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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.

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.

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 :

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.