The State of M.P. vs Jitendra @ Ramesh Hare Singh <BR> Jitendra @ Ramesh Hare Singh Vs State of M.P.

A.K. Shrivastava, J.

The learned First Additional Sessions Judge, East Nimar, Khandwa has referred this death reference u/s 366(1) of the Code of Criminal Procedure, 1973 (for brevity the Code), is heard along with Criminal Appeal No.485/2004 filed by Jitendra against his conviction and order of sentence of death u/s 302 (three counts) of the Indian Penal Code (hereinafter referred to as ''the IPC) as well as u/s 307 (two counts) IPC by learned Trial Judge vide impugned judgment dated 01.03.2004 passed in Sessions Trial No.77/2003.

In brief the case of the prosecution is that on 22.01.2003 Station Master Somnath of Railway Station Harsood on telephone intimated that he had received an information from Railway Station, Borkheda that in village Borkheda 2-3 murders had taken place, as a result of which police station incharge of Harsood recorded the said information in the Roznamcha and thereafter went to village Borkheda Khurd along with force where complainant Basu Bai (PW-7) narrated the incident to investigating officer PL. Raj which was reduced in writing in the shape of Dehati Nalishi (Ex.P/14). After recording the Dehati Nalishi, the Investigating Officer, at the instance of Shanta Bai (PW-2) inspected the place of occurrence and prepared the spot-map. The dead bodies of the deceased persons were found at the spot and these bodies were of Gulab Singh, Gahna Bai and Phoolkunwar Bai. The investigating officer prepared the inquest report of each dead body, seized the blood stained and ordinary earth from the place of occurrence which is the house of deceased Gulab Singh; recorded the statement of Basu Bai and Sugan Bai who were seriously injured as such they were sent for medical examination and the dead bodies of the deceased persons were also sent for post-mortem.

The investigating officer, in furtherance to his investigation on 22.01.2003 i.e. on the date of the incident recorded the statement of Shanta Bai, Amrat Singh and Saleem, Sher Singh etc. arrested the accused vide memorandum Ex.P-10 and seized from his person a shirt stained with blood; memorandum u/s 27 of the Evidence Act was recorded; and in pursuance to that memorandum, a blood stained knife was seized at his instance from his house in presence of the witnesses; sent the knife used in the commission of the offence to the doctor for obtaining his opinion whether the injuries caused to the deceased persons and the injured persons could have been attributed by the said knife; seized the blood stained two sarees and two petticoats from Sagun Bai.

After completion of the investigation, charge-sheet was submitted in the competent court which committed the case to the court of Session and from where it was received by the Trial Court for trial.

The learned Trial Judge after perusing the charge-sheet framed the charges punishable u/s 302 (three counts) and 307 (two counts) of IPC. Needless to emphasize, the accused abjured his guilt and pleaded complete innocence. His defense is of alibi.

In order to prove the charges the prosecution examined as many as 8 witnesses and placed Ex.P-1 to P-40, the documents on record. In his defense, the accused examined two witnesses, namely, Jaswant Singh and Bheem Singh.

The learned Trial Judge after appreciating and marshalling the evidence in detail came to hold that the accused did commit the offences for which he was charged and eventually convicted him and passed the capital sentence against him. Since the capital punishment has been passed, the learned Trial Judge did not pass separate sentence for the offence punishable u/s 307 IPC though it was found to be proved.

On account of passing of the death sentence, the learned Trial Judge has referred the said sentence for confirmation to this Court. The appellant, feeling aggrieved by the judgment of his conviction and order of sentence, has knocked the door of this Court by preferring an appeal.

We have heard Shri R.S. Patel, learned Additional Advocate General for the State and Shri S.C. Datt, learned senior advocate assisted by Shri Siddhartha Datt for accused.

It has been contended by Shri R.S. Patel, learned Additional Advocate General that the accused had committed murder of three persons who were closely related to him. Deceased Gulab Singh is the maternal grand father of the accused and the other two deceased persons, namely, Gahna Bai is his maternal grand-mother and Phookunwar Bai is his Mausi (mother"s sister). According to learned Additional Advocate General, since three lives had been taken by the appellant mercilessly by committing gruesome and brutal murder by knife, he is not entitled for any leniency or any kind of mercy. The learned trial Judge after balancing the entire factual scenario, looking to the gravity of the offence, and surrounding circumstances, rightly passed the capital sentence and, therefore, the death reference be confirmed.

Combating the aforesaid submission of learned counsel for the State, it has been contended by Shri S.C. Datt that it was incumbent upon the learned Trial Judge to assign "special reasons" before passing the death sentence. According to him, the death sentence should not be awarded only on the ground that appellant had taken three lives, it has also been put forth by him that plurality of the murder cannot be said to be "sufficient reason" for awarding punishment of death sentence. It has been proponed by him that looking to the entire facts and circumstances, no case of "rarest of the rare" is made out, therefore, the punishment of capital sentence be set aside. On merit of the case, it has been argued that if the evidence of the prosecution witnesses is considered in proper perspective, it cannot be said that the prosecution has proved its case and, therefore, the appeal filed by accused be allowed and the judgment of conviction be set-aside. It has also been submitted by learned counsel that before awarding the death sentence, it was incumbent upon the Trial Court to have accorded hearing on the question of punishment which has not been given to the accused. In support of his contention, learned senior counsel has invited our attention to Section 235 of the code, he had also invited our attention certain rulings on the point.

In the present case, the star witnesses of the prosecution are two injured witnesses, namely, PW-1, Sugan Bai alias Pushpa Bai and PW-7, Basu Bai. Apart from these two injured witnesses who have witnessed the entire episode, the prosecution has also examined an independent witness PW-9, Sher Singh. We shall now discuss and marshal the evidence of these three star witnesses. Before appreciating the evidence of these three eye-witnesses, we would like to mention one important fact that deceased Gulab Singh and Gahna Bai had four daughters, namely, Phoolkunwar Bai (deceased), Sugan Bai @ Pushpa Bai (PW-1), Basu Bai (PW-7) and accused''s mother Bhanwar Bai (PW-8). It would also be relevant to mention that the accused was residing along with his maternal grand parents, namely, deceased Gulab Singh, Gahna Bai in their house separately along with his mother PW-7, Bhanwar Bai. The land of deceased Gulab Singh was acquired by the Government and compensation was to be paid to him and a notice for the payment of compensation thereof was received.

PW-1, Sugan Bai @ Pushpa Bai has said that Basu Bai, Phoolkunwar Bai and she herself assembled at the house of her father deceased Gulab Singh and asked Bhanwar Bai, the mother of the deceased, to handover the notice but accused firmly said that the same would not be given. Accused was insisting to open the Bank Account of his mother in the village, so that amount of compensation may be deposited in the Bank at local place, however, the deceased Gulab Singh was insisting to open the account at Khandwa. The deceased Gulab Singh was insisting again and again to handover the notice of compensation, as a result of which appellant inflicted knife blow to him which landed on his neck region, as a result of which he fell down and breathed his last. When deceased Gahna Bai rushed to rescue her husband, accused wielded knife blow on her chest and she also fell down and thereafter when Basu Bai and Phool Kunwar Bai requested accused not to inflict the injuries, he inflicted knife blows to Phool Kunwar Bai which landed on her rib region, thereafter Phoolkunwar Bai fled from the spot and fell down outside the house. When this witness pacified the accused, she was also stabbed and the injuries were inflicted on her rib region, neck, beneath the arm pit and on the abdominal region. Accused also inflicted injury by knife to Basu Bai on her abdomen, neck, hand and shoulder. This witness was cross-examined at length but she remained embedded in her version, however, she admitted that accused was making demand of Rs. 10,000/- from her and her sisters and they were ready to pay, she specifically said that the incident did not occur on account of non-payment of money.

The statement of this witness has been corroborated by the evidence of PW-7, Basu Bai who is also an injured witness and is the daughter of Gulab Singh and Gahna Bai. According to the statement of this witness, all the sisters assembled because notice for payment of compensation was received. The accused was insisting to open the account in the village, while her father Gulab Singh was insisting to open the account at Khandwa. According to her, thereafter some altercation took place and the appellant took out a knife from his pocket and stabbed the neck of her father and also inflicted two more blows to him, as a result of which her father fell down. When her mother Gahna Bai rushed to the spot accused also inflicted injury to her and threw her on the ground. Her sister Phoolkunwar Bai when rushed to rescue her mother, she was also stabbed by the knife on her abdomen, as a result of which she died on the spot and when this witness tried to safe her sister Phool Kunwar Bai, she was also assaulted by knife by the accused. This witness has specifically stated that when the accused was wielding the knife blows, at that juncture Sher Singh arrived at the spot and he caught hold the accused, this witness was also cross examined at length but she remained vivid in her version.

The evidence of above said two injured witnesses, namely, PW-1 Sagun Bai and PW-7, Basu Bai has been corroborated by independent witness, PW-9 Sher Singh. If we keep the evidence of these three star witnesses in juxtaposition, singular inference which is crept out is that the appellant caused injuries by knife to the deceased persons as well as to these two injured eyewitnesses. The learned counsel for the accused failed to point out any infirmity in the evidence of these eye witnesses. We have given our bestowed consideration to the evidence of these witnesses and we find them to be quite, cogent, clear and trustworthy and for no rhyme or reason, they are liable to be dis-believed. On the contrary, a clear picture is formed on x-raying the evidence of these three eye-witnesses that appellant inflicted knife injuries to the deceased persons, as a result of which they passed away and he also caused injuries to PW-1, Sugan Bai @ Pushpa Bai and PW-7, Basu Bai.

The evidence of eye-witnesses has been further corroborated by medical evidence. PW-11, Dr. Mamta Parte conducted the post-mortem of deceased Phoolkunwar Bai and found following injuries :

(i) An abrasion over the lower left leg 1" x 1" redish in colour;

(ii) one incised penetrated wound on the chest; the doctor opined that deceased breathed her last on account of incised penetrating wound of vital organ (heart)

The post-mortem of deceased Gahna Bai was performed by Dr. Kusum Singh (PW-5), her report is Ex.P-11. According to which deceased Gahna Bai died on account of excessive haemorrhage. She sustained one incised penetrating wound over the left side chest 1" below areola size about 1 1/2" x 1" x deep up to heart muscle. According to the doctor the deceased died on account of excessive internal haemorrhage on account of the wound in left ventricle (heart).

The post-mortem of Gulab Singh was conducted by Dr. Mahesh Chand Jain (PW-17) and his report is Ex.P-21. Deceased Gulab Singh sustained following injuries:

(i) One incised wound over the left side of the neck size 3" x 2" x muscle deep cutting external carotid artery

(ii) One incised wound over left side of face over right side of mandible lower border l"xl/2" muscle deep; according to the doctor, the deceased passed away on account of excessive haemorrhage.

We shall now scan the MLC report of Basu Bai and Sagun Bai. Basu Bai was examined by Dr. Mahesh Chand Jain (PW-17) and his report is Ex.P-22. The doctor found as many as seven injuries on the person of Basu Bai, the details of which have been mentioned in Ex.P-22 and which has been discussed by learned Trial Judge in para 8 of the judgment. On going through the umpteen injuries, it is perceivable that Basu Bai sustained some injuries on the vital organ like abdomen, and mandible region. According to the doctor, the injured sustained injuries by sharp-edged weapon. This doctor also examined another injured, namely, Sagun Bai @ Pushpa Bai and the report is Ex.P-23. On going through the injury report, it is gathered that Sagun Bai sustained as many as seven incised wounds including the injuries on abdominal region, face and neck, the details of which have been mentioned in medical report Ex.P-23 and which has been discussed by the Trial Court in para 9 of its judgment. The investigating officer sent the knife which was used in the commission of the offence, doctor who after examining it gave its report that the injures could have been caused to the deceased persons and to the injured persons by this weapon. Thus, it is luminously clear like a noon day that appellant with the aid of knife inflicted injuries to the deceased persons as well as to the injured witnesses, namely PW-1 Suganbai and PW-7 Basu Bai.

We have given our anxious consideration to the reasonings assigned by the learned Trial Judge holding that appellant committed the offences for which he was charged and we found those reasonings to be cogent and trustworthy. They are based on appreciation of evidence and the learned senior counsel could not point out any infirmity in the reasonings ascribed by learned Trial Judge. Thus, we hold that appellant committed culpable homicide amounting to murder of above said three persons, he also inflicted injuries by the knife to above said two persons, namely, PW-1 Sagun Bai and PW-7, Basu Bai.

The next question to be considered is that what offence the accused has committed. Looking to the injures sustained to the deceased persons as they were inflicted on the vital organ like chest penetrating the heart on the person of deceased Phoolkunwar Bai, similarly Gahna Bai sustained injury penetrating over left side of chest below aerola and deceased Gulab Singh sustained incised wound over left side of neck cutting the external carotid artery, he also sustained incised wound right side of face cutting the mandible lower border. Since the injuries were caused on the vital organs like chest and neck, according to us, it is a cold blooded three murders.

We have also considered the evidence of PW-1, Sugan Bai and PW-7, Basu Bai and the injuries sustained to them. They also sustained injuries on their vital part like abdomen, face and neck region. The evidence of injured witnesses is fully corroborated by the medical evidence and thus we are in agreement with the view taken by the Trial Court that accused committed offence u/s 307 (two count).

The next important and vital point to be considered is whether learned Trial Judge was justified in passing the death sentence.

One important factor which is to be taken into account before passing the death sentence is that a deep study of the causes of motivation of the crime is required and the conditions prevailing around the accused and all other surrounding circumstances are required to be considered. The weapon used in the commission of the offence and the manner in which the murder has taken place are the relevant factors for awarding the death sentence. According to the eminent Jurists and the modern thinkers, the death sentence should be passed in the "rarest of the rare" case and they do not view human behaviour as completely and externally determined. The modern thinkers have tended to soften determinism of the early positivists. In the case of Rajendra Prasad Vs. State of Uttar Pradesh, , his Lordship V.R.Krishna Iyer J speaking for himself and for D.A. Desai, J has laid down the law thus:

The criminal law of the Raj vintage has lost some of its vitality, notwithstanding its formal persistence to print in the Penal Code so far as S.302, I.PC. is concerned. In the post-Constitution period Sec. 302, IPC and S.354 (3) of the Code of Criminal Procedure have to be read in the humane light of Parts III and IV, further illumined by the Preamble to the Constitution.

The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea.

The current ethos, with its strong emphasis on human rights and against death penalty, together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a paramount principle and culrural paradigm of our Constitution.

The personal and social, the motivational and physical circumstances, of the criminal are relevant factors in adjudging the penalty as clearly provided for under the new Code of 1973. So also the intense suffering already endured by prison torture or agonizing death penalty hanging over head consequent on the legal process.

Their Lordships further threw sufficient light in regard to assigning "special reasons" to be assigned before passing the extreme penalty. The special reasons necessary for imposing death penalty must relate not to the crime as such but to the criminal. The crime may be shocking, yet the criminal may not deserve death penalty.

25 A. The principle of mitigation of sentence is founded on consideration of justifiable punishment and involves certain human considerations as well as certain other practical requirements of sound policy. Desregard of the principle is therefore morally wrong and may also turn out to be imprudent administration of a system of criminal justice. [See Gross Hymen "A Theory of Criminal Justice"].

The murder might have taken place under excitement or it could have happened on account of sudden quarrel or to intend to cause murder could have arose at the spur of moment. In these circumstances, paramount extenuation of sentence may be permissible. In the present case, as it has come in the evidence of injured eye-witnesses, PW-1, Suganbai @ Pushpa Bai and PW-7, Basu Bai that the incident did not take place on account of payment of money. According to them, the incident occurred as the accused was insisting to open the account at the local place while deceased Gulab Singh was adamant to get the account opened at Khandwa. There is no evidence to the effect that murders committed by the appellant were premeditated or motivated by ill-feeling nurtured for years. On the contrary, it has come in the evidence, the accused was residing with his deceased material grandparents from his childhood along with his mother. He was staying with them in the same house, there is nothing on record so as to show that the relations were bitter or there was any ill-will between the parties for a considerable period which resulted in the commission of the offence. Before awarding the extreme punishment of death, the Court is required to consider a balance sheet of aggravating and mitigating circumstance and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The Court should keep in mind that life imprisonment is the rule and death sentence is an exception. We may say that the 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.

The Supreme Court in the recent case Dharmendrasinh @ Mansing Ratansinh Vs. State of Gujarat, has held that every murder is a heinous crime. In para 20 it was held as under:

Every murder is a heinous crime. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death, as held in different cases referred to above, would be awarded only in the rarest of rare cases. A number of factors are to be taken into account namely, the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed, has been committed for satisfying any kind of lust, greed or in pursuance of anti-social activity or by way of organized crime, drug trafficking or the like. Chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future and ultimately as held in several cases, mitigating and aggravating circumstances of each case have to be considered and a balance has to be struck. The learned State counsel as indicated earlier has already indicated the aggravating circumstances by reason of which it has been vehemently urged that sentence of death deserves to be confirmed.

It has been specifically highlighted by their Lordships that number of factors are to be taken into account like motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, personality of the accused, circumstances and facts of the case. In the case in hand, we do not find any kind of lust, greed or in pursuance of any anti-social activity or by way of organized crime, the murders have taken place. It appears that the learned Trial Judge has been influenced on account of the plurality of the murder and, therefore, it had passed the extreme punishment of death. The other factor which influenced the learned Trial Judge is that the maternal parents were in their advanced age of 90 years and 80 years and they have been murdered for no reason. According to us, this cannot be said to be special circumstances or clinching factor in order to award the death sentence.

In this context, we may place reliance on the case Ram Pal Vs. State of U.P., . In the case of Lehna Vs. State of Haryana, , the Apex Court while dealing with a case whether death sentence was imposed for murdering the mother, brother and sister-in-law, it was held that the murder was result of impulsive act and not of any diabolical planning and it occurred on account of land dispute. The death sentence was altered to imprisonment for life. The case in hand is rather on better footing because in the present case, the incident did not occur on account of any lust or money but it happened on account of a very simple dispute that at which place the bank account should be opened. Thus, the present case in hand cannot be said to be a case of "rarest of the rare". At this juncture, we may also profitably rely on the decision of the Supreme Court in the case of Om Prakash Vs. State of Haryana, and State of Punjab Vs. Gurmej Singh, .

We have scanned the entire episode, the evidence of the eye-witnesses and the surrounding circumstances. According to us, on account of a very small cause that where an account should be opened, the accused became angry and committed three gruesome murders. According to us, it would be germane to quote what has been said in Bhaguat Geets:

From anger comes delusion which results in loss of memory. The loss of memory causes destruction of discrimination and from ruin of discrimination the man perishes. People blinded by anger dis-regard those who have worked for well; hurt wholly man and harb themselves, what more can they do.

An angry person does not know what he does. His intelligence is over come by anger and the goes blind. Cato has said that "an angry man opens his mouth and shuts his eyes" A man commits crime though uninterested in it, it is due to desire or lust and anger that follows it. When desire cannot be fulfilled anger arises and from anger intelligence is lost. Thus, a man commits mistakes and crimes. Aristotle has said that a man who gets angry, at the right things and with the right people, and in the right way and at the right time and for the right length of time, is commanded. But, according to us, if the wheel is turned reverse, i.e. if a man gets angry not for the right things though with the right people, in incorrect way or we may say not in the right way is to be condemned.

In our considered view the reason assigned by the learned Trial Judge in awarding the extreme punishment of death cannot be stretched so as to include them under the ambit of "special reason". Looking to the entire facts and circumstances of the case, the present case in hand cannot be said to be the "rarest of the rare" case and, therefore, we cannot uphold and confirm the death sentence passed by learned Trial Judge.

In the result, the death reference is hereby rejected and the criminal appeal filed by the accused is partly allowed and the imposition of death sentences is altered and converted to the imprisonment of life.

The learned Trial Judge did not award any sentence for committing the offence u/s 307 IPC though it was found to be proved because the learned Trial Judge passed the death sentence. Since we have altered the punishment of death sentence into life imprisonment, it would be appropriate to pass adequate sentences for committing the offences u/s 307 IPC (two count) by the accused and we think it proper that accused should suffer five years rigorous imprisonment for committing the offence u/s 307 (two count). Needless to emphasize, all the sentences shall run concurrently.