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Madhya Pradesh High Court

Yogendra @ Jogendra Singh vs The State Of Madhya Pradesh on 12 December, 2014

Author: S.K.Gangele

Bench: Rohit Arya, S.K.Gangele

                 HIGH COURT OF MADHYA PRADESH,
                       BENCH AT GWALIOR

     DB      :       HON'BLE MR JUSTICE S.K.GANGELE
                     HON'BLE MR JUSTICE ROHIT ARYA

            (Criminal Reference Capital No.01/2014)

                      State of Madhya Pradesh
                                -Vs-
                    Yogendra alias Jogendra Singh

                                          AND

                    (Criminal Appeal No.883/2014)

                    Yogendra alias Jogendra Singh
                                 Vs.
                      State of Madhya Pradesh

------------------------------------------------------------------------------------------------
Shri Prabal Solanki, Public Prosecutor for the State.
Shri Atul Gupta, Advocate for the accused.
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                             JUDGMENT

(Delivered on 12th day of December 2014) Per S.K.Gangele, J.

The learned Trial Judge [Third Additional Sessions Judge, Ambah, District Morena (MP)] has forwarded this Criminal Reference to this Court in terms of the provisions of Section 366 of Code of Criminal Procedure for confirmation of the capital punishment awarded to the accused Yogendra alias Jogendra Singh vide his judgment of conviction and sentence dated 24th July, 2014, delivered in Sessions Trial No.388/2013, convicting the accused for the offences punishable under sections 302, 326(k)(Three counts), and 460 of IPC and awarding him capital punishment of death sentence, life sentence on three counts and fine of Rs.25,000/- each, and ten years' RI and fine of Rs.5000/- with default stipulations, respectively.

2. The accused has also filed Criminal Appeal No.883/2014 assailing impugned judgment of conviction and sentence.

3. Both these cases are clubbed, heard together and are decided by this common judgment.

4. The accused is charged for commission of offence of death of Shrimati Ruby (deceased) by causing acid burn injuries to her as also charged for causing acid burn injuries to other witnesses namely Chandrakala (PW 3), Janu alias Janvi Prasad (PW 4) and Raju (PW 7) in the night intervening 21st and 22nd July, 2013.

5. The prosecution case, as unfolded, is that the deceased was married to one Sanju Gupta and had two issues from the wedlock. Accused had an evil eye on her. Since husband of the deceased used to harass the deceased on account of suspicion, she came to live with her maternal uncle. Accused used to pressurise Dataram (PW 8) father of the deceased for summoning the deceased at Porsa and threatened him with dire consequences in the event of non fulfillment of his demand. Two days before the incident, deceased alongwith Janu Rawat (PW

4), and Raju (PW 7) came to her father's house. In the fateful night, the deceased and the family members had their meal and went to their respective rooms. Since it was summer, the doors of the rooms were kept open. Bulbs were lighting in the room and the court yard. Around 1.30 mid night, the accused sneaked inside the room of the deceased and asked her that since she does not want to live with him, he will not leave her for any other person. Hearing this, Dataram (PW 8) father of the deceased woke up. He saw the accused throwing acid on the deceased. Deceased started shouting, whereupon other family members assembled at the place and tried to save the deceased. The accused also threw acid on them and fled away from the spot. Deceased received acid burn injuries all over her body while other witnesses also sustained burn injuries by acid.

6. Dataram (PW 8) took the deceased Ruby (when she was alive), and injured Chandrakala, Janu and Raju in a rickshaw to the Police Station, Porsa where a report of the incident (Ex.P/8) was lodged. On the basis of the report, a criminal case at Crime No.242/2013 for commission of the offence under sections 450, 307 and 324 IPC had been registered against the accused.

7. Injured persons were sent to Community Health Centre, Porsa at 2.40 in the night, where they had been medically examined by Dr.S.N. Mewafaros. Since the deceased sustained about 90% acid burn injuries he referred her alongwith other injured persons to the District Hospital, Morena for further treatment. Mansingh Pawak (PW 10) recorded the dying declarations of deceased Ruby and injured witness Janu at the instance of In charge police station, Porsa at Community Health Centre Porsa and sent it to the Court of Judicial Magistrate, Ambah.

8. Deceased Ruby succumbed to the acid burn injuries at District Hospital, Morena.

9. After the death of the deceased, the Police registered the case under section 302 IPC. The body of the deceased was sent for postmortem. A team of doctors comprising Dr.Anand Goyal (PW 11),Dr.Anupama Garg and Dr.Yogesh Tiwari conducted autopsy of the body of the deceased. The Investigating Officer Hitendrasingh Rathore (PW 12) recorded statements of the witnesses, prepared the spot map and seized articles from the spot and sent them for forensic examination. The accused was arrested from Machkund, Dhaulpur on 11/9/2013 and on his memorandum, a bear bottle alleged to have been used for carrying the acid was recovered at his pointing out vide Ex.P/21. After completing the investigation and necessary formalities, challan was filed in the Court of Judicial Magistrate, who in his turn, committed the case to the Court of Session for trial.

10. The learned Trial Court framed charges against the accused. The accused abjured his guilt and pleaded complete innocence and prayed for trial.

11. Prosecution in support of its case has examined as many as 12 witnesses and proved documents Ex.P/1 to P/28. The accused did not choose to examine any witness in his defence. He, however, pleaded in his statement under section 313 4 CR.RF.C.No. 01/14 CR.A.No. 883/14 Cr.P.C. before the Trial Court that in order to save the real culprit, he has falsely been roped in.

12. Trial Court after recording the evidence and appreciating the same, came to the conclusion that the charges levied against the accused are proved beyond reasonable doubt, hence, convicted him as indicated herein above. The Trial Court, however, finding the case in hand to be the rarest of the rare one, awarded capital punishment to the accused, for confirmation of which the case is referred to this Court. Simultaneously, the accused has also assailed his conviction and sentence impugned in the appeal filed by him being Criminal Appeal No.883/2014.

13. Learned counsel appearing on behalf of the accused has contended that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. The witnesses of the prosecution have not deposed the true story, and present is not a case falling under the category "rarest of rare"

warranting death sentence.

14. Per contra, learned Public Prosecutor appearing on behalf of the State supported the impugned judgment of conviction and sentence. He has submitted that there is clinching evidence on record against the accused to prove his guilt. FIR in the case was lodged immediately after the incident, hence, there is no question of false implication. The deceased also gave her dying declaration which was recorded by the Executive Magistrate. All the injured eye witnesses have deposed that it was the accused who threw acid on the body of the deceased and on them as well. Earlier the accused was convicted vide judgment dated 23rd August, 1999 delivered in Sessions Trial No.325/1994 by Sessions Judge Morena for commission of the offence under section 302 IPC and awarded life imprisonment. Besides the deceased who was grievously injured by acid burn, three other witnesses also sustained acid burn injuries at the hands of the accused. Hence, looking to the gravity of the offence the Trial 5 CR.RF.C.No. 01/14 CR.A.No. 883/14 Court has not committed any error in awarding death sentence to the accused and no interference is warrants in the impugned judgment of conviction and sentence. He further submitted that the appeal filed by the accused is bereft of any substance, hence, liable to be dismissed and the Death Reference is liable to be answered in favour of the Prosecution.

15. We have heard Shri Prabal Solnaki, learned Public Prosecutor for the State and Shri Atul Gupta, learned counsel for the accused and minutely examined the evidence on record.

16. Smt Chandrakala (PW 3) is the grandmother of the deceased. She is an eye witness and injured in the incident as a result of acid attack. She sustained acid burn injuries in the incident. She deposed in her evidence that she was sleeping alongwith the deceased and other family members. In the night, the accused entered the house and threw acid on the deceased. When she tried to save the deceased the accused also threw acid on her and other witnesses Raju and Janu. She received acid burn injuries on her back and legs. The deceased received acid burn injuries on her whole body. She was taken to hospital at Porsa from where they were referred to District Hospital, Morena. Deceased died at District Hospital, Morena. It is further deposed by this witness that an electric bulb was on and there was enough light in the room and she identified the accused in the light of the bulb.

17. Janu alias Janki Prasad (PW 4) is another eye witness to the incident. He is the brother of the deceased and injured in the same incident. He deposed that in the night of 20/7/2013 he was sleeping alongwith other persons in the room. He woke up on hearing the cries of the deceased and saw that the accused had thrown acid on her. He also received acid burn injuries on face, chest, right shoulder and hand. He went to Police Station, Porsa alongwith other persons from where they were sent to Community Health Centre, Porsa for medical treatment and then to District Hospital at Morena. The Trial Court noticed that 6 CR.RF.C.No. 01/14 CR.A.No. 883/14 there were burn injuries on the face, hand and chest of this witness and due to the burn injuries, face of the witness was disfigured. This witness also deposed that there was enough light to identify the accused.

18. Deepu Rawat (PW 6) deposed that he is the brother of the deceased and the deceased had told him on telephone that the accused used to tease her and threatened to kill her if she could not withstand his demand. After hearing about the incident he came to Porsa.

19. Raju (PW 7) is another eye witness to the incident and injured in the incident. However, he did not support the case of prosecution and turned hostile.

20. Dataram (PW 8) is the father of the deceased. He is also the author of the FIR Ex.P/8 which was lodged on the same day around 2.00 am. In the FIR, name of the accused was mentioned. He deposed that it was in the month of July, 2013. At around 1.30 in the night on the date of incident, he was sleeping in one room, while the deceased, Chandrakala, Janu and Raju were sleeping in another room. At that time, he heard the cries of the deceased that somebody had thrown acid on her. He immediately came out of the room and saw the accused running away from the place. Thereafter he went inside the room where the incident had taken place and saw the injuries. He took all the injured persons including the deceased to the Police Station where report of the incident was lodged by him. Thereafter they were sent to Community Health Centre for medical treatment from where they were went to District Hospital, Morena. Deceased Ruby succumbed to the injuries at District Hospital, Morena.

21. Dr.S.N. Mewafaros (PW 9) deposed that he was posted as Medical Officer at Community Health Centre, Porsa at the relevant time. He deposed that he had medically examined deceased Ruby. There were extensive burn injuries all over her body caused by acid. The burn injuries were grievous in nature 7 CR.RF.C.No. 01/14 CR.A.No. 883/14 upto 90%. He, therefore, referred the deceased for further treatment to District Hospital, Morena. He further deposed that he had also medically examined injured Raju S/o Ramprakash Rawat, Chandrakala, wife of Baburam Rawat and Janu son of Devendra Singh Rawat. Injured Raju received first degree burn injury on the right shoulder, caused by acid. The injury was 15% burn injury and was simple in nature. Injured Chandrakala also received 15 % burn injuries over back and the nature of the injuries was simple. Similarly, injured Janu also received burn injuries over neck, right shoulder, and other parts of the body. The injuries were upto 30 %. He referred all the injured persons to the District Hospital, Morena for further treatment. The Executive Magistrate came to the Community Health Centre for recording the dying declaration of the deceased as well as injured Janu and this witness certified before and after recording of the dying declarations that the injured were in conscious state of mind to give dying declarations. His endorsements to this effect on the dying declarations Ex.P/14 and Ex.P/15 are at the portion "A" to "A" and "B" to "B".

22. Mansingh Pawak (PW 10) deposed that he was posted as Tahsildar/Executive Magistrate at Porsa at that time. He deposed that he was called by the In charge Police Station, Porsa for recording the dying declaration of the deceased and injured Janu. He recorded the dying declarations which are Ex.P/14 and Ex.P/15. The deceased told him her name as Ruby. She also stated that the accused Jogendra Singh had burnt her by pouring acid on her. He also used to abuse her on phone. There was no other person except the accused who committed the crime. At the time of recording of the dying declaration, the deceased was in conscious state of mind and she also put her thumb impression on the dying declaration. After recording the dying declaration of the deceased, he also recorded the dying declaration of Janu which is Ex.P/15 and the dying declarations were forwarded to the Judicial Magistrate in sealed covers.

However, since witness Janu recovered from the injuries, his dying declaration (Ex.P/15) could be treated as his statement under section 161 Cr.P.C.

23. Ex.P/14 is the dying declaration of the deceased. It is in question and answer form. The deceased specifically deposed that the accused Jogendra Singh threw acid on her and he also used to abuse her on telephone. The deceased also put her thumb impression on her dying declaration. The doctor also certified that the deceased was in a fit condition to give dying declaration before and after recording of the dying declaration.

24. Dr.Anand Goyal (PW 11) performed postmortem of the dead body of the deceased alongwith Dr.Anupama Garg and Dr.Yogesh Tiwari. His postmortem report is Ex.P/17. He found varying degree of superficial and deep burn over the body of the deceased; face, mandible, scalps, neck, deep burn on clavicle, post side of neck, chest, right and left shoulders, right thigh and leg, left thigh, and on genital organ. Peeling of skin, Eotima, Redness and fat tissues seen. As per his opinion, cause of death was shock due to burn (Acid).

25. Hitendra Singh Rathore (PW 12) is the investigating officer. He gave out the details of investigation. He deposed that he had recorded the FIR (Ex.P/8) at the police station. A bottle was seized on the memorandum of the accused used for carrying the acid. He had sent the finger prints of the accused found on the bottle along with accused's specimen finger prints to the Finger Print Expert. Report of the Finger Print Expert is Ex.P/28. As per the Finger Print Expert, the finger prints found on the bottle and the finger prints of the accused do match and are of one and the same person.

26. In view of the above evidence led by the prosecution, documentary as well as oral, the vivid picture that emerges is that the FIR of the incident was lodged promptly without any delay. Injured witness Chandrakala, Raju and Janu all have stated in one voice that the accused had thrown acid on the 9 CR.RF.C.No. 01/14 CR.A.No. 883/14 deceased as well as on their bodies and there is nothing on record to question their testimony. Their presence on the spot also could not be doubted since all of them sustained acid burn injuries in the same incident. The Trial Court itself noted dis- figuration of face of one of the witnesses at the time of recording his deposition. There was enough light at the place of incident as deposed by the eye witnesses to identify the accused. The death of the deceased is due to acid burn injuries as opined by the doctor in the postmortem report. Dying declaration of the deceased was recorded immediately after the incident at 3.10 AM by the Executive Magistrate. In the dying declaration the deceased had specifically named the accused to have thrown acid on her. The dying declaration (Ex.P/14) of the deceased could not be doubted with and it has evidentiary value to be fully relied upon, in view of the judgment of Hon'ble the Supreme Court in Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur reported in (2007) 15 SCC 465. A bear bottle used for carrying the acid was recovered from the possession of the accused on his memorandum and on the bear bottle finger prints of the deceased were also found which did match with the specimen finger prints of the accused by the Finger Print Expert. Statements of the injured witnesses and other witnesses were recorded promptly nailing the accused to the commission of the offence.

27. From the above evidence, it is conclusively proved that it is the accused Yogendra alias Jogendra Singh, who committed this heinous crime. In such circumstances, in our opinion, the Trial Court has rightly held that the prosecution has proved its case against the accused beyond reasonable doubt. In our opinion, the findings recorded by the Trial Court are just and proper and the accused has rightly been convicted by the Trial Court for the offences for which he was charged.

28. Now, the next question is whether the death penalty imposed on the accused is proper and whether the act of the 10 CR.RF.C.No. 01/14 CR.A.No. 883/14 accused falls within the four corners of the "rarest of rare case", as held by the Supreme Court in a catena of cases, so as to warrant death penalty.

29. Constitution Bench of Supreme Court in Bachan Singh Vs. State of Punjab reported in (1980) 2 SCC 684 has opined as under in regard to mitigating circumstances :-

"206. Dr.Chitale has suggested these mitigating factors :

'Mitigating circumstances.- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances :

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

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated.

The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

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

30. Supreme Court in Vashram Narshibhai Rajpara v. State of Gujarat reported in (2002) 9 SCC 168 has further explained the approach of mitigating circumstances after considering the dictum of the Constitution Bench and held as under :-

"9. ...As to what category a particular case would fall depends, invariably on varying facts of each case and no absolute rule for invariable application 11 CR.RF.C.No. 01/14 CR.A.No. 883/14 or yardstick as a ready reckoner can be formulated. In Panchhi v. State of U.P., it has been observed that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the 'rarest of rate cases', as indicated in Bachan Singh v. State of Punjab and that every murder being per se brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. The intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation were held to be also a relevant factor."

31. In the following cases the Supreme Court affirmed the death penalty imposed by the trial court and High Court :

"94. In Ram Singh v. Sonia (2007) 3 SCC 1 the accused couple had, in a most diabolic manner, ended the lives of their family members, which included the stepbrother of the wife, his children and even her own father, mother and sister, all with the motive of inheriting the family property. This Court noting the cold-blooded and pre-meditated approach in murdering the family while they were all sleeping considered it as a fit case for the imposition of death penalty on the couple.

95. In Prajeet Kumar Singh v. State of Bihar (2008) 4 SCC 434 the accused had murdered the children of the family where he had been staying as a tenant for the past four years, while they were sleeping. He thereafter proceeded to attack the adult members of the family who on hearing the screams of their children had come to their rescue. The Court noting the brutality of manner of the attack considered it a fit case for the imposition of death sentence.

96. In Mohan Anna Chavan (2008) 7 SCC 561 the Court upheld the death sentence imposed on a serial rapist. The accused had already been convicted twice for raping a minor girl, but on the first occasion he was awarded a sentence only of two years and on the second, sentence of ten years' rigorous imprisonment only. When the accused was convicted of raping and murdering two minor girls again, the Court refused to interfere with the death sentence awarded by the lower courts.

97. In Bantu v. State of U.P. (2008) 11 SCC 113, the accused had, after raping a six-year-old girl, tried to conceal his crime by inserting a stick in her vagina which ultimately resulted in causing her death. The Court noted that the depraved acts of the accused only deserved a death sentence.

98. in Shivaji v.State of Maharashtra (2008) 5 SCC 269 the accused had raped and murdered a nine- year-old girl. This Court therein rejecting the argument that the conviction having been based on circumstantial evidence, death penalty should not be awarded, affirmed the death penalty awarded by the lower court."

99. In State of U.P. v. Sattan (2009) 4 SCC 736 six members of a family were murdered by the accused leaving only three survivors over some personal enmity. The trial court awarded them death sentence. The High Court commuted the sentence to one of life imprisonment. The Supreme Court in appeal noting the brutality of murder held that the accused deserved only a death penalty."

32. Supreme Court in Deepak Rai Vs. State of Bihar reported in (2013) 10 SCC 421 from para 62 onwards considered the earlier cases of the Supreme Court in which the death sentence is affirmed, which are as under :-

"62. In Dagdu v. State of Maharashtra, this Court has observed as follows: (SCC pp. 90-91, paras 83-84) "83. Having considered the matter in all its aspects--penal, juristic and sociological--and having given our most anxious consideration to the problem, we are of the opinion that Accused 3, 9, 10 and 11 deserve the extreme penalty of law and that there is no justification for interfering with the sentence of death imposed upon them.

84. Accused 3 put an end to four innocent lives, three small girls ten years of age and a woman in her thirties. Accused 9, 10 and 11 committed the murders of Haribai, her nine- year-old daughter and her infant child. The victims had given no cause for the atrocities perpetrated on them. They were killed as a child kills flies. And the brutality accompanying the manner of killing defies an adequate description. The luring of small girls, the gagging, the cutting of their private parts, the ruthless defiling in order to prevent identification of the victims and the mysterious motive for the murders call for but one sentence. Nothing short of the death sentence can atone for such callous and calculated transgression of law. Morbid pity can have no place in the assessment of 13 CR.RF.C.No. 01/14 CR.A.No. 883/14 murders which, in many respects, will remain unparalleled in the annals of crime.

Accordingly, we confirm the death sentence imposed on Accused 3, 9, 10 and 11."

63. In Sunder Singh v. State of Uttaranchal, the accused had gone to the place of occurrence well prepared carrying jerrycans containing petrol, sword, pistol with two bullets, which showed his premeditation and cold-blooded mind. In the incident five persons lost their lives while the sole surviving lady survived with 70% burn injuries. The murder was committed in a cruel, grotesque and diabolical manner, and closing of the door of the house was the most foul act by which the accused actually intended to burn all the persons inside the room and precisely that happened. Hence the Court did not find any sentence less harsh than the death sentence.

64. In M.A. Antony v. State of Kerala, all six members of a family were murdered at their residence at night. The motive was money, and the absence of the accused from his own residence during the corresponding period and recovery of clothes under Section 27 of the Evidence Act, 1872, fingerprints on the doorsteps of the house matching with those of the accused, and recovery of scalp hair of the accused from place of occurrence were damning circumstantial evidence. Having regard to the chain of circumstances and the diabolical manner of commission of crime the death sentence was upheld.

65. In Jagdish v. State of M.P., the assailant murdered his wife and five children (aged 1 to 16 years) in his own house. The murders were particularly horrifying as the assailant was in a dominant position and a position of trust as the head of the family. The assailant betraying the trust and abusing his position murdered his wife and minor children (youngest being the only son just 1 year old). This Court held that the balance sheet of the aggravating and mitigating circumstances was heavily weighed against the assailant making it the rarest of rare cases. Consequently, the award of death sentence was just.

66. In Prajeet Kumar Singh v. State of Bihar, the accused was a paying guest for a continuous period of four years in lieu of a sum of Rs 500 for food and meals. He brutally executed three innocent defenceless children aged 8, 15 and 16, attempted to murder the father (informant) and mother who survived the attack with multiple injuries. There was 14 CR.RF.C.No. 01/14 CR.A.No. 883/14 no provocation or reason for committing this ghastly act at a time when the children were sleeping. There were several incised wounds (muscle-deep or bone-deep) caused to the deceased. Considering the brutality, diabolic, inhuman nature and enormity of the crime (multiple murders and attacks), this Court held that the mindset of the accused could not be said to be amenable to any reformation. Therefore, it came under the rarest of the rare category where not awarding a death sentence would have resulted in failure of justice.

67. In Ram Singh v. Sonia, the wife in collusion with her husband murdered not only her stepbrother and his whole family including three tiny tots of 45 days, 2½ years and 4 years, but also her own father, mother and sister so as to deprive her father from giving property to her stepbrother and his family. The murders were committed in a cruel, preplanned and diabolic manner while the victims were sleeping, without any provocation from the victim's side. It was held that the accused persons did not possess any basic humanity and completely lacked the psyche or mindset amenable to any reformation. It was a revolting and dastardly act, and hence the case fell within the category of the rarest of rare cases and thus death sentence was justified.

68. In Holiram Bordoloi v. State of Assam, the accused persons were armed with lathis, and various other weapons. They came to the house of the victim and started pelting stones on the bamboo wall of the said house. Thereafter, they closed the house from the outside and set the house on fire. When the son, daughter and the wife of the victim somehow managed to come out of the house, the accused persons caught hold of them and threw them into the fire again. Thereafter the elder brother who was staying in another house at some distance from the house of the victim was caught and dragged to the courtyard of the accused where the accused cut him into pieces. It was held that there was absence of any strong motive and the victims did not provoke or contribute to the incident. The accused was the leader of the gang, and the offence was committed in the most barbaric manner to deter others from challenging the supremacy of the accused in the village. It was held that no mitigating circumstances to refrain from imposing death penalty were found.

69. In Karan Singh v. State of U.P, the two appellants chased the deceased persons and butchered them with axes and other weapons in a 15 CR.RF.C.No. 01/14 CR.A.No. 883/14 very dastardly manner. After killing three adults, the appellants entered their house and killed two children who in no way were involved with the alleged property dispute with the appellants. It was held that the sole intention here was to exterminate the entire family. Thus, it was the rarest of the rare case.

70. In Gurmeet Singh v. State of U.P., appellant G, along with his friend L killed thirteen members of his family including small kids for a flimsy reason (objection of family of G to the visits and stay of L at their house) while they were asleep. The award of death sentence was held proper.

71. In State of Rajasthan v. Kheraj Ram, the accused deliberately planned and executed his two innocent children, wife and brother-in-law when they were sleeping at night. There was no remorse for such a gruesome act which was indicated by the calmness with which he was smoking "chilam" after the commission of the act. As it was preplanned and after the entire chain of events and circumstances were comprehended, the inevitable conclusion, was that the accused acted in the most cruel and inhuman manner and the murder was committed in an extremely brutal, grotesque, diabolical, revolting and dastardly manner.

72. In Om Prakash v. State of Uttaranchal, the accused, a domestic servant killed three innocent members and attempted to kill the fourth member of the family of his employer in order to take revenge for the decision to dispense with his service and to commit robbery. The death sentence was upheld.

73. In Gurdev Singh v. State of Punjab, the appellants, having known that on the next day a marriage was to take place in the house of the complainant and there would be lots of relatives present in her house, came there on the evening when a feast was going on and started firing on the innocent persons. Thirteen persons were killed on the spot and eight others were seriously injured. The appellants thereafter went to another place and killed the father and brother of PW 15. Out of the thirteen persons, one of them was a seven-year-old child, three others had ages ranging between 15 and 17 years. The death sentence was held justified.

74. In Praveen Kumar v. State of Karnataka, the accused was accommodated by one of the victims (who was his aunt) despite her large family, and she gave him an opportunity to make an honest living as a tailor. The accused committed the preplanned, cold-blooded murders of the relatives and well-

wishers (including one young child) while they were sleeping. After the commission of the crime the accused absconded from judicial custody for nearly four years, which eliminated the possibility of any remorse or rehabilitation. Held, the extreme penalty of death was justified.

75. In Suresh Chandra v. State of U.P., the brutal murder of one of the accused's brother and his family members including minor children at night when they were fast asleep with axe and chopper by cutting their skulls and necks for a piece of land was considered to be a grotesque and diabolical act, where any other punishment than the death penalty was unjustified.

76. In Ranjeet Singh v. State of Rajasthan, the entire family was murdered when they were fast asleep and this Court observed as under: (SCC p. 637, para 13) "13. With regard to the sentence of death, there cannot be two opinions. The manner in which the entire family was eliminated indicates that the offence was deliberate and diabolical. It was predetermined and cold-blooded. It was absolutely devilish and dastardly."

77. In Ramdeo Chauhan v. State of Assam, the accused committed a preplanned, cold-blooded brutal murder of four inmates of a house including two helpless women and a child aged 2½ years during their sleep with a motive to commit theft. The accused also attacked with a spade another inmate of the house, an old woman, and a neighbour when they entered the house. The Court held that the young age (22 years) of the accused at the time of committing the crime was not a mitigating circumstance, and death penalty was a just and proper punishment.

78. In Narayan Chetanram Chaudhary v. State of Maharashtra, there was a preplanned, calculated, cold-blooded murder of five women, including one pregnant woman and two children aged 1½ years and 2½ years, all inmates of a house, in order to wipe out all evidence of robbery and theft committed by two accused in the house at a time when male members of the house were out. It was held that the young age (20-22 years) of the accused persons cannot serve as a mitigating circumstance.

79. In Surja Ram v. State of Rajasthan, the appellant murdered his brother, his two minor sons and an aged aunt by cutting their neck with a kassi while they were all sleeping. He also attempted to 17 CR.RF.C.No. 01/14 CR.A.No. 883/14 murder his brother's wife and daughter but they survived with serious injuries. The dispute between them only related to putting a barbed fence on a portion of their residential complex. The death sentence was held to be justified.

80. In Ravji v. State of Rajasthan, the accused in a cool and calculated manner wanted to kill his wife and three minor children while they were asleep. When his mother intervened he injured her with an axe with an intention to kill her. He then silently went to the neighbour's house and attempted to kill his neighbour's wife who was also asleep. When his neighbour intervened he killed him too and fled from the place of occurrence and tried to hide himself. The accused had a solemn duty to protect his family members and maintain them but he betrayed the trust reposed in him in a very cruel and calculated manner without any provocation whatsoever. Hence the death penalty had to be upheld.

81. In Sudam v. State of Maharashtra, this Court held that where an accused was found guilty of committing murder of four children and a woman with whom he was living with as husband and wife, the death penalty was justified and observed: (SCC p. 129, paras 22-23) "22. The manner in which the crime has been committed clearly shows it to be premeditated and well planned. It seems that all the four children and the woman were brought near the pond in a planned manner, strangulated to death and the dead bodies of the children thrown in the pond to conceal the crime. He not only killed Anita but crushed her head to avoid identification. Killing four children, tying the dead bodies in bundles of two each and throwing them in the pond would not have been possible, had the appellant not meticulously planned the murders. It shows that the crime has been committed in a beastly, extremely brutal, barbaric and grotesque manner. It has resulted in intense and extreme indignation of the community and shocked the collective conscience of the society.

23. We are of the opinion that the appellant is a menace to the society who cannot be reformed. Lesser punishment, in our opinion, shall be fraught with danger as it may expose the society to peril once again at the hands of the appellant. We are of the opinion that the 18 CR.RF.C.No. 01/14 CR.A.No. 883/14 case in hand falls in the category of the rarest of rare cases and the trial court did not err in awarding the death sentence and the High Court confirming the same."

82. In Atbir v. Govt. (NCT of Delhi), this Court confirmed the death sentence given to the appellant who had committed multiple murders of members of his family, who were none other than stepmother, brother and sister in order to inherit the entire property of his father. The appellant, in consultation with his mother planned to eliminate the entire family of his stepmother, and with this intention went to her house, closed the doors and mercilessly inflicted 37 knife injuries on the vital parts of the victims' bodies.

83. In Ajitsingh Harnamsingh Gujral v. State of Maharashtra, the appellant was convicted for burning his wife and three grown up children. While awarding the sentence of death this Court considered the following circumstances which weighed in favour of the capital punishment: (SCC pp. 432-33, paras 91-92) "91. In our opinion, a person like the appellant who instead of doing his duty of protecting his family kills them in such a cruel and barbaric manner cannot be reformed or rehabilitated. The balance sheet is heavily against him and accordingly we uphold the death sentence awarded to him.

92. In the present case, the accused did not act on any spur of the moment provocation. It is no doubt that a quarrel occurred between him and his wife at midnight, but the fact that he had brought a large quantity of petrol to his residential apartment shows that he had preplanned the diabolical and gruesome murder in a dastardly manner."

33. Keeping in mind the principle of law laid down by the Supreme Court, we have to consider that whether this is a fit case when the death sentence awarded by the trial court be affirmed or not.

34. The first test that whether the accused alone has committed the crime is in favour of the prosecution and against the accused. The eye witnesses and injured witnesses deposed that accused had only committed the crime. There is also a dying declaration of the deceased recorded by Mansingh Pawak, 19 CR.RF.C.No. 01/14 CR.A.No. 883/14 Executive Magistrate. The finger prints of the accused were found on the bottle which was used for the purpose of throwing the acid.

35. The next question is that whether there is possibility of reform in the accused. It is a fact that the accused earlier had committed the murder. He was convicted and awarded life sentence by the trial court. On appeal, sentence of the accused was suspended and he was on bail and during this period he again committed second murder in brutal manner by throwing the acid on the lady because the lady refused to live with the accused. In this incident other persons namely - Chandrakala, Raju and Janu alias Janki Prasad also received injuries because of acid attack. Faces of some of the persons were disfigured. Hence, it is provided that there is no possibility of reform of the accused.

36. Supreme Court in Laxmi Vs. Union of India reported in (2014) 4 SCC 431 has taken serious note of the crime of acid attack and incident of acid attack and directed all the governments to frame rules to provide compensation to the victims of acid attacks and held as under :-

"Tragic incidents of acid attacks continue to happen. One of the main reasons for this is easy availability of acid in retail across the counter. The matter has been pending before this Court for the last seven years. But, neither the Central Government nor the State Government/ Union Territories have been able to address this grave issue. This Court may consider the suggestion of the learned counsel for the petitioner to ban retail sale of acid completely on the next date if the State Governments/ Union Territories are not able to come out with some adequate scheme that restricts the sale of acid in retail. Mr. Mohan Parasaran, learned Solicitor General assures us that the Central Government will take up the matter with the State Governments/Union Territories and come out with a draft scheme acceptable to all the State Governments/Union Territories or for consideration of such scheme by this Court. We expect the Chief Secretaries of the State Governments/ Administrators of the Union Territories to take 20 CR.RF.C.No. 01/14 CR.A.No. 883/14 proactive role and assist the Court in finding a solution to the grave problem of acid attacks, particularly the retail sale of acid. List the matter for further hearing on 9-7-2013."

37. In the present case, one lady lost her life, other persons namely Chandrakala, Raju and Janu alias Janki Prasad also received acid injuries. There is disfiguration of one person Janu alias Janki Prasad. They will face the agony throughout their life.

38. In these circumstances, in our opinion, the trial court has rightly awarded death sentence to the accused and we affirm the same.

39. Supreme court in the case of Laxmi Vs. Union of India reported in (2014) 4 SCC 426 issued following directions in regard to payment of compensation to the victims of acid attack :-

"13. We are informed that pursuant to this provision, 17 States and 7 Union Territories have prepared "Victim Compensation Scheme" (for short "the Scheme"). As regards the victims of acid attacks, the compensation mentioned in the Scheme framed by these States and Union Territories is un- uniform. While the State of Bihar has provided for compensation of Rs.25,000/- in such Scheme, the State of Rajasthan has provided for Rs.2 lakhs of compensation. In our view, the compensation provided in the Scheme by most of the States/Union Territories is inadequate. It cannot be overlooked that acid attack victims need to undergo a series of plastic surgeries and other corrective treatments. Having regard to this problem, the learned Solicitor General suggested to us that the compensation by the States/Union Territories for acid attack victims must be enhanced to at least Rs.3 lakhs as the aftercare and rehabilitation cost. The suggestion of the learned Solicitor General is very fair.

14. We, accordingly, direct that the acid attack victims shall be paid compensation of at least Rs.3 lakhs by the State Government/Union Territory concerned as the aftercare and rehabilitation cost. Of this amount, a sum of Rs.1 lakh shall be paid to such victim within 15 days of occurrence of such incident (or being brought to the notice of the State Government/Union Territory) to facilitate immediate 21 CR.RF.C.No. 01/14 CR.A.No. 883/14 medical attention and expenses in this regard. The balance sum of Rs.2 lakhs shall be paid as expeditiously as may be possible and positively within two months thereafter. The Chief Secretaries of the States and the Administrators of the Union Territories shall ensure compliance with the above directions."

40. On the basis of the principle laid down by the Supreme Court in the case of Laxmi (supra), in our opinion, Janu alias Janki Prasad, whose face was disfigured, as mentioned by the trial court in the judgment, would be entitled to receive compensation of Rs.3,00,000 (Rupees Three Lakh) and other two persons namely - Chandrakala and Raju, who received acid injuries, but there was no permanent disability or disfiguration of face, would be entitled to get compensation of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) each. The aforesaid compensation as ordered by this court, shall be paid to the above mentioned persons within a period of three months from the date of receipt of copy of the judgment by the Collector Morena. CJM Morena shall inform the aforesaid persons about the judgment of this court and ensure compliance of these directions within the time stipulated.

41. Reference is answered accordingly. Cr.A.No.883/2014 filed by the accused person is hereby dismissed.

               (S.K.Gangele)                        (Rohit Arya )
                   Judge                              Judge

ppg/SP