Allahabad High Court
Sovaran Singh vs State Of U.P. on 1 October, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
(A.F.R.)
Reserved on 06.08.2018
Delivered on 01.10.2018
Court No. - 34
Reference No. 05 of 2017
IN
Case :- CAPITAL CASE (Appeal) No. - 2611 of 2017
Appellant :- Sovaran Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Sandeep Kumar Shrivastava
Counsel for Respondent :- G.A.
Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. Present reference under Section 366 Cr.P.C. and Capital Case under Section 374(2) Cr.P.C. have arisen assailing judgment and order dated 01.03.2017 passed by Sri Gurpreet Singh Bawa, Additional Sessions Judge, Court No. 1, Mainpuri in Session Trial No. 377 of 2014, whereby accused-appellant has been convicted under Sections 302 and 201 IPC. Considering the case to be rarest of rare, accused-appellant was awarded death sentence with a fine of Rs. 20,000/- and in default of payment of fine, he has to undergo Rigorous Imprisonment (hereinafter referred to "R.I.") for two months. Further under Section 201 IPC, he was sentenced to undergo R.I. for seven years with a fine of Rs. 5000/- in case of default in payment of fine, he has to further undergo R.I. for two months. Out of fine realized, Rs. 20,000/- was to be paid to the family of deceased.
2. As per prosecution case, incident in the instant case relates to double murder committed by accused-appellant Sovaran Singh Prajapati, of his own wife and minor daughter. Prosecution case as per First Information Report (hereinafter referred to as 'FIR) Ex. Ka-6 lodged on 30.06.2014 at 10:00 AM, at P.S. Karhal, District Mainpuri, by P.W. 1 informant, Rajnesh Kumar resident of village Nagla Pajawa, P.S. Kotwali Nagar, District Mainpuri is that marriage of his maternal sister Mamta, was solemnized about 15 years ago with accused-appellant Sovaran Singh Prajapati, resident of village Rooppur, P.S. Karhal. On the fateful day, i.e. 30.6.2014, Informant got information on phone that accused-appellant Sovaran Singh Prajapati (husband) had murdered her wife (Mamta) by assaulting her with stone and bamboo stick and also killed his daughter, Km. Sapna, aged about 12 years by throwing and smashing her on ground and pressing her neck by feet. Cause of murder mentioned in FIR was denial of money by Mamta to appellant for purchase of more liquor which enraged and annoyed appellant to the extent that he became so furious and violent, using filthy languages, assaulted his wife and daughter brutally to death. When Informant reached the spot, his niece Poonam and nephew Ankush narrated entire incident to informant. FIR further says that their dead bodies were lying on the roof of house.
3. On the basis of written report Ex.Ka-1, Chik FIR No. 128 of 2014 (Case Crime No.168 of 2014) Ex.Ka-6, was registered under Section 302 IPC by P.W. 4 Constable Ramveer Singh. He also made entry in General Diary, certified copy whereof is Ex.Ka-7 on record. Thereafter P.W. 5 Inspector Balbir Singh visited place of occurrence; recorded statements of witnesses, Rajnesh Kumar, Poonam and Ankush; prepared recovery memos Ex.Ka-9 in respect of blood stained and plain earth and Ex.Ka-12 with respect to lathi; Ex.Ka-10 site plan of the place of incident and Ex.Ka-11 site plan of the place wherefrom recovery of blood stained bamboo was made. After sealing dead bodies, he sent them to mortuary of District Hospital Mainpuri after preparing Inquest report as well as other relevant police papers along with sample seal, for post-mortem.
4. P.W. 3 Dr. Rajesh Kumar Mishra conducted post-mortem on dead body of Mamta on 30.6.2014 at 4.25 PM. On external examination, Doctor found her slim and weak with 146 cm height and 39.700 Kg in weight. Rigor mortis found present in lower segment of body; eyes were half closed, mouth open, nail in-tact and bleeding from nose and ear was noticed. P.W. 3 found following ante mortem injuries on her person:
"1. Abrasion 3 cm x 2 cm on right side forehead, 1 cm above eye brow, blackening present.
2. Abrasion 3 cm x 4 cm just below right eye, blackening present.
3. Abrasion 5 cm x 4 cm on left side of left eye, blackening present.
4. Blood through nose and both ears.
5. Abrasion 6 cm x 3 cm on right side of neck, 1 cm below right mandible.
6. Abrasion 3 cm x 2 cm over anterior aspect of right shoulder, blackening present.
7. Abrasion 5 cm x 3 cm on right side of chest, 5 cm below left nipple.
8. Lacerated wound 5 cm x 3 cm on left side of vagina, exposing uterus and bladder."
5. On internal examination, right eye was black; lips were swollen and black in colour; tongue inside mouth; ecchymosis present in neck muscles; hyoid left corner fractured; weight of right lung 340 gm (Pale) and left 320 gm; both chambers of heart empty; blood present in peritonial cavity; stomach contained about 150 gm semi digested food matter; small intestine contained semi digested food particles and large intestine contained faecal matter and gases; liver was lacerated 5 cm and pale; spleen weighed 150 gm and pale; kidneys-pale, right kidney weighed 150 gm and left 130 gm, urinary bladder and urethra were ruptured. In the opinion of Doctor, about one day has passed since the death. Cause of death was due to acute haemorrhagic shock as a result of ante mortem injuries, causing internal bleeding. Postmortem report prepared by P.W. 3 is Ex. Ka. 2.
6. The same Doctor, P.W. 3 examined dead body of deceased Sapna at about 04:50 PM on 30.06.2014. According to him, deceased was aged about 12 years, 22.400 kg in weight. Rigor mortis was present; eyes and mouth closed and lips swollen. He found following ante-mortem injuries on her person.
"1. Face and fore head swollen, right black eye.
2. Abrasion 6 cm x 4 cm on right side of face, 2 cm anterior to right ear.
3. Lips swollen and teeth mark laceration in inner side of lips.
4. Abrasion 5 cm x 3 cm on left side of face anterior to left eye.
5. Abrasion 1 cm x 1 cm on anterior aspect of left fore arm, 3 cm above wrist joint, bluish.
6. Abrasion 1 cm x 1 cm on posterior aspect of base of index finger (II Metacarpo-phallangeal joint), bluish.
7. Lateral fold of vagina wide open, mens (menstrual) and labia swollen, vagina congested and lacerated, particularly some sticky wheatish substance present, slide prepared.
8. Abrasion 2 cm x 1 cm on anterior lateral aspect of right knee, bluish coloured."
7. On internal examination, brain was found congested with 1.100 kg in weight and haematoma was present; bleeding found from nose and left ear; right lung weighed 300 gm and was congested and left lung weighed 250 gm; left side heart was empty and right side was full; stomach contained 200 gm semi solid food content, mucous normal, no foul smell; small intestine contained semi digested food material and large intestine had faecal matter and gases and liver was congested. In the opinion of doctor, death had occurred due to head injury/ ante-mortem injuries. P.W. 3 had prepared post-mortem report Ex. Ka-3.
8. After conclusion of investigation, Investigating Officer, P.W. 5 Balbir Singh submitted charge-sheet, Ex. Ka-13, in the Court of Chief Judicial Magistrate, Mainpuri. Cognizance was taken by Court and on 20.10.2014, case was committed to Court of Sessions. Learned Sessions Judge framed charge against accused-appellant on 22.12.2014 under Section 302 IPC which reads as under:
"I, Umesh Chandra Tripathi, Sessions Judge, Mainpuri hereby charge you accused Sobaran Singh, as follows :-
That you on 30.06.2014, at some time before 10:00 AM, at your house in village Rup-pur, within the circle of Police Station Karhal, District Mainpuri, did commit murder by intentionally or knowinigly causing the death of your wife Smt. Mamta and daughter Km. Sapna by inflicting injuries on different parts of the body by means of bamboo and pressing neck by foot, and thereby committed an offence punishable u/s 302 of the Indian Penal Code and within my cognizance.
And I hereby direct that you be tried on the said charge by this Court of Session."
9. Additional charge under Section 201 IPC was also framed on 27.08.2016 which reads as under :
"I, Gurpreet Singh Bawa, Additional Sessions Judge Court No. 1, Mainpuri, hereby charge you accused 1. Sobaran Singh as follows :-
That you on 30.06.2014, at about 10:00 AM, at your house situated in village Rup-pur, within the circle of P.S. Karhal, District Mainpuri, committed murder of his wife Smt. Mamta and daughter Km. Sapna, did cause certain evidence of the said offence to disappear, to wit the blood stained earth of deceased threw at other place, with the intention of screening yourself from legal punishment and you thereby committed an offence punishable u/s 201 IPC and within the cognizance of this Court.
And I hereby directed that you be tried by this Court on the said charge."
10. Charges were read over to accused-appellant to which he pleaded not guilty and claimed to be tried for both the charges.
11. Prosecution in support of its case, examined six witnesses out of whom, P.W.1, Informant, Rajnesh Kumar, who lodged FIR and P.W.2 Km. Poonam, second daughter of deceased Mamta as well as accused-appellant, are witnesses of fact. Rest are formal witnesses. P.W.3 Dr. Rajesh Kumar Mishra had conducted autopsy on the dead bodies of Mamta and Sapna and has proved post mortem reports, Ex. Ka-2 and Ka-3, respectively. P.W.4 is Constable Ramveer Singh, chik writer, who has proved Chik Report, Ex. Ka-6, and also entry in General Diary, a copy of which is Ex.Ka-7. P.W. 5 Balveer Singh is Investigating Officer and has proved Ex. Ka-9 fard (recovery memo) with respect to blood stained and simple soil, site plans, Ex. Ka-10 and Ka-11, and charge-sheet Ex. Ka- 3. P.W.6 Omveer Singh is the witness of Inquest reports (Panchayatnama) (Ex. Ka-14 and Ka-19) as also requisite documents (Ex. Ka-15 to Ka-18 and Ex. Ka-20 to Ka-23) in respect of deceased Mamta and Sapna.
12. Thereafter statement under Section 313 Cr.P.C. of accused-appellant was recorded. He stated prosecution story to be false and claimed to have been falsely implicated owing to enmity. He has specifically stated that prosecution witnesses have made false statements before Court and also pleaded ignorance about preparation of Inquest reports and other police papers. Recovery of weapon was also stated to be false. He stated that charge-sheet was filed in the matter on insufficient ground.
13. Despite sufficient opportunity having been given accused-appellant did not adduce any defence evidence (either documentary or oral).
14. Trial Court has held accused-appellant guilty of committing offences under Sections 302 and 201 IPC broadly recording its findings as under:-
(a) Post-mortem report established that hyoid bone of Mamta (wife of appellant) was fractured. There was bleeding from nose and ear and Mamta died of internal bleeding and ante mortem injuries.
(b) In respect of Sapna (daughter of appellant), abdomen and both kidney were fractured, nose and left ear were bleeding. Head was congested and swollen and in respect of private part also serious injuries were found.
(c) The entire incident was narrated by eye witness P.W.2 who is second daughter of appellant and no discrepancy or any other reason to disbelieve her statement could be shown by defence.
(d) Delay in FIR was duly explained, inasmuch as, incident occurred during night and in the house only siblings were present who were also terrified due to above ghastly incident. In the next morning, cousin of deceased Mamta received information, reached the house of deceased at about 07:30 AM and after apprising himself of the incident, lodged report at 10:00 AM at the police station which is at about 14 km from the place of occurrence, thus, it was a normal time taken in the matter particularly in the circumstances noticed above.
(e) The factum that accused-appellant was drunk at the time of incident and the defence that he acted under influence of liquor was not correct, inasmuch as, besides the fact that liquor was taken by him voluntarily and not administered forcibly, his conduct that he demanded money from his wife for purchasing further drink and when she refused, being enraged started abusing and beating his wife, also falsifies the above stand taken by defence.
(f) When deceased Mamta (wife of appellant) left the house, accused-appellant first caused injuries upon his eldest daughter Sapna and after killing her (Sapna) called his wife on the pretext that Sapna (deceased daughter) is ill and needs medicine and, thereafter, when his wife came, assaulted her also and killed. Span of time taken in double murder shows that incident was not due to any sudden provocation or under influence of liquor to the extent of losing control over senses. Further he has attempted to hide dead bodies by lifting them one by one and keeping on the roof of his brother.
(g) Certain lapses by Investigating Officer would not help accused as this cannot be a ground to discard prosecution version which is otherwise authentic, credible and cogent.
15. Trial Court thereafter considered the question of sentence. It considered mitigating circumstances i.e. age of appellant, his socio economic condition and the fact that minor children are to be supported by him. Simultaneously, it also considered aggravating circumstances that the offence has been committed in extremely brutal, grotesque, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation of society; it demonstrates extreme misery inflicted upon his own wife and minor daughter aged only 12 years before death and that the offence would have grave impact on social order. Trial Court took the view that the aggravating circumstances outweigh the mitigating circumstances and even family members of accused are not safe in his hand, what to say of society. Moreover, brutality caused by appellant to internal organs of both the deceased is extreme and all this calls for extreme penalty of death. Consequently, Trial Court awarded punishment of death sentence under Section 302 IPC and fine of Rs.20,000/- in default whereof to undergo further R.I. for a period of two months. Trial Court also awarded punishment under Section 201 IPC of seven years R.I. and fine of Rs. 5000/- and in default, a further R.I. for two months. Out of the amount of fine realized from the accused-appellant, Trial Court has directed for payment of Rs. 20,000/- to the family of deceased and it has also recommended copy of the order to be sent to Secretary, Legal Service Authority, Mainpuri for deciding quantum of compensation to be awarded under the scheme referred to under Section 357-A(1) Cr.P.C.
16. Accused-appellant has filed appeal against aforesaid judgment and since death penalty has been awarded, Reference has also been made by Trial Court to this Court for confirmation of sentence. Reference as well as Appeal both have been taken together since they arise from same judgment and accused-appellant is also the same.
17. Sri Sandeep Kumar Srivastava, learned counsel appearing for appellant assailed the judgment and contended that prosecution was not able to prove its case beyond reasonable doubt. There was no plausible explanation of delay in lodging FIR which creates doubt about truthfulness of prosecution case. It is also argued that P.W. 1 Rajnesh Kumar was not an eye witness and his statement is hearsay. P.W. 2 Km. Poonam is minor and her statement was recorded after two years from the date of incident. She is a tutored witness. Source of light has not been divulged by any of the prosecution witnesses or in the site plan. Motive to commit offence was also not established by prosecution. Dead bodies were recovered from the roof of uncle (ताऊ) of P.W. 2. Appellant was not involved in the commission of present offence and has been falsely implicated due to enmity. It was next contended that appellant never caused cruelty or harassment to his wife Mamta (Deceased) and daughter Sapna (Deceased) nor was habitual drinker nor had consumed liquor on the day of incident. Entire prosecution case in this respect is false. Material witnesses i.e. father and mother of appellant who are said to be present at the place of occurrence, had not been examined, thus, presumption would be raised against prosecution that had they been examined, they would not have supported prosecution version. Prosecution has also not made clear how both dead bodies reached the roof, whereas in the site plan or in the statement of witnesses, nothing has been disclosed about ladder or stairs. Investigation in the matter is perfunctory. Blood stained and plain earth are said to be taken in the matter but no Forensic Science Laboratory (hereinafter referred to as 'FSL') report is submitted. Recovery of blood stained lathi (bamboo stick), which is said to be used for commission of offence, was also said to be made but to connect said stick with this matter, no FSL report has been produced by prosecution. It is further argued that entire prosecution case if taken into consideration and even appellant had consumed liquor at the time of incident, present case comes under the provision of Section 86 of IPC. Thus, it is not a "rarest of rare" case. Trial Court without properly formulating mitigating and aggravating circumstances, has imposed death penalty upon accused-appellant. Appellant belongs to an uneducated and socially backward community. No one is left in the house of appellant to look after his children. Appellant is neither previous convict nor has criminal history to his credit. Learned counsel for appellant lastly argued that impugned judgment and order suffers from illegality and perversity.
18. Per contra Sri Syed Ali Murtaza, learned A.G.A. has contended that since children including P.W. 2 Km. Poonam, present in the house at the time of occurrence were minor, as soon as P.W. 1 Rajnesh Kumar received telephonic information about the incident on 30.06.2014, in morning, he reached on the spot and after making enquiry and preparing written report (Ex. Ka-1), immediately lodged FIR (Ex. Ka-6). Referring to facts and circumstances of the case, it was next contended that delay occurred in lodging of FIR was natural one and has been properly explained by prosecution. Two family members were murdered by accused-appellant before his children who witnessed entire scenario. Although P.W. 1 Rajnesh Kumar is not an eye witness account but P.W. 2 Km. Poonam has consistently, clearly and categorically deposed the entire scenario in her statement about manner of incident which is fully supported by medical evidence. Referring to postmortem report, it is also argued that number of injuries have been found on the bodies of deceased and there is no conflict between medical and oral evidence. Accused-appellant, deceased persons and P.W. 2 Km. Poonam, all were family members and incident took place before P.W. 2 and other children present in the house, so to say that prosecution had not specifically disclosed source of light is meaningless. Non-tendering of FSL report is also not sufficient to discard testimony of P.W. 2 Km. Poonam who has seen entire incident. Laches on the part of Investigating Officer does not cause any prejudice to accused-appellant and is not fatal to prosecution case. Fact of recovery of blood stained lathi (bamboo stick) has been proved by prosecution and accused-appellant had used the said stick in commission of present offence. Trial Court has rightly convicted accused-appellant for offence under Section 302 IPC and awarded death penalty. Since accused-appellant has caused the evidence disappeared/destroyed, therefore, Trial Court has also rightly convicted and sentenced him for the offence under Section 201 IPC. There is no illegality or infirmity in the impugned judgment and order.
19. We have considered rival submissions of learned counsel for the parties and have gone through entire record carefully.
20. As is evident from record, incident is said to have been occurred in the intervening night of 29/30.06.2014. FIR was lodged on 30.06.2014 at 10:00 AM under Section 302 IPC against accused-appellant. Prosecution case is that Informant Rajnesh Kumar, who is brother-in-law (साला) of accused-appellant, received information through telephone about the incident on 30.06.2014 in the morning and immediately, he proceeded to place of occurrence, i.e. house of accused-appellant. Informant enquired about the incident from his nephew Ankush (minor) and niece P.W. 2 Km. Poonam (minor) who were present on the spot at the time of occurrence and had seen entire episode. P.W. 2 Km. Poonam, who is the eldest niece aged about 9 years, narrated entire incident to Informant, how her father (accused-appellant) had murdered her mother Smt. Mamta and sister Sapna and how her father (accused-appellant) carried the corpse over the roof of his uncle (ताऊ). On this information, Informant reached the place where corpse were lying and after preparing written report (Ex.Ka-1), immediately proceeded to police station for lodging of FIR (Ex. Ka-6).
21. Learned counsel for appellant has submitted that delay in lodging FIR has not been properly explained and Informant is not an eye witness. If submissions raised by learned counsel for appellant are considered in the light of facts and evidence of present matter, it is evident that firstly, it is a double murder case and incident took place in the night hours when except minor children, none was present in the house at the time of occurrence and secondly, delay in lodging of FIR is about 10 hours which is natural and probable one. Grand-father and grand-mother of children had also left the place of occurrence in the night itself. No adult member was present to inform police immediately. It may also be mentioned here that FIR may be lodged by any person having knowledge about commission of cognizable offence. Thus, what information was received by Informant from his niece, he reduced the same in written report Ex.Ka-1 and moved it before police concerned.
22. Apart from aforesaid facts mentioned hereinabove, it is also noteworthy that P.W. 1 Rajnesh Kumar, Informant, received telephonic information on 30.06.2014 at 07:00 AM; he reached the spot; enquired about incident from nephew and niece and after preparing written report, went to police station for lodging FIR. Distance between place of occurrence and police station concerned is about 14 km. Certainly some time would have been taken till lodging of FIR, thus, delay in lodging FIR, is not fatal to prosecution case. On close scrutiny of entire evidence, we are of the view that delay in lodging FIR is natural and probable. It has been explained satisfactorily and properly by prosecution and on this score, prosecution case cannot be disbelieved.
23. So far as, non-mention of some details in police papers, prepared during investigation, is concerned, on the ground of laches on the part of Investigating Officer, prosecution case cannot be disbelieved if it is supported by other evidence. Prosecution case could also not be doubted on the ground that FSL report regarding blood stained soil and weapon i.e. lathi (bamboo stick) has not been produced by prosecution. It may also be mentioned here that P.W. 2 Km. Poonam was present in the house at the time of incident. She has claimed herself as eye witness account of the incident but being minor, other evidence has to be minutely and carefully analyzed in the matter.
24. The settled legal position of law on the subject is that as a general principle, it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to accused-appellant. (See Union of India Vs. Prakash P. Hinduja, AIR 2003 SC 2612). Simultaneously, it is also well settled that if prosecution case is established by evidence adduced, any failure or omission on the part of Investigating Officer cannot render the case of prosecution doubtful. (See Amar Singh Vs. Balwinder Singh AIR 2003 SC 1164 and Sambhu Das v. State of Assam, AIR 2010 SC 3300) = (2010) 10 SCC 374.
25. Before proceeding to deal with statement of prosecution witnesses (as eye account witness), we would like to discuss medical evidence.
26. In the instant matter, two females i.e. Smt. Mamta and Km. Sapna (minor) are done to death. As per Inquest report and statement of prosecution witnesses, both dead bodies were lying on the roof. Postmortem report (Ex.Ka-2) reveals eight ante mortem injuries in total, found on the body of deceased Smt. Mamta and probable time of death of deceased was about one day. Similarly, postmortem report of deceased Sapna (Ex.Ka-3) shows that she also sustained eight ante mortem injuries and probable time of death of deceased was also about one day. P.W. 3 Dr. Rajesh Kumar Mishra, who prepared postmortem reports, has clearly stated that injury no. 8 found on the body of deceased Mamta and injuries no. 7 and 8 found on the body of deceased Sapna were caused by inserting a blunt object in private part of both deceased. On specific question put to P.W. 3 Dr. Rajesh Kumar Mishra about the said injuries, he has stated that if lathi (bamboo stick) is inserted in private parts of deceased, such type of injuries could have come. Prosecution case is also that deceased Sapna was smashed by accused-appellant on brick floor by catching her feet. Other injuries found on the body of deceased Sapna could also be caused with lathi (bamboo stick) and by dragging her on floor. This fact finds support with the statement of P.W. 3 Dr. Rajesh Kumar Mishra. Injuries found on the body of deceased Mamta were said to be caused by lathi (bamboo stick). There is recovery of weapon lathi (Bamboo Stick) on pointing out of accused-appellant. This fact has clearly and consistently been supported by P.W. 5 Inspector Balveer Singh. Thus, on close scrutiny of entire evidence, we are of the view that prosecution case is fully supported by medical evidence. Date and time of offence also tally with date and time of death of deceased persons as stated by P.W. 3 Dr. Rajesh Kumar Mishra.
27. So far as presence of P.W. 2 Km. Poonam at the place of occurrence is concerned, before dealing with this aspect, settled legal principles are quoted below which are as under :
28. It is well settled that evidence of a child witness must find adequate corroboration, before it is relied upon as the rule of corroboration is practical wisdom than of law. (See - Prakash and another Vs. State of M.P., (1992) 4 SCC 225; Raja Ram Yadav and others Vs. State of Bihar, (1996) 9 SCC 287; Dattu Ramrao Sakhare and others Vs. State of Maharashtra, (1997) 5 SCC 341; State of U.P. Vs. Ashok Dixit & another, (2000) 3 SCC 70 and Suryanarayana Vs. State of Karnataka, (2001) 9 SCC 129).
29. It is also settled position of law that testimony of a child witness cannot be rejected merely on the ground of being minor, if it is found reliable. The law is also that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him/her and thus a child witness is an easy prey to tutoring. [Vide Panchhi and others Vs. State of U.P., (1998) 7 SCC 177]
30. It is evident from the record that P.W. 2 Km. Poonam was present in her house and had seen the entire scenario. At the time of recording of statement of P.W. 2 Km. Poonam (minor), Court below has already tested her competency before administering her Oath and has found her competent to make rational answers. Perusal of examination-in-chief as well as cross-examination made before Court concerned also reveal that she was competent enough to make rational answers and has given answers of questions put to her very clearly. She was aged about 9 years at the time of deposition made before Court and had also come along with her maternal grand-mother to Court for statement. She deposed that accused-appellant had come on the day of incident after consuming liquor and had also taken two bottles of liquor in house. Accused-appellant along with her grand-father took liquor together and, thereafter, some altercation took place between her father and grand-father. On this, accused-appellant had slapped his father (grand-father of P.W. 2). Her grand-father immediately left house and gone elsewhere. Grand-mother, who was also present, also left house immediately. It is also evident that grand-father of P.W. 2 during pendency of trial had died. Although, prosecution has not examined grand-mother of P.W. 2, but on this score only, prosecution case especially statement of P.W. 2 cannot be disbelieved. It is also pertinent to mention here that there is no requirement under law to examine a number of witnesses. Facts to constitute crime may be proved by examining solitary witness. At this juncture, reference may also be taken of the provision of Section 134 of Indian Evidence Act, 1872. Thus, testimony of P.W. 2 Km. Poonam cannot be disbelieved on this ground. This witness when examined before Court, has deposed that at the time of incident, initially her father (accused-appellant) took her sister Sapna (deceased) outside the house and after few minutes, brought her (Sapna) back in his lap, in an injured and unconscious condition and threw her on brick floor of cow-shed. Her sister (Sapna) was groaning with pain, then, her father (accused-appellant) lifted her by catching her feet and again smashed her on floor. When she did not die by smashing also, accused-appellant throttled her by putting his foot on her neck. Blood was oozing from her head, eyes, nose, ear and mouth. Accused-appellant then lifted dead body of Sapna and put her on cot lying in court-yard. Thereafter, accused-appellant went to roof and called Mamta (deceased), mother of P.W. 2 on the pretext that Sapna is suffering from fever and medicine is to be given to her. When Smt. Mamta reached near the gate, accused-appellant hit her (Mamta) with stone and then beat her brutally by lathi (bamboo stick) and also caused injuries on her private parts.
31. Keeping in view entire facts and circumstances of case, we do not find it necessary to discuss in detail each and every injury caused to deceased persons by accused-appellant, as injuries found on the body of deceased persons find support with statement of P.W. 2. Manner in which present incident was committed and injuries found on the body of deceased persons tally with each other. One circumstance highlighted by learned counsel for appellant is that such incident was being committed by accused-appellant but P.W. 2 Km. Poonam who is an eye witness, did not make hue and cry. Submission raised by learned counsel for appellant cannot be accepted as P.W. 2 Km. Poonam was 9 years old child whose father was beating badly her mother and sister, hence, fear and shock to P.W. 2 could have been natural. It was not expected in such scenario from her to make resistance or hue and cry. P.W. 2 has also stated that she was scared and due to that reason, she remained lying on the cot along with her brothers and sisters. On analysis of prosecution evidence on this issue, we are of the view that P.W. 2 Km. Poonam is not a tutored witness as all facts stated before Court on oath had already been stated by her to P.W. 1 at initial stage and to Investigating Officer also. Some variations in her statement are natural and probable. On the ground that some facts are exaggerated or there is omission and improvement in her statement which are bound to occur due to lapse of time or errors of memories, statement of P.W. 2 cannot be disbelieved as she is natural witness. Thus, on close scrutiny of entire evidence, we are also of the view that neither P.W. 2 is a tutored witness nor there is any contradiction in her statement on material points. Her statement is fully supported by medical evidence and she comes under the category of wholly reliable witness.
32. So far as non disclosure of source of light in FIR and in the statement of witnesses made before Court on Oath is concerned, incident was committed by accused-appellant (father of P.W. 2) in his house against his wife Mamta and daughter Km. Sapna. P.W. 2 Km. Poonam, one of the daughter of accused-appellant, is an eye witness account. Accused-appellant, deceased persons and P.W. 2, all were present in the house and substantial part of incident took place inside the house before P.W. 2., therefore, there would not have been any difficulty in recognizing accused-appellant as well as seeing the entire scenario happened in this matter. Specific explanation about the existence of ladder/stair case, if, has not come in prosecution evidence, then also, in site plan Ex. Ka-11, Investigating Officer has shown staircase. It is immaterial that Investigating Officer did not make clear this fact when he was examined before Court. In the instant matter, prosecution was able to establish that dead bodies of both deceased were lying on the roof. Inquest report is also prepared at that place, thus, prosecution case cannot be doubted on this issue. There is no legal requirement to mention crime number and other details in Inquest Report. Apart from this, details of crime number etc. are found mentioned in all police papers. Reference may also be taken of the law laid down in Amar Singh case (supra) and Sambhu Das case (supra) on this issue.
33. As far as motive is concerned, there are ocular evidence. It is settled legal position that if there are eye account witnesses, motive loses its importance. It is also settled that if specific motive has been taken by prosecution, same must have been proved. In the instant matter, although motive is very simple in nature but prosecution was able to prove this fact from evidence of P.W. 2 Km. Poonam. Accused-appellant had come at his house in the evening after consuming liquor and had also taken two extra bottles of liquor which was consumed by him along with his father. He was demanding some more money from his wife Mamta (deceased) for purchasing liquor but when she denied, present incident was committed by him. This fact has been clearly and consistently supported by P.W. 2 Km. Poonam as she was present in the house at that time, thus, we are also of the view that motive though simple in nature has been proved by prosecution from its evidence.
34. So far as applicability of provision of Section 86 of IPC is concerned, although prosecution has admitted that at the time of incident, accused-appellant had consumed liquor, but the facts and circumstances of case, manner in which present incident was committed and also keeping in view the total time taken in committing present offence, it cannot be held that accused-appellant was deprived of his thinking power. Particular knowledge/intention required to constitute present offence can easily be gathered from series of acts done by accused-appellant during the course of incident. Series of acts committed by accused-appellant and his conduct during the course of commission of offence also show that inspite of consumption of liquor, accused-appellant had intention to commit such act which was forbidden by law. A number of injuries have been caused by accused-appellant upon both the deceased, thus, accused-appellant cannot seek any help of Section 86 IPC. Plea taken by accused-appellant is not acceptable. Provision of Section 86 IPC cannot be applied in the present matter, as accused-appellant after committing murder of Sapna and keeping her dead body on the cot, called her wife Mamta (deceased) on the pretext that Sapna is suffering from fever and medicine was to be given to her. Act of accused-appellant clearly demonstrates that he was fully conscious and aware about the act done by him. When all incriminating facts adduced before Court by prosecution, were put to the accused under Section 313 Cr.P.C., no plausible explanation about commission of present offence, has been given by him. The only explanation given by him is that he had been falsely implicated in this case due to enmity. No evidence was adduced by accused-appellant to create doubt about truthfulness of prosecution evidence or to support the plea taken by him. It is also settled legal position that voluntary drunkenness cannot excuse the commission of an offence. If the person had not gone so deep in drinking and from the facts it could be found that he knew what he was about, Court will apply the rule that a man is presumed to intend the natural consequences of his act. Merely establishing that person's mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. Thus, we are also of the view that Trial Court has rightly discarded the plea of accused to extend benefit of Section 86 IPC.
35. Two persons were done to death by accused-appellant. Medical evidence fully supports oral evidence. P.W. 2 Km. Poonam is not a tutored witness. She was present on the spot. She has clearly, consistently and categorically stated the manner in which incident took place on the date, time and place mentioned in FIR. She has also categorically and clearly stated the role played by accused-appellant. Hence, finding recorded by Trial Court about the charge under Section 302 IPC is in accordance with law and there is no need to interfere with the said finding.
36. As far as applicability of Section 201 IPC in the present matter is concerned, P.W. 2 Km. Poonam has clearly stated that accused-appellant scratched blood fallen on floor and by using cow-dung cleaned the surface. Thus, it cannot be held that findings recorded by Trial Court about constitution of offence under Section 201 IPC is perverse.
37. From the evidence discussed here-in-above, it is clear that prosecution has proved charge under Sections 302 and 201 IPC levelled against accused-appellant.
38. Considering the brutal nature and manner of incident in which double murder have been committed by appellant, Trial Court has formulated aggravating and mitigating circumstances and, thereafter, in its wisdom has imposed death penalty on appellant. Aggravating and mitigating circumstances referred to in the judgment passed by Trial Court can be summarized as under :-
"Aggravating Circumstances
(a) Offence in the present case has been committed in an extremely brutal, grotesque, diabolical, revolting and thus dastardly manner so as to arouse intense and extreme indignation of society;
(b) Demonstration of exceptional depravity and extreme brutality;
(c) Extreme misery inflicted upon his own wife and the minor daughter aged 12 years before their death;
(d) Grave impact of the crime on social order.
On the other hand, the mitigating circumstances, as alleged, are
(a) the age of the convict;
(b) his socio economic status as also the plea of the reformatory approach and
(c) his clean antecedents and the minor children to be looked after.
The aggravating circumstances thus outweigh the mitigating circumstances. As the family members of the convict himself are not safe at his hands what to say about the society at large. The murders of his own wife and daughter have been committed in brutal, grotesque, diabolical, revolting and dastardly manner arousing indignation and abhorrence of society which not only calls for rather cries for exemplary punishment."
39. Now the question before us is whether death penalty in the present case is justified. Before looking to the facts of present case on the question of sentence, it would be appropriate to advert to judicial authorities on the matter throwing light and laying down principles for imposing penalty, in a case, particularly death penalty.
40. One of the earliest case, in the matter is Bachan Singh v. State of Punjab, (1980) 2 SCC 684. In para 164, Court said that normal rule is that for the offence of murder, accused shall be punished with the sentence of life imprisonment. Court can depart from that rule and impose sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing death sentence. While considering question of sentence to be imposed for the offence of murder under Section 302 IPC, Court must have regard to every relevant circumstance relating to crime as well as criminal. If Court finds that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, Court may impose death sentence.
41. Relying on the authority in Furman v. Georgia, (1972) SCC OnLine US SC 171 Court noted the suggestion given by learned counsel about aggravating and mitigating circumstances in para 202 of the judgement in Bachan Singh (supra) which read as under :-
"202. ... '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 consequence 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 Code of Criminal Procedure, 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."
42. Thereafter in para 203, Court said that broadly there can be no objection to the acceptance of these indicators noted above but Court would not fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other. Thereafter in para 206 of judgment in Bachan Singh (supra), Court also suggested certain mitigating circumstances as under :-
"206. ... '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. If 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 conditions (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 condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.'"
43. Again in para 207 in Bachan Singh (supra), Court further said that mitigating circumstances referred in para 206 are relevant and must be given great weight in determination of sentence. Thereafter referring to the words caution and care, in Bachan Singh (Supra) Court observed that it is imperative to voice the concern that Courts, aided by the broad illustrative guidelines, will discharge onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
44. Then in Machhi Singh v. State of Punjab, (1983) 3 SCC 470 stress was laid on certain aspects namely, manner of commission of murder, motive thereof, antisocial or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder. Court culled out certain propositions emerging from Bachan Singh (supra), in para 38 and said as under :-
"The following propositions emerge from Bachan Singh case:
"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the ''offender' also require to be taken into consideration along with the circumstances of the ''crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances 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."
45. The three-Judges Bench in Machhi Singh (supra) further said that following questions must be answered in order to apply the guidelines :-
"(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?"
(Emphasis added)
46. In Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56, after referring to Bachan Singh (supra) and Machhi Singh (supra), Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh (supra) to cases where the "collective conscience" of community is so shocked that it will expect the holders of judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty, such a penalty can be inflicted. Court, however, underlined that full weightage must be accorded to the mitigating circumstances of the case and a just balance had to be struck between the aggravating and the mitigating circumstances.
47. In para 20 of the judgment in Haresh Mohandas Rajput (supra), Court observed that the rarest of the rare case comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of 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 acts 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 coexistence. 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 an accused does not act on any spur of the momentary 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 victims are innocent children and helpless women. 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, death sentence should be awarded.
48. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220, Court opined that imposition of appropriate punishment is the manner in which Courts respond to the society's cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that Courts reflect public abhorrence of the crime. Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
49. After referring to earlier authorities including Bachan Singh (supra) and Machhi Singh (supra), Supreme Court in Ramnaresh and others v. State of Chhattisgarh, (2012) 4 SCC 257 tried to lay down a nearly exhaustive list of aggravating and mitigating circumstances and in para 76 said as under :-
"Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 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.
(9) When murder is committed for a motive which evidences total depravity and meanness.
(10) When there is a cold-blooded murder without provocation.
(11) 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 and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused." (Emphasis added)
50. The principles laid down in Bachan Singh (supra) and Machhi Singh (supra) were sought to be followed and applied subsequently for deciding as to what sentence should be awarded but later on it was felt that the principles laid down in the above authorities are not being correctly applied and have led to inconsistency in sentencing process in India. It was also observed that the list of categories of murder crafted in Machhi Singh (supra) in which death sentence ought to be awarded are not exhaustive and needs to be given even more expansive adherence owing to changed legal scenario.
51. A three-Judge Bench in Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767, in para 43 of the judgment, said :-
"43. In Machhi Singh the Court crafted the categories of murder in which `the Community' should demand death sentence for the offender with great care and thoughtfulness. But the judgment in Machhi Singh was rendered on 20-7-1983, nearly twenty-five years ago, that is to say a full generation earlier. A careful reading of the Machhi Singh categories will make it clear that the classification was made looking at murder mainly as an act of maladjusted individual criminal(s). In 1983 the country was relatively free from organised and professional crime. Abduction for ransom and gang rape and murders committed in the course of those offences were yet to become a menace for the society compelling the Legislature to create special slots for those offences in the Penal Code. At the time of Machhi Singh, Delhi had not witnessed the infamous Sikh carnage. There was no attack on the country's Parliament. There were no bombs planted by terrorists killing completely innocent people, men, women and children in dozens with sickening frequency. There were no private armies. There were no mafia cornering huge government contracts purely by muscle power. There were no reports of killings of social activists and `whistle blowers'. There were no reports of custodial deaths and rape and fake encounters by police or even by armed forces. These developments would unquestionably find a more pronounced reflection in any classification if one were to be made today. Relying upon the observations in Bachan Singh, therefore, we respectfully wish to say that even though the categories framed in Machhi Singh provide very useful guidelines, nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh itself."
(Emphasis added)
52. In a recent judgment in Mukesh and another v. State (NCT of Delhi) and others, (2017) 6 SCC 1, a three-Judges Bench has confirmed death sentence in two concurring judgments rendered by Hon'ble Dipak Misra,J. (for himself and Hon'ble Ashok Bhusan,J.) and by Hon'ble R. Banumathi,J.
53. After referring to catena of decisions, earlier rendered on the question of sentence, it is observed that Court would consider cumulative effect of both factors i.e. aggravating and mitigating circumstances and has to strike a balance between the two and see towards which side the scale/balance of justice, tilts.
54. Hon'ble R. Banumathi,J. observed that factors like poverty, young age, dependants, absence of criminal antecedents, post crime remedies and good conduct in imprisonment cannot be taken as mitigating circumstances to take out the case in the category of rarest of rare case. In para 516 of concurring judgment, Hon'ble R. Banumathi,J. Court said :-
"Society's reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal justice system. As held in Om Prakash v. State of Haryana, (1999) 3 SCC 19, the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime." (Emphasis added)
55. In para 497 of the judgment in Mukesh and another v. State (NCT of Delhi) and others (supra), in concurring judgment by Hon'ble R.Banumathi,J. it is observed :-
" ... Courts have further held that where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolical manner, the accused should be shown no remorse and death penalty should be awarded." (Emphasis added)
56. The true import of aforesaid settled propositions of law is that awarding of life imprisonment for offence under Section 302 IPC is the rule and death sentence is an exception. Death sentence should only be awarded in cases which come under the purview of "rarest of rare case". Supreme Court, time and again has ruled that for awarding death sentence, Courts should specify the aggravating and mitigating circumstances of the case. What are the aggravating and mitigating circumstances would depends upon the facts of each case.
57. Mitigating circumstances are categorized as the manner and circumstances in and under which offence was committed; the age of the accused; the chances of the accused in not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated; if 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 and the circumstances which, in normal course of life would render such a behaviour possible and could have the effect of giving rise to mental imbalance. Mitigating circumstances may also be that if upon appreciation of evidence Court is of the view that crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime. Court has to see, if it is 'rarest of rare' case for awarding death sentence and in the opinion of Court any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice then only extreme punishment would be awarded. Moreover, aggravating circumstances are in relation to crime and victim while mitigating circumstances are broadly in relation to criminal. Balance between the two has to be ascertained by Court while determining "Rarest of rare" case. Circumstances discussed in aforesaid decisions are example but not exhaustive. No fixed formula has been set to formulate aggravating and mitigating circumstances and the discretion is left with Court which has to evaluate, depending on the facts and circumstances of each case.
58. Applying the exposition of law as discussed above, in the facts of the present case, we have examined the available aggravating and mitigating circumstances in the case in hand.
59. At the time of incident, accused was 35 years of age as is disclosed in his statement under Section 313 Cr.P.C. Before the incident his family consisted of himself, wife, old parents and five children (three daughters and two sons) and after the incident, family is reduced to appellant, parents and four children (two daughters and two sons). Appellant's father died during trial. The accused by profession is a Kumhar (Potter).
60. Now, coming to the aggravating circumstances, we find that he has committed murder of not only his wife but also minor but eldest daughter aged 12 years. Wife (Mamta) has been murdered by assaulting with stone and bamboo stick and daughter (Sapna) has been murdered by throwing and smashing her on ground and pressing her neck by feet. Postmortem report has disclosed brutal, grotesque, diabolical murder by doing violence with the private parts of wife and daughter, both. It is true that there is no allegation or finding of rape but brutality on the part of appellant is writ large from the fact that injuries on private parts are caused by inserting lathi (bamboo stick) as proved by P.W. 3 Dr. Rajesh Kumar Mishra.
61. Incident commenced when appellant started beating his daughter Sapna (deceased) and then took her towards field. When he brought her back she was unconscious and in the lap of accused-appellant. Thereafter appellant smashed her (Sapna) to brick floor. Sapna was crying with pain but appellant did not feel pity and put his feet on her neck till she died. She was bleeding from head, eyes, ear and nose. Appellant lifted dead body of Sapna (deceased daughter) and placed on the cot in the courtyard. Then he went on the roof and called his wife Mamta on the pretext that Sapna (deceased daughter) has suffered from fever and needs medicine. Thereupon Mamta came and as she reached the gate of the house, appellant took stone lying on the gate of the house and hit on the breast of his wife who fell down. Appellant started beating her with lathi (bamboo stick) and stone. Mamta, wife of appellant in order to save her life, tried to run and hide in Nala but appellant dragged her by leg and caused her to death by hitting with stone and bamboo stick. The manner in which offence was committed and also the magnitude of crime, in our view, places the present matter in the category of anti social or socially abhorrent nature of crime. We concur with the finding of Trial Court that two family members were murdered by accused-appellant in most brutal, grotesque, diabolical and dastardly manner arousing indignation and abhorrence of society which calls for an exemplary punishment. Wife and 12 years daughter have been murdered by appellant when both were helpless and there is nothing on record to show that they aggravated the situation so as to arouse sudden and grave passion on the part of appellant to commit such dastardly crime. Appellant has also not shown any remorse or repentance at any point of time, inasmuch as, he attempted to hide dead bodies by taking the same on the roof of his brother and behind cot and ran away from the house. Admittedly, when Informant in the morning reached the house of appellant, he (appellant) was not present in the house and after apprising himself of entire incident, Informant lodge the report. Appellant remained absconding till 11.08.2014. In the statement recorded under Section 313 Cr.P.C. also, we find no remorse on the part of appellant.
62. The above conduct, attitude and manner in which double murder has been committed by appellant shows that even other family members of appellant may not be safe, particularly, when his second daughter is the eye witness in the case.
63. Balancing mitigating and aggravating factors and looking to the fact that appellant has committed crime in a really shocking manner showing depravity of mind, in our view, the aggravating circumstances outweigh the mitigating circumstances by all canons of logic and punishment of life imprisonment would neither serve the ends of justice nor will be an appropriate punishment. Here is a case which can be said to be in the category of rarest of rare case and justify award of death punishment to accused-appellant. We are also clearly of the view that accused-appellant is a menace to the society and there is no chance of his rehabilitation or reformation and no leniency in imposing punishment is called for.
64. In the circumstances, we are of the view that death punishment imposed upon accused-appellant for the offence under Section 302 IPC is liable to be confirmed. Reference No. 05 of 2017 is liable to be allowed and accepted to the extent of confirmation of death penalty.
65. Further, impugned judgment and order also reveals that a fine of Rs. 20,000/- for the offence under Section 302 IPC and Rs. 5000/- for the offence under Section 201 IPC has been imposed upon accused-appellant and in default of payment of fine, accused-appellant has to undergo further two months R.I. each. In our considered opinion, as per analysis made hereinabove, when death penalty imposed upon accused-appellant for the offence under Sections 302 IPC is being confirmed, there is no occasion to impose fine against accused appellant for the reason that payment of fine has to be borne by family members of accused. Thus, we are of the view that fine imposed against accused-appellant for the offence under Sections 302 and 201 IPC are liable to be set aside but sentence imposed against him for the offences under Sections 302 and 201 IPC is liable to be affirmed.
66. In view of foregoing discussions, Reference No. 05 of 2017 submitted by Trial Court for confirmation of death punishment awarded to accused-appellant Sovaran Singh Prajapati for the offence under Section 302 IPC is hereby accepted and death punishment awarded to accused-appellant in the present matter is hereby confirmed. Conviction and sentence of imprisonment for the offence under Section 201 IPC is also confirmed against accused appellant but punishment of fine imposed by Trial Court for the said offences under Sections 302 and 201 IPC is hereby set aside.
67. In the result, instant appeal filed by accused appellant is partly allowed, modifying impugned judgment and order, as above. However, as provided under Section 415 Cr.P.C. execution of sentence of death shall stand postponed until the period allowed for preferring such appeal has expired and if an appeal is preferred within that period, until such appeal is disposed of. It is also clarified that death punishment shall only be executed in accordance with law complying with all guidelines laid down by Hon'ble Supreme Court time and again.
68. Let a copy of this judgment along with Trial Court record be sent to Court concerned for compliance and two copies of judgment as well as printed paper book be sent to State Government, as required under Chapter XVIII Rule 45 of Allahabad High Court Rules, 1952. A copy of the judgment be also sent to accused-appellant through Jail Superintendent concerned for intimation. Compliance report be also sent to this Court.
Order Date :- 01.10.2018
Siddhant Sahu/Akn
(Om Prakash-VII,J.) (Sudhir Agarwal,J.)