Atbir Vs Govt. of N.C.T of Delhi

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 870 OF 2006

Atbir .... Appellant(s)

Versus

Govt. of N.C.T. of Delhi .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 877 OF 2006

J U D G M E N T

P. Sathasivam, J.

1) These appeals are directed against the final judgment

and order dated 13.01.2006 of the High Court of Delhi at

New Delhi in Criminal Appeal No. 805 of 2004, Murder

Reference No. 3 of 2004 and Criminal Appeal No. 876 of

2004 whereby the High Court dismissed the criminal

appeals filed by the appellants herein and confirmed the

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sentence awarded by the learned Additional Sessions

Judge, Delhi in Murder reference.

2) The case of the prosecution is as under:

a) Atbir, the appellant in Criminal Appeal No. 870 of

2006 is the son of one Jaswant Singh. Jaswant Singh had

married accused Chandra @ Chandrawati, who is

absconding and from the said wedlock, three children,

namely, Satbir, Atbir and Anju were born to them.

Thereafter, Jaswant Singh married Sheela Devi, the

deceased and from their wedlock, one daughter Sonu @

Savita and one son Manish @ Mannu – the deceased, were

born. Sheela Devi – the 2nd wife of Jaswant Singh was

staying at Mukherjee Nagar, Delhi, with her children.

They were having dispute over the division of their

properties.

(b) On the afternoon of 22.01.1996, on receiving

information of murder of a man and that of one injured at

N-33, Mukherjee Nagar, Delhi, Inspector Virender Singh,

Addl. S.H.O., Mukherjee Nagar Police Station along with

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ASI Kanwar Lal, Ct. Manoj Kumar and Ct. Jogender Singh

rushed to the place of occurrence and found two dead

bodies, one of female and other of a boy aged about 16

years in the adjacent room on the ground floor of N-33,

Mukherjee Nagar, Delhi. Both were later identified as

Smt. Sheela Devi, second wife of Jaswant Singh and her

son Manish @ Mannu. It was revealed at the spot that

one injured, namely, Sonu @ Savita, daughter of Sheela

Devi was removed to Hindu Rao Hospital in a PCR Gypsy.

After leaving ASI Kanwar Lal at the spot, Inspector

Virender Singh along with his team rushed to Hindu Rao

Hospital and on endorsement given by Dr. Sharat

Chandra Jai Singh-PW 30 that “patient fit for statement”,

recorded the statement given by Sonu @ Savita. In the

statement, Sonu @ Savita alleged that Chandra @

Chandrawati her step-mother, along with her son Atbir,

one Ashok-appellant herein in Crl. Appeal No. 877 of 2006

and one person whose name she did not know entered

their house and demanded money from her mother Sheela

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Devi but she refused. Accused persons bolted the doors

from inside and Atbir took out a knife and stabbed Manish

@ Mannu, who was held by Chandra @ Chandrawati,

Ashok and another. Thereafter, Atbir stabbed Sheela Devi

and then Sonu @ Savita with knife. On the above

statement, a case under Sections 307 and 302 of the

Indian Penal Code (hereinafter referred to as “I.P.C.”) was

registered at Mukherjee Nagar Police Station and

investigation started. On 24.01.1996, Sonu @ Savita

succumbed to her injuries and died at Hindu Rao

Hospital.

(c) On completion of the formalities, the challan was filed

in the Court of Metropolitan Magistrate and after

completion of committal proceedings, the case was re-

allocated to the Court of Additional Sessions Judge, Delhi.

On 12.08.1997, a charge under Section 302 read with

Section 34 I.P.C. was framed against accused Atbir, Ashok

and Chandra @ Chandrawati. On 24.08.1999, on filing

the supplementary challan against accused Arvind, the

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charge was re-framed against all the accused persons,

namely, Atbir, Ashok, Arvind and Chandra @ Chandrawati

by the Court of Additional Sessions Judge, to which they

pleaded not guilty and claimed trial. Prosecution

examined as many as 41 witnesses and their statements

were recorded. The Additional Sessions Judge, vide order

dated 27.09.2004, convicted Atbir – appellant in Crl.A.

No.870/2006 with death penalty and Ashok- appellant in

Crl. A. No. 877/2006 with life imprisonment and acquitted

Arvind. The accused Chandra @ Chandrawati remained

absconding. Being aggrieved by the order of the

Additional Sessions Judge, Delhi, the appellants herein

filed appeal before the High Court. The murder reference

was also sent by the Sessions Court to the High Court.

The High Court, by the impugned judgment and order

dated 13.01.2006, confirmed the findings recorded by the

Additional Sessions Judge and upheld the conviction of

the appellants awarded by him. Against the said

judgment, the appellants have preferred these appeals by

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way of special leave before this Court.

3) Heard Mr. K.B. Sinha, learned senior counsel for the

appellant in Crl. Appeal No. 870 of 2006, Mr. A.T.M.

Rangaramanujam, learned senior counsel for the

appellant in Crl. Appeal No. 877 of 2006 and Mr. J.S. Atri,

learned senior counsel for the respondent-State.

4) Mr. K. B. Sinha, learned senior counsel, has raised the

following contentions:-

(i) Whether the dying declaration made before the police

officer without there being any corroboration from any

other independent witness in itself is sufficient to convict

the accused with capital punishment.

(ii) When there was sufficient time for the Magistrate to be

called for recording the dying declaration, the statement

made before the Investigating Officer can be treated as

dying declaration and the conviction of the accused with

capital punishment can be sustained.

(iii) When the Doctor-PW 30, in whose presence the

alleged statement “Dying Declaration” was recorded, has

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stated in his deposition that the trachea of the deceased

Sonu @ Savita was torn then whether the dying

declaration made before the Investigation Officer inspire

the confidence to base the conviction on the said sole

statement.

(iv) When all the injuries responsible for causing the

death, as noted in the statement of doctor C.B. Dabbas-

PW 9, who conducted the post-mortem on the dead body,

were on the neck then whether the dying declaration made

before the I.O. can be relied on to base the conviction.

(v) Whether no corroboration of any kind is required to

the dying declaration and the conviction can be based

solely on the dying declaration.

(vi) Whether the High Court is justified in holding that the

lust for property was the motive of the accused persons for

committing the murder.

(vii) Whether the courts below are justified in awarding

death sentence in the facts and circumstances of the case

and principles laid down by this Court.

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5) Mr. Rangaramanujam, learned senior counsel for one

of the appellants reiterated very same contentions relating

to recording of dying declaration by the police officer when

the Magistrate was very well available. He also submitted

that in the absence of any corroborative evidence,

conviction solely on the basis of dying declaration cannot

be sustained. He further submitted that though, the

knife, which was said to be used and recovered,

prosecution has not established the ownership of the

same.

6) Mr. Atri, learned senior counsel for the State has

submitted that in view of the categorical statements by

way of dying declaration by Sonu @ Savita, recorded by

police officer after certifying that she was in a fit state of

mind to make a statement by the doctor coupled with the

admissible portion of Suresh Chauhan PW-2, Arvind

Monga PW-4, Jaswant Singh PW-5, Ct. Kulvinder Singh

PW-8, Dr. C.B. Dabbas PW-9, Dr. Ruma Jain PW-26 and

Dr. Sharat Chandra Jai Singh PW-30, absolutely there is

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no ground for interference. He also highlighted that in

view of aggravating circumstances, eliminating the entire

family and considering the brutality and exceptional

depravity, the appellant-Atbir deserves capital

punishment. The life imprisonment imposed on the other

accused, namely, Ashok is also justifiable and there is no

valid ground for interference and prayed for dismissal of

both the appeals.

7) We have carefully considered the rival contentions and

perused the relevant materials.

8) Among the various contentions raised by both the

sides, major part relates to two legal submissions:-

a) Admissibility and reliability of the dying declaration

made by Sonu @ Savita before the Investigating officer.

b) Whether death sentence insofar as Atbir and life

sentence insofar as Ashok is warranted.

(A) “Dying Declaration”.

It is true that in the case on hand, conviction under

Section 302 was based solely on the dying declaration

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made by Sonu @ Savita and recorded by Investigating

Officer in the presence of a Doctor. Since we have already

narrated the case of prosecution which led to three

deaths, eliminating the second wife and the children of

one Jaswant Singh, there is no need to traverse the same

once again. This Court in a series of decisions

enumerated and analyzed that while recording the dying

declaration, factors such as mental condition of the

maker, alertness of mind and memory, evidentiary value

etc. have to be taken into account.

9) In Munnu Raja and Another vs. The State of

Madhya Pradesh, (1976) 3 SCC 104, this Court held:-

“….It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated….”

It is true that in the same decision, it was held, since the

Investigating Officers are naturally interested in the

success of the investigation and the practice of the

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Investigating Officer himself recording a dying declaration

during the course of an investigation ought not to have

been encouraged.

10) In Paras Yadav and Ors. vs. State of Bihar, (1999)

2 SCC 126, this Court held that lapse on the part of the

Investigation Officer in not bringing the Magistrate to

record the statement of the deceased should not be taken

in favour of the accused. This Court further held that a

statement of the deceased recorded by a police officer in a

routine manner as a complaint and not as a dying

declaration can also be treated as dying declaration after

the death of the injured and relied upon if the evidence of

the prosecution witnesses clearly establishes that the

deceased was conscious and was in a fit state of health to

make the statement.

11) The effect of dying declaration not recorded by the

Magistrate was considered and reiterated in Balbir Singh

& Anr. Vs. State of Punjab, (2006) 12 SCC 283.

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Paragraph 23 of the said judgment is relevant which reads

as under:

“23. However, in State of Karnataka v. Shariff, (2003) 2 SCC 473, this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. This Court therein noted its earlier decision in Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517, wherein it was also held that the dying declaration need not be in the form of questions and answers. (See also Laxman v. State of Maharashtra, (2002) 6 SCC 710).”

It is clear that merely because the dying declaration was not

recorded by the Magistrate, by itself cannot be a ground to

reject the whole prosecution case. It also clarified that

where the declaration is wholly inconsistent or

contradictory statements are made or if it appears from

the records that the dying declaration is not reliable, a

question may arise as to why the Magistrate was not

called for, but ordinarily the same may not be insisted

upon. This Court further held that the statement of the

injured, in event of her death may also be treated as FIR.

12) In State of Rajasthan vs. Wakteng, (2007) 14 SCC

550, the view in Balbir Singh’s case(supra) has been

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reiterated. The following conclusions are relevant which

read as under:

“14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity.

15. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction.”

13) In Bijoy Das vs. State of West Bengal, (2008) 4 SCC

511, this Court after quoting various earlier decisions,

reiterated the same position.

14) In Muthu Kutty & Anr. Vs. State By Inspector of

Police, T.N., (2005) 9 SCC 113, the following discussion and

the ultimate conclusion are relevant which read as under:

“14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with.

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Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.”

15) The same view has been reiterated by a three Judge

Bench decision of this Court in Panneerselvam vs. State of

Tamil Nadu, (2008) 17 SCC 190 and also the principles

governing the dying declaration as summed up in Paniben vs.

State of Gujarat , (1992) 2 SCC 474.

16) The analysis of the above decisions clearly shows that,

(i) Dying declaration can be the sole basis of conviction

if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was

in a fit state of mind at the time of making the

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statement and that it was not the result of tutoring,

prompting or imagination.

(iii) Where the Court is satisfied that the declaration is

true and voluntary, it can base its conviction without

any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that

the dying declaration cannot form the sole basis of

conviction unless it is corroborated. The rule

requiring corroboration is merely a rule of prudence.

(v) Where dying declaration is suspicious, it should not

be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such

as the deceased was unconscious and could never

make any statement cannot form the basis of

conviction.

(vii) Merely because a dying declaration does not contain

all the details as to the occurrence, it is not to be

rejected.

(viii) Even if it is a brief statement, it is not to be

discarded.

(ix) When the eye-witness affirms that the deceased was

not in a fit and conscious state to make the dying

declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the Court is satisfied that it

is true and free from any effort to induce the

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deceased to make a false statement and if it is

coherent and consistent, there shall be no legal

impediment to make it basis of conviction, even if

there is no corroboration.

17) In the case on hand, the Additional Sessions Judge

has found the dying declaration credit worthy and has held

the same to have been made by the deceased in a fit mental

state to depose. The English translation of the dying

declaration, as made by the deceased to Inspector V.S.

Chauhan-PW-41 in the presence of Dr. Sharat Chandra Jai

Singh, PW-30 and as recorded by him, which was registered

as FIR reads thus:

Ms Sonu @ Savita, d/o Shri Jaswant Singh, aged 16

years, r/o – N-33, Mukherjee Nagar, Delhi made the

following statement:-

“I reside at the aforesaid address. My father’s name is Jaswant Singh and that of my mother is Sheela. Today at about 2:30 p.m. My mother Sheela, brother Mannu and myself were present in the house and were doing our work. At that time, my step mother Chandra, her son Atbir, one Ashok and one more person, whose name I do not know, entered our house and demanded money from my mother whereupon, my mother told that she was not having money. Thereafter, Atbir took out a knife while my step mother Chandra, Ashok and the third one caught hold of my brother Manish @ Mannu. Atbir, then stabbed upon my brother and injured him badly. Then, they caught hold of my mother. Atbir also injured my mother badly. Thereafter they caught hold of me and gave several knife blows upon me as a result

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of which I also got badly injured. I have witnessed the incidence. A. PCR Van has brought me (to the hospital). Legal action may be taken accordingly.”

Sd/- Sonu (In English)

Attested

Sd/- V.S. Chauhan

(In English)

Dt. 2.1.1996 S.H.O.

P.S. Mukherjee Nagar,Delhi

‘The statement has been taken in my presence. The patient is in composed mentis.’

Sd/- Sarat Chandra

Jai Singh (In English) Dt. 22.1.1996

C.M.O.(5)”

After making the above declaration she herself signed the

same and it also carries an endorsement by Dr. Sharat

Chandra to the effect that she was in a fit mental state. After

careful analysis, the trial Judge as well as the High Court

found that there is total clarity in its contents and it is not a

case where the deceased was either rambling, unsure or had

contradicted herself. We have already adverted to the several

decisions of this Court holding that there is no compulsion

that all dying declarations have to be made before the

Magistrate. In the case on hand, the incident occurred on

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22.01.1996 at 2.30 p.m., the injured Sonu @ Savita was

admitted in the hospital at 3.30 p.m. and she made

declaration at 4.05 p.m. on the same day. It is also relevant to

note that immediately after recording her statement, doctor

referred her to Emergency Ward to save her life. However, she

died on 24.01.1996 at 12.30 p.m. The Inspector who recorded

the statement was cross-examined and the details and his

evidence was not shattered by the defence, in fact, not even a

suggestion to the Investigation Officer about the availability of

Magistrate at the relevant point of time. Since the statement

of Sonu @ Savita was very brief as to the circumstances and

persons involved who caused brutal injuries on her body as

well as her mother and brother, in addition to the same, Dr.

Sharat Chandra has also certified that at the relevant time she

was in a fit mental state and endorsed the same by putting his

signatures near the signature of the deponent Sonu @ Savita.

In such circumstances, there is no reason to disbelieve the

statement of Sonu @ Savita implicating the three accused

persons i.e. Atbir, Ashok (appellants herein) and Chandra @

Chandrawati (absconding accused).

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18) Learned counsel appearing for the appellants, by pointing

out the nature of injuries on the neck of Sonu @ Savita and

her medical report, contended that it would be highly

improbable to make such a statement after sustaining such

injuries. In order to meet the above contention, the

prosecution has heavily relied on the statements of Dr. C.B.

Dabas-PW-9, Dr. (Mrs.) Ruma Jain-PW-26 and Dr. Sharat

Chandra-PW30.

19) Dr. C.B. Dabas-PW-9, on 25.01.1995, conducted

postmortem examination on the body of the deceased Savita.

He noticed 21 external injuries. After internal examination, he

found the following injuries on the neck:

“Neck: Wounds of the neck were further explode and it was observed that muscles of neck on both sides were cut. Under injury No. 2, 4, 5 and 6. With evidence of surgical devridement and repair. There was infusion of blood in neck tissues and blood rest and blood was still oozing out from neck vessel of rt. Side. Both external jugular veins and left facial artery were cut under injury No. 2 and 4 with surgical cultures present in situ. Right carotid was partially cut under injury No. 6 alongwith the muscles and smaller vessels of blood was still oozing out of the severed vessels. There was a stitched wound on tracheal thyroid. Traches was patent. Other neck structure were intact.”

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Since emphasis was about damage to carotid cartridge, there

is no need to refer his examination about chest, abdomen and

head. It is also relevant to note question and answer and

cross-examination about damage to carotid artery.

“Que: Kindly name the blood vessel which had been severed in injury No. 6?

Ans. Mainly it was right common carotid cartridge and other small vessels.

It is correct that injuries no. 2, 4 and 5 external jugular veins and left facial arteries were cut. It is correct that jugular and carotid artery are major blood vessels. Carotid artery supplies blood to the brain. Carotid artery was partially cut. It is correct that with this partial cut in the carotid artery the blood supply to the brain will be reduced.

Que: Whether this reduced blood supply to the brain will adversely affect the functioning of the brain and will induce coma?

Ans. It will depend upon the amount of blood oozing out of cut in common carotid artery.

I have not given the dimension of the cut in the common carotid artery as described. The bigger the size of the cut in the artery it will speed up the process of affecting the brain function.”

It is clear that according to PW-9, right carotid was partially

cut. Trachea was patent and other neck structures were

intact. He has reiterated the same in cross-examination also.

Inasmuch as the injury on the carotid was partial coupled

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with opinion of Dr. Sharat Chandra PW-30, it cannot be

claimed that she was fully disabled from making any

statement.

20) Dr. (Mrs.) Ruma Jain, PW-26, attached to Hindu Rao

Hospital as CMO, on the date of the incident i.e. on

22.01.1996, in her evidence deposed that on that day at about

3.30 PM Savita was brought by ASI Shanti. She medically

examined her. Though she found her general condition was

not satisfactory she had stated that she was conscious and

responding to verbal command. She also noted various

injuries including the injury on the neck. Though during

cross-examination, she has stated that the drowsiness was

excessive but in respect of a specific question by the Public

Prosecutor, she answered that “I did not indicate the extent of

drowsiness in the MLC Ex.PW26/A. What was mentioned by

me was drowsiness and responding to verbal command.” She

also clarified that before signing her statement before re-

examination she had stated that the word excessive appearing

in the cross-examination should not have been there. If we

analyze the evidence of PW-26, which also makes it clear that

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at the time when Sonu @ Savita was admitted in the hospital

at 3.30 PM though there was indication of drowsiness, the fact

remains that she was responding to verbal command and able

to make a statement.

21) The other doctor examined by the prosecution is Dr.

Sarat Chandra Jai Singh PW-30. In his evidence, he deposed

that on 22.01.1996, he was posted in Hindu Rao Hospital as

Superintendent of Surgery. On that day injured Sonu was

brought to the hospital and she was medically examined by

Dr. Tomar, Casualty Medical Officer and he had opined

injured to be fit for statement on the MLC Ex.PW-26/A. His

further statement and assertion are as follows:-

“On that day Insp. V.S. Chauhan had met me at MLC Ward and he had told me that a dying declaration was to be recorded by him (by the Insp.). On the request of Insp. Chauhan I medically examined injured Ms. Sonu. She was mentally fit to maker her statement i.e. she could understand the questions and could answer the questions put to her. After I certified the injured to be medically fit for statement Insp. V.S. Chauhan had recorded the statement of injured Ms. Sonu Ex. PW4/A in my presence and I made my endorsement Ex. PW-30/A to the erect that the statement had been taken in presence and the patient was in composed mentis and the endorsement bears my signatures at point P. Insp. Chauhan had read over statement Ex. PW 4/A to the injured Ms. Sonu and she signed statement at point Q in token of correctness of her statement.”

In the cross-examination, he deposed that:

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“When Insp. Chauhan was recording the statement of Ms. Sonu I heard her statement and then after the recording of this statement was over, Insp. Chauhan read over the statement to me and at that time Ms. Sonu was also there and then I signed this statement by giving my endorsement. It is correct that I did not mention in my endorsement Ex. PQ 30/A that Insp. Chauhan read over this statement. To me and Ms. Sonu. During this time, Ms. Sonu was in surgical emergency ward. Patient had stab injuries and the injuries were pleading profusely.”

PW-30 also asserted that immediately after her statement,

Sonu was taken to surgical emergency ward, since she had

stab injuries and was bleeding profusely. It was in evidence

that she was continuously in the emergency ward and

ultimately died on 24.01.1996 at 12.30 PM. This was the

reason that because of her critical position after admission

and making her statement, the Magistrate could not be

secured to record her statement.

22) The evidence of PW-26 and PW-30, who had treated

Sonu, indicate that immediately after admission in the

hospital at 3.30 PM on 22.01.1996 and at the time of making

statement at 4.05 PM she was in a fit condition. It is also

clear that immediately after her statement because of the

injuries she was taken to emergency ward and she was kept

therein till her death on 24.01.1996. It is also clear that in

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respect of injury on the carotid in view of the fact that it was

only partially cut and able to speak and inform what had

happened at 2.30 PM, her statement to Inspector P.S.Chauhan

PW-41 in the presence of Dr. Sarat Chandra Jai Singh PW-30

is legally permissible and admissible in evidence. The learned

trial Judge has rightly relied on those materials and the High

Court correctly approved the same. We accept the said

conclusion and reject the contentions raised by Mr. Sinha and

Mr. Rangaramanujam.

(B) “Motive”

The prosecution has also proved motive. It is abundantly

clear from the evidence of Jaswant Singh, PW-5 that when

Satbir and his brother Atbir demanded 25-26 Bighas of

agricultural land in Bulandshahar, U.P. though agreed but

executed a Will (Ex. PW-5/D) bequeathing those lands in their

favour but the same was not acceptable by his sons,

particularly Atbir and he apprehended that because of the

presence of his step-mother and her children, he may not get

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properties of his father, both movable and immovable, at once.

Since this was in his mind and in consultation with his

mother Chandra @ Chandawati, he planned to eliminate the

entire family of Sheela. These aspects have been amply

projected by the prosecution and rightly accepted by the trial

Court and the High Court.

(C) Death sentence

24) When the constitutional validity of death penalty for

murder provided in Section 302 of the Penal Code and

sentencing procedure embodied in sub-section (3) of Section

354 of the Code of Criminal Procedure, 1973, was questioned,

the Constitution Bench of this Court in Bachan Singh v.

State of Punjab, (1980) 2 SCC 684, after thorough

discussion, rejected the challenge to the constitutionality of

the said provisions and ruled that “life imprisonment is the

rule and death sentence an exception”. It has also noted that

“Aggravating as well as “Mitigating Circumstances” to be

considered for imposition of sentence of death.

“Aggravating Circumstances

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(a) If the murder has been committed after previous

planning and involves extreme brutality; or

(b) If the murder involves exceptional depravity; or

(c) If the murder is of a member of any of the armed forces

of the Union or of a member of any police force or of any

public servant and was committed:-

(i) While such member or public servant was on

duty; or

(ii) In consequence of anything done or attempted to

be done by such member or public servant in the

lawful discharge of his duty as such member or

public servant whether at the time of murder he

was such member or public servant, as the case

may be, or had ceased to be such member or

public servant; or

(d) If the murder is of a person who had acted in the lawful

discharge of his duty under Section 43 of the Code of

Criminal Procedure, 1973, or who had rendered

assistance to a Magistrate or a police officer after

demanding his aid or requiring his assistance under

Section 37 and Section 129 of the said Code.”

“Mitigating 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.

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(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 the 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.”

25) A three-Judge Bench in Machhi Singh vs. State of

Punjab, (1983) 3 SCC 470 after analyzing the Constitution

Bench decision in Bachan Singh (supra), held the following

propositions for determination of rarest of rare cases:-

“Death Sentence

32. The reasons why the community as a whole does not endorse the humanistic approach reflected in ‘death sentence-in-no-case’ doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of ‘reverence for life’ principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety

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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. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for 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 sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance: I. Manner of commission of murder 33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house;

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death; (iii) when the body of the victim is cut into pieces or his

body is dismembered in a fiendish manner; II. Motive for commission of murder

34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course of betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime 35. (a) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to

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reverse past injustices and in order to restore the social balance. (b) In cases of ‘bride burning’ and what are known as ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime 36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder 37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.”

26) In this background, the guidelines indicated in Bachan

Singh’s case (supra) have to be culled out and applied to the

facts of each individual case where the question of imposing of

death sentence arises. The following propositions emerge from

Bachan Singh’s case:

“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an

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altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

In order to apply these guidelines, inter alia, the following

questions may be asked and answered:

“(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?”

If upon taking an overall global view of all the circumstances

in the light of the aforesaid proposition and taking into

account the answers to the questions posed hereinabove, the

circumstances of the case are such that death sentence is

warranted, the Court would proceed to do so.

27) In view of the principles culled out from the earlier

decisions, let us find out whether the present case would fall

in the category of rarest of the rare case warranting death

sentence.

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28) It is seen from the evidence of Jaswant Singh, PW-5 that

he had married one Chandra @ Chandrawati in the year 1963.

Three children, namely, Satbir, Atbir and Anju were born to

them. However, in 1971 Jawant Singh had deserted his wife

Chandra and in 1973 he married Sheela Devi, the deceased,

as his second wife. Two children, namely, Sonu @ Savita and

Manish @ Manu were born from the second wife. It is further

seen from the evidence of Jaswant Singh that his first wife’s

son Satbir visited him and demanded transfer of agricultural

land of 25-26 bighas in Bulandshahar, U.P. in favour of

himself and Atbir. Though Jaswant Singh agreed to the

request but executed a Will (Ex. PW-5/D) in 1995 bequeathing

those lands in favour of Satbir and Atbir. It is further seen

that these two sons, namely, Satbir and Atbir were insisting

on immediate transfer by way of a registered document. In

addition to the same, they also demanded a house in Mathura

or share in House No. N-33 Mukherjee Nagar, Delhi. It is the

categorical stand of Jaswant Singh that Atbir, Satbir and

Chandra used to demand money. They also threatened that if

he fails to pay the money as demanded, they would kill him.

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The fact that Atbir was not in a position to enjoy the lands as

demanded and his father refused to pay money made Atbir

and her mother to take some drastic steps. It is also their

grievance and in their mind that because his father wants to

part with major properties in favour of Sheela, second wife,

and their children Sonu @ Savita and Manish @ Mannu, it is

in their mind that so long as the second wife and her children

were alive, he and his brother may not get any thing and

decided to do away with the family of Sheela. In other words,

all the accused persons including Atbir felt that they would

not get their legitimate share in the property as long as Sheela

and her children are alive and, therefore, they should do away

with. As rightly observed by the trial Court and the High

Court, this could provide a strong motive to the accused

persons for committing the crime.

29) As argued before the Courts below, learned counsel for

the appellant has raised a similar contention stating that Atbir

was a young man of 25 years and already spent ten years in

jail, that itself is a sufficient punishment for the crime. He

also highlighted that he had no past history of any crime and

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it cannot be claimed that it is impossible to change his state of

mind in the future. He also pointed out that Atbir’s main aim

was to grab the property of his father immediately that too

without giving a share to anyone. By pointing out these

mitigating circumstances and the legal principles as

formulated in Bachan Singh’s case and Machhi Singh’s

case, prayed for leniency and according to him, punishment

of death sentence is not warranted.

30) It is relevant to mention that Jaswant Singh, father of

Atbir deserted his first wife and their children in 1971. Atbir

and his brother Satbir had some grievance about their father

for deserting their mother and living with Sheela Devi – second

wife and her children. Apart from the same, Atbir demanded

land and house property and money immediately, though his

father Jaswant Singh agreed and executed a Will. Since the

properties would come to his hands only after the demise of

his father, Atbir along with other accused persons committed

this ghastly crime. As rightly observed by the courts below,

among the three accused, Atbir planned for the crime which

was executed in a brutal manner and decided to wipe out the

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entire family so that his father would leave all the properties

and money in their favour.

31) The manner in which three persons were brutally

murdered shocks the conscience. The aggravated accused,

under the leadership of Atbir, reached the house of Sheela

Devi and initially demanded money and bolted the door from

inside and, thereafter, inflicted 11 cut injuries on Manish

@Mannu by Atbir when the others caught hold of him. After

finishing him, Atbir inflicted 5 grievous injuries on deceased

Sheela mercilessly. He also inflicted another 21 injuries on

the deceased Sonu @ Savita ignoring her tender age. The

manner in which Atbir first stabbed Manish @ Mannu followed

by Sheela and then Sonu @ Savita showed that there was a

determination to finish the entire family so that he and his

brother enjoy the entire property and money immediately.

32) Another aggravating circumstance is that the crime had

been committed and executed after closing the doors with all

the three deceased being left helpless and unarmed. Closing

of the door and bolting it from inside clearly shows the

determination to complete the crime and take away the life of

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all the three. Among them, two of them were in the young age

and they could not be provoked and instigated in any manner.

33) It is seen from the evidence of the Doctors particularly,

Post-mortem Doctor, that the accused Atbir inflicted as many

as 37 knife injuries on the body of three innocent persons. A

perusal of the post-mortem reports of the three deceased

clearly shows the nature of the injuries inflicted on all the vital

parts and the accused Atbir continued his action mercilessly

till all the three lost their breath. Fortunately, before the

death of Sonu @ Savita, she was taken to the hospital where

she made a statement to the effect that how they were killed

by the accused particularly, by Atbir. She categorically

mentioned that it was Atbir who took out the knife and

inflicted stab blows on all the three deceased. We have

already mentioned the fact that Atbir inflicted 37 knife blows

which resulted in the death of three persons.

34) After analyzing all the relevant materials let in by the

prosecution and in the light of the well established principles

including aggravating and mitigating circumstances as laid by

the Constitution Bench in Bachan Singh’s case (supra) and

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explained in Machhi Singh’s case (supra), we conclude the

murders committed by Atbir is extremely brutal and diabolical

one. The cold blooded murder is committed with deliberate

design in order to inherit the entire property of Jaswant Singh

without waiting for his death. The magnitude of the crime is

also enormous in proportion since Atbir, with the assistance of

his mother and brother, committed multiple murders of all the

members of the family. Apart from this, the victims are none

else than his step-mother, brother and sister. The victims are

innocent who could not have or has not provided even an

excuse much less a provocation for murder. Further, the

victims were unaware of the sudden entry of Atbir and others

and after bolting the door from inside, they have no other way

to go out or resist except subjecting themselves to the wishes

of Atbir. Though the accused Atbir was also at the age of 25 at

the relevant point of time considering his hunger and lust for

property killing his own family members when they had no

occasion to provoke or resist and causing 37 knife blows on

vital parts of all the three persons, we conclude that it is a

gravest case of extreme culpability and rarest of rare case and

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death sentence alone would be proper and adequate. We have

already noted that the accused had no justifiable ground for

his action. We are also satisfied that the victims were helpless

and undefended. Taking into consideration of all the facts and

materials, it is crystal clear that the entire act of Atbir

amounts to a barbaric and inhuman behaviour of the highest

order. The manner in which the murder was carried out in the

present case is extremely brutal, gruesome, diabolical, and

revolting as to shock the collective conscience of the

community.

35) In the light of the above discussion, we confirm the

conviction and sentence of death imposed on Atbir and the

same shall be executed in accordance with law. We also

confirm the conviction and sentence of life imprisonment

imposed on Ashok.

36) Consequently, both the appeals are dismissed.

...…………………………………J. (P. SATHASIVAM)

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...…………………………………J. (DR. B.S. CHAUHAN)

NEW DELHI; AUGUST 9, 2010.

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ATBIR Vs GOVT. OF N.C.T OF DELHI

ATBIR Vs GOVT. OF N.C.T OF DELHI