MANOJ SURYAVANSHI versus STATE OF CHHATTISGARH

[2020] 4 S.C.R. 1

MANOJ SURYAVANSHI

STATE OF CHHATTISGARH

(Criminal Appeal No. 388 of 2020)

MARCH 05, 2020

[UDAY UMESH LALIT, INDIRA BANERJEEAND M. R. SHAH, JJ.]

Penal Code, 1860: ss.302, 364 – Murder of three minorchildren – Case based on circumstantial evidence – Prosecutioncase was that the complainant lodged missing report of his threeminor children aged about 8 years, 6 years and 4 years respectively– During search, PW-8 stated that he saw the minor children alongwith the appellant near their school – Appellant was not found inhis house and was missing even from the village – Thereafterappellant was contacted on his mobile and he told that he was 60Kms away – Police traced the location of mobile and found him inthe house of PW-13 – At the instance of appellant, dead bodiesalong with the school bags were recovered – Conviction by courtsbelow – Held: Prosecution was able to prove beyond doubt that allthe three minors went to the school in the morning and thereafterthey left for the home at about 11.30 hours – That, thereafter, atabout 12.00 hours, the appellant was seen with all the three minorchildren – There was prior enmity between the appellant and thecomplainant father of the deceased minor children as the wife ofthe accused had eloped with the brother of the complainant-fatherand the children of the accused were without their mother –Immediately after his arrest, the dead bodies were recovered/foundalong with the school bags etc. from the place shown by the accusedhimself – The phone-calls made to the accused was established andproved by the prosecution by examining the Investigating Officerand by producing the call details from the mobile company – Thesechain of events led to the conclusion that the accused first kidnappedthe three minor children and thereafter killed all of them – Nointerference with the order of conviction called for.

Sentence/Sentencing: Death sentence – Conviction and deathsentence for murder of three minor children – For deciding on the

DEF

Aissue of sentence, the aggravating circumstances and mitigatingcircumstances must be located and the right balance must be adopted– In the instant case, the mitigating factors/circumstances were thatthe offence was committed under the influence of extreme mental oremotional disturbance – Appellant was emotionally disturbed dueto the elopement of his wife with the uncle of the deceased and thatBhis children were suffering in absence of their mother; there wereno criminal antecedents; at the time of commission of the offencethe appellant was 28 years of age and his conduct in prison wasreported to be good; he belonged to poor family and was the onlyson of his parents, and his aged mother was taking care of hisCdaughters – On the other hand, the only aggravating circumstancepointed out by the State was the manner in which the incident tookplace and three minors were brutally killed – Except this, no otheraggravating circumstances were pointed out on behalf of the State– Therefore, striking the balance between aggravating circumstancesand mitigating circumstances, in the facts and circumstances of theDcase, more particularly, the mental condition of the appellant at thetime of the commission of the offence, the mitigating circumstancesare in favour of the accused to convert the death sentence to lifeimprisonment – Thus, the death sentence converted into the lifeimprisonment – It is directed that the life means till the end of theElife with the further observation and direction that there shall notbe any remission till the accused completes 25 years of imprisonment.

Evidence: Minor discrepancies and inconsistencies inevidence – Held: The minor discrepancies and inconsistencies inthe statements of the prosecution witnesses and the minor lacuna inFthe investigation led by the police cannot be reason for discardingthe entire prosecution case, if the evidence is otherwise sufficientand inspiring to bring home the guilt of the accused.

Code of Criminal Procedure, 1973: s.235(2) – Object andpurpose – Held: The object and purpose of s.235(2) is that theGaccused must be given an opportunity to make representationagainst the sentence to be imposed on him – Sub-section (2) ofs.235 satisfies dual purpose; it satisfies the rule of natural justiceby affording to the accused an opportunity of being heard on thequestion of sentence and at the same time helps the court to choosethe sentence to be awarded – There is no absolute proposition ofH

law that in no case there can be conviction and sentence on thesame day or that if the sentence is awarded on the very same day onwhich the conviction was recorded, the sentencing would be vitiated.

Partly allowing the appeal, the Court

HELD: 1.1 The prosecution has been successful inestablishing and proving that the accused was having enmity withPW.18-father of the three deceased minor children. The samehas been established and proved by the prosecution by examiningP.W.18, P.W.20 and P.W.11. The prosecution has been successfulin proving that on 11.02.2011 all the minors deceased went tothe school from their house and at about 11.30 hours, the deceasedminors left for home on foot; that the minors did not return totheir home. On 11.02.2011 at about 12.00 noon–1.00 pm, thedeceased were seen going with the accused in school uniformwith their school bags. Therefore, the accused was last seentogether with the deceased minors. [Para 16][26-D-F]

1.2 The next important evidence against the accused is therecovery of dead bodies which were found from the places shownby the accused after his arrest. During the course of theinvestigation, the dead bodies were found from the places shownby the accused, the places which the accused alone could haveknown. Therefore, there is recovery of the dead bodies alongwith the school dress and bags at the instance of the accused. Ithas been established and proved from the disclosure memo.Therefore, the said circumstance definitely goes against theaccused. [Para 18][28-D-E]

1.3 One another circumstance which goes against theaccused is that after the incident of missing of three minorchildren, the accused was not found in his house and even in thevillage. Phone calls made at 11.00 pm on the mobile of the accusedin the night of 11.02.2011 has been established and proved bythe prosecution by producing the call details from the mobilecompany. The accused has failed to give any explanation on thesame in his statement under Section 313 Cr.P.C. Non-examinationof the officer of the mobile company cannot be said to be fatal tothe case of the prosecution, more particularly, when the CDR

ABC

Ahas been got exhibited, through the deposition of the InvestigatingOfficer and when the same was exhibited, no objection was raisedon behalf of the defence. Even otherwise, the mobile SIM wasseized from the accused at the time of his arrest. Therefore, theprosecution has proved that the said mobile SIM belonged tothe accused. [Paras 19, 19.1][28-E; 29-A-C]

1.4 One other important evidence against the accused isthe deposition of P.W.13. The fact that the accused was foundfrom the house of P.W.13 has been established and proved, despiteP.W.13 has turned hostile. As per the settled proposition of law,even the deposition of the hostile witness to the extent it supportsCthe case of the prosecution can be relied upon. The accused hasfailed to explain his conduct in his statement under Section 313Cr.P.C. about his missing from the house and even the villageafter the incident of kidnapping. He has also failed to explain thereason why he was found from the house of P.W.13. It may beDthat there is some doubt created by the defence about the placewhere the accused was arrested. However, the fact remains thatthe accused was arrested from village Lakharam on 13.02.2011.Immediately thereafter, during the course of the investigationand as per the disclosure memo, the dead bodies of the deceasedminor children were recovered at the instance of the accused.E[Para 20][29-D, F-H; 30-A-B]

2. Minor embellishment, there may be, but variations byreason therefore should not render the evidence unbelievable.Trivial discrepancies ought not to obliterate an otherwiseacceptable evidence. The Court shall have to bear in mind thatFdifferent witnesses react differently under different situations:whereas some become speechless; some start wailing while someothers run away from the scene and some who may come forwardwith courage, conviction and belief that the wrong should beremedied. There cannot be any set pattern or uniform rule ofGhuman reaction and to discard piece of evidence on the groundof his reaction not falling within set pattern is unproductive.Therefore, the so-called minor discrepancies/contradictions donot ultimately affect the case of the prosecution. The benefit ofsuch minor discrepancies/ contradictions should not go to theaccused, more particularly, when from the other evidences onH

record the guilt of the accused has been established and proved.[Para 21][31-C-F]

Leema Ram v. State of Haryana AIR 1999 SC 3717 :

[1999] 3 Suppl. SCR 435 – relied on.

3. The object and purpose of Section 235(2) Cr.P.C. is thatthe accused must be given an opportunity to make representationagainst the sentence to be imposed on him. Sub-section (2) ofSection 235 satisfies dual purpose; it satisfies the rule of naturaljustice by affording to the accused an opportunity of being heardon the question of sentence and at the same time helps the courtto choose the sentence to be awarded. There is no absoluteproposition of law that in no case there can be conviction andsentence on the same day. There is sufficient compliance of theprovisions of Section 235(2) Cr.P.C. The Trial Court heard theaccused on the aspect of proposition of sentence separately. TheTrial Court had considered the mitigating circumstances pointedout on behalf of the accused and also considered the aggravatingcircumstances which warranted the death sentence. Thus, it cannotbe said that the accused was not given any sufficient opportunityto put forward his case on sentence. It also cannot be said thatthe Trial Court has not given any special reasons while awardingthe death sentence. [Paras 23, 23.3][32-B-C; 34-G; 35-A-B]

Accused ‘X’ v. State of Maharashtra (2019) 7 SCC 1;Machhi Singh v. State of Punjab (1983) 3 SCC 470 :[1983] 3 SCR 413 – relied on.

Santa Singh v. State of Punjab (1976) 4 SCC 190 :[1977] 1 SCR 229; Allaudin Mian v. State of Bihar(1989) 3 SCC 5 : [1989] 2 SCR 498 – held inapplicable.

4.1 While awarding the capital punishment, it appears thatthe brutality of the crime was considered to be one of the reasonsand not the sole reason. For deciding on the issue of sentence,the aggravating circumstances and mitigating circumstances mustbe located and the right balance must be adopted. In the presentcase, the following are the mitigating factors/circumstances: (i)That the offence was committed under the influence of extrememental or emotional disturbance. The accused was emotionally

Adisturbed due to the elopement of his wife with the uncle of thedeceased and that his children were suffering in absence of theirmother with them. The accused was so much disturbed andtroubled is also born out from the deposition of one of thewitnesses that on mobile the accused told how father of themissing children is feeling without his children. (ii) There are noBcriminal antecedents. (iii) At the time of commission of the offencethe accused was 28 years of age and his conduct in prison isreported to be good. (iv) That he belongs to poor family and isthe only son of his parents, and (v) That he has got an old agedmother who is taking care of two daughters of the accused, out ofCwhich one is married now. [Paras 24, 25.4, 25.5][37-B-C; 40-G;41-F-H; 42-A]

4.2 On the other hand, the only aggravating circumstancepointed out by the State is that the manner in which the incidenttook place and three minors were brutally killed. Except theDabove, no other aggravating circumstances are pointed out onbehalf of the State. Therefore, striking the balance betweenaggravating circumstances and mitigating circumstances, in thefacts and circumstances of the case, more particularly, the mentalcondition of the accused at the time of the commission of theoffence and that the accused was under extreme mentalEdisturbance due to his wife eloped with the uncle of the deceasedand his children were deprived of the company of their mother,the mitigating circumstances are in favour of the accused toconvert the death sentence to life imprisonment. It is true thatthe court must respond to the cry of the society and to settleFwhat would be the deterrent punishment for an abominable crime.It is also equally true that larger number of criminals gounpunished thereby increasing criminals in the society and lawlosing its deterrent effect. It is also true that the peculiarcircumstances of given case often results in miscarriage of justice

and makes the justice delivery system suspect; in the ultimateGanalysis, the society suffers and criminal get encouraged. Themitigating circumstances as observed by this Court in the caseof Bachan Singh and the mitigating circumstances in the presentcase, if are considered cumulatively and more particularly, thatthe accused was under the extreme mental disturbance, in theHpeculiar facts and circumstances of the case, the death penalty is

not warranted and the same be converted to life imprisonment.The Judgment and Order convicting the accused for the offencespunishable under Sections 302 and 364 IPC is hereby confirmed.However, the death sentence imposed by the Trial Court,confirmed by the High Court, is converted into the lifeimprisonment. It is further observed and directed that the lifemeans till the end of the life with the further observation anddirection that there shall not be any remission till the accusedcompletes 25 years of imprisonment. [Paras 25.6, 26][42-B-G;43-B]

Bachan Singh v. State of Punjab (1980) 2 SCC 684;Sushil Sharma v. State (NCT) of Delhi (2014) 4 SCC317 : [2013] 16 SCR 616; Absar Alam v. State of Bihar(2012) 2 SCC 728 : [2012] 1 SCR 890 – relied on.

Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC28; Aloke Nath Dutta v. State of W.B. (2007) 12 SCC230 : [2006] 10 Suppl. SCR 662; State of Punjab v.Manjit Singh (2009) 14 SCC 31 : [2009] 9 SCR 864;Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90;Sebastian v. State of Kerala (2010) 1 SCC 58; Rameshv. State of Rajasthan (2011) 3 SCC 685 : [2011] 4 SCR585; Mohinder Singh v. State of Punjab (2013) 3 SCC294 : [2013] 3 SCR 90; Digamber Vaishnav v. State ofChhattisgarh (2019) 4 SCC 522 : [2019] 2 SCR 844;Anjan Kumar Sarma v. State of Assam (2017) 14 SCC359 : [2017] SCR 991; Ganpat Singh v. State ofMadhya Pradesh (2017) 16 SCC 353 : [2017] 9 SCR706; Chhannu Lal Verma v. State of Chhattisgarh (2019)12 SCC 438 : [2018] 14 SCR 355; Rajesh Kumar v.State (NCT of Delhi) (2011) 13 SCC 706 : [2011] SCR92; Ajay Pandit @ Jagdish v. State of Maharashtra(2012) 8 SCC 43 : [2012] 10 SCR 70; Gurvail Singh v.State of Punjab (2013) 2 SCC 713 : [2013] 1 SCR 783;Amit v. State of Uttar Pradesh (2012) 4 SCC 107 :[2012] 1 SCR 1009; Kalu Ram v. State of Rajasthan(2015) 16 SCC 492; Sudam v. State of Maharashtra(2019) 9 SCC 388; Baba Vishwakarma v. State of M.P.

A(2019) 9 SCC 689; Shaikh Ayub v. State of Maharashtra(1998) 9 SCC 521; Dharmedrasinh v. State of Gujarat(2002) 4 SCC 679: [2002] 3 SCR 193; Nemu Ram Borav. State of Assam & Nagaland (1975) 1 SCC 318;Brajendra Singh v. State of M.P. (2012) 4 SCC 289 :[2012] 3 SCR 599 – referred to.B

Case Law Reference

MANOJ SURYAVANSHI v. STATE OF CHHATTISGARH

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.388 of 2020.

From the Judgment and Order dated 08.08.2013 of the High Courtof Chhattisgarh at Bilaspur in Criminal Appeal No. 550 of 2013.

Shri Singh, Ms. Maneka Khanna, Amartya Kanjilal and AbhimanueShrestha, Advs. for the Appellant.

Pranav Sachdeva, Ms. Neha Rathi and Jatin Bhardwaj, Advs. forthe Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 08.08.2013 passed by the Division Bench of the HighCourt of Chhatisgarh at Bilaspur in Criminal Appeal No. 550 of 2013and Criminal Reference No. 05 of 2013, by which the Division Bench ofthe High Court has dismissed the said appeal preferred by the appellant-original accused and has confirmed the judgment and order of convictionand death sentence awarded by the learned Trial Court for the offencespunishable under Section 302 of the IPC for having killed the three minorchildren of the complainant Shivlal – P.W.18 and also for the offencespunishable under Section 364 of the IPC, the original accused haspreferred the present appeal.

3. As per the case of the prosecution, at 7.00 AM on 11.02.2011,two sons of one Shivlal-original complainant – Vijay aged about 8 years,

AAjay aged about 6 years and Kumari Sakshi aged about 4 years lefttheir home in Darripara to attend the school at Karaihapara and reachedthe school. On the school getting over at 11.30 AM, the three minors leftthe school for home on foot. When they did not reach home, Shivlal-P.W.18 looked for the children in the vicinity and went to school andenquired about the children. On enquiry at the school, the teachers ofBthe minor children told Shivlal that the three minors had come to theschool and on the school getting over they had left the school for homeon foot. That, thereafter Shivlal and others looked for the three minors.On not finding the three minor children, Shivlal-P.W.18 went to the policestation, Raipur and lodged the Missing Person Report. The missing personCreport was registered in the Daily Journal (Ex. P-18) by the HeadConstable Krishna Kumar Koshle-P.W.17. During the search of threeminor children, one Ashok Patel-P.W.8 stated that he had seen the minorchildren along with the appellant-accused near the school. As per thecase of the prosecution, on 11.02.2011, Rameshwar-P.W.11 contactedthe accused on cell-phone and talked with him and the accused askedDShivlal-P.W.18 how he was feeling when his children are missing.According to the prosecution, the accused was working as labourer inthe house of Shivlal. It was alleged that the wife of the accused, namelySumrit Bai, eloped with the younger brother of the complainant, namelyShivnath Dhiwar and with the view to take revenge, the appellant abductedEthe minors and thereafter killed them. The FIR-Ex.24 was lodged againstthe accused initially for the offences under Sections 363 and 364 IPC.According to the prosecution, after the FIR was lodged, the accusedwas contacted on his mobile no. [REDACTED]. The accused received thecall and told that he was 60 kms away. The Investigating Officer-P.W.24asked the Head Constable Hemant Aditya, Crime Branch to trace theFsaid mobile number and to tell its location. Then the Head ConstableHemant Aditya traced the location of the said mobile and the locationwas found near Village Lakhram. That, thereafter the Investigating teamwent to the house of one Ashok Kumar Madhukar-P.W.13, relative ofthe accused. Initially, the accused was not in home. However, thereafterGcontinuing the search, they again went to the house of the said AshokKumar Madhukar. According to the case of the prosecution, thereafterthe accused was found and brought to the police station. He wasinterrogated in the presence of the witnesses. memorandum ofstatement Ex.P.2 was recorded under Section 20 of the Evidence Act.On the basis of the memorandum Ex.P.2 and at the instance of theHaccused, in the barren land in Karaihapara – in the field of one DamodarBeldar, the dead bodies of the three minors were recovered from thespot of site. The Investigating Officer collected the incriminating materialsduring the course of the investigation. The mobile of the accused wasalso seized. The Investigating Officer conducted the Panchnama of thedead bodies of the three minors. The dead bodies were sent for post-mortem. One Dr. A.M. Srivastava-P.W.23 conducted the post-mortem.The cause of death of the three minors was strangulation and the deathswere found to be homicidal. During the investigation, the InvestigatingOfficer received the call details – Ex.P.30 of the mobile phone of theaccused. During the investigation, the Investigating Officer recordedthe statement of the witnesses, including the statement of the originalcomplainant Shivlal and others. That the accused was arrested as perthe memorandum dated 13.02.2011. After conclusion of the investigation,it was found that the accused had first abducted and thereafter killed thethree minors to take the revenge as his wife eloped with the brother ofthe complainant Shivlal and thereby committing the offences punishableunder Section 302 and Section 364 IPC. The Investigating Officer filedthe charge-sheet against the accused for the aforesaid offences. Thecase was committed to the Court of Sessions. The accused pleaded notguilty and therefore he came to be tried for the aforesaid offences.

4. To prove the charges against the accused, the prosecutionexamined as many as 24 witnesses as under:

[2020] 4 S.C.R.

AP.W.7Damodar SinghWitness of recording the 08.08.2011 statements of the prosecution witnesses under Section 161 Cr.P.C.P.W.8 Ashok Patel Witness who seen the minor 08.08.2011 children with the accused for the last time.BP.W.9 Imrat Singh Maternal uncle of the minor 11.08.2011children.P.W.10 Shweta Tiwari Witness of minors leaving the 12.08.2011 school together for home on foot after theschool gettingover.P.W.11 Rameshwar Independent witness 12.08.2011 CP.W.12 Ashish Kumar Gupta Witness who conducted the 20.9.2011 photography of the dead bodies of the minors.P.W.13 Ashok Kumar Madhukar Witness of the presence of the 20.09.2011 accused in his house situated in Lakhram and of his being hidden. P.W.14 Bharat Lal Dewangan Witness of the preparation of map D21.09.2011of the spot of incident.P.W.15 Anil Shitlani Witness of seizure of mobile 21.09.2011 phoneof the accused.P.W.16 Bharat Lal Chandravansi Witness of the dead bodies of the 22.09.2011 minors being taken to the doctor for post-mortemP.W.17 Krishna Kumar Koshle The Head-Constable who E22.09.2011 registered the missing report in the DailyJournal P.W.18 Shivlal Dhimar Father of the minor children. 16.11.2011 P.W.19 Santosh Kumar Yadav Witness of recording of 17.11.2011 statements during investigation of Fmissing report. P.W.20 |Smit Manisha Dhimar Mother of the deceased minor 17.11.2011 children.P.W.21 Dr. A.K. Shrivastava Doctor who conducted the post-18.11.2011 mortem and gave the post-mortem report.P.W.22 Lav Kush Kashyap Witness of recording the G09.01.2012 statements of the prosecution witnesses under Section 161 Cr.P.C.P.W.23 Dr. A.M. Srivastava Doctor who conducted the post-17.02.2012 mortem and gave the post-mortem report. P.W.24 B. Kujur The Investigating Officer H17.02.2012

4.1 During the trial, the prosecution brought on record as many as41 documentary evidences. The relevant evidences are as under:

4.2 After closure of the evidence by the prosecution, furtherstatement of the accused under Section 313 CrPC was recorded. Thecase of the accused was of total denial. He did not examine any witnessin support of his defence. That, thereafter, on appreciation of evidenceand giving the fullest opportunity to the accused, the learned Trial Courtheld the accused guilty for the offences punishable under Sections 302and 364 IPC. After considering the aggravating and mitigatingcircumstances and after having heard the accused on the quantum ofsentence, the learned Trial Court awarded the death sentence, whichwas numbered as Reference No. 05 of 2013 before the High Court.Feeling aggrieved and dissatisfied with the judgment and order ofconviction passed by the learned Trial Court, the original accused alsopreferred an appeal before the High Court, being Criminal Appeal No.550 of 2013. Both, the appeal preferred by the accused as well as thereference case were heard together by the High Court. By the impugnedjudgment and order, the High Court has dismissed the appeal preferredby the accused and has confirmed the conviction and the death sentenceawarded by the learned Trial Court. Feeling aggrieved and dissatisfiedwith the impugned judgment and order passed by the High Court indismissing the appeal preferred by the accused and also confirming thedeath sentence awarded by the learned Trial Court, the original accusedhas preferred the present appeal.

A5. Shri Singh, learned counsel appearing on behalf of the appellant-original accused has vehemently submitted that in the facts andcircumstances of the case both, the learned Trial Court and the HighCourt have committed grave error in holding the appellant-originalaccused guilty for the offences punishable for the offences under Section302 and Section 364 IPC.B

5.1 It is further submitted on behalf of the appellant-originalaccused that both the Courts below ought to have appreciated that therewas no eye-witness to the incident and the whole conviction was basedon the circumstantial evidence. It is submitted that, in case ofcircumstantial evidence, unless the entire chain of events is complete,Cwhich leads to the only conclusion that it is the accused only who hascommitted the offence, person cannot be convicted. It is submittedthat in the present case the prosecution has failed to form completechain of circumstances and the instance which leads exclusively to theconclusion that the appellant only was guilty of committing the offence.

5.2 It is further submitted on behalf of the appellant-originalaccused that both the Courts below have materially erred in holding theappellant-original accused guilty for the offences punishable underSections 302 and Section 364 IPC for having killed the three minor childrenrelying upon the prosecution witnesses, more particularly, P.W.1, P.W.8,EP.W.13, P.W.18 and P.W.24 and other eye-witnesses.

5.3 It is further submitted by the learned counsel appearing onbehalf of the appellant-original accused that the case against the appellantis based on three sets of circumstances: (i) last seen evidence; (ii)recovery of bodies pursuant to disclosure memo and (iii) alleged callsFmade to the appellant during the search for the missing children. It isfurther submitted that the prosecution has sought to use the calls madeto the appellant and the testimony of P.W.13 as an extra-judicialconfession made by the appellant. It is submitted that such an extra-judicial concession is not admissible in law.G5.4 It is further submitted by the learned counsel appearing onbehalf of the appellant-original accused that to establish and prove thelast seen evidence, the prosecution has relied upon the depositions ofP.W.1 and P.W.8, whose evidences are full of material contradictions.It is submitted that as such both the Courts below have materially erredin heavily relying upon the depositions of P.W.1 and P.W.8, insofar asHlast seen evidence is concerned.

5.5 It is further submitted by the learned counsel appearing onbehalf of the appellant-original accused that so far as P.W.1 is concerned,he has specifically stated that he was stating the material evidence forthe first time in the court. It is submitted that though another witness –Surya Pratap Dhimar was present with P.W.1 on 11.02.2011, theprosecution had chosen not to examine the said witness. It is submittedthat P.W.1 is neither credible nor reliable. It is submitted that dropping ofa cited witness Surya Pratap Dhimar has been unexplained by theprosecution. It is submitted that this circumstance will operate as apresumption against the prosecution in terms of Section 114(g) of theIndian Evidence Act.

5.6 Now, so far as the reliance placed upon the deposition ofP.W.8, who is the second last seen witness is concerned, it is submittedthat P.W.8 states that he communicated that he has seen the accusedwith the deceased to P.W.9-Imrat Singh @ Mungi Lal. It is submittedthat, however, P.W.9 has categorically denied knowing any person namedas Ashok, where he resides. It is submitted that he has affirmed that hehad no conversation with Ashok.

It is further submitted that as per the prosecution P.W.8communicated his sighting of the missing children to P.W.18 and hisfriends - P.W.2 and P.W.3. It is submitted that P.W.2 states that theymet Ashok Patel at about 6/6.30 pm near Dholpara, but in his cross, hasdenied knowing Ashok Patel or having any conversation with him. It issubmitted that P.W.18 claimed that he met P.W.8 near Darriparra priorto meeting P.W.2 and P.W.3. It is submitted that though P.W.3 maintainsthat he met P.W.8 and Dholpara, the testimony of P.W.18 belies thetestimony of P.W.3. It is submitted that the testimony of P.W.2, P.W.3and P.W.18 that they met P.W.8 is belied by P.W.8 himself who hasunequivocally affirmed that P.W.18 and his friends did not come to himsearching for the children. It is submitted that therefore it is not safe torely the testimony of P.W.8 also.

5.7 It is further submitted by the learned counsel appearing onbehalf of the appellant-original accused that the prosecution has notproved geographical proximity between the alleged sighting of theappellant and the place of residence of the children; their school or thelocation where the bodies were recovered. It is submitted that there isno evidence on record to suggest that the fields where the bodies werefound were in the same direction as the children were walking whenthey had been allegedly sighted.

A5.8 It is further submitted that furthermore the medical evidenceconcludes that the time of death of the children was between 12 noon on11.02.2011 and midnight of the intervening night of 11/12.02.2011. It issubmitted that therefore an alleged sighting in the beginning of this periodis not proximate to the time of death. It is further submitted that even themissing person complaint dated 11.02.2011 does not refer to last seenBevidence. It is submitted that it was entered on the Roznamcha at 9.40am on 12.02.2011. It is submitted that the Roznamcha is silent on thesuspicion of kidnapping by the appellant. It is submitted that neither thecomplaint nor the Roznamcha contain any last seen evidence or evidencewith respect to the alleged calls between the appellant and P.W.18. It isCsubmitted that the FIR that is lodged on 12.02.2011 at 11.40 pm has amention of P.W.8. It is submitted that therefore the last seen evidence ofP.W.8 is recorded for the first time only on the intervening of12-13.02.2011, which is also the time of the appellant’s arrest. It issubmitted that it is the settled law that the circumstance of last seentogether cannot by itself form the basis of conviction and can only be anDincriminating circumstance. In support thereof, the learned counsel forthe appellant has relied upon the decisions of this Court in the cases ofDigamber Vaishnav v. State of Chhattisgarh (2019) 4 SCC 522, AnjanKumar Sarma v. State of Assam (2017) 14 SCC 359 and GanpatSingh v. State of Madhya Pradesh (2017) 16 SCC 353. It is submittedEthat in light of the principles stated in the aforesaid decisions, the testimonyof P.W.8 does not inspire confidence and cannot be relied upon as lastseen evidence.

5.9 It is further submitted by the learned counsel appearing onbehalf of the appellant that another circumstances considered by theFCourts below against the appellant is the calls and extra-judicialconfession.

5.10 It is submitted that the evidence against the appellant refersto two calls involving the appellant. The first call is between the appellantand P.W.11 and the second call is between the appellant and P.W.18. ItGis submitted that with respect to P.W.11’s call, P.W.11 categorically statesthat the call was on 12.02.2011 at night which is when the appellant wasin the custody of the police. It is submitted that he further improved hisversion when he was re-examined by the Trial Court. It is submitted thatneither P.W.2 nor P.W.18 has testified to this call. It is submitted thatneither the fact nor the contents of this call were put to the appellantHduring his examination under Section 313 Cr.P.C.

5.11 It is further submitted that the prosecution has relied uponthe extracts of the appellant’s CDR-Ex.P30 (Call Details Report), whichdoes not contain any call made or received on 12.02.2011. It is submittedthat even otherwise the production of CDR is through the InvestigatingOfficer who in turn receives it from the Head Constable Hemant Aditya.It is submitted that there is no material on record to show the manner inwhich the CDR was obtained. It is submitted that even the CDR is notaccompanied by certificate under Section 65-B of the Evidence Act.It is submitted that therefore the calls/call details contained in the CDR-Ex.P30 are neither believable nor has been proved by the prosecution.

5.12 It is further submitted that so far as P.W.18 is concerned, hehas alleged call made by him to the appellant on 11.2.2011. It is submittedthat the said call has not been corroborated by any other witness. It issubmitted that even it does not find mention in the complaint, Roznamchaor the FIR, which are dated 11.2.2011. It is submitted that there remainsa discrepancy in P.W.18’s version of when he lodged the missing personcomplaint.

5.13 It is further submitted that the prosecution has not seized thephone, SIM card or any material with respect to P.W.18’s phone recordswhich would have proved the veracity of P.W.18’s statement. It issubmitted that even there is no material on record to prove the phonenumber of P.W.18.

5.14 It is further submitted that so far as the confession made byP.W.13-Ashok Kumar Madhukar is concerned, no other document orwitness mentions his presence during the alleged recovery proceedings.It is submitted that the statement made by the appellant do not amount toa confession of the offence as whole, or of any inculpatory fact. It issubmitted that since the appellant was in police custody at that time, anyconfession made by him would be inadmissible in terms of Section 26 ofthe Evidence Act, irrespective of whom the alleged confession was madeto. It is submitted that therefore both, the Trial Court and the High Courthave materially erred in convicting the appellant on the basis of such calldetails and/or the alleged confessions made to the respective witnesses.

6. Now, so far as the conviction based upon the recovery of deadbodies of the deceased minors is concerned, it is submitted that the saidrecovery was made from an open area that had been searched previously.It is submitted that as per the settled preposition of law the recovery

Amade from an open place, accessible to all and which is not in theexclusive knowledge of the accused cannot be the basis of conviction.It is submitted that therefore the recovery of the bodies at the instanceof the appellant is full of suspicion.

6.1 It is further submitted that neither PW.7 nor P.W.22 who areBthe independent witnesses to the disclosure memorandum and all otherdocuments relating to recovery proceedings on the intervening night of11.01.2011 and 12.1.2011, lend support to the recovery. It is submittedthat P.W.7 has specifically stated that he signed on blank papers on theasking of the police and that he did not know about the case. It issubmitted that he has further stated that the documents were not readCover to him by the police and that no notice/summons were given by thepolice to remain present for seizures.

6.2 It is further submitted that P.W.22 also does not rememberthe date on which the alleged events took place.

D6.3 It is further submitted that all recovery related proceedingsare ante-dated and the same is proved from the evidence of P.W.22himself. It is submitted that P.W.22 states that the interrogation of accusedcontinued till 9.00 pm on 12.02.2011 and that they went to the field at10.30-11.00 pm. It is submitted that even P.W.18 and P.W.22 testify thatall documentation with respect to the recovery was done the next day atE9.00 pm. It is further submitted that even there is discrepancy withrespect to the time and place of arrest of the appellant which rendersthe recovery doubtful. It is submitted that therefore on the basis of thealleged recovery, the appellant could not have been convicted.

6.4 It is further submitted that even the recovery cannot be saidFto be voluntary as the appellant was detained in custody without anyformal arrest.

6.5 It is further submitted that even the medical and forensicexamination does not support the recovery. It is submitted that the post-mortem reports of the victims indicate the presence of incised woundsGon the bodies caused by hard and sharp/blunt object. It is submittedthat, however, no such weapon was recovered at the instance of theappellant. It is submitted that the prosecution has not put forth anyevidence to show how such wounds were caused by the appellant. It issubmitted that there are so many lacunas at the time of the allegedrecovery at the instance of the appellant, which creates serious doubtH

on the credibility of the recovery. It is submitted that therefore it is notsafe to convict the appellant on the basis of such recovery.

7. It is further submitted by the learned counsel appearing onbehalf of the appellant that the Courts below have committed graveerror in convicting the appellant solely based on (i) last seen evidence;(ii) recovery of bodies pursuant to disclosure memo and (iii) allegedcalls made to the appellant during the search for the missing childrenand the so-called extra-judicial confession made by the appellant, moreparticularly, when it is case of circumstantial evidence. It is submittedthat in case of circumstantial evidence, even if one link is missing andthe chain is not complete which leads to the only conclusion that it is theappellant-accused alone who has committed the offence, the appellantcould not have been convicted.

7.1 Now, so far as the judgment and order passed by the learnedTrial Court awarding the death sentence and confirmed by the HighCourt is concerned, it is submitted that both the Courts below have notappreciated and/or considered the mitigating and aggravating factorswhile awarding the death sentence. It is submitted that even the learnedTrial Court imposed the death penalty/award of sentence on the sameday on which the appellant was convicted. It is submitted that after thedecision relating to his conviction was given, the learned Trial Court heldthe hearing of the sentence on the same day when the conviction wasrecorded i.e. 04.05.2013, thereby violating the right of the accused to begiven ample opportunity to adduce the evidence of mitigation and to beheard on the question of quantum of sentence as provided under Section235(2) Cr.P.C. It is submitted that it has been consistently held by thisCourt that sufficient time must be given to the accused on the questionof sentence, to show the grounds on which he may show that sentenceof life imprisonment may be awarded and not the death penalty. In supportthereof, the learned counsel for the appellant has relied upon recentjudgment of this Court in the case of Chhannu Lal Verma v. State ofChhattisgarh (2019) 12 SCC 438. It is submitted that the absence ofproviding separate hearing for sentence vitiates the sentencing process.It is submitted that under these circumstances this Court has previouslycommuted the sentence of death to one of imprisonment for life. Insupport, reliance has been placed upon the decisions of this Court in thecases of Santa Singh v. State of Punjab (1976) 4 SCC 190, RajeshKumar v. State (NCT of Delhi) (2011) 13 SCC 706 and Ajay Pandit @Jagdish v. State of Maharashtra (2012) 8 SCC 43.

A7.2 It is further submitted that even otherwise the death sentenceawarded by the learned Trial Court and affirmed by the High Court isnot sustainable. It is submitted that the learned Trial Court has solelylooked to the brutality of the crime to impose the death penalty. It issubmitted that this Court has rejected the contention that the death penaltycan be imposed on the basis of the crime alone. It is submitted thatBconsideration of the brutality or the circumstances surrounding the crimealone renders meaningless the objective of the sentencing exerciseenvisaged in death penalty cases. Reliance has been placed upon thecase of Bachan Singh v. State of Punjab (1980) 2 SCC 684.

7.3 It is submitted that so far as the High Court is concerned, theCHigh Court has also committed grave error in confirming the deathsentence. It is submitted that the High Court has not properly appreciatedthe mitigating circumstances, such as the fact that the accused can berehabilitated in the society and is capable of being reformed. It is submittedthat as held by this Court in the case of Ajay Pandit (supra), there is aDduty on the High Court to elicit the relevant facts while consideringmitigating circumstances and awarding sentence.7.4 It is submitted that both the Courts below have not appreciatedand considered the fact that there was no criminal antecedents. It issubmitted that the High Court has also not considered the fact that thereEis possibility of the appellant being reformed. It is further submittedthat at the time when the alleged offence was committed, the appellantwas of young age of 28 years. It is submitted that the young age of theappellant at the time of commission of the offence has not been consideredas the relevant mitigating circumstance by the learned Trial Court aswell as the High Court, which ought to have been considered, as held byFthis Court in the cases of Gurvail Singh v. State of Punjab (2013) 2SCC 713 and Amit v. State of Uttar Pradesh (2012) 4 SCC 107.

7.5 It is further submitted that even otherwise in case ofcircumstantial evidence, as held by this Court in the case of Kalu Ramv. State of Rajasthan [2015] 16 SCC 492, the doctrine of prudenceGrequires that sentence of life be imposed, and ordinarily death penaltyshould not be awarded. It is further submitted that this Court in severaljudgments has commuted the death sentence based on the doctrine of“residual doubt”. Reliance is placed on the decisions of this Court in thecases of Sudam v. State of Maharashtra (2019) 9 SCC 388 and BabaHVishwakarma v. State of M.P. (2019) 9 SCC 689.

7.6 It is further submitted that even the conduct of the appellantin the prison is very good, which is also relevant consideration tocommute the death sentence to that of the life imprisonment.

7.7 It is further submitted that the emotional disturbance of theappellant at the time of the offence is relevant consideration not toaward the death sentence. It is submitted that at the relevant time theappellant was emotionally disturbed due to the elopement of his wifewith the uncle of the deceased minors. It is submitted that the appellant’sacts were not the product of long period of cold blooded planning, butwere instead actions committed during period of extreme emotionalturmoil and disturbance after he had come back from Chandigarh toDarripara after trying to find out his wife. It is submitted that the aforesaidaspect has not been considered by the Courts below.

7.8 It is further submitted by the learned counsel appearing onbehalf of the appellant that, unfortunately, subsequently the wife of theappellant has died and the liability to maintain the children was/is uponhis old aged mother. It is submitted that the appellant’s mother is nolonger capable of working and the entire family survives on Rs.300/- ofold-age pension that she receives. It is submitted that the daughter ofthe appellant was forced to drop the school after class IX due to poverty.It is submitted that his one daughter is married and the appellant hasanother daughter Sanjana aged about 16 years. It is submitted that if thedeath sentence of the appellant is converted to life, in that case, theappellant would be in position to work in the jail and earn somethingwhich would be helpful to his mother and daughter. It is submitted thatwhile the death sentence is continued, the appellant would not be in aposition to do any work in Jail.

7.9 Learned counsel appearing on behalf of the appellant hasfurther submitted that in many cases this Court has commuted the deathsentence imposed for heinous crimes. Reliance is placed upon thedecisions of this Court in the cases of Shaikh Ayub v. State ofMaharashtra (1998) 9 SCC 521, Allaudin Mian v. State of Bihar(1989) 3 SCC 5, Dharmedrasinh v. State of Gujarat (2002) 4 SCC679, Nemu Ram Bora v. State of Assam & Nagaland (1975) 1 SC318, Rajesh Kumar (supra) and Brajendra Singh v. State of M.P.(2012) 4 SCC 289.

7.10 Making the above submissions, it is prayed to allow the presentappeal and acquit the appellant-accused for the offences for which he

ABC

Awas tired. In the alternative, it is prayed to convert the death sentenceinto the life imprisonment.

8. The present appeal is vehemently opposed by Shri PranavSachdeva, learned counsel appearing on behalf of the respondent-State.

8.1 It is vehemently submitted by the learned counsel appearingon behalf of the respondent-State that in the facts and circumstances ofthe case both, the learned Trial Court and the High Court have rightlyconvicted the accused for the offence punishable under Section 302IPC for having killed the three minor children of the complainant andboth the Courts below have rightly awarded the death sentence.

8.2 It is vehemently submitted by the learned counsel appearingon behalf of the respondent-State that the impugned judgment and orderpassed by the High Court is well-reasoned and has been passed afterhearing the parties and considering the entire facts and circumstancesand therefore the same is not required to be interfered with by this CourtDin exercise of powers under Article 136 of the Constitution of India.

8.3 It is further submitted by the learned counsel appearing onbehalf of the respondent-State that though the present case is based oncircumstantial evidence, however, the prosecution has been successfulin completing the chain of events which lead to the only conclusion thatit is the accused alone who had killed the three innocent children.E

8.4 It is further submitted by the learned counsel appearing onbehalf of the respondent-State that in the present case the prosecutionhas been successful in proving the motive for the accused to take revengeand killing three minor children of the complainant Shivlal-P.W.18.

8.5 It is further submitted by the learned counsel appearing onbehalf of the respondent-State that thereafter the prosecution has beensuccessful in establishing and proving that the accused was last seentogether with the three minor children whose dead bodies were foundsubsequently at the instance of the accused.

G8.6 It is further submitted by the learned counsel appearing onbehalf of the respondent-State that there are three relevant and materialcircumstances against the accused, namely, (i) last seen evidence; (ii)recovery of dead bodies pursuant to disclosure memorandum at theinstance of the accused and (iii) call details made to the accused. It issubmitted that therefore the aforesaid three sets of circumstances areH

proved by the prosecution against the accused by examining P.W.1, P.W.8,P.W.13, P.W.16, P.W.18 and P.W.24.

8.7 It is further submitted by the learned counsel appearing onbehalf of the respondent-State that by examining P.W.2, P.W.5 and P.W.10the prosecution has been successful in proving that all the three deceased-three minor children had gone to the school on that day and thereafterafter the school was over, they left the school together for home. It issubmitted that the same is supported by the relevant documentaryevidence.

8.8 It is further submitted by the learned counsel appearing onbehalf of the respondent-State that the minor children were last seentogether with the accused, has been established and proved by theprosecution by examining P.W.1 and P.W.8.

8.9 It is submitted that the dead bodies of minors – Ajay, Vijayand Kumari Sakshi – were recovered on the basis of the disclosurememorandum Ex.P-2. It is submitted that Ex.P-2 and the recovery ofthe dead bodies at the instance of the accused has been established andproved by the prosecution beyond doubt, more particularly, by examiningP.W.7, P.W.22 and P.W.24.

8.10 It is further submitted by the learned counsel appearing onbehalf of the respondent-State that during the course of the investigationthere were phone calls with the accused and the conversation has beenestablished and proved by Ex-P-30 – Phone Call Details. It is submittedthat the same have not been explained by the accused.

8.11 It is further submitted by the learned counsel appearing onbehalf of the respondent-State that in the present case even the conducton the part of the accused, more particularly, his absence from the dateof missing of the minor children till he was arrested from the house ofwitness Ashok Kumar Madhukar-P.W.13 is relevant factor. It issubmitted that the accused has failed to explain his absence from thevillage and from his house.

8.12 It is submitted that in fact the accused was found in thehouse of his relative Ashok Kumar Madhukar-P.W.13. It is submittedthat therefore it is established and proved that after committing the offencethe accused had taken the shelter in the house of his relative AshokKumar Madhukar-P.W.13. It is submitted that even there was an extra-judicial confession by the accused before Ashok Kumar Madhukar-

AP.W.13 which has been established and proved from the deposition ofAshok Kumar Madhukar-P.W.13.

8.13 It is further submitted that the death of the three minors washomicidal deaths, which has been established and proved by examiningthe doctors who conducted the post-mortem.

B8.14 It is submitted that therefore the prosecution has beensuccessful in completing the chain of events. It is submitted that thereforeboth the Courts below have rightly convicted the accused for havingkilled the three minor children.

9. Now, so far as the submission on behalf of the accused thatCthere are material contradictions in the depositions of P.W.1, P.W.8,P.W.18 and other witnesses is concerned, it is submitted by the learnedcounsel for the respondent-State that the alleged contradictions do notaffect the case of the prosecution. It is submitted that the aforesaidcontradictions cannot be said to be the material contradictions for whichDthe benefit of doubt should be given to the accused. It is submitted thatmost of the witnesses are consistent with their statements under Section161 Cr.P.C. recorded by the Investigating Officer during the investigation.It is submitted that there are no much improvements. It is further submittedby the learned counsel appearing for the respondent-State that the so-called/alleged contradictions in any way do not affect the case of theEprosecution and the material evidence with respect to the last seenevidence; recovery of the dead bodies as per the disclosure memorandumat the instance of the accused and the phone call details with the accusedand even the motive for the accused to commit the offence.

10. Now, so far as the submission on behalf of the accused thatFthe incriminating circumstances against the accused from the depositionof P.W.1 has not been put to the accused while recording his statementunder Section 313 Cr.P.C. is concerned, it is submitted by the learnedcounsel appearing for the respondent-State that, as such, the saidirregularity shall not affect the ultimate case against the accused. It isGsubmitted that in any case the case of the accused in his statementunder Section 313 Cr.P.C. is that of total denial. It is submitted that onthe aforesaid ground the accused cannot be acquitted.

11. Now, so far as the submission on behalf of the accused thatsufficient opportunity was not given to the accused on the sentenceinasmuch as the accused was heard on the sentence on the very sameH

day he was convicted is concerned, it is submitted that on the aforesaidground the judgment and order passed by the learned Trial Court onsentence and confirmed by the High Court is not required to be interferedwith. It is submitted that after the accused was held guilty, fullestopportunity was given to the accused on sentence. It is submitted thatelaborate submissions were made by the learned Advocate appearingon behalf of the accused on sentence and even on the death sentencealso. It is submitted that therefore as such no prejudice has been causedto the accused.

12. Now, so far as the submission on behalf of the accused not toconfirm the death sentence and to convert the death sentence into thelife imprisonment is concerned, it is submitted by the learned counselappearing for the respondent-State that on striking the balance betweenthe aggravating circumstances and the mitigating circumstances andconsidering the fact that the accused killed the three minor children afterabducting them, no sympathy should be shown to such an accused. It issubmitted that, therefore, as such this is fit case to award the deathsentence and the case would fall into the rarest of rare cases. Therefore,it is prayed to dismiss the present appeal and confirm the death sentence.

13. Heard the learned counsel appearing for the respective partiesat length. We have also gone through and considered in detail the Judgmentand order passed by the learned Trial Court as well as the impugnedjudgment and order passed by the High Court convicting and accusedfor the offences punishable under Sections 302 and 364 IPC. We havealso gone through and considered in detail the evidence on record - bothoral and documentary.

13.1 The appellant-accused has been held guilty for havingcommitted the murder/killing of three minor children aged about 8 years,6 years and 4 years respectively and has been convicted by both theCourts below for the offences punishable under Sections 302 and 364IPC. The learned Trial Court, after having held the appellant-accusedguilty for the aforesaid offences, has imposed the death sentence, whichhas been confirmed by the High Court by the impugned judgment andorder.

14. We are conscious of the fact that it is case of circumstantialevidence and therefore before convicting the accused on the basis ofcircumstantial evidence, the prosecution has to prove beyond doubt andcomplete the chain of events which lead to the conclusion that it is the

Aaccused alone who has committed the offence. Therefore, in the factsand circumstances of the case, it is required to be considered whetherthe prosecution has been successful in establishing the complete chainof events which lead to the conclusion that it is the appellant-accusedalone who has committed the offence?

B15. Having gone through the impugned judgment and order passedby the High Court as well as the judgment and order of conviction passedby the learned Trial Court and the case of the prosecution, the appellant-accused has been convicted mainly based on three sets of circumstances:(i) last seen evidence; (ii) recovery of bodies pursuant to disclosurememo and (iii) alleged calls made to the appellant during the search forCthe missing children.

16. Before considering the submissions made on behalf of theaccused, few findings recorded by the learned Trial Court and confirmedby the High Court, are required to be first referred to. The prosecutionhas been successful in establishing and proving that the accused wasDhaving enmity with Shivlal-father of the three deceased minor children.The same has been established and proved by the prosecution byexamining Shivlal-P.W.18, Manisha-P.W.20 and Rameshwar-P.W.11.The prosecution has been successful in proving that on 11.02.2011 allthe minors deceased Ajay, Vijay and Kumari Sakshi went to the schoolEfrom their house. The prosecution has also been successful in establishingand proving that on 11.02.2011 at about 11.30 hours the deceased minorsleft for home on foot; that the minors did not return to their home. On11.02.2011 at about 12.00 noon – 1.00 pm, the deceased were seengoing with the accused in school uniform with their school bags.Therefore, the accused was last seen together with the deceased minors.FThat, after the incident, the accused was not found at his house and wasmissing even from the village. During the search by Shivlal-P.W.18 andothers and after the accused was not found in the village, there werephone calls on the mobile of the accused. That, thereafter, the accusedwas found from the house of his relative Ashok Kumar Madhukar-GP.W.13. Immediately after his arrest, the dead bodies were recovered/found along with the school bags etc. from the place shown by theaccused himself. The aforesaid are the chain of events which led to theconclusion that the accused first kidnapped the three minor children andthereafter killed all of them. The phone-calls made to the accused hasbeen established and proved by the prosecution by examining theH

Investigating Officer and by producing the call details from the mobilecompany as Ex.P.30.

17. Now, so far as the evidence of the accused having last seentogether with the deceased is concerned, the prosecution has heavilyrelied upon the depositions of P.W.1 and P.W.8. So far as the relianceplaced upon the deposition of P.W.1 is concerned, it is the case on behalfof the accused that while recording his statement under Section 313Cr.P.C., the incriminating material on the basis of the deposition of P.W.1that he saw the accused with the deceased minors at around 1.00 pm onthe afternoon of 11.02.2011, was not put to him and therefore, to thatextent, the deposition of P.W.1 cannot be relied upon. However, it isrequired to be noted that while recording the statement of the accusedunder Section 313 Cr.PC., the deposition of P.W.1 was specificallyreferred to. Therefore, not asking specific question arising out of thedeposition of P.W.1, in the facts and circumstances of the case, cannotbe said to be fatal to the case of the prosecution. Even otherwise, theaccused was last seen together with the deceased minors has beenestablished and proved by the prosecution by examining P.W.8-AshokPatel. P.W.8-Ashok Patel in his deposition has specifically stated that hesaw the accused with all the three minors deceased at around 12.00hours on 11.02.2011. He has identified/recognized the accused presentin the court. He has also stated that he knew the complainant Shivlal andhe recognized all the three minor children of Shivlal. The said witnesshas been thoroughly cross-examined by the defence. However, fromthe cross-examination, the defence has failed to make out any casewhich may doubt either the credibility and/or what the said witness hasstated in his examination-in-chief. He is an independent witness on theevidence of last seen together. We see no reason to doubt the same.There may be some contradictions, but according to us, thosecontradictions are not material contradictions, which may doubt thecredibility of the said witness and/or may be fatal to the case of theprosecution. Thus, the prosecution has been successful in establishingand proving that the accused was last seen together with all the threeminor children at about 12.00 noon on 11.02.2011 after they left theschool.

17.1 At this stage, it is required to be noted that the prosecutionhas proved beyond doubt that all the three minors went to the school inthe morning of 11.02.2011 and thereafter they left for the home at about

A11.30 hours. That, thereafter, at about 12.00 hours, the accused wasseen with all the three minor children. At this stage, it is required to benoted that after Ashok Patel disclosed to Shivlal-P.W.18 and others thathe had seen the accused with the three minor children on 11.02.2011 atabout 11.30 hours, the name of the accused was specifically mentionedin the missing report given by Shivlal on 11.02.2011 and the same wasBalso mentioned in the FIR. In the FIR, it was specifically mentioned thatduring the investigation of missing person No. 3/11, he had enquired thecomplainant and Ashok Patel and Ashok Patel told that he saw the minorchildren with the accused. Thus, considering the entire evidence on record,we see no reason to doubt the credibility of P.W.8-Ashok Patel. He is anCindependent witness and no mala-fides are alleged against him on behalfof the accused.

18. Now, the next important evidence against the accused is therecovery of dead bodies which were found from the places shown bythe accused after his arrest. During the course of the investigation, theDdead bodies were found from the places shown by the accused, theplaces which the accused alone could have known. Therefore, there is arecovery of the dead bodies along with the school dress and bags at theinstance of the accused. It has been established and proved from thedisclosure memo. The disclosure memo has been exhibited. Therefore,the aforesaid circumstance definitely goes against the accused.E19. One another circumstance which goes against the accused isthat after the incident of missing of three minor children, the accusedwas not found in his house and even in the village. He was contacted onhis mobile phone. Initially when he was tried to be contacted, his mobilephone was found switched-off. However, thereafter, he could beFcontacted on mobile when Rameshwar-P.W.11 phoned the accusedManoj on 12.2.2011 at about 11.00 p.m. As per the said witness, at about11.00 p.m. he phoned the accused Manoj and asked him “Where areyou” and the accused told that he is present in his house. According tothe said witness, the accused also told when he was asked whether anyGinformation about the where-about of Shivlal’s children was received,initially the accused replied that he do not know. But, thereafter, he toldthat “When my children are crying Guddu @ Shivlal was enjoying, nowwhen his children are missing how is he feeling”.

19.1 However, it is required to be noted that the accused was notHpresent in his house at all. From the evidence on record, it appears that

the concerned witnesses – Shivlal and others found that the accusedManoj was not in his house. Phone calls made at 11.00 pm on the mobileof the accused in the night of 11.02.2011 has been established and provedby the prosecution by producing the call details from the mobile company(produced as Ex.P.30). The accused has failed to give any explanationon the same in his statement under Section 313 Cr.P.C. Non-examinationof the officer of the mobile company cannot be said to be fatal to thecase of the prosecution, more particularly, when the CDR has been gotexhibited, through the deposition of the Investigating Officer and whenthe same was exhibited, no objection was raised on behalf of the defence.Even otherwise, it is required to be noted that the mobile SIM No.[REDACTED] was seized from the accused at the time of his arrest andwhich is proved as per the seizure memo. Therefore, the prosecutionhas proved that the mobile SIM No. [REDACTED] belonged to the accused.

20. One other important evidence against the accused is thedeposition of P.W.13-Ashok Kumar Madhukar. The accused was foundhiding in the house of said Ashok Kumar Madhukar situated at villageLakharam which is 5-6 kilometers away. It is true that the said witnesshas turned hostile. However, in the cross-examination by the prosecution,P.W. 13 has specifically stated that the accused Manoj told him that thechildren of Shivlal had gone missing and Shivlal has lodged reportagainst him and the police is looking for him. He has specifically statedin the cross-examination that he engaged the accused Manoj inconversation and thereafter the police came and took Manoj afterarresting him. Therefore, the fact that the accused was found from thehouse of said Ashok Kumar Madhukar from village Lakharam has beenestablished and proved, despite the said Ashok Kumar Madhukar hasturned hostile. As per the settled proposition of law, even the depositionof the hostile witness to the extent it supports the case of the prosecutioncan be relied upon. The accused has failed to explain his conduct in hisstatement under Section 313 Cr.P.C. about his missing from the houseand even the village after the incident of kidnapping. He has also failedto explain the reason why he was found from the house of Ashok KumarMadhukar. It may be that there is some doubt created by the defenceabout the place where the accused was arrested. However, the factremains that the accused was arrested from village Lakharam on13.02.2011. According to the defence, the accsued was arrested on12.02.2011 evening. But the same is not established and proved fromthe evidence. On the contrary, as per the deposition of Ashok Kumar

AMadhukar, he was arrested on 13.02.2011. Even as per the arrest memo,the accused was arrested on 13.02.2011. Immediately thereafter, duringthe course of the investigation and as per the disclosure memo, the deadbodies of the deceased minor children were recovered at the instance ofthe accused. Therefore, as such, the chain of events established andproved by the prosecution as under:B(1) That all the three minor children went to the school in themorning of 11.02.2011;

(2) That all three minor children left the school at about 11.30a.m. on 11.02.2011;C(3) That the accused was last seen together with the deceasedminors at about 12.00 hours – 1.00 p.m. on 11.02.2011;

(4) That there was prior enmity between the accused and thecomplainant Shivlal-father of the deceased minor children as the wife ofthe accused ran away with the brother of Shivlal and that the children ofDthe accused were without their mother and therefore he took the revengehow Shivlal would feel if his children are missing;

(5) That the accused was missing from his house and even thevillage from the time of the incident of kidnapping;

(6) There were phone calls with the accused on his mobile no.E[REDACTED] on the night of 11.02.2011;

(7) That he was hiding in the house of Ashok Kumar Madhukarand he was arrested from village Lakharam from the house of AshokKumar Madhukar on 13.02.2011 and/or at least from Village Lakharam;

F(8) Recovery of dead bodies of the minor children from the placeshown by the accused, which are recovered from the place/places forwhich the accused alone could have the knowledge; and

(9) That the death of the minors were homicidal death.

21. As per the learned counsel appearing on behalf of the accused,Gthere are contradictions in the depositions of various witnesses, moreparticularly, P.W.1 and P.W.8 having told that they had seen the accusedwith the minor children on 11.02.2011 and even with respect to thetelephonic calls and having talked with the accused after 11.02.2011.However, having considered the so-called contradictions pointed out byHthe learned counsel appearing on behalf of the accused and other

evidences, we are of the opinion that those contradictions are not materialcontradictions which may ultimately affect the case of the prosecutionas whole. The minor discrepancies and inconsistencies in the statementsof the prosecution witnesses and the minor lacuna in the investigationled by the police cannot be reason for discarding the entire prosecutioncase, if the evidence is otherwise sufficient and inspiring to bring homethe guilt of the accused. As observed by this Court in the case of LeemaRam v. State of Haryana [AIR 1999 SC 3717], there are bound to besome discrepancies between the narrations of different witnesses, whenthey speak on details, and unless the contradictions are of materialdimension, the same should not be used to jettison the evidence in itsentirety. It is further observed that corroboration of evidence withmathematical niceties cannot be expected in criminal cases. Minorembellishment, there may be, but variations by reason therefore shouldnot render the evidence unbelievable. Trivial discrepancies ought not toobliterate an otherwise acceptable evidence. The Court shall have tobear in mind that different witnesses react differently under differentsituations: whereas some become speechless; some start wailing whilesome others run away from the scene and yet there are some who maycome forward with courage, conviction and belief that the wrong shouldbe remedied. So it depends upon individuals and individuals. There cannotbe any set pattern or uniform rule of human reaction and to discard apiece of evidence on the ground of his reaction not falling within setpattern is unproductive. Therefore, we are of the opinion that the so-called minor discrepancies/contradictions do not ultimately affect thecase of the prosecution. The benefit of such minor discrepancies/contradictions should not go to the accused, more particularly, whenfrom the other evidences on record the guilt of the accused has beenestablished and proved.

22. Thus, for the reasons sated above, we are of the opinion thatthe High Court has not committed any error in upholding the convictionof the accused for the offences punishable under Sections 302 and 364IPC. We are in complete agreement with the view taken by the learnedTrial Court as well as the High Court in so far as convicting the accusedfor the offences punishable under Section 302 and 364 IPC for havingkilled three minor children aged about 8 years, 6 years and 4 yearsrespectively.

23. Now, so far as the capital punishment imposed by the learnedTrial Court and confirmed by the High Court is concerned, it is the case

DEF

Aon behalf of the appellant-accused that as the learned Trial Court heardthe accused on sentence the very same day on which the convictionwas recorded and as such an error has been committed by the learnedTrial Court and therefore it vitiates the award of sentence, reliance hasbeen placed upon the decisions of this Court in the cases of Santa Singh(supra), Allaudin Mian (supra), Rajesh Kumar (supra), Ajay PanditB@ Jagdish (supra) and recent decision of this Court in Chhannu LalVerma (supra). While considering the aforesaid submissions, the objectof Section 235(2) Cr.P.C. is required to be considered. The object andpurpose of Section 235(2) Cr.P.C. is that the accused must be given anopportunity to make representation against the sentence to be imposedCon him. Sub-section (2) of Section 235 satisfies dual purpose; it satisfiesthe rule of natural justice by affording to the accused an opportunity ofbeing heard on the question of sentence and at the same time helps thecourt to choose the sentence to be awarded. So, what is required to beconsidered is whether at the time of awarding of sentence, sufficientand proper opportunity has been given to the accused or not and whenDthe capital punishment is awarded, whether the accused has been giventhe opportunity to point out the aggravating and mitigating circumstancesor not? An identical question came to be considered by this Court in arecent decision of this Court in the case of Accused ‘X’ v. State ofMaharashtra in Review Petition (Criminal) No. 301 of 2008 in CriminalEAppeal No. 680 of 2007 dated 12.04.2019. Before this Court the verydecisions on which the reliance has been placed now by the learnedcounsel appearing on behalf of the accused, which are referred tohereinabove, were pressed into service. This Court had the occasion toconsider the very submissions made on behalf of the accused, moreparticularly, the conviction and the sentence on the very day on whichFthe conviction was recorded. In paragraphs 29 to 34, this Court hasobserved and held as under:

“29. Two recent three- Judge Bench decisions of this Court onthis aspect merit our consideration. Firstly, in the decision dated28.11.2018 in Chhannu Lal Verma v. State of ChhattisgarhG(Criminal Appeal Nos. 1482-1483 of 2018), this Court observedthat not having separate hearing at the stage of trial was aprocedural impropriety. Noting that bifurcated hearing forconviction and sentencing was necessary condition laid down inSantosh Kumar Satishbhushan Bariyar, (2009) 6 SCC 498, theHCourt held that by conducting the hearing for sentencing on the

same day, the Trial Court failed to provide necessary time to theappellant therein to furnish evidence relevant to sentencing andmitigation. We find that this cannot be taken to mean that thisCourt intended to lay down, as proposition of law, that hearingthe accused for sentencing on the same day as for convictionwould vitiate the trial. On the contrary, in the said case, it wasfound on facts that the same was procedural impropriety becausethe accused was not given sufficient time to furnish evidencerelevant to sentencing and mitigation.

30. Secondly, in the decision dated 12.12.2018 in RajendraPrahladrao Wasnik v. State of Maharashtra, (Review Petition (Crl.) Nos. 306-307 of 2013), this Court made general observationthat in cases where the death penalty may be awarded, the TrialCourt should give an opportunity to the accused after convictionwhich is adequate for the production of relevant material on thequestion of the propriety of the death sentence. This is evidentlyat best directory in nature and cannot be taken to mean that apre--sentence hearing on separate date is mandatory.31. It may also be noted that in the older three-Judge Benchdecision of this Court in Malkiat Singh Case (1991) 4 SCC 341,the Court observed that keeping in mind the two--Judge Benchdecisions in Allauddin Mian Case (supra) and Auguswamy v. Stateof Tamil Nadu, (1989) 3 SCC 33, wherein it had been laid downthat sentence awarded on the same day as the finding of guilt isnot in accordance with law, the normal course of action in case ofviolation of such procedure would be remand for further evidence.However, on perusal of these two decisions we find that theirimport has not been correctly appreciated in Malkiat Singh Case(supra), since the observations in Allauddin Mian Case (supra),as relied upon in Anguswamy Case (supra), regarding conduct ofhearings on separate dates, were only directory. Be that as itmay, it must be noted that the effect of Malkiat Singh Case (supra)has already been considered by this Court in Vasanta SampatDupare v. State of Maharashtra (2017) 6 SCC 631, wherein itwas already noted that the mere non-conduct of the pre-sentencehearing on separate date would not per se vitiate the trial if theaccused has been afforded sufficient time to place relevantmaterial on record.

ABC

32. It may not be out of context to note that in case the minimumsentence is proposed to be imposed upon the accused, the questionof providing an opportunity under Section 235(2)would not arise.(See Tarlok Singh v. State of Punjab, (1977) 3 SCC 218; RamdeoChauhan v. State of Assam, (2001) 5 SCC 714).

33. There cannot be any doubt that at the stage of hearing onsentence, generally, the accused argues based on the mitigatingcircumstances in his favour for imposition of lesser sentence. Onthe other hand, the State/the complainant would argue based onthe aggravating circumstances against the accused to support thecontention relating to imposition of higher sentence. The objectof Section 235(2) of the Cr.P.Cis to provide an opportunity foraccused to adduce mitigating circumstances. This does not mean,however, that the Trial Court can fulfill the requirements of Section235(2)of the Cr.P.C. only by adjourning the matter for one or twodays to hear the parties on sentence. If the accused is ready tosubmit his arguments on this aspect on the very day ofpronouncement of the judgment of conviction, it is open for theTrial Court to hear the parties on sentence on the same day afterpassing the judgment of conviction. In given case, based onfacts and circumstances, the Trial Court may choose to hear theparties on the next day or after two days as well.

34. In light of the above discussion, we are of the opinion that aslong as the spirit and purpose of Section 235(2) is met, inasmuchas the accused is afforded real and effective opportunity toplead his case with respect to sentencing, whether simply by wayof oral submissions or by also bringing pertinent material on record,Fthere is no bar on the pre-sentencing hearing taking place on thesame day as the pre-conviction hearing. Depending on the factsand circumstances, separate date may be required for hearingon sentence, but it is equally permissible to argue on the questionof sentence on the same day if the parties wish to do so.”

Thus, there is no absolute proposition of law that in no case therecan be conviction and sentence on the same day. There is no absoluteproposition of law laid down by this Court in any of the decisions that ifthe sentence is awarded on the very same day on which the convictionwas recorded, the sentencing would be vitiated.

23.1 So far as the reliance placed upon by the learned counselappearing on behalf the appellant upon the decision of this Court in thecase of Santa Singh (supra) is concerned, on considering the entirejudgment and the facts in that case, we are of the opinion that the saiddecision shall not be applicable to the facts of the case on hand and/orthe same shall not be of any assistance to the accused. In that casebefore this Court, it was found that the learned Trial Court did not givethe accused an opportunity to be heard in regard to the sentence to beimposed on him and by one single judgment convicted the accused andalso sentenced him to death.

23.2 Similarly, the decision of this Court in the case of AllaudinMian (supra) also shall not be applicable to the facts of the case onhand. In the case before this Court, it was found that the death sentencewas imposed by the Trial Court without affording proper opportunity ofhearing as contemplated under Section 235(2) Cr.P.C. No reasons wererecorded for awarding the death sentence which as such were mandatoryand thereafter on merits this Court found that the death sentence wasno warranted.

23.3 Applying the law laid down by this Court in the aforesaiddecisions, more particularly, in the case of Accused ‘X’ (supra) to thefacts of the case on hand and on considering the reasoning given by thelearned Trial Court as well as the High Court, we are of the opinion thatthere is sufficient compliance of the provisions of Section 235(2) Cr.P.C.The learned Trial Court heard the accused on the aspect of propositionof sentence separately which is clear from paragraphs 76 to 82 of thejudgment of the learned Trial Court. Hence, based on the material onrecord, we are satisfied that the learned Trial Court fully complied withthe requirements of Section 235(2) Cr.P.C. The learned Trial Court hadconsidered the mitigating circumstances pointed out on behalf of theaccused and also considered the aggravating circumstances whichwarranted the death sentence. Thus, it cannot be said that the accusedwas not given any sufficient opportunity to put forward his case onsentence. It also cannot be said that the learned Trial Court has notgiven any special reasons while awarding the death sentence. Afterconsidering the aggravating circumstances and the crime i.e. themagnitude and the manner of the commission of the crime in the form ofkidnapping and thereafter murdering three minor children, while awardingthe death sentence the learned Trial Court has considered the followingaggravating circumstances against the accused:

A“A. This point is not disputed that the accused was annoyed withShivlal (PW-18) because 10 days prior to the incident hiswife Sumrit Bai eloped or got eloped by the brother of Shivlal(PW-18) as there was love affair between Sumrit Bai anduncle of the minors deceased Ajay, Vijay and Sakshi. In thisregard evidence is also available on record.B

B.As well as this point is also considerable that beingacquaintance with the accused and having faith on accusedall the three minors innocent Ajay, Vijay and Sakshi left theschool with the accused and were missing. Hence, breachingthe faith of all the three innocent minors the accused hasCcommitted the offence of kidnapping.

C.It is also considerable that the accused has committed culpablehomicide of all the three minors Ajay, Vijay and Sakshi whoseage was in between 4 to 8 years. There was 10 days sufficienttime gap between the incident of eloping accused’s wife withDShivnath, the uncle of the minors and the date of committingculpable homicide of the minors. Hence, the act of the accusedis not the act committed under grave and sudden provocation.On the basis of evidence available on record the act of theaccused is afterthought with planned manner.

ED. It is also considerable that accused has brutally committedhomicidal death of all three minors Ajay, Vijay and Sakshi byprocessing their neck forcefully who have no concern withthe matter of eloping his wife Sumrit Bai.

E.It is also considerable that accused has brutally, mercilesslyFand cowardly committed murder of all three minors Ajay,Vijay and Sakshi who were tender age of 4-8 years and werecompletely unable to resist and defend themselves at the timeof incident.

F.At the time of committing the said act accused had twoGchildren thinking over it the accused did not have to do thesaid act. In the light of the said act committed by the accusedthe question of maintaining their minor children is secondary.

G.It is also considerable that the said act of the accused is theact which gives challenge to the social security of the society.”H

Thus, the submission on behalf of the accused that as the sentencewas recorded on the same day on which the conviction was recordedand therefore it has vitiated the award of sentence, cannot be accepted.As observed hereinabove, there is total compliance of the provisionsof Section 235 (2) as well as Section 354 Cr.P.C.

24. Now, so far as the submission on behalf of the accused thatwhile awarding the capital punishment the learned Trial Court has solelylooked to the brutality of the crime is concerned, it is factually incorrect.On considering the rival discussions as well as the reasons given by thelearned Trial Court while awarding the capital punishment, it appearsthat the brutality of the crime was considered to be one of the reasonsand not the sole reason.

25. However, at the same time, the prayer on behalf of the accusednot to impose the death penalty and to convert the same into lifeimprisonment, in the facts and circumstances of the case, requiresconsideration. Therefore, now the question which is posed forconsideration of this Court is whether, in the facts and circumstances ofthe case, the death sentence is warranted?

25.1 While answering the aforesaid questions, few decisions ofthis Court on when the death sentence is warranted are required to bereferred to and considered.

25.2 After analyzing many decisions of this Court on imposition ofdeath sentence, namely, Bachan Singh (supra); Machhi Singh v. Stateof Punjab (1983) 3 SCC 470; Mohd. Chaman v. State (NCT of Delhi)(2001) 2 SCC 28; Aloke Nath Dutta v. State of W.B. (2007) 12 SCC230; State of Punjab v. Manjit Singh (2009) 14 SCC 31; Santosh KumarSatishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498;Sebastian v. State of Kerala (2010) 1 SCC 58; Rajesh Kumar (supra);Ramesh v. State of Rajasthan (2011) 3 SCC 685; Amit (supra); andMohinder Singh v. State of Punjab (2013) 3 SCC 294, the decisionswhich were relied upon on behalf of the accused and after consideringfew decisions of this Court involving death sentence which were reliedupon on behalf of the State, ultimately, this Court in the case of SushilSharma v. State (NCT) of Delhi (2014) 4 SCC 317 in paragraphs 100-104 has observed and held as under:

“100. In light of the above judgments, we would nowascertain what factors which we need to take into consideration

while deciding the question of sentence. Undoubtedly, we mustlocate the aggravating and mitigating circumstances in this caseand strike the right balance. We must also consider whether thereis anything uncommon in this case which renders the sentence tolife imprisonment inadequate and calls for death sentence. It isalso necessary to see whether the circumstances of the crimeare such that there is no alternative but to impose death sentenceeven after according maximum weightage to the mitigatingcircumstances which speak in favour of the offender.

101. We notice from the above judgments that mere brutalityof the murder or the number of persons killed or the manner inwhich the body is disposed of has not always persuaded this Courtto impose death penalty. Similarly, at times, in the peculiar factualmatrix, this Court has not thought it fit to award death penalty incases, which rested on circumstantial evidence or solely onapprover’s evidence. Where murder, though brutal, is committeddriven by extreme emotional disturbance and it does not have

enormous proportion, the option of life imprisonment has beenexercised in certain cases. Extreme poverty and social status hasalso been taken into account amongst other circumstances fornot awarding death sentence. In few cases, time spent by theaccused in death cell has been taken into consideration along with

other circumstances, to commute death sentence into lifeimprisonment. Where the accused had no criminal antecedents;where the State had not led any evidence to show that the accusedis beyond reformation and rehabilitation or that he would revert tosimilar crimes in future, this Court has leaned in favour of life

imprisonment. In such cases, doctrine of proportionality and thetheory of deterrence have taken back seat. The theory ofreformation and rehabilitation has prevailed over the idea ofretribution.

102. On the other hand, rape followed by cold-bloodedmurder of minor girl and further followed by disrespect to thebody of the victim has been often held to be an offence attractingdeath penalty. At times, cases exhibiting premeditation andmeticulous execution of the plan to murder by levelling calculatedattack on the victim to annihilate him, have been held to be fitcases for imposing death penalty. Where innocent minor children,

unarmed persons, hapless women and old and infirm persons havebeen killed in brutal manner by persons in dominating position,and where after ghastly murder displaying depraved mentality,the accused have shown no remorse, death penalty has beenimposed. Where it is established that the accused is confirmedcriminal and has committed murder in diabolical manner andwhere it is felt that reformation and rehabilitation of such personis impossible and if let free, he would be menace to the society,this Court has not hesitated to confirm death sentence. Many atime, in cases of brutal murder, exhibiting depravity and sick mind,this Court has acknowledged the need to send deterrent messageto those who may embark on such crimes in future. In some casesinvolving brutal murders, society’s cry for justice has been takennote of by this Court, amongst other relevant factors. But, onething is certain that while deciding whether death penalty shouldbe awarded or not, this Court has in each case realising theirreversible nature of the sentence, pondered over the issue manytimes over. This Court has always kept in mind the caution soundedby the Constitution Bench in Bachan Singh [BachanSingh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri)580] that Judges should never be bloodthirsty but has wherevernecessary in the interest of society located the rarest of the rarecase and exercised the tougher option of death penalty.103. In the nature of things, there can be no hard-and-fastrules which the court can follow while considering whether anaccused should be awarded death sentence or not. The core of acriminal case is its facts and, the facts differ from case to case.Therefore, the various factors like the age of the criminal, hissocial status, his background, whether he is confirmed criminalor not, whether he had any antecedents, whether there is anypossibility of his reformation and rehabilitation or whether it is acase where the reformation is impossible and the accused is likelyto revert to such crimes in future and become threat to thesociety are factors which the criminal court will have to examineindependently in each case. Decision whether to impose deathpenalty or not must be taken in the light of guiding principles laiddown in several authoritative pronouncements of this Court in thefacts and attendant circumstances of each case.

ABC

A104. We must also bear in mind that though, the judicialproceedings do take long time in attaining finality, that would notbe ground for commuting the death sentence to lifeimprisonment. Law in this behalf has been well settledin Triveniben [Triveniben v. State of Gujarat, (1989) 1 SCC 678: 1989 SCC (Cri) 248] . The time taken by the courts till the finalBverdict is pronounced cannot come to the aid of the accused incanvassing commutation of death sentence to life imprisonment.In Triveniben [Triveniben v. State of Gujarat, (1989) 1 SCC 678: 1989 SCC (Cri) 248] , the Constitution Bench made it clear thatthough ordinarily, it is expected that even in this Court, the mattersCwhere the capital punishment is involved, will be given top priorityand shall be heard and disposed of as expeditiously as possiblebut it could not be doubted that so long as the matter is pending inany court, before final adjudication, even the person who has beencondemned or who has been sentenced to death has ray ofhope. It, therefore, could not be contended that he suffers thatDmental torture which person suffers when he knows that he isto be hanged but waits for the doomsday. Therefore, the appellantcannot draw any support from the fact that from the day of thecrime till the final verdict, long time has elapsed. It must beremembered that fair trial is the right of an accused. Fair trialEinvolves following the correct procedure and giving opportunity tothe accused to probabilise his defence. In matter such as this,hurried decision may not be in the interest of the appellant.”

25.3 In the case of Absar Alam v. State of Bihar (2012) 2 SCC728, it is observed and held by this Court that the mental condition of theFaccused, which led to assault, cannot be lost sight of. It is further observedthat the mental condition or state of mind of accused is one of the factorsthat can be taken into account in considering the question of sentence.

25.4 Thus, from the catena of decisions of this Court, moreparticularly, the decisions referred to hereinabove, for deciding on theGissue of sentence, the aggravating circumstances and mitigatingcircumstances must be located and the right balance must be adopted.What can be said to be the mitigating circumstances has been dealt withand considered by this Court in the case of Bachan Singh (supra). Asobserved by this Court in the case of Bachan Singh (supra), the followingcan be said to be the mitigating circumstances which are required to beHconsidered while deciding on the issue of death sentence.

“(1) That the offence was committed under the influenceof extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old,he shall not be sentenced to death.

(3) The probability that the accused would not commitcriminal acts of violence as would constitute continuing threatto society.

(4) The probability that the accused can be reformed andrehabilitated.

The State shall by evidence prove that the accused doesnot satisfy Conditions (3) and (4) above.

(5) That in the facts and circumstances of the case theaccused believed that he was morally justified in committing theoffence.

(6) That the accused acted under the duress or dominationof another person.

(7) That the condition of the accused showed that he wasmentally defective and that the said defect impaired his capacityto appreciate the criminality of his conduct.”

25.5 In light of the above judgments, we would now ascertain thefactors which we need to take into consideration while deciding on thequestion of sentence. We must locate the aggravating and mitigatingcircumstances in this case and strike right balance. In the presentcase, the following are the mitigating factors/circumstances:

(i) That the offence was committed under the influence of extrememental or emotional disturbance. The accused was emotionally disturbeddue to the elopement of his wife with the uncle of the deceased and thathis children were suffering in absence of their mother with them. Theaccused was so much disturbed and troubled is also born out from thedeposition of one of the witnesses that on mobile the accused told howShivlal is feeling without his children.

(ii) There are no criminal antecedents.

(iii) At the time of commission of the offence the accused was 28years of age and his conduct in prison is reported to be good.

A(iv) That he belongs to poor family and is the only son of hisparents, and

(v) That he has got an old aged mother who is taking care of twodaughters of the accused, out of which one is married now.

25.6 On the other hand, the only aggravating circumstance pointedBout by the State is that the manner in which the incident took place andthree minors were brutally killed. Except the above, no other aggravatingcircumstances are pointed out on behalf of the State. Therefore, strikingthe balance between aggravating circumstances and mitigatingcircumstances, we are of the opinion that in the facts and circumstancesCof the case, more particularly, the mental condition of the accused at thetime of the commission of the offence and that the accused was underextreme mental disturbance due to his wife eloped with the uncle of thedeceased and his children were deprived of the company of their mother,the mitigating circumstances are in favour of the accused to convert thedeath sentence to life imprisonment. It is true that the court must respondDto the cry of the society and to settle what would be the deterrentpunishment for an abominable crime. It is also equally true that largernumber of criminals go unpunished thereby increasing criminals in thesociety and law losing its deterrent effect. It is also true that the peculiarcircumstances of given case often results in miscarriage of justice andEmakes the justice delivery system suspect; in the ultimate analysis, thesociety suffers and criminal get encouraged. Sometimes it is statedthat only rights of criminals are kept in mind, the victims are forgotten.However, at the same time, while imposing the rarest of rare punishment,i.e. death penalty, the Court must balance the mitigating and aggravatingcircumstances of the crime and it would depend upon particular andFpeculiar facts and circumstances of each case. The mitigatingcircumstances as observed by this Court in the case of Bachan Singh(supra) and the mitigating circumstances in the present case, if areconsidered cumulatively and more particularly, that the accused wasunder the extreme mental disturbance because of the reasons statedGhereinabove, we are of the opinion that, in the peculiar facts andcircumstances of the case, the death penalty is not warranted and thesame be converted to life imprisonment.

26. In view of the above and for the reasons stated above, thepresent appeal succeeds in part. The Judgment and Order passed by theHlearned Trial Court and confirmed by the High Court convicting the

accused for the offences punishable under Sections 302 and 364 IPC ishereby confirmed. However, the death sentence imposed by the learnedTrial Court, confirmed by the High Court, is converted into the lifeimprisonment. It is further observed and directed that the life means tillthe end of the life with the further observation and direction that thereshall not be any remission till the accused completes 25 years ofimprisonment.

The present appeal is partly allowed to the aforesaid extent.

Devika Gujral

Appeal partly allowed.