Harikirtan @ Superfast vs State Of U.P. on 14 February, 2014

[Cites 33, Cited by 0]

Allahabad High Court

Harikirtan @ Superfast vs State Of U.P. on 14 February, 2014

(Delivered by Hon'ble A.K. Agarwal, J.) This criminal capital appeal has been preferred on behalf of appellant against the judgment and order dated 7.8.2012, passed by Session Judge, Siddharthnagar in Session Trial No.255 of 2010, whereby the appellant Harikirtan @ Superfast has been convicted under section 302 I.P.C. and sentenced with death and to pay fine of Rs.25,00/- and he is further convicted and sentenced under section 506 I.P.C. with one year rigorous imprisonment and fine of Rs.1000/- and in default to undergo rigorous imprisonment for a period of three months.

Sessions Judge, Siddharth Nagar has also sent a reference No. 5 of 2012 for confirmation of death sentence vide letter dated 13.08.2012.

2. The graveness of charges against the appellant Harikirtan @ Superfast was that on 10.9.2010 in midnight between 11-12 P.M. in Village Netahawa within circle of P.S. Kotwali Bassi, District Siddharthnagar he committed murder of his wife Smt. Taramati by pouring kerosene oil and set her to fire by which she received 100% burn injuries and died. He also gave threat to kill to the complainant Smt. Kausi etc.

3. The prosecution story as unfolded by witness PW-5 Smt. Kausi, mother of deceased Smt. Taramati, in her written report (Exhibit Ka-3) is that she is resident of Village Netahawa, P.S. Kotwali Bassi, District Siddharthnagar. Her daughter Smt. Taramati was married with Harikirtan @ Superfast Kevat, S/o Azorai, R/o Gohanatal (West), P.S. Golhara about 8-9 years ago, who had no son therefore her daughter lived along with her husband in a hut near her (Complainant) hut /house. Her son-in-law Harikirtan @ Superfast had a habit of committing crimes and came out from jail before two or three days earlier. On the previous night at about 11-12 P.M. on hearing the screaming voice of her daughter and daughter's daughter Km. Kalpana she and her another daughter Smt. Subhawati came out from their houses and in apprehension that some untoward event may have happened reached near the hut of her daughter Smt. Taramati and saw that Harikirtan @ Superfast has tied both legs of her daughter Taramati and after pouring kerosene oil had set fire to Taramati who was burnt completely. The tongue of her daughter was protrudant from the mouth from which it appeared that before setting fire her neck was pressed inside the hut. Both tried to save her daughter Taramati but could not save her and she died on the spot due to extensive burn injuries. Harikirtan @ Superfast had given a threat to kill her and her other daughter so that they could not catch him and they kept silent. Some co-villagers also came there on hearing the noise who saw Harikirtan @ Superfast in a running condition after causing the incident. Harikirtan @ Superfast was demanding money from her daughter Smt. Taramati for spending money on his bail and this was the reason for the dispute between both of them. The corpse of her daughter was lying outside the hut / house. She came to the P.S. to inform and to pray for necessary action.

4. Sri K.K. Tripathi scribed the written report (Exhibit Ka-3) on the dictation of complainant Smt. Kausi who lodged the same at police station Kotwali Bassi on 11.9.2010 at 11.30 A.M.. Head Moharrir Sri Ram Laxman Singh prepared the chick report (Exhibit Ka-9) on the basis of the written report at crime no.712 of 2010 under sections 302, 201, 506 I.P.C. and entered the same in the G.D. as Report no.15 dated 11.9.2010 at 11.30 A.M. The case was investigated by Sri Vijai Shanker Singh Yadav who was posted as In-charge Station Officer at P.S. Kotwali Bassi at the relevant time who rushed to the spot along with sub Inspector Sri Shiva Nand and other police personnels. Since it was a burning case of a woman hence S.I. Sri Shiva Nand prepared Inquest Report (Exhibit Ka-2) of the cadaver in the presence of Naib Tehsildar Sri Ram Morya and S.H.O. Vijay Shanker Singh Yadav and also prepared the photo lash, challan lash, police form no.13, letter to R.I. and C.M.O. for conducting post-mortem etc. (Exhibit Ka-5 to 8). The dead body of Taramati was sealed on the spot and sent to mortuary for conducing the post-mortem examination through Constable 565 Ram Saran Marhi Tripathi and 578 Pramod Kumar Siddharth. S.H.O. Sri Vijai Shanker Yadav inspected the place of incident and prepared site plan (Ext.-Ka-11) and took ashes from the burning place and recovered a jerry can with kerosene oil from inside the hut of Smt. Taramati and prepared a recovery memo (Exhibit Ka-1). He interrogated about the incident and recorded the statements of relevant witnesses. After completing investigation, he submitted charge sheet (Exhibit Ka-12) against the accused appellant under sections 302, 201, 506 I.P.C.

5. Autopsy on the dead body of the deceased Smt. Taramati was performed on 11.9.2010 at about 4.45 P.M. by Dr. Rajesh Mohan Gupta, Medical Officer of District Hospital Siddharthnagar and prepared the post-mortem report (Ext-Ka-4). In the estimation of the doctor the deceased was medium size body built, Rigor Mortis was present over upper and lower limbs of hands and legs, eyes were closed, mouth was half open and tongue was coming out from mouth. Body was whole burnt and hair was grazing. Body burn was 100%.

6. On internal examination the brain membrane was congested, flame burn particles were present in wind pipe vessels in dry condition, both lungs were swollen, venticles of heart were filled with some blood, muscles of stomach were swollen, teeth were 16/16, about 400 gms. undigested food was present in stomach, liquid materials was present in small intestine and faecal matters were present in large intestine, liver spleen urinary tract were congested, fallopian tube (ovary) was empty.

7. In the opinion of Dr. Gupta the deceased Smt. Taramati died due to extensive burn injuries and the death was caused within four hours of taking food.

8. After submission of charge sheet case of the appellant was committed to the court of session and was numbered as S.T. No. 255 of 2010.

9. The learned Session Judge, Siddharthnagar had framed the charges against appellant Harikirtan @ Superfast on 7.1.2011 under section 302, 201, 506 I.P.C.. Since the appellant abjured the charges, therefore, the trial proceeded against them.

10. The prosecution in support of its case examined nine witnesses in all and out of them PW-1 Smt. Subhawati (sister of deceased), PW-2 Km. Kalpana (daughter of deceased), PW-5 Smt. Kausi (mother of deceased and complainant), PW-7 Raghav Nath (hostile witness) are the eyewitnesses of fact. Other formal witness PW-3 Sri K.K. Tripathi as witness who scribed the FIR and witness of recovery memo and inquest report. PW-4 Dr. Rajesh Mohan Gupta who conducted the post mortem examination, PW-6 Sri Ram Morya (Naib Tehsildar) in whose presence inquest papers were prepared, PW-8 H.C.Ram Luxman Singh who scribed the chick FIR and G.D. and PW-9 Sri Vijai Shekhar Singh Yadav, Investigating Officer, who investigated the case.

The prosecution had filed and proved the following documents:-

(1) Fard recovery of ash and Jerry can with kerosene oil Ext.Ka-, (2) Inquest report Ext.Ka-2, (3) Written report Ext.Ka-3, (4) Post mortem report Ext.Ka-4, (5) Photo lash Ext.Ka-5, (6) Police Form 13 Ext.Ka-6, (7) Application to R.I. Ext.Ka-7, (8) Application to C.M.O. Ext.Ka-8, (9) Chick FIR Ext.Ka-9, (10) G.D. Ext. Ka-10, (11) Site Plan Ext.Ka-11, and (12) Charge Sheet Ext.Ka-12.

11. The appellant was examined under section 313 Cr.P.C. on 27.4.2012. In his statement the accused appellant denied the incriminating circumstances put to him which were appearing against him in the prosecution evidence and took a defence of false implication in this case by his sister's-in-law (Sali) and her husband in connection of the property of her mother-in-law. He did not produce any evidence in defence.

12. Learned trial court after looking into the prosecution evidence, both oral and documentary, and after submitting and vetting the facts and circumstances of the case arrived at the conclusion that the prosecution had successfully anointed appellant guilty for committing murder of Smt. Taramati and giving threat to kill the complainant etc. and therefore convicted the appellant for the crime under section 302 I.P.C. with sentence to death with fine of Rs.2500/- and also convicted under section 506 I.P.C. and sentenced to undergo one year rigorous imprisonment and pay fine of Rs.1000/- with default to under go rigorous imprisonment for a period of three months.

13. Feeling aggrieved by the impugned judgment and order of the learned Sessions Judge, the appellant Harikirtan @ Superfast has preferred the present appeal which has been placed before us for disposal.

14. Heard Mr. Kamal Krishna, Senior Advocate, assisted by Mr. B.P. Mishra, amicus curiae for the accused-appellant and Mr. Akhilesh Singh, Government Advocate, assisted by Mr. Anand Tiwari, learned AGA on behalf of the State.

15. Learned counsel for the appellant has assailed the conviction of appellant mainly on the following grounds:-

1.The prosecution version was improbable and unworthy of credence.

2.That all the witness of fact examined by the prosecution were related and interested to the deceased Smt. Taramati and their very presence at the spot and seen the incident were highly doubtful.

3.Witness PW-2 Km. Kalpana is the child witness who was not competent to give evidence. Lower court has ignored the test for judging the competency of child witness before recording her statement and she is a tutored witness, therefore, her evidence was unreliable to convict the accused person.

4.That the first information report was too much delayed and no satisfactory explanation for delay has been given, therefore, prosecution case is unbelievable.

5.That the deceased was doing business of making mahua liquor and she burned himself during making liquor and a false report has been lodged against the appellant due to deprival from the property inherited from mother-in-law.

6.The case of prosecution does not comes within the category of rarest of rare cases and sentence passed was too much severe.

16. Per contra, learned AGA supported the conviction of appellant and contended that there is no infirmity in the order passed by the trial court of convicting the accused appellant. The eyewitness had narrated the entire prosecution story in a natural manner and their huts/houses are situated near the place of occurrence, hence the presence of witnesses are natural and probable on spot as stated by witnesses and they have full opportunity to see the incident. Mere relationship of prosecution witnesses with the deceased is no ground for not acting upon the testimony if it is otherwise reliable and without any infirmity. The close relatives of deceased are most reluctant to spare the real assailant and falsely implicate some other person in place of real assailant. The witnesses had no previous enmity with the appellant and no infirmity in their testimony. The I.O. has collected ashes of the deceased from spot and one gallon of kerosene oil from the hut of appellant which also support the prosecution version. Trial court recorded the statement of child witness after observing that she is competent to speak about the incident and she is natural witness who is present at the relevant time of incident along with the mother (deceased) and appellant. The testimony of child witness is not to be discarded. Mere delay in lodging FIR is not fatal if the eyewitness account are reliable. The prosecution has fully proved its case beyond the shadow of doubt and the present case comes within the purview of rarest of rare case as the appellant had committed murder of his wife by pouring kerosene oil and setting fire on her and before burning the appellant also tied legs and hand of deceased, therefore, he is not entitled to any sympathetic consideration in reducing the death sentence and the appeal is liable to be dismissed.

17. In order to appreciate the aforesaid rival contentions of learned counsel for the parties we have to independently scrutinize the oral and documentary evidences brought on record by the prosecution.

18. The factum of homicidal death of Smt. Taramati on account of ante mortem burned injuries, which were found during post mortem examination has neither been disputed nor challenged. It is also evident from the statement of Dr. Rajesh Mohan Gupta (PW-4) who conducted autopsy (Ext.-Ka-4) on the dead body of Smt. Taramati found 100% burn injuries on whole body with grazy hair. On internal examination, he further found that flame burn particles were present in wind pipe vessel, which was in dry condition. He opined that cause of death of deceased was due to extensive burn injuries in living position. In cross examination by defence, he further clarified that the presence of flame particle in wind pipe is only possible when she is in alive condition which indicates that she was not burned after death. The evidence of other eye witness PW-1 Subhawati, PW-2 Km. Kalpna and PW-5 Smt. Kausi also stated that they had seen Taramati in burn condition on spot before her death. PW-6 Sri Ram Morya, Naib Tehsildar of Bassi Tehsil also stated in his deposition that on 11.09.2010 he reached on spot and found the dead body of deceased Taramati was 100% burned. Other papers Panchayatnama (Ext.Ka-2) and Challan Lash (Ext. Ka-6) and Photolash (Ext. Ka-5) also reveals that the dead body of deceased Taramati was in a burnt condition. Therefore, it is clear from the above evidence that deceased Taramati died due to extensive burn injuries and it was a homicidal death.

19. So far as the date, time and place of occurrence are concerned, the defence has not seriously challenged the same. From the perusal of eyewitness accounts of PW-1, PW-2 and PW-5 it is clear that the incident took place out side the hut of the deceased Taramati in Village Netahawa near Mango tree and Government Hand Pump. The Investigating Officer PW-9 Sri Vijai Shanker Singh Yadav found the dead body of Taramati lying in a burnt condition beneath the Mango tree and near the Government Hand Pump. He also collected some ashes from the same place and prepared Fard (recovery memo) (Ext.Ka-1), which was not challenged by the defence. Witness Sri Ram Maurya, Naib Tehsildar Baassi, PW-6 also visited at Nathewa village on 11.09.2010 and saw the place of occurrence and found the dead body of deceased Taramati was 100% burnt and was present in front of the deceased's hut in her Maika, which also support the place of occurrence was on the front side of the deceased and Smt. Kausi's hut. In site plan in Ext. Ka-11 investigating officer shows the place of occurrence as X-word, which was situated on the northern front side of deceased's hut shown with 'A' word. Defence appellant tried to show place of occurrence was some other place mere on the basis of the statement of Smt. Kausi (PW-5) who admitted in cross examination that Imli Tree which was situating on the back of the deceased's hut was burned. We are unable to understand it from defence version. No burnt material was found near the Imli Tree and back of the hut. No eyewitnesses admitted that the deceased was burned near the Imli Tree nor any cross examination or suggestion of the defence in this regard had been given to the witness in this regard. We are satisfied that date, time and place of occurrence are same as stated by the prosecution.

20. The prosecution case emerged from the written report dated 11.09.2010 (Exhibit Ka-3) that due to some altercation between deceased Smt. Taramati and accused appellant Harikirtan during day time regarding demanding money which was spent in releasing from jail, at about 10.30-11.00 P.M. in the night the appellant Harikirtan alias Superfast poured kerosene oil on Taramati and set her on fire due to which she got burnt and died due to extensive burn injuries. Km. Kalpana is the witness of the alleged incident who was present there and on raising alarms other witnesses PW-5 Smt. Kausi (maternal grand mother) and PW-1 Smt. Subhawati came there and saw the incident. The case of defence appellant is of denial and he has stated that he was falsely implicated in this case in order to deprive him of the inheritance of the assets of his mother-in-law. In order to prove its case the prosecution has examined four eyewitness coupled with a motive for committing the murder of Taramati. PW-1 Smt. Subhawati, PW-2 Kalpana, 6 years old child witness, PW-5 Smt. Kausi and last independent eyewitness PW-6 Roghu Nath Pd. who resided in the same locality where the alleged incident was happened. This witness PW-7 did not support the prosecutions story hence he was declared hostile by prosecution. He stated that Smt. Taramati was daughter of Bhikhi Kavat who lived with her husband in his village. He did not see how she had died nor he went there. Police had not recorded his statement. In cross examination this witness stated that his house was situated far at a distance of 15-16 paces from the house of Bhikhi Kumar and he put his signature on Panchayatnama along with other persons, but in cross examination by defence counsel he stated that he went to the place of incident on the next day in the morning and his signature were obtained by Darogaji on blank paper of Panchayatnama. He gave this assertion totally against the evidence of PW-3 Sri K.K. Tripathi who is also one of the witness of Panchayatnama (Exhibit Ka-2) and stated that he signed Panchayatnama (Exhibit Ka-2) on the spot. The alleged circumstances clearly shows that this witness PW-3 was won over by the defence side and for helping the defence he disowned the eyewitness account. Therefore, the evidence of this independent witness PW-7 is not helpful for the prosecution and the fate of the prosecution rests upon the testimonies of the other three eyewitnesses.

21. In this case in order to prove the manner of assault and complicity in the crime by the accused appellant beyond shadow of doubt, the prosecution had produced three eyewitnesses namely PW1 Subhawati, PW2 Kalpana and PW5 Smt. Kausi, who claim to be eyewitnesses of the occurrence. Smt. Kausi PW-5 is the informant and mother of the deceased Taramati as well as mother-in-law of the accused appellant Harikirtan @ Superfast. She is a natural and probable witness of the occurrence and has given a consistent and convincing reason about her presence at the spot. She deposed in her statement that her hut was situated near the hut of her deceased daughter Smt. Taramati, which is at a distance of about 10 paces towards the west direction. At the time of incident she was present in her hut at village Nethawa and in the night between 10.30 to 11.00 P.M. She heard the voice of her Natin (daughter's daughter) Km. Kalpana and reached near the place of occurrence where Km. Kalpana was present and saw that her son-in-law Harikirtan @ Superfast had pulled her daughter Smt. Taramati from the hut and tied her legs and thereafter poured kerosene oil and set fire on her daughter, due to which her daughter was completely burnt and died on the spot beneath the mango tree and near the government hand pump, which was at a distance of about 25-30 paces in the north direction from her deceased daughter's hut. At the time of death her other daughter Smt. Subhawati also reached there shouting from her hut and some co-villagers also came there, who saw the incident. On the next morning at about 10-11 A.M. she got scribed a report Ext. Ka 3 of this incident from Sri K. K. Tripathi and lodged it at Police Station Kotwali Bassi, District Siddharth Nagar.

22. This witness has given cogent and convincing reasons for her presence on the spot when the occurrence took place, which shows that she is a probable and natural witness of the occurrence. In the first information report Ext. Ka 3, this witness has stated that she is an eyewitness of the incident and has narrated the same incident, date, time and place of occurrence, name of accused persons and the manner in which the death of the deceased was caused. All these facts also supported the statement of this witness, which she deposed in the court. The other witnesses PW1 Subhawati and PW2 Kalpana also supported the presence of this witness on the spot, which corroborated the presence of this witness and supported the statement of this witness. All these support to made the witness most natural and probable witness on the spot.

23. I.O. PW9 Vijay Shanker Singh visited the place of occurrence after lodging the report on 11.9.2010 and prepared site plan ext. Ka 11 at the instance of the witnesses and found the corpse of the deceased Smt. Taramati beneath the mango tree and near the government hand pump at Village Nathawa, which was situate at a distance of 25-30 paces from the hut of deceased Taramati. S.I. Shivanand Yadav had prepared Panchnama of the deceased Taramati (ext. Ka2) in the presence of Sri Ram Maurya, Naib Tehsildar Bassi, on the same day in which it was mentioned that the body of the deceased was found burnt and was lying on the place beneath mango tree and near the government hand pump at village Nathawa. The I.O. PW9 Vijay Shanker Singh also collected sample of ashes of the deceased on the same place and one gallon of kerosene oil from the hut of the deceased and prepared a joint recovery memo Ext. 1. The above recoveries were not challenged by the defence- appellant. In the site plan (Ext. Ka-11) the I.O. has described the place 'X', the place of occurrence where the deceased was burnt by the appellant, which is beneath the mango tree and near the government hand pump at village Natwa, which also corroborates the testimonies of the eyewitnesses and also fixes the place of occurrence, and it was not seriously challenged by the defence nor any cross examination was done in this direction. The defence has also not suggested and put to this witness regarding her non-presence on the spot. The only suggestion, which has been given to this witness is that she had falsely implicated the appellant due to some conspiracy and at the instance of Smt. Subhawati and her husband, which was denied by this witness. On careful examination, we find that she is the most natural and probable eye witness of the occurrence and she has given a vivid description of the entire sequence of events, which fully support the presence of this witness at the time and place of the occurrence. The defence has not been able to point out any contradiction in her deposition during the cross examination, therefore, her evidences are reliable and trustworthy.

24. PW2 Kalpana is another eyewitness, who has fully supported the testimony of PW5 Smt. Kausi. She is the six years old child and star witness of the occurrence as she is daughter of the deceased Taramati as well as the accused appellant Harikirtan @ Superfast. The trial court had recorded her statement after testifying and putting questions about meaning of 'God' and 'oath' and was fully satisfied from the answer given by her and gave an observation that this witness fully understand the meaning of both words 'God' and 'oath' and was competent to depose in the court. She stated in her statement that her father killed her mother. Firstly, he tied the hands and legs of her mother and then poured kerosene oil and set her on fire due to which she was completely burnt and died. The above incident had happened in the night and at that time one lamp was burning in the house. On hearing her noise her Mausi (mother's sister) and her Nani (maternal grandmother) and co-villagers came there and her father ran away. Her mother died due to burn injury. This witness was cross examined by the defence at length and nothing could be elicited, which could discard her evidence. In cross-examination only few variations came such as in the examination in chief she stated that her father set fire by sticks of matches but in cross examination she stated that he set fire by kerosene lamp. In chief she stated that her Mausi, Nani and villagers came, then her father ran away and in cross-examination at one place she stated that her father ran away when her Mausi and Nani came. In cross examination she did not tell what was the time when the incident took place and how many days before her father came but she admitted that on the incident day she and her mother were present in the house. After taking meals both of them slept on a cot. We think that not mentioning the correct time of incident and some above mentioned variations, does not affect the veracity of this witness or create doubt about her presence at the relevant time and place of occurrence, which shows that she is the most probable and not a tutored witness. Presence of this witness at the spot was not challenged by the defence appellant. The only suggestion put to this witness was that she had given above statement due to being tutored by her Mausi and Nani against her father, which she denied. This witness has clearly stated the presence of PW5 Smt. Kausi and PW1 Smt. Subhawati, who reached on the spot place on her voice. Her evidence cannot be rejected on this mere ground that she is a child witness or a tutored witness as the trial court had testified and after being satisfied that she is competent and understand the meaning of the words asked and observed that she is competent to depose the statement in the court. She is the most natural and probable witness and her statement is trustworthy.

25. PW-1 Smt. Subhawati is another eyewitness, who also supported the presence of PW-5 Smt. Kausi and PW-2 Km. Kalpana on the spot. She is sister of the deceased, who stated that she lived in a separate hut from the deceased Taramati at a distance of one bigha and on incident day at 10.30 PM in night she was present in her hut along with her husband and woke up on hearing the voice of Km. Kalpana and reached on place of occurrence and saw that her sister Smt. Taramati was burning and her legs and hands were tied up. She further stated that Km. Kalpana told her that her father (Harikirtan) had pressed neck of her mother (deceased) and after pouring kerosene oil set fire on her mother and killed her. On spot her mother Smt. Kausi and other co-villagers had also came there. Harikirtan had given threat to kill her if she will come near him. The above incident had happened near Mango tree and Government Hand Pump. In cross examination she stated that she and her husband reached on spot within 10 minutes and when she reached there then Harikirtan ran towards north side, who was wearing only Chaddhi but subsequently she said that she did not see Harikirtan wearing Chaddhi. Co-villagers had seen him in such a position. From the above statement it is clear that she is not an eye witness of incident, but she reached on the spot at very moment of incident. She reached on spot and saw that her sister Taramati was burning by fire near Government Hand Pump and beneath the Mango tree. From the evidence of this witness it is only corroborated that Smt. Kausi, her mother and Km. Kalpana were present on spot when she reached there and her sister Taramati was burning by fire under the Mango tree and near the Government Hand Pump.

26. From the perusal of statement of this witness it is clear that she is not a witness of eye account of incident and reached on spot subsequently after the incident and saw the presence of witness PW-2 & PW-5 and saw that her sister was there in a burning condition beneath the Mango tree and near Government Hand Pump.

27. Although the above three witnesses who supported the prosecution case are related to each other as well as the deceased, but their testimonies cannot be rejected only on the mere ground of relationship. A relationship by itself is not sufficient to discard the evidence of a witness unworthy of credit in the absence of other circumstances to detract from evidentiary value of her testimony. If his/her testimony is supported by oral evidence and other circumstance and has no ill will or hostility against the accused, the evidence of such witness can be believed. In a catena of decisions the apex court held that mere relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against the innocent person. Foundation has to be laid down if the plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. It is also further held by the apex court that mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.

28. The learned counsel for the appellant submits that the alleged eyewitnesses are closely related with each other and also with the deceased. Only one independent witness was examined, who has not supported the prosecution case, while the prosecution has chosen not to examine any other independent witness despite number of co-villagers came there as stated by the witnesses and that itself create a doubt in the version of the prosecution. Therefore, their evidence are not reliable for conviction of appellant.

29. We are not impressed by the argument of learned counsel for the appellant. No doubt the witnesses who supported the prosecution case are related to each other as well as the deceased, but it has been now established from a long catena of decisions of the apex court that mere relationship of the prosecution witnesses to the murdered person is no ground for not acting upon their testimony, if it is reliable and the close relative of murdered person are most reluctant to spare the real assailant and falsely involve another person in place of the assailant. (State of U.P. Vs. Sarman Das 1972 SCC Crl. 275).

30. The court in case of Dharnidhar v. State of Uttar Pradesh (2010) 7 SCC 759 took the following view:-

"There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case."

In Dayal Singh & Ors. vs State Of Uttaranchal AIR 2012 SC 3046 the apex court at para 10 has held as under:_ "This Court has repeatedly held that an eye-witness version cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness."

In Dhari Vs. State of U.P. 2013 AIR (SC) 311 at para 9 the apex court observed that "It is settled legal proposition that the evidence of closely related witness is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it, regarding the convict / accused in a given case. In case the evidence has a ring of truth to it cogent, credible and trustworthy it can and certainly should be relied upon."

31. From the above observation of case laws now it is settled law that the witnesses who were either interested or related to each other or with the deceased is not itself a ground to reject their testimony. It has to be closely scrutinised with care and caution and on close scrutiny if their evidence was found cogent, credible and not embellished it can be accepted for conviction. In the present case after careful scrutiny of witnesses PW-1, PW-2 and PW-5 we find that there is no doubt that they are related to each other as well as the deceased, but their evidence cannot be discarded on the ground of relationship alone, as they appeared to be honest and truthful witnesses and their testimony has not been impaired in the cross-examination. We have already referred to the lengthy cross-examination of the eyewitnesses and nothing has come out to impair their credibility. We have also observed that among three eyewitnesses there is no reason to either disbelieve their version or their presence at the place of occurrence. The defence / appellant has not put any question or given suggestion to this effect that they were not present on spot and have not seen the incident. Only suggestion is that they have falsely implicated the accused on some conspiracy to deprive him from the property of his mother-in-law, which is not supported by any evidence. PW-2 Kalpana is daughter of the accused as well as the deceased. She is the most probable and natural witness. She was present on incident day in her hut and saw the incident. On an alarm being raised by PW-2 Kalpana, other witness PW-5 Smt. Kausi, who lived 5 paces far from the hut of the deceased came there and saw the incident. The other witness PW-1 has also came on the spot and saw the deceased in burning condition. There is no reason to either disbelieve their version or their presence at the place of occurrence. The evidence of above eyewitnesses also indicate that besides them there are also some other co-villagers, who were not examined, but it is normally seen that the witnesses from public are more reluctant and avoid to appear and depose before the court, therefore, on this ground testimony of above close witnesses cannot be discarded. We find that the lower court was justified on relying upon he evidence of above eyewitnesses. In view of the above, the argument advanced by learned counsel for the appellant does not merit consideration.

32. The prosecution case is corroborated not only from the testimony of above eyewitnesses i.e. PW-1, PW-2 and PW-5, but also from the medical evidence. Dr. Rajesh Mohan Gupta, Medical Officer, District Hospital Siddharthnagar PW-4 opined in his report dated 11.09.2010 (Ext. Ka-4) that on 11.09.2010 at 4.45 P.M. during post mortem he found 100% burn injuries on whole part of the body of deceased and she died due to extensive burn injuries. This is also the case of the prosecution that accused person Harikirtan was pouring kerosene oil on the body of deceased and set fire on her due to which she died due to burn injuries. In this way medical evidence finds corroboration from the ocular version adduced by the prosecution. No question has been put by defence in cross examination that whether smell of kerosene oil was present on the dead body at the time of conducting post mortem or not. Doctor had not given any evidence on this point. Here this point is unchallenged.

33. In this case it appears from the record that the incident is alleged to have taken place on 10.09.2010 in between 10.30 -11.00 PM in night, while the first information report was lodged at Police Station Kotwali Baasi on next day i.e. on 11.09.2010 at 11.30 AM. The distance of the police station from the place of occurrence appears to be 16 Kms. As mentioned in the chick report, it appears that the FIR of this case had been lodged after 12 hours from the time of incident and there was some delay, but mere delay in lodging the FIR is not fatal.

34. The next submission of amicus curiae for the appellant's side is that the prosecution version deserved to be thrown overboard in as much there is too much delay in lodging the FIR and no satisfactory explanation for delay forth coming from the side of prosecution of such delay which indicate the prosecution case is unreliable and embellishment of false implication of appellant.

35. On close scrutiny of evidence of eyewitnesses as well as factual scenario of the case, we are not impressed with the submission of appellant's counsel. In Jitender Kumar vs State Of Haryana and Others 2012 (78) ACC 70, the apex court referred the case laws of Yakub Ismailbhai Patel vs State Of Gujarat (2004) 12 SCC 229 and Shub Shanti Services v Manjula S. Agrawal and others (2000) 5 SCC 30 at para 30 and observed that it is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in given circumstances of a case, delay in lodging the FIR can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The court has to seek an explanation for delay and check the truthfulness of the version put toward. If the court is satisfied then the case of the prosecution cannot fail on this ground alone.

In Chunni Lal Vs. State of U.P. 2010 (70) ACC 583, the apex court at para 18 observed that the delay which was caused due to reasonable factual situation cannot destroy the prosecution case nor creates any suspicion with regard to the prosecution case.

In Amar Singh vs Balwinder Singh & Ors 2003 (46) ACC 619, the apex court held that "There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR."

In Kanhaiya Lal And Ors. vs State Of Rajasthan 2013 (81) ACC 940, the apex court at para 12 observed that "It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory."

36. From the above case laws, it is clear that delay in lodging the FIR does not itself fatal the prosecution case. To explain the delay there might be direct or circumstances appearing on record may provide reasonable explanation. Providing medical aid to injured, element of fear and threats, distance of police station, conveyance available are factors having bearing on question of delay.

37. On examining the factual scenario of the present case and on a careful perusal of the material on record, we find that the occurrence had taken place in night in between 9.30 to 10.00 PM and FIR of this case was lodged on next day i.e. 11.09.2010 at 11.30 AM. at the police station Baasi, District Siddharthnagar, which was at a distance of 16 Km. from the occurrence place. Availability of any conveyance in such night time was not possible. Most of the relatives of deceased were ladies. The accused also ran away from spot. The evidence of eyewitnesses are consistent and no reason of false implication had come in the evidence. The circumstances indicate satisfactory delay and there is no embellishment in the prosecution version on account of such delay. Thus, we do not see any cogent reason to take a view contrary to the view taken by the court below. The criticism of appellant has no merit.

38. The next submission of learned counsel on behalf of the accused appellant is that the supporting prosecution witnesses were very nearly related with the deceased, but none of them made any attempt to save the deceased from burning and catching of the accused person, therefore, their presence on spot has become doubtful in the facts and circumstances of the case and reliance cannot be placed on the testimonies of such witnesses for conviction.

39. We are not much impressed from the argument of appellant's side. The apex court while dealing with the behaviour of a witness has opined in Ram Pratap and others Vs. State of Haryana (1983) 3 SCC 327 "Every person who is witness of a murder reacts in his own way. Some are stunned who become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to rescue of the victim, ever going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

In State of H.P. Vs. Mast Ram 2004 (50) ACC 599 the apex court has stated that there is no set rule that one must react in a particular way. For the natural reaction of man is unpredictable. Every one reacts in his own way and hence natural human behaviour is difficult to prove any credible evidence. It has to be appreciated in the content of given facts and circumstances of the case."

In Shivasharenappa Vs. State of Karnataka 2013 (82) ACC 30(SC) the apex court at para 20 observed "The behaviour of a witness or their relation would differ from situation to situation and individual to individual. Expectation of uniformity in the reaction of witnesses would be unrealistic, but the court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction whether in the circumstances of the case the behaviour is acceptable natural allowing the variation. If the behaviour is absolutely the testimony of the witness may not deserve credence and acceptable."

40. In the present case, witness PW-1 Smt. Subhawati stated that when she reached on spot accused Harikirtan threatened to her that if anybody came near him then he will kill him. The other witness PW-5 Smt. Kausi stated in her cross examination that when she reached on the spot her daughter Taramati was burning due to which she could not save her life. The other witness is PW-2 Km. Kalpana, who was 6 years of age at the time of incident and could not be expected to react to saving her mother from burning. From the above circumstances it cannot be said that the conduct of these witnesses were unnatural and their presence on spot are doubted. Therefore, the submission of appellant has no merit for sentence.

41. Next submission of learned amicus curiae for appellant's side is about the admissibility of testimony of child witness Km. Kalpana (PW-2). It is contended that Km. Kalpana (PW-2) was of tender age and was not capable of giving evidence in the Court. She gave statement on a tutored basis. The court below has not acted in proper way in testing her intelligence before recording her statement. Several embellishments and improvements were present, which suggested that her testimony is unbelievable and cannot relied upon.

42. We have considered the rival submission made by learned counsel for the parties and perused the record.

In Rameshwar Vs. State of Rajasthan 1952 AIR (SC) 54 the apex court examined the provision of section 5 of the Indian Oaths Act, 1873 and section 118 of the Evidence Act, 1872 and held that every witness is competent unless the Court considers he is pre- vented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise.......

The court further held as under:-

......It is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think be gathered from the circumstances when there is no formal certificate............

In Nivrutti Pandurang Kokate & Ors vs State Of Maharashtra AIR 2008 SC 1460 the apex court dealing with the child witness has observed as under:-

"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

In K. Venkateshwarlu vs State Of A.P. 2012 AIR SC 2955 the apex court at para 9 observed that the evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.

43. Now we test the present factual scenario on touch stone of aforesaid principle and find that no doubt witness Km. Kalpana (PW-2) was of five years tender age at the time of incident, but on perusal of record it reveals that the court below had recorded her statement after testifying her ability of understanding and competency of giving evidence by putting question of true meaning of oath and where God lives and on considering rational correct answer of both questions recorded satisfaction that she is competent to dispose in court. Her statement did not reveal that she depose in court on a tutored basis. The appellant had cross examined at length this witness, but has not been able to dislodge the testimony of this witness in any way. She is a natural and probable witness of incident as she is daughter of deceased and accused both and present on incident day in the hut where the deceased and accused person usually resided. The evidence of PW-2 reveals that on incident night she and her mother (deceased) after taking meal slept in hut and in the night when she saw her father's activity of ghastly acts towards her mother then she cried on which her Nani (maternal grand mother PW-5) and Mausi (mother's sister PW-1) reached on spot and saw the incident. Her statement that her father poured kerosene oil on her mother and burned her by lamp is corroborated from the testimony of witness PW-5 and PW-1 who saw this witness on spot as well as supported from medical evidence. In cross examination the witness stated that at present she lived with her Nani and Mausi and both are not beating her. She categorically denied the appellant's suggestion that she had given evidence against appellant for providing punishment on tutoring by Mausi. No other evidence supports appellant in this regard, therefore, appellant failed to suggest about the tutoring statement. So far as improvements and embellishments in statement are concerned, two variations were told, one is that she stated in her deposition that her mother was burned by her father by 'matches' and in cross examination she told that she was burned by lamp, the other variation is this that she told in her deposition that when her Mausi and Nani came on spot then her father ran away but in cross examination she stated that her father ran away when her Mausi and Nani came there. We think that the above variations are natural and does not affect the credibility of witness. The above variations show that she has not given a tutored statement. The appellant further stated that she did not tell about the time of incident and which time before her father came in hut, which creates doubt about seeing the incident. We are not impressed about such criticism, reason is that she stated in her deposition that she and her mother after eating meal slept in the night and when she saw the ghastly activity of her father and raised alarm her Mausi and Nani came there. Under these circumstances, it is difficult to know which time her father came in hut and the time of incident are not probable to told this child witness, therefore, the testimony of above witness cannot be denied merely on this ground. We have no hesitation to accept the evidence of witness PW-2 and we are of the opinion that trial court had not committed any error in accepting the testimony of this witness. The criticism of appellant has no merit.

44. Further the prosecution has also proved motive for commission of crime on the part of the accused person. It is mentioned in the FIR by informant Smt. Kausi that her son-in-law Harikirtan alias Superfast had bad antecedent and he came out from jail before 2-3 days earlier of the incident. He demanded money from her daughter Smt. Taramati for the purpose of releasing himself from jail and due to this reason some altercation took place between both of them. In evidence PW-5 Smt. Kausi deposed that Taramati's husband has come out from jail three days earlier of the incident and her daughter Taramati told her husband that he has usually done some crime and went to jail, he should improve himself as much amount has been spent in this regard. On this ground an altercation took place between both of them. On this ground, the alleged incident had happened. Although, mother of the deceased Smt. Kausi has not proved the real version of motive as alleged in the FIR, but gist of the evidence clearly shows that the motive for committing the murder is same version, as stated in the FIR.

45. The appellant's counsel submits that the prosecution evidence regarding motive is unreliable, inaccurate and it varied from FIR version. There was absolutely no motive for committing the crime to eliminate the deceased and he is falsely implicated in this case due to sole ground for depriving him share in the property of his mother-in-law, therefore, the prosecution case weaken for conviction.

46. We are not impressed by the submission of appellant's counsel regarding motive. In Rajesh Govind Jagesha vs State Of Maharashtra AIR 2000 SC 160 the apex court observed that motive in criminal cases based solely on a positive, clear, cogent and reliable ocular testimony of witness is not at all relevant. In such a fact situation, the mere absence of a strong motive to commit the crime cannot be of any assistance to the accused. The motive behind a crime is relevant fact regarding which evidence may be led. The absence of motive is also a circumstance which may be relevant for assessing the evidence.

In Thaman Kumar vs State Of Union Territory Of Chandigarh 2003 (47) ACC 7 (SC) are also relevant:-

"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence a finding of guilty can safely be recorded even if the motive for the commission of the crime has not been proved."

In Shanker Singh Vs. State of Jharkhand 2011 (74) ACC (SC) 159 the apex court held that in each and every case it is not possible for the prosecution to establish the exact motive of commission of crime. Beside it the motive of commission of offence loses its impotence when the case is based on direct evidence against the accused and hence motive to commit offence has lost its importance. The prosecution case cannot be disbelieved merely on the ground that exact motive of commission of offence has not been fully established by reliable evidence.

In Darbara Singh vs State Of Punjab 2012 (79) ACC 160 (SC), the apex court at para 9 observed that it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance.......... In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstances, can motive take the place of the direct evidence available as proof, and in a case like this, proof of motive is not relevant at all.

47. From the above, it is clear that the proved motive may be a considerable circumstance which is relevant for assessing the evidence, but the same has not weaken the prosecution case even if the motive is not very strong or absent. Now it is settled legal position that existence or otherwise of a motive plays a significant role in cases based on circumstantial evidence, but the cases based on direct eye witness account of incident then proof or absence of proof and inadequate proof of motive is not much significant consequence. If the evidence of eyewitness are cogent, consistent and credible then motive plays an insignificant role. The present case is based on direct evidence and the evidence of eyewitness PW-1, PW-2 and PW-5 found credible, cogent and convincing one, therefore, proof or inadequate proof of motive has not of much consequence and the case is not weakened on this ground. The reason of false implication is also not proved by any evidence or circumstance. In view of the above, the argument advanced by learned counsel for the appellant on inadequate or not duly proved does not merit consideration.

48. Next submission of learned amicus curiae for appellant's side is that the deceased Taramati had done the business of preparation of Mahua liquor and she burnt himself during preparing liquor and the appellant was falsely implicated in this case. In strength of the submission he referred the statement of witness PW-1 Smt. Subhawati, who stated that Taramati had done the work of making wine for her livelihood in her Maika and witness PW-5 Smt. Kausi admitted in her cross-examination that both Mango and Imli trees were burned. He further stated that no smell of kerosene oil was found on the dead body of Taramati, therefore, the deceased was burnt herself during preparing liquor and not by act of appellant and conviction and sentence is liable to be set aside.

49. On the contrary, learned AGA refuted the argument of appellant's side and stated that the witness PW-1 Smt. Subhawati simply stated about the livelihood of deceased and did not admit that the deceased was burnt and died during preparation of liquor. She categorically denied the suggestion of appellant that her sister Taramati was preparing liquor and got burnt and died. No other evidence was on record to support this contention. Witness PW-5 Smt. Kausi only stated that both trees Imli and Mango were burned, but there is positive evidence of two eyewitness namely PW-2 Km. Kalpana and PW-5 Smt. Kausi to this effect that the accused appellant Harikirtan had poured kerosene oil on deceased and lit the fire on deceased, hence mere assertion about burning of Imli tree has no consequence and no inference can be drawn that the deceased died due to burn during preparation of liquor. The doctor's evidence is silent on smell of kerosene oil on body of deceased nor appellant asked about this from doctor hence no benefit was available to appellant and the submission of appellant are not sustainable.

50. We carefully scrutinised the above rival submissions of the parties in the light of evidence and circumstances on record and find no merit in submission of appellant. No doubt the witness PW-1 Smt. Subhawati stated in her deposition that the deceased had done the work of preparing Mahua liquor for her livelihood in her Maika, but she categorically denied the suggestion of appellant that her sister was preparing liquor and got burnt and died. No other evidence on record which suggested that the deceased died during preparation of liquor. On the other hand there is positive evidence of two eyewitness PW-2 Km. Kalpana and PW-5 Smt. Kausi to this effect that the accused appellant Harikirtan had poured kerosene oil and lit fire on deceased with which she got burnt and died beneath the tree of Mango. In cross-examination witness PW-5 Smt. Kausi stated that both trees i.e. Mango and Imli were burned and Imli tree was present near the hut of the deceased in back side while Mango tree was in western side of her house and the dead body of Taramati was under Mango tree. Witness PW-5 stated that when she reached on spot she saw that the Harikirtan pulled the deceased from hut and poured kerosene oil and set fire on deceased. No evidence to this effect that on spot visit the I.O. found utensil or 'chulha' etc. on spot nor defence counsel put any question to this regard from I.O. Investigating Officer (PW-9) did not recognize to find the Imli tree on spot, circumstances of spot shows that Mango tree was burned as dead body of deceased was found under Mango tree but burned Imli tree was not possible. There is no clear evidence that incident of burns had happened under Imli tree, therefore, the possibility of Imli tree was burnt during preparation of liquor seems to be not correct. That it was possible it was burnt much earlier. We find that where the evidence of witness is backed by medical evidence conjecture and alternative cannot be substituted in place of accepted evidence of those who actually saw the incident. No question was put by defence appellant counsel from the witness Km. Kalpana PW-2 and Smt. Kaushi PW-5 in this regard, hence no benefit was given to the appellant in this regard. From the above discussion, we find no force in submission of appellant.

51. Lastly the learned amicus curiae for the appellant has made a submission that the accused-appellant may not be given the death sentence and the death sentence be commuted in the life imprisonment, as the instant case does not fall within the category of rarest to rare case. It was further submitted that the court below had not exercised its mind in preparing balance sheet relating to aggravating circumstances and mitigating circumstances before choosing the option of punishment as principles highlightened by Apex Court in leading cases Bachan Singh and Machchi Singh's case, which is followed in subsequent various decisions by Apex Court.

52. On the other hand, learned A.G.A. submitted that the appeal has no merit and deserves to be dismissed. In the present case, the appellant has committed the murder of his disabled wife by pouring kerosene oil, and lit the fire and it was committed in a cruel, brutal, diabolical and barbaric manner, therefore, no sympathy should be shown towards the appellant. The present case falls with the category of rarest of rare case where the death penalty awarded by the trial court should be confirmed by this Court.

53. Having considered the submission advanced by the learned counsel for the parties regarding sentence of death awarded to the appellant, we feel that in the present appeal, the crucial question however to arrive at as to whether the death sentence awarded by the trial Court is appropriate or the other option of awarding imprisonment for life sentence under Section 302 I.P.C. was inadequate.

54. Section 302 of Indian Penal Code prescribed two types of punishments for murder. One is life imprisonment and other is death sentence. Section 354 (3) Cr.P.C. indicates the normal punishment for murder is punishment for life and death penalty is an exception. The Court is required to state the reason for the sentence awarded and in the case of death sentence, special reasons are required to be stated that is to say only special facts and circumstances will warrant for passing of death sentence. In choice between two punishments provided for murder which one is proper one. It will depend upon the particular circumstance of the case. The Court has to exercise its discretion judicially and on well recognized guidelines laid down by Apex Court in several decisions.

55. Every murder is a heinous crime and it is also against the society and brutality is inbuilt in every murder but in every case of murder, death penalty is not to be awarded. Under the present legal system, imprisonment for life is the normal rule while the death sentence could be awarded only in the rarest of rare cases.

56. The principles with regard to awarding punishment of death have been well settled by the judgements of Apex Court in leading cases Bachan Singh and Machhi Singh and some other decisions, which may in short submersed as under:-

In Bachan Singh Vs. State of Punjab 1980 (17) A.C.C. 4 (S.C.), the Apex Court while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases, when the alternative option of lessor sentence is unquestionable foreclosed.

In Machchi Singh and Others Vs. State of Punjab 1983 (20) A.C.C. 321 (SC), the Apex Court expended the rarest of rare case formulated beyond the aggravated factors listed in Bachan Singh cases where the collective conscience of a community may be shocked but the Bench in this case underlined that " 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". The guidelines laid down in Bachan Singh case (supra) has been enumerated in Machchi Sing case as under:-

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

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

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances to 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."

In Haresh Mohan Rajput Vs. State of Maharastra, the bench referred to the principles in Bachan Singh (supra) and Machchi Singh (supra) and proceeded to as follows:-

"The rarest of the rare case comes when a convict would be a menace and threat to the harmonious and peaceful co-existence of the society. The crime may be heinous or brutal but may not be in the category of the rarest of the rare case." There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal act of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so threatening its peaceful and harmonious co-existence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society, where the accused does not act on any spur of the moment provocation and indulges himself in a deliberately planned crime and meticulously executes it. The death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent child and helpless woman. Thus in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner where his act affects the entire moral fibre of the society. E.G. crime committed for power or political ambition or indulging in organized criminal activities, death penalty should be awarded.

In Mohinder Singh Vs. State of Punjab 2013 (81) A.C.C. 367, the Apex Court observed at para 16 that doctrine of rarest to rare continues two aspects and when both the aspect are satisfied only then the death penalty can be imposed. Firstly, the case must clearly falls within the ambit of rarest of rare and secondly when the alternative option is unquestionably foreclosed. The Bachan Singh case suggested selection of death punishment as the penalty of last resort, when alternative punishment of life imprisonment would be futile and serve no purpose. It is also observed that in life sentence possibility of achieving deterrence rehabilitation and retribution in different degree is there and life sentence is futile only when reformation appears to be unachievable. Therefore, for satisfying the record aspect to the rarest of rare doctrine the Court will have to be provided with clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. At para 20, the Apex Court further stated that it is a well settled law that awarding of life sentence is the rule and death is an exception. The application of 'rarest of rare' case principle is dependent upon and differs from case to case. However, the principles laid down and reiterated in various decisions of this Court show that in a deliberately planned crime executed meticulously in a diabolic manner exhibiting inhuman conduct in a ghastly manner touching the conscience of everyone and thereby disturbing the moral fibre of the society, would call for imposition of capital punishment in order to ensure that it acts as a deterrent while we are convinced that the case of the prosecution based on the evidence adduced confirms the commission of offence by the appellant. However, we are of the considered opinion that still the case does not fall within the four corners of the 'rarest of rare' case.

In Panchi and another Vs. State of U.P. 1998 (37) A.C.C. 528, the Apex Court held that brutality or the manner in which a murder was perpetrated may be a ground but can not be the sole criteria for judging whether the case is one of the rarest of rare case as indicated in Bachan Singh case. In a way every murder is brutal and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder.

57. After analysing the above case laws, we may verify the principle with regard to awarding punishment of death that for a conviction under Section 302 I.P.C. the normal rules is awarded punishment of life imprisonment and punishment of death should be resorted to only for the rarest of rare cases. In determining whether a case falls within the rarest of rare case or not has to be examined with reference to the facts and circumstances of each case and the Court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence.

58. We mentioned some decisions of Apex Court, in which after considering the aggravating and mitigating circumstances as laid down in Bachan Singh and Machchi Singh cases and social economic conditions of the criminal and circumstances of the crime and position of rarest of rare case. The Apex Court commuted the death sentence into imprisonment for life with certain period with remission or without remission awarded adequate punishment.

(1)In Ashok Kumar Vs. State of Delhi 2002 (44) A.C.C. 946 (SC) wherein a husband was convicted and sentence to death for committing the murder of his wife and daughter. The Apex Court considering the principle laid down in Bachan Singh and Machchi Singh cases held that in the facts and circumstances of the case, it could not be concluded that present case would fall within the category of rarest to care cases. Hence, sentence of death was commuted to R.I. for life.

(2)In Ramraj Vs. State of Chhattishgarh 2010 (70) A.C.C. 574 (SC) the Apex Court while setting aside the death sentence directed that the appellant therein should serve a minimum period of twenty years including the remission and would not be released before completion of fourteen years of imprisonment.

(3)In Mulla and Another Vs. State of U.P. 2010 (69) A.C.C. 365 (SC), the Apex Court again narrated the principle of Bachan Singh (supra) case taking into account all the aggravating and mitigating circumstances in case of a night incident where the eight miscreants killed five persons mercilessly for non payment of ransom amount, but the death sentence was commuted to life imprisonment full term of life.

(4)In Sandeep Vs. State of U.P. 2012 (78) A.C.C. 178 (SC) wherein the accused appellant developed intimacy with deceased victim lady who worked at a mobile shop and had become pregnant therefore she was promised by the appellant for marriage. On the incident day, the appellant called the lady victim at some place and asked to get her fetus aborted but she refused and gave threats to disclose about it to her parent and police. The appellant and his friend had taken the victim in a car and on the way the appellant had beaten the lady with different weapons and had thrown away the victim in a sugar cane field and poured acid in the victim's body. Subsequently, the victim died in hospital. The Apex Court held that though the case does not fall within the four corners of the principle of rarest of rare case, however, considering the plight of the helpless young lady who fell a victim to the amorous conduct and lust of the appellant, the manner in which the life of deceased was snatched away by causing multiple injuries all over the body with all kinds of weapons. No leniency can be shown towards the appellant but considering the other decisions of Apex Court convert death sentence to life imprisonment for thirty years without remission.

(5)In Mohinder Singh Vs. State of Punjab 2013 (81) A.C.C. 371 (SC), wherein the accused-appellant committed rape with his daughter and was convicted under Sections 376 and 504 I.P.C. by the Court. During the parole period , he come to his house but was driven out from the house by his wife. Thereafter, he came on incident day to the place of occurrence with deadly weapon Kulhari and inflicted Kulhari below on head and neck of his wife and injuries were cause to raped daughter and both were killed. Motivating facts were retaliation. The Apex Court considering the facts and circumstances observed that the appellant was feeling frustration and considering the poor condition and in ability to earn livelihood and considering that the possibility of rehabilitation and reform was not foreclosed, commuted the death sentence into life imprisonment subject to remission granted by the appropriate authority.

(6)In Gur Vail Singh @ Gala and another Vs. State of Punjab 2013 (81) A.C.C. 359, wherein the accused appellant had committed murder of four persons of family members son, daughter-in-law and two grand children in the house at night by weapons. The Apex Court held that though the act of accused do not deserve sympathy, however being a person of the young age of about 34 years on the date of incident the imposition of death sentence on the accused was not warranted and the Apex Court converted the death sentence into life imprisonment extending to thirty years minimum without remission.

In Ramesh Vs. State of Rajasthan 2011 (73) A.C.C. (SC), wherein the appellant Ramesh along with other co-accused went to the house of deceased at night with intention to commit theft. On account of the deceased having been awakened the accused appellant took the extreme step of eliminating the inmates of the house for the fear of being detected. The Apex Court observed that it cannot be said to be brutal, grotesque and diabolical act nor was it committed in a revolting manner so as to arise intense and extreme indignation and the appellant was in a dominating position. It is not a case of bride burning or dowry death case. Though the appellant Ramesh was having a criminal record whoever, they did not find that any previous conviction was proved by prosecution. Considering such aspects and mitigating circumstances of the age of the accused as a young person and no evidence regarding impossibility of reform and rehabilitation was awardable, hence the Apex Court set aside the death sentence and commuted it into life imprisonment.

59. The court below recorded that the special reasons for awarding the capital punishment are that the convict had committed the murder of his wife in a beastly manner with a pre-mediated plan with intent to commit a cold-blooded brutal murder in the presence of his six years child. The motive for committing the murder may be sufficient for the convict after a petty quarrel between husband and wife over the expenses incurred for bail of the convict but was indeed insufficient for a man of ordinary prudence and balanced mind for committing the offence of murder in an inhuman, brutal and cruel manner. The convict has been released from jail 2 or 3 days prior to the incident. Investigating Officer (PW-9) states that the convict is involved in eleven other criminal cases of which some cases were gravest in nature. All three facts indicates the perversity and intensive criminal of his mind. Therefore, the case of convict comes in 'rarest of rare case' and awarded death sentence.

60. We are not convinced by the special reasons recorded by the trial court for choosing punishment and awarding capital punishment. The court below has not exercise its mind to draw any balance sheet of aggravating and mitigating circumstances for giving full weightage to the principles laid down in Bachan Singh (supra) and Machchi Singh (supra) and other decisions of the Apex Court and we also find that the observations of the trial court that some criminal cases against the convict were gravest in nature is its own imagination and without evidence on record. On examining the factual scenario, we find that the circumstances indicate that the convict being a poor man having no means of livelihood was released from jail 2-3 days earlier and come to the victim's house on the incident day, some pretty quarrel took place between the convict and victim on account of providing expenses incurred in bail cases and on that court, he commit the murder of his wife by pouring kerosene oil and set fire to the victim, who was partially disabled and was doing preparation of 'Deshi' liquor for her livelihood. The circumstances indicate that the said murder was not a pre-arranged plan or cold blooded murder. No doubt it was cruel or may be said to be diabolical but can not be said to be gotesque or committed in a revolting manner so as to worse intense and extreme indignation in society. Though the appellant was having a criminal record of eleven cases, however we do not find any evidence of previous conviction on record. The aggravating circumstances are that the convict had committed murder of his wife Smt. Taramati in the night by pouring kerosene oil and had set fire on victim, who was partially an infirm lady. On the other hand, the mitigating circumstances was that the convict was a young person of 28 years age at the time of incident and the probability of reform and rehabilitation was not ruled out.

61. Applying the guidelines as laid down in the cases of Bachan Singh case (supra), Machchi Singh (supra) and other decisions of Apex Court quoted above and considering the balances the aggravating and mitigating circumstances emerges from the evidence on record, we are not persuaded to accept that the present case can appropriately be called the 'rarest of rare' case warranting the death penalty. We also find and it is difficult to hold that the convict is such a dangerous person that sparing his life will endanger the community. We are not convinced that the circumstances of the crime are of such a type where there is no other alternative but to impose the death penalty, even after according maximum weightage to the mitigating circumstances in favour of the accused. One significant factor in this case which we should not lost sight of is that the convict did not harm his six years old minor daughter namely Km. Kalpana (PW-2) even though he had a good chance for the same.

62. For the reasons mentioned above, we are opinion though the crime committed by the appellant Harikartan @ Suparfast was indeed heinous and barbaric but still it does not fall within the category of 'rarest of rare' case where death penalty should be imposed. Consequently, reference is not confirmed and jail appeal of appellant Harikartan @ Suparfast is to be partly allowed with the following observation.

63. We convert the death sentence of appellant Hari Kirtan @ Superfast into life imprisonment with a direction that the appellant shall undergo and serve a sentence of twenty years of imprisonment for life without premature remission and he shall not be released from the prison unless he has served at least 20 years of imprisonment including the period already undergone by him. Rest of the sentence shall remain the same.

64. The appellant is in jail and he shall serve out the sentences accordingly in terms of the above. Reference made in this Court shall stand rejected.

65. Let a copy of this judgment be sent to the trial court with its reference no. 5 of 2012 in Sessions Trial No. 255 of 2010, Siddarthnagar vide letter dated 13.08.2012. Also a copy of this judgment be sent to the Superintendent of Jail concerned, where the convict Harikirtan @ Superfast is lodged.

 
Order Date :- 14.02.2014
 
SR
 
CAPITAL CASE No. - 4268 of 2012
 

 

 
 Harikirtan @ Superfast					....		Appellant
 
Vs.
 

 
 State Of U.P.							.....		Respondent
 

 
Hon'ble Amar Saran,J.
 
Hon'ble Anil Kumar Agarwal,J.

Mr. B.P. Mishra, learned Amicus Curaie for the accused-appellant has rendered valuable assistance in disposal of the appeal. Therefore, we direct the Office to pay Rs. 5,000/- as fee to Mr. B.P. Mishra, learned Amicus Curaie.

Order Date :- 14.02.2014 SR

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