Gujarat High Court
State vs Hiteshkumar on 16 October, 2008
Author: J.R.Vora
Bench: J.R.Vora
Gujarat High Court Case Information System
Print
CC/1/2008 43/ 107 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
CONFIRMATION CASE No. 1 of 2008
WITH
CRIMINAL
APPEAL NO. 37 OF 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
HONOURABLE
MR.JUSTICE SHARAD D.DAVE
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To
be referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================
STATE
OF GUJARAT
Versus
HITESHKUMAR
MADHUSUDAN ADHVARYU
=========================================
Appearance
in Criminal Confirmation Case No. 1 of 2008 :
MR
L.B. DABHI APP for Appellant
MR NK MAJMUDAR
for Respondent
Appearance
in Criminal Appeal No. 37 of 2008 :
MR
NK MAJMUDAR for Appellant
MR L.B. DABHI APP for Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE SHARAD D.DAVE
Date
: 16/10/2008
17/10/2008
ORAL
JUDGMENT : (Per : HONOURABLE MR.JUSTICE
J.R.VORA) 1 Both the above matters have arisen from the same Judgment and Order delivered by Additional Sessions Judge, Fast Track Court No.3, Bharuch, on 15.12.2007, in Sessions Case No. 82 of 2007. Appellant of Criminal Appeal No. 37 of 2008 Hiteshkumar Madhusudan Adhvaryu was charged for the offences punishable under Sections 302, 307 and 309 of the Indian Penal Code and vide the impugned judgment and order, the accused was found guilty for the offences punishable under Sections 302, 307 and 309 of the Indian Penal Code. The learned Trial Judge awarded death penalty to the accused for the offences punishable under Section 302 of the Indian Penal Code while he was sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs. 500/-, in default, to undergo rigorous imprisonment of six months for the offence punishable under Section 307 of the Indian Penal Code. No separate sentence was awarded for the offence punishable under Section 309 of the Indian Penal Code.
2 The learned Trial Judge referred the said Sessions Case to this Court for the confirmation of death sentence in accordance with the provisions of Section 366 of the Criminal Procedure Code and has been registered as Criminal Confirmation Case No.1 of 2008.
3. Criminal Appeal No. 37 of 2008 is preferred under Section 374 of the Criminal Procedure Code by accused against his conviction recorded by the learned Trial Judge for the offences punishable under Sections 302, 307 and 309 of the Indian Penal Code, as afore stated.
4. The facts leading to the death penalty to the accused reveals that the accused Hiteshkumar Madhusudan Adhvaryu along with his wife Geetaben, son Pujan, aged 3 years and daughter Ishwa, aged 11 years, were staying at Kailashnagar Society, Ankleshwar. The accused Hiteshkumar was serving in a medical store situated in Nityanand Hospital at Anklewshwar and deceased Geetaben wife of the accused was doing tuition for earning. The incident in question occurred at night of 13th of April, 2007. It appears that the family was passing through financial crunch and was staying in a small house at Ankleshwar. On 13th of April, 2007, while the family was taking their dinner, deceased Geetaben mentioned to the accused that their son Pujan had some skin problems and, therefore she had taken Pujan to Nityanand Hospital where in the medical store the accused was in employment. Geetaben mentioned to the accused that she inquired from the Doctor of Nityanand Hospital and came to know that accused was not going to his job for about 2/3 months. Wife Geetaben, therefore, inquired from the accused while the accused was not going to his job for last two/three months, then from where the accused was bringing money in the form of salary. According to the prosecution case, though the accused was not attending his job, he used to go out on regular hours in the morning and was returning to home in late evening. On inquiring by wife Geetaben, the accused was enraged and took out a currency note of Rs. 500/- from his pocket and thrown the same on the face of Geetaben saying that why Geetaben was talking about money all the times and further said that she should eat 500 rupees note. Geetaben kept quite and accused sat to watch TV. As a routine thereafter Geetaben prepared beds for the family and Ishwa, Pujan and Geetaben all went to sleep. The accused was angry and Geetaben was weeping at that time also. During night hours, Ishwa, though she was in deep sleep, heard some noice, therefore, awakened. She found that the accused was kicking her mother Geetaben and, therefore, Ishwa raised shouts. On hearing shouts, neighbours gathered there and inquired from the accused that why the accused was unnecessarily beating his wife and children. Accused thereupon abused the neighbours and stated them to go away as it was their personal matter. Neighbours thereafter went to their houses and accused closed the windows of the house. Accused thereafter took a knife, which was lying near TV, and inflicted 25 to 30 blows on the body of Geetaben. Three year son Pujan was also awakened on account of this commotion and when he noticed that his father was beating his mother, he gave a bite on the leg of the accused. Thereupon, accused pushed Pujan, who had fallen on the bed. Thereafter, accused inflicted 10 to 15 knife blows on the body of Pujan. Ishwa was watching all these and accused muffled the face of Ishwa with the bed sheets and inflicted 10 to 12 knife blows on the body of Ishwa. Accused thereafter sat to watch TV. After couple of hours, at about 4 to 5 a.m., the accused opened the lock of front door of the house and also opened the lock of back door of the house. Thereafter, accused came to Geetaben and son Pujan and verified whether both of them were responding. Accused also came to Ishwa. She pretended to be dead but in fact she was conscious. Thereafter accused opened the back door of the house and called their immediate neighbour Jalambhai Fatajibhai Solanki, PW-5 and stated to Jalambhai that he had murdered his wife and children and that he had no right to live further. The accused thereafter came again in the house and inflicted knife blows on his own body by the same knife. After inflicting some blows the accused had fallen down. Daughter Ishwa thought that it was the right opportunity to escape and, therefore, she came out of the house and called neighbours. However, in the meantime, on hearing the calls from the accused that he had murdered his wife and children, PW-5 Jalambhai Solanki, at first frightened and after consulting his wife, Jalambhai Solanki thought it fit to inform the relatives of the accused Urmilaben Joshi, who was staying nearby in Aashutosh Society, Ashiyad Nagar, Ankleshwar. At about 5.30, Urmilaben, cousin sister of Geetaben, was informed by Jalambhai Solanki that accused Hiteshkumar had murdered his wife Geetaben and two children and Urmilaben should immediately visit the house of Geetaben. Urmilaben was also advised to inform the police. Urmilaben and her husband both came to the house of the accused on motorcycle of PW-5 Jalambhai Solanki and found that the house was opened and beds were prepared on the floor. Ishwa was on front part of the house and was bleeding. When she took a glance in the house, she found that accused was lying near the wall in bleeding condition; Geetaben bleeding from knee was on the bed in bleeding condition and Pujan was also lying on bed in bleeding condition. It was found that Geeetaben and Pujan both had died while Ishwa was still living. The people staying around there had gathered and in the meantime somebody had informed the police and had called an ambulance. Ishwa and accused were taken to Ankleshwar Hospital for treatment and in the meantime police also reached at the spot and recorded the complaint of Urmilaben. Both the injured i.e. Ishwa and accused were taken to Bharuch Hospital and took treatment while dead bodies were taken to Ankleshwar where PW-7 Dr. Kamleshbhai Ganeshbhai Rathod conducted postmortem of dead bodies of Geetaben and Pujan. A crime came to be registered against the accused and PW-16 Arjitkumar Dayasankar Shrivastav, PI, Ankleshwar City Police Station investigated the crime. Inquest panchnama was prepared and the statement of the witnesses were recorded. During investigation and in search of the house of the accused on the day of the incident itself a knife was seized by the police from the house of the accused and a note alleged to be a suicide note, written and signed by the accused, was also found, which is on record at Exhibit 53. The accused took treatment for about one month from SSG hospital at Baroda and after discharge he was arrested by the police on 13.5.2007 by panchanama at Exhibit-34. The muddamal was sent to the Forensic Science Laboratory at Surat for opinion and after obtaining opinion, a charge came to be field against the accused for the above said offences in the Court of learned Judicial Magistrate, First Class at Ankleshwar, who, in turn, committed the case to the Court of Sessions under Section 209 of the Code of Criminal Procedure. The case was made over to the learned Additional Additional Sessions Judge and Fast Track Court No.3, Bharuch and a charge-sheet was framed against the accused vide Exhibit- 3 on 03.09.2007 for the offences punishable under Sections 302, 307 and 309 of the Indian Penal Code. It was alleged that the accused was frequently picking up quarrels with his wife Geetaben and on 13th of April, 2007, in pursuance of skirmishes which took place at the time of dinner, the accused inflicted knife blows on the body of his wife Geetaben and his son Pujan and caused murder of both these persons. It was also alleged that with intention to cause death, accused also inflicted knife blows on Ishwa and thereby committed the offence under Section 307 of the Indian Penal Code. It was also alleged that accused attempted to commit suicide by inflicting knife blows on his own body and thereby committed the offence under Section 309 of the Indian Penal Code. The charge-sheet was read over to the accused and he pleaded not guilty.
5 Prosecution, therefore, examined as many as 17 witnesses and produced documentary evidence on record to prove its case. The witnesses examined by the prosecution and the documents produced on record are as under :
Eye Witnesses :
No. PW No. Names Exhibit No. 1 02 Ishwaben Hiteshbhai 09 2 09 Harivadan Ishwarlal Jani 24 3 24 Kiranben Rameshbhai Patel 51 Prosecution Witnesses as to complaint :
No. PW No. Names Exhibit No. 04 01 Urmilaben Kiritkumar Joshi 07 05 03 Rashmikant Chandrakant Raval 10 06 05 Jalambhai Fatajibhai Solanki 14 Panch Witnesses :
No. PW No. Names Exhibit No. 07 10 Archanaben Anantkumar Sharma 25 08 11 Bharatbhai Somabhai 27 09 12 Prakashchandra Bansilal Kayasth 35 10 13 Nizambeg Abdulbeg Mirza 43 Medical Evidence:
No. PW No. Names Exhibit No. 11 06 Dr. Vijay Motiram Bavisakar 15 12 07 Dr. Kamleshbhai Ganeshbhai Rathod 18 Other Witnesses :
No. PW No. Names Exhibit No. 13 04 Mohanbhai Dayabhai Patel 11 14 08 Babubhai Shambhubhai Bhayani 22 15 15 Mukeshbhai Zinabhai Gamit 52 Police Witnesses :
No. PW No. Names Exhibit No. 16 16 Arjitkumar Dayasankar Shrivastav 54 17 17 Amarsingbhai Nandariyabhai Vasava 61 Documentary Evidence Sl. No. Particulars Exhibit No. 1 Complaint 8 2 Yadi of PI Ankleshwar to Mamlatdar 59 3 Map (Mark 6/9) 13 4 Letter of Medical Officer, General Hospital, Bharuch to PI Ankleshwar (Mark 6/18) 16 5 Letter of Medical Officer, General Hospital, Bharuch to PI Ankleshwar City Police (Mark 6/19) 17 6 Police Yadi to MO, Civil Hospital, Bharuch 19 7 P.M. Note of Geetaben Hiteshkumar Adhvaryu 20 8 P.M. Note of Pujankumar Hiteshkumar Adhvaryu 21 9 Letter of Scientific Officer, Forensic Investigation Van, Bharuch 23 10 Inquest Panchnama Mark 6/3 26 11 Panchnama of seizure of clothes and two card board boxes (Mark 6/4) 33 12 Panchnama regarding the status of body of the accused (Mark 6/6) 34 13 Panchnama (scene of offence) 36 14 Panchanama of cloth (Mark 6/5) 44 15 Suicide note of accused (Mark 50/1) 53 16 Police Yadi of PI Ankleshwar to PSO Ankleshwar Police Station 55 17 Ravangi Note of PI Ankleshwar 56 18 Receipt of FSL (Mark 6/13) 57 19 FSL Report (Mark 6/14) 58 20 Serology Report (Mark 6/15) 59 21 FSL Report (Mark 6/16) 60 22 Police Station Diary 62 6 After evidence of the prosecution was over, the learned Trial Judge recorded the statement of the accused under Section 313 of the Code of Criminal Procedure and draw the attention of the accused towards incriminating circumstances against him appearing in the evidence of prosecution. To most of the questions, accused replied that he did not know anything about the evidence or he denied in toto and last general question which was asked to him at the end of the statement by way of defence the accused tried to explain that he had not committed any offence nor had taken any part in the incident. According to accused while he was sleeping, somebody had beaten him and he had immediately awakened and having seen plenty of blood, he had gone unconscious. Thereafter he did not know anything. Somebody had devastated his family and had ruined him all, but he did not know who did it. This is all the defence of the accused during trial.
7 The learned Trial Judge thereafter heard prosecution as well as the defence and came to the above conclusion that accused was guilty of committing murders of his wife Geetaben and his son Pujan aged 3 years while he was also guilty for inflicting injuries on the body of his daughter Ishwa with intention to kill her and also he was guilty for attempting suicide and, hence, the accused was convicted for the offences punishable under Sections 302, 307 and 309 of the Indian Penal Code and was sentenced to death for the offence punishable under Section 302 of the Indian Penal Code, rigorous imprisonment for 10 years for the offence punishable under Section 307 of the Indian Penal Code while no separate sentence was awarded for the offence under Section 309 of the Indian Penal Code. Hence, Criminal Appeal No. 37 of 2008 has been preferred by the accused Hiteshkumar Madhusudan Adhvarvu against his conviction and sentence while the learned Trial Judge has referred this case for confirmation of death sentence under Section 366 of the Code of Criminal Procedure.
8 Before going into re-appreciation of evidence on record and to assess the quantum of punishment, it would be necessary to have a thorough glance at the prosecution evidence.
9 Mainly, the prosecution relied upon direct evidence of two witnesses i.e. injured Ishwa, child witness and daughter of the accused as well as injured in the incident. The prosecution also proposed to rely upon direct evidence of extra judicial confession made by the accused before PW-5 Jalambhai Fatejibhai Solanki.
10 Ishwa has been examined as PW-2 at Exhibit-9. She stated that, at the time of the incident, she was studying in Vth Std and they were staying at Kailashnagar Society, Ankleshwar. She being aged 11 years, the Trial Court asked some questions to the witness to ascertain her maturity as to whether she can understand the sanctity of oath to be administered to witness Ishwa. The learned Trial Judge recorded his satisfaction that Ishwa was matured to understand the sanctity of oath and she was administered oath. According to her, accused father was working in a medical shop at Nityanand Hospital, Ankleshwar and his mother was doing tuition at their residence. During the period of incident, the brother was aged about three years was suffering from some skin problem and, therefore, her mother had taken Pujan to Nityanand Hospital, wherein the accused was serving. On the evening of the incident, when all four family members were taking their dinner, Geetaben, her mother, conveyed to her father that her mother had been to Nityanand Hospital for treatment of Pujan and had found that his father was not attending the job for last 2/3 months. According to the say of this witness, on confronting by her mother, her father got angry, took out a currency note of Rs. 500/- from the pocket and thrown the same on the face of her mother and he had threatened her mother to eat 500 rupees note as she was talking about money all the times. Ishwa has stated that her mother had asked that while her father was not attending the job, then from where he was bringing money. She stated that her mother kept quite but she was weeping and as per routine she set beds for all. While her father was watching TV, she and Pujan both had gone to sleep. Thereafter, she heard some noice which had awakened her and when she was fully awakened, found that his father was kicking her mother. According to this witness, on seeing this, she started shouting, which brought the neighbours together at their house and advised her father not to beat his own wife and children. According to this witness, thereafter, her father uttered abuses to the neighbours and stated that it was their personal matter. Thereupon, the neighbours had gone to their homes and her father had closed the window. According to this witness, thereafter the accused took the knife, which was near the TV and inflicted 20 to 30 blows on the body of her mother. On seeing this, her brother Pujan got angry and he gave a bite on the leg of his father. According to this witness, Pujan was pushed and fell upon the bed. Immediately, her father thereafter inflicted 10 to 15 blows on the body of Pujan. According to this witness, thereafter her father turned towards her and wrapped bed sheets around her face and inflicted 10 to 12 knife blows on her body i.e. on her hands, throat, abdomen, etc. According to this witness, thereafter her father sat to watch TV and watched the same for couple of hours. According to this witness, at about 4 to 5 a.m. her father opened the lock of front and back doors of the house and verified and checked whether mother and Pujan were responding. According to this witness, at that time, she pretended to have died and her father had checked her also. According to this witness, she gave an impression to her father than she had also died. According to this witness, her father went to the back door of the house and called for neighbour Jalambhai and thereafter her father conveyed to Jalambhai that he had murdered his wife and children and, therefore, he had no right to live. According to this witness, her father returned to the house. He has inflicted some knife blows on his stomach. After some time, her father had fallen down on the bed. According to this witness, thereafter, she felt that there was an opportunity to escape and therefore she came out and started screaming. On account of this, neighbours got together. The witness stated that at that time she did not know what happened to her mother but she remembered that she and her father were taken to hospital in some ambulance car. First they were taken to Ankleshwar Hospital and after giving preliminary treatment, they were taken to Bharuch Civil Hospital. She was confronted with the muddamal article No.7 knife and she stated that the muddamal article No. 7 was not the knife used in the incident, but size of that knife used in incident was of the size of muddamal article No.7. She stated that at the time of deposition, she was staying with her maternal uncle at Mumbai. She also stated that she was much frightened by her father and she felt that the face of her father was like demon and she did not want to stay with her father. Deposition of this witness was recorded on 10th of October, 2007 and at that time also bandages were there on her left hand. She stated that even on that day, there was pain on her left hand on account of injury inflicted by her father. In examination-in-cross by the defence, she stated that she had not accompanied with her mother and brother Pujan at the hospital. Ordinarily, her father used to return from job between 8.00 and 8.30 p.m. She denied that her father was suffering from epilepsy. She admitted that her father was hot tempered. She stated that salary of her father was around Rs.500/-. She denied that on account of meager salary of her father and on account of expenses of the house, altercations were taking place between her parents. Though, she admitted that on account of hot temper of his father and on account of short earning, her mother was mentally stressed.
Date:
17.10.2008 She denied that she was in sound sleep and stated that after beds were prepared by her mother, she was in deep sleep. She stated that there is an iron grill in the window and it was about 11.45 pm when his father was kicking his mother. She denied that she had gone unconscious. She admitted that in the statement before the police she did not state that her father had inflicted 25 to 30 knife blows to his mother and 10 to 15 knife blows to his brother Pujan. She admitted that she did not state before the police that on which part of the body of the deceased the blows were inflicted. She admitted that she did not state before the police that after the incident, her father sat to watch TV. She stated that after her father inflicted injuries upon three of them, thereafter he called Jalambhai. There were no injuries on the body of her father. Some portion of police statement was shown to her about how his father inflicted injuries to himself, which she admitted. She stated in last paragraph of her deposition that she was residing with her two maternal uncles and both of them were staying at Mumbai. On the day before the deposition, they had come to Bharuch and had stayed at the house of Urmilaben. She denied that she was tutored for deposition.
She admitted that her maternal uncles and maternal aunts have affection for her. She stated that since her childhood, her father was beating her and, therefore, she did not like her father. She also admitted that she hated her father and, therefore she gave deposition against her father.
11 The second star witness PW-5 Jalambhai Fatajibhai Solanki, is examined at Exhibit-14. Before whom, the accused made extra judicial confession after the incident. He deposed before the Trial Court that at the relevant time he was residing at Kailashnagar H-1 Building and in back side of his building, House bearing No. I-1 was situated, in which accused and his family were staying. On 14.4.2007, he was required to go to his job in early morning. He awakened at 4.30 a.m. His wife was preparing meal for him to prepare tiffin. He was being ready to go to his job. At that time, from the back side, accused came and asked his wife whether the witness was available. His wife inquired from the accused that why the accused wanted to see this witness. Accused insisted to call this witness and, therefore, Jalambhai went on the back of the house. At that time, accused conveyed to him that accused had murdered his family members and requested the witness to call police. On hearing this, the witness was frightened and he closed the back door of the house. He thereafter discussed with his wife and thought it fit to inform Joshi and Urmilaben, relatives of the accused, staying in other society. Therefore, he went to call Joshi and Urmilaben and returned to Kailashnagar. When they returned to Kailashnagar, he noticed that Ishwa was lying on otla of the house. The door of the house of the accused was opened. When he looked inside the house, he found that two dead bodies were lying near the door. Accused was lying near wall and wife of the accused Geetaben was lying on her stomach. Somebody informed the police and police came. In the meantime, ambulance also reached. Ishwa and accused were taken to hospital in the same ambulance. Thereafter, police started inquiring and investigating. Urmilaben gave her complaint. Police requested Urmilaben to look inside the house. She attempted to see inside the house, but immediately came out and stated that it was very difficult for her to remain inside. Thereafter the witness went home. Jalambhai has been cross-examined in detail by the defence. He stated that he was doing service at Jaghadiya GIDC, Bharuch, for about 10 years and was staying in Ankleshwar for about 11 years. He usually attended his job by going in the car of the company. That the place of the company was at the distance of 4 kms. In his job, there was shift duties. First shift sometimes was rotated once in a week or after two weeks. On 12th of April, there was off and on 13th he had to attend first shift. On inquiring, he stated that he had no certificate in this regard but was prepared to produce the said certificates. He admitted that before police he did not state that at the time of incident his wife was preparing his tiffin. He also admitted that he did not state before the police that first his wife was confronted with accused. In his police statement as admitted by the witness he did not state that he was frightened and closed the back door. He stated that he was having mobile at the time. The distance between the house of Urmilaben and Kailashnagar was about 200 meters. He had gone to Urmilaben on his motorcycle. He stated that the police station was situated 1 km distance from his residence. He did not inform the police or ambulance before he went to inform Urmilaben. He denied that when he reached Kailashnagar with Urmilaben, the police had reached. He stated that the police reached after 15 to 20 minutes after he reached to Kailashnagar. He denied the suggestion that before he and Urmilaben reached to Kailashnagar, Ishwa and Hiteshkumar both were taken to hospital in ambulance. He stated that when he reached at Kailashnagar with Urmilaben, people had gathered but he could not say that who had gathered. He had no talks with the persons gathered around there. He admitted that he had not witnessed the incident. He admitted that whatever the people said was heard by them. Hiteshkumar had stated to him that he had murdered his family members and to call the police and at that time he was at his residence and did not call the police. He further stated that he could not say whether accused had injuries on his body, but there was blood on his body. He denied the fact that before police he stated that when he was called by the accused, accused had injuries on his body. His statement was recorded in the morning at 14.00 hours. He had read over that statement. He stated that, in summer, in extreme heat, people normally go to sleep after keeping the doors and windows of the house kept open. He admitted that the house of the accused and his house in the back side are in opposite direction and about at the distance of six feet, and if any conversation took place with loud voice in the house of the accused, could be heard by him. He denied the fact that the accused did not convey him that he had murdered his family members. This is all the evidence of second star witness.
12 The third supporting witness is Urmilaben Joshi, who filed the complaint. She has been examined at Exhibit-7 as PW-1. In her deposition, she stated that she was called early in the morning of 14th of April, 2007 by Jalambhai and Jalambhai was in frightened condition and Jalambhai conveyed to her that accused has inflicted knife blows on Geetaben, her cousin sister, son Pujan and daughter Ishwa and, therefore she had gone to Kailashnagar on motorcycle of Jalambhai immediately. People had gathered there. She was frightened to see that Ishwa was sitting outside of the house in bleeding condition and also had a look into the house. In the meantime, ambulance had reached and Ishwa and accused were taken in ambulance. He had offered her complaint, which she identified from Exhibit-8. She was cross-examined by the defence in which she stated that Kailashnagar Society and Aasuthosh Society where she was staying was at distance, but she could not say that what was the exact distance. Her husband was serving in Municipality. She stated that though Geetaben was her cousin sister but she was close like a real sister. She stated that the salary of the accused was meager and her sister was doing labour for household expenses. Earlier, the health of Hiteshkumar i.e. accused was not well, but at the time of incident, he was well. She admitted that she had no personal knowledge of the incident. She reached at the residence of Geetaben at about 5.45 a.m. At that time, Ishwa was conscious. She did not attempt to inquire from Ishwa whether Ishwa was conscious. There was a crowd outside the house. She could not say who called the ambulance and police. When her complaint was being recorded, Jalambhai was with her and she narrated the complaint as per what Jalambhai had stated to her. Whenever deceased Geetaben visited her, she used to say that the earning of the accused was meager, to meet with the expenses of education of children, she was required to do tuition etc. She denied the fact that Geetaben was also conveying that the health of Hiteshkumar was not well. She stated that some times Geetaben was conveying that she was not happy. She denied the fact that the deceased was also suffering from epilepsy. Geetaben was born and brought up at Mumbai and she was clever and smart. She denied the fact that after coming to Ankleshwar, accused was going on changing his jobs. This is all the evidence of Urmilaben and at Exhibit-8 complaint is produced.
13 Now the material evidence for consideration is the evidence of two Doctors. One of them examined both the injured while the other conducted postmortem of two dead bodies.
14 Dr. Vijay Motiram Bavisakar, examined at Exhibit-15 as PW-6, stated that on 14th of April, 2007 at 8.00 a.m. Ishwa and Hiteshkuamr were brought before him without police yadi and with reference note of Municipal Hospital of Ankleshwar. In history, patient stated that on 14th of April, 2007, between 1.00 a.m. and 1.30 a.m. she was injured by knife . She was conscious and she had the following injuries.
(1) Incised wound over left arm with size 5.00 c.m. X 3.5 c.m. x muscle deep with clean cut margin from transversely placed.
(2) Incised wound 1.5 c.m. below No.(1) injury with size 1.5 c.m. x 0.3 c.m. x muscle deep clean cut margin and transversely placed over anterior aspect.
(3) Incised wound over posterior aspect of left arm with size 3 c.m. x 0.5 c.m.
x muscle deep clean cut margin and transversely.
(4) Incised wound over Right lateral aspect of neck with size 1.5 c.m. x 1.5 c.m. x muscle deep obliquely placed.
(5)Incised wound over Right thigh on interior aspect with size 0.5 cm x 0.2 cm x skin deep obliquely placed.
(6)Incised wound over right palms surface of hand with size 5 cm x 2.5 cm x muscle deep clean cut margin and obliquely placed.
(7) Stab wound over left 5th intercensal space at hypochondria junction with size 2.5 cm x 1 cm x muscle deep. Obliquely placed with cut margins.
(8) Stab wound in left posterior axillary line in lumber region size 5 cm x 2.5 cm x deep to peritoneum omentum comes out from wound and obliquely placed with clean cut margins.
(9) Stab wound in left 9th intercensal space in posterior axillary line with size 2.5 cm x 1.5 cm x muscle deep and obliquely placed.
(10)Stab wound with size 2.5 cm x 1 cm x muscle deep over left infra scapular region and obliquely placed with clean cut margin.
(11)Stab wound with size 3 cm x 1.5 cm over just above inguinal region transversely placed. Urine comes out from wound with clean cut margin.
(12)Incised wound over right breast near nipple with size 0.3 cm x 0.2 cm x skin deep obliquely placed.
(13)Incised wound over right 2nd intercostals space in midelavicular line 0.5 cm x 0.2 cm x skin deep obliquely placed.
(14)Incised wound over right thigh over lateral surface with size 3.5 cm x 2 cm x muscle deep obliquely placed with clean cut margin.
All above injuries were red in colour with active bleeding present.
The witness stated that the injuries were bleeding. She was admitted to hospital till 25th of April, 2007 and thereafter was forwarded to SSG Hospital, Vadodara or Civil Hospital at Surat for further treatment. During the treatment at Civil Hospital, Dr. Dilip Patel and Dr. Prakash Pandey have done laparotomy of injured Ishwa on 14th of April, 2007. The Doctor stated that the injuries were fresh and were inflicted within preceding 12.00hours. On showing the muddamal Article No.7 knife, the witness stated that the injuries No.1 and 14 could be caused by such weapon. He further stated that injuries No. 8 and 11 were of serious nature and were bleeding. He further stated that on account of loss of blood, death of a person could be caused. He submitted on record the injury certificate at Exhibit 16. He further stated that on the same day, he also examined the accused, who was brought before him. In history accused Hiteshkumar stated that those injuries were suicidal injury by himself with knife at 1.00 to 1.30 a.m. on 14th of April, 2007. He had the following injuries :
(1)Stab wound over epigastric region above umbilicus with size 3.5 cm x 1.5 cm deep to peritoneum and obliquely placed with clean edges.(2)
Stab wound with size 2 cm x 1.5 cm deep to peritoneum lying just below the injury No. (1) and obliquely placed with clean cut edges.
(3) Stab wound with size 3 cm x 1.5 cm deep to peritoneum near to injury No. (1) and vertically placed with clean cut edges.
(4) Stab wound with size 4 cm x 2 cm deep to peritoneum near to injury No. (3) and vertically placed with clean edges.
(5) Stab wound with size 2.5 cm x 1 cm deep to peritoneum right lumber region and obliquely placed with clean cut edges.
(6) Stab wound with size 3 cm x 1.5 cm deep to peritoneum left hypochondria and obliquely placed with clean cut edges.(7)
Stab wound with size 2.5 cm x 1 cm deep to peritoneum in left luac fossa and obliquely placed with clean cut edges.
(8) Incised wound with size 2 cm x 1 cm muscle deep in left chest region in 4th intercostals space in line with clean cut margin.
(9) Incised wound over left forearm near writ joint with size 6.5 cm x 2 cm x muscle deep and transversely placed with clean edges.
(10)Incised wound over proximal phalanx of left little finger with size 1.5 cm x 0.5 cm x muscle deep.
(11)Incised wounds over each proximal phalanx of right index, middle finger, ring finger, little finger and thumb with size 0.5 cm x 0.2 0.4 cm x muscle to skin deep.
All above injuries are red in colour with active bleeding present.
15 The patient i.e. accused was admitted to hospital on 14th of April, 2007 and thereafter transferred to SSG Hospital, Baroda, for further management. According to this witness, all the injuries were possible by sharp cutting object and duration of injuries was within 12 hours. He has been cross examined by the defence where he admitted that in the certificate of Ishwa many injuries are simple and he also stated that injuries were bleeding and those injuries were of serious nature. He denied the suggestion that those injuries were inflicted reluctantly. He admitted that the injuries No. 4, 5, 9, 12 and 13 were not clean cut injuries, so far as the injuries of Ishwa was concerned. So far as the accused is concerned, the witness stated that he could not say that the injuries of the accused could have been caused by somebody else than the accused himself. He had obtained x-ray of the injuries caused to the accused. Hiteshkumar had undergone sonography on account of the seriousness of the injuries. This is all the evidence of one Doctor.
16 While Dr. Kamleshbhai Ganeshbhai Rathod, examined at Exhibit - 18 as PW-7 stated that on 14th of April, 2007, Police Constable Vinodbhai Maganbhai, Buckle No. 1656 along with the inquest panchanama brought two dead bodies i.e. Geetaben Hiteshkumar Adhvaryu and Pujan Hiteshkumar Adhvaryu for postmortem. On 14th of April, 2007 at 2.15 pm he started postmortem of Geetaben. On examining, the following external injuries found on the dead body :
(1)Incised wound of 1 ½ x ½ , muscle deep on middle 1/3 of the Rt. thigh extensor surface, oblique in position blood clots & clothes cut to wound size.(2)
Stab incised wound of 1 x ½ cavity deep, on Rt. Hypodermic region with blood clot wound present.(3)
Incised wound of 1 x ½ muscle deep on Ante aspect of Rt.
shoulder oblique in position clotted blood around it.(4)
Incised stab wound of 1 x ½ cavity deep, on Lt.
Axilla oblique in position with blood stained discharge
coming out from wound in intercostal space, ante
aspect.
(5)
Incised wound of 1 ½ x ½ muscle deep on Lt. Arm
Flexor aspect of axilla with dried
blood clots present, oblique positive.
(6)
Incised wound of 1 ½ muscle deep oblique on middle of the Lt. Arm clotted blood + around wound (7) Incised wound of 1 x ½, bruise deep on lower of the Lt. Forearm, extensor, oblique in positive with clotted blood around wound.(8)
Incised wound of 2 x ½, muscle deep on middle 1/3 of the Lt. forearm lateral aspect, oblique in position with clotted blood around wound.
(9) Incised wound of 1 x ½, muscle deep oblique in position on upper 1/3 of the Lt. forearm blood clots.
(10) Incised wound of 1 x ½, muscle deep oblique in position flexor aspect of middle 1/3 of the Lt. forearm with clotted blood on wound present.
(11) Incised wound of 3 x 1 cm slash deep on flexor aspect Lt. Thumb (palmer surface) oblique in position.
(12) Incised wound of 2 x 1 cm muscle deep on Lt. Index finger oblique in position palmer aspect.
(13) Incised wound of 2 x ½ muscle deep oblique in position on lateral aspect of middle 1/3 of the Lt. Thigh, clotted blood & with clothes cut.
(14) Incised wound of 2 x 1 cm oblique in position, skin deep on Lt. knee dried blood clots.
(15) Incised wound of 5 x 1 cm muscle deep oblique in position on Rt. eyebrow with ecchymosis of Rt. eyelids present blood clotted.
(16) Stab wound 1 ½ x ½ oblique in position cavity deep on back of lower part of Lt. Side of chest lateral border on positive aspect.
17 According to the Doctor, the injuries were ante-mortem and there were internal injuries corresponding to external injuries. On account of external injuries, there was incised wound of 3 x 1 cm heart cavity deep on right atrium of heart large anxher of blood clots around heart and pericardium was also cut. All chambers of heart were empty. The witness stated that these injuries can be caused, which was corresponding to external injury No.4, if the injury is caused with heavy force. According to him, cause of death was due to shock, due to excessive intrathoshaic haemorrhage due to heart injuries. He also deposed that external injury No.4 and internal injury corresponding to it was sufficient in ordinary course of nature to cause death and could be caused by muddamal Article No.7 knife. He produced on record the postmortem note at Exhibit-20. The witness also conducted postmortem of body of Pujan Hiteshkumar, aged three years, on the same day at 4.30 p.m. According to this witness, Pujan had the following external injuries :
(1) Incised stab wound of 2 ½ x 1 ½ cm cavity deep on left side of chest, in 6th intercostal space, transverse in position with blood clots +.
(2) Incised wound of 3 x 2 cms and 2 x 1 cm muscle deep oblique in position, upper left scapular region blood clots.
(3) Incised wound of 2 x ½ x 1 ½ x ½ cm muscle deep oblique in position on left lumber region, backside with blood clots.
(4) Incised wound of 1 x 1 cm muscle deep, oblique in auto aspect of left lumber region.
(5) Incised wound of 1 ½ x 1 cm muscle deep on left lumber region.
(6) Incised wound of 2 x 1 cm muscle deep on Rt. side chest, dried blood.
(7) Incised wound of 2 x 1cm muscle deep on Rt. side chest, dried blood.
(8) Incised stab wound of 1 ½ x 1 cm cavity deep on Rt. Hypochondria region, oblique in position intestines coming out from the wound with bloodstains discharged coming from wound.
(9) Incised stab wound of 3 x 2 cms cavity deep oblique on position on lateral lower border of Rt. scapular region bloodstains discharge present.
There were corresponding internal injuries as well to the lungs and intestine. There were internal injuries in abdomen also. Abdomen was full of blood. According to him, the deceased Pujan died due to shock due to excessive intrathoshaic and intrathecalintra abdominal hematology following injuries to right lung and liver respectively. Doctor stated that the injuries were ante mortem, could have been caused by muddamal Article No.7 knife. External injuries No. 8 and 9 and corresponding internal injuries were sufficient in ordinary course of nature to cause death. Having regard to the numbers of injuries, it can be said, according to Doctor, that the deceased was brutally killed. The witness was cross-examined in detail. He denied in the cross examination that the injuries noted in both the postmortem notes were superfluous injuries. He admitted that the direction of the injury i.e. from right to left or from outward had not been stated by him in postmortem notes. Except that, nothing important is asked in the cross-examination of this witness.
18 Though the prosecution in corroboration has examined Scientific Officer Babubhai Shambhubhai Bhayani at Exhibit - 22 as PW-8. He had gone to the place of offence on the same day at 11.15 a.m. and had gathered blood samples, which were sent to FSL. PW-9 Harivadan Ishwarlal Jani was neighbour of the accused and was examined by the prosecution to prove that at 12'O clock, on screaming by Ishwa, neighours had gathered at the house of the accused and they were driven away by the accused. This witness has not supported the prosecution case. Like wise, PW-10 Archanaben Anantkumar Sharma is also a neighbour and has been examined at Exhibit- 25. Though this witness was a neighbour but had been examined as a panch of inquest panchnama at Exhibit -26 in respect of deceased Geetaben. She supported the panchnama. PW-11 Bharatbhai Somabhai is panch of panchnama at Exhibit-30 and Exhibit 33 whereby clothes of injured and deceased were recovered by the police. The panch has supported both the panchnamas. PW-12 Prakashchandra Banshilal Kayasth, examined at Exhibit-35 is panch of panchnama at Exhibit 36, which is the panchnama of scene of offence and was drawn on 14.4.2007 at 11.30 a.m. to 13.30 p.m. Though he did not support the prosecution case in respect of panchnama, he was cross-examined by learned APP. PW-13 Nizambeg Abdulbeg Mirza, examined at Exhibit-43, is panch of panchnama at Exhibit-44 by which clothes of the injured were seized by the police. This witness has supported the Exhibit - 44 panchnama. PW-14 Kiranben Rameshbhai Patel, examined at Exhibit-51 is again a neighbour to prove the fact that the accused was beating Geetaben on fateful night and on screaming by Ishwa, the crowd was gathered. This witness has not supported the prosecution case.
19 PW
- 15 Mukeshbhai Zinabhai Gamit, examined at Exhibit - 52 is an important witness, and according to him, he was serving along with the accused in Nityanand Hospital medical store for last two years from the date of deposition. According to the witness, the accused was serving before he joined in that medical store. In the month of April, 2007, he was called at the residence of accused. He stated that for preceding about three months, the accused was not coming on his job. He was confronted with the suicidal note written by the accused by the police and he had identified the hand writing of the accused because he was conversant with the hand writing of the accused. In his deposition, suicidal note was exhibited as Exhibit-53. He was cross-examined by the defence and accordingly he was called at 3.00 to 3.30 p.m. on the day of the incident. He denied that any attendance register was kept in the medical store. He denied that the accused was retrenched from his job. He admitted that he did not know anything personally about the incident. He was confronted with the suicidal note when he reached at the house of the accused. He did not read the suicide note as to say that what was written in that. He could not give the description of the house of the accused. He denied the suggestion that the handwritings of the suicidal note was appearing as of accused and, therefore, the witness was saying that those handwriting of the suicidal note was of accused. He denied the allegation that he had not gone to the house of the accused and had not identified the hand writing of the accused in the suicidal note.
20 The last witness i.e. PW-16 Arjitkumar Dayasankar Shrivasta, examined at Exhibit 54, was the Investigating Officer. The witness had received an information that a murder had taken place in Kailashnagar and therefore they had been to Kailashnagar. When he reached to Kailashnagar, he found an ambulance standing there. He recorded the complaint of Urmilaben, which he identified at Exhibit-8. From the complaint, a crime was registered and Forensic Science Laboratory Officer was called for. After drawing the inquest panchnama and registration of crime, he investigated the offence and submitted the charge sheet.
21 This is all the evidence of prosecution side.
22 In Criminal Appeal No. 37 of 2008, learned Advocate Mr. N.K. Majmudar for the appellant vehemently urged that the whole case hinges upon the evidence of child witness PW-2 Ishwa and so called extra judicial confession stated to have made by the accused before witness PW-5 Jalambhai Solanki. It is attacked by learned Advocate that Ishwa is a tutored witness and she, however, on account hatred since her birth towards the accused stated the incident which could not be proved. It is stated that, according to prosecution case, root cause of the incident was financial scarcity in the family. While Ishwa in her deposition categorically stated that there was no quarrel or dispute in the family on account of meager pay of the accused. According to learned Advocate, this indicates the quality of the evidence of child witness. It is submitted that child witness is prompt to fabricate the facts tutored to it. Specially it is vehemently stated that in express embellishments in deposition Ishwa admitted in no uncertain terms that she deposed against her father because she hated him and, therefore, no credence at all could be placed upon the evidence of this witness. It has come in evidence that after the incident she was staying at Bombay with her maternal uncles and maternal aunts. Both had affections for her and, therefore, according to learned Advocate, there were all possibility to tutor this witness as her maternal uncle had escorted her to the court, as admitted by her. It clearly appears that the child witness of 11 years complex by nature and highly prejudiced against her father would not state the facts as it might have occurred. She was not matured to understand how the incident took place. Our attention was drawn to her deposition by the learned Advocate for the appellant wherein she stated that in the incident, a knife like muddamal article No.7 was used and it's first part was dissembled with the second part. This is also, according to learned Advocate for the Appellant, is a fact casts doubt on reliability of the evidence of child witness. There is no application of mind on the part of the Trial Court to appreciate this fact. It is submitted therefore that if the child witness is not believed, there is nothing in the evidence to connect the accused with the crime.
23 Thereafter learned Advocate for the appellant also attacked the evidence of the prosecution in respect of extra judicial confession alleged to have been proved through PW-5 Jalambhai Solanki. Learned Advocate for the appellant vehemently urged that very important factor which is required to be noted is the time factor. According to Ishwa, the incident occurred at about 12.00 to 12.30 at night. Thereafter, the accused watched TV and then opened both the doors and from back doors, he called Jalambhai and made the confessional statement, and according to the prosecution case, it was about 4.00 to 4.30 and Jalambhai Solanki reaches at the house of Urmilaben complainant at about 5.00 to 5.30. According to learned Advocate, there is huge contradiction in the timings. Had it been so, neither Ishwa nor accused could have been survived for about 4 to 4½ hours with the injuries they had. Learned Advocate for the Appellant further submitted that the evidentiary value of extra judicial confession rests upon the reliability of the witness before whom the accused might have made such confession. PW-5 Jalambhai is not at all a reliable witness. Firstly, about timings, Jalambhai is not consistent with the prosecution case. It was urged that, secondly we find material contradictions in the evidence of witness Jalambhai. He admitted in the cross-examination that he did not state before the police that when he was called by the accused, his wife was preparing meals for him and she first answered to the accused. He did not state before the police that on seeing the accused, he was frightened and he closed the back door of his house. It is submitted that the conduct of this witness is suspicious because after the confession of the accused, he neither called for the ambulance nor informed the police and allegedly reaches to Urmilaben. He has admitted in his deposition that he was having mobile phone and there was phone facilities in the house of Urmilaben and thereupon also he did not try to call Urmilaben on phone. At the height of the things in cross-examination, this witness admitted that he had not seen the incident but he had heard about the incident from the people gathered around the scene of offence and, therefore, this witness appears to be a got up witness and could not be relied upon. If there are loopholes in the evidence of this witness, the extra judicial confession alleged to have been made before this witness is fictitious type of evidence which would not have been believed by the trial court. Further, it is stated that according to map of scene of offence as produced on record and as per the say of Jalambhai Solanki, from the house of Jalambhai Solanki, the house of the accused is situated hardly at a distance of 6 feet. In the same way, other houses are also situated around the house of the accused. If the accused had inflicted the blows, as has been stated by the prosecution, then, neighbours must have heard the screaming and shouts of pain and agony on account of knife blows and might have attracted more persons. According to learned Advocate for the appellant if the deposition of Jalambhai Solanki is appreciated from this angle, no credibility can be attached to his evidence and, therefore, extra judicial confession could not be proved by the prosecution. The learned Trial court erred in placing reliance on the evidence of this witness.
24. Learned Advocate for the Appellant therefore urged that if witness Ishwa and witness Jalambhai Solanki are found short of reliability, the case of prosecution is not proved as against the accused beyond reasonable doubt. The learned Advocate for the appellant stated that if further probe is made in the evidence of prosecution, it is clearly revealed that Urmilaben - complainant and cousin sister of deceased Geetaben, examined as PW-1 in uncertain terms admitted in cross that she narrated the First Information Report as has been suggested and indicated by PW-5 Jalambhai Solanki. Learned Advocate for the appellant further stated that two very important inference can be drawn from this fact that Jalambhai Solanki is an interested witness and that whatever stated by Urmilaben in the FIR is not correct and what has been stated is the hearsay evidence, which was heard by Jalambhai Solanki and Urmilaben from the persons gathered around the scene of offence. This fact clearly weakens the prosecution case. It is also submitted that two very important witnesses, who are natural witnesses and neighbours of the accused, did not support the prosecution case. Those witnesses are PW-9 Harivadan Ishwarlal Jani and PW-14 Kiranben Rameshbhai Patel. Both of them denied the fact that any quarrel had taken place between the accused and his deceased wife at about 12.00 at night and persons had gathered around the house of the accused. It was denied that thereafter the accused abused the persons and shouted them to go away from there as it was their personal matter and thereafter both the witnesses also did not support the subsequent events of the prosecution. It is submitted that therefore the defence taken by the accused that he had gone unconscious and some third party had killed his family members and had injured him is probable and learned Trial Judge failed to appreciate the whole case in the above manner. Therefore, it was urged that the conviction of the accused under Sections 302, 307 and 309 of the Indian Penal Code be set aside and accused be acquitted of such offences after allowing the Appeal.
25As against that, learned APP Mr. L.B. Dabhi for the respondent - State vehemently urged that the prosecution case is based on substantial evidence and direct evidence and not upon only extra judicial confession. It is submitted that Urmilaben - complainant examined as PW-1 is genuine and reliable witness and it is not understood how this witness could be fabricated by police and for what purpose. In her evidence, deposing by her that the complaint was narrated by her as per the say of Jalambhai, means only that, the complaint contains whatever she heard from Jalambhai and other people gathered at the place of scene of offence. Undoubtedly, the prosecution does not claim this witness as an eye witness. The deposition of child witness Ishwa is absolutely impeccable and matured say of a child, who was injured badly by her father. She had received injuries on vital part of her body and had witnessed the brutal killing of her mother and three years old brother. It is quite natural that such child witness must have hatred for her father, which is though reflected in her deposition, but does not affect the substratum of the prosecution case. The learned Trial Judge has ascertained the maturity of the witness by inquiring from her and asking questions to her. Only because she stated that she had gone against her father, her evidence cannot be jettisoned. There is no reason to believe that Ishwa was a tutored witness. When the deposition was recorded, Ishwa was 11 years old. At the time of the incident also she was capable of understanding the circumstances and events taking place around her. It is submitted that father being in jail as an accused and rest of the family members killed, there was no other alternative for this witness except to stay with her maternal uncles and when 11 years old child comes from Bombay to Bharuch for deposition or in this situation she stays with her maternal uncles, it cannot be said that she was a tutored witness. Minor contradictions here and there not affecting the substratum of the prosecution case would not render her evidence unreliable nor it can be said that she is the sole eye witness and her evidence requires corroboration, though, in fact, there is plenty of corroboration to her say, which lends credence to her. Her injuries were serious in nature, which is evident from the deposition of Dr. Vijay Motiram Bavisakar, examined as PW-6. The timings upon which much harping is done by the defence is not material. In all respects, Ishwa is supported by PW-5 Jalambhai Solanki, who is a reliable witness. It may be noted that he is an independent witness and has no grudge against the accused. Minor contradictions in his evidence would not render the whole evidence untrustworthy. Only because he stated that he heard from the people about the incident, would not render the extra judicial confession unreliable as in his deposition in very second line he deposed that accused had confessed before him. He is the next door neighbour and natural witness. Prosecution has amply proved, according to learned APP, the case against the accused from the evidence of Ishwa and Jalambhai Solanki and their evidence is supported by PW-6 Dr. Vijay Motiram Bavisakar and PW-7 Dr.Kamleshbhai Ganeshbhai Rathod, both are corroborating. Inquest panchnama, panchnama of scene of offence, evidence of PW-8 Babubhai Shambhubhai Bhayani, Scientific Officer, at the scene of offence, are corroborating piece of evidence. In this double murder case, auspicious son of three years was killed by the accused and his own wife has been murdered brutally and it was the luck of Ishwa that she was escaped and saved. It is submitted that the suicidal note at Exhibit-53 is also a material piece of evidence and proved to be in the handwriting of the accused by PW-15 Mukeshbhai Zinabhai Gamit. Forensic Science Laboratory evidence produced on record is also supporting the prosecution case. It was, therefore, urged by learned APP that the case against the accused is proved beyond doubt for the offences punishable under Sections 302, 307 and 309 of the Indian Penal Code and the Appeal filed by the accused is required to be dismissed.
26 This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to the broad and reasonable probabilities of the case. This Court has also taken into consideration the contentions raised by both the learned Advocates in respect of this Criminal Appeal.
27 The fact that deceased Geetaben and Pujan died homicidal death is hardly in dispute. It is also proved beyond doubt that Geetaben had 16 external injuries and three internal injuries corresponding to external injuries. These were fatal injuries and the cause of death was those external injuries and internal injuries. Like wise, Pujan aged three years, son of the accused, had also nine external injuries and very serious internal injuries on lungs and liver corresponding to external injuries. It is also not in doubt that those injuries were the cause of death of Pujan. This fact is proved beyond doubt by the prosecution in the evidence of Dr. Kamleshbhai Ganeshbhai Rathod, PW-7, examined at Exhibit-18. Nothing is brought in examination-in-cross as to take a different view than that both the deceased died due to those injuries which were knife blows and which were ante-mortem injuries. Likewise, PW-2 Ishwa had 14 injuries which could have been caused by sharp cutting object and duration of injuries were 12 hours preceding the examination. According to the evidence of Dr. Vijay Motiram Bavisakar, examined at Exhibit-15, PW-6, injuries were serious and bleeding. There was active bleeding which could have caused death. Likewise, it is also proved beyond doubt by the prosecution that when the same witness Dr. Vijay Motiram Bavisakar examined the accused referred from municipal hospital to him. He had also 11 injuries with active bleeding and in history he stated to have caused suicidal injuries by knife to him. This witness is also cross-examined by the defence but nothing is brought about on the record to form a different opinion than the trial court that Ishwa had serious injuries and accused had also injuries for which he gave history of suicidal injuries. Now in this background, we are required to appreciate and re-appreciate the evidence on record to find out whether the prosecution has proved its case beyond reasonable doubt.
28 True that the case rests upon PW-2 Ishwaben and extra judicial confession as alleged to have been proved by the prosecution by witness No. 5 Jalambhai Solanki. This is a case of direct evidence.
29It must be noted that PW-2 Ishwa is an injured witness. She has received serious injuries and not superfluous injuries. When the evidence of injured witness in the incident is appreciated, there are certain milestones, which must be kept in mind. The presence of the injured witness at the time and place of the occurrence, cannot be doubted. Unless, it is established to the evidence, otherwise, it must be believed that injured witness would not allow to escape the real culprits and implicate falsely the accused person, especially, in this case, her own father. The evidence of the injured witness is always of great value to the prosecution and it cannot be doubted on some embellishment in natural conduct or minor contradictions, but the set up and circumstances of committing of a crime, shall be appreciated along with the evidence of injured witness. If there be any exaggeration or immaterial embellishments in the evidence of injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured but not the whole evidence. The broad substratum of the prosecution version must be taken into consideration and discrepancies which would normally crept should be discarded. Thus, it must be borne in mind that Ishwa is injured witness and her deposition and evidence carries great value and weight. If now the set up and circumstances of committing of crime is appreciated, it is undoubtedly revealed that there was some financial crunch in the family, and as routine, after taking the dinner, the family of the accused, consisting of wife Geetaben, daughter Ishwa aged 11 years and son Pujan aged three years, went to sleep and thereafter the incident occurred as narrated by the prosecution. The presence of 11 year old daughter in the house at the commission of crime would be natural at wee hours of night when almost massacre is taking place and her evidence, therefore, is to be appreciated from these aspects of set up and circumstances of committing of a crime.
30It should also be noted that it is not the law that whenever child witness appears for deposition, it is always to be looked at suspicion. It is not the law that the child witnesses are tutored witnesses because they are prone tor tutor. It always depends upon the facts of the case, and it is for the court to weed out the embellishments, if any, in the evidence and come to a definite conclusion as to the reliability or otherwise of the evidence of child witness.
31 Section 118 of the Evidence Act deals with the question of competency of persons to testify. Under this Section, all persons are competent to testify, unless they are, in the opinion of the Court,
(a) unable to understand the questions put to them, or (b) to give rational answers to those questions, owing to (i) tender years, (ii) extreme old age, (iii) disease of mind or body, or
(iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness. With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. A child is not an incompetent witness by reason of his age. A child of tender years is not, by reason of his youth, as a matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to Section 118 of the Evidence Act, a child of tender age is a competent witness if it appears that it can understand the questions put to it and give rational answers thereto. This section vests in the Court the discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding. When a young child is a witness, the first step for the Judge or Magistrate to take is to satisfy himself that the child is the competent witness within the meaning of Section 118 of the Evidence Act and for this purpose, preliminary inquiry should be held. It is the duty of the Court to ascertain in the best way, which it can, whether from the extent of his intellectual capacity and understanding the child witness is able to give a rational account of what he has seen, heard or done at a particular occasion or in other words, the witness understands the duty of speaking truth or not. Competency of young children can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the Court thereof. The holding of a preliminary inquiry is merely a rule of prudence and is not a legal obligation upon the Judge. It is desirable that after holding a preliminary inquiry, Judges and Magistrates maintain record incorporating opinion that the child understands the duty of speaking truth. However, absence of recording of such an opinion does not make evidence of a child witness inadmissible. Opinion of the Court in this behalf can be gathered by the appellant Court from circumstances appearing in the case if there is no certificate by the learned Trial Judge. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is whether there was possibility of any tutoring. If this test is found in the positive, the Court will not, as a rule of prudence, convict the accused on a murder charge on the basis of child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime. At the same time, if otherwise, the testimony of a child witness is not shown to be tainted with any such infirmities, it calls for due credence. A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come out with what was seen. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. The merit of evidence has to be judged on the touchstone of its own inherent intrinsic worth. In the case of Mohamed Sugal Esa Mamasan Rer Alalah vs. The King, A.I.R. 1946 Privy Council, 3, it is held as under:-
"In England, where provision has been made for the reception of unsworn evidence from a child, it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But, in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not.Once there is admissible evidence, a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law."
32 Appreciating the evidence of child witness to the set up and circumstances the testimony of the witness would show that at the time of recording of her deposition, she was aged 11 years. In order to satisfy whether witness was understanding the seriousness of the case and the duty of speaking truth before the court, certain preliminary questions were put to her by the learned Trial Judge. She was made aware that where she was and what were the consequences of speaking untrue. It was categorically stated by her that she was in the court and that she knew about her duty to speak truth before the court. A bare reading of the questions put by the learned Trial Judge to the child witness and the replies given by her, would establish that she was able to understand the questions put to her as well as to give rational answers to those questions and was aware about her duty to speak truth. The learned Trial Judge therefore recorded his satisfaction in the presence of the prosecution as well as defence that she should be administered oath and, therefore oath was administered to her and thereafter she stated what is stated here-in-above while depicting her evidence. Reassessment of evidence of the child witness shows that she has deposed before the court in a most natural manner. In fact, there are no much exaggerations about the incident nor such embellishments or discrepancies as to go to the substratum of the case. It could not be demonstrated by the defence that the witness was tutored except some questions are asked where she was staying and how she had come to the court, in which she replied that she was staying at Bombay with her maternal uncle and maternal aunt and had been escorted by her maternal uncle to the court. She admitted that her maternal uncle and maternal aunt had affection for her. This is by no stretch of reasoning could be said and to believe that she was tutored. Moreover, she is amply supported by the Doctor, who corroborates in respect of injuries caused to her. She might have stated more blows than found on the body of the deceased and body of herself, but that would not render the evidence of child witness unreliable. She is supported by other witnesses like her maternal uncle Rashmikant Chandrashankar Raval, PW-3. Nothing could be brought about by the defence to show that even this witness had a grudge against the accused so as to tutor the child witness. Nothing could be shown by way of contradictions by the defence which renders the evidence of child witness suspicious. It must be remembered that the incident had occurred in closed premises and in security of residential house, wherein at night hours, only family members would be present in the house. It may be that, there may be some minor discrepancies in her evidence about the timings. She states that the actual incident occurred at about 12.30 in the night, the accused watched TV for about two hours and then went to Jalambhai. The child witness may be exaggerating in this respect, but that would not render the whole evidence incredible and 11 years old child when awakened from the deep sleep, she naturally would not be in a position to depose the exact timings of the incident and especially when she was injured, she might have little bit erred in timings and in saying that the incident occurred at about 12.30 and the accused watched TV for two hours after inflicting injuries to Geetaben, Pujan and this witness.
33 Like wise, the trump-card of the defence that the child witness was utterly prejudiced against her father and that she has admitted in express terms in her deposition that she hated her father from childhood, is of no avail to the defence. It is one thing to say that witnesses deposing against the accused and it is altogether different to say that witnesses deposing falsely against the accused. Whatever she stated was undoubtedly against the accused and not against her father, but that does not mean that she was deposing false facts against the accused. This is so because her injuries are proved and the set up and circumstances in which the crime is committed, this witness is a natural witness and before court also she has deposed naturally, which is the sure guarantee of truth. Reassessing the evidence of Ishwa from all angles, we are unable to agree with the defence that she was tutored or she was so prejudiced against her father that she would dare to speak untrue for the serious crime against her father. In para-10 of the deposition of this witness, certain contradictions asked by the defence in respect of how many wounds were given to each of the injured and deceased. It appears that there is some confusion about whether the accused had inflicted injuries upon himself when he made extra judicial confession before Jalambhai Solanki. Her version before the police is very categorical that before the accused went to Jalambhai Solanki, he had inflicted injuries upon himself, but these are not the facts affecting the substratum of the deposition of the witness before the court as to incident which is proved beyond doubt, and as stated above, corroborated by other evidence, including the evidence of Forensic Science Laboratory Officer.
34In the matter of RATANSINH DALUSUKHBHAI NAYAK vs. STATE OF GUJARAT, as reported in (2004) 1 SCC 64, in respect of appreciation of child witness, the Supreme Court observed in para-7 as under :
7. In Dattu Ramrao Sakhare vs. State of Maharashtra, it was held as follows :
A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words, even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of the child witness.
35 We have carefully scanned the evidence of child witness Ishwa and we have closely scrutinized the evidence and allegations made against her evidence. As discussed above, there is no manner of doubt that that child witness Ishwa is credible witness and establishes beyond doubt that the accused appellant was not only the author of injuries sustained by her but the accused was also author of injuries sustained by both the deceased.
36 The next important evidence is extra judicial confession made by the accused before PW-5 Jalambhai Fatajibhai Solanki. In uncertain terms, Jalambhai stated before the court on oath that in early morning when he was preparing to go for his job, as it was his first shift where he was working, at about 4.30, accused called him. His wife was preparing meals for him to prepare his tiffin, the accused inquired from his wife where the witness was and thereafter the accused made a clear confession that he (accused) had murdered his family members and to call police. His whole evidence is depicted earlier. It appears to us on reassessment of the evidence that Jalambhai Solanki is not only the independent witness but natural witness. His house is situated just behind the house of the accused at the distance of about six feet. Shift working is natural in city like Ankleshwar which is an industrial zone. He also named the factory where he was working. Vehement objection which defence took against his evidence is in respect of the statement of the witness in examination-in-cross that he heard what the people said and from that a mountain was erected from a mole by the defence that in fact this witness was an hearsay evidence, but we are required to read the evidence as a whole. When the witness admitted that he had heard what the people said and as a sequel, just in next line, he stated that when accused made confession, he was at this residence, would not render his evidence doubtful. The second objection which was taken by the defence is about the contradictions in the evidence in respect of the fact that the witness did not state before the police that when the accused confronted with his wife and when he approached the witness. He had not stated before the police that at that time his wife was preparing meals. When we read and re-appreciated the evidence of this witness, we found that those contradictions are of no consequence at all. So far as extra judicial confession made by the accused before this witness, he is quite consistent and natural in saying that accused at about 4.30 a.m. on the day of the incident calling from the back door of his house and stated that he had murdered his family members. So far as this relevant material aspect is concerned, there is no contradiction at all in the consistency of the witness. There is no reason to disbelieve this witness as he has no axe to grind against the accused as nothing is asked by the defence in this respect in cross-examination that what was the grave reasons for the witness to such extent to state falsely and involve the accused in such a serious crime. We find that the evidence of Jalambhai Solanki is spotless and blameless and attempt is also made to attack his deposition on the ground that the house of Jalambhai Solanki was very near and in the proximity that when the incident occurred at about 12.00 to 12.30 at night, he must have heard some commotion or shouts, when according to prosecution 41 knife blows were given by the accused to the victims and the time factor is also urged. As we have stated earlier, time factor of 12.00 to 12.30 stated by the child witness and there may be error in that here or there, but the fact remains that for the first shift, this witness was preparing himself and his wife was preparing his meals for preparing his tiffin. Hearing of shouts on account of the proximity, it may be stated that, there may be thousands of reasons that nobody heard anything in neighbourood about the incident. Deep sleep of human being and air tight houses were enclosed, it may be that, their shouts may not be heard or any noice might not be heard by others. That fact itself would not weaken the evidence of this witness. We believe this witness to be credible and believable. Consequently, extra judicial confession made before this witness is material and substantial piece of evidence. Extra judicial confession if found truthful and voluntarily made before a person and when there is no reason to state falsely, such extra judicial confession is valuable piece of evidence. In the matter of RAM SINGH vs. SONIA AND ORS, as reported in (2007) 3 SCC, 1 the Apex Court observed in respect of extra judicial confession in paras 48, 49 and 50 are as under :
48. Learned counsel appearing on behalf of accused has submitted that PW 48 being a stranger to A-2 and Brahm Singh, who was not examined by the prosecution on the pretext of having been won over, having been remotely connected to PW-48 no reliance should be placed on the confession made by A-2 before PW 48. In our view, the submission has been made only to be rejected for the reason that in his testimony PW-48 has stated that he had attended the betrothal ceremony and marriage of A-2. Therefore, question of his being stranger to A-2 does not arise. However, it is well settled by a catena of decisions rendered by this Court that extra judicial confession made even to a stranger cannot be eschewed from consideration if it is found to have been truthful and voluntarily made before a person who has no reason to state falsely. In Gura Singh vs. State of Rajasthan, the evidentiary value to be attached to the extra judicial confession has been explained at SCC p 212-13, para 6 thus :
6.
It is settled position of law that extra judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon a earlier judgment in Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh, this Court again in Maghar Singh v. State of Punjab held that the evidence in the form of extra judicial confession made by the accused to witness cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P. this Court held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Raj v. State of Haryana. After referring to the judgment in Piara Singh v. State of Punjab this Court in Madan Gopal Kakkad v. Naval Dubey held that the extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.
49. Examined in the light of the enunciation of law as above, we are of the view that the testimony of PW 48 as regards the confession made by A-2 in such as to inspire confidence in our minds. Indisputably, extra judicial confession was made by A-2 to PW 48 prior to his arrest by the police and, therefore, question of it being made under any inducement, threat or promise does not arise. Moreover, there was absolutely no reason for PW 48 to unnecessarily implicate the accused, as he had no animus against him.
50. In view of our above discussion, we see no reason to disbelieve the evidence of PW 48 and hold that A-2 made extra judicial confession which is voluntary and truthful.
Therefore, there is no manner of doubt that the accused inflicted injuries to injured Ishwa and also inflicted knife blows to deceased Geetaben and Pujan. After the incident, however, by way of repentance or coming out of the area of deep human anger, he attempted to inform this witness. We find that the prosecution has proved its case beyond doubt by this witness.
37 Likewise, there is corroborating evidence also. Complainant Urmilaben, though happens to be cousin sister of deceased Geetaben, is found credible in all respects. She materially remained consistent with the First Information Report she has filed. Though, as aforesaid, it is alleged that Urmilaben gave complaint at the instance of Jalambhai Solanki PW-5 but when we read the evidence as a whole, it is undoubtedly clear that Urmilaben was not an eye witness nor Jalambhai Solanki was an eye witness. What was heard by Jalambhai Solanki from the accused was conveyed to Urmilaben and accordingly Urmilaben PW-1 offered her complaint. When that particular sentence is read with the context of other statements of this witness, it is undoubtedly clear that, meaning of saying by Urmilaben that, she offered the complaint as per the say of PW-5 Jalambhai Solanki, means nothing but she meant to say that, she offered the complaint upon what Jalambhai Solanki PW-5 had conveyed to her and, therefore, the evidence of Urmilaben is undoubtedly corroborative the prosecution case and Ishwa as well as Jalambhai Solanki.
38 Moreover, the evidence of two Doctors i.e. PW-6 Dr. Vijay Motiram Bavisakar and PW-7 Dr. Kamleshbhai Ganeshbhai Rathod and documentary evidence of postmortem notes, medical certificates, evidence of inquest panchnama, evidence of Scientific Officer of Forensic Science Laboratory, PW-8 Babubhai Shambubhai Bhayani and the evidence of Investigating Officer all are supporting and corroborating the say of PW-2 Ishwa and PW-5 Jalambhai Solanki. We do not find a pinhole loophole in the prosecution case to come to the conclusion that the Trial Court erred in coming to the conclusion that accused was guilty of causing murder of Geetaben and Pujan and inflicting serious injuries to the person of Ishwa. It is also proved beyond doubt that the accused inflicted injuries upon himself as well. This is clear from the medical certificate Exhibit 17 in respect of accused wherein before the Doctor the accused clearly admitted that he had inflicted suicidal injuries.
39 In this view of matter and for the foregoing reasons, we find the Criminal Appeal No. 37 of 2008 merit less and Appeal must fail. Consequently, we dismiss the Criminal Appeal No. 37 of 2008.
40 Now, this bring us to the sentence awarded to the accused by the Trial Court. As the Trial Court has referred the matter to this High Court for confirmation of death sentence under Section 366 of the Code of Criminal Procedure, which is registered as Criminal Confirmation Case No. 1 of 2008 and now we are concerned with this case. The learned Trial Judge has relied upon the decisions of the Apex Court in the matter of BABLU alias MUBARIK HUSSAIN vs. STATE OF RAJASTHAN, as reported in AIR 2007 SC 697 and in the matter of STATE OF GUJARAT v. RAGHU @ RAGHAVBHAI VASHRAMBHAI, as reported in 2003 (1) GLR 205. The learned Trial Judge came to the conclusion that this was a cold blooded murder by the accused of his wife and his three years old son, any penalty, except the death penalty, would be insufficient in the circumstances of the case and having regard to the gravity of the offence.
41 Learned Advocate Mr. N.K. Majmudar, on behalf of the respondent accused in Confirmation Case vehemently submitted that it is not nature of the crime alone would govern the field but the circumstances of the crime in which it is committed and the circumstances of the criminal, both will have to be balanced against the gravity of the crime. Learned Advocate Mr. Majmudar for the accused submitted that the incident occurred, may be grave but the motive which is subtle for the penalty when death sentence is to be awarded, is required to be taken into consideration. Undoubtedly, it s nowhere established by the prosecution that the accused had criminal tendency and for a particular motive or for some gain, he committed murder of his wife and son of three years old, and in that process, he also inflicted grave injuries to 11 years old daughter. Learned Advocate again drawn our attention to the evidence recorded during the trial, particularly to the evidence of Ishwa, PW-2, wherein she stated that her mother was doing tuition and the salary of his father was meager. Though she has stated that there was no quarrel on account of financial crunch and scarcity in the family, according to learned Advocate for the accused, it is crystal clear through the evidence that family was passing through dire financial difficulties and accused was all through out in turmoil to the extent that he was not going to his job. Learned Advocate for the accused drawn the attention of this Court to very important fact that the accused himself inflicted injuries and those injuries were serious injuries, the accused was sent to SSG Hospital, Vadodara, for treatment and took treatment for about one month denoting that the crime is committed by the accused in total frustration and helplessness. It is submitted that the accused was helpless and frustrated because he could not enhance and better the position of the family, except that, there was no motive behind the crime. It is submitted by learned Advocate for the accused that generally when the offence is proved by cogent evidence, motive assumes no importance, but so far as the measurement of the punishment is concerned, especially when choice between death penalty or imprisonment of life, motive assumes importance to know the exact nature of the crime. Learned Advocate for the accused further stated that, according to the deposition of Ishwa, the very fact that during dinner, the accused thrown a currency note of Rs. 500/- on the face of the deceased Geetaben, itself is a sufficient indication that to what extent the accused was frustrated. This will be seen, according to learned Advocate for the accused, from suicidal note at Exhibit-53 which is proved by the prosecution wherein initially it has been stated by the accused that he activated by all the four and thereafter in the suicidal note he named certain persons and ultimately stated that he had been passing through sheer mental harassment, which will be revenged by him only. According to learned Advocate for the accused, in this exasperated mental state, accused committed the crime in confused mental state, accused is not ruthless person and has shown love and affection to his mother and sisters. Apprehension of the accused, according to learned Advocate for the accused, reveals from the suicidal note that in his absence, his family will have to pass through rough voyage of life and difficulties and, therefore, he committed crime and in that process attempted to commit suicide. It is submitted that it is not an incident of preplanned murder by a criminal but an act of frustrated person in confused belief that instead of putting his family through heavy pain and suffering, it would be better for all of them to end their lives, which resulted in the present crime. Mental state of the accused could be measured and, therefore, it is clear that the accused is not menace to the society to the extent of total elimination but can be taken care of by putting the accused out of circulation and that by life imprisonment. Learned Advocate for the accused submitted that therefore this is not a rarest of rare case in which no other punishment would take care of the situation and only available alternative is death penalty. This is not a preplanned murder. It is, therefore, submitted that Confirmation Case be dismissed and sentence awarded to the accused be modified from death sentence to life imprisonment. Learned Advocate also placed reliance on many decisions on facts denoting that similar circumstances having been considered by the Apex Court and other Courts, wherein the incident was not considered to be a rarest of rare case, which are mentioned as under :
i) RAMA SUBRAMANIAN vs STATE OF KERALA, as reported in AIR 2006 SC 639.
In this case the servant committed murder of his previous employer with three children by causing multiple injuries. In respect of death sentence awarded to the accused, the Apex Court came to the conclusion that the crime was committed in cruel and dastardly manner, but it was not pointed out by the prosecution that in what circumstance the incident had taken place and, hence, the sentence of death imposed upon the accused was converted to life imprisonment.
ii) SHAIKH AYUB vs. STATE OF MAHARASHTRA, as reported in AIR 1998 SC, 1285. In this case, the accused had killed his wife on suspicion regarding character of his wife. Accused also killed his children and was awarded death sentence. The Apex Court ruled that, that was not a fit case for death sentence because of the facts and circumstances of the case clearly indicate that the appellant had killed his wife and his children because of unhappiness and frustration and not because of any criminal tendency.
iii) UMMILAL vs. STATE OF M.P., as reported in AIR 1981 SC 1710, wherein the accused committed murder of his brother's wife and nephew under a sudden impulse in a grave fit of rage. The Apex Court held that the ends of justice will be met by sentencing the applicant to imprisonment for life.
iv) RAJA RAM YADAV vs. STATE OF BIHAR, as reported in AIR 1996 SC 1613. The conviction in the case was based on testimony of solitary child eye witness. The child witness telling names of assailants to another witness but not telling names of four assailants. In these circumstances, though murder was committed in premeditated and calculated manner and with extreme cruelty and brutality, the Supreme Court considered that still the case was not of extreme penalty of death. In the special facts of the case, Supreme Court held that it would not be proper to award extreme sentence of death on the accused.
v) JANKI DASS vs. THE STATE (DELHI ADMINISTRATION), as reported in AIR 1995 SC 1002. In this case the accused committed death of his wife and children. Some of the children buried in house itself. From the statement of the accused it was apparent that it was a mental case. The accused committed murder not with intention to murder of his children but by way of deliverance from day-to-day strain in life, the accused was finally crippled. In these circumstances, the Apex Court held that the extreme penalty of sentence of death should not be awarded to the appellant and be substituted by a sentence of imprisonment of life which would meet the ends of justice.
vi) NAMU RAM BORA vs. THE STATE OF ASSAM AND NAGALAND, as reported in AIR 1975 SC, 762. This was a case of triple murder of his wife and two minor daughters by the accused. It was held to be a premeditated crime but not preplanned. The accused offered explanation that after a dog bite he was suffering mental disorder and the Supreme Court held that the claim of the appellant accused may be correct or not, but it was apparent that the triple murder was committed by the accused appellant as a result of mental imbalance and death sentence was commuted to one for imprisonment for life.
vii) RAHUL alias RAOSAHEB vs. STATE OF MAHARASHTRA, as reported in(2005) 10 SCC 322. In this case, accused was convicted under Sections 302, 376 (2)(f), 377, 363 and 201. It was a case of rape of a child aged 4 and half years and causing her death by inflicting cut injuries on her neck, body was put in a gunny bag with hands and legs tied and left in a pit near a stream. Accused appellant then aged 24 years and alleged to be in drunken state. The Supreme Court in respect of death sentence held that the appellant had no previous criminal record and, therefore, it could not be said that he would be a menace to the society in future and the death sentence was commuted to sentence of life imprisonment.
viii) SAIBANNA vs. STATE OF KARNATAKA, as reported in 2005 (3) GLH 91. It was a case of rape upon the child and murder by the accused. The Supreme Court held that it was not a rarest of rare case and death was commuted to life imprisonment.
ix) DARSHAN SINGH vs. STATE OF PUNJAB, as reported in AIR 1988 SC 747. In this case there were more than one accused killing the entire family of his uncle of main accused Darshan Singh. Others were abetting the crime. The motive was to eliminate the successor of Mukund Singh. On the question of sentence, the Apex Court held that though all the accused committed murder but the accused who had motive to gain financially was awarded death penalty while other accused were no such motive, death penalty was commuted to the sentence of life imprisonment.
42Learned Advocate Mr. Majmudar for the accused quoted the above various instances in which the Apex Court has held that death sentence should be commuted to life imprisonment. It was urged that the present case contains more mitigating circumstances and, therefore, the extreme penalty of death be substituted by sentence of imprisonment of life. It was submitted that the Trial Court did not consider at all the mitigating circumstances and the fact that the murder was committed in mental duress. The learned Trial Judge therefore erred in coming to the conclusion as to the death sentence.
43 On the other hand, learned APP Mr. L.B. Dabhi on behalf of the State advocating the death penalty, submitted that this is an instance of brutal murder by a father and head of the family, in whom members of the family search security. This is a vital aggravating feature of the case. If, according to learned APP, the incident is reviewed, three years child Pujan was brutally murdered by inflicting 16 injuries. The accused inflicted in all 41 injuries to the body of his wife and two children. Learned APP Mr. Dabhi further submitted that it was a preplanned and cold blooded murder and only alternative available with us is total elimination of the accused from society. The accused was of dominating personality and was beating his wife. There was no provocation from any of the victims. The further aggravating circumstance, according to learned APP, is the place of offence, which is the residential house and the safest place for the accused, as there can be no escape for the victims. It is submitted that it must be taken note of that the knife used to commit murder is of 7 inches long would not ordinarily be kept in residential house. This denotes that a preplanned murder by the accused. It is submitted that, not only that, the accused also took care to lock the front and back doors of the house, so that the victims could not escape. It is submitted that the plan of the accused is revealed when he himself made an extra judicial confession after verifying that none of the victims was living and then inflicted knife injuries upon himself to escape from two murders. This also discloses the mindset of the accused to eliminate each member of his family in brutal manner, which indicates preplanned clod blooded murder and the intention on the part of the accused to see that none of the victims escape from his claws. It is submitted that Ishwa in her deposition expressly denied the quarrel on account of financial crunch and mental disorder of the accused. The medical certificate denotes that which force the blows were inflicted and the extent that with the knife was broken in two pars as it's handle was dissembled. All the blows on the victims were on vital part of the body. Ishwa deposed that after inflicting injuries to the wife and three years old son and 11 years old daughter, with cool and calm, accused sat to watch TV for about two hours. The accused was passing time to see that all the victims die. If the accused wanted to commit suicide, he would not have waited for two hours and watched TV. He also manipulated suicide note to misguide the subsequent investigation. It is, therefore, submitted that this is a case of aggravating circumstances and committing of cold blooded murder of two persons, nonetheless, but his wife and three years old son of the accused. It is submitted that in these circumstances, death penalty of the accused is required to be confirmed as has been awarded by the Trial Court to meet the ends of justice and the accused is required to be totally eliminated from the society being a gruesome criminal. Learned APP also submitted certain instances in the decisions of the Apex Court wherein in similar circumstances, death penalty has been awarded by the Apex Court. These instances are as under :
i) BABLU @ MUBARIK HUSSAIN vs. STATE OF RAJASTHAN, as reported in AIR 2007 SC, 697, relied upon by the Trial Court, is sought to be relied upon, wherein accused committed gruesome murder of his wife and three daughters and a son. The court rejected the plea of drunkenness of the accused and the Supreme Court held that the acts of the accused were not only brutal but also inhumane with no remorse for the same. The case was one of the rarest of rare category to warrant death sentence.
SUSHIL MURMU vs. STATE OF JHARKHAND, as reported in (2004) 2 SCC 338. As per the facts of the case, Chirku, son of Somlal Besra was sacrificed before Goddess Kali by the accused appellant. Two other persons, wife of the accused and mother were also said to be the parties to the gruesome killing. In these facts and circumstances, the Supreme Court held that the appellant (accused) not possessing of the basic humanness and he completely lacks the psyche or mindset which can be amenable for any reformation. The murder committed was brutally and diabolically and in most dastardly manner and hence it was treated as the rarest of rare cases in which death sentence is and should be the rule, with no exception whatsoever.
iii) STATE OF RAJASTHAN vs. KHERAJ RAM, as reported in (2003) 8 SCC 224. It was a case of killing by the accused Kheraj Ram, suspecting infidelity on the part of his wife, his two children and brother-in-law on 10th of October, 1992. The accused thereafter woke up Gaina Ram (PW 9) and gave untrue information that some one had given beating to his children. In this factual matrix, it was held by the Apex Court that the act was cruel and diabolic manner in which the killings were conceived and executed. There was no provocation but it was deliberately planned and meticulously executed. Victims were too innocent children and helpless woman. The death sentence imposed by the Trial Court was confirmed.
iv) JAIKUMAR vs. STATE OF M.P., as reported in (1999) 5 SCC, 1. It was a case of murder by the accused of his brother's wife and her daughter aged 8 years. Accused was trying to commit rape on his brother's wife and on failing, committed her brutal murder, severing her head from the body and hanging her head on the tree. The accused also committed murder of her 8 years old daughter who had witnessed the incident. In this factual matrix, the Apex Court held that there was no mitigating circumstances and punishment must be relating to the gravity of offence, the death sentence awarded was confirmed by the Apex Court.
v) SUNIL BABAN PINGALE vs. STATE OF MAHARASHTRA, as reported in (1999) 5 SCC
702. In this case, the accused with a pre-plan reached to the house of his father-in-law in the midnight armed with a sword and killing his mother-in-law and sister-in-law and also causing injuries to his wife and father-in-law. In this factual matrix, the Apex Court held that it was a rarest of rare case and the entire family was done to death for no justifiable reasons and, therefore, penalty of death was the only appropriate sentence that can be awarded to the accused.
vi) RAVJI alias RAMCHANDRA vs. STATE OF RAJASTHAN, as reported in (1996) 2 SCC 175. In this case, the accused in his house committed murder of his wife and his three minor children. There was no evidence of any provocation or altercation between the husband and the wife. It was proved that the accused appellant in a conscious state of mind and in a cool and calculated manner without any provocation wanted to hill his wife and three minor children while they were asleep and had no occasion to give any resistance whatsoever and when his mother wanted to prevent him from committing such heinous crime of murder, she was also not spared. There was no evidence that the appellant was found in a confused state of mind and in this factual matrix while rejecting the plea of the accused of being under temporary psychic disorder while committing the murder, the Apex Court having regard to the nature and gravity of the crime, confirmed the death penalty.
vii) BHERU SINGH S/o KALYAN SINGH vs. STATE OF RAJASTHAN, as reported in 1994 (2) GLH 304. In this case, the accused in broad day light murdered his wife, his two daughters and his son Raj Bahadur, aged 2 years, Nand Kanwar, aged 14 years and Nathu Singh, aged 8 years. After committing the murders, appellant accused went to police station holding the blood stained sword by which the murders were allegedly committed and himself lodged the first information report . The crime was committed on suspicion by the accused of infidelity of his wife deceased Kajodbhai. In this factual matrix, the Apex Court in para 29 hold that the murder was committed in cold blooded and gruesome manner and it was a barbaric and heinous type of crime in a manner, a revolt against the society and an affront to human dignity. There was no extenuating or mitigating circumstances and the death penalty was upheld.
viii) UMASHANKAR PANDA vs STATE OF M.P., as reported in (1996) 8 SCC 110. In this case, murder of wife and two children by the accused and accused has also caused grievous injuries to the remaining three children in the course of attempt to kill them. The accused caused 64 injuries to all the six persons. There was no provocation or any quarrel between the accused and his wife or among any one of the family members. Manner of committing crime indicating that it was a premeditated one and not on account of sudden provocation or any mental derangement. In this factual matrix, the Apex Court held that there was no mitigating circumstances but only aggravating circumstances. The Apex Court, therefore, held that death sentence is justified.
ix) HOLIRAM BORDOLOI vs. STATE OF ASSAM, as reported in (2005) 3 SCC 793. In this case, the accused was one of the assailants of 17 accused. On 26th of November, 1996, deceased Narayan Bordoloi along with his wife and three children was staying in a hut and the appellant Holiram Bordoloi and other accused came near the house armed with various weapons and on seeing them, deceased Narayan Bordoloi and his family went inside the house. The accused persons tied the door from outside and set the hut on fire. PW-2 Padam Bordoloi pierced the bamboo wall of the hut and escaped. The others burnt alive. In this factual matrix, the Supreme Court held that the offence was committed in most barbaric manner. There was the absence of any strong motive, but the crime was committed to establish the supremacy of the appellant accused in the village. The accused had no repentance for the ghastly act committed and the entire incident shocked the collective conscience of the community. There was no mitigating circumstances and, hence, death sentence was upheld.
44 Therefore, the learned APP Mr. Dabhi vehemently urged that this is a rarest of rare case falling within the criteria laid down by the Supreme Court in the case of MACHHI SINGH vs. STATE OF PUNJAB, as reported in AIR 1983 SC 975 and death sentence is required to be confirmed.
45 We have considered carefully the factual matrix, set of circumstances and the contentions raised by both the learned Counsels.
46 To understand properly the measures of punishment, it is necessary first to go to the history of criminology in respect of death sentence with reference to peculiar facts and circumstances of this case. The long debate of life or death for the offender ultimately as on today has reached to the acknowledgment of principle that death penalty is extreme penalty and though deterrent in its effect, but should be resorted by way of an exception and only in rarest of rare cases. The vexed question of legal threat to life by way of death sentence has sought to express itself legislatively in shape of amendment in the Code of Criminal Procedure in place of Section 367 (5) which came to be deleted and in 1973 Section 354(3) was substituted. By virtue of provision of 367 (5) (old) for murder, death penalty was ordinary sentence while imprisonment of life was an exception and for the reasons. However, constitutionality the provisions of Section 354 (3) (new) is upheld by the Apex Court. Noted decisions on this aspect are (i) JAGMOHAN SINGH vs. STATE OF U.P., as reported in AIR 1973 SC 947 and BACHAN SINGH vs. STATE OF PUNJAB, as reported in AIR 1980 SC 898. The decision in Jagmohan Singh's case is before amendment in Criminal Procedure Code. The later decision in Bachan Singh vs. State of Punjab (supra) is after the amendment in Criminal Procedure Code by way of Section 354 (3) of Code of Criminal Procedure Code. In Bachan Singh's case also the Constitutional Bench of the Apex Court observed with respect to Section 235 (2) and 354 (3) of the Code of Criminal Procedure that provisions specifically give the accused persons a right of pre-sentence hearing at which stage he can bring on record material or evidence which may not be directly relevant to or connected with the particular crime under inquiry, but nevertheless have consistently with the policy underlying in Section 354(3), a bearing on the choice of sentence. The present legislative policy discernible from Section 235(2) read with Section 354 (3) is that in fixing the degree of punishment or making the choice of sentence for various offences including one under Section 302 of the Indian Penal Code, the court should not confine its consideration principally or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. The Apex Court further observed that it is quite clear that for making choice of punishment or for ascertaining the existence or absence of special reasons in that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. More often then not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because style is the man . In many cases, extremely cruel or beastly manner of commission of murder is itself had demonstrated index of the depraved character of the perpetrator. That is why it is not desirable to consider the circumstances of crime and the circumstances of criminal in two separate water-tight compartments. In a sense, to kill to be cruel and therefore, all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist.
47 Thereafter, in the matter of MACHHI SINGH vs. STATE OF PUNJAB, as reported in AIR 1983 SC 957, the Apex Court held that the very existence of the rule of law and the fear of being brought to book operates as a deterrent to 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 their 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 except 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. The Apex Court therefore categorized such instance as under :
I Manner of Commission of Murder 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 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; (c) a murder is committed in the course for betrayal of the motherland.
III Anti-social or socially abhorrent nature of the crime.
(a) When murder of a member of a Scheduled Caste or minority community etc., is committed nor 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 same of extracting dowry once again or to marry another woman on account of infatuation.
IV Magnitude of crime 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, or locality, are committed.
V Personality of victim of murder 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 vi-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.
48 In para-32 in Machhi Singh (supra) also the Apex Court observed that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty, the circumstances of the offender also required to be taken into consideration along with the circumstance of the crime. 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. 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.
49 In Machhi Singh (supra) the Apex Court further observed that in order to apply these guidelines inter alia the following questions may be asked and answered :
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
50 In the matter of SWAMY SHRADDANANDA @ MURALI MANOHAR MISHRA, as reported in 2008 AIR SCW 5110, the Hon'ble Larger Bench of the Supreme Court in para 23 quoted paragraph 25 in the decision of Jagmohan Singh's case as under :
In India this onerous duty is cast upon Judges and for more than a century the Judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter of sentence is as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well recognized principles is in the final analysis the safest possible safeguards for the accused.
51 In Swamy Shraddananda vs. State of Karnataka (supra), in para-28, the Hon'ble Larger Bench of the Apex Court observed that relying upon the observations in Bachan Singh, therefore, we respectfully wish to say that even though the categories framed in Machhi Singh (supra) 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.
52 The above guidelines lead us to the conclusion that while keeping in mind the guidelines as given by the Apex Court in Machhi Singh (supra), each case has to be judged from the particular facts of each case. Both the learned Advocates have cited numbers of decisions before this Court advancing factual matrix of the case with an attempt to apply the same with the circumstances of the case at hand. However, but to look at those cases in perspective of comparison on factual matrix, is an impossible task because each case and single category of offence, there are infinite, unpredictable and unforeseeable variations. No two cases are exactly identical. There are countless permutations and combinations in each case. Factual matrix of one case varies with other. Awarding punishment is a subject of very wide judicial discretion and one case is not like other. Therefore, the number of cases cited by learned counsels for the parties to compare factual matrix of this case with the present one would be a futile exercise.
53 The alternative and only alternative to opt our judicial discretion therefore is the principles laid down for awarding death penalty in above mentioned noted cases keeping in mind the legislative intent while deciding death penalty or life imprisonment within the meaning of Section 354(3) of the Code of Criminal Procedure, we still resort to the decision of the Apex Court in the matter of EDIGA ANAMMA vs. STATE OF ANDHRA PRADESH, as reported in AIR 1974 SC 799, wherein the Apex Court observed in para 26 as under :
26.
Let us crystallise the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302 read with Section 149, or again the accused has acted suddenly under another's instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life.
Thus, a balance has to be struck between the aggravating and mitigating circumstances as a whole. While doing so, a balance sheet has to be drawn of aggravating and mitigating circumstances of the case. What is required to be considered is whether the offender is menace to the society to the extent of absolute elimination of the accused is the only and the only remedy or the purpose of community and justice would be served if the offender is put out of circulation for considerable period which would give him a chance for reformation and this exercise is to be undertaken with the gravity of offence.
54 When we carefully scrutinize the circumstances of the present case and drawing balance sheet, we come to the conclusion that the crime committed by the accused is very grave, gruesome, diabolic and cruel but circumstances of the case would not warrant a death penalty for the accused. The close scrutiny of the evidence discloses that the family was passing through financial scarcity and wife Geetaben was required to earn by tuition. It appears that, except that, there was no serious quarrel or dispute in the family especially in the relationship of husband and wife towards children. Unfortunately, in the judgment of the Trial Court, we do not find proper explanations recorded of the accused when he was given an opportunity under Section 235(2) of the Code of Criminal Procedure. Therefore, when the circumstances of the crime are on record, the complete picture of circumstances of criminal was not on the record. Upon request of learned Advocate for the accused, we have called the accused and heard him in respect of sentence. Though without admitting the incident, he expressed extreme anxiety and worry about his daughter. He stated that he was passing through the bad phase of life so far as the financial aspect was concerned. That was so because he was a patient of incurable disease of epilepsy. Though in the deposition of Ishwa, she denied that the accused had any such disease but this is precautionary approach of a child witness. Learned APP has placed on record a certificate bearing Outward No. 397/2008 dated 13.10.2008 of Dr. R.R. Rai, Medical Officer, Jail Dispensary, Central Jail, Vadodara, It is mentioned in the said certificate as under :
He is known case of epilepsy from childhood. He was admitted to SSG Hospital, Vadodara, from 07.01.2008 to 10.01.2008 for the treatment and investigations regarding GTC Convulsion. ECG, X-Ray Chest, Blood Sugar, Serum Urea and Liver Function Test were done at SSG Hospital, Vadodara, during the admission and discharged on 10.01.2008 with the treatment and follow up advice.
Second time, he was sent to SSG Hospital, Vadodara on 29.07.2008 for the treatment for hypertension (High Blood Pressure) and convulsion and conservative treatment of hypertension and convulsion was given.
The certificate of Jail Doctor denotes that there is no mental disorder to the accused. The accused further stated before us that on account of costly treatment, he tried to borrow money from others and the persons named in the suicidal note, but in futility. He submitted that death sentence to him would mean punishment to his daughter who is still to get married in the future. On inquiring further, he submitted that his brother visits him in jail and before his brother visits him, his brother informs Ishwa also and his daughter Ishwa inquired about him.
55 Thus from the evidence it clearly transpires that the accused was financially crippled and was passing through a bad phase of life. This action, on close look at the evidence on record, we found that Ishwa is matured at the time of incident. Ishwa deposed that the incident took place at about 12.00 to 12.30, but from the appreciation of evidence and the circumstances, we found that Ishwa might have erred in respect of time as to when the accused made the extra judicial confession to witness Jalambhai Solanki and as to whether he was in injured condition. It is established in her cross-examination that she stated before the police that before the accused called Jalambhai, he (accused) inflicted injuries upon his person. Jalambhai also stated that he could not say whether accused was in injured condition, but blood was on his body. At the same time, it must be noted that there may be error on the part of witness Ishwa, to say that, after inflicting injuries to Geeta and Pujan and herself, accused watched TV for two hours and then inflicted injuries upon himself. This is not probable because had it been so, Ishwa could not have been saved. Injuries on Ishwa were bleeding as well as the injuries on accused were also bleeding and, therefore, the incident must have occurred before 4.30 preceding immediately. Meaning thereby that accused inflicted injuries on Geetaben, then Pujan and then Ishwa and as sequel immediately got him injured and put a suicidal note. If we follow the probable sequence of the incident, it appears that the intention of the accused was no to kill his three kins but his intention was to bring the end of lives of the whole family because of deliverance from day to-day strain of life. Accused and his family was suffering, as stated above, this is clearly reflected in suicidal note placed at Exhibit-53. The other motive of the crime is not disclosed. True that motive is not relevant while assessing the guilt of the accused, but is relevant when the punishment is measured. In these circumstances, the crime committed cannot be said to be preplanned or premeditated. True that manner in which the crime is committed by knife blows is brutal, cruel and gruesome, but at the time, it clearly appears from the evidence that the crime was committed on account of certain mental state, which would be the mitigating circumstances to be taken note of. Perhaps, stress is the cause of most crime, that is the say of Stressologist. Tension springs from suppression. Distortion is bred by broken homes, parental neglect, bad company, experimental crime, etc. What is established is this that the crime is committed under mental duress upon the accused and in the confused state of mind. It is well known that killer commits the offence in mental aberration, majority of them are perfectly ordinary people without any criminal record. Most of the killings are purely personal and emotional reasons like anger, jealousy and quarrels. Many of the killers feel terribly abashed after committing the act and few of them commit suicide later. In this extreme and relatively rare cases even for the professional criminals the cause of deterrence is served as much by long imprisonment, as by death sentence. In operating the sentencing system, law has to adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation of sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter the area of consideration. Therefore, the murder is committed of wife and own son of three years by the accused brutally by knife blows, but by inflicting injuries to himself which could have been fatal, lead us to believe that it was an act of the accused by way of deliverance from day-to-day strain of life of the whole family and, therefore, this is not the rarest of rare case wherein merely looking at the nature of crime, death penalty can be awarded. We are required to prepare ourselves for the answer to the question that whether total elimination of the accused is absolutely warranted or that deterrence purpose would be served if the accused is put out of circulation for considerable period. Undoubtedly, when principles and guidelines given in Jagmohan's case; Bachan Singh's case and lastly Machhi Singh's case (supra) are taken into consideration, we feel that there are no special exceptionable reasons to eliminate the accused totally from the society and still deterrence can be served through long time punishment.
56 Thus, we come to the conclusion that death penalty awarded by the Trial Court to the accused is substituted by the sentence of life imprisonment and the Confirmation Case is thus disposed of by not confirming the death sentence to the accused.
57 This does not mean that the crime committed by the accused was not very grave and the manner in which the crime committed is cruel, diabolical and gruesome. We would like to quote here the observations of the Apex Court in the matter of DHANONJOY CHATTERJEE @ DHANA vs STATE OF W.B., as reported in (1994) 2 SCC 220, in para 14 and 15, the Apex Court observed as under :
14 In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today, there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.
15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The 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.
58 This leads us to a more important question therefore about the punishment commensurating to the appellant's crime. The sentence of imprisonment for a term of 14 years that goes under euphemism of life imprisonment is equally, if not more, unacceptable. If we restricting the meaning of life imprisonment for 14 years only, we find that the imprisonment of 14 years is disproportionate in view of the crime committed by the accused particularly with reference to the manner in which wife and child of three years are killed when even no provocation was given by them. In the decision of Swamy Shraddananda (supra), the Hon'ble Larger Bench of the Apex Court has observed in para 38 as under :
38. But this leads to a more important question about the punishment commensurate to the appellant's crime. The sentence of imprisonment for a term of 14 years, that goes under the euphemism of life imprisonment is equally, if not more, unacceptable. As a matter of fact, Mr. Hegde informed us that the appellant was taken in custody on 28th of March, 1994 and submitted that by virtue of the provisions relating to remission, the sentence of life imprisonment, without any qualification or further direction would, in all likelihood, lead to his release from jail in the first quarter of 2009 since he has already completed more than 14 years of incarceration. This eventuality is simply not acceptable to this Court. What then is the answer? The answer lies in breaking this standardization that, in practice, renders the sentence of life imprisonment equal to imprisonment for a period of no more than 14 years; in making it clear that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court. This Court, therefore, must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but also by the High Courts, being the superior Courts in their respective States. A suggestion to this effect was made by this Court nearly thirty years ago in Dalbir Singh and others vs. State of Punjab, (1979) 3 SCC 745. In paragraph 14 of the judgment of this Court held and observed as follows :
14.
The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the men's life but in practice amounts to incarceration for a period between 10 and 14 years may at the option of the convincing court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder. (Emphasis added] We think that it is time that the course suggested in Dalbir Singh should receive a formal recognition by the Court.
59 The Hon'ble Larger Bench of the Apex Court discussed various provisions of the Indian Penal Code wherein under Section 53 to read with Section 45 of the Indian Penal Code, an imprisonment for life means, an imprisonment for the rest of life of the prisoner. The Hon'ble Larger Bench of the Apex Court further discussing the Rules of Karnataka Prison Manual and Rules of Bihar Jail Manual, came to the conclusion that remission under Section 433-A of the Code of Criminal Procedure granted by the State Government to life convicts by deemed conversion of life imprisonment into fixed term of 20 years. The Hon'ble Larger Bench also observed that the deemed conversion of life imprisonment into one for fixed term by executive orders issued by the State Governments apparently flies in the face of long line of decisions of the Supreme Court and there was no provision of law which was brought to the notice of the Hon'ble Larger Bench to sanction such a course. The Hon'ble Larger Bench observed that from the Prisons Act and Rules, remissions are granted to life convict considering that the period of life imprisonment is definite period upto 20 years while apparently the imprisonment for life for a period is by nature indeterminate and such provisions made by the State Governments for remission in respect of life convicts would not be applicable to them, it may be applicable in cases of fixed term of imprisonment. The Hon'ble Larger Bench made it clear that the powers of the State Government under Constitution of India to remit the sentence of the convicts, were not affected by the judgment of the Hon'ble Larger Bench. Undoubtedly, in the present case also, Section 433-A of the Code of the Criminal Procedure would be applicable. The learned APP Mr. Dabhi has placed on recorded a note by which the remissions are granted by the State Government to life convicts. Almost same procedure has been followed in the State of Gujarat as has been followed in the State of Bihar and the State of Karnataka as discussed by the Hon'ble Larger Bench of the Supreme Court in Swamy Shraddananda (supra). In both the cases, either under Section 432 or 433-A same procedure is followed that the Jail Authority places a case of convict to Advisory Board and then Advisory Board recommends the Government for the remission. This has not been approved by the Hon'ble Larger Bench of the Supreme Court in Swamy Shraddananda vs. State of Karnataka (supra). In support, the Hon'ble Larger Bench of the Apex Court noted the following seven decisions :
i) Subhash Chander vs. Krishan Lal & Others, (2001) 4 SCC 458;
ii) Shri Bhagwanvs. State of Rajasthan, (2001) 6SCC 296;
iii) Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra, (2002) 2 SCC 35;
iv) Ram Anup Singh & Others vs. State of Bihar, (2002) 6 SCC 686;
v) Mohd.
Munna vs. Union of India, (2005) 7 SCC 417;
vi) Jayawant Dattatraya Suryarao vs. State of Maharashtra, (2001) 10 SCC 109; and
vii) Nazir Khan & others vs. State of Delhi, (2003) 8 SCC 461.
60 Thus, the Hon'ble Larger Bench of the Supreme Court came to the conclusion that there is no provision of law where under a sentence of life imprisonment without any formal remission by appropriate government can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Criminal Procedure Code or in the Prisons Act. In paras 65 and 66, the Hon'ble Larger Bench of the Apex Court observed as under :
65. Earlier in this judgment it was noted that the decision in Shri Bhagwan (supra) there is a useful discussion on the legality of remission in the case of life convicts. The judgment in Shri Bhagwan, in paragraph 22, refers to and quotes from the earlier decision in State of M.P. vs. Ratan Singh (supra) which in turn quotes a passage from the Constitution Bench decision in Gopal Vinayak Godse (supra). It will be profitable to reproduce here the extract from Ratan Singh:
4.
As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 SCR 440, where the Court, following a decision of the Privy Counsel in Pandit Kishori Lal vs. King Emperor, AIR 1954 PC 64 observed as follows :
Under that section a person transported for life or any other terms before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.
If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.
* * * * A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life .
The Court further observed thus :
But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make Rules, inter alia, for rewards for good conduct. Therefore, the Rules made under the Act should be construed within the scope of the ambit of the Act ....Under the said Rules the order of an appropriate Government under Section401, Criminal Procedure Code, are a pre-requisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.
The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.
It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the Rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period of the prisoner's death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life.
Further, in paragraph 23, the judgment in Shri Bhagwan observed as follows :
In Maru Ram vs. Union of India, (1981) 1 SCC 107, a Constitutional Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433-A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar (Life Convict) vs. State of W.B. & Anr., (2000) 7 SCC 626, after referring to the decision of the case of Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 SCR 440, the court reiterated that sentence for imprisonment for life ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term if served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose.
The legal position as enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Mau Ram, Ratan Singh and Shri Bhagwan and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.
66. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all.
61 In view of above, as discussed earlier, though there is a good and strong base for this Court to substitute life imprisonment for death sentence. We at the same time strongly feel that if life imprisonment subject to remission works out to 14 years, then the sentence, in the present case, would be grossly disproportionate and inadequate. We therefore take just and reasonable course to expand the option as observed by the Hon'ble Larger Bench of the Supreme Court in para-66 of Swami Shradanand vs. State of Karnataka (supra). We would now conclude the matter as under and at the same time we place on record that learned Advocate Mr. N.K. Majmudar appointed for accused and learned APP Mr. L.B. Dhabhi have provided immense and valuable assistance to this court.
63 For the foregoing reasons, we pass the following final order :
(i) Criminal Appeal No. 37 of 2008 filed by the accused stands dismissed and the conviction under Sections 302, 307 and 309 is confirmed and sentence awarded for the offence punishable under Section 307 of the Indian Penal Code is confirmed. While in Confirmation Case No.1 of 2008, death penalty awarded to the accused by the Trail Court is modified and substituted by imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code and life imprisonment would mean 18 years of imprisonment. We confirm the conclusion of the Trial Court for not awarding separate sentence to the accused for the offence punishable under Section 309 of the Indian Penal Code. We direct that the sentence of imprisonment awarded for the offence punishable under Section 302 as well as under Section 307 of the Indian Penal Code shall run concurrently. We also direct that the period of imprisonment undergone by accused during trial be given to him in set off.
(ii) We also direct that the State Government shall not release the accused Hiteshkumar Madhusudan Adhvaryu from jail before 18 years by way of granting remissions under Section 433-A of the Code of Criminal Procedure. The rest of the orders passed in respect of muddamal by the Trial Court is not interfered with. Thus, we reject the Reference made by the Trial Court under Section 366 of the Criminal Procedure Code to confirm the death sentence and consequently Confirmation Case No. 1 of 2008 stands dismissed.
(J. R. VORA, J.) (SHARAD D DAVE, J.) pnnair Top