State Of U.P. vs Buddha on 9 May, 2022

[Cites 30, Cited by 0]

Allahabad High Court

State Of U.P. vs Buddha on 9 May, 2022

(Per: Brij Raj Singh, J.) This appeal has been filed under Section 374(2) Cr.P.C. against the judgment and order dated 24.01.2020 passed by the IVth Additional District and Sessions Judge/Special Judge/E.C. Act, Lucknow in Sessions Trial No.471 of 2010, arising out of Case Crime No.577 of 2009, under Sections 302/34, 307/34, 323/34, 452/34 I.P.C. and in Sessions Trial No.472 of 2010 arising out of Case Crime No.580 of 2009, under Section 3/25 Arms Act, Police Station Malihabad, District Lucknow, whereby the appellant was convicted and sentenced under Section 302/34 I.P.C. to death sentence and fine of Rs.25,000/- and in default of payment of fine to undergo simple imprisonment of one year, under Section 307/34 I.P.C. to rigorous imprisonment of ten years and fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment of additional six months, under Section 323/34 I.P.C. to simple imprisonment of one year, under Section 452/34 I.P.C. to rigorous imprisonment of seven years and fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment of additional three months, under Section 3/25 Arms Act to rigorous imprisonment of two years and fine of Rs.2,000/- and in default of payment of fine to undergo simple imprisonment of additional one month.

2. As per prosecution case, complainant - Rakesh Kumar lodged report at 4.50 A.M. on 12.12.2009. The complainant stated in the F.I.R. that at about 2.00 A.M. in the night of 12.12.2009 his mother Smt. Sursati, wife of late Sukru, nephew Suraj, aged about 10 years and niece Shivangi, aged about 8 years, were sleeping inside the house and the complainant was also sleeping beside them. The brother-in-law of complainant - Buddha, son of Galhu Raidas, resident of Village Raja Kheda, Police Station Mall, was married to the complainant's sister Deshpati prior to 10 years, but there was no cordial relation between them that is why Dehspati was married to Panchram, resident of Village Vilauli Fatehpur, Police Station Barabanki. She had come to meet the family members on Sunday and after meeting them she returned back. Buddha had enmity with the family and he entered into the house along with his two companions and he killed complaint's mother Sursati, nephew Suraj by using sharp-edged weapon and caused serious injuries on his niece Shivngi. Buddha and his companions assaulted the complainant and ran away from the place.

3. On the basis of written Tahrir, the report was lodged against the accused-Buddha and the Investigation Officer, Chandra Bhan Yadav investigated the case and after recording statement the charge sheet was filed in the Court under Sections 302, 307, 323, 452 I.P.C.

4. S.H.O. - Rajveer Singh lodged report on 15.12.2009 at 19.00 hours, in which it has been mentioned that Buddha was arrested by him and on his pointing out, the Banka was recovered and case was lodged under Section 3/25 Arms Act. The charge sheet was filed under Section 3/25 Arms Act. The charges were framed against Buddha under Sections 302/34, 307, 323, 452/34 I.P.C. on 20.09.2010 and similarly the charges were framed under Section 3/25 Arms Act on 20.09.2020.

5. Since both the cases were arising out of the same case crime, therefore, both the cases were connected together and trial of both the cases were held together.

6. The prosecution had produced as many as 15 witnesses to prove the case. P.W.-1 Rakesh Kumar, P.W.-2 Ram Chandar, P.W.-3 Constable Raj Dev, P.W.-4 Nazrul Hasan, P.W.-5 Rajesh, P.W.-6 Harish Chandra, P.W.-7 Deshpati, P.W.-8 Dr. S.N.S. Yadav, P.W.-9 Dr. Sunil Kumar Yadav, P.W.-10 Vinod Kumar Pandey, P.W.-11 Kishan Lal Jatav, P.W.-12 Retired Inspector Chandra Bhan Yadav, P.W.-13 Constable Tribhuvan Singh, P.W.-14 Raj Veer Singh, P.W.-15 S.I. Amrish Kumar.

7. The prosecution had also produced 35 exhibits on record. The F.S.L. report dated 25.02.2010, 18.05.2010 and 05.03.2010 were also available on record.

8. The accused has produced D.W.-1 Shankar Ram, D.W.-2 Sundar Lal and D.W.-3 Kewal in his defence.

9. The trial court conducted the trial and the statements were recorded of the prosecution witness and thereafter the accused was confronted with circumstances on which prosecution relied upon its case under Section 313 Cr.P.C. on 09.08.2019. The accused denied the prosecution case. In the statement under Section 313 Cr.P.C., he deposed that he was falsely implicated out of enmity. He further denied the recovery of Banka at his pointing out and pleaded that he was falsely implicated under Section 3/25 Arms Act. The accused further deposed before the court below that his wife had married to other person that is why he was falsely implicated in the case on the basis of doubt.

10. After adducing evidence on record, the trial court convicted the accused under Sections 302/34, 307/34, 323/34, 452/34 I.P.C. and Section 3/25 Arms Act and further reference dated 24.01.2020 has been sent to this Court seeking confirmation of death penalty, hence the present appeal.

11. Heard Shri Raza Zaheer, learned Amicus Curiae appearing on behalf of convict/respondent/appellant- Buddha and Shri Vimal Kumar Srivastava, learned Government Advocate assisted by Ms. Smiti Sahai, learned Additional Government Advocate for State/appellant.

12. The complainant - Rakesh Kumar (P.W.-1) deposed in examination-in-chief that his mother Smt. Sursati, nephew Suraj, niece Shivangi were sleeping inside the house on 12.12.2009. He further deposed that he was also lying on the cot beside them and Buddha along with his two companions entered into the house. His nephew Suraj raised alarm and he saw that Buddha along with two companions were assaulting his mother. He further stated that out of three assailants someone assaulted him with knife and he caught hold of the hand which was armed with knife. He threw quilt to the assailant and entered into other room which was filled with husk and escaped himself. It was further deposed before the court below that his sister Deshpati was married to Buddha ten years back, thereafter, his sister was married to other man Panchram, due to which Buddha was having enmity. Buddha used to come to his village and used filthy language and many times he threatened his family to face dire consequences. He further stated that his sister had come to the village but she had returned back to her husband's residence prior to one day from the date of the incident. On the alarm raised by him many villagers came to the place of occurrence and in the meantime, his mother and nephew died. Shivangi was badly injured who was admitted to Trauma Centre by the police. The said facts were narrated by him to his cousin Prem Chandra who read over the contents of the application and the same was signed by him.

13. He admitted in the cross-examination that his sister was married second time but there was no divorce between her and accused-Buddha. She was married in the court. He further admitted that when his sister was present at the house, Buddha had come one or two times and he threatened his sister and the family members. The information was sent to the police regarding the threat given by Buddha but no action was taken by the police. He further admitted in the cross-examination that his sister was married second time in the year of the incident. He stated that there are ten or eleven houses nearby his house and there are three accused. He raised alarm due to which people of the village came to the place of occurrence but he could not tell for how long they stayed there. He could not chase the accused and he jumped in the husk-room. He accompanied the police who raided the house of the accused. The dead-body of the mother was taken away for last rites at 5.00 a.m. He further admitted that his sister was separated from Buddha and no notice was given to Buddha regarding the separation of his sister. He submitted that it is wrong to say that Buddha did not commit the murder. He received injury caused by the accused at the time of occurrence and accused has been charged because of his gruesome act of committing murder.

14. In the cross-examination P.W.-1 admitted that his sister was married in the Court and he was not present at the time of marriage. His sister lived with Buddha for 10 years, thereafter, he and his family members arranged second marriage of his sister. He stated that he received injury on his hand who was examined by the Doctor and he had no idea whether the injury report was available on record.

15. P.W.-2, Ram Chandar was also examined who supported the prosecution case and stated that he was present at the brick kiln where he was working. He admitted that he got information while he was present at brick kiln (Bhattha) and got information that there was incident of loot at his house. He admitted that on the information, he reached to his village where he found that his mother and male child had died and his daughter was badly injured and hospitalized by the police in Trauma Centre. He further admitted that is daughter Shivangi died in Trauma Centre. In his cross-examination, P.W.-2 Ram Chandar admitted that accused - Buddha was brother in law and was of a bad character due to which he was sent to jail number of times. His sister was unhappy due to bad habits of Buddha, therefore, she was married second time with Pancharam. Buddha was having enmity due to the second marriage of his sister and many times he threatened to kill the family members.

16. P.W.-3 Constable Raj Dev, P.W.-4 Nazrul Hasan SSI, P.W.-8 Dr. S.N.S. Yadav, C.M.O., P.W.-9 Dr. Sunil Yadav, P.W.-10 Vinod Kumar Pandey, P.W.-11 Kishan Lal Jatav S.I., P.W.-12 Inspector Chandra Bhan Yadav, P.W.-13 Tribhuvan Singh, Constable Moharrir, P.W.-14 Raj Veer Singh, Station In-charge, Malihabad, P.W.-15 Amrish Kumar, S.I., are formal witnesses, who have proved the document. P.W.-5, Rajesh brother of P.W.-1 and P.W.-6 Harish Chandra the brother of complainant and P.W.-7 Deshpati, sister of the complainant was also examined before the court. It is worth to be noted here that P.W.-5, P.W.-6 and P.W.-7 are not witnesses of the incident and all the three witnesses have admitted in the cross examination that they were not present at the time of the incident otherwise they have supported the prosecution case to the effect that accused Buddha had enmity with their family due to the reason that Dehspati was married to other man Pancharam. All the three witnesses have stated that due to enmity the accused Buddha has committed the crime by killing Sursati, Suraj and Shivangi.

17. P.W.-3, Constable Raj Dev was examined before the court and he deposed that the Banka was recovered from Buddha and the recovery memo was prepared which was signed by him and he proved the documents of recovery. P.W.-4, S.S.I. Nazrul Hasan deposed before the court that he arrested the accused Buddha on 15.12.2009 and recovered Banka and Section 3/25 Arms Act was imposed by him due to recovery of illegal arms. He further stated before the court that Buddha made confession that he killed Sursati, Suraj and Shivangi. P.W.-8 Dr. S.N.S. Yadav, C.M.O. was also examined who stated that he was posted as Medical Officer in Balrampur Hospital on 12.12.2009 and the post-mortem of all the three deceased was conducted by him. The injuries received by the deceased, have been described by the doctor. The post-mortem report of Shivangi, Sursati and Suraj indicates the nature of injury. Following antemortem injuries were found on the body of Shivangi:-

"Ante-mortem Injuries:-

Multiple incised wound in an area 18 cm X 12 cm present in Rt. Side forehead, face & Rt. side Head joint in-front of Rt. ear size varying from 2.5 cm X 1 cm X Bone deep to 7 cm X 2 cm X Brain cavity deep. Margins of all above injuries are sharp clean cut & well defined.

On-Opening:- Ecchymosis present underneath all the injuries mentioned above. Frontal bone on Rt. side Rt. maxilla, Rt. Temporal & parietal Bone (Rt.) found cut underneath the injury mentioned above. Meaninges & brain matter Rt. side found cut at multiple places. Subdural haematoma present above the brain. Rt. middle cranial Fossa & Rt. Ant. Cranial fossa fractured. Lt. Ring finger, middle finger & index finger found cut through & through. Amputated part is missing, Margin Sharp clean cut & well defined. Ecchymosis present underneath the injuries."

Cause of death of Shivangi as opined by the doctor is due to coma as a result of ante-mortem head injury as noted.

Post-mortem report of Sursati indicates five injuries:-

"Ante-Mortem Injuries-

1. Incised wound 2.5 cm X 1 cm X bone deep present on Rt. side face 1 cm below lobule of Rt. ear.

2. Incised wound 3 cm X 1 cm X bone deep present on Rt. side near the below injury no.1.

3. Incised wound 2 cm X 1 cm X Bone deep present on Rt. side Forehead 2 cm above Rt. eyebrow.

4. Incised wound X Bone deep present on Lt. Cheek.

5. Multiple Incised wound in an area 18 cm X 12 cm present in side face & head 2 cm behind outer angle of Lt. eye size varying from 3 cm X 1 cm X Bone deep X 2 cm X Brain cavity deep. Margins of all above injury are sharp clean cut & well defined.

On-Opening:- Ecchymosis present underneath all the injuries mentioned above. Underlying bone found cut underneath the injury mentioned above. Margins & Brain matter found cut & Multiple places. Sub dural haematoma present above the brain."

The Doctor has opined that the cause of death is due to coma as a result of ante-mortem injuries as noted.

Post-mortem report of Suraj indicates one injury:-

"Anti-Mortem Injuries:-

1. Multiple incised wound in area 18 cm X 12 cm present on left side face and head 3 cm behind outer angle of the left eye size has varries from 3 cm X 1 cm into bone deep to 8 cm X 3 cm in brain cavity deep.

Margin sharp clean cut and well defined.

On-Opening:- Ecchymosis present underneath injury left side temporary, left parietal, frontal and occipital bone on left side found cut and depression and underneath the injury noted above.

- Left side middle cranial fossa fracture margins and brain matter on left side found cut at multiple places.

- Sub dural haematoma present all over the brain."

The doctor has opined that the cause of death is due to coma as a result of ante-mortem injury as noted.

18. P.W.-9, Dr. Sunil Kumar Yadav was also examined before the court below and he proved the fact that he conducted the postmortem. According to him, Suraj aged about 10 years died prior to half day. He has given opinion that death is due to comma and ante-mortem injuries.

19. P.W.-10, Vinod Kumar Pandey was also examined before the court below and he stated that he conducted the Panchayatnama of deceased Suraj. The Panchayatnama was conducted in presence of Shyam Bihari, Shiv Sagar, Laxman Prasad and Vinod Kumar. He proved the exhibit of Panchayatnama and all the related documents were proved by him.

20. P.W.-11, Kishan Lal Jatav deposed in his examination-in-chief that he was posted as S.I. in Police Station Malihabad on 15.12.2009 and he conducted the investigation of Case Crime No.580 of 2009, under Section 3/25 Arms Act. On the pointing out of the witnesses, he prepared the site plan of the place of occurrence and accused Buddha was charge-sheeted by him on the basis of approval dated 04.02.2010 by the prosecution authority. He proved all the related documents. He further admitted in the examination that he investigated the case under Section 3/25 Arms Act and visited the place of occurrence and prepared the site plan. He stated that he recorded the statement of witnesses who were belonging to the police party and there was no independent witness. He further admitted that recovery of weapon was made in his presence.

21. P.W.-12, Retired Inspector, Chandra Bhan Yadav was also examined before the court. He admitted that the aforesaid Case Crime No.577 of 2009, under Sections 307, 302, 452, 323 I.P.C. was registered in his presence. He further deposed before the court that on the pointing of complainant, the site plan was prepared by him. He also collected the blood stained soil. He also sealed blood stained bed. The entire documents related to the aforesaid proceeding were proved by the witnesses. In his cross-examination, he admitted that S.I., Vinod Kumar Pandey and other police constable reached the place of occurrence, Rakesh Kumar was not appointed as Panch. He further admitted that he did not send the blood stained soil and blood stained clothes for examination by F.S.L. He further admitted that the entire bundle which was sealed by him, was opened before him and they are pertaining to blood stained soil, blood stained cloth and blood stained bed on which case crime numbers are mentioned. P.W.-12 has proved the entire exhibits from exhibit 1 to 14. He also proved exhibit Ka-21 and Ka-19. He admitted that inquest of deceased Sursati was prepared by him on 12.12.2009. He proved the inquest of deceased Sursati as Exhibit - 26.

22. P.W.-13, Constable Tribhuvan Singh was also examined before the court who admitted that he was posted as Constable Moharrir on Police Station Malihabad on 12.12.2009. On the written Tahrir of Rakesh Kumar, the F.I.R. was lodged. Similarly P.W.-14, Raj Veer Singh also deposed that earlier the said case was investigated by S.I., Chandra Bhan Yadav and thereafter, he started the investigation on Parcha - A. He recorded the statement of complainant and his family members. He further admitted that he prepared the recovery memo of blood stained Banka and site plan of the place of incident. He further submitted that on the basis of material collected by him accused Buddha was charge-sheeted by him in Charge Sheet No.38/2010. He proved the related exhibit documents.

23. P.W.-15, S.I. Amrish Kumar was examined before the court below. He submitted that the death memo of Shivangi was made available to him and Panchayatnama was done at 14.20 hours and ended 15.15 hours. He further admitted that the inquest was prepared before him. He proved the inquest report Ex.-30, Ex.-11 and Ex.-12.

24. D.W.-1, Shankar Ram was also examined before the court and he deposed in examination-in-chief that Buddha is known to him who used to ply rickshaw. He further admitted that Buddha was married with Deshpati prior to 6-7 years and she deserted Buddha and married somewhere else. Buddha used to reside with his mother and he came to know in the year 2009 that Buddha was arrested by the police for the reason that he committed murder of his mother-in-law. He further deposed before the court that Buddha was present with him on the night of the incident and he remained with him throughout night. He further deposed that Buddha had never gone to any place. In the cross-examination, D.W.-1 has admitted that his village and village of Buddha is same and he further deposed that Buddha used to ply rickshaw in Lucknow prior to 6-7 years from the date of incident. Buddha was working at brick kiln at Bakshi Ka Talab on the date of incident. Buddha used to come to his house after every 10-15 days. He further admitted that Buddha is his nephew.

25. D.W.-2, Sundar Lal was examined before the court below who deposed that Buddha is son of his elder father and used to work at brick kiln. He further admitted that he was married with working woman at brick kiln and he has no knowledge about the date of the incident. He further deposed that Buddha met him at the morning and evening on the date of the occurrence and Buddha was falsely implicated. He deposed that Buddha did not commit the crime.

26. D.W.-3, Kewal was also produced before the court, who deposed that the incident took place prior to 10 years. He also admitted that Buddha met him in the morning and at evening on the date of occurrence and Buddha was falsely implicated. He also admitted that Buddha used to ply rickshaw at Lucknow.

27. Learned counsel for the appellant-accused has submitted that there is no source of light mentioned in the F.I.R. as well as in the statement of P.W.-1 and the incident took place on 12.12.2009 at 2.00 a.m. He further submitted that there is no description as to how the informant recognized the accused and parentage of the accused, has not been mentioned. The informant has also not mentioned the type of the weapon used by the accused. It has been further submitted that informant has not stated as to how long he had hidden himself during the commission of offence and when the villagers came to the place of occurrence and it has been submitted that the presence of informant at the place of occurrence is highly doubtful.

28. He has further submitted that P.W.-2, Ram Chandar has admitted that he got information on mobile phone that the loot had taken place at his house, therefore, the entire prosecution story appears to be false and the murder took place in the incident of dacoity. He has further submitted that two witnesses of the recovery, namely, Harish Chandra and Rajesh were not produced in the court and their statements were not recorded. It is argued that in absence of the cross examination of the aforesaid two witnesses, the recovery of Banka is false. The recovery is not genuine and the prosecution case is standing on weak footing.

29. Learned counsel for the appellant-accused has further submitted that defence witness-1, Shankar Ram has clearly stated that accused Buddha was present with him in the night of the incident and on the basis of plea of alibi the accused is liable to be acquitted. He has further submitted that D.W.-2 and D.W.-3 deposed before the court that Buddha met them and told that he was not present at the place of occurrence and strong plea of alibi has been pleaded by the counsel for the appellant.

30. Learned counsel for the accused-appellant has further submitted that trial has not been conducted in fair manner and P.W.-1 was not cross-examined in detail. It is, thus, clear that the evidenciary value of the witnesses were destroyed. Lastly, he has further submitted that death punishment was not warranted and it is not coming from the purview of the rarest of the rare case. There is no material which shows that the accused has grave and serious threat to the society.

31. Learned counsel for the appellant has further submitted that there is no source of light mentioned in the F.I.R. It is admitted case that Buddha is brother-in-law of P.W.-1 and they are closely related to each other. It is always easy to recognize the close acquainted relative, even if there is no source of light. The alarm was raised by Suraj, nephew of P.W.-1 and he woke up and made protest and was caused injury by the accused. There is sufficient time and circumstance to recognize Buddha who is close relative of the appellant. The argument of the source of light, has no relevance in the present case. His other argument that two witnesses, namely, Harish Chandra and Rajesh were not produced, has also no relevance. It is worth to be mentioned that Banka was proved by P.W.-14 Constable Raj Veer Singh. He admitted that he prepared recovery memo of blood stained Banka and site plan of the place of incident. The F.S.L. report was obtained and it was found that human blood was found on the Banka. In absence of examination of witnesses, Harish Chandra and Rajesh, recovery of Banka cannot be falsified.

32. P.W.-1, Rakesh Kumar has categorically stated that the accused-Buddha entered into his house at 2.00 a.m. on 12.12.2009 and assaulted his mother, Sursati and nephew Suraj by causing injury with Banka and killed them. He also assaulted his niece Shivangi with Banka who was badly injured and later on died in the Trauma Centre. P.W.-1 has submitted that he is witness of the incident and injury was caused to him by Buddha and his companions with knife. He ran away from the place and could hide himself in the husk-room. It is noted that the blood stained sweater Ex. Ka-2 and injury of P.W.-1 Ex. Ka-3 was proved before the court. It is, thus, clear that P.W.-1 is the eye witness of the incident and strong motive has been assigned behind triple murder. The motive is very strong, the accused had come to kill his ex-wife, the daughter of deceased Sursati. It has already come on record that her ex-wife, Deshpati had returned to her husband's house prior to one day. The accused came to kill her but he could not find Deshpati in the house and the deceased were killed by him out of enmity. The strong motive can be attributed to accused in view of the fact that the deceased mother-in-law was instrumental in the second marriage of Deshpati, due to which accused Buddha had strong motive to eliminate her. Since, the two children were also sleeping side by side of their grandmother and were witnesses of the said incident that is why they were also eliminated by the accused and his companion by making assault on them. In cross-examination, P.W.-1 has admitted that his sister Deshpati was married with accused-Buddha prior to ten years. Buddha was a drunkard and did not do anything to earn livelihood for sustenance of the family. His sister was beaten many times by Buddha, that is why P.W.-1 and his family members married his sister second time with Pancharam, the resident of Barabanki. In cross-examination, it is admitted by P.W.-1 that his sister Deshpati had come to his house one day before and she had returned back to her husband's house. It is further stated that Buddha had information that his sister was present in his house that is why he came to kill her but killed his mother Surasati, nephew Suraj and niece Shivangi. It is direct evidence against the accused.

33. P.W.-1 is the eye witness who was present at the place of occurrence. P.W.-1, Rakesh Kumar, P.W.-2 Ram Chandar, P.W.-5, Rajesh, P.W.-6 Harish Chandra, P.W.-7 Deshpati have strongly attributed the strong motive behind killing of Sursati, Suraj and Shivangi. P.W.-7, Deshpati has stated that Buddha was married with her and did not do any work for sustenance of the family and she further stated that she was married second time with Pancharam that is why Buddha had enmity with her and entire family. She further stated that prior to one day she had returned back to her husband's residence. It is further relevant to mention here that the marriage of Buddha with Deshpati was admitted by D.W.-1 Shankar Ram and D.W.-2 Sundar Lal, thus, the strong motive can be attributed to the accused in the present case.

34. The prosecution witness, Nazrul Hasan P.W.-4, deposed before the court that Buddha was arrested by him on 15.12.2009 and on his pointing out Banka Ex.-5 was recovered which was proved in the court. F.S.L. report on the Banka was also obtained from laboratory and the human blood was found on the Banka. As per report, the recovery of Banka was also proved before the court. S.I. Vinod Kumar Pandey (P.W.-10) had proved the inquest report of deceased Suraj, Shivangi and all the documents relating to the inquest proceedings have been proved in the court.

35. Chandra Bhan Yadav (P.W.-12) had collected the blood stained soil and sweater and exhibit of the same were proved. He proved the entire Ex.-1 to Ex.-14 related to sweater, blood stained soil, box, soil, the bed, the hair of the deceased, bundle, papers etc. The blood stain was found on sweater, Kathari, blood stained soil, Saree, Blouse, Petticoat, Pant.

36. The inquest of deceased, Sursati, the Police Form No.13, photographs were also proved by the I.O. Chandra Bhan Yadav before the court. Similarly, the inquest of deceased Shivangi and all the related papers of Shivangi including postmortem were also proved. The postmortem of Sursati was also proved before the court by Dr. S.N.S. Yadav (P.W.-8). The doctor had deposed before the court that deceased Shivangi and Sursati were assaulted on their face and head with sharp edged weapon and they received many injuries. The doctor further admitted that the deceased died due to ante-mortem injuries. The postmortem of Suraj was also proved by Dr. Sunil Kumar Yadav (P.W.-9) who stated that Suraj also received injury with sharp-edged weapon on his face and head. He also opined that Suraj died due to ante-mortem injuries. The site plan prepared by Chandra Bhan Yadav (P.W.12) also proved as Ex.-Ka-28. He also proved blood stained sweater, box and lighter. The I.O., Raj Veer Singh (P.W.14) also proved the recovery of the Arm and he also proved the site plan and the F.I.R. in Case Crime No.577 of 2009, under Sections 307, 302, 452, 323 I.P.C.

37. D.W.-1 was examined before the court below who said that accused Buddha was present with him in the night of occurrence but in cross examination the said witness has admitted that Buddha used to work at brick kiln situated at Bakshi Ka Talab. The timing was not ascertained as to when he used to come. He admitted that Buddha was his nephew. Similarly, D.W.-2, Sundar Lal deposed before the court that he met with Buddha in the morning and at the evening. It was further stated that Buddha used to work at Barabanki, Sitapur, Lucknow and used to come after one week. D.W.-3 had admitted that Buddha met him in the morning and evening on the date of occurrence. He also admitted that Buddha used to ply rickshaw in Lucknow but he could not tell as to when Buddha used to come to village. All three defence witnesses did not make statement either before Investigating Officer or Superintendent of Police regarding the presence of Buddha. These witnesses could not produced credible evidence to prove the plea of alibi. Thus, the plea of alibi is not trustworthy.

38. P.W.-1 Rakesh Kumar received injury Ex.Ka-3, which is not serious one but he had received two cut wound 1 cm x 1.5 cm, deep muscle on the right palm. The second cut injury 1 cm x 2 cm deep muscle on left side. Though, the doctor was not examined but the injured witness Rakesh Kumar had deposed before the court that he received two injuries on his hand and ran away from the place and could hide himself to save his life. It is, thus, clear that P.W.-1 was assaulted and is the witness of incident, therefore, the prosecution has proved the case beyond reasonable doubt.

39. Accused - Buddha was arrested on 15.12.2009 and there was recovery of 12 bore country made pistol, two live cartridges of 12 bore. The said fact was admitted by Nazrul Hasan (P.W.-4) in the court during examination-in-chief. Exhibits of recovery was also proved and the site plan for recovery, the charge sheet Ex.Ka-17 were proved by Kishan Lal Jatav (P.W-11).

40. The defence counsel has vehemently argued that it was the case of dacoity and murders were committed. P.W.-2 Ram Chandar got information that there was dacoity in his house. It is astonishing as to how the information of loot was given to Ram Chandar (P.W.-2) and why the information of murder was not given to him. It is, thus, clear that the prosecution cannot be disbelieved on the aforesaid statement of Ram Chandar (P.W.-2) who is not witness of the case. The statement of P.W.-1, Rakesh goes to show that accused - Buddha was arrested and on his pointing out the weapon of assault Banka was recovered. There was human blood found on it. P.W.-1 has narrated the manner of assault by the accused and how the deceased were mercilessly assaulted by accused. The prosecution case is intact and cannot be disbelieved. The argument that there is no independent witness of the case, has no relevancy in the present case. The statement of P.W.-1, P.W.-2, P.W.-5, P.W.-6 and P.W.-7, if perused together, the prosecution case is intact and there is no iota of doubt that accused has not committed the crime. Though, there is no independent witness but the entire prosecution case as stated by the aforesaid witnesses goes to show that offence has been committed by the accused. The formal witnesses have proved the documents and the weapon used in furtherance of crime.

41. It is true that capital punishment is discussed in the social and judicial platform frequently. Undisputedly, neither possible nor prudent to state any cursory form which would be applicable to all the cases of criminology whether capital punishment has been prescribed. Each cases should be examined on its own fact in the light of the principles for death penalty, the circumstances of the offender are also required to be taken into consideration along with the circumstance of crime for the reason that life imprisonment is the rule and death sentence is an exception.

42. Before going into the propriety of sentence imposed upon the accused - appellant, we have to deal the cases with respect to the death penalty and a glance is required to be taken in view of the judgment of Hon'ble the Supreme Court.

43. Hon'ble Supreme Court in the case of Bachan Singh Vs. State of Punjab : AIR 1980 SC 898 has dealt the capital punishment in detail. The relevant paragraph of the judgment is reproduced here-in-below:-

"132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware -- as we shall presently show they were -- of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235 (2) and 354 (3) in that Code providing for presentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302 of the Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19."

"200. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v, Georgia, in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances":

"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 CrPC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.

201. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.

204. Dr. Chitaley has suggested these mitigating factors:

"Mitigating circumstances":- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

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

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the 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 unpaired his capacity to appreciate the criminality of his conduct.

207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.

209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high-road of legislative 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. The law propounded by Hon'ble the Supreme Court in the case of Macchi Singh Vs. State of Punjab : (1983) 3 SCC 470 is also worth to be looked into from the point of view of the rarest of rare case and two questions have been formulated to determine the rarest of rare cases in which the death sentence can be awarded. The two questions formulated in the said case is quoted here-in-below:-

"(i) Is there something uncommon, which tenders sentence for imprisonment for life inadequate calls for death sentence ?

(ii) Rather the circumstances of the crime such that there is no alternative, but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speaks in favour of the offender ?"

45. Hon'ble Supreme Court in Macchi Singh v. State of Punjab (supra), then, proceeded to lay down the circumstances in which death sentence may be imposed for the crime of murder and has held as under :

"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence-in-no-case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by "killing" a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self- preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so "in rarest of rare cases" when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when

(a) a hired assassin commits murder for the sake of money or reward

(b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or

III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of "bride burning" and what are known as "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

38. In this background, the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case.

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme 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 has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."

46. In the case of Macchi Singh Vs. State of Punjab (supra) Hon'ble the Supreme Court has confirmed the death sentence awarded to Kashmir Singh, as he was found guilty of causing death to a poor child aged about 6 years.

47. The law propounded by Hon'ble Supreme Court in the case of Bachan Singh and Macchi Singh (supra) are the source for deciding a case whether death penalty has been awarded and till today the aforesaid cases are the very important to weigh the conviction of death penalty. The principle for looking into the death penalty can be seen in the following three principles:-

(i) Conviction based on circumstantial evidence alone.

(ii) Failure of the prosecution to discharge its onus.

(iii) A case of residual dues.

(iv) Where the other peculiar mitigating circumstances outweighed aggravating circumstances.

48. The issue has again came up before Hon'ble Supreme Court in Ramnaresh & others v. State of Chhattisgarh : (2012) 4 SCC 257, wherein the Hon'ble Supreme Court reiterated 13 aggravating and 7 mitigating circumstances as laid down in the case of Bachan Singh v. State of Punjab (Supra) required to be taken into consideration while applying the doctrine of "rarest of rare" case. The relevant para of the aforeaid judgment of the Hon'ble Supreme Court reads as under :

"76. The law enunciated by this Court in its recent judgements, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra). The aforesaid judgments, primarily dissect these principles into two different compartments - one being the "aggravating circumstances" while the other being the "mitigating circumstances". The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354 (3) of Cr.P.C.

Aggravating Circumstances:

(1) The offences relating to the commission of heinous 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 Cr.P.C.

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

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

(11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold blooded murder without provocation.

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

Mitigating Circumstances:

(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 behavior 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 behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and 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 eye-witness though prosecution has brought home the guilt of the accused."

49. In Sk Abdul Hamid vs. State of MP reported in (1998) 3 SCC 188, while dealing with the question of sentence for the offence of murder, has observed thus:-

"9. Now, coming to the death sentence awarded to the appellants which was confirmed by the High Court, it may be noted that under sub-section (3) of Section 354 CrPC when the conviction is for an offence punishable with death or in the alternative, with an imprisonment for life, the Court is required to state reasons for sentence awarded, and in case of sentence of death, the special reasons for such sentence are to be given. Thus, under the provisions of the Code of Criminal Procedure, life imprisonment for the offence of murder is the rule and death sentence is an exception to be resorted to for special reasons to be recorded by the Court. This Court in a number of decisions has laid down guidelines when the extreme penalty of death sentence is to be awarded. (See: Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab.) In these cases, it was pointed out that death penalty could be awarded in the rarest of rare cases and the circumstance, when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner, so as to arouse intense and extreme indignation of the community would fall within the category of the rarest of rare cases.

10. Special reasons given by the trial court in awarding death sentence to the appellants and confirmed by the High Court, were that it was such a cruel act where the appellants have not even spared the innocent child and the motive being to grab the property. We have given our earnest consideration to the question of sentence and the reasons given by the High Court for awarding death sentence to the appellants. Having regard to the guidelines stated above, it may be noticed that in the present case it was not pointed out by the prosecution that it was a cold-blooded murder. There is nothing on record to show how the murder has taken place. In the absence of such evidence, we do not find that the case before us falls within the category of the rarest of rare cases, deserving extreme penalty of death. Keeping in view the afore-stated facts, we are of the view that the ends of justice would be met if we substitute the death sentence with that of life imprisonment under Sections 302/34 IPC, while upholding the appellants' conviction, as recorded by the High Court."

50. In the matter of Dharam Deo Yadav vs. State of UP reported in (2014) 5 SCC 509, the Supreme Court has held thus:-

"36. We may now consider whether the case falls under the category of rarest of the rare case so as to award death sentence for which, as already held, in Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 this Court laid down three tests, namely, Crime Test, Criminal Test and RR Test. So far as the present case is concerned, both the Crime Test and Criminal Test have been satisfied as against the accused. Learned counsel appearing for the accused, however, submitted that he had no previous criminal records and that apart from the circumstantial evidence, there is no eye-witness in the above case, and hence, the manner in which the crime was committed is not in evidence. Consequently, it was pointed out that it would not be possible for this Court to come to the conclusion that the crime was committed in a barbaric manner and, hence the instant case would not fall under the category of rarest of rare. We find some force in that contention. Taking in consideration all aspects of the matter, we are of the view that, due to lack of any evidence with regard to the manner in which the crime was committed, the case will not fall under the category of rarest of rare case. Consequently, we are inclined to commute the death sentence to life and award 20 years of rigorous imprisonment, over and above the period already undergone by the accused, without any remission, which, in our view, would meet the ends of justice."

51. In Kalu Khan v. State of Rajasthan reported in (2015) 16 SCC 492, the Hon'ble Supreme Court has held that:-

"30. In Mahesh Dhanaji Shinde v. State of Maharashtra, the conviction of the appellant-accused was upheld keeping in view that the circumstantial evidence pointed only in the direction of their guilt given that the modus operandi of the crime, homicidal death, identity of 9 of 10 victims, last seen theory and other incriminating circumstances were proved. However, the Court has thought it fit to commute the sentence of death to imprisonment for life considering the age, socio-economic conditions, custodial behaviour of the appellant-accused persons and that the case was entirely based on circumstantial evidence. This Court has placed reliance on the observations in Sunil Dutt Sharma v. State (Govt. of NCT of Delhi) as follows: (Mahesh Dhanaji case, SCC p. 314, para 35) "35. In a recent pronouncement in Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), it has been observed by this Court that the principles of sentencing in our country are fairly well settled -- the difficulty is not in identifying such principles but lies in the application thereof. Such application, we may respectfully add, is a matter of judicial expertise and experience where judicial wisdom must search for an answer to the vexed question -- Whether the option of life sentence is unquestionably foreclosed? The unbiased and trained judicial mind free from all prejudices and notions is the only asset which would guide the Judge to reach the ''truth'."

31. In the instant case, admittedly the entire web of evidence is circumstantial. The appellant-accused's culpability rests on various independent evidence, such as, him being "last seen" with the deceased before she went missing; the extra-judicial confession of his co-accused before PW 1 and the village members; corroborative testimonies of the said village members to the extra-judicial confession and recovery of the deceased's body; coupled with the medical evidence which when joined together paint him in the blood of the deceased. While the said evidence proves the guilt of the appellant-accused and makes this a fit case for conviction, it does not sufficiently convince the judicial mind to entirely foreclose the option of a sentence lesser than the death penalty. Even though there are no missing links in the chain, the evidence also does not sufficiently provide any direct indicia whereby irrefutable conclusions can be drawn with regard to the nexus between "the crime" and "the criminal". Undoubtedly, the aggravating circumstances reflected through the nature of the crime and young age of the victim make the crime socially abhorrent and demand harsh punishment. However, there exist the circumstances such as there being no criminal antecedents of the appellant-accused and the entire case having been rested on circumstantial evidence including the extra-judicial confession of a co-accused. These factors impregnate the balance of circumstances and introduce uncertainty in the "culpability calculus" and thus, persuade us that death penalty is not an inescapable conclusion in the instant case. We are inclined to conclude that in the present scenario an alternate to the death penalty, that is, imprisonment for life would be appropriate punishment in the present circumstances."

52. In Allauddin Mian v. State of Bihar reported in (1989) 3 SCC 5, it was laid down that unless the nature of crime and the circumstances of the offender reveal that the criminal was a menace to the society and the sentence of life imprisonment would be altogether inadequate, the court should ordinarily impose a lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only.

53. In A. Devendran v. State of Tamil Nadu reported in (1997) 11 SCC 720, which is a case of triple murder, the Hon'ble Supreme Court held that the trial court was not justified in awarding death sentence as the accused had no pre-meditated plan to kill any person and as the main object was to commit robbery.

54. In Om Prakash v. State of Haryana reported in (1999) 3 SCC 19, a dispute over a small house between two neighbours resulted in the murder of seven persons. Death sentence was imposed on the accused by the trial court which was confirmed by the appellate court. The Hon'ble Supreme Court observed that the bitterness increased to a boiling point and the agony suffered by the appellant and his family members at the hands of the other party, and for not getting protection from the police officers concerned or total inaction despite repeated written prayers, goaded or compelled the accused to take law in his own hands which culminated in the gruesome murders. The accused was a BSF Jawan aged 23 at the time of incident. The Hon'ble Supreme Court commuted the death penalty to imprisonment for life.

55. In the case of Accused 'X' v. State of Maharashtra, reported in (2019) 7 SCC 1, the Supreme Court, while considering the post-conviction mental illness of accused/death row convict as mitigating factor, has observed as under:

"55. Having observed some of the general aspects of sentencing, it is necessary to consider the aspect of post-conviction mental illness as mitigating factor in the analysis of ''rarest of the rare' doctrine which has come into force post Bachan Singh case (supra).

56. As a starting point, we need to refer to Piare Dusadh v. King Emperor, AIR 1944 FC 1, that has already recognized pos-conviction mental illness as a mitigating factor in the following manner: (SCC OnLine FC) "Case No. 47-The applicant in this case was convicted by a Special Judge of the offence of murder and was sentenced to death on 30.9.1942. His appeal to the Allahabad High Court was dismissed and the sentence of death was confirmed.

The appellant is a young man of 25 who has been twice widowed. His victim was his aunt, 30 years of age, whose husband (Kanchan) had about six years previously murdered his own brother, appellant's father. Kanchan was sentenced to death for the murder, but lost his reason while awaiting the execution of the death sentence, and is now detained as a lunatic.

The evidence in this case leaves no room for doubt that the appellant was rightly convicted of murder. There is some confusion as to the exact motive for the undoubtedly brutal assault of which the appellant made his aunt the victim. The prosecution alleged that the appellant being a widower was chagrined by the refusal of his aunt to become his mistress. In his statement before, the Special Judge he said that another uncle (P.W. 7) who according to the appellant was behind the prosecution was on terms of improper intimacy with the deceased and resented even small acts of kindness on the part of the deceased towards the appellant. In the appeal preferred by him through the jail authorities to the High Court, the appellant stated that his aunt was a woman of loose character and was pursuing him with unwelcome attentions. The previous history of this family indicates that the appellant probably suffers from an unbalanced mind. The nature and ferocity of the assault upon his aunt appear to confirm this. In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind. He has besides been awaiting the execution of his death sentence for over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death. We accordingly reduce the sentence of death to one of transportation for life and subject to this modification dismiss the appeal."

(emphasis supplied) However, this case does not provide any guidelines or the threshold for evaluating what kind of mental illness needs to be taken into consideration by the Courts.

57. We note that, usually, mitigating factors are associated with the criminal and aggravating factors are relatable to commission of the crime. These mitigating factors include considerations such as the accused's age, socio-economic condition etc. We note that the ground claimed by ''accused x' is arising after a long time-gap after crime and conviction. Therefore, the justification to include the same as a mitigating factor does not tie in with the equities of the case, rather the normative justification is founded in the Constitution as well as the jurisprudence of the ''rarest of the rare' doctrine. It is now settled that the death penalty can only be imposed in the rarest of the rare case which requires a consideration of the totality of circumstances. In this light, we have to assess the inclusion of post-conviction mental illness as a determining factor to disqualify as a ''rarest of the rare' case.

59. All human beings possess the capacities inherent in their nature even though, because of infancy, disability, or senility, they may not yet, not now, or no longer have the ability to exercise them. When such disability occurs, a person may not be in a position to understand the implications of his actions and the consequence it entails. In this situation, the execution of such a person would lower the majesty of law.

71.1 That the post-conviction severe mental illness will be a mitigating factor that the appellate court, in appropriate cases, needs to consider while sentencing an accused to death penalty."

56. In the light of above proposition of law, we are required to scrutinize the case in hand minutely to find out whether the case falls under the category of "rarest of the rare case", whether imposition of death penalty, which is an exception, would be the only appropriate & meaningful sentence and whether imprisonment for life which is the rule would not be adequate and would not meet the ends of justice.

57. The court has awarded the death punishment making observation that accused - Buddha committed gruesome act of murder of mother of P.W.-1 aged about 65 years, nephew of P.W.-1 Suraj aged about 10 years and niece of P.W.-1 Shivangi aged about 6 years by using sharp aged weapon i.e. Banka. The court has recorded the finding to award death punishment for the reason that deceased Sursati was caused many injuries on her face and neck, Incised wound 2.5 cm X 1 cm X bone deep present on right side face. Incised wound 3 cm X 1 cm X bone deep present on right side near the below injury no.1. Incised wound 2 cm X 1 cm X Bone deep present on right side forehead 2 cm above right eyebrow. Incised wound bone deep present on left cheek. Multiple Incised wound in an area 18 cm X 12 cm present on face & head. Similarly, Suraj 10 years old received Multiple incised wound in area 18 cm X 12 cm present on left side face and head 3 cm behind outer angle of the left eye size has varies from 3 cm X 1 cm into bone deep to 8 cm X 3 cm in brain cavity deep. Similarly, 6 years' old Shivangi also received multiple incised wound in an area 18 cm X 12 cm present in right side face & right side head joint in-front of right ear size varying from 2.5 cm X 1 cm X Bone deep to 7 cm X 2 cm X Brain cavity deep. The court below has recorded the finding that looking into the inhuman act of the accused, it is obvious that he does not deserve any mercy as he committed murder of three deceased. All the three deceased were innocent and helpless and Buddha had enmity with his wife - Deshpati but he committed murder of the three innocent person and the said act is not pardonable. The court below recorded the finding that in view of the law declared by Hon'ble the Supreme Court in the Case of Bachan Singh and Macchi Sigh (supra), the case is coming within the purview of the aggravating circumstances and death punishment was awarded on the aforesaid facts. The court below has further mentioned that though the age of the accused is 50 years and at the time of the incident he was aged about 40 years but there is no mitigating circumstance and he is liable to be punished for the death sentence.

58. The law propounded by Hon'ble the Supreme Court in the case of Ramnaresh (supra) is relevant in the present facts and circumstances of the case, particularly, the mitigating circumstances which is discussed in para 76 of the said judgment. Seven points have been formulated for mitigating circumstances:-

"(1) The manner and circumstances in and under which the offence was committed and number (7) wherein it is propounded that upon the testimony of a sole eye-witness whether the death penalty can be converted to life imprisonment.

59. In the present case, we see that there is only one eye-witness i.e. P.W.-1, who has seen the occurrence though he was able to prove the case beyond reasonable doubt but in our opinion, it is not the case coming within the purview of rarest of rare case to award capital punishment on the basis of the sole eye witness i.e. P.W.-1. The point no.1 regarding the mitigating circumstances discussed in the case of Ramnaresh (supra) is also relevant because in the present case, the accused had gone to kill his wife, the sister of P.W.-1, who had performed second marriage, but she was not found and in the aggravated mental situation he found his mother-in-law and two children in the house and killed them. The point no.5 of mitigating circumstances in the case of Ramnaresh (supra) is also relevant which discusses possible behaviour could have 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 that circumstance of the case, the accused believed that he was morally justified in committing the offence. In the present case, the fact is borne out that he was upset because his wife had married second time leaving him aside and he was getting continuous and persisting pain, perhaps that was cause to commit the crime.

60. It is true that the manner in which crime was committed with Banka, is brutal, cruel and gruesome but looking into the aforesaid circumstances, mental state of the accused and case of single testimony of eye witness, and persistent harassment due to separation of wife, the offence was committed. This could be on account of frustration, mental stress or because of emotional disorder which would be mitigating circumstances to be taken note of.

61. Shri Raza Zaheer, learned Amicus Curiae appearing on behalf of the appellant-Buddha has argued that the trial Court was not right in holding that there was a common intention among the convict/appellant and two other unknown assailants to cause the death of the deceased so as to invoke Section 34 IPC, hence conviction and sentence of the convict/appellant with the aid of Section 34 I.P.C. is liable to be set-aside.

62. To attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a pre-arranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. Thus, an overt act is not a requirement of law for Section 34 IPC to operate but prosecution must establish that the persons concerned shared the common intention, which can be also gathered from the proved facts.

63. When this Court apply the aforesaid principles relating to applicability of Section 34 IPC to the facts of the present case, this Court is of the view that convict/appellant is entitled to the benefit of doubt on the ground that it cannot be with certainty held that convict/appellant had common intention, viz. none of the prosecution witnesses deposed before the trial Court that before the incident, convict/appellant and other two unknown assailants had met and planned the crime nor the prosecution had stated that the convict/appellant armed with deadly weapon had entered the house of the informant and committed the murder of the deceased but the evidence of the informant P.W.1-Rakesh Kumar shows that on the date of the incident at about 2:00 a.m., when convict/appellant and two other assailants entered into the house, his nephew raised alarm and on his alarm, he woke up and saw that convict/appellant and other two assailants assaulted his mother. Thus, the prosecution has failed to establish the common intention of the convict/appellant to murder the deceased, hence conviction and sentence of the convict/appellant for the offence with the aid of Section 34 I.P.C. is not sustainable.

64. In view of the foregoing discussions, we pass the following order :--

(A) Capital Case No. 02 of 2020

As the appellant has murdered the deceased, which was his individual act and he is responsible for the same, hence he is liable to be convicted for the offence under Section 302, 307, 323, 452 I.P.C. as ''simpliciter'.

Accordingly, this Court modify the conviction of the appellant for the offences under Sections 302/34, 307/34, 323/34 and 452/34 I.P.C to Section 302, 307, 323, 452 I.P.C. as ''simpliciter' and set-aside the death sentence of the convict/appellant under Section 302 I.P.C. and instead sentence him to imprisonment for life.

Convict/appellant Buddha is in jail and shall serve out the sentence.

Subject to this alteration in the sentence, Capital Case No. 1 of 2020 is dismissed.

(B) Jail Appeal No. 364 of 2020 :-

The instant appeal is partly allowed. This Court modify the conviction of the appellant for the offences under Sections 302/34, 307/34, 323/34 and 452/34 I.P.C to Section 302, 307, 323, 452 I.P.C. as ''simpliciter' and set-aside the death sentence of the convict/appellant under Section 302 I.P.C. and instead sentence him to imprisonment for life.

Appellant Buddha is in jail and shall serve out his sentence.

65. Before parting, we record our appreciation rendered by Shri Raza Zaheer, learned Amicus Curiae who assisted this Court in the disposal of the above-captioned reference and appeal, therefore, this Court deem it appropriate to direct for payment to Shri Raza Zaheer, learned Amicus Curiae for his valuable assistance as per Rules of the Court.

66. Let Shri Raza Zahir, learned Amicus Curiae be paid remuneration as per Rules of the Court within a month.

67. Office is directed to send a certified copy of this judgment along with lower court record to the court concerned for information and compliance.

(Brij Raj Singh, J.)     (Ramesh Sinha, J.)
 

 
Order Date:-   09.05.2022
 
Atul

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