, but if the inquest panchnama Exh. 16 and panchnama of the place of the occurrence are read, it is clear that the dead bodies have been identified by Ashaben and the scene of occurrence is also pointed out by Ashaben. Under these circumstances, it is very clear that not only the F.I.R., but even the panchnamas were prepared in her presence and she identified the dead bodies and pointed out the place of occurrence. The inquest panchnama is Exh. 16 and the panchnama of place of occurrence is Exh. 22. Police officerP.W. 9 has testified this aspect. When it is stated that she did not return back to Bhadresar, it would mean after the completion of procedure narrated above.
It is interesting to note that the learned Counsel for the defence relying on the evidence of Bhurjibhai Damor, Police Head Constable, submitted that information was received at about 9-15 a.m., and therefore, there is intentional delay on the part of the investigating agency in delaying recording of F.I.R. In the cross-examination, this Police Head Constable has stated as under :
'Information about occurrence was conveyed on telephone from Bhadresar. That telephone (message) was received between 9-00 a.m. to 9-15 a.m. At that time, Police Head Constable Manharsinh was P.S.O. That telephone (message) was received by Manharsinh. Manharsinh has not recorded this information in the police station diary.'
It is interesting to note that in the next sentence, he has stated that when he took charge as P.S.O., he had no knowledge that at Bhadresar, two boys have been murdered. There is nothing in the evidence to indicate that Bhurjibhai had any conversation with the Police Head Constable-Manharsinh. It is surprising that how he states that the telephone (message) was received between 9-00 a.m. to 9-15 a.m. by Police Head Constable-Manharsinh in absence of any note made in the diary. In fact, this evidence is not admissible. If Manharsinh was discharging his duties as P.S.O. and would have deposed before the Court, matter would have been different. If the entry was made in usual course and was identified, it would have been different matter. But in the absence of any entry and without meeting Police Head Constable-Manharsinh, how this witness is stating that a telephone (message) was received about the incident at Bhadresar. It is obvious that with a view either to help the accused or stating on oath about the facts for which he had no information, he has stated so. We are inclined to state that this Police Head Constable is trying to oblige the defence, when he states that Dashrathsinh Ratansinh, brother of the accused came from Bhadresar for lodging information and at the relevant time, he was in charge as P.S.O. This witness states that Dashrathsinh disclosed the information about the commission of crime in his presence, but he has not noted in the station diary. He was aware that as P.S.O., it was his duty to record such information in the police diary. At what time, Dashrathsinh came is not stated by him. This has some relevance because it is this witness who states that he conveyed the message on wireless to Police Sub Inspector. However, the Police Sub Inspector has stated that the information was received from the control and not from this Police Head Constable. In para 4, Police Constable has stated that in the morning, Dashrathsinh, brother of the accused came and he asked him to go back by stating that the Police Sub Inspector will visit the scene of offence. This witness was examined for the purpose of conveying before the Court that he registered the offence on 24-8-1998 at about 17-00 p.m. on the basis of the information conveyed by Ashaben. It is this Police Head Constable who has drawn panchnama with regard to clothes of the deceased after the autopsy. He is coming for the first time before the Court with a version as narrated hereinabove with regard to the Police Head Constable Manharsinh and arrival of Dashrathsinh and not recording the information. In para 5, this witness has stated that insofar as theinformation with regard to this offence is concerned, nobody came to Jadar Police Station, and therefore, it is clear that though he is the Police Head Constable, he is coming before the Court with a version which may help the defence and reading the cross-examination no reliance on such hearsay evidence can be placed. He stated that no one came to Jadar Police Station in connection with this incident, hence his evidence becomes unworthy of any credence and cannot be accepted.
31. With regard to the investigation carried out by the Investigating Officer, it was submitted before us that the story is not consistent i.e. when complaint was recorded whether at the police station or at the place of occurrence. We have indicated earlier that the Investigating Officer being busy with several investigations and' deposing in the Court, after a lapse of time, he is likely to commit mistake about the place where he recorded the complaint. In the instant case, additional factor is that when he was on duty at Himmatnagar, he received wireless message from the control room, and thereafter, he straightaway went to the place of occurrence. That fact is noted in the panchnama also. The Apex Court in the case of State of Rajasthan v. Kishore, (1996 SCC (Cri.) 646) has pointed out that mere fact that the investigating officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. In that case, piece of evidence was not considered by the High Court, but it felt it doubtful like Doubting Thomas with vacillating mind to accept the prosecution case for the reasons which the Apex Court pointed out were invalid reasons and has wrongly given benefit of doubt to the respondent. Suffice it to say that in the instant case, there is sufficient, reliable, trustworthy and acceptable evidence, and therefore, the discrepancy pointed out is of no importance and does not affect the prosecution case and therefore, not only the evidence was rightly accepted by the trial Court, but the trial Court on appreciation of evidence and circumstances in which offence was committed, made the order.
32. There may be intentional omission on the part of the Investigating Officer or negligence on the part of the Investigating Officer. The Apex Court in the case of Karnail Singh v. State of Madhya Pradesh, 1995 (5) SCC 518 has observed as under :
'In case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event, it would tantamount to be falling into the hands of an erring investigating officer.'
33. In the case of Ram Bihari Yadav v. State of Bihar, 1998 (4) SCC 517, the Apex Court observed in para 13 as under :
'In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency, but also in the administration of justice.'
in the case of Paras Yadav v. State of Bihar, 1999 (2) SCC 126, the Court held as under :
'It may be that such lapse is committed designedly or because of negligence.Hence, the prosecution evidence is required to be examined de hors such omissionsto find out whether the said evidence is reliable or not.'
34. In the case of Ambika Prasad and Anr. v. State (Delhi Administration), 2000 SCC (Cri.) 522, the Apex Court has pointed out in para 10 as under :
'Further, it is to be borne in mind that a criminal trial is meant for doing justice to the accused, the victim and the society so that law and order is maintained. Hence, as observed by this Court in State of U.P. v. Anil Singh, it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. Hence, we would only stale that it is an unfortunate state of affairs that police officers resiled from their own statements and depose something contrary before the Court. Equally, it is unfortunate that the investigating officer has not stepped into the witness box without any justifiable ground. But this conduct of the investigating officer or other hostile witnesses cannot be a ground for discarding the evidence of P.W. 5 and P.W. 7 whose presence on the spot is established beyond reasonable doubt. They have suffered injuries and their evidence is corroborated by medical evidence. It is also in conformity with what has been stated in the F.I.R. In any case, the investigating officer is not at all a material witness for the purpose of establishing whether the accused or the complainant party was aggressor. Not only that, the accused have examined the defence witnesses for establishing their say. Hence, non-examination of the investigating officer cannot be a ground for holding that the injured witnesses should not be believed.'
35. Learned Additional Sessions Judge has minutely examined the evidence of P.W. 3 Ashaben, the sole eye-witness. The teamed trial Judge has found that P.W. 7 Dalpatsinh Bhikhusinh Exh. 35 has supported the evidence of Ashaben. Trial Court also opined that Dalpatsinh being the neighbour, it is but natural that he would like to assist the accused. The learned trial Judge has examined the evidence of both the witnesses and has minutely analysed the same. Witness Dalpatsinh Bhikhusinh, P.W. 7, as observed by the learned Additional Sessions Judge has gone to the extent of stating that when he went there, there was none else. He has also stated that if someone is leaving the room from southern direction, he would be in a position to see, but he has not seen anyone leaving. The witness has suggested that none has left the house, and therefore, the say of Ashaben should not be accepted. The learned Judge has analysed the evidence and has pointed out the distance between the two houses and that after she raised shout, the accused ran away from the spot, and thereafter, the witness arrived, and therefore, he must not have seen the accused leaving. Trial Court pointed out that the evidence of this witness Dalpatsinh is consistent so far as the departure and arrival of Ashaben is concerned. The learned Judge has also pointed out in the judgment that ordinarily when wife is leaving the house and when the children are at home, she would have locked the doorsas children were sleeping. But as husband was present, the house was not locked. Obviously from her evidence, it is clear that the husband was present and there is no reason to doubt her evidence. The witness Dalpatsinh when questioned, has stated in para 7 of his deposition that he does not know that the accused was doubting the character of Ashaben and there were quarrels on this count. If this witness was residing in the neighborhood and children were conveying to other relatives and others regarding the quarrels taking place between Ashaben and the accused, then ordinarily, this witness would have come to know about these facts, but he has not stated so. To this witness, it is not put that on the previous night Gobarsinh was invited for liquor and Gobarsinh and the accused quarrelled after taking the liquor. It is put to this witness that on the previous night Ashaben and her husband quarrelled to which he has shown his ignorance. This witness could hear the shout raised by a woman in the morning, then he could have heard the quarrel which took place between the accused and his wife or accused and Gobarsinh as suggested to Ashaben.
36. From the evidence of Ashaben, it is very clear that when she left, the accused was alone at home and when she returned back, she saw the accused causing injury and as she raised shouts, her father-in-law came, and thereafter, the accused ran away. We do not find any reason not to accept the evidence of Ashaben. It is required to be noted that in the instant case, she is the only eye-witness. She has lost her two sons. A woman would not involve her husband falsely. In the instant case, she has lost her two children and possibly, now she will have no chance to become mother of a child and she knows that in future, there will be none to protect her except her husband, yet, she is deposing before the Court against her husband. Her evidence reveals aring of truth. We are of the view that when a lady has lost her two sons, she would not have involved her husband falsely. In the instant case, they were residing together for 15 years and no quarrels of such magnitude have been pointed out which would tempt her to falsely implicate her husband. For one or the other reason, ill-treatment meted out to her would not give reason to involve her husband falsely. In the instant case, at the cost of repetition, we would say that Ashaben has not complained to her parents about minor quarrels, and therefore, when she has seen the incident and has named her husband as the accused because she has seen, accused committing crime, we would like to say that her evidence has been rightly accepted by the trial Court.
37. Some minor variance which has been found by the learned Additional Sessions Judge has been discussed in the judgment. He has considered the same and some minor omission or contradiction which would not go to the root of the matter are not required to be taken into consideration. In the instant case, even the police officers have taken the matter very casually while deposing before the Court. Learned Additional Sessions Judge has considered this aspect in paras 22 and 23 of the judgment. We have also scanned the evidence. We are of the view that the opinion given by the learned Additional Sessions Judge is required to be accepted.
38. With regard to evidence of Nathusinh Madhusinh Makwana, P.W. 2, it is required to be noted that this witness though on oath has stated that thecontents of the panchnama are true and have been recorded as per his say, before the Court, he has tried to remove the presence of Ashaben from the panchnama and very swiftly stated that Ashaben was not there. Exhs. 16 and 22 are the panchnamas. Learned Additional Sessions Judge has examined the panchnamas in detail. We have also referred earlier about these panchnamas and in view of the contents of the panchnamas, it is clear that even this witness Nathusinh PW 2 has tried to assist the defence by stating that Ashaben was not there though in two panchnamas, specifically there is a reference and in examination-in-chief, he has stated that the contents of the panchnama are true. It is also admitted by this witness that when the police arrived at the scene of occurrence, dhariya was lying under the cot and was stained with blood. It is required to be noted that the agriculturists or the persons residing in the villages are keeping instruments like dhariya, axe etc. They are not required to go to market for purchase of such instruments for committing crime. The instrument being immediately available, it seems, has been used in commission of crime. Learned Additional Sessions Judge has also noted the demeanor of this witness in the judgment. He has found the evidence of Ashaben reliable and acceptable. After appreciating the evidence, he has opined that there is no reason for her to involve her husband falsely. Some minor omissions or contradictions are bound to be there in the evidence of witnesses. It is required to be noted that the story placed before the Court is like a parrot, even then, it would be subjected to criticism because it is absolutely difficult to recollect the sequence of events or to be precise, the manner in which the incident took place or the reproduction of words which were uttered by the persons. Minor variances are bound to be there and if such variance is not there, it can be said that the witness is tutored. When the witness is giving evidence, he has not to remember the police statement but has to give his version in a natural manner. The trial Court has considered various aspects and has arrived at a conclusion that the evidence of Ashaben is reliable and acceptable. The learned trial Judge has also pointed out that the motive is not important in the instant case as there is direct evidence. It is also clear that the children were complaining to the relatives about the ill-treatment. Young kids when they find that the mother is being beaten by the father, ordinarily, they would complain before the grand parents and other relatives so that there may not be ill-treatment. It is the accused considering the fact that in the morning there was none and he was alone in the house and realizing that the wife has gone away, took the opportunity and used a dhariya for committing brutal murders of these two kids who were defenceless and helpless. They were sleeping at the relevant time. They had no chance to run away. Learned trial Judge has observed that the accused has committed murder of his two sons aged 11 years and 6 years in a cruel manner and according to him, this being rarest of rare case, punishment as provided in the Indian Penal Code must be imposed. It is required to be noted that after the incident, the accused ran away. It is required to be noted that if the accused in ordinary course was out of his house in the morning, he would have returned by about noon time. But in the instant case, it has not happened so. After committing the crime, the evidence reveals that he ran away. By committing crime, the accused succeeded in his motive to seethat the children can never complain about the ill-treatment given by him to any one. Though, it was a small family and a small house, the wife has never complained to her in-laws or her parents about the ill-treatment. This indicates that Ashaben without making grievance about the ill-treatment was looking after her two sons. The crime committed by the accused in the manner as stated hereinabove can be said to be ghastly murders. Learned A.P.P. submitted that in view of this, it can be stated that it is the rarest of rare case and the appeal preferred by the accused must be dismissed and the prosecution case must be accepted and the order passed by the Additional Sessions Judge must be confirmed by this Court so as to execute the death sentence.
39. Mr. Shethna, learned Counsel for the defence submitted that the Apex Court in the case of Manohar Lal @ Munna and Anr. v. State (N.C.T. of Delhi), AIR 2000 SC 420, has not awarded death penalty even in a case where 4 sons of an eye-witness were roasted to death in front of her eyes. He invited our attention to the decision of the Apex Court in the case of Kishori v. State (NCT of Delhi), AIR 2000 SC 562 and submitted that in that case, three persons were done to death and the Apex Court has not awarded extreme penalty. In the case of Manohar Lal (supra), in para 8, the Court has pointed out as under :
'The normal sentence for murder is life imprisonment and death penalty is now reserved to be given in 'rarest of the rare cases' in which the other sentence is unquestionably foreclosed. Thus, death penalty is now sequestered to the narrowest region. What the appellants have done were no doubt acts of the most gruesome nature. But we bear in mind that they were on a rampage, and they ran berserk unguided by sense or reason and triggered only by a demented psyche. They had no special or personal animosity towards anyone of the deceased individually.'
Even in the case of Kishori (supra), incident took place during some mob frenzy. In the case of Manohar Lal (supra), the Apex Court considered the case of Kishori (supra) in para 9 and has indicated the guidelines by observing as under :
'When an amorphous group of persons come together, it cannot be said that they indulge in any systematic or organized activity. Such group may indulge in activities and may remain cohesive only for a temporary period, and thereafter, would disintegrate. The acts of the mob of which the appellant was a member cannot be stated to be the result of any organization or any group indulging in violent activities formed with any purpose or scheme so as to call an organized activity. In that sense, we may say that the acts of the mob of which the appellant was a member was only the result of a temporary frenzy.'
Mr. Shethna, therefore submitted that when the Apex Court has not thought it fit to award extreme penalty in a case involving 4 murders, this Court also by following the precedent should not award extreme penalty.
40. Mr. Shethna invited our attention to the decision of the Apex Court in the case of Om Prakash v. State of Haryana, AIR 1999 SC 1332 with a view to point out that the instant case is not the rarest of the rare case. The accused was a member or a paramilitary force who had killed 7 members of a family in pre-planned manner, In that case, there was no previous criminal record. However, the accused and his family members were suffering agony at the hands of the family of the victims. He was feeling that there is some injustice meted out to his family members, and therefore, he took extreme steps. It was not a crime committed because of lust of wealth or a women, such as extortion, dacoity nor even for lust and rape. It was not an act of anti-social element kidnapping and trafficking in dangerous drugs which affects the entire moral fibre of the society and kills number of persons nor was the crime committed for power or political ambitions nor part of the organized criminal activities. It is a crime committed by the accused who had cause to feel aggrieved for injustice meted out to his family members at the hands of the family of the other party who according to him were strong enough physically as well as economically and having influence with the authority which was required to protect him and his family. The bitterness increased to a boiling point and because of the agony suffered by him and his family members at the hands of the other party and for not getting protection from the police officers concerned or total inaction despite repeated written prayers goaded or compelled the accused to lake law in his own hands which culminated in gruesome murders; may be that his mind got derailed of the track and went astray or beyond control because of extreme mental disturbances for the constant harassment and disputes. In para 7 of the judgment in the case of Om Prakash (supra), the Apex Court held as under :
'It is true that the Court must respond to the cry of the society and to settle what would be deterrent punishment for abdominable crime. It is equally true that large number of criminals go unpunished thereby increasing criminals in the society and law-losing it deterrent effect. It is also truism as observed in the case of State of M.P. v. Shyamsunder Trivedi, reported in 1995 (4) SCC 262, that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis the society suffers and a criminal gets encouraged. Sometimes, it is stated that only rights of the criminals are kept in mind, the victims are forgotten. Despite this it should be kept in mind that while imposing the rarest of rare punishment i.e. death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case.'
41. Case of Shanker v. State of Tamil Nadu, 1994 (4) SCC 478 as also the case of Bachan Singh v. State of Punjab, AIR 1980 SC 898 were also considered by the Apex Court in the case of Om Prakash (supra). In para 9 of the judgment, the Apex Court pointed out relevant circumstances which are required to be given weightage in determination of sentence. Considering these aspects, the Court examined the facts of the case. It appears that there were applications made to the authorities which were used by the prosecution for establishing motive behind the crime. In paras 10, 11, 12, 13 and 14, the Courthas considered the applications or the letters. Contents of the applications which are referred in para 11 reveal that the opposite side wanted to take possession of the house forcefully. It is pointed out that he was in B.S.F., and the father was an awarded man and the family members of the other side were very strong persons. They interfered with the possession despite the stay order. The other side wanted forceful possession of the house. In past, it is indicated that the other side attacked me mother and his wife. Thus, the Court had various applications indicating that me man was in helpless condition and the accused was all throughout feeling that he and his family members were humiliated by other party who were rich and influential and who were intending to grab plot/ ghar belonging to them. No police protection was provided. Brother's wife having 7 months' pregnancy was assaulted and was required to be hospitalised. Despite the fact that application was moved to take action so as to see that the family members can live in peace, no action was taken. Not only that but it was alleged that the Station House Officer was conniving with the other side and was demanding Rs. 5,000/- from the family members who were not able to pay. Various other circumstances are narrated including that his parents, brothers and wives of his brothers received grievous hurts in the assault. Yet, they were locked up in the police station. The Court has taken into consideration all these aspects and therefore, in the facts and circumstances stated that, it cannot be stated to be the rarest of rare case.
42. Case of Krishan v. State of Haryana, 2000 (10) SCC 451, was cited before us by the learned defence Counsel with a view to canvass that even a life convict was not sentenced to death even though he committed murder. In para 10 of the judgment, the Court pointed out as under :
'Coming now to the sentence, we find that the principal reason which weighed with the Courts below to hold that the extreme penalty of death was called for, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on parole. Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motive, manner and magnitude have also to be taken into consideration. Taking an overall view of the attending facts and circumstances of the instant case, we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death.'
This would not assist the defence at all as the sole basis for awarding extreme penalty of death was the circumstance that the accused was undergoing life imprisonment.
43. In the case of Machhi Singh and Ors. v. State of Punjab, AIR 1983 SC 957, the Apex Court considered the question of imposing death sentence and provided guidelines in para 32. The Court considered these aspects in detail from the point of view of the community. What should be the position when ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the communityfeels that for the sake of self preservation may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, in such circumstances such as (i) manner of commission of murder ...(ii) motive for commission of murder .. (iii) anti-social or socially abhorrent nature of the crime ... (iv) magnitude of crime ... (v) personality of victim of murder; when the victim of murder is (a) an innocent child who could no! have or has not provided even an excuse, much less a provocation, for murder,(b) a helpless woman or a person rendered helpless by old age or infirmity,(c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust, (d) when the victim is a public figure generally loved and respected by the community for the service rendered by him and the murder is committed for political or similar reasons other than personal reasons. In paras 33 and 34, the Court observed as under :
'33. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's 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 has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
34. 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?'
In the instant case before us, the accused killed Jigarsinh and Vimalsinh aged about 11 and 6 years respectively who were sons of Ashaben begotten through the accused who was the husband of Ashaben. Facts and circumstances of the case reveals that it was a cold-blooded murder. Innocent children who were helpless and defenceless were done to death and what was their fault; that they conveyed to their grand parents and relatives regarding the ill-treatment meted out by the accused to his wife and mother of the deceased children? Is it not a case that the offence committed is an offence of extremely heinous nature. After the wife of the accused left for delivering milk to the Dairy, realising that he is at home alone, the accused took the opportunity and committed murder so as to see that they may not complain in future about the ill-treatment. The manner in which the crime is committed is also required to be seen. The accused used an instrument normally used for agricultural operation as a weapon for murder of two defenceless minor children. The accused was expected to look after them and with a view to see that his tortuous act towards his wire is not complained in future, he executed the act. He was aware that there is none in the house, and therefore, nobody would witness that he has committed the crime. But the mother arrived and saw that her husband was delivering blow on the son. The victims were not in a position to offer any resistance at all. They were helpless and were done to death when they were asleep. The crime was gruesome and cold-blooded.
44. Mr. Shethna, learned Counsel for the defence submitted that the Apex Court in the case of murder of wife and children has not awarded death penalty. He drew our attention to the decision of the Apex Court in the case of Shaikh Abdul Hamid v. State of Madhya Pradesh, AIR 1998 SC 942. It was a case of circumstantial evidence as observed in para 5 of the judgment. However, on the question of sentence, in para 10 of the judgment, the Apex Court has pointed out that it was not pointed out by the prosecution that it was a coldblooded murder. There is nothing on record to show that how the murder has taken place. The Court pointed out that 'in the absence of such evidence, we do not find that the case before us falls out of the category of rarest of rare cases.' Mr. Dave learned A.P.P. submitted that in the instant case, there is sufficient material on record as to how the accused killed two innocent children. It is also pointed out by the learned A.P.P., that in the instant case, after the departure of Ashaben from the house, accused took the opportunity for killing two children of his own and used a weapon namely dhariya. If, incident of a serious nature between the two would have taken place on previous day, possibly, wire would not have gone out or would have taken children with her, but having full faith in the husband that he will not do anything wrong with the children, she kept the children at home and went to Dairy and the accused took up the opportunity and committed the crime.
45. Mr. Shethna, learned Counsel for the defence submitted that death penalty should not be imposed in the instant case. He submitted that in the instant case, there is no motive to commit the crime. In that case, as observed by the Apex Court, 'the Sessions Judge was wrong in imposing sentence of death even withoutreference to reason as to why the appellant committed murder. The observation of the High Court that the appellant deserved no mercy because he showed no mercy smacks very much of punishment by way of retribution. We have examined the facts of the case. We find some vague evidence to the fact mat the appellant suspected that the deceased was not his own sons and that he used to get angry with the deceased for not obeying him. We gather that the appellant was a moody person who had for years been suspecting the fidelity of his wife. We do not think it proper to use adjectives like cruel and brutal as provided under Sub-section (3) of Section 354 of Cr.P.C. In view of the aforesaid observations made by the Apex Court, Mr. Shethna submitted that in the instant case, the respondent was doubting the character of his wife.
5-7-2001 :
46. Mr. Dave, learned A.P.P., submitted that in the instant case, two children who were defenceless have been murdered mercilessly by none other than the father. Mr. Dave submitted that in the case of Kuljit Singh @ Ranga v. Union of India and Anr., AIR 3981 SC 1572, murder was committed after savage planning. The murder was most certainly not committed on the spur of the moment as a result of some irresistible impulse which could be said to have overtaken the accused at the crucial moment. Mr. Dave submitted that in the instant case, there was a planned motivation. Here, the accused took the opportunity when the children were alone at home and after departure of the wife, act was committed. Mr. Dave further submitted that in the case before the Apex Court in the case of Kuljit Singh (supra), murder of two particular children was not pre-planned. In that case, the accused had made all preparations for committing murder of a person or persons whom they would have apparently obliged by offering lift. The plan which they had hatched was that they would have offered a lift to some young children, try to extort ransom from their parents by kidnapping them and do the children to death in the event of any impediments arising in the execution of their plan. Mr. Dave invited our attention to para 8 of the judgment and submitted that the murder was committed after savage planning. The murder was most certainly not committed on the spur of the moment as a result of some irresistible impulse which could be said to have overtaken the accused at the crucial moment. In other words, there was a planned motivation behind the crime though the accused had no personal motive to commit the murder of these two children. Mr. Dave further submitted that when there is cold-blooded murder of innocent children, extreme penalty must be imposed by the Court. He invited our attention to the case of Ravji @ Ramchandra v. State of Rajasthan, 1996 (3) GLR 229 where no doubt, during the night hours, all the family members who were fast asleep in their residence were done to death. He emphasized that reading para 12 of the said judgment, it is very clear that when innocent children were done to death with lethal weapon when they were fast asleep, death penalty is the only penalty and must be imposed.
47. Mr. Dave further submitted that looking to the facts of the present case, the accused ill-treated Ashaben - his wife and mother of two unfortunate children. It is clear that the children used to complain about the ill-treatmentmeted out at the hands of their father. The accused realizing that it is children who are complaining to the others, decided to kill them and took opportunity when mother of the children was not at home. Mr. Dave submitted that these were cold-blooded and brutal murders in which two innocent children lost their lives. In the case of Asharfi Lal and Sons v. State of U.P., AIR 1987 SC 1721 appellants Asharfi Lal and Babu, real brothers committed brutal murders of their two nieces namely Kumari Sumati, aged 14 years and Kumari Kalkanta, aged 20 years, daughters of their predeceased paternal cousin. The accused committed reprehensible and gruesome murders of two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with the mother of the victims, the only punishment, the accused deserved was nothing but death. Mr. Dave invited our attention to para 3, wherein the Court has pointed out as under :
'These were cold-blooded brutal murders in which two innocent girls lost their lives. The extreme brutality with which the appellants acted shocks the judicial conscience. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided by Section 302 of the Penal Code. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment.'
In the case of Ramdeo Chauhan @ Rajnath Chauhan v. State of Assam, 2000 (7) SCC 455, in para 13, the Apex Court pointed out as under :
'It is true that in a civilised society a tooth for a tooth, and a nail for a nail or death for death is not the rule, but it is equally true that when a man becomes a beast and a menace to the society, he can be deprived of his life according to the procedure established by law, as the Constitution itself has recognised the death sentence as a permissible punishment for which sufficient constitutional provision for an appeal, reprieve and the like have been provided under the law. It is true that the life sentence is the rule and death sentence is an exception. We are satisfied that the present case is an exceptional case which warrants the awarding of maximum penalty under the law to the accused appellant. The crime committed by the appellant is not only shocking, but it has also jeopardised the society. The awarding of lesser sentence only on the ground of the appellant being a youth at the time of the occurrence cannot be considered as a mitigating circumstance in view of our findings that the murders committed by him were most cruel, heinous and dastardly. We have no doubt that the present case is the rarest of the rare requiring the maximum penalty impossible under law.'
Case of Maghar Singh v. State of Punjab, 1975 (4) SCC 234, was a case of quadruple murder. Murder was committed with most brutal manner with severe cruelty inflicting number of injuries on each victim including a female baby hardly of 2-1/2 years of age and two helpless women. They were murdered while they were in deep sleep after lunch keeping the doors and windows of the house open without suspecting any foul play from any quarter. In that case,the High Court after referring various judgments delivered by the Apex Court on the facts found as under :
'There cannot be any manner of doubt that in the present case, murders havebeen committed by the accused after premeditation with a motive to commita theft. The crime can be described to be heinous, dastardly, gruesome and cruel.The persons asleep have been killed in a merciless manner by the accused whohas no value for human lives. The crime committed by the accused falls withinthe aggravating circumstances as it has been committed after previous planninginvolving extreme cruelty. The murders in the present case involve exceptionaldepravity. In view of this, the question arises whether the single circumstanceof the accused being two young should be good enough for us to award lighterpunishment or not. We have not been able to lay our hands on any observationsof the Apex Court and none has been brought to our notice during the courseof arguments that even if all the aggravating circumstances are present in aparticular given case, single circumstance of the accused being too young or tooold would outweigh other aggravating circumstances and the Court must on thebasis of a single circumstance grant lighter punishment. Having given our deepand thoughtful consideration and after giving due weight to the mitigating as wellas aggravating circumstances which have been referred to above, we are of theview that the accused in the present case must be given death sentence. Thepresent is one of the rarest of rare cases in which infliction of extreme penaltyis called for.'
48. In the case of Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799 the Apex Court examined the question of awarding of death sentence. The Court also pointed out that under the new Criminal Procedure Code, (1973) the unmistakable shift in the legislative emphasis is that life imprisonment for murder is the rule and capital sentence the exception to be resorted to for reasons to be stated. That was a case of gruesome murder of a young woman and her tender child by the accused. The Apex Court in para 26 pointed out as under :
'Let us crystallise the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302 read with Section 149, or again the accused has acted suddenly under another's instigation, without premeditation, perhaps the Court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrandous features of the crime and hapless, helpless state of the victim, and the like, steal the heart of the law for a sterner sentence.We cannot obviously feed into a judicial computer all such situations since they are astrological imponderable in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.'
49. In the case of Ravji @ Ram Chandra v. State of Rajasthan, 1996 (3) GLR 229 (SC), the Apex Court considered the case of murder of wife and three children while they were sleeping. There was attack on others also. In that case, no remorse was shown by the accused by attending the funeral of his wife and children. The Court rejected the contention that accused must have been seized of psychic disorder momentarily. In para 24, after considering the case of Dhananjoy Chatterjee v. State of W.B., 1994 (2) SCC 220, the Court held as under :
'In our view, in the facts of the case, it has been very clearly establishedthat the appellant has committed one of the most heinous crimes of killing hispoor wife who was in advance stage of pregnancy and three minor children forno fault on their part. The appellant had solvent duty to protect them and tomaintain them, but he betrayed the trust reposed in him in a very cruel andcalculated manner without any provocation whatsoever. The appellant did not evenspare his mother who was very rightly trying to prevent him from committingsuch unpardonable crime. The appellant also attacked his mother with the axewhich he had used to kill his wife and minor children and caused injuries onher person with intention to kill her. Brutality and cruelty with which the crimeshave been perpetrated cannot, but shock the conscience of the society. The crimehad been committed with utmost cruelly and brutality without any provocationin a calculated manner. It is the nature and gravity of the crime but not thecriminal, which are germane for consideration of appropriate punishment in acriminal trial. The Court will be failing in its duty if appropriate punishmentis not awarded for a crime which has been committed not only against the individualvictim but also against society to which the criminal and victim belong. Thepunishment to be awarded for a crime must not be irrelevant, but it should conformto and be consistent with the atrocity and brutality with which the crime hasbeen perpetrated, the enormity of the crime warranting public abhorrence andit should 'respond to the society's cry for justice against the criminal. In ourview, if for such heinous crimes the most deterrent punishment for wanton andbrutal murders is not given, the case of deterrent punishment will lose its relevance.We therefore, do not find any justification to commute the death penalty toimprisonment for life.'
At the cost of repetition, at this juncture, with regard to punishment as indicated by Their Lordships in the case of Machhi Singh (supra), wherein it is pointed out that the community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, and thereafter, the Court has given 5 instances, the present case would fall in category (v) namely personality of victim of murder. When the victim of murder is innocent child who could not have or has not provided even excuse much less provocationfor murder, the case would certainly fall in the category of the rarest of rare cases. In the instant case, two minor children were murdered mercilessly when they were asleep.
50. It was submitted before us that the accused was not convicted for any offence, that he is a person residing in a village and in a spur of moment, he might have committed this crime for which he should not be given extreme penalty as by his own act, he has lost his two sons. In the case of Surja Ram v. State of Rajasthan, AIR 1997 SC 18, the accused murdered his real brother, brother's sons, aunt and attempted to murder his brother's wife and daughter while all of them were sleeping. There was absence of provocation. There was no motive on record from which it can be reasonably held that the accused had any occasion to reasonably feel aggrieved for any unjust and improper conduct on the part of the deceased brother. There was a dispute between the brothers relating to a small piece of land which was settled before about 10 months. No fresh incident had taken place in recent past for which there was any occasion for the accused to feel aggrieved concerning his landed property. The property was partitioned. The manner in which the dispute about putting barbed fence arose, it cannot be reasonably held to be a cause for being temperamentally upset and for entertaining so much wrath and spirit of vengeance as may impel a man of normal composure and frame of mind to run amuck and perpetrate ghastly murders of such magnitude. In that case, the accused selected most opportune moment, namely, dead of night when the dead were sleeping. The Court also considered the nature of weapon used namely sharp cutting weapon. The Court held that the crime committed by the accused falls in the category of the rarest of rare crimes for which extreme penalty of death is fully justified. The Court also noted that the accused was not convicted for any other offence on any previous occasion, but pointed out that such fact can hardly be considered as a mitigating factor in favour of the accused that will outweigh all the aggravating factors and circumstances in which the crime of murder has been committed. The Court pointed out that murders had been committed very brutally and mercilessly of absolutely innocent persons namely, the aunt and two minor sons of his brother with whom there was no occasion to come in conflict and to entertain any grudge or ill-feeling. The Court pointed out that it cannot be reasonably held that the accused had genuine cause to feel aggrieved for injustice meted out to him at the hands of the deceased brother which may impel him to cause murder of his brother. The Court pointed out that when persons were sleeping, murders have been committed and they were absolutely helpless. Such murders and attempt to commit murders in a cool and calculated manner without provocation cannot but shock the conscience of the society which must abhor such heinous crime committed on helpless innocent persons. The Court also pointed out that the punishment must also respond to the Society's cry for justice against the criminal. While considering the punishment before coming to the accused, the Court should be alive not only to the right of the criminal to be awarded just and fair punishment by administering justice tempered with such mercy as the criminal may justly deserve, but also to the rights of the victims of the crime to have the assailant appropriately punished and the society'sreasonable expectation from the Court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused.
51. Considering the aforesaid decisions, it is clear that the Court has severely condemned the act of accused and has refused to interfere with the death penalty whenever victims were helpless or children or when the murder was committed, they were sleeping. This is a case where the children were sleeping. Taking opportunity of the time, namely absence of the wife and by using lethal weapon, namely, dhariya, two murders were committed by the accused and that too, brutally which is clear from the evidence.
10-7-2001 :
52. We gave our anxious thoughts and consideration about the process of sentencing the accused. Learned Additional Sessions Judge no doubt on 28-4-2000 arrived at a conclusion that the prosecution has successfully proved that the accused committed murders of two innocent children, and, on the same day, i.e., 28-4-2000 he afforded an opportunity of hearing to the accused on the question of sentence in due compliance with the provisions under Section 235(2) of Code of Criminal Procedure. The evidence which was on record led the Court to come to a conclusion that the accused is guilty. However, for the penalty as contemplated under the law the accused was heard. Even his Counsel was heard. It was requested that on account of prevailing circumstances in the family, the fact that quarrels used to take place and on account of imbalance in mind, the incident has taken place. It was submitted that the accused was not happy with his wife and considering his young age, mercy should be shown to him. It was also submitted before the Court that there was no intention on the part of the accused to commit crime or that it was not preplanned murder, but all of a sudden, the incident in question took place. In our opinion, the learned Additional Sessions Judge has taken into consideration all the aspects and has dealt with the same. As we have pointed out in the judgment that the matrimonial life between the two did not reach the stage, which would compel us to say that relations were strained. Had it been so, the wife, with the children, would have gone to her parental home. But it seems that the quarrels were on account of his wrong belief and the quarrels were not of such magnitude, otherwise she would have complained to her parents. The fact that after the marriage, there were two children delivered by her, and, considering the difference of age between the two, it is difficult to believe that they were not living happily. With regard to the contention that the act was not preplanned, we are in agreement with the views expressed by the trial Court that after the departure of the wife for the Dairy to deliver the milk, the accused got an opportunity to commit the crime and used lethal weapon. The children were sleeping which is clear from the evidence of Ashaben. After her departure, one must have been carried to the other cot while asleep which would make the task easy for committing crime. It is clear from the evidence that dead bodies were on one cot. If both would have been sleeping in different cots, act could not have been committed as the other would have been awakened. Both wereon the same cot. One facing ground and the other facing the ceiling. We can infer from the panchnama and evidence that both were sleeping on separate cots but after departure of mother Ashaben, the other must have been brought to other cot so as to facilitate the act of execution. After, getting the cot changed, the accused must have waited for some time to see that the boy is in sleep. When children were asleep, by use of lethal weapon, they were done to death. If there were quarrels of high magnitude in recent past, possibly the mother would not have gone alone or would not have gone to the Dairy keeping the children in the house. Having full faith in her husband as usual, she left the children and kept the house open. Had the husband gone out, she would have locked the house while going to the Dairy. The fact remains that when she left for Dairy, the husband was alone in the house while two children were fast asleep and on arrival, she saw the accused causing injury. This itself indicates that the accused took an opportunity to commit the crime. In view of what we have discussed in the judgment in this part, it is clear that quarrels were not of such a magnitude which would give a cause to a wife that there would be no safety of children. It is because with a view to see that the children may not complain, the accused committed heinous crime. Even relations between the accused and his wife were not strained that she would depose falsely against her husband. The only mitigating circumstance tried to be shown is the imbalance of mind of the accused. As discussed above, barring a few suggestions to witnesses and statement of accused there is nothing to support this claim of the accused. In absence of any valid mitigating circumstances, when it is proved that the accused had murdered his two young and helpless sons in sleeping condition in a merciless and brutal manner for no fault on their part, in our opinion, trial Court was right in placing this case in category of rarest of rare case and in awarding capital punishment to the accused. It is clear that the boys had afforded no reason to the accused for taking such an extreme step except that they had informed the relatives about the behaviour of the accused with their mother in past.
53. Attention of the trial Court was drawn to the reported decision of the Apex Court in the case of Ravji @ Ram Chandra v. State of Rajasthan, 1996 (3) GLR 229 (SC), which we have considered. The learned Additional Sessions Judge considered this decision wherein also a request was made that the accused was suffering on account of imbalance of mind. In that case, wife and three children while they were asleep were done to death. In the instant case, when the wife was away, two children were done to death. In the instant case, even the accused did not participate in the after-death ceremony of the children. The learned Additional Sessions Judge has given sufficient opportunity to the accused to make submissions and no further questions have been raised before us on this aspect. In view of what is stated above, the trial Court has complied with the provisions contained in Section 354(3) of Code of Criminal Procedure.
54. In view of what is stated hereinabove, we are of the view that there is no substance whatsoever in the appeal preferred by the accused. Hence, Criminal Appeal No. 500 of 2000 is hereby dismissed. We are satisfied withthe reasons recorded by the learned Additional Sessions Judge, and therefore, we confirm the death sentence awarded by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar. Confirmation Case No. 2 of 2000 is therefore, allowed. Orders accordingly.
55. Mr. Shethna, learned Counsel for the accused submitted that execution of the death sentence be stayed for a period of six months to enable the accused to approach the Apex Court. The judgment is dictated in the open Court and the copy will be forwarded to the accused immediately after the same is ready. We direct that our judgment shall not operate for a period of 6 weeks from the date on which certified copy is supplied to the accused. The date of supplying the copy to the accused shall be communicated by the Jailor to the trial Court as well as this Court soon after delivering the copy.
56. Death sentence confirmed;
57. Appeal dismissed.