Yunus vs State of U.P.

Jayashree Tiwari, J.—The present jail appeal arises out of judgment and order dated 17.10.2008, passed in Sessions Trial No. 419 of 2007 by Sri Rajendra Chaudhary, Additional District and Sessions Judge, Saharanpur.

Heard Sri Rajul Bhargava, learned amicus curiae for the Appellant and Sri D. R. Chowdhary, G. A. and Arunendra Singh, A.G.A. It is alleged by the Appellant that the accused is innocent and poor. Briefly, the story of the prosecution is:

Informant Smt. Rehana, wife of Yunus resident of Khan Alampur, Police Station Janakpuri, District Saharanpur was married with Appellant Yunus, son of Buddhu 13 years back. Husband Yunus used to ill-treat and beat her. Consequently Rehana alongwith her two children started living separately in a rented house from two years back. Three days before Yunus came and took away youngest son Zuber. On 15.3.2007 in the morning, informant Rehana went to village Nanka to take back her son Zuber from the house of her husband. From Yunus she had four issues, out of them daughter Gulishta and Mustikeem were living with her husband Yunus in village Nanka and two Zuber and Khaliza were living with Rehana. On yesterday night she went to take back her children with her, as a result of which Yunus started beating her and her children. Since night had approached she stayed at her husband''s house alongwith her children and was sleeping prior to the incident. Yunus had provided meal to the three children in the evening. At about 4.00 a.m. in the morning Rehana heard crying noise of Gulishta. In torch light she saw that Yunus was suppressing the neck of Gulishta and Gulishta was moving her hands and legs in a helpless condition. On seeing this informant became frightened and crying ran towards her husband as a result of which he fled away from the house. On going near to children she found that all the three children Gulishta aged about 9 years, Mustkeem aged 7 years and Zuber aged 5 years are lying dead. Blood was booming out from the mouth of Gulishta. She made hue and cry. Upon this many persons assembled and started searching Yunus but he could not be traced. Then at 7.30 p.m. she informed the police. She has stated that she suspects that her husband Yunus has either given poison to her children or killed by suppressing their necks. The dead bodies are lying in the village.

Upon this information the investigation proceeded and on completion of the investigation charge-sheet was submitted and after committal of the case by the Magistrate concerned to the Court of Sessions the charge u/s 302, I.P.C. was framed against accused-Appellant Yunus. He denied the charge and claimed to be tried. Hence, trial'' proceeded.

Four witnesses P.W. 1 informant Rehana, P.W. 2 Mushtkeem, P.W. 3 S.I. Chandri Lal, P.W. 4 Dr. Manoj Kumar Chaturvedi, P.W. 5 S.O. Pramod Pawar proved the prosecution version. P.W. 1 is informant Rehana and witness of the fact. P.W. 2 Mustkeem a person approached on the spot on hearing cries of informant Rehana saw accused Yunus running away and hence a witness of the surroundings, subsequent circumstances and conduct. P.W. 3 S.I. Chandri Lal is the formal witness, writer of G.D. and chik F.I.R. P.W. 4 is Dr. Manoj Kumar Chaturvedi who conducted post mortem examination and examined bodies of three dead persons and P.W. 5 is an Investigating Officer.

P.W. 1 Rehana informant stated in her evidence on oath that she got married with Yunus and lived in village Nanka with him for two years. He maintained her properly and after two years he started beating and harassing her. Four issues were born out of their wedlock named Khalija, Gulishta, Mursleen and Zuber. When the husband''s behaviour could not change she left her husband with two children Khalija and Zuber and started living separately on rent in Sapur Khan Alampur. The villagers handed over two children to husband Yunus. Yunus came three days before the incident to Alampur and forcibly took away the younger son Zuber with himself. On the eve of 15th March, 2007 she went to village Nanka to take back his son Zuber as she had become late and night had fallen she stayed at the house of her husband Yunus. The food was prepared by the daughter of first wife of Yunus and three children took food after that she asked Yunus to take Zuber with herself. On demand of child. Yunus started beating her and her children. Thereafter, she slept on a cot and on one cot Gulishta and on another Mursleen and Zuber slept in the house of Yunus. Husband Yunus was sleeping with his first wife alongwith her first wife''s children, on the other side of the home. At about 4.00 a.m. in the night she heard the crying noise of her daughter Gulishta and in torch light she saw that husband was strangulating the neck of Gulishta. The girl was shaking her hands and legs. Seeing this, she ran crying towards Yunus, whereupon Yunus fled away from there. On going near she saw that Gulishta has died and their other two children were lying dead. The blood was coming out from the mouth of Gulishta. On hearing the shoutings villagers assembled and started tracing Yunus but he could not be traced. Thereafter she lodged the report written by Naim of village. She had admitted the report which is Ext. Ka-1 on record. Prior to the death of children from two years back she was living on a rented house in Saraipur and was maintaining herself by doing the work of dusting and cleaning the house. In cross she stated that she used to live in a rented room and there are other rooms in the said building. She is illiterate and does not know to see the clock and two children living with her were not going to school. She used to go for work by 8.00 a.m. in the morning and return at 12 ''O clock. Thereafter from 3.00 p.m. she used to go for work. When she used to go for work her two children used to play with other children. Yunus had taken away her son Zuber on 12.00 p.m. by that time she was not at home. One Firoz and Qafil informed her that Yunus had taken Zuber. The report of taking away was not lodged by her at the police station because she had no money with her. She had gone to village Nanka alone and had left her daughter Khalija at home. She stated that earlier also she used to leave her children with other tenants. She had gone from Sapur to Nanka with bare hands and started at 5.00 p.m. From Dehradun Highway Nanka is 4-5 kms. Buses are available from highway. When she reached village Nanka she saw that Yunus and children were present there. After her arrival for about one and half hour their children had taken meal. She had gone to see Zuber. The daughter of Yunus from his first wife stated that she was preparing meal and asked her to go after taking meal. The material for food was already present in the house. She further stated that when she saw the dead body she had no knowledge about the cause of the death, the torch was lying on the cot and it was big torch and was taken by the police. All the three cots were lying side by side at a short distance. Yunus was sleeping in chhappar about three metres away from the cot. She stated that she assessed the time about 4.00 a.m. The blood was blowing out from the mouth of Gulishta and not from the two children. She also stated that she did not know whether eyes of dead children were open or shut because she had become frightened. She had seen Yunus suppressing the neck of Gulishta ; Mursleen and Zuber had died prior but she could not hear the noise of their cries, when she saw that all the three children had died she did not take them to the doctor. The report was written at the police station at about 6.00 a.m. She further stated that it was written about 7.30 a.m. The police had arrived at about 8-8.00 a.m. the same day. At about 10-10.00 a.m. she went alongwith police personnels. Three police personnels were accompanying her. No person of the village was with her. She had gone from Nanka to Chamari Khera with police in search of Yunus and Yunus was coming on foot from Chamari Khera when police arrested him. The distance from Nanka to Chamari Khera was not known to her. After starting from Nanka within 10-15 minutes the police arrested Yunus and Yunus did not make any attempt to escape. She knows Mushtkeem, his house is 7-8 metres away from the house of Yunus. From the house of Yunus Old Musjid is 10-15 meters away. Both the Musjids are adjacent and Mushtkeem came first. Shamim Pradhan stated that after the incident phone of Yunus was received. Pradhan stated that the girl is alive and both the sons have died and asked him to come home. She further stated she did not know whether Shakil lived in a room where she was also living in a rented room. She has not filed any suit for maintenance against Yunus. It is incorrect to say that she has filed a suit u/s 125, Cr. P.C. against Yunus and Shakil is doing pairvi in that case. It is also incorrect that she had illicit relation with Shakil and the children living with her were not tolerated by Shakil as a result of which she had dispute with Shakil also. She had gone to village Nanka on that very particular day. Since she had gone to Sapur she never visited Nanka. She complained of beating by him to the villagers. In panchayat it was decided that two children will live with her and two children will live with Yunus. She further stated that she is resident of village Pavli. Her mother had died prior to marriage, she had never sent any letter. The house is in the name of Yunus. She has denied that she has any illicit relations with Shakil and in order to grab the house of Yunus she had killed the children and has falsely implicated Yunus.

P.W. 2 Mushtkeem has been examined. He has stated that when he was going to read namaz at 4.00 p.m. in the Musjid and reached near the house of Yunus he heard the cries of woman from the house of Yunus and saw that Yunus was running towards the road. He further stated that he called Yunus and asked him how crying noise was coming out from his house but he did not stop and started running swiftly. Thereafter he went to the house of Yunus and saw that his wife Rehana was weeping near chhappar where her dead children were present. He further stated that Rehana told him that her husband Yunus had taken away Zuber forcibly and she had come there to take back Zuber and there was quarrel between her and Yunus in the night. As the night has occurred she stayed at the house of Yunus and she was sleeping with her children in the chhappar on the western side and Yunus was sleeping with her first wife and children on the eastern side of chhappar. Thereafter she stated that Rehana informed him about the cries of Gulishta and she wake up and saw that Yunus was suppressing the neck of Gulishta, seeing this she cried as a result of which Yunus fled away. Rehana also informed him that when she tried to woke up her children Zuber and Mursleen they were found lying dead. She saw her three children Gulishta, Zuber and Mursleen lying dead on the spot. She was living in village Sapur two years before the incident. P.W. 2 Mushtkeem stated that he knew Yunus from the very childhood and he knew Rehana from the time of her marriage with Yunus. From Sapur after sunset buses could not be available, his house is about 80 metre away from the house of Yunus and in between there are houses of Ismail and Ayub. In both the mosques there is distance of 200-300 metres. He used to read namaz in mosque at Dehradun road. He stated that he reached mosque at 4.30 a.m., when he had gone to read namaz he had lighter in his hand ; that mosque is towards west from the house of Yunus. In the month of March at 4.00 a.m. there happens dawn light. On the date of incident at 4.00 a.m. there was light in the village but there is no connection of light in the house of Yunus. When he heard cries from the house of Yunus he was 5-6 steps away from the house of Yunus. On hearing the noise he tried to stop Yunus first and thereafter went to his house on hearing cries. He saw Yunus in a running condition. He did not see Yunus coming out from his house but on the way he tried to stop Yunus at a distance of 10 feet from him. When he reached on the spot Shamshad was present there. Other villagers came afterwards before him. Zarif, Sharif, Ayub, Jamshed and Ayub etc., had come. Zahid was not present on the spot. Ismail had come. The daughter of Rehana, Khaliza was not there. On the spot there was torch light of Shamshad. He stayed there for 20-25 minutes. Except Gulishta foam was coming out from the mouth of other two dead children. Shamim was not on the spot. It is wrong to say that there were two parties in the village. It is also incorrect to say that Yunus supports Shamim and he supports Naim. He did not know whether Rehana has filed any case u/s 125, Cr. P.C. against Yunus. It is incorrect to say that he was giving false evidence on an account of election enmity.

P.W. 3 S.I. Chandri Lal who is chik writer has proved G.D. and chik which are Exhibits Ka-2 and Ka-3 on record and thus formally proved the prosecution case.

P.W. 4 Manoj Kumar Chaturvedi who has conducted post mortem examination and has stated about the injuries found on the person of three dead children. On the person of dead Mursleen aged about 7 years in external examination he found that he was of normal height. There was rigor mortis present in the upper part. No sign of decay was present. On the back and hips of the deceased P.M. stenning was present. There was foam blowing out from both the nostrils. The two ante-mortem injuries were found on his person as follows:

(1) Ligature mark 13 cm. ? 3 cm. on front of neck 4 cm. below the chin and 3 cm. below the right year ; and

(2) There were signs of several abrasions on the southern side of the neck.

After dissecting the ligature mark it was found that there was blood present in the muscles.

In the internal examination it was found that there was congestion in the membrane of brain and both the lungs there was much foam. The breathing canal larynx was congested inside. The blood vessel of the neck was torn. In abdomen about 150 gm. undigested food was present. In his opinion the death had taken place half an hour before. The cause of death was asphyxia as a result of suppressing the neck.

On the same day he examined injuries of Gulishta. It was found that age of deceased was 10 years. He was of normal height. There was rigor mortis present in the upper and lower parts of the body. There was no sign of decay. The blood was blowing out from the nose. The following ante-mortem injuries were found on the person of the deceased Gulishta.

(1) Ligature mark 10 cm. ? 3 cm. ? 3.5 cm. on the front of neck towards frontal side 4 cm. below the chin ;

(2) On chin and all the sides of mouth there were signs of abrasions present.

On dissection it was found that in muscles of neck echymossis the blood was present. In trachea congestion was present.

In internal examination it was found that there was congestion in the brain. In both the lungs foam was present. In abdomen about 100 gm. half digested food was present. The cause of death, in the opinion of doctor was asphyxia due to strangulation of neck. The doctor has also examined the dead body of Zuber S/o Yunus the same day and in external examination he found that the deceased was of normal height and there was rigor mortis present in upper and lower part of the body. There was no sign of decay. The foam was coming out from both the nostrils and the tongue was suppressed beneath the teeth and crushed. The following ante-mortem injuries were found on his person:

(1) Ligature mark 13 cm. ? 3 cm. on the front of the neck 6 cm. below the chin and 4 cm. below the right ear and 5 cm. below the bone of left ear.

On the left side of neck there was rounded sign of abrasion present. The saliva was coming out from the mouth. In dissection it was found that in the muscles of the ligature marks the blood was present. In the internal examination it was found that the membrane of the brain was congested. There was congestion in the lungs and 3rd and 4th of breathing canal bone was found broken. Internal blood vessel of the neck was torn. In abdomen about 100 gm. undigested food was present. The death had taken place half day before. The death is possible at 7.00 in the morning on 16.3.2007. He has stated that all the post mortem report was prepared by him in his writing and signature which are Exts. Ka-5, Ka-6 and Ka-7 respectively. Death of all the three children is possible if the neck is suppressed deceitfully. In cross he stated that ligature marks are possible from hands because the signs of nails are present on the neck. In strangulation by cloth the abrasions are not possible. He stated that it cannot be told as to after strangulation in how much time death my take place.

P.W. 5 S.O. Pramod Pawar who is the Investigating Officer in the case has proved the prosecution version. He has proved panchayatnama of Zuber (Ext. Ka-8), Form 33 (Ext. Ka-9). Form 13 (Ext. Ka-10), Photonash (Ext. Ka-11), Chitthi R.I. (Ext. Ka-12), Chitthi of C.M.O. (Ext. Ka-13). He has also proved panchayatnama of Gulishta (Ext. Ka-14), Form 33 (Ext. Ka-15), Form 13 (Ext. Ka-16), Photonash (Ext. Ka-17), Chitthi R.I. (Ext. Ka-18), Chitthi of C.M.O. (Ext. Ka-19). He has also proved panchayatnama of deceased Mursleen as Ext. Ka-20 and related papers Form 33 (Ext. Ka-21), Form 13 (Ext. Ka-22), Photonash (Ext. Ka-23), Chitthi R.I. (Ext. Ka-24) Chitthi of C.M. (Ext. Ka-25). He has also proved the spot map (Ext. Ka-26). He has also proved the bloodstained clothes which were taken in possession and prepared furd in respect of the same (Ext. Ka-27). He has stated that he has taken the statement of the witnesses. He further stated that source of light ''torch has not been taken by him in custody. He further stated that he was not sure whether the night of incident was dark, moon light or not. After completing investigation he has submitted charge-sheet against the accused which is Ext. Ka-28 on record. Then he has firmly proved version of the prosecution. The evidence of the prosecution was closed.

Thereafter the accused-Appellant was examined u/s 313, Cr. P.C. in which he admitted his marriage with Rehana and also admitted separate living from Rehana but denied beating of the children and he has also denied the fact of forcefully taking away Zuber from the house of Rehana. He denied that on arrival of Rehana and on her demand to take back Zuber he caused beating to her and her children and he also denied the facts that in torch light Rehana saw that he was suppressing the neck of Gulishta and has stated that Mushtkeem has given false evidence. He has also denied that three children were found dead at his house and stated that P.W. 1 Rehana and Mushtkeem are giving wrong statement due to ill-will and the case has been lodged due to ill-will and also stated that there was no electric connection in his house prior to his detention in jail but he has not led any evidence in defence in his support. Upon this evidence after considering the entire material on record the Additional District and Sessions Judge, Saharanpur found the case of prosecution proved reasonably and convicted the accused with death sentence against which the present jail appeal has been filed by the accused-Appellant.

Briefly, the finding of the trial court is that the informant, wife of the accused and mother of the deceased children is narrating the correct situation and her testimony appears to be natural. There appears no reason for her to falsely implicate her husband and to exempt the real culprit of the crime. The trial court has also held that testimony of the informant P.W. 1 also finds support and corroboration from the medical evidence that all the three children died as a result of suppression of necks. On the basis of the testimony as adduced by P.W. 1 and supported by other witnesses that on hearing the cries of Gulishta she woke up and saw that Yunus was suppressing the neck of Gulishta where her two other children Zuber and Mursleen were also sleeping. On coming near to Gulishta she found that remaining two children were also found lying dead. Thus, the trial court upheld that the testimony of the informant coupled with the testimony of other witnesses is in consonance with the medical expert evidence and there remains no room for suspicion against the guilt of the accused. The learned trial court has also held that the conduct of the accused as has come out in his reply to application u/s 125, Cr. P.C., also shows his intention that he is working in a pre-planned manner and accordingly he has given suggestion to P.W. 1 during cross-examination the informant has illegal relation with one Shakeel and in connivance with alleged Shakeel these multiple murders have been committed.

First submission made on behalf of the accused-Appellant is that the testimony of Rehana is not an independent testimony but the testimony of an interested witness. It is submitted on behalf of the learned Counsel for the Appellant that this testimony of interested witness cannot be relied upon. In this connection it is worthwhile to know that incident had taken place inside the house of Yunus who happens to be the husband of Rehana and Rehana was present in the house on the very night alongwith her three children and was sleeping. She suddenly woke up on hearing the hue and cry of her daughter Gulishta in the late hours of night. When the incident had taken place inside house the witness was sleeping. She happens to be the main natural witness of the incident and it cannot be ignored that she happens to be the mother of three deceased children who have been killed in the said night. There appears no logic or reason to believe that she will spare the real culprit of three children and will falsely implicate her own husband Yunus in the matter.

The Hon''ble Supreme Court in Gali Venkataiah Vs. State of Andhra Pradesh, observed that

We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

The Hon''ble Supreme Court in Kulesh Mondal v. State of West Bengal LIX 2007 ACC 798: 2008 (1) ACR 151 (SC) , quoted the extract of judgment passed in Dalip Singh and Others Vs. State of Punjab, which are

We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan. We find, however, that if unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.

Again in Masalti Vs. State of U.P., this Court observed that "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses........ The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to'' failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence ; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

On the basis of the aforesaid ruling and discussion made above the testimony of this witness seems to be genuine and cannot be discarded.

Thereafter prosecution closed its evidence and accused-Appellant was examined u/s 313, Cr. P.C. in which he admitted his marriage with Rehana and also admitted separate living with Rehana. He also admitted that the children are being offspring of this marriage couple but denied beating of children. He also denied that he forcibly took away Zuber from the house of Rehana as alleged and further denied that on arrival of Rehana to his house and demand of taking back with her he beat her or children. He also denied the fact that in torch light Rehana saw him suppressing the neck of Gulishta and has stated that Mushtkeem has given false evidence. He has also denied that three children were found dead in his house and told that P.W. 1 Rehana and Mushtkeem are giving false evidence and the case has been lodged due to ill-will. He also stated that there was no electric connection in his house prior to his detention in jail but has led no evidence in defence to discharge the burden inflicted on him u/s 106, I.P.C. or otherwise.

Providing Section 106-burden of proving fact specially within the knowledge when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him, it has come in evidence that incident of murder has taken place inside the house of accused Yunus, hence he is best person to depose as to how these murders have been caused in his home and who is the person who has caused these murders, the heavy burden under the law lies upon him to depose and narrate all these facts but the perusal of the record shows that burden cast upon the accused being inmate of the house, has not been duly discharged by him, he has not presented any version as to how the three children who are his own children have been killed and who has killed them, in these circumstances the presumption goes against him that he and no one else has committed the murder of those innocent children.

In the same context the provisions enunciated in Section 8 of the Indian Evidence Act are also considerably discussed. Section 8 of the Indian Evidence Act state like this.

Motive preparation and previous or subsequent conduct, any fact relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation-the word "conduct" in this section does not include statements ; unless those statements accompany and explain acts other than statements ; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation II-when the conduct of any person is relevant, any statement made to him or in his presence and hearing which affects such conduct, is relevant. In the instant appeal before us the subsequent conduct of accused Yunus is worth considering as three minor and innocent children are killed in his house as posterior to this effect, his subsequent conduct in and omission in not making any report to the police station as also in not making any attempt to approach to the hospital for any medical help, if possible shows unnatural conduct of a father which creates suspicion undoubted against the guilt of the accused. In the normal course a father whose children are being killed or murdered will not remain silent but will proceed to take steps to get hold of the persons guilty, the material omission on the part of the accused Yunus shows undoubtedly that he has killed Gulishta and other two children as alleged. So looked from this aspect also the contention of the prosecution and the finding recorded by the learned lower court seems to be genuine.

So far as the medical report is concerned, medical report supports the story of prosecution, the ligature mark on the neck of three deceased persons support the version of the prosecution that they have been strangulated and the omission on the part of the accused to narrate or lead any evidence in rebuttal also strengthen and corroborates the contention of the prosecution as alleged.

The next point to be considered as submitted by the learned Counsel for the accused-Appellant and as mentioned by him in his appeal that he is a poor person and innocent, the plea of innocence is not proved by any material or cogent evidence as compared to the straight and direct testimony of P.W. 1, corroborated by the medical testimony of P.W. 4 and subsequent conduct of accused Yunus in several omissions which are against the natural conduct of the father, as alleged whose children have been killed it appears that Sessions Judge rightly relied upon the testimonies of the witnesses and recorded finding of conviction, which we also affirm.

The next submission as made by the learned Counsel for the Appellant is that the sentence imposed is the death sentence which ought to have been imposed in the rarest of rare cases and in this connection he pointed out that his case be considered that he is poor person, in this regard it has to be seen that while imposing the death penalty, the aggravating circumstances and mitigating circumstances are to be kept in mind and balanced and then the sentence be accordingly imposed. In this connection the Apex Court in Deshraj v. State of Punjab LIX 2007 ACC 801: 2008 (1) ACR 144 (SC) , Division Bench has observed Capital punishment-sustainability-Murder not to satisfy greed or lust-No cruelty to or torture of the victim-Act not brutal, diabolic or revolting-Accused not having bad antecedents, not a hard core criminal nor anti social or anti national element-Action impulsive and without premeditation arising out of sudden quarrel-Entire incident occurring within few minutes-Repeated loading and firing not an indication of extreme depravity or brutality but of drunken rage-Aggravating circumstances noticed by the High Court not outweighing much less overwhelmingly the mitigating circumstances. In Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab, this Court has stated the principles and guidelines relating to award of death sentence. The principles have been reiterated in several subsequent decisions including State of Rajasthan Vs. Kheraj Ram, ; Lehna Vs. State of Haryana, and Bablu @ Mubarik Hussain Vs. State of Rajasthan,

In Bachan Singh Vs. State of Punjab, a Constitution Bench of this Court while upholding the constitutional validity of the provision for penalty of death for murder, indicated the broad criteria which should guide the Courts in the matter of sentencing a person convicted of murder u/s 302, I.P.C. This Court has held:

As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the 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 each particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is 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.

It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us will discharge the onerous function with ever more scrupulous care and humane concern, directed along the high road of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law''s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

In Machhi Singh and Others Vs. State of Punjab, this Court addressed the issue of practical application of the ''rarest of rare case'' rule laid down in Bachan Singh:

Every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it...... Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by ''killing'' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so ''in rarest of rare cases'' when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiments 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...

This Court recognized that special reasons attracting death penalty may relate to manner of commission of murder, or the motive for murder, the abhorrent nature of the crime or the magnitude of the crime, or even the personality of the victim. This Court gave the following illustrations (not to be considered as exhaustive):

Whether the number of persons killed has a bearing on the sentence to be imposed was considered in Rajendra Prasad v. State of U.P. 1979 (2) SCC 64. This Court held that neither the shocking nature of the crime nor the number of murders committed was the criterion to determine whether death sentence should be imposed. It was held that the special reasons necessary for imposing death penalty must not relate to the crime as such but to the criminal. In Dalbir Singh v. State of Punjab, the Bench which decided Rajendra Prasad, while following Rajendra Prasad, put the matter in somewhat better perspective. It held:

Counting the casualities is not the main criterion for sentencing to death, nor recklessness in the act of murder. The sole focus on the crime and the total farewell to the criminal and his social-personal circumstances mutilate sentencing justice.

In Bachan Singh, the Constitution Bench did not agree with the decision in Rajendra Prasad that the special reasons necessary for imposing death penalty "must relate not to the crime as such but the criminal." It is held that for making the choice of punishment or for ascertaining the existence or absence of special reasons, the Court must pay due regard both to the crime and the criminal. Thus, the number of persons killed when coupled with the shocking nature of other features of the crime, can certainly furnish the grounds for choice of punishment. Even if only one person is killed, the gruesome or shocking nature of the crime and/or the motive for the murder may make it the rarest among rare cases deserving death penalty. On the other hand, murder of even two or three persons may not invite death penalty where there is no premeditation, no cruelty or torture of the victim or where the act is not diabolic. We may in this context refer to the following observations in Lehna (supra):

It is true three lives have been lost. But at the same time, the mental condition of the accused which led to the assault cannot be lost sight of. The same may not be relevant to judge culpability, but is certainly a factor while considering question of sentence. There is no evidence of any diabolic planning to commit the crime, though cruel was the act. Deprived of his livelihood on account of the land being taken away, the accused was, as the evidence shows, exhibiting his displeasure, his resentment. Frequency of the quarrels indicates lack of any sinister planning to take away lives of the deceased. The factual scenario gives impressions of impulsive act and not planned assaults. In this peculiar background, death sentence would not be proper. A sentence of imprisonment for life will be more appropriate.

In the light of the observations of the Apex Court while considering the particular case in question before us in appeal. We find that three minor children are alleged to have been murdered but there appears to be complete absence of any motive for accused to kill them. It also does not appear to be a premeditated plan because when the Appellant had taken away the child Zuber from Rehana''s house all the three children including the child Zuber were with him but he did not kill them before and all the children were found well by Rehana when she went to her husband Yunus''s house. The mental condition of the accused at the time and on the day cannot be ignored, it has come in evidence that his second wife from whom these three children were born was living separately from him with two children and two children out of four from the said wedlock living with accused Yunus. As per version in the first information report, he took away the youngest son Zuber from the house of Rehana few days back. Rehana approached to her husband house shortly and demanded return of the child as a result of which quarrel and beating between the wife and husband and children took place. It has also come in the evidence that food was offered to all of them, on the same unfortunate day in the evening and after taking meal, the informant wife with her three children slept apart in the same house and accused with his first wife and children slept on the other side of the house. In evidence by Rehana she has narrated the story of seeing the accused suppressing the neck of only one child, i.e., Gulishta not, the remaining two. The other two children were found lying dead and on the basis of strong legal presumption that accused had not discharged his burden u/s 106 of Indian Evidence Act, as to how these murders have been committed in his house, presumption arose against him and he is held guilty of the murders. The absence of any bad previous character and criminal antecedents of the accused show that he is not hardened criminal by nature. The death has not alleged to have been committed by him by killing the body in a brutal manner but because impression of impulsive act with feeling that his child was demanded by the wife for separate living, he had perhaps committed this unfortunate act. Besides accused is also having other children with him and first wife as well as second wife, the condition of mind as result of demand of children by the wife appear to be strong factor in the commission of offence and when considered from this angle the aggravating circumstances are overbalanced by the mitigating circumstances as alleged above. In these circumstances it does not appear to be rarest of rare cases which invites death penalty, imposing of death penalty will heavily affect the first wife and his children and also the informant who happens to be the second wife. In these circumstances, in our opinion in the light of the decisions given by the Apex Court, the entire gamut of the circumstances surrounding the accused when weighed it appears that mitigating circumstances overweigh the aggravating act of murder of children. Considering the aggravating and mitigating circumstances we are of the opinion that in the facts and circumstances of the case, this case does not fall within the category of "rarest of rare case" and it cannot be said that imposition of lesser sentence of life term is altogether foreclosed.

We therefore, reduce the death sentence to imprisonment for life.

While affirming the conviction of the Appellant u/s 302, I.P.C., we set aside the sentence of death imposed by the trial court and reduce the same to imprisonment for life. To this extent appeal is allowed.

Appellant is in jail. He shall be kept there to serve out the sentence as modified by this Court.

Reference made by learned Sessions Judge for confirmation of death is rejected.

We, therefore, partly allow this appeal while confirming the conviction u/s 302, I.P.C., we modify the sentence of death imposed on the Appellant to one of life imprisonment.

Accordingly, the appeal is partly allowed.