Allahabad High Court
State Of U.P. vs Laeek on 19 October, 2022
Bench: Ramesh Sinha, Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R
RESERVED ON 31.08.2022
DELIVERED ON 19.10.2022
Court No. - 1
Case :- CAPITAL CASE No. - 2 of 2021
Appellant :- State of U.P.
Respondent :- Laeek
Counsel for Appellant :- G.A.
connected with
Case :- CRIMINAL APPEAL No. - 704 of 2021
Appellant :- Mohd. Umar
Respondent :- State of U.P.
Counsel for Appellant :- R.B.S. Rathaur,Manoj Kumar Singh
Counsel for Respondent :- G.A.,Jay Prakash Singh Vats,S.K.Vais
with
Case :- JAIL APPEAL No. - 592 of 2021
Appellant :- Laeek
Respondent :- State of U.P.
Counsel for Appellant :- Jail Appeal,Amit Chaudhary,Rakesh Kumar Tripathi,Ramakar Shukla
Counsel for Respondent :- G.A.,Jay Prakash Singh Vats
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Renu Agarwal,J.
(Delivered by Hon'ble Renu Agarwal,J.)
1. Capital Sentence No. 02 of 2021, arises out of the reference made by the learned trial court under section 366(1) of Code of Criminal Procedure, 1973 to this court for confirmation of death sentence of convict-appellant, Laeek.
2. Jail Appeal No. 592 of 2021 under section 383 Cr.P.C. has been preferred by the convict-appellant Laeek against the judgment and order dated 09-03-2021 passed-by Smt. Poonam Singh, learned Additional Sessions Judge/F.T.C.-II, Sultanpur in Sessions Trial No. 40 of 2016, arising out of Case Crime No. 348 of 2015, under sections 302/34, 307/34,504,506(2) I.P.C., Police Station-Chanda, district-Sultanpur by which the convict-appellant Laeek has been awarded death penalty under section 302 readwith section 34 I.P.C. He was convicted and sentenced under section 307/34 I.P.C. for 7 years rigorous imprisonment with a fine of Rs. 10,000/- In default of payment of fine, the convict-appellant was further directed to undergo additional one month imprisonment. Under section 504 I.P.C., the convict-appellant, Laeek was convicted and sentenced for two years' imprisonment with a fine of Rs. 2,000/- In default of payment of fine, he was further directed to undergo 7 days additional imprisonment. Under section 506(2) I.P.C., convict-appellant, Laeek was convicted and sentenced for 7 years rigorous imprisonment with a fine of Rs. 5,000/- In default of payment of fine, he was further directed to undergo 15 days additional imprisonment and all the sentences were directed to run concurrently.
3. Criminal Appeal No. 704 of 2021 under section 374(2) Cr.P.C. has been preferred by convict-appellant, Mohd. Umar against the judgment and order dated 09-03-2021 passed by Smt. Poonam Singh, learned Additional Sessions Judge/F.T.C.-II, Sultanpur in Sessions Trial No. 40 of 2016, arising out of Case Crime No. 348 of 2015, under sections 302/34, 307/34,504,506(2) I.P.C., Police Station-Chanda, district-Sultanpur. Under section 302 readwith section 34 I.P.C., the convict-appellant, Mohd. Umar has been convicted and sentenced for life imprisonment with a fine of Rs. 10,000/- In default of payment of fine, he was further directed to undergo one month additional imprisonment. Under section 307/34 I.P.C., the convict-appellant, Mohd. Umar has been convicted and sentenced for 7 years rigorous imprisonment with a fine of Rs. 10,000/- In default of payment of fine, he has further been directed to undergo one month additional imprisonment. Under section 506(2) I.P.C., the convict-appellant, Mohd. Umar was convicted and sentenced for 7 years rigorous imprisonment with a fine of Rs. 5,000/- In default of payment of fine, he was further directed to undergo 15 days additional imprisonment and all the sentences were directed to run concurrently.
4. Shorn off the unnecessary details of the F.I.R., the brief facts of the case are that on 07-10-2015 at about 06.00 P.M., the convict-appellant, Laeek, was urinating in front of the door of the complainant. When the ladies of the house of the complainant objected to it, he started abusing them. The son of the complainant tried to restrain Laeek from abusing the ladies of the house, then convict-appellant, Laeek threatened him. Convict-appellant, Laeek alongwith co-accused, Mohd. Umar assaulted on the neck of Jauhar with meat chopper. When Jauhar Ali, Javed and Aamina, the wife of complainant and his elder son, Moinuddin reached the place of occurrence, the convicts-appellants, Mohd. Umar and Laeek started assaulting them by meat choppers. On the alarm raised by them, the brother of the complainant, Alauddin and his wife, Khairulnisha reached on the spot. The accused followed them having meat choppers in their hands. Many neighbours assembled there and witnessed the incident. When the crowd challenged the accused, then leaving the family members of the complainant, accused threatened the crowd that if any of them tried to come forward, they would kill them too. The convict-appellants created chaos and terror in the society. The crowd present there, started dispersing and saving their lives behind the doors of their houses. The shopkeepers also shut down their shops. Then the convict-appellants took to their heels threatening the complainant and his family members and crowd.
5. The complainant carried all the injured to the government hospital, Chanda, district-Sultanpur, but, due to serious injuries sustained to victims, the doctors referred all the injured to the district hospital. While taking to district hospital, injured, Gauhar Ali and Javed Ahmad died due to the ante-mortem injuries caused by both the convict-appellants and the remaining injured were admitted in the hospital.
6. On the basis of written report, Case Crime No. 348 of 2015, under sections 302, 307, 504, 506 I.P.C. was registered against convict-appellants, Mohd. Umar S/o Farookh and Laeek S/o Khalil at Police Station-Chanda, district-Sultanpur on the very day i.e. 07-10-2015.
7. The inquest reports of the deceased, Jauhar Ali and Gauhar Ali, Javed Ahmad were prepared and dead bodies of all the three deceased were sealed and after preparation of all the required papers, their dead bodies were sent for autopsy. The Chik Report and the G.D. were prepared and the investigation was entrusted upon the Investigating Officer.
8. The Investigating Officer recorded the statements of the witnesses under section 161 Cr.P.C. He inspected the spot and prepared the site plan. He collected the clothes of all the deceased and sent it to the Forensic Science Laboratory for examination.
9. The police procured the custody of the convict-appellants, Laeek and Mohd. Umar from jail and recovered two meat choppers which were alleged to have been used in causing death to the deceased. The police prepared the recovery memo. The autopsy of all the three deceased were conducted by the doctors of the District Hospital, Sultanpur and the fourth deceased, who died in Civil Hospital, Lucknow, his autopsy was conducted by the doctors of the Civil Hospital, Lucknow.
10. After collecting all the relevant evidences against both the convicts-appellants, the Investigating Officer filed Chargesheet No. 153 of 2015 against the accused, Lallu @ Mohd. Shabbir S/o of Dauran @ Mohd. Hasan, Laeek S/o Khalil and Mohd. Umar S/o Farookh, under sections 302,307 readwith section 34 I.P.C. & section 506 I.P.C. The injury report of injured, Smt. Aamina is also filed with the Case Diary with the report of Forensic Science Laboratory dated 29-04-2016.
11. The convicts-appellants appeared in the court and after taking cognizance, the court concerned committed the case to the Court of Session for trial. The Sessions Court framed charges against accused,Laeek, Mohd. Umar and Lallu @ Mohd. Shabbir under sections 302,307,504 & 506 I.P.C. readwith section 34 I.P.C. and the charges were read-over to them. The convict-appellants abjured from the charges and claimed to be tried.
12. In order to prove the case against the convict-appellants, the prosecution adduced the following witnesses :-
1. Sri Sarfuddin, P.W.-1, complainant of the case.
2. Smt. Aamina w/o Sarfuddin, P.W.-2 and injured.
3. Sri Habib Ahmad, P.W.-3, witness of recovery memo
4. Sri Sagir Ahmad, P.W.-4, witness of the inquest of the deceased Moinuddin, who died in Civil Hospital, Lucknow.
5. Sri Azharuddin, P.W.-5, witness of the inquest of the deceased Gauhar Ali, Jauhar Ali & Javed Ahmad.
6. Dr. Kaushal Kishore Bhatt, witness of the autopsy of the deceased Gauhar Ali, Jauhar Ali & Javed Ahmad.
7. Sri Ajay Pratap Singh, P.W.-7, Sub. Inspector, the then Chauki Incharge, Police Station-Chanda Kotwali, district-Sultanpur. witness of inquest of deceased Gauhar Ali.
8. Sri Nirbhay Kumar Singh, P.W.-8, Sub. Inspector, witness of inquest of the deceased Jauhar Ali.
9. Dr. R.K.Gautam, P.W.-9, Senior Consultant, Dr. Shyama Prasad Mukherji Hospital, Lucknow, witness of the autopsy of the deceased, Moinuddin.
10. Sri Rana Pratap Singh, P.W.-10, Sub. Inspector, who recovered two meat choppers, used in the alleged incident on the pointing of the accused. He identified his signatures on Recovery Memo, Exhibits 10 & 11 and proved them. He proved site plan, chargesheet etc. prepared by the Investigating Officer, Ramesh Chandra as secondary evidence.
13. Besides ocular evidences, the prosecution produced following documentary evidence :-
1. Exhibit Ka-1, Written Report.
2.Exhibit Ka-2, Inquest report of the deceased Moinuddin
3. Exhibit Ka-3, Inquest report of the deceased Gauhar Ali
4. Exhibit Ka-4, Inquest report of the deceased Jauhar Ali
5. Exhibit Ka-5, Inquest report of the deceased Javed Ahmad
6. Exhibit Ka-6, Autopsy report of the deceased Gauhar Ali
7. Exhibit Ka-7, Autopsy report of the deceased Javed Ahmad
8. Exhibit Ka-8, Autopsy report of the deceased Jauhar Ali
9. Exhibit Ka-9, Autopsy report of the deceased Moinuddin
10. Exhibit Ka-10, Recovery memo of knife recovered from the possession of accused Mohd. Umar.
11. Exhibit Ka-11, Recovery memo of knife recovered from the possession of Laeek.
12. Exhibit Ka-12, Site plan of incident.
13. Exhibit Ka-13, Chargesheet.
14. After concluding the evidence from the side of prosecution, statements of the accused under section 313 Cr.P.C. were recorded. In his statement recorded under section 313 Cr.P.C., the convict-appellant, Laeek Ahmad stated that he was urinating near the dustbin lying adjacent to Pant Nagar Chauraha on 07-10-2015. Immediately, Smt. Aamina came and abused him. When the convict-appellant, Laeek Ahmad was passing through the Pant Nagar Chauraha next day, Smt. Aamina, her son alongwith sons of Alauddin collectively assaulted him to the extent that he urinated in his clothes. One of the sons of Alauddin had meat chopper in his hands. He snatched the meat chopper from him and defended himself. It is also stated in the statement recorded under section 313 Cr.P.C. that he was a labourer with Lallu and he also served in the footwear shop of Mohd. Umar.
15. Convict-appellant, Mohd. Umar stated in his statement recorded under section 313 Cr.P.C. that he is a Hafiz and teaches Arbi and Urdu. On the fateful day, he was sitting by Taj Mohd., tenant of Sarfuddin and he intervened to resolve the dispute on humanitarian ground, but, all the four deceased alongwith Aamina assaulted badly upon co-accused, Laeek. The convict-appellant,Laeek defended himself. Smt Aamina caught hold of the convict-appellant, Laeek from the collar of his shirt, but, he managed to escape from the grip of Aamina. Mohd. Umar denied the recovery of meat chopper from himself. The accused was afforded the opportunity to adduce his defence. D.W.-3, Taj Mohammad was adduced as defence witness on behalf of the convict-appellant, Mohd. Umar and no witness was produced on behalf of the convict-appellant, Laeek in defence.
16. After hearing both the parties and perusal of the record, learned trial court reached to the conclusion that evidences of P.W.-1 and P.W.-2 are genuine, natural and reliable and there is no reason to falsely implicate the two convict-appellants, Mohd. Laeek and Mohd. Umar. When convict-appellant, Laeek escaped from the place of occurrence, the other convict-appellant, Mohd. Umar also followed him. The incident occurred in furtherance of common intention of both the accused and the accused caused injuries to Smt. Aamina and caused death to four other persons of the same family.
17. Learned trial court convicted both the convict-appellants, Laeek and Mohd. Umar and punished them under sections 302/34, 307/34,504,506(2) I.P.C. in Sessions Trial No. 40 of 2016 Police Station-Chanda, district-Sultanpur.
18. Under section 302 readwith section 34 I.P.C., the convict-appellant, Mohd. Umar has been convicted and sentenced for life imprisonment with a fine of Rs. 10,000/- and in default of payment of fine, he was further directed to undergo one month additional imprisonment. Under section 307 readwith section 34 I.P.C., the convict-appellant, Mohd. Umar has been convicted and sentenced for 7 years rigorous imprisonment with a fine of Rs. 10,000/- and in default of payment of fine, he was further directed to undergo one month additional imprisonment. Under section 506(2) I.P.C., the convict-appellant, Mohd. Umar was convicted and sentenced for 7 years rigorous imprisonment with a fine of Rs. 5,000/- and in default of payment of fine, he was further directed to undergo 15 days additional imprisonment and all the sentences were directed to run concurrently.
19. Under section 302 readwith section 34 I.P.C., the convict-appellant, Laeek has been awarded death penalty. He was convicted and sentenced under section 307/34 I.P.C. for 7 years rigorous imprisonment with a fine of Rs. 10,000/- In default of payment of fine, the convict-appellant was further directed to undergo additional one month imprisonment. Under section 504 I.P.C., the convict-appellant, Laeek was convicted and sentenced for two years' imprisonment with a fine of Rs. 2,000/- In default of payment of fine, he was further directed to undergo 7 days additional imprisonment. Under section 506(2) I.P.C., convict-appellant, Laeek was convicted and sentenced for 7 years rigorous imprisonment with a fine of Rs. 5,000/- In default of payment of fine, he was further directed to undergo 15 days additional imprisonment and all sentences were directed to run concurrently.
20. Aggrieved by the judgment of conviction and punishment, two separate appeals are filed by the convict-appellants, Laeek and Mohd. Umar. Convict-appellant, Laeek has filed appeal from jail.
21. Besides these two appeals, Reference No. 2 of 2021 is made by District Judge, Sultanpur for confirmation of the death penalty to the convict-appellant, Laeek.
22. Heard Sri R.B.S.Rathaur, learned counsel for the convict-appellants in both the appeals and learned A.G.A. for the State-respondents.
23. Learned counsel for the convict-appellants argued that the witnesses, P.W.-1 & P.W.-2 are highly interested witnesses and they are relatives inter-se to the deceased also. The incident occurred at the public place, inspite of this fact, no public witness is produced by the prosecution in order to prove its case. The Investigating Officer conducted the investigation with too much lacuna. The name of the Investigating Officer is missing from the chargesheet and convict-appellants cannot be convicted on the basis of such a shoddy investigation. The dispute arose between accused and family members of the complainant on a minor issue and when the family members of the complainant started assaulting convict-appellant, Laeek with meat chopper, then he snatched the meat chopper and attacked with the meat chopper in self-defence. The punishment awarded to the convict-appellant, Laeek is very severe in relation to the crime committed by him.
24. It is also argued that the trial court based its conviction on the basis of statements of the accused recorded under section 313 Cr.P.C., which is completely beyond the scope of permissibility to base judgment on the statements of the accused. Recovery of weapons is doubtful. There was no prior meeting of mind of the accused. The convict-appellant, Mohd. Umar just intervened on humanitarian ground to disperse the crowd at the time of the incident. Convict-appellant, Mohd. Umar has not done any overt act in the commission of crime, therefore, the judgment and punishment awarded by the trial court is liable to be set aside.
25. On the other hand, learned A.G.A. opposed the submissions of learned counsel for the convict-appellants and argued that it is a brutal murder of four persons who belongs to one family at the public place by stabbing and three of them expired on the spot and one of them expired when he was being carried to the hospital. The convict-appellants created chaos and terror in the public at large. People started closing the doors of their houses and the shopkeepers started shutting down their shops. The Investigating Officer after taking the accused in police custody recovered blood stained meat choppers on pointing out of the convict-appellants and made recovery under section 27 of the Indian Evidence Act. The prosecution witnesses including the injured, Aamina proved the prosecution case beyond reasonable doubt, therefore, learned A.G.A. requested to uphold the judgment passed by the learned trial court.
26. Before proceeding with the analysis of evidence, it will be proper to mention here the evidences produced by the prosecution in brief.
27. P.W.-1,Sarfuddin stated on oath before the court that he is an illiterate person and on the very fateful day of the incident when the women of his house were preparing for Wazu in the adjoining lane on 07-10-2015 at about 06.00 p.m., the accused started urinating and when the women of his house objected to it, he started abusing them. His son, Javed Ahmad forbade Laeek from abusing, threatening his son Javed convict-appellant, Laeek went away alongwith Mohd. Umar and they returned with meat choppers and assaulted Gauhar Ali and Jauhar Ali, sons of his brother, Alauddin. Laeek attacked on the neck of Gauhar Ali. When he made hue and cry, his nephew Jauhar Ali & Javed and his wife Aamina and his elder son, Moinuddin arrived at the place of occurrence. Then, convict-appellants, Umar and Laeek assaulted all of them by meat choppers. The wife of his younger brother, Khairulnisha and Alauddin shouted for help. The people arrived at the place of occurrence, but, on account of the terror of both the convict-appellants, none could come forward to save them. Gauhar Ali, Jauhar Ali, Javed, Moinuddin and Aamina received grievous injuries and they became unconscious. In the meantime, someone called ambulance and they brought all the five injured to Community Health Centre, Chanda, district-Sultanpur from where they were referred to district-hospital, Sultanpur. Jauhar Ali, Gauhar Ali and Javed could not survive and died on the way to hospital while Aamina and Moinuddin were referred to Trauma Centre, Lucknow. P.W.-1 further stated that convict-appellants Laeek and Mohd. Umar assaulted his children infront of him with meat choppers. In this assault, one of his sons sustained deep cut on the neck and intestine of his other son came out due to the assault on his stomach. His wife was preparing for Wazu at that time. She caught the accused to save his children, but, accused attacked on her abdomen with meat chopper and she fell down and became unconscious.
28. P.W.-2, Smt. Aamina corroborated the statement of P.W.-1, Sarfuddin and deposed that when she was preparing for Wazu, convict-appellant, Laeek started urinating at about 06.00 p.m. on 07-10-2015. When she forbade him from doing so, he started abusing her and came with co-accused, Mohd. Umar, having meat choppers in their hands and attacked on the neck of Gauhar Ali and on the stomach of Javed. When she tried to defend her son, Laeek attacked on her chest and abdomen also. In the Trauma Centre, Lucknow, she came to know that Gauhar Ali, Jauhar Ali and Javed expired on the very day and Moinuddin expired during his treatment in Lucknow.
29. P.W.-3, Habib Ahmad is a witness of recovery who proved that the meat chopper was recovered on the pointing out of the accused,Laeek and proved the meat chopper as Item Exhibit-Kha-1. P.W.-3 also proved the recovery of meat chopper on the pointing out of accused Mohd. Umar and proved the meat chopper used in the incident as Item Exhibit Kha-2.
30. P.W.-4, Sagir Ahmad certified his signatures on inquest report, Exhibit Ka-2.
31. P.W.-5, Azharuddin certified his signatures on Exhibits Ka-3, Ka-4 & Ka-5 i.e. inquest reports of deceased, Gauhar Ali, Jauhar Ali and Javed.
32. P.W.-6, Dr. Kaushal Kishore Bhatt conducted autopsy of deceased Jauhar Ali and declared him ''brought dead' in the district hospital, Sultanpur at 08.15 P.M. on 07-10-2015. The following ante-mortem injuries were found on the dead body of the deceased Jauhar Ali :-
Ante-mortem Injuries.
"(1) Incised wound 1 cm. x 0.5 cm. on back of left elbow.
(2) Incised wound 2 cm. x 1 cm. on lateral aspect of left thorax 3 cm. below axilla (left) cavity deep.
(3) Incised wound 2 cm. x 1 cm. on left lateral side of upper abdomen 20 cm. below anterior axillary fold (left) cavity deep (4). Lacerated wound 2.5 cm. X 1 cm. on left lateral side of back 1 cm above left iliac crest underlying intestine coming out.
Cause of death occurred due to Hemorrhage & Shock as a result of ante-mortem injuries.
33. P.W.-6, Dr. Kaushal Kishore Bhatt also conducted autopsy of deceased Javed & Gauhar Ali in the district hospital, Sultanpur. The following ante-mortem injuries were found on the dead bodies of the deceased Javed & Gauhar Ali :-
Ante-mortem injuries of Javed (1) Incised wound 5 cm. X 2 cm. X cavity deep on front of chest 12 cm. Below the manubrium sterni.
(2) Incised wound 2 cm. X 1 cm. on left side of abdomen at 5 O'Clock position 6 cm. away from umbilicus.
(3) Linear abrasion 7 cm. x 0.2 cm. on left side of abdomen 5 cm. away from umbilicus (4) Abrasion 1 cm x 0.1 cm. on left side of face just above lateral end of left eye brow.
Cause of death occurred due to Hemorrhage & Shock as a result of ante-mortem injuries.
Ante mortem injuries of Gauhar Ali
1. Incised Wound 4 cm. X 1 cm. on left side of neck 4 cm. below left angle of mandible, underlying tissue(let carotid artery lacerated).
Cause of death occurred due to Hemorrhage & Shock as a result of ante-mortem injuries.
34. P.W.-7, Sub. Inspector,Ajay Pratap Singh Yadav, the then Chowki Incharge,Laxmanpur, Police Station-Kotwali Nagar, Sultanpur prepared inquest report of the deceased Gauhar Ali.
35. P.W.-8, Sub. Inspector, Nirbhay Kumar Singh prepared inquest report of the deceased Jauhar Ali and identified his signatures on the inquest report,Exhibit Ka-4; prepared relevant papers to be sent for conducting autopsy of the deceased; sealed Photo lash, Challan lash, Memorandum of specimen signature, letters to R.I. & C.M.O. etc. and sent the dead body of the deceased Jauhar Ali through Constable Abhishek Dwivedi in the sealed condition to Mortuary House.
36. P.W.-09, Dr. R.K.Gautam, Senior Consultant, Dr. Shyama Prasad Mukherji Civil Hospital, Lucknow, prepared post mortem report of deceased Moinuddin in the hospital and found the following ante-mortem injuries on the dead body of the deceased Moinuddin :-
Ante-mortem Injuries "(1) Stitched wound 2cm long alongwith two stitches present on outer aspect of both side chest.
(2) Stitched wound 12 cm long, alongwith 12 stitches present on left side chest just, Medial, below left nipple.
(3) Stitched wound 3cm long alongwith 4 stitches present on outer aspect of Lt. side chest 2 cm. lateral to left nipple on opening ecchymosis present underneath all injuries made and above 4th rib of left side of chest and cut above place. Left side with pleura few cut at C.A. pavet About 500 ml clotted blood present in thoracic."
Cause of death is due to shock and hemorrhage as a result of ante-mortem injuries.
37. It is stated in grounds of appeal that the injury report of injured Aamina is not on record as such it cannot be said that she sustained injuries during the incident. The injured-Aamina also received injuries in the incident and she was referred to Trauma Centre, Lucknow. Her injury report paper no.70-Ka/1 is on record. Medical report reveals that "minimal peritoneal" collection noted. No c/o pleural collection noted through abdominal window. Supplementary report paper no 20-Kha/2 prepared by doctor in the Trauma Centre is on record which is as under :-
"MLC noted from District Hospital Sultanpur.
Patient came to Trauma Centre on 08-10-2015 was admitted and emergency management was done.
Patient presented as an alleged case of stab injury over abdomen.
Emergency surgical management done. Exploratory laparotomy with peritoneal lavage with jejunojejunal resection anastomois at approx. 3 feet distal to dudenojejunal junction with bilateral drain placement.
Patient's hospital course was uneventful and discharged on 16-10-2015."
38. P.W.-10, Sub. Inspector, Rana Pratap Singh, recovered two meat choppers on the pointing of the accused and proved the recovery memo in court. This witness deposed that the incident was very sensitive and police force remained at the place of occurrence for many days. The village was turned into police cantonment.
39. D.W.-01, Haseena, in her statement recorded on 19-02-2021 stated that the incident took place five years ago, but, she did not remember the exact date of the incident. She stated that she was busy in the engagement ceremony of her daughter. After knowing about the incident from the neighbours, she did not go to the place of the incident and she stated about Lallu only.
40. D.W.-02, Lallu, in his statement recorded on 19-02-2021 stated that the incident took place five years ago. He knew both the convict-appellants, Mohd. Umar & Laeek and he had no enmity with them. He deposed all the things about himself only.
Since, D.W.-01 & D.W.-02 in their statements stated only about the fact that Lallu was not present on the spot, therefore, their statements are irrelevant in regard with the involvement of present convict-appellants.
41. D.W.-3, Taj Mohd., corroborated the happening of the incident, but, he stated that convict-appellant, Laeek was attacked by complainant's son and other family members. Laeek snatched the meat chopper and attacked on the victims in self defence.
42. Learned counsel for the convict-appellants submitted that there is no independent witness of the incident. The crowd is stated to have gathered at the place of occurrence, but, no independent witness was adduced and the witnesses produced by prosecution are the highly interested witnesses.
43. In Kartik Malhar Vs. State of Bihar (1996) 1 SCC 614, the Hon'ble Apex Court has held as under:-
"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh's case (supra) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relative were not independent witnesses. Speaking through Vivian Bose, J., the Court observed :
We are unable to agree with the learned Judges of High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavored to idspeal in Rameshwar v. The State of Rajasthan [1952] SCR 377= AIR 1952 SC 54. We find, however, that it is unfortunately still persist, if not in the judgments of the Courts, at any rate in the arguments of counsel."
In this case, the Court further observed as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must he laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.
In another case of Mohd. Rojali Versus State of Assam: (2019) 19 SCC 567, the Hon'ble Apex Court in this regard has held as under:-
"As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well settled that a related witness cannot be said to be an ''interested' witnesses merely by virtue of being a relative of the victim. This court has elucidated the difference between ''interested' and '' related' witness in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 Scc 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298). Receltly, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three Judge bench decision in State of Rajasthan v. Kalki (supra): "14. "Related" is not equivalent to "interested". A witness may be called "interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of the case cannot be said to be "interested".."
11. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal case was made by this Court in Dalip Singh v. State of Panjab 1954 SCR 145, wherein this Court observed:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to whish to implicae him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."
12. In case of related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199;
"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavor of the Court must be to look for consistency. The evidence of a witnesses cannot be ignored or shown out solely because it comes from the mouth of a person who is closely related to the victim."
"29. In the case of Bhaskarrao V. State of Maharashtra reported in (2018) 6 SCC, 591, Hon'ble Supreme Court held as under :-
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the Accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general Rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
34. In Darya Singh and Ors. v. State of Punjab, [(1964) 3 SCR 397 : AIR 1965 SC 328 : (1965) 1 Cri LJ 350] this Court held that evidence of an eye witness who is a near relative of the victim, should be closely scrutinized but no corroboration is necessary for acceptance of his evidence. In Harbans Kaur and Anr. v. State of Haryana, [(2005) 9 SCC 195 : 2005 SCC (Cri) 1213 : 2005 Cri LJ 2199], this Court observed that: (SCC p. 277, para 6) "6. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the Accused."
35. In the case of Namdeo v. State of Maharashtra, [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773] wherein this Court after observing previous precedents has summarized the law in the following manner: (SCC p. 164, para 38) "38. .......it is clear that a close relative cannot be characterised as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
44. It is well known fact that when such a heinous occurrence takes place where two appellants caused death of three persons at 05.00 p.m., people were shutting their shops and hiding themselves behind their doors and crowd was terrorized, then there is least chance that the independent witness will dare to depose about the incident in the court. The evidence of witnesses cannot be discarded only because they are in any way related to the deceased if they are reliable and inspire confidence of truthfulness. Moreover, the witness no. 2, Aamina is an injured witness in the case, who tried to save her sons from assault of the accused and in turn, she sustained injuries. Thus, there is no reason to discard the evidence of prosecution witnesses just because they are related witnesses to the extent that they have inspired confidence.
45. It is stated that the Investigating Officer of the case was not produced as a witness in the court. From perusal of the file of the trial court, it transpires that initial investigation of the case was conducted by the Investigating Officer, Sri Jasbir Singh and later on by the Investigating Officer, Ramesh Chandra Singh, who prepared the site plan and submitted chargesheet in court, but, the Investigating Officers, Jasbir Singh and Ramesh Chandra Singh were not produced in the court rather P.W.-10, Sub. Inspector, Rana Pratap Singh proved these documents by way of secondary evidence. However, it is stated by P.W.-10 that the Investigating Officer is alive.
46. Considering these facts, it is clear that the Investigating Officer did not depose in court to support prosecution case. However, learned counsel for the convict-appellants could not explain as to what damage was caused to the credibility and reliability in prosecution case, if Investigating Officer has not deposed in the court. The case is based on ocular evidence. The injured witness appeared in witness box and proved the case, therefore, merely absence of the Investigating Officer does not affect adversely of the complete prosecution case.
47. Learned counsel for the convict-appellants argued that the recovery of alleged weapons of assault from convict-appellants is highly doubtful. It transpires from the record that the accused were arrested and admitted to jail and the Investigating Officer had taken the accused in police custody by the order of the concerned court and subject to the conditions imposed by the court concerned; the recovery was made by the Investigating Officer on the pointing out of the accused from the space between the roof of latrine and the roof of his house. Appellant Laeek confessed during recovery that this is the weapon with which he assaulted the sons of Sarfuddin and Alauddin. P.W.-3 recovered one meat chopper on the pointing out of convict-appellant, Mohd. Umar from under roof of his house who confessed that with the recovered weapon, he assaulted the sons of Sarfuddin and Alauddin. Both the meat choppers were stained with dry blood. Recovery memo is proved by P.W.-3 and no explanation is given by the accused about the recovery of the meat choppers from their respective houses. Therefore, there is no doubt in the recovery of weapons from convict-appellants.
48. Learned counsel for the convict-appellants argued that the learned trial court did not address the controversies and contradictions in the statements of the witnesses. However, the incident ignited when the injured Aamina forbade Appellant Laeek from urinating in home where she was preparing for Waju. She also sustained injuries when she tried to save deceased.
49. Hon'ble Apex Court relying upon the judgment in State of U.P. Vs. Anil Singh reported at (1998) supp SCC 686:
"17. It is also our experience that invariably the witnesses add embroidery to prosecution story perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform" It has been further emphasized that if discrepancies in the depositions are minor, that that witnesses contradict themselves during their testimonies as opposed to their previous police statements what is important is that the nature of contradictions.
50. In Rammi @ Rameshwar Vs. State of Madhya Pradesh, Hon'ble Supreme Court held that:
"24. ... Courts should bear in mind that it is only when discrepancies in the evidence of a witnesses are so incompatible with the credibility of his versions that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny"
51. He further argued that there are vital discrepancies in the statements of P.W.-1 and P.W.-2 recorded before the trial court, but, trial court did not address the said controversies. From the perusal of statements of P.W.-1 and P.W.-2, it transpires that P.W.-1 and P.W.-2 who are the witnesses of facts; unequivocally stated in so many words that convict-appellant, Laeek Ahmad assaulted deceased, Jauhar Ali, Gauhar Ali, Javed Ahmad and Moinuddin and injured Aamina by meat choppers. There is no discrepancy on the point of genesis of dispute, on the ''place of occurrence', or on the weapons used to commit the crime. P.W.-2, Aamina was herself injured in the case, who proved the incident in details. Therefore, there are no contradictions, discrepancies or controversy in the statements of witnesses. We do not consider it appropriate or permissible to embark upon the reappraisal or re-appreciate of the evidence in the contest of the minor controversies or discrepancies in view of he law laid down by the Apex Court reported in (1983) 3 SCC,217, Bharwada Bhoginbhai Hirjibhai Versus State of Gujarat.
52. It is also submitted by the learned counsel for the convict-appellants that no overt act has been assigned to convict-appellant, Mohd. Umar and necessary ingredients for invoking section 34 I.P.C. are missing. However, from perusal of the record, it is proved that convict-appellant, Mohd. Umar picked the meat chopper from the shop of meat seller, Lallu and supplied the said meat chopper to convict-appellant, Laeek Ahmad. It is not necessary for constituting common intention that there must be meeting of minds or preponderance for commission of the crime days before. It is sufficient, if at the spur of moment, the meeting of minds arrived at besides, Mohd. Umar actively participated in the commission of crime. Therefore, it cannot be said that the ingredients for invoking section 34 I.P.C. are missing.
53. Learned trial court discussed the evidence at length. From perusal of the record of the trial court, it transpires that initially the incident occurred between Aamina and convict-appellant Laeek and when convict-appellant Laeek attacked on Aamina with meat chopper, his son reached at the spot to save Aamina, then convict-appellant, Laeek assaulted all the four persons with meat chopper.
54. All the witnesses proved the incident against convict-appellants, Mohd. Umar and Laeek beyond reasonable doubt and the injuries inflicted upon the deceased. The injuries are well corroborated by the statements of doctors who conducted autopsy of the dead bodies of the deceased. The injuries on the person of injured Aamina are also corroborated by medical evidence on record. The evidences of all the witnesses of facts inspire confidence of veracity and truthfulness. There is nothing on record which can create doubt on the evidence of witnesses.
55. Hon'ble Apex Court in the case of Sachchey Lal Tiwari Vs. State of U.P. reported in (SCC, 414-15, para 7), held as under :-
"Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere chance witnesses.
In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
56. Learned counsel for the convict-appellants submitted that learned trial court placed reliance on the statements of the convict-appellants recorded under section 313 Cr.P.C. and based the conviction of the convict-appellants on their own statements.
57. It is a settled principle of law that the statement of an accused under section 313 Cr.P.C. can be used as evidence against the accused, in so far as it supports the case of the prosecution. Equally true is that the statement under section 313 Cr.P.C. simplicitor normally cannot be made the basis for conviction of the accused. But where the statement of the accused under section 313 Cr.P.C. is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced as has been held in the case of (Brajendra Singh Vs. State of M.P. dated 28th February,2012).
58. In the light of this argument, we have perused the statement of the convict-appellant, Mohd. Umar recorded under section 313 Cr.P.C. Initially, convict-appellant, Mohd. Umar denied the allegations levelled against him and stated that he intervened on humanitarian ground to defend the quarrel, but, when he was asked to explain in his defence, he narrated the story in the line of prosecution case. It is also stated that convict-appellant, Laeek continued to stab the deceased and injured. Likewise, convict-appellant, Laeek Ahmad also denied all the prosecution evidences in his statement recorded under section 313 Cr.P.C. and when he was asked to explain in his defence, he narrated the story in the line of the prosecution case. It is further submitted that the dispute in question arose on trivial issue but, when the sons of complainant started beating him and one of the deceased had meat chopper in his hands, he snatched meat chopper and assaulted them in self defence and lost control over himself.
59. It is also pertinent to mention here that the statements of both the convict-appellants under section 313 Cr.P.C. are also reliable on the tune that both the convict-appellants were taken by the Investigating Officer in police custody remand from jail and meat choppers were recovered from the pointing of said convict-appellants from their houses between the roof of latrine and under roofs. Therefore, the reliance on the statements of the convict-appellants under section 313 Cr.P.C. by trial court is in consonance with the provisions of law and the recovery of meat choppers on their pointing out is under section 27 of the Indian Evidence Act. Thus, there is no infirmity in the judgment passed by the trial court and the judgment of the trial court is based on factual and legal aspects of law.
60. The facts of this case lead that convict-appellants terrorized all the residents of the village and continued to stab till the three deceased died at the spot and one, Moinuddin expired when he was being carried to the hospital and injured, Aamina was badly injured on her chest and abdomen. The evidence of prosecution also proves that during this incident, the villagers of the village shut the doors of their houses and the shopkeepers also shut down their shops as they were put to terror by the brutal act of convict-appellants. Therefore, the judgment of the trial court is in conformity with the facts on record and is liable to be upheld.
61. Now, while upholding the conviction of the convict-appellants, we proceed to consider the question of death sentence awarded by trial court under Section 302 IPC to convict-appellant Laeek.
62. Capital punishment has been the subject-matter of great social and judicial discussion and catechism. From whatever point of view it is examined, one undisputed statement of law follows that it is neither possible nor prudent to state any universal formula which apply to all the cases of criminology where capital punishment has been prescribed. Thus, the Court must examine each case on its own facts, in the light of enunciated principles and before option for death penalty, the circumstances of the offender are also required to be taken into consideration along with the circumstances of the crime for the reason that life imprisonment is the rule and death sentence is an exception.
63. Before going into the legality and propriety of question of sentence imposed upon the convict/appellant, it is profitable to look at the various decisions of the Apex court in the matter. The decision in Bachan Singh v. State of Punjab reported in AIR 1980 SC 898 pronounced by the Constitutional Bench of the Hon'ble Apex Court stands first among the class making a detailed discussion after the amendment of Cr.P.C in 1974. In this case, the Apex Court had held that provision of death penalty was an alternative punishment for murder and is not violative of Article 19 of the Constitution of India. Relevant paragraphs of the said judgment are relevant and the same are reproduced herein below:-
"132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the farmers of the Indian Constitution were fully aware-- as we shall presently show they were-- of the existence of death penalty as punishment for murder, under the Indian Penal code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that code providing for presentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302 of the Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19.
200. Drawing upon the penal statutes of the States in U.S.A framed after Furman vs. Georgia, in general, and Clauses 2(a), (b), (c) and (d) of the Indian Penal code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances":
57. Aggravating circumstances: A court may however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed-
(i) while such member or public servant was on duty; or
(ii) in consequent of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973 or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.
201. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not not fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.
204. Dr. Chitaley has suggested these mitigating factors:
"Mitigating circumstances";- in the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the condition 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the conditional of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.
207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of the sentence.
209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderable and an imperfect and undulating society. "Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be blood thirsty. Hanging of murders has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India , show that the past Courts have inflicted the extreme penalty with extreme infrequency- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high-road of legislative police 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 through law's instrumentality. That ought not to be done save the rarest of rare cases when the alternative option is unquestionable foreclosed."
In Machhi Singh v. State of Punjab reported in (1983) 3 SCC 470, the Hon'ble Supreme Court has made an attempt to cull out certain aggravating and mitigating circumstances and it has been held that it was only in ''rarest of rare' cases, when the collective conscience of the community is to shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. In this Judgment the Hon'be Supreme Court has summarized the instances on which death sentence may be imposed, which reads thus:
"38.xxxx
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before option for the death penalty the circumstances of the ''offender' also requires to be taken into consideration along with the circumstances of the ''crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
39. In order to apply these guidelines inter alia the following question may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed herein above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."
(Emphasis supplied)
64. The issue again came up before the Hon'ble Apex Court in Ramnaresh & others v. State of Chhattisgarh reported in (2012) 4 SCC 257, wherein the Hon'ble Supreme Court reiterated 13 aggravating and 7 mitigating circumstances as laid down in the case of Bachan Singh (supra) required to be taken into consideration while applying the doctrine of "rarest of rare" case. Relevant para of the same reads thus:-
"76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh, (supra). The aforesaid judgments, primarily dissect these principles into two different compartments- one being the "aggravating circumstances" while the other being the "mitigating circumstances". The Court would consider the cumulative effect of both these aspect and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to the classes under any of the following beads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354 (3) of Cr.P.C.
Aggravating Circumstances:
(1) The offences relating to the commission of heinous crime like murder, rape, armed dacoity, kidnapping etc. By the accused with prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convicts.
(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 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 Cr.P.C.
(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 with 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:
(1) The manner and circumstances in an 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 behaviour possible and cold 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 pre-ordained manner and the death resulted in the course of commission f 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 eye witness though prosecution has brought home the guilty of the accused."
65. In the matter of Dharam Deo Yadav Vs. State of U.P. reported in (2014) 5 SCC 509, the Hon'ble Supreme Court had held thus:
"36. We may not consider whether the case falls under the category of rarest of the rare case so as to award death sentence for which, as already held, in Shankar Kisanrao Khade vs. State of Maharashtra (2013) 5 SCC 546 this Court laid down three tests, namely, Crime Test, Criminal Test and RR test. So far as the present case is concerned, both the Crime Test and Criminal Test have been satisfied as against the accused. Learned counsel appearing for the accused, however, submitted that he had no previous criminal records and that apart from the circumstantial evidence, there is no eye-witness in the above case, and hence, the manner in which the crime was committed is not in evidence. Consequently, it was pointed out that it would not be possible for this Court to come to the conclusion that the crime was committed in a barbaric manner and, hence the instant case would fall under the category of rarest of rare. We find some force in that contention.
Taking in consideration all aspect of the matter, we are of the view that, due to lack of any evidence with regard to the manner in which the crime was committed, the case will not fall under the category of the rarest of rare case.
Consequently, we are inclined to commute the death sentence to life and award 20 years of rigorous imprisonment, over and above the period already undergone by the accused, without any remission, which, in our view, would meet the ends of justice.
In Kalu Khan v. State of Rajasthan report in (2015) 16 SCC 492, the Hon'ble Supreme Court had held that:-
"30. In Mahesh Dhanaji Shinde v. State of Maharashtra, the conviction of the appellant-accused was upheld keeping in view that the circumstantial evidence pointed only in the direction of their guilt given that the modus operandi of the crime, homicidal death, identity of 9 of 10 victims, last seen theory and other incriminating circumstances were proved.
However, the Court has thought it fit to commute the sentence of death to imprisonment for life considering the age, socioeconomic conditions, custodial behaviour of the appellant-accused persons and that the case was entirely based on circumstantial evidence. This Court has placed reliance on the observations in Sunil Dutt Sharma Vs. State (Govt. Of NCT of Delhi) as follows: (Mahest Dhanaji case SCC p. 314, para 35) "35. In a recent pronouncement in Sunil Dutt Sharma v. State (Govt. Of NCT of Delhi), it has been observed by this Court that the principles of sentencing in our country are fairly well settled- the difficulty is not in identifying such principles but lies in the application thereof. Such application, we may respectfully add, is a matter of judicial expertise and experience where judicial wisdom must search for an answer to the vexed question-whether the option of life sentence is unquestionably foreclosed? The unbiased and trained judicial mind free from all prejudices and notions is the only asset which would guide the Judge to reach the ''truth'."
66. In the light of above proposition of law, we require to scrutinize the case in hands mainly to find out whether this case falls within the category of rarest of rare case and imposition of death penalty would be the only appropriate sentence and imposition of life imprisonment which is a rule would not be adequate to meet out the ends of justice.
67. By awarding death sentence to the convict-appellant, Laeek, learned trial court has mentioned the mitigating circumstances as such that convict-appellant is a young man and is married and having his family liabilities. Convict-appellant, Laeek assaulted the injured and the deceased in his self defence.
68. The following aggravating circumstances are noted in the judgment of the trial court (i) that four members of the same family were murdered with meat choppers and one sustained injuries on her chest and abdomen; (ii) that all three injured persons lost their lives on the spot and the intestines came out of their bodies;(iii) Injured, Aamina is still under treatment and she could lead her normal life after this incident; (iv) the incident occurred by the convict-appellants challenging the law and order and creating terror in whole of the village and after this incident, the lives and business of the villagers remained obstructed for months; (v) the incident in question occurred only on the petty issue of urination by the convict-appellants and the convict-appellants reacted in such a brutal way which deprived of a family from his four members. After evaluating, mitigating and aggravating circumstances, the trial court reached to the conclusion that the convict-appellant, Laeek is liable be hanged till death for this brutal genocide.
69. It is also found by the trial court that convict-appellant, Mohd. Umar by his overt act assisted in the commission of crime, therefore, learned trial court punished the convict-appellant, Mohd. Umar with the imprisonment for life.
70. The convict-appellants committed the crime which is abominable, vicious and ferocious in nature. If the crime is said to be of such a brutal depraved & heinous in nature so as to fall in the category of rarest of rare, accused convicts should be adequately punished for that, but, we have to consider the circumstances of convicts before awarding punishment.
71. There is no evidence to the effect that the convict-appellant, Laeek committed crime with pre-planning or preponderance. The occurrence happened suddenly when the hot exchanges arose due to urination in the lane of the complainant while Aamina was preparing for Wazu. The convict-appellant had no motive or intention to kill anybody at the time of occurrence. However, once he started stabbing, he continued to stab till the death of three persons caused at the spot and one person while he was being carried to the hospital and one person was badly injured. He himself admitted during his statement under section 313 Cr.P.C. that he lost control over himself.
72. We also find ourselves unable to agree with the view of the trial court that the convict-appellant-Laeek is menace to the society that he cannot be allowed to stay alive. On the other hand, we are of the view that the prosecution could not establish that convict-appellant-Laeek is beyond reform. We are also mindful that the convict-appellant-Laeek has no criminal antecedents prior to the commission of this crime, that too, was committed in the spur of moment. Therefore, the circumstances of the crime and criminal do not go to show that instant matter falls into the category of rarest of rare case or that the sentence of life imprisonment awarded to the convict-appellant-Laeek is unquestionably fore-closed.
73. Before proceeding further, it would be pertinent to mention here that life imprisonment is a rule and the death penalty is an exception only when the life imprisonment would be inadequate in proportion to the crime committed and the death penalty is imposed only when alternative life imprisonment is totally inadequate. The instant case does not fall in the category of rarest of rare cases, where life imprisonment would suffice to the ends of justice. Therefore, in totality of facts and circumstances of this case, we find it a fit case to commute the death sentence of the convict-appellant, Laeek into life imprisonment.
74. While affirming the conviction of the convict-appellant-Laeek under Section 302 IPC, we set aside the death penalty of the appellant, Laeek awarded by the trial court and modify his sentence from death penalty to life imprisonment without remission.
75. The Jail Appeal No. 592 of 2021 is partly allowed. In the light of the above discussion, Reference No. 02 of 2021 for confirmation of death penalty is liable to be rejected and is accordingly rejected.
76. So far as conviction of convict-appellant, Mohd. Umar is concerned, he was convicted with convict-appellant, Laeek under sections 302/34,307/34,504 & 506 I.P.C., However, initially he had no prior meeting of mind with co-appellant, Laeek but he assisted with his overt act and played an active role in commission of crime. His role is not less than convict, Laeek. Therefore, the punishment awarded to convict-appellant, Mohd. Umar does not call for any interference by this court. Hence, the Criminal Appeal No. 704 of 2021 filed by convict-appellant, Mohd. Umar is dismissed accordingly.
77. The convict-appellants,Laeek and Mohd. Umar are in jail and shall serve out their sentences as have been awarded by the trial court and modified by this Court respectively.
78. Let a copy of this judgment along with lower court record be transmitted to the trial court forthwith for necessary information and compliance.
(Mrs. Renu Agarwal, J.) (Ramesh Sinha, J.)
Order Date :-19.10.2022
AKS/-