Raju S/O. Chhannulal Birha vs The State Of Mah. Thr. Its Pso, Ps Hingna, ... on 31 October, 2023

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Bombay High Court

Raju S/O. Chhannulal Birha vs The State Of Mah. Thr. Its Pso, Ps Hingna, ... on 31 October, 2023

1. The appellant/accused Raju s/o Chhannulal Birha has been convicted for the offence punishable under Section 302 of the Indian Penal Code ('IPC') for committing murder of three persons namely Sunil Kotangale, Kailash Bahadure, Golu @ Ashish Gaikwad, and sentenced to death penalty along with the fine.

2. The facts of the case raises two issues namely, Whether the conviction of the accused is sustainable in the eyes of law, if Yes, what would be the appropriate sentence? Is that the Capital punishment is the only option available on given facts of the case?

3. Accused Raju Birha along with co-accused Kamlesh @ 3 Raghuvir were tried in the Sessions Case No.104 of 2016 for the offence punishable under Sections 302, 307, 504 read with Section 34 of the IPC, and Section 4 read with Section 25 of the Arms Act. The Trial Court vide impugned judgment and order dated 28.12.2022 held accused no.1 Raju Birha guilty for the offence punishable under Section 302 of the IPC, and imposed the capital punishment along with the fine of Rs.5,000/- with a stipulation of default. The Trial Court has acquitted the co-accused Kamlesh from all the charges.

4. In view of the mandate of Section 366 of The Code of Criminal Procedure ('CrPC'), the Trial Court has submitted the proceedings for confirmation of death sentence, whilst accused Raju Birha as well, has filed an appeal in terms of Section 374 (2) of the CrPC challenging the judgment and order of conviction.

5. Heard learned Senior Counsel Shri Mardikar appearing for the accused Raju Birha, whilst learned Additional Public Prosecutor Shri Doifode for the prosecution. We have carefully examined the entire material and gone through the various reported decisions cited by the parties in support of the respective contentions. We have reassessed the entire facts and law to arrive at independent conclusion.

6. Accused No.1 Raju Birha ('accused') was running a Pan Stall at village Dongargaon (Ghuti) in front of Vrundavan City Colony. Informant Bhumeshwari's (PW1) husband Sunil was also running a Tea and Pan Stall in the close proximity. Since the land owner started to raise the construction, PW1 Bhumeshwari and her husband Sunil were asked to shift their tea stall, which they did. The accused also shifted his stall at the place where Sunil's stall existed. On 17.11.2015 as usual, around 7.00 am, Sunil and PW1 Bhumeshwari had opened their Tea stall and were doing the business. Kailash Bahadure and Golu Gaikwad came to the informant's stall and were talking with her husband Sunil.

7. Genesis of the occurrence is a minor dispute on account of utilizing services of a labour namely Bhurya. The evidence of PW1 Bhumeshwari, PW2 Shyamrao Thate and PW3 Mahadeo Patil has unfolded the initiation of the dispute. PW2 Shyamrao brought a labour namely Bhurya from nearby Vrundavan City. The informant's husband Sunil said that he has given money to Bhurya, which shall be returned, and then only PW2 Shyamrao shall utilize the services of Bhurya. PW2 Shyamrao said to Sunil that Sunil may give his amount and take Bhurya for his work. Kailash and Golu who were at the shop of Sunil, intervened. During the conversation, the accused came and asked to Sunil that, he should allow Bhurya to go for work with 5 Shyamrao, as he would return the money. The quarrel erupted on account of Bhurya having taken money from Sunil but was working with Shyamrao, whilst Shaymrao wanted his money back for sending Bhurya to work with Sunil. The accused intervened by taking the side of Bhurya and expressed his willingness to pay the money. At that time, Kailash gave a slap to the accused. Immediately, the accused went behind his shop and brought iron Sattur. Accused was wearing white Trouser (Paijama) and white sandoz baniyan.

8. The accused initially assaulted Kailash by Sattur, causing him bleeding injury. Sunil came to the rescue of Kailash however the accused assaulted Sunil by Sattur, as a result intestine of Sunil came out. The informant Bhumeshwari tried to intervene but the accused also assaulted her, however she dodged and ran away. When the accused was assaulting Sunil, both Kailash and Golu ran towards Sandesh City. After assaulting Sunil, the accused chased both of them and returned within 10 to 15 minutes. Seeing Sunil alive, again the accused assaulted Sunil by means of Sattur. The accused also tried to assault the informant Bhumeshwari, however she ran towards the field. After sometime, Bhumeshwari returned and saw that her husband Sunil was lying dead in the pool of blood. She came to know that the accused has also assaulted and killed Kailash and Golu at some distance.

9. It is the prosecution case that, on that day, around 10.40 a.m. while PW12 API Santosh Khadke was on patrolling duty, he received a phone call of the accused saying that he has killed three persons. API Santosh Khadke did not believe and asked whether he is drunk. The accused handed over phone to his daughter who spoke that the clothes of her father were smeared with blood and her father was holding a Sattur having blood stains. PW12 API Santosh Khadke asked to the accused as to why he did not run away. PW12 API Santosh Khadke has telephonically informed the things to his Superior PW13 Police Inspector Vilas Wandile, in-charge of Police Station. PW12 API Santosh Kadke rushed to the spot which he knew, as the accused was history sheeter. PW12 API Santosh Kadke calmed down the accused and took him in charge. The accused was handed over to PSI Kondalkar for taking him to the Police Station.

10. PW13 PI Wandile has summoned the Photographer, Videographer and Detection Team. PW1 Bhumeshwari was taken to the Police Station where she lodged the oral report (Exhibit 42), which was reduced into writing. The Police have registered the FIR vide Crime No.139 of 2015 for the offence of committing murder of three persons namely Sunil Kotangale, Kailash and Golu. It was alleged that while chasing Kailash and Golu, the accused went as a pillion rider on the motorcycle of accused no.2 Kamlesh. The Police 7 have arrested both the accused. The Panchanama of the scene of the offence was carried out. Various articles were seized from the place of occurrence. The accused made a disclosure statement on the basis of which the Police have seized motorcycle used in the commission of crime. House search of the accused was taken in which weapon i.e. Stattur was seized under Panchanama. After carrying inquest Panchanama, dead-bodies of all three deceased were sent for autopsy. The clothes of all the three deceased were seized. Necessary blood samples, nail clipping were collected. The seized articles were sent for the chemical examination and DNA profiling. After completion of the investigation, the charge-sheet has been filed.

11. On denial of the charges, the prosecution has examined in all 16 witnesses to bring home the guilt of the accused. The prosecution evidence consists of the following witnesses. PW1 Bhumeshwari is the informant as well as the eye witness to the assault on Sunil. PW2 Shyamrao Thate, shop owner, an eye witness to the extent of the quarrel of the accused with deceased Sunil. PW3 Mahadeo Patil, owner of the pan shop, a witnesses to the extent of initial quarrel. PW4 Mangesh Tonge a nearby Pan Stall owner. PW5 Manoj Mute running pan shop near Gumgaon Bus stop, a witness on Extra-judicial confession. PW6 Vivek Gawande the Panch before whom various Panchnamas were prepared. PW7 Dr. Rushikesh 8 Pathak, conducted autopsy on the body of deceased Sunil. PW8 Dr. Jaideo Borkar, conducted autopsy on the body of Kailash and Golu. PW9 Ravindra Raghunath Darak who carried video shooting of the process of panchnama of the spot of the incident where the three dead bodies were lying. PW10 PSI Suresh Mate, who prepared spot panchnama. PW11 Satish Thakre Photographer and Videographer. PW12 API Santosh Kadke who received phone call of the accused on the date of incident and taken other action handing over dead bodies to the relatives, preparing inquest panchnama. PW13 Police Inspector Vilas Wandile, In-charge of Hingna police station who has carried out investigation and filed charge-sheet. PW14 Assistant Chemical Analyzer Ankita Dixit who has carried out DNA analysis of medical samples of dead bodies, blood stained clothes and Sattur. PW15 Anjum Naikwade a Nodal officer of Vodafone Idea Company. PW16 Assistant Chemical Analyzer Tushar Pawar who has prepared C.A. reports.

12. Besides that, the prosecution also banks upon certain documents with which we prefer to make contextual reference. The defence of the accused is of total denial and false implication. The accused has not examined witness in defence. On analyzing the evidence, the Trial Court held that the prosecution has established that the accused Raju Birha has committed murder of three persons. 9 However, the Trial Court acquitted him from the rest of the charges. Co-accused Kamlesh was acquitted from all charges. The State has neither challenged the acquittal of the accused Raju Birha from rest of the charges, nor the clean acquittal of Kamlesh under all charges. After hearing both the sides on sentence, the Trial Court has formed an opinion that the case falls in the 'rarest of rare' category and thus, awarded the capital punishment to the accused Raju Birha. In view of mandate of Section 366 of the Code, the Trial Court has made a reference of confirmation, whilst the accused has also challenged the order of conviction in the appeal.

13. Before commencing submissions, the learned Defence Counsel urged to recall PW13 Police Inspector Wandile (Investigation Officer), PW15 Anjum Naikade (Nodel Officer) and PW16 Tushar Pawar (Chemical Analyzer) on account of denial of fair trial. It is submitted that the Trial Court has not accorded proper opportunity to cross-examine these witnesses, which resulted into failure of justice. Considering the fact that either there was no cross-examination due to absence of Counsel, or cryptic cross-examination by the accused, in exercise of the powers under Section 367 of the CrPC, we have permitted the defence to cross-examine these three witnesses. In turn, above named three prosecution witnesses were recalled and we ourselve have recorded their further cross-examination. 10

14. In the above background, we have exhaustively heard the both sides. The learned Senior Counsel Shri Mardikar has challenged the very sustainability of the order of conviction. He would submit that the evidence adduced by the prosecution fells short on the touchstone of high degree of proof required under criminal law. Besides that, he contended that the case does not fall in the category of 'rarest of rare' case. He has assailed the impugned judgment on various counts to which we prefer to deal contextually in the later part of the judgment. The learned Senior Counsel Shri Mardikar has placed reliance on the various decisions to support his stand. Per contra, learned Addl.P.P. Shri Doifode, strongly supported the judgment and order of conviction, as well as the death sentence imposed by the Trial Court. He has also relied on various reported decisions to uphold his contention.

15. Always the first and foremost point falls for consideration is about the nature of death. Whether the prosecution has proved that the deceased (Sunil, Kailash and Golu) met with a homicidal death. For this purpose, the prosecution has relied on the evidence of eye-witnesses, spot panchanama, inquest panchanama and more importantly postmortem notes. The prosecution has heavily relied upon the evidence of PW7 Dr.Rushikesh Pathak, who has conducted autopsy on the death body of Sunil, and evidence of PW8 Dr. Jaideo 11 Borkar, who has conducted autopsy on the dead bodies of Kailash and Golu. As a matter of fact, the defence has neither challenged the homicidal death of all deceased before the Trial Court, nor before us. Rather learned Senior Counsel Shri Mardikar for the accused has conceded the homicidal death of all three deceased. However, to complete the point in all respect we have gone through the relevant material coupled with the evidence of Medical Officers.

16. As per evidence of Dr. Rushikesh Pathak PW-7 during the autopsy of the body of Sunil Kotangale carried on 17.11.2015 he found following external injuries as mentioned in postmortem report Exh.108.

Injury No.1 - Chop wound present over left anterior aspect of neck, below the level of thyroid cartilage, with upper end placed in midline and lower end 1.5 cm. away from midline of size 7 cm. X 3cm. X spine deep with cut fracture of vertebra body of 6th Carvical vertebra with traches chopped and tracheal cavity cut open with blood stained froth coming out from the chop wound.

Injury No.2 - Stab wound present over left anterior aspect of chest, with medial end placed 5 cm. below left nipple of size 4 cm. X 1.5 cm. Cavity deep, horizontal, margins clean cut, both ends sharp, directed backward, medially and straight.

Injury No.3 - Stab wound present over left lateral aspect of chest, placed 6 cm. lateral to injury no.2 of size 6 cm. X 2cm. X cavity deep horizontally oblique, margins clean cut, both ends sharp, directed medially, straight and slightly downward.

Injury No.4 - Stab wound present over antero lateral aspect of left side of abdomen, involving left lumbar region, of size 12 10 cm.X 5 cm.X cavity deep, horizontal margins clean cut both ends sharp, directed medially, backward and straight, with coils of intestine protruding out from the stab wound. Injury No.5 - Incised wound present over right anterior aspect of chest of size 2.5 cm. X 0.5 cm. X muscle deep, horizontally oblique, placed 10 cm. below right nipple with evidence of tailing towards midline.

Injury No.6 - Incised wound present over anterior aspect of left arm, middle 1/3rd of size 3 cm. X 2 cm. X muscle deep, vertical.

Injury No.7 - Incised wound present over anterior aspect of left forearm involving its upper 2/3rd part of size 11cm. X 3 cm. X muscle deep, aspect of left forearm, middle 1/3rd of size 5 cm. X 2 cm. X muscle deep, vertical.

Injury No. 8 : Incised wound present over radial aspect of left forearm, middle 1/3rd of size 5 cm. X 2 cm. X muscle deep, vertical.

Injury No.9 - Chop wound present over posterior aspect of left forearm, upper 1/3rd of size 8 cm. X 5 cm. X bone deep, with underlying bones of forearm chopped wound placed horizontally oblique.

Injury No.10 - Incised wound present over posterior aspect of left forearm, middle 1/3rd of size 3 cm. X 1 cm. X muscle deep, vertically oblique. Probable age of injuries-fresh Probable cause

(i) stab wound possible by pointed sharp cutting weapon.

(ii) Incised wound possible by sharp cutting weapon.

(iii) Chop wound possible by heavy to moderately heavy, sharp cutting weapon.

17. The corresponding internal injuries were found by him as mentioned in the postmortem report Exh.108. He has found the internal injuries as mentioned in the column No.20 of the postmortem report on the thorax part on which wall, ribs and cartilages, lung, pleura, stab wounds present corresponding to the injury Nos.2 and 3 13 of column No.17. Trachea chopped corresponding to injury No.1 of column No.17. Then abdomen injury on the walls, pericardium stab wound present corresponding to injury No.4. Coils intestine were having stab wound corresponding to injury No.4. Large intestine was found cut mark present corresponding to injury No.4 and in the spine and spinal cord there was cut fracture vertical body of six cervical of vertebra corresponding to injury No.1 in column No.17. The Doctor has also found corresponding chop and cut mark on the clothes in particular shirt and vest of deceased Sunil Kotangale.

18. In the opinion of the Doctor all these injuries were antemortem. The death was caused more than 6 to 8 hours before postmortem examination which supports the evidence of PW-1 Bhumeshwari that in the morning the incident took place. In the opinion of Doctor, all the injuries on the dead body were sufficient in the ordinary course of nature to cause death and injury Nos.2, 3 and 4 of column No.17 with corresponding internal injuries were individually sufficient to cause death and cause of death was stab injuries to the trunk.

19. Then the evidence of Dr. Jaideo PW8 who has conducted autopsy on body of Kailash and Golu indicates that he has conducted postmortem on 18/11/2015. The first postmortem was of Kailash 14 Bahadure between 11.00 a.m. and 12.30 p.m. and 2 nd postmortem of Golu was between 12.30 p.m. and 1.30 p.m. as per postmortem report Exh.122 and Exh.115. Doctor has stated that he has noticed following injuries on their bodies as mentioned in column No.17 and corresponding internal injuries also.

20. Postmortem report Exh.115 indicates that Golu was having following injuries as mentioned in column No.17.

1) Chop wound 4 cm. X 1/5 cm. X bone deep, oblique present on left cheek, zygomatic region.

2) Chop wound 4 cm. X 1.5 cm. X muscle deep, horizontal present on right side of neck 3 cm. below right angle of mandible.

3) Chop wound 4 cm. X 1.5 cm. X muscle deep, oblique present on left shoulder region.

4) Stab wound of size 4 cm. X 1.5 cm. X cavity deep, oblique, upper end acute, lower end blunt, margins clean cut, directed anteroposterior present on left side hypochondriac region.

5) Chop wound 8 cm. X 4 cm. X cavity deep oblique present on right hypochondriac region.

6) Stab wound of size 3 cm. X 1 cm. X cavity deep, oblique upper end acute, lower end blunt, margins clean cut, directed anteroposterior present on right side pelvic region.

7) Chop wound 3.5 cm. X 1.5 cm. X muscle deep, oblique present on back, right, suprascapular region.

8) Chop wound 3.5 cm. X 1.5 cm. X muscle deep, horizontal present on back left infrascapular region.

9) Chop wound 10 cm. X 3 cm. X muscle deep, oblique present on back, left side at L3 and L4 lumber vertebral level just lateral to mid spinal region.

10) Chop wound 3.5 cm. X 1.5 cm. X muscle deep, oblique present on back, left side at L4 and L5 lumber vertebral level 3 cm. lateral to mid spinal region.

11) Chop wound 4 cm. X 1.5 cm. X muscle deep, oblique present on back, left side at S1 Sacral vertebral level 4 cm. lateral to midspinal region.

12) Chop wound 8 cm. X 6 cm. X bone deep, oblique present on extensar aspects of left forearm 1 cm. below elbow joint with underlying bone cut present.

13) Chop wound 7 cm. X 1.5 cm X bone deep, oblique present on extensar aspects of left forearm 1.5 cm. above wrist joint.

14) Chop wound 4 cm. X 0.5 cm. X muscle deep, oblique present on posterior aspects of left ear at left auricular region.

15) Chop wound 5 cm. X 1 cm. X muscle deep, horizontal present on back at L4 and L5 lumber vertebral region 3 cm. lateral to midspinal region.

16) Stab wound of size 2 cm. x 0.5 cm. X cavity deep, oblique, upper end acute, lower end blunt, margins clean cut, directed posteroanterior present on back, right side 1.5 cm. below injury no.15.

17) Stab wound of size 1.5 cm. X 0.5 cm. X muscle deep, oblique ,upper end acute, lower end blunt, margins clean cut, directed anteroposterior present on extensar aspect of left forearm 2 cm. above wrist joint.

18) Stab wound of size 1.5 cm. X 0.5 cm. X muscle deep, oblique, upper end acute, lower end blunt, margins clean cut, directed anteroposterior present on flexar aspects of right forearm,middle 1/3rd.

21. As per column No.21 he found corresponding internal injuries of walls and peritoneum, chop wound on abdomen corresponding to injury No.5, stab wound present on abdomen corresponding to injury No.4,6,16. On liver, chop wound present on right lobe of liver corresponding the injury No.5, stab injury present 16 on left lobe of liver corresponding the injury No.4. In the opinion of Doctor all these injuries were antemortem. The death was caused 12 to 17 hours before the time of postmortem examination. Antemortem injuries were sufficient in ordinary course of nature to cause death. Injury No.4,5,6 and 16 along with corresponding internal damage mentioned in column No.21 to organs were individually sufficient in the ordinary course of nature to cause death and the cause of death was injury to vital organ.

22. Doctor has found following external injuries as mentioned in column No.17 on the dead body of Kailash, which are mentioned in Postmortem report Exhibit 122.

1] Chop wound 7 cm x 2 cm bone deep, vertical present on right side of face region just lateral to right eye. 2] Incised wound 3 cm 0.3 cm x cartilage deep, vertical present on right pinna on helix middle 1/3rd.

3] Contused abrasion 3 cm x 1 cm, oblique reddish present on left side of cheek, middle 1/3rd.

4] Chop would 10 cm x 1.5 cm bone deep, oblique present on symphysis menti, right side.

5] Chop would 5 cm x 3 cm x bone deep, horizontal present on right side of neck 3 cm below right side angle of mandible.

6] Abrasion 2 cm x 1 cm, oblique, reddish present on anterior aspects of right shoulder joint.

7] Chop wound 13 cm x 1.5 cm x bone deep, oblique present on right palm extending from base of thumb to little finger.

8] Chop wound 8 cm x 1.5 cm x bone deep, horizontal 17 with underlined bone humerus displaced fractured present on left arm, anterior aspects, middel 1/3rd.

9] Incised wound of size 3 cm x 0.3 cm x skin deep, horizontal present on anterior of left arm 2 cm below injury No.8.

10] Linear abrasion 3.5 cm x 0.2 cm, vertical, reddish present on anterior aspects of right leg, middle 1/3rd.

11] Chop wound 3.5 cm x 1.5 cm x musscle deep, horizontal present on back side of neck, at C4 and C5 cervical level.

12] Chop wound 2 cm x 0.7 cm x musscle deep, vertical present on back, left side at suprascapular region. 13] Chop wound 5 cm x 1.5 cm x bone keep, oblique present on left scapular region.

14] Incised wound 3 cm 0.7 cm x musscle deep, vertical present on back, right side just medial to scapular region at T 10 and T 11 thorasic vertebral level.

15] Incised wound 3.5 cm x 1 cm x musscle deep, horizontal present on back, right side at L4 and L5 level lumber vertebral level, 4 cm lateral to mid spinal region.

16] Chop wound 4 cm x 1 cm x musscle deep, oblique present on back, left side at L1 and L2 lumber vertebral level, 3 cm lateral to midspinal region.

17] Linear abrasion 3.5 cm x 0.2 cm, oblique, reddish present on back, left side at infrascapular region.

23. The corresponding internal injuries were found under scalp, Haematoma 20 gms, reddish present at left temporoparietal region, Laryis, trachea and Bronchi cut injury present on trachea corresponding to injury No.5. Abdomen region on oesphagus at C4 and C5 cervical vertebral level corresponding to injury No.5. On spine and spinal cord cut mark present in between C4 and C5 cervical vertebral level corresponding to injury No.5 of column No.17. 18

24. As per Doctor, the death was caused 12 to 26 hours before the postmortem examination, all injuries were antemortem and these injures were sufficient in the ordinary course of nature to cause death. In his opinion injuries mentioned in column No.17 with its internal damage mentioned in column No.20, 21 and 22 i.e. head, trachea and oesophagus and cervical vertebral were individually sufficient to cause death in the ordinary course of nature and the cause of death was shock and hemorrhage due to the injuries sustained.

25. In view of above, it is evident that due to multiple antemortem injuries, all the three died. The nature of injuries itself eliminates possibility of death by any other mode. Moreover, the defence has not challenged the homicidal deaths. In view of that we have no hesitation in holding that all deceased met with a homicidal death.

26. The inquiry proceeds to find out the authorship of the deaths. It is the prosecution case in nutshell that at the relevant time, there was minor altercation in between Sunil and PW2 Shyamrao at the instance of utilizing services of one labour namely Bhurya. Kailash and Golu, who were acquainted with Sunil, intervened the talk. The accused who is a nearby Pan stall owner, also intervened into the quarrel. The accused brought a sharp edged weapon namely Sattur 19 from his nearby Pan Shop and initially assaulted Kailash. Sunil came to the rescue of Kailash, but the accused assaulted Sunil too, by means of Sattur. Both Kailash and Golu ran away to whom the accused chased and done to death at some distance.

27. At the inception, it necessitates us to understand the topography of the place of occurrence. PW10 PSI Suresh Mante, has carried the Panchanama of the scene of the offence, which assists us to the large extent. It is his evidence that on 17.11.2015 around 11.20 a.m., he went to the place of occurrence, and carried Panchanama of the scene of the offence. The Panchanama was carried in presence of PW6 Vivek Gawande and one another Panch. A rough sketch was drawn regarding the place of occurrence as well as entire process was video-graphed. It is evident from the Spot Panchanama (Exhibit 149) that the place of occurrence was at the road leading from Gumgaon to the Sandesh City. To the northern side of the said road, gate of Vrundavan city situates. On the opposite side of the road, there were several tin shades consisting of various shops. Accused Raju, deceased Sunil, PW2 Shyamrao and PW3 Mahadeo Patil were having their stalls in the close proximity.

28. While carrying Panchanama of the scene of offence, it was noticed that dead body of Sunil was lying in the pool of blood at some 20 distance from his Pan stall. A drip trail of blood stain was found on kaccha road leading towards the Sandesh City. Approximately at the distance of 300 ft. from the dead body of Sunil towards the Sandesh City area, another dead body of Kailash was lying in the pool of blood. Again at the distance of 1200 ft. ahead from the dead body of Kailash, in the barren land, third dead body of Golu was lying. The rough sketch gives a fair idea about the proximity of various Pan/Tea stalls, the road in between the stalls, and the place where dead bodies were lying from the initial place of quarrel. Though the defence has challenged the evidence of Panch Witness, however, there is no denial of the position of stalls to the southern side of the road opposite to Vrundavan City and the places where the dead bodies were lying.

29. On the aforesaid background, the prosecution case needs usual scrutiny. So far as the death of Sunil is concerned, besides other circumstances, the prosecution is heavily relying on the direct evidence of PW1 Bhumeshwari. As regards to the other two deaths, the prosecution is entirely banking on the circumstantial evidence. Evidence of PW1 Bhumeshwari is crucial one, as the quarrel originated in her presence. She has witnessed the initiation of assault. She claims to be an eye-witness to the assault on her husband Sunil, and the act of the accused following other two deceased. Concededly, there are no other eye-witnesses to the actual occurrence. PW1 21 Bhumeshwari is the wife of deceased Sunil, and thus a closely related witness. The defence has doubted her credibility by denying her presence on the spot. It is submitted that, non-finding of blood stains on her clothes create serious doubt about her presence on the spot.

30. Let us advert towards the crucial evidence of PW1 Bhumeshwari, who is the sole eye-witness to the occurrence. She used to run Pan/Tea stall along with her husband Sunil. It is her evidence that the Pan stall of the accused was situated at adjacent area. On 17.11.2015, around 7.00 a.m. both husband and wife (Bhumeshwari and deceased Sunil) had opened their Tea stall around 9.00 a.m. to 9.15 a.m. Two persons namely Kailash and Golu came to their stall and were talking with Sunil. She deposed that the accused Raju armed with a Sattur came from backside. Initially, accused assaulted Kailash by means of the Sattur causing him bleeding injury. Sunil came to the rescue of Kailash, however the accused also assaulted Sunil by Sattur at his stomach due to which his intestine came out. Seeing the assault, Kailash and Golu ran towards the Sandesh City. The accused followed both of them and returned within 10 to 15 minutes. Noticing that Sunil was alive, the accused again dealt blows of Sattur at his person. Twice, the accused tried to assault Bhumeshwari, however somehow she escaped and ran away. She came to know that the accused had also killed Kailash and Golu. 22

31. The evidence of the sole eye-witness is criticized firstly on the ground that her presence on the spot is doubtful. Learned Counsel appearing for the accused would submit that, Bhumeshwari in her evidence stated that her children used to go to the School at 10.00 a.m. On that basis, it is argued that since she was having school going children, it is improbable that she would reach to the business place at early hours. We are not inclined to accept the said submission as there can be variety of possibilities. The lady may not have waited for her children to go to the school but may have left after catering their needs. General suggestions in absence of specific admission about the date of occurrence, would not assist the defence in any manner. Moreover, her evidence itself discloses that few days before the occurrence, their tea stall was closed due to Diwali festival. The learned Trial Judge has considered the said aspect (paragraph 72) and took judicial note that at the relevant year Diwali Festival was on 11.11.2015. Further, he took a judicial note that on account of the Diwali Festival, usually school remains to be closed at least for 10 to 15 days. We find it a sound and logical reason to discard the defence submission in that regard.

32. Besides that the evidence of PW1 Bhumeshwari regarding her presence on the spot is corroborated by the evidence of PW2 Shyamrao. It is his evidence (paragraph 4) that when he brought a 23 labour namely Bhurya from Vrundavan City, Sunil and his wife (Bhumeshwari) took Bhurya to their stall. The said piece of evidence is not challenged by the defence during cross-examination. Likewise, PW3 Mahadeo Patil has also stated (paragraph 2) that on the date of occurrence Sunil and his wife had opened their stall. Similarly, the said statement has not been challenged in the cross-examination. In the result, we find sufficient corroboration to the evidence of PW1 Bhumeshwari to vouch her presence on the spot.

33. Learned Senior Counsel, Shri Mardikar would submit that non-finding of blood stains on the clothes of PW1 Bhumeshwari raises a serious doubt about her presence. Concededly, neither there were blood stains on the clothes of Bhumeshwari, nor her clothes were seized during the course of investigation. In this regard, the defence relied on the decision of Supreme Court in case of State of Punjab vs. Harbans Singh and anr. (2003) 11 SCC 203, wherein it is observed that non-finding of blood stains on the clothes of witness, raises a reasonable doubt about their presence on the spot. True, in said decision, the witness was disbelieved on the said ground amongst other, however, it is a factual inference which differs from case to case. In the said case, the eye-witness belongs to the rival political fraction. Particularly, the witness claims to have carried the injured. Moreover, he was branded to be stock witness of the Police. Having 24 regard to these demerits, coupled with non-finding of blood stain on clothes, the witness was disbelieved. In our case, besides close relationship there is nothing to suspect her presence. Rather she being a wife of Sunil, her presence on the spot i.e., at the Tea stall of her husband was quite natural. It was usual phenomenon in small villages that couple used to do small time business. It requires to be noted that PW1 Bhumeshwari never claims that either she sustained injuries in the assault, or she has lifted the injured Sunil so as to find blood stains on her clothes. It is her evidence that no sooner accused tried to assault her, she ran away, and therefore, non-finding of blood stains cannot be a sure criteria to discard her testimony, if otherwise found to be creditworthy.

34. It is argued that PW1 Bhumeshwari is totally silent about the presence of Bhurya on the spot, and about the altercation. The evidence of PW2 Shyamrao Thate and PW3 Mahadeo Patil unfolds the initiation of the occurrence. Both of them stated about the presence of Bhurya, oral altercation, and intervention of the accused on that count. True, PW1 Bhumeshwari is silent about Bhurya and the reason for quarrel, but she may not be aware as to what sort of dispute was going on in between male members. Rather, that being an usual affair, she was unattentive towards the quarrel. She may not have noticed the presence of Bhurya as several persons had gathered when 25 altercation was going on. However she has seen the accused while returning with a Sattur and the further episode. Merely because she was unattentive about the earlier altercation and did not notice the presence of Bhurya, that cannot be treated as a decisive factor. Rather, we feel that it is a natural conduct of a lady, who has not paid attention to the daily affair but when the accused came with a Sattur she became alert. Therefore, submission in this regard, would not impress us to discard her testimony.

35. Relying on the decision of the Supreme Court in case of Yakub Ismailbhai Patel vs. State of Gujarat (2004) 12 SCC 229 learned Addl. P.P. would submit that, conviction can be based on the evidence of solitary eye-witness. There can be no two opinions about said legal proposition, but the evidence of sole eye-witness must be natural, and would inspire full confidence of the Court. Since the witness is closely related to the deceased, we put ourselves on guard while appreciating her evidence. The evidence of PW1 Bhumeshwari stating the detailed account of the incident seems to be natural and reliable. She has no reason to falsely implicate the accused, that too by shielding the real culprit. Her presence on the spot is quiet natural. She has specifically deposed that in her presence the accused dealt Sattur blows at Sunil, and ran behind rest two with Sattur. We find no reason to discard her natural testimony.

36. The prosecution has relied on one another circumstance relating to the confessional statement made by the accused to PW12 API Khadke. It is the prosecution case that soon-after the occurrence, the accused telephnonically confessed the crime to PW12 API Khadke. In this regard, we have been taken through the evidence of PW12 API Khadke. He has stated that on the date of incident, about 10.30 a.m., he was on patrolling duty. Around 10.45 a.m., he received a phone call from one person namely Raju Birha (accused). The caller informed that he has killed three persons. Since PW12 API Khadke did not believe, he asked the caller 'whether you are drunk?'. The caller asked his daughter to talk on the mobile phone. At that time, the minor girl said on the phone that her father's clothes were drained with blood and he was carrying a Sattur. PW12 API Khadke also asked him as to why didn't he ran away? on which the caller replied that, 'I know you will arrest me'. On the basis of said evidence, learned Addl. P.P. submitted that the accused has confessed the guilt to PW12 API Khadke. When we made him aware about the legal position that the confession made to the Police is inadmissible, he urged to consider the same as an immediate conduct of the accused in terms of Section 8 of the Evidence Act.

37. Learned Addl.P.P. would submit that the conduct of accused of confessing crime to the PW12 API Khadke soon after the 27 occurrence would be relevant under Section 8 of the Evidence Act. In this regard, he relied on the decision of the Supreme Court in case of Bheru Singh s/o. Kalyan Singh Vs. State of Rajasthan, (1994) 2 SCC

467. The facts of said case are quite different where the accused has lodged the FIR with the Police. The portion of the FIR which is totally non-confessional in nature, is held to be relevant under Section 8 of the Evidence Act. Herein, the prosecution has failed to establish that the accused has telephoned to PW12 and secondly, even if the same is accepted, still that part of evidence is totally confessional one. Therefore, nothing could be considered as admissible with the aid of Section 8 of the Evidence Act.

38. Learned Addl. P.P. further relied on the decision of this Court in case of Prabhakar s/o Shamrao Hirkane vs. State of Maharashtra 2012 SCC OnLine Bom 2247. In said case, the accused has committed murder of his wife in lodging house. Thereafter, he himself went to the Police Station and disclosed that he has killed his wife. In the circumstances, the conduct of the accused of immediately approaching to the Police Station, was held to be admissible as a conduct. The case in hand, materially differs on the facts. There is no material to hold that the accused went to the Police Station and gave information. The case is only about telephonic disclosure by the accused to the Police, which is totally confessional one. Even if, it is 28 accepted, still the said material is totally inadmissible.

39. Provisions of Sections 24 to 30 of the Evidence Act, deals with the aspect of confession. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to the Police Officer under no circumstances is admissible as evidence against the accused. The expression "accused of any offence" used in Section 25 of the Evidence Act would cover the cases of an accused, who whether or not at the time of confession, was under arrest or in custody. In this regard, useful reference can be made to the celebrated decision of the Supreme Court in case of Aghnoo Nagesia vs. State of Bihar AIR 1966 [SC] 119, which is consistently followed till date. In said decision, it is made clear that a confession made to the Police Officer under any circumstances is not admissible in evidence against the accused. The confessional First Information Report to the Police Officer cannot be used against him, but the fact of his giving the information is only admissible against him as evidence of his conduct under Section 8 of the Evidence Act. It has been clarified that no part of the confessional statement is receivable in the evidence. In case at hand, the accused has not approached to the Police to consider his immediate conduct as relevant. According to the prosecution, accused has telephonically communicated to the Police about the guilt, which is totally confessional one, and thus inadmissible in the evidence against him. 29

40. Apart from that, the defence has specifically denied about the disclosure by the accused to PW12 API Khadke. Particularly, the defence took us through the evidence of PW15 Anjum Naikwade, the Nodal Officer of Vodafone Company. It has come in his evidence that he received CDR and SDR of two cell numbers, which are "8422912798" and "8888338283". Admittedly, he has collected an application form pertaining to mobile number 8422912798 only, which is of PW12 API Khadke. It has come in his evidence that the another mobile number 8888338283 was in the name of one Lekharam, resident of Balaghat, Madhya Pradesh. PW13 PI Wandile admits that he has not inquired about the connection between the accused and said Lekharam.

41. Besides that, PW15 Nodal Officer Naikwade admits that on 17.11.2015 mobile number 8422912798 (API Khadke) has not received or made a call in between 10.14 a.m. to 10.45 a.m. from the mobile number 8888338283. The said admission was on the basis of CDR of mobile of PW12 API Khadke. Therefore, it falsifies the evidence of PW12 Khadke about the alleged telephonic disclosure from the end of the accused. Apart from that, on legal touch stone also, such disclosure if any, to the Police Officer, is totally hit by Section 25 of the Evidence Act, and therefore, the said material cannot be considered.

42. The prosecution is heavily banking on the evidence of Extra-Judicial confession made by the accused to the witness PW5 Manoj Mute. It is the prosecution case that soon-after the occurrence, the accused went to the Pan shop of PW5 Manoj Mute, and made a disclosure that he has committed murder of three persons. Learned Addl. P.P. would submit that there is no absolute rule that an extra- judicial confession can never be a basis of a conviction. If the prosecution is able to establish that the confession is voluntary, reliable, free from suspicion, then it can form a basis of conviction.

43. Per contra, learned Defence Counsel would submit that extra-judicial confession itself is a weak piece of evidence. There is considerable delay in recording the statement of PW5 Manoj Mute, which itself looses its credibility. An extra-judicial confession does not lend support from any other evidence, and thus, it cannot be relied. In order to impress the above submission, learned defence Counsel has relied on the decision of the Supreme Court in cases of State of Punjab vs. Gurdeep Singh (1999) 7 SCC 714, Sunny Kappor vs. State (UT of Chandiragh) with other connected matters (2006) 10 SCC 182 and Sahadevan and anr. vs. State of Tamil Nadu (2012) 6 SCC 403. On that basis, it is argued that the confession in question, which is belatedly recorded bears inherent improbabilities. Though the Investigation Officer was aware about the alleged confession, still it 31 was recorded after gap of one month, and therefore, it is risky to rely on the said piece of evidence.

44. Having confronted with rival submissions, let us turn to the factual score in some great detail to assess whether the Extra- Judicial confession is credential or has evidentuary value. The incident occurred on 17.11.2015 near a tea stall of the deceased Sunil. It is the prosecution case that on trifling issue, initially accused assaulted Sunil near his tea stall, then chased Kailash, assaulted him, and again chased Golu and done him to death. Undisputedly, statement of PW5 Manoj Mute was recorded by the Police on 23.12.2015 i.e. after 40 days from the occurrence. Evidence of PW5 Manoj Mute is precise one. Being crucial, we prefer to reproduce the essential part of his evidence as below :-

"2] My Pan shop is situated near the bus stop of Gumgaon. The incident occurred on 17.11.2015. On that day I have opened my Pan shop at about 7.00 a.m. At about 10.00 a.m. to 10.15 a.m. accused Raju Birha came to my Pan shop. He had asked me the mixture of tobacco and betel nut. Accordingly I had given him the mixture. At that time he was wearing white colour baniyan having blood stains on it. He was wearing Paijama of white color. It was also having blood stains. I asked him about the blood stains on his cloths. Accused Raju Birha told me that he has committed three murders. I asked him the amount of mixture. He told me that he will give the amount later on and left my Pan shop. Accused Raju Birha is present before the Court. He has pointed out 32 towards one accused. (I have asked his name and he told his name as Raju Birha). I can identify the cloths if shown to me."

45. Evidence of PW5 Manoj Mute discloses that he was equally running a Pan shop near Bus Stop of village Gumgaon. It is the prosecution case, that incident occurred around 9.30 a.m. on 17.11.2015. Evidence of PW5 Manoj Mute is that, on that day around 10.00 to 10.15 a.m., the accused came to his Pan shop for consuming tobacco mixture and betel nut. The witness has seen that there were blood stains on the white clothes of the accused, which led him to ask the reason. In response, the accused disclosed that he has committed three murders. This witness was subjected to the cross-examination. Admittedly, he has not disclosed confessional statement to anybody, till recording of his statement. He has denied the suggestion that the accused did not come to his Pan shop to demand tobacco on the date of occurrence. Pertinent to note that defence has not specifically challenged the confessional statement made by the accused to him. In other words, no suggestion was given to the witness that the accused has not made a confessional statement to him.

46. Be that as it may, worth of the confessional statement needs a deeper scrutiny to assess its truthfulness. In case of State of Punjab vs. Gurdeep Singh (supra), it has been observed that an extra- 33 judicial confession is admissible in evidence and the Court in appropriate cases can rely thereon for basing the conviction. It can be treated as substantive evidence with a rider that the Court should insist on some assuring material or circumstance to treat the same as a piece of reliable evidence.

47. The term "confession" is an admission or acknowledgment of a guilt. The value and acceptability shall have to be assessed having due regard to the credibility of the witness. The Court shall consider all attending circumstances to believe the witness before whom the confession is made and should be satisfied that it is voluntary, free from doubt. There is neither a rule of law nor a prudence that evidence of Extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. Always, the Courts insist for corroboration as a rule of caution. In case of Sahadevan and anr. vs. State of Tamil Nadu (supra) the Supreme Court has taken a brief review of earlier pronouncements in the field and laid down principles in paragraph 16, which reads as below :

"16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would made an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution 34 heavily relies upon an extra-judicial confession alleged to have been made by the accused :

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

48. In turn, all relevant factor needs judicial scrutiny to decide worth of extra-judicial confession. True, statement of PW5 Manoj Mute has been recorded after 40 days from the occurrence. Can it be advisable to throw away his statement only on the account of delay? Certainly, the answer would be in the negative, if despite delay, the Court finds on the basis of circumstances that, the evidence on confession is free from suspicion, natural and voluntary one.

49. Learned Senior Counsel Shri Mardikar has attracted our attention to the evidence of PW13 PI Vilas Wandile, who has recorded the statement of PW5 Manoj Mute. During cross-examination, PW13 35 PI Wandile admits that while recording memorandum statement of accused on 18.11.2015, he came to know that on the date of incident, the accused had a talk with the Pan shop owner (with PW5 Manoj Mute). It is argued that, PW13 PI Wandile was aware about the confessional statement on 18.11.2015 itself, however he has not recorded the statement for a long period, which is quite suspicious. When the explanation is sought on account of delay, PW13 PI Wandile stated that during meantime, he was busy in the investigation of someother cases. Evidence of PW13 PI Wandile only suggests that he knows about the talk in between the accused and PW5 Manoj Mute, and not about confession made to the witness. Be that as it may, it is a lapse on the part of PW13 PI Wandile, however that cannot be a sole reason for jettisoning his evidence if found to be credible and trustworthy. Certainly, the delay in recording the statement made us cautious while analyzing the evidence of PW5 Manoj Mute.

50. In case of State of Punjab vs. Gurdeep Singh (supra), relied by the defence, Extra-judicial confession was not relied for the reason that there was no occassion for the accused to disclose the things to a fellow Taxi Driver. The relevant observations made in paragraph 23 of the said decision conveys that, generally the confession would be made to the person of confidence and not with whom there was mere acquaintance. There can be no two opinions 36 that no one can make a confession to a stranger or to a person having casual acquaintance without a purpose. PW5 Manoj Mute was running a Pan shop like the case of the accused. Both were running the same business in the small village Gumgaon. Obviously, they were acquainted with each other. There is no evidence that they were friends, however the case has some different features. It is not a case that the accused went to the shop of PW5 Manoj Mute only for confessing the guilt, but there was some reason for disclosure.

51. It emerges from the evidence of PW5 Manoj Mute that on the day of incident around 10.00 a.m. to 10.15 a.m. (soon-after the occurrence), the accused went to the shop of PW5 Manoj Mute to consume tobacco mixture. The accused was wearing white baniyan and white Paijama (Trouser). Both clothes were blood stained. It was quite natural for PW5 Manoj Mute to ask the accused about blood stains on his clothes. In response, the accused made a disclosure that he has committed murder of three persons. Obviously, the statement was though made in answer to the query of PW5 Manoj Mute however, it was voluntary. Therefore though PW5 Manoj Mute was not a close friend, however for the reason stated above, the accused made him disclosure. Therefore, only on account that PW5 Manoj Mute was not a man of confidence, the evidence in this regard cannot be discarded. The entire chain of events is to be looked upon to 37 decide the worth of his statement.

52. Learned Addl.PP would submit that in absence of cross- examination to the Investigating Officer on the point of delay, objection to that effect is unsustainable. For this purpose, reliance is placed on the decision of the Supreme Court in case of Bharat Singh Vs. State of U.P., AIR 1972 SC 2478 . In case at hand, PW13, PI Wandile has been specifically asked about the delay in recording statement of PW5 Manoj Mute. Therefore, the proposition led in above case would not assist the prosecution.

53. On the same line, learned Addl.PP relying on the decision of the Supreme Court in case of State of A.P. Vs. Shaik Mazhar, AIR 2001 SC 2427 would submit that delay in recording extra judicial confession would not be fetal to the prosecution. In-fact, the said decision pertains to delay in recording the statement of the witnesses under Section 164 of the Code of Criminal Procedure and therefore, being distinct fact, the said ratio is also of no help.

54. The prime test is a test of credibility based on various circumstances. There was a purpose for the accused to disclose, as within proximity he was asked as to how there were blood stains on his clothes on which he made a disclosure. It is not in dispute that on 38 the date of occurrence, short time before the accused visiting to the Pan shop of PW5 Manoj Mute, three persons were brutally killed. Evidence of PW5 Manoj Mute that he had seen blood stains on the clothes of the accused in the proximity of time is one another circumstance, which vouch the credibility of his evidence. Besides that there was no specific suggestion to this witness that the accused did not make such a disclosure. In the circumstances, we find no reason to discard extra judicial confession only on account of delay, which is otherwise found to be credible, trustworthy and supported by other circumstances. This piece of evidence strengthens the prosecution case to great extent.

55. It is the prosecution case that, blood stained weapon namely Sattur was seized at the instance of the accused. Rather seizure of Sattur at the instance of the accused, is stated to be one of the incriminating circumstance. The defence has seriously challenge the seizure of Sattur from the accused. In this regard, our attention has been invited to the two contradictory versions coming from the prosecution case itself. PW12 API Khadke deposed that soon-after the assault, he went to the spot, where the accused was standing with blood stained Sattur. He stated that he has calmed down the accused and took the Sattur with handkerchief. Contextually, the defence took us through the evidence of PW6 Panch Witness Vivek Gawande. It has 39 come in his evidence that on the date of incident, after arrest, the accused took all of them to his house. The Police took the house search in which they seized iron Sattur vide Panchanama (Exhibit 68). Apparently, two contradictory versions are emanating from the prosecution evidence, therefore, it is difficult to rely on the said circumstance.

56. The learned defence Counsel would submit that the entire cause for the occurrence was one Bhurya. According to the defence, the prosecution ought to have examined Bhurya and thus, his non- examination materially affects the prosecution case. Learned Addl. P.P. has pointed that during the course of investigation, statement of Bhurya was recorded in terms of Section 161 of the CrPC. He would submit that the prosecution made a genuine attempt to examine Bhurya, but he was untraceable. Learned Addl. P.P. has attracted our attention to note sheet dated 28.06.2022 and 10.08.2022 to impress that summons as well as bailable warrant was issued to Bhurya, but it was unserved. Moreover, the prosecution has filed a Pursis (Exhibit

246) in the Trial Court stating that despite genuine efforts, the presence of Bhurya could not be secured. It is evident that, Bhurya was a labour having no permanent place of abode. In the circumstance, we find sufficient explanation for non-examination of Bhurya, and thus, it would not put a dent to the prosecution case. 40

57. The prosecution has duly established the place of occurrence by examining PW6 Panchwitness Vivek Gawande. In his presence, PW10 API Mante has carried the Panchanama of the scene of offence. The Panchanama covers total three places, where the occurrence took place. It has come in the evidence of Panch Witness that, PW1 Bhumeshwari has shown the place of initial occurrence, where Sunil was assaulted. The said place was near the Pan shop in front of the gate of Vrundawan City Colony. The blood was spread on the place of occurrence. The Police have collected the sample earth, and earth mixed with blood from the said place. Pair of Sandals (Chappal) with blood stains were seized from the said place.

58. It has come in the evidence that the second place of incident was around 300 meter towards East from the first place. The Police went to the said place, where second dead body of Kailash was lying. Blood was lying on the floor, which was collected by drawing Panchanama. Thereafter, the Police proceeded ahead and at the distance of 1200 ft., third dead body of Golu was lying. Blood samples were also collected from the said place. It was specifically noted that there was blood trail in between the places, where the dead bodies were lying. Accordingly, Panchanama of the scene of offence (Exhibit

58) was drawn in between 1.00 p.m. to 2.30 p.m. A rough sketch of the place of occurrence was prepared and annexed with the 41 Panchanama. The defence has not seriously challenge the place of occurrence. It is evident that three dead bodies were lying in close proximity. In short, the prosecution has duly established the place of occurrence, where three persons were found lying dead under serious injuries.

59. It is the prosecution case that scientific evidence squarely supports the prosecution case. It is submitted that the weapon namely Sattur seized at the instance of the accused and cloths were sent for chemical analyzation. On chemical analyzation, blood of three deceased was found on the weapon and clothes of the accused. Moreover, the DNA comparison report of the clothes of the accused matches with the blood of all the deceased, and thus, said material supports the prosecution case.

60. In this regard, the evidence of PW13 PI Wandile is material. It is his evidence that after visiting the spot, he has sent a letter (Exhibit 179) to the Tahsildar for procuring two independent Panch Witnesses. In response, on the same day, the Tahsildar vide letter Exhibit 180 sent two panchas namely PW6 Vivek Gawande and Vinod. In the meantime, PSI Kondhalkar has brought the accused to the Police Station. PW13 PI Wandile has prepared arrest Form (Exhibit 65) and arrested the accused vide Panchanama (Exhibit 66). 42 At the relevant time, the accused was wearing white sandoz baniyan and pijama, which were having blood stains. In presence of Panch Witness PW6, the clothes of the accused were seized vide Panchanama (Exhibit 67). Said Panchanama bears the description of seized clothes as a sandoz baniyan with blood on front portion and Paijama having blood stains.

61. It has come in the evidence of PW13 PI Wandil that he has deposited all seized articles with Moharir. Seizure Panchanama Exhibit 67 bears a specific reference that blood stained Baniyan was duly lac sealed by wrapping in newspaper and affixed with paper label. Both blood stained clothes of the accused namely sandoz baniyan and white paijama have been seized and sealed. Likewise, while carrying spot panchanama, several articles and blood samples have been collected vide seizure memo Exhibit 58 to 61. It has come in the evidence of PW13 PI Wandile that all seized articles, mainly consisting of clothes of three deceased, clothes of the accused, weapon i.e. Sattur and other articles were sent for Chemical Analyzation on 21.11.2015 vide Requisition Letter Exhibit 185. Particularly, he deposed that the said property was in the custody of Moharir, which was sent to the government forensic laboratory for chemical analyzation through the Police Constable Kamble. It has also come in his evidence that blood sample of the accused was deposited 43 in Malkahana Room vide Exhibit 75 on 18.11.2015.

62. It is the prosecution case, that seized weapon i.e. Sattur and clothes of the deceased were sent to the Medical Officer for a query report on 20.11.2015. The prosecution has tendered the Requisition Letter for query report at Exhibit 117, 109 and 124 of which query reports were received on the same day which are at Exhibit 118, 110 and 125. The Medical Officer has opined that the injuries on the person of three deceased were possible by the weapon namely Sattur, sent for examination.

63. The prosecution has examined PW16 Tushar Pawar, who was the Assistant Chemical Analyzer. It has come in his evidence that on 21.11.2015, forensic laboratory has received total 34 articles in sealed condition vide requisition Letter Exhibit 185. The laboratory has issued invoice challan Exhibit 186 to that extent. Then on 01.08.2016, he received 17 sealed parcels for analyzation. On examination, he has prepared chemical analyzation report (Exhibit 34 to 38). As per the report, human blood was found on various articles i.e. on the clothes of three deceased, clothes of the accused, Sattur and on the earth mixed blood collected from the spot. Though the result was inconclusive, however blood was found to be of human 44 origin. It has also come in his evidence that, on analyzation blood of the accused was of "O+" group. All the articles were sent to DNA Section for further analyzation.

64. The prosecution has examined PW14 Ankit Dixit, Assistant Chemical Analyzer. It is his evidence that he was working with Forensic Lab, Nagpur. He did M.Sc Chemistry and had undergone a training of DNA analyzation and attached to DNA division. It has come in his evidence that he has received samples in sealed condition from biological department. For extracting DNA from the samples, he has used Polymerase Chain Reaction (PCR) amplification technique and DNA profiles were generated. It is his evidence that on comparative examination of DNA profiles, he found that DNA profile on the cotton swab collected from the spot near the dead body, was identical with DNA profile found on the clothes of the deceased Sunil. On analyzation, he has produced DNA profiling report (Exhibit 233). The DNA profiling result was as below :

"Opinion :

1) DNA profiles obtained from ex.3 Cotton swab. ex.12 Full Shirt, ex.13 Jeans Full Pant, ex.16 Dupatta, ex.27(1) Pyjama in Bn-

4521/15 are identical and from one and the same source of Unknown male origin.

2) DNA profiles obtained from ex.4 Pair of Chappal, ex.7 Cotton Swab, ex.19 Full Pant, ex.20 Underwear, ex.22 Jeans Full Pant, ex.25 Dupatta in Bn-4521/15 are of male origin and matched with male DNA profile obtained from ex.2 Nail clippings of Aashish alias Golu Lahubhan Gayakwad in Bn-4523/15.

3) DNA profiles obtained from ex.10 Cotton swab, ex.21 Half Tshirt, ex.26(1) Sandow banian and ex.27 Pyjama (2) in Bn-4521/15 are of male origin and matched with male DNA profile obtained from ex.2 Nail clippings of Kailash Narayan Bhahadure in Bn-4523/15."

65. Precisely, on comparison DNA profile obtained from the spot and samples of all three deceased, matches with DNA profile found on the baniyan and Paijama of the accused as they are from the same source.

66. Learned APP has relied on the decision of the Supreme Court in case of Sahib Hussain @ Sahib Jan Vs. State of Rajasthan, (2013) 9 SCC 778 to contend that matching of FSL report and DNA report with the blood group of deceased is a circumstance which support the prosecution case. The Court has further held that non- furnishing of explanation about said circumstance in statement under Section 313 of the Code of Criminal Procedure is also a matter for consideration.

67. The learned defence Counsel has strongly criticized the scientific evidence. Initially, it is submitted that the prosecution has not adduced link evidence to vouch the credibility about the scientific analysis. Particularly, it is submitted that the chain of custody was not properly established. There was no proper sealing and sampling. Malkhana in-charge as well as the carrier was not examined to 46 establish the link. In this regard, reliance is placed on the decision in cases of the State vs. Motia and other (1955) AIR (Raj) 82, Lalchand Cheddilal Yadav vs. State of Maharashtra 2000 ALL MR (Cri) 1485, Mohammad Iqbal @ Munna Abdul Sattar and anr. vs. State of Maharashtra 2016 ALL MR (Cri) 4530 and Chandrashekhar vs. State of Maharashtra 2022(3) Mh.LJ (Crl.) 386. Certainly, the aspect of sealing and safe custody of samples assumes significance. The prosecution has to eliminate the possibility of tampering to satisfy the judicial mind.

68. In the light of said position, we have re-examined the evidence of PW13 Wandile and PW16 Tushar Pawar coupled with various panchnamas and the correspondence of the Police with the Chemical Analyzer. So also we have gone through the extract of Malkhana register. PW13 Wandile has specifically deposed that all seized articles were deposited in Malkhana on the very day. In this regard, the prosecution has produced the relevant extract from the property register. It is evident from the said Extract (Exhibit 195 to

199) that, on the date of occurrence itself, i.e. on 17.11.2015, all seized articles were deposited in Malkhana. Conjoint reading of the oral and documentary evidence on the point of seizure and safe custody is quite credible and trustworthy.

69. The main thrust of the defence is that, in the meantime, on 20.11.2015 clothes and weapon i.e. Sattur were sent for query report, of which there is no evidence in the form of register entry. Learned Counsel appearing for the defence took us through the evidence of Dr. PW7 Pathak, who gave a query report. Contextually, we have been taken through further cross-examination of PI Wandile, wherein he has admitted that after query report, the Medical Officer sent back the weapon on 20.11.2015 in sealed condition bearing the seal as TMJ. It is argued that Requisition Letter Exhibit 185 dated 21.11.2015 bears a reference that all the articles, including clothes and weapon sent for chemical analyzation bears a seal as VSW. On this point, it is argued that when the Doctor has put his own seal (TMJ) on 20.11.2015 after satisfying the query, as to how those articles bears the seal of the Police as VSW. According to the defence, there is every possibility of tampering with the articles before forwarding them for chemical analyzation.

70. We have examined the relevant material and found force to the extent of change of seal as regards to the weapon, i.e. Sattur. On careful examination, it reveals that clothes of three deceased and a weapon were sent for query report. However there is no material to accept that the clothes of the accused were also sent for query report. Moreover, there was no reason for the Investigation Officer to send 48 the clothes of the accused to the Doctor on 20.11.2015, as nothing was sought in the form of query. Even if, submission made by the defence is accepted, the discrepancy about the seal relates to the clothes of the three deceased and weapon which were sent for query report. In the light of the above decisions, submission about chances of tampering can be accepted only to the extent of weapon and clothes of the deceased and not beyond that.

71. However, blood stained articles and blood found at the place of occurrence, other samples and the clothes of the accused were intact in the Malkhana vide relevant entry which we have noted above. There was no reason to take out those articles for the pupose of query on 20.11.2015. Therefore, the submission to the extent of chances of tampering, particularly with regards to the clothes of accused and other samples is unacceptable. The evidence on sealing is credible. The chain of custody is duly established by adducing documentary evidence. Chemical analyzer stated that he has received all articles having seal of the Police and thus, there is no room for tampering. In the result, matching of DNA profile collected from the clothes of the accused with nail clipping of the deceased, the blood of deceased found on spot and other articles, is a clinching evidence. The said scientific evidence strongly supports the prosecution case. 49

72. Learned Senior Counsel Shri Mardikar would submit that the initiation of investigation itself is faulty on the ground that, before the registration of a crime, the investigation had commenced. In this regard, our attention has been invited to the seizure panchanama Exhibit 68, which was carried out on 17.11.2015 between 12.10 p.m. to 12.40 p.m.. It is brought to our notice that Crime No.139 of 2015 was registered at Hingna Police Station around 12.30 p.m. on 17.11.2015. It is pointed out that arrest Panchnama was drawn on 17.11.2015 at 6.15 p.m. to 6.45 p.m. and before that, already the investigation had commenced. True, undoubtedly, the investigation has commenced before the registration of crime. However, we do not see any provision of law mandating investigating agency to start the investigation only after the registration of crime.

73. In this regard, we may refer to the decision of the Supreme Court in case of State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, AIR 1964 SC 221, wherein the observation made in para 8 are relevant, which reads as below:-

"(8) ............ Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Section 157 which prescribes the procedure in the matter of such an investigation can be initiated either on information or otherwise. It is clear from the said provisions that an officer in charge of a police station can start investigation either on 50 information or otherwise. Under S. 4(1) of the Code of Criminal Procedure, "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf."

74. The said position was clarified by Privy Council way back in case of Emperor Vs. Khwaja Nazir Ahmad, AIR (32) 1945 Privy Council 18, wherein it is observed by Lord Porter as below:-

"...But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but there Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal P.C, when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under S.156 has been committed shall proceed to investigate the facts and circumstances, supports this view...."

75. In view of above position, we do not see any irregularity in the commencement of the investigation that preceded to the lodgment of the FIR.

76. We may note that the First Information Report Exhibit 43 was registered at 12.30 p.m. on the very day, i.e. within two hours from the occurrence. Though the incident of killing three persons was horrifying, still the information reached the Police within one hour. Particularly, FIR disclosing the name of the accused as a culprit was registered within two hours. Certainly, the quick lodgment of FIR with details of occurrence eliminates the chances of concoction. The said circumstance also strongly corroborates the prosecution case.

77. Learned Addl.PP would submit that when reliable direct evidence of eye-witness is available, the motive loses its significance. To substantiate the said contention, he relied on the observations made in para 22 of the decision of the Supreme Court in case of Saddik @ Lalo Gulam Hussein Shaikh Vs. State of Gujarat, AIR2016 SC 5101, which reads as under:-

"22. It is settled legal position that even in the absence of motive, as alleged, is accepted, that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence cannot be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. [See: Hari Shankar Vs. State of U.P., (1996) 9 SCC 40; Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91; State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73; and Bipin Kumar Mondal Vs. State of West Bengal, (2010) 52 12 SCC 91]."

78. Certainly, motive is not a sine qua non to establish the offence, but generally, the Court shall seek for motive for commission of a crime. In case at hand, apparently there was no strong motive, but it emerges from the facts that, at the spur of moment, there was a quarrel in which Kailash slapped and in retaliation, accused lost his temper and committed a gruesome act. Having regard to these peculiar facts, the absence of motive looses its significance.

79. So far as the first deceased Sunil is concerned, there is ocular evidence of the informant, Bhumeshwari. The prosecution has also relied on the evidence of Extra-judicial confession and scientific evidence. For the reasons stated above, we have no hesitation to hold that the prosecution has successfully proved that the accused Raju has committed the murder of Sunil. However, as regards to the death of second deceased Kailash and third deceased Golu, concededly the prosecution is banking upon the circumstantial evidence. We are quite aware about the legal position that the circumstantial evidence must be of sure character. The chain of events must be complete in all respect so as to eliminate the hypothesis of the innocence of the accused. Keeping in mind the above parameters, we have 53 independently reassessed the entire material. The prosecution has established the various circumstances i.e. (i) Presence of the accused on the place of occurrence, (ii) participation of the accused in the quarrel with the deceased, (iii) evidence of the informant, Bhumeshwari stating that the accused brought the weapon namely Sattur, (iv) the accused assaulting Sunil and running behind the other two after first assault, (v) accused returning to the place within ten minutes with blood stained clothes and weapon, (vi) Extra judicial confession of the accused, (vii) scientific evidence about matching of DNA profile of the samples of the deceased with the blood stains found on the clothes of the accused, and death of Kailash and Golu in quick succession in the chain of occurrence.

80. Taking the entire incident as a whole, the above circumstances firmly establish that the accused is the only person who has done all three to death. Having scrutinized the evidnece of the above witnesses, we have no manner of doubt that the learned Sessions Judge reached the correct conclusion that the evidence was worthy of acceptance and the circumstances proved were quite sufficient to form the chain leading to the irresistible conclusion that the killer of the three deceased was none other than accused Raju in this case. Needless to say that, the act of the accused of assaulting three persons, causing them multiple injuries by sharp edged weapon, 54 itself demonstrates his definite intention and knowledge attracting to the offence of murder. We are satisfied that there are overwhelming reasons to conclude that the accused Raju is guilty for the offence punishable under Section 302 of the IPC.

81. The next debatable question is about the proportionality of the sentence. The Trial Court heard both sides on the point of sentence. After considering the mitigating and aggravating circumstances, the Trial Court was of the opinion that the case falls in the category of 'rarest of rare' case, and thus, awarded capital punishment. Certainly, it is a matter of concern to have a meticulous examination of all relevant factors to see the proportionality of the sentence.

82. Learned Senior Counsel appearing for the accused has vehemently submitted that the Trial Court has not properly appreciated the mitigating circumstances in favour of the accused. It is submitted that the accused is not a previous convict or a professional killer. There was no strong motive, but in the spur of the moment, the incident occurred. In short, the case does not fall into the exceptional category. Per contra, learned Addl. P.P. Shri Doifode on behalf of the State has supported the capital punishment awarded by 55 the Trial Court. It is submitted that the Trial Court in detail considered the mitigating circumstances pointed out by the accused. Considering that the accused has committed a brutal murder of three defenseless persons, the Trial Court has properly awarded the punishment. After considering the balance-sheet of the aggravating and mitigating circumstances, the Trial Court has imposed the death sentence, which is appropriate one. Finally, he would submit that the present case can be said to be a 'rarest of rare' case warranting a death sentence.

83. To substantiate the death penalty, Shri Doifode, learned Addl.P.P. relied on the various decisions of the Supreme Court in case of Ajitsingh Harnamsingh Gujral vs. State of Maharashtra AIR 2011 SC 3690, Umashankar Panda vs. State of M.P. (1996) 8 SCC 110, Kishori vs. State of Delhi AIR 1999 SC 382, Sandesh alias Sainath Kailash Abhang vs. State of Maharashtra 2013 AIR SCW 108, Jai Kumar vs. State of M.P. (1999) 5 SCC 1, Ram Singh vs. Sonia and ors. AIR 2007 SC 1218, Darshan Singh and anr. vs. State of Punjab (1988) 1 SCC 618, Mahesh s/o Ram Narain and ors. vs. State of Madhya Pradesh (1987) 3 SCC 80. We have gone through the above decisions and noted the principles laid therein. We may hasten to add that always precedents would serve as a guiding factor, but the Courts have to decide the quantum of punishment on peculiar facts of each 56 case.

84. Since long, in a series of judgments, this question has been dealt with whether, in the facts and circumstances of the case, death penalty is warranted? Almost, in every decision we find reference to the celebrated cases in the field, namely Bachan Singh vs. State of Punjab (1980) 2 SCC 684 and Macchi Singh vs. State of Punjab (1983) 3 SCC 470, which have extensively dealt with the issue and laid several guidelines. Recently the Supreme Court in case of Manoj Pratap Singh vs. State of Rajasthan (2022) 9 SCC 81, after considering the above celebrated judgments, made certain observation which would provide guiding factor. The relevant observations made in paragraphs 76, 77 and 80 read as follows :

"76. The Court also stated that 'special reasons' in the context of Section 354(3) CrPC would obviously mean 'exceptional reasons', meaning thereby, that the extreme penalty should be imposed only in extreme cases in the following terms: - (Bachan Singh vs.State of Punjab (1980) 2 SCC 684) "161. ....The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in 57 extreme cases."

77. After taking note of various circumstances projected before it, which could be of mitigating factors, and while observing that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction, the Court proceeded to uphold the constitutional validity of Section 354(3) CrPC, with the observations that the legislature had explicitly prioritised life imprisonment as the normal punishment and death penalty as being of exception, and with enunciation of rarest of rare doctrine in the following words: - (Bachan Singh vs.State of Punjab (1980) 2 SCC 684) "209.....It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed." .....

80. The Court also explained the relevant propositions of Bachan Singh (supra) and the pertinent queries for applying those propositions in the following terms: - (Macchi Singh v. State of Punjab (1983) 3 SCC 470) "38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme 58 culpability.

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

39. In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

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

40. If upon taking an overall global view of all the circumstances in the light of the aforesaid 59 proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."

85. In the earlier decision in case of Shankar Kisanrao Khade vs. State of Maharashtra (2013) 5 SCC 546 the Supreme Court surveyed a large number of cases on either side, that is, where the death sentence was upheld/awarded or where it was commuted; and pointed out the requirement of applying 'crime test', 'criminal test' and 'rarest of rare test'. The Supreme Court recounted, with reference to previous decisions, the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) in paragraph 49 of the decision:

"49. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence:

(Rajendra Pralhadrao case, SCC pp. 47-48, para 33- "'Aggravating circumstances -- (Crime test) (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.

(2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or 60 like offences to receive money or monetary benefits. (5) Hired killings.

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure.

(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

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

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

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

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

86. We may also recall the observations made by the Supreme Court in case of Rajendra Pralhadrao Wasnik vs. State of Maharashtra (2019) 12 SCC 460 in paragraphs 45 and 47, which read as follows :

"45. The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the "special reasons" requirement of Section 354(3) CrPC and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the 62 convict can produce evidence on these issues as well. *** *** ***

47. Consideration of the reformation, rehabilitation and reintegration of the convict into society cannot be overemphasised. Until Bachan Singh (supra), the emphasis given by the courts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances... where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner. As observed in Sangeet Vs. State of Haryana (2013) 2 SCC 452. "In the sentencing process, both the crime and the criminal are equally important." Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social reintegration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible."

87. Recently, Three Judge Bench decision of the Supreme Court in case of Manoj and ors. Vs. State of Madhya Pradesh (2023) 2 SCC 353 took a review of series of decisions in the field and observed as below :

"223. The decades that followed, have witnessed a line of judgments in which this court has continually taken 63 judicial notice of the incongruence in application of the 'rarest of rare' test enunciated in Bachan Singh, and therefore, tried to restrict imposition of the death penalty, in an attempt to strengthen a principled application of the same.

224. This aspect was dealt with extensively in Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra (2009) 6 SCC 498 where the court articulated the test to be a two-step process to determine whether a case deserves the death sentence - firstly, that the case belongs to the 'rarest of rare' category, and secondly, that the option of life imprisonment would simply not suffice. For the first step, the aggravating and mitigating circumstances would have to be identified and considered equally. For the second test, the court had to consider whether the alternative of life imprisonment was unquestionably foreclosed as the sentencing aim of reformation was unachievable, for which the State must provide material.

*****

227. Recently, while considering a review petition, this court in Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 460 held that Bachan Singh had intended the test to be 'probability' and not improbability, possibility or impossibility of reformation and rehabilitation as a mandate of Section 354(4) CrPC. The court analysed numerous earlier precedents, noting that evidence by the state on this has been sparse and limited, but was essential for the courts to measure the probability of reform, rehabilitation and reintegration. The court located this requirement in the right of the accused, who regardless of being ruthless, was entitled to a life of dignity, notwithstanding his crime. While this process is not easy, it was noted that the neither is the process of rehabilitation since it involves reintegration into society. When this is found to be not possible in certain cases, a longer duration of imprisonment was instead permissible. *****

232. This court in Rajesh Kumar v. State (2011) 13 SCC 706 again reiterated that brutality in itself, was not enough to impose death sentence - the accused was 64 convicted for murder of two children who offered no provocation or resistance to the brutal and inhuman fashion in which the accused committed the crime, however, it was held that due consideration to the mitigating circumstances of the criminal still had to be given. Evidence had to be placed on record by the State, demonstrating that he was beyond reform or rehabilitation, the absence of which was a mitigating circumstance in itself. The High Court had merely noted that he was a first- time offender and had a family to take care of - which this court noted was a very narrow and myopic view on the mitigating circumstances.

233. Therefore, 'individualised, principled sentencing' - based on both the crime and criminal, with consideration of whether reform or rehabilitation is achievable (held to be 'probable' in Rajendra Pralhadrao Wasnik), and consequently whether the option of life imprisonment is unquestionably foreclosed - should be the only factor of 'commonality' that must be discernible from decisions relating to capital offences. With the creation of a new sentencing threshold in Swamy Shraddananda (2), and later affirmed by a constitution bench in Union of India v. V Sriharan (2016) 7 SCC 1, of life imprisonment without statutory remission (i.e., Article 72 and 161 of the Constitution are still applicable), yet another option exists, before imposition of death sentence. However, serious concern has been raised against this concept, as it was upheld by a narrow majority, and is left to be considered at an appropriate time.

*****

241. In Santosh Bariyar, making observations on nature of information to be collected at the pre-sentencing stage, this court further observed that "56. At this stage, Bachan Singh [(1980) 2 SCC 684 informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at this stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of 65 crime, culpability of convict, etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio- economic background of the offender. This issue was also raised in the 48th Report of the Law Commission."

88. The learned Trial Judge after quoting the settled principles of law, has assigned the reasons in paragraph 116 to 122 of the judgment for awarding death penalty. On account of aggravated circumstances, the Trial Court took into account the brutal attack on three persons, multiple stab injuries on vital parts, a long list of criminal antecedents, and cool attitude of the accused soon-after the occurrence. However, the Trial Court in true sense has not categorized the mitigating circumstances, which surfaced from the facts of the case. In the decision of Manoj Pratap Singh vs. State of Rajasthan (supra), the Supreme Court laid emphasis that the burden of iliciting mitigating circumstances, lies on the Court, which has to consider them liberally and expansively. On the other hand, the responsibility of providing material to show that the accused is beyond the scope of reform or rehabilitation, thereby unquestionably falls on the State.

89. Though the Trial Court has not pinpointed the mitigating circumstances, however, paragraphs 116 to 118 has dealt with the argument in that regard. It was argued before the Trial Court that the incident took place in the spur of moment on account of deceased Kailash slapping the accused. The Trial Court observed that the accused could have responded proportionally by returning a slap, but he killed Kailash as well as two others. In response to the submission that there was absence of premeditation, the Trial Court observed that the act of the accused keeping a dangerous weapon namely Sickle (Sattur) at his stall, does indicate his preparation to use muscle power by using a dangerous weapon. Likewise, in response to the argument that there were no complaints against the accused during his incarceration, the Trial Court relied on the submission of learned Addl. P.P. that the behaviour of the accused causing nuisance in the Court runs against him. At the cost of repetition, we may note that the Trial Court has not ventured into categorizing mitigating circumstances, but merely tried to dispel mitigating circumstances, that were argued. We had a re-look to the entire episode on the basis of proven facts. We have noted the following aggravating circumstances:

(i) three persons were killed by dangerous weapon.

(ii) assault was severe with a dangerous weapon, causing multiple incise injuries to all deceased.

(iii) the victims were unarmed and defenseless at the time of occurrence.

(iv) the accused has chased two victims to kill and after seeing one of the victim alive, he again assaulted him and done to death.

(v) long list of antecedents about registration of cases pertaining to serious bodily offences including the offence punishable under Sections 307 and 302 of the IPC.

90. As against this, the following mitigating circumstances emerge from the facts of the case :

      (i)      Absence of motive for commission of crime.

      (ii)     Incident erupted at the spur of moment on trifling issue.

      (iii)    Absence of premeditation.

      (iv)     No previous enmity with either of the deceased.

      (v)      The accused did not run away after commission of crime.

      (vi)     The accused did not try to conceal the weapon or blood
               stained clothes.

      (vii)    On receiving the slap, the accused lost his temper at the
               moment and made an assault.

(viii) No previous conviction for the offences charged.

(ix) The conduct of the accused in jail was normal as there were no complaints.

91. The accused has been in jail from 17.11.2015 i.e. for the period of 7 years, therefore, his conduct in jail bears relevance. We 68 have called for the information regarding the accused's jail conduct, behavior, and complaints, etc. The report of the Jail Superintendent dated 16.10.2023, shows that the behaviour of the accused was normal, no offence was registered and there were no complaints against him.

92. Taking a review of the aforesaid mitigating and aggravated circumstances, we have considered the case on the basis of guidelines laid in the cases of Bachan Singh vs. State of Punjab (supra) and Macchi Singh vs. State of Punjab (supra). Besides multiple murders, we do not see any other uncommon feature that would shock the conscience of the Society. It is not a case of brutal killing of the defenseless or vulnerable section of the society, namely women or minor children. Moreover, there was no motive for the accused to kill all the three deceased. Everything erupted at the spur of moment on account of trifling issue of utilizing services of labour. Unfolded evidence discloses that when the accused received a slap from Kailash, he lost his temper, and in retaliation, brought Sattur and killed all three. In this circumstance, in our opinion, the present case does not fall within the category of 'rarest of rare' case warranting the death penalty. Though, we acknowledge the gravity of the offence, we are unable to satisfy ourselves that the case would fall into the 69 exceptional category. The offence has undoubtedly been committed, which can be said to be brutal but does not warrant a death sentence. There is no material to answer with certainty that there are no chances of reformation.

93. However, we are sure that mere imprisonment for life is not appropriate punishment in accordance with the atrocities committed by the accused. Certainly, punishment of life imprisonment may prove too grossly inadequate as to the gravity of the offense for which the accused has been sentenced. In reported case of Swamy Shraddananda (2) vs. State of Karnataka (2008) 13 SCC 767, the Supreme Court took a note of above situation and ruled that there can be a third category of sentence without remission. Recently, in case of Ravinder Singh vs. State of Govt. of NCT of Delhi (2023) AIR (SC) 2220, the same issue was dealt by the Supreme Court and ruled that the High Courts are empowered to impose a modified punishment without remission through out, or for specified period. Therefore, undoubtedly, Constitutional Courts can always exercise the power to impose a modified or fixed-term sentence by directing that a life sentence shall be of a fixed period of more than 14 years. Certainly, the exercise of said power shall be restricted to grave cases.

93. For the aforesaid reasons, on a careful consideration, we 70 are of the considered view that the present case does not fall in the category of 'rarest of rare' case warranting the death penalty. However, considering that the accused has brutally killed three innocents for no reason, allowing him to be released after 14 years of term is tantamount to trivializing the very purpose of sentencing policy. The ends of justice would be sufficiently served if the life imprisonment of the accused is for a minimum of 30 years of actual incarceration. We, accordingly, convert the death penalty into imprisonment of life, without remission for the period of 30 years of actual imprisonment along with fine and default clause as imposed by the Trial Court. While parting with the judgment, we may record appreciation of both sides, especially Advocate Sumit Joshi (appointed), who took extensive efforts on factual aspect as well as on the law.

94. We decide the Confirmation Reference accordingly and partly allowed the criminal appeal in the above terms.

95. Muddemal property be dealt with in accordance with the Rules.

96. Fees of the appointed Counsel shall be paid as per Rules.

      (VALMIKI SA MENEZES, J.)                  (VINAY JOSHI, J.)
                                       71


                         Trupti




Signed by: Trupti D. Agrawal
Designation: PA To Honourable Judge
Date: 12/12/2023 17:24:50

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