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CASE NO.: Appeal (crl.)  1621 of 2007

PETITIONER: Prajeet Kumar Singh

RESPONDENT: State of Bihar

DATE OF JUDGMENT: 02/04/2008

BENCH: P.P. NAOLEKAR & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO. 1621 OF 2007

P.P. NAOLEKAR, J.:

1.      This appeal arises out of the order of confirmation in Death  Reference No. 1 of 2004 & order in Criminal Appeal No. 4 of 2004  filed by the accused-appellant, whereby the High Court was of the  view that in the facts and circumstances the case falls under the  purview of ‘rarest of the rare case’ and, thus, the death sentence  imposed on the accused-appellant is completely justified. 2.      The proceedings in the matter arose in the following facts:  In  the fardbeyan of Pawan Kumar Thakur (PW-3), it is said that the  accused Prajeet Kumar Singh, a friend of Prakash Kumar (PW-1)  (son of the informant), was living in the house of PW-3 at Supriya  Road in Mirja Toli of Bettiah Town for the last four years and was also  taking his meals for which he was paying Rs. 500/- per month.   However, for the last several months, he had not paid the amount  and owed Rs.4,000/- altogether as rent for the house and for food to  the informant for which the informant was making demands regularly.   Four-five days before the incident, when the informant made a  demand, the accused said that he was going home to bring money  and thereafter he went home.  The day before the incident, the  accused came back at 3.00 p.m.  After having dinner, when the  informant asked the accused for the dues, the accused told him that  he should accompany him to his home where he would be paid his  money.  Thereafter, the informant and his wife went to sleep in their  room which was on the third floor of the house.  The accused also  went to sleep in the adjoining room on the third floor.  All the children  of the informant were sleeping on the second floor.  At night, the  informant and his wife heard the noise of crying from the second floor  and they suspected that the children had been quarrelling.  Both of  them came down and saw that the accused having picked up dab  (dagger like weapon) from the house, had murdered their younger  son Deepak Kumar.  When the accused noticed the informant and his  wife, he caused injury to them and their elder son Prakash Kumar,  daughter Kiran Kumari and niece Pooja Kumari, using the same dab.   During the course of investigation, the involvement of three more  persons came to light to the investigating agency and chargesheet  was submitted against the four persons, namely, accused No.1 (the  appellant herein) Prajeet Kumar Singh, accused No.2 Ram Badai  Singh, father of accused No.1 as well as Ajit Singh, brother of  accused No.1 and Chandra Bhushan Pandey, relative of accused  No.1.  During the course of trial, two accused Ajit Singh and Chandra  Bhushan Pandey remained absent and their cases were separated.   The trial proceeded against two persons only, namely, the accused- appellant and his father.

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3.      The accused-appellant has been charged under Section 302 of  the Indian Penal Code (for short "the IPC") for committing the murder  of informant’s son Deepak Kumar, aged about 16 years, daughter  Kiran Kumari, aged about 15 years and niece Pooja Kumari, aged  about 8 years, and further under Section 307, IPC for attempting to  commit the murder of the informant Pawan Kumar Thakur (PW-3)  and his wife Geeta Devi (PW-2).  The Session Court found him guilty  of the offence under Section 302, IPC and sentenced him to death  penalty.  He was also found guilty of the offence under Section 307,  IPC.  However, as the extreme penalty of death was imposed on the  accused-appellant, the Session Court did not impose a separate  sentence under Section 307, IPC.  Father of the accused-appellant,  Ram Badai Singh, has been charged for the offences under both the  Sections read with Section 34, IPC.   However, he was acquitted of  the charges framed against him as the evidence of the witnesses that  when the accused fled away from the place of incident after jumping  from the top floor, they saw in the light the other accused also present  beneath the house along with other persons, was not believed by the  Session Court.  The High Court has accepted the death reference  and dismissed the appeal filed by the accused-appellant.  4.      It is contended by Ms. Ranjana Narayan, the learned Amicus  Curiae that on a minute scrutiny of the evidence of the eye-witnesses  examined by the prosecution, it is clear that the prosecution has  failed to prove its case beyond reasonable doubt and thus the  appellant should have been acquitted of the charges framed against  him.  Learned Amicus Curiae submitted that in any case, in the facts  and circumstances of the case, the offence committed by the  accused-appellant does not fall within the purview of ‘rarest of the  rare case’ and, therefore, the courts below should not have imposed  death sentence on the accused-appellant. 5.      To prove the case against the accused-appellant, the  prosecution examined Prakash Kumar (PW-1), son of the informant  Pawan Kumar Thakur (PW-3), Geeta Devi (PW-2), wife of PW-3 and  the informant Pawan Kumar Thakur himself (PW-3), who are the  injured witnesses residing in the house where the incident took place  in the night between 18th & 19th April, 1998 at about 2.30 a.m.   The  prosecution also examined three doctors, namely, Dr. Mahashray  Singh (PW-5) who conducted the post-mortem of Deepak Kumar on  19th April, 1998, Dr. Madhusudan Shukla (PW-6) who did the autopsy  on the dead bodies of Kiran Kumari and Pooja Kumari on 19th April,  1998 and Dr. Ganga Narayan Singh (PW-7) who examined PW-1,  PW-2 and PW-3 in the afternoon of 19th April, 1998.   6.      It has come in the evidence of Prakash Kumar (PW-1) that he  was 19 years of age at the time of the incident and is the son of  Pawan Kumar Thakur (PW-3).  PW-1 studied in the same school with  the accused-appellant and they were classmates.  The accused used  to pay frequent visits at the house of PW-1 and during this period  came in close contact with the family members of PW-1.  Three to  four years prior to the occurrence, the accused requested the family  members of PW-1 to allow him to stay with them and in return he  would pay Rs.500/- for lodging & boarding and since then he had  started living with them.  Five to six months before the occurrence,  the accused stopped making payment but assured that he would get  the money from his home and pay it.  In the afternoon of 18th April,  1998, Ram Badai Singh, the other accused charged for the offence  and father of the accused-appellant, Ajit Singh, brother of the  accused-appellant and Chandra Prakash Pandey, a relative of the  accused-appellant came to the residence of PW-1, at about half past  four and enquired about his father on which he said that his father  had gone to the market.  At that very time, two other persons Aseshar  Pandey and Sukhaj Pandey came to the residence and they  conveyed the message that his father was supposed to deposit the  money in the bank and not spend it.  During the conversation, the  accused and his relatives were present and thereafter the accused  left the residence with the relatives.  After dinner,  PW-1 went to sleep

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in his room on the second floor and his two sisters Kiran Kumari and  Pooja Kumari and his younger brother Deepak Kumar were sleeping  in another room adjacent to the said room.  On the night intervening  18th and 19th April, 1998, he woke up to the sound of screaming,  crying and knocking of the door. He saw the accused assaulting his  younger brother Deepak Kumar and as a result thereof his brother  got injured and fell down on the floor.  When he tried to intervene, the  accused gave him a blow on his head with a dabiya which resulted in  a cut that extended below the left eye.  Thereafter, he gave him a  push.  He saw his two younger sisters Pooja Kumari and Kiran  Kumari crying in an injured condition. His father and mother were  asleep on the 3rd floor and on hearing the commotion, they came  down to the 2nd floor.  The accused assaulted his father and mother  with dabiya and thereafter fled towards the 3rd floor of the house.  It is  then said that he looked through the window and identified the father  of the accused Ram Badai Singh, his brother Ajit Singh and relative  Chandra Bhushan Pandey and two unknown persons who had come  to his residence earlier during the day time and saw them fleeing  towards the north direction towards the railway line.  In the cross- examination, PW-1 admitted that during the period of last four years  when the accused used to stay in his house the witness did not come  across any enmity of the accused, nor did he get to know anything  about his bad habits.  7.      Another witness examined by the prosecution is PW-2 Geeta  Devi, the wife of the informant.  According to her, the occurrence took  place at 2.30 in the midnight of 18th and 19th April, 1998.  On 18th  April, 1998, the accused came to the house and went to the 3rd floor  of the house where his room was situated. The accused had been  staying in their house for the past four years, he being the friend of  her son PW-1.  He used to pay Rs.500/- per month as monthly rent.   Though he had not paid that amount for quite some time, a sum of  Rs.4000/- was due from him.  The accused had assured her husband  that he would get the said amount from home.  At 2.30 a.m., they  woke up due to lot of noise and screaming by their children.  They  thought that their children were quarrelling among themselves so they  descended from the 3rd floor to the 2nd floor.  They saw that accused  Prajeet Kumar with his dabiya  assaulted their younger son Deepak  who had succumbed to his injuries.  The accused had also assaulted  Pooja Kumari, Kiran Kumari and Prakash Kumar as a result of which  they were bleeding profusely and were running inside the room here  and there to save themselves.  Her husband tried to prevent the  accused and she approached her children to save them.  But the  accused intervened and attacked her on her head and on the right  side of her shoulder with the dabiya  as a result of which she  sustained injuries and tumbled on the floor.  The accused also  assaulted her husband PW-3 with the dabiya  as a result of which her  husband sustained a deep cut injury on the right side of his face from  the eye to the lower portion of the cheek and a deep cut injury was  caused on the left side of his neck.  The accused assaulted her  husband indiscriminately with the intention to kill him who tried to  avoid the assault with the help of a cricket stump.  Thereafter, the  accused fled  to the 3rd floor.  This witness stated that she fell  unconscious after that.  In her cross-examination, she said that the  accused used to visit her room to watch T.V. and had been staying at  their house for four years prior to the occurrence.  She had never  seen the accused indulging in any ill-minded activities.   8.      According to the informant witness PW-3 Pawan Kumar  Thakur,  the occurrence took place at 2.30 in the midnight of 18th and  19th  April, 1998, at which time he was sleeping in his room with his  wife and woke up to the sound of screaming, which he thought was a  quarrel between the children.  He came to the 2nd floor and saw that  the accused was holding a dabiya  in his hand and had assaulted his  younger son and had killed him.  He also saw that the accused had  assaulted his elder son Prakash Kumar, daughter Kiran Kumari and  niece Pooja Kumari with an intention to kill them.  He tried to prevent

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the accused and his wife tried to rescue the children.  In the process,  the accused inflicted dab  blows on the right rib of his wife;  with the  same dabiya,  another blow was inflicted on the elbow of her left hand  and she started bleeding profusely and she ultimately tumbled on the  floor.  Thereafter, Prajeet Kumar inflicted a blow on his face below the  right eye with the same dabiya.  He said that he defended himself  with the help of a cricket stump.  Thereafter, Prajeet Kumar fled to the  upper floor of the house.  The cross-examination of this witness has  not brought out any material so as to doubt the veracity of the  statements made by the eye-witnesses to the occurrence.   9.      Deepak Kumar, Kiran Kumari and Pooja Kumari succumbed to  the injuries sustained by them.  The post mortem was conducted by  PW-5 Dr. Mahashray Singh and PW-6  Dr. Madhusudan Shukla.  All  the three injured witnesses were examined by PW-7 Dr.Ganga  Narayan Singh.  On 19th April, 1998, PW-5 Dr. Mahashray Singh  conducted post-mortem on the dead body of Deepak Kumar, aged  about 16 years, and the following ante mortem injuries were found on  the body of the deceased: (1)     Incised wound over the right cheek 2" x 1" x muscle deep; (2)     Incised wound over the occipital region of the head size 4" x 1"  (torn) x bone deep; (3)     Incised wound over the back of the neck transversely 4" x 1" x  bone deep; (4)     Incised wound over the right scapular region 4" x 2" x bone  deep; (5)     Incised wound from shoulder to the mid of upra 8" x 3" x bone  deep; (6)     one incised wound transversely over the shoulder joint 3" x 1"  humeral head transversally; (7)     Incised wound over the right elbow 2" x 1" bone deep; (8)     Incised wound over the right forearm 3" x 1" bone deep; (9)     Incised wound over the right hand 3" x = "  bone deep; (10)    Incised wound over the right forearm from the base of the  middle finger to the lower part of the forearm 6" x 2" bone deep; (11)    Incised wound over the left hand 2" x 1" x bone deep; (12)    Incised wound over the left palm. All the thinner muscle  up to carpel bone were cut; (13)    Incised wound over the left temporal region of the (faint)  2" x 2" x up to bone.

All the injuries were ante mortem in nature and caused by sharp  cutting substances. The doctor was of the opinion that the death was  caused due to haemorrhage and shock due to above mentioned  injuries. These injuries are sufficient to cause death in normal  circumstances.  10.     PW-6 Dr. Madhusudan Shukla conducted post mortem on the  dead body of Kiran Kumari. The external appearances and injuries  found on the dead body were to the effect that the eyes were closed,  mouth open, fists clinched, bleeding from nostril. R. M. present, dried  blood smear present on chest, neck and on feet. Stitched wound on  front and left side of the neck. After opening the stitches, there was  an incised wound 4" x =" x 1" deep. Trachea was found cut. The  muscles and jubular vessels on the left side of the neck were found  cut. The doctor stated that the above injuries were caused by sharp  cutting substance and ante mortem in nature. In the opinion of the  doctor, the cause of death was due to shock and haemorrhage due to  the above noted injury. 11.     On the same day at 5.30 p.m., PW-6 conducted post mortem  on the dead body of Pooja Kumari, niece of PW-3. The following  injuries were found on the dead body: Injury No 1:  Stitched wound on the right side of the face. After  opening the stitches there was an incised wound of 5" x >" x  bone and brain cavity deep. The wound extends from right ear  to the skull. The parietal bone of the right side was found cut  and brain matters were found peeping out from the cut portion

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of the bone. Injury No. 2: Stitched wound on upper portion of right arm. After  opening the stitches the wound was an incised wound 3" x 1" x  none deep. The head of humerus was found cut through and  through. Injury No. 3: Stitched wound on upper portion of right wrist on  its dorsem. After opening the stitches, the wound was an  incised wound 2 1/2" x >" x none deep. The bone beneath the  wound were found cut. Injury No. 4: Stitched wound on the dorsem of the left hand.  After opening the stitches, the wound was an incised wound 1  =" x >" x none deep. The vessels and bones beneath the  wounds were found cut.  The doctor stated that the above injuries were ante mortem in nature  and caused by sharp cutting substance. In his opinion, the cause of  death was due to shock and haemorrhage as a result of above noted  injuries. The injuries found on the dead body were sufficient to cause  death in ordinary course. 12.     PW-7 Dr. Ganga Narayan Singh in his deposition stated that he  examined PW-3 Pawan Kumar Thakur on 19th April, 1998 in the  M.J.K. Hospital in emergency room and found following injuries on  the person: 1)      Incised wound on right cheek extending from right angle of  mount to right temporal region 10" x 1" x muscle deep. 2)      Incised wound on left side of neck 1" x =" x muscle deep.  Age of injuries was stated to be within 12 hours, caused by sharp  cutting weapon and grievous in nature. Disfiguration of face was  stated to be caused by sharp cutting weapon and dangerous to life.  

On the same day and place at about 2.10 a.m., Geeta Devi (PW-2)  was also examined by PW-7 and the following injuries were found: 1)      Incised wound on scalp right side \026 1 =" x =" x scalp deep. 2)      Incised wound right shoulder region 1" x 1" x muscle deep. 3)      Incised wound left elbow and forearm 1" x 1" x muscle deep. It was stated by the doctor that the age of injuries was within 12  hours; the  injuries were caused by sharp cutting weapon and were  simple in nature; and if timely and proper treatment had not been  provided the patient might have died.   On the same day and place at about 2.50 a.m., PW-7 examined  Prakash Kumar (PW-1).  The following injuries were found on his  person: 1)      Incised wound on the left side of the skull 1" x =" x scalp deep. 2)      C.T. scan of cranium. Report given by the radiologist P.M. C.H.  dated 24th April, 1998 shows that one bony window fractured of  left parietal bone no. 230/1998.  Injury No. 2  was noted as grievous.  

13.     PW-17 Dr. Bishnu Kant Pandey stated that on 19th April, 1998  he was working on the post of R.S.O. in the unit of Dr. Ramesh  Prasad Singh.  He stated that on the basis of the discharge ticket it  appears that on 19th April, 1998 Geeta Devi, Pawan Thakur and  Prakash Thakur were admitted in the said unit for treatment. 14.     The evidence of the three eye-witnesses is cogent and points to  the guilt of the accused-appellant.  They were injured in the same  incident wherein the three persons were killed.  They were residing in  the house where the incident happened and their presence at the  time of the commission of crime cannot be doubted.   The evidence of  the informant-PW3 is supported by the First Information Report which  was recorded at 4.00 a.m. by SI of town P.S. Bettiah at M.J.K.  Hospital, where they were taken by the patrolling party which had  arrived at the place of the incident after receiving the information.   The statements of the witnesses implicating the accused-appellant in  the commission of crime and the injuries caused to them and the  deceased  persons  are  fully supported by the medical evidence.   PW-1, PW-2 and PW-3 having been the residents of the same house,

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their presence at the place of occurrence in the dead hours of night   and they having witnessed the incident, cannot be ruled out.  These  witnesses are close and direct relations of the deceased children and,  therefore, implicating a false person, leaving out the actual culprit, is  highly improbable and unacceptable.  These witnesses corroborate  each other in the material particulars and the manner in which the  incident happened.  PW-3 and PW-2 at the relevant time were in their  room on the 3rd floor and came down on hearing the noise to the 2nd  floor where they watched the drastic act being committed.  When they  tried to intervene, they were also attacked.  PW-1 was in the  adjoining room where the incident happened and he came to the  place of incident immediately after hearing the noise.  Nothing has  been brought about in the cross-examination to disbelieve the ocular  version of the witnesses.  Two courts below on detailed scrutiny of  the evidence of these witnesses, did not find any infirmity in the  evidence pointing finger towards the accused-appellant.  We have  also considered the evidence of PW-1, PW-2 and PW-3.  We have no  doubt that the statements of the witnesses fully proves the guilt of the  accused-appellant in the commission of murder of three persons and  causing grievous injuries to the witnesses. 15.     The next question is as to what punishment should be imposed  on the accused-appellant.   16.     It is submitted by the learned counsel for the State that  considering the nature of the offence committed by the accused- appellant, the punishment of death sentence will be appropriate  punishment, whereas it is urged by the learned Amicus Curiae that in  the facts and circumstances of the case the case does not fall within  the four corners of the ‘rarest of the rare case’ and, thus, the  imposition of death sentence would not be appropriate sentence. 17.     A Constitution Bench of this Court in the case of Bachan Singh  v. State of Punjab, (1980) 2 SCC 684, has laid down certain  guidelines for imposing death sentence which have been culled out  by a 3-Judge Bench of this Court in Machhi Singh and Others v.  State of Punjab, (1983) 3 SCC 470, and accordingly the following  propositions emerge from Bachan Singh: (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 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.

The Court thereafter observed that in order to apply these guidelines,  the following questions may be 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?

18.     In Machhi Singh, a 3-Judge Bench following the decision in

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Bachan Singh observed that in rarest of the rare cases when  collective conscience of the community is so shocked that it will  expect the holders of the judicial power to inflict death penalty  irrespective of their personal opinion as regards desirability or  otherwise of retaining death penalty, the Court said that the  community may entertain such a sentiment in the following  circumstances: I.      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. II.     When the murder is committed for a motive which evinces  total depravity and meanness. III.    (a) When murder of a member of a Scheduled Caste or  minority community, etc., is committed not for personal reasons  but in circumstances, etc., which arouse social wrath.  (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.     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.      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-‘-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.

19.     The guidelines laid down in Bachan Singh and Machhi Singh  have been followed by this Court time and again in various cases and  the courts are considering the imposition of death sentence in the  light of the guidelines laid down aforesaid. 20.     In the present case, the accused-appellant was living as a  family member of PW-3 and PW-2 and was provided with shelter and  meals, although for a sum of Rs.500/- per month, being a friend of  PW-1.  He lived with the family not for a month or two, but for a  continuous period of four years.   There does not appear to be any  apparent provocation or reason for committing the ghastly brutal  murder of three innocent defenceless children who were aged 8, 15  and 16 years.  We can safely assume that the time at which the  incident happened, the children must be asleep and were not in  a  position to defend themselves.  It has come in the evidence of PW-1,  PW-2 and PW-3 that the accused-appellant had assaulted them  when they were running here and there to save themselves.   The  medical evidence led by the prosecution indicates the brutality in the  commission of crime.  Several incised wounds were caused to the  deceased persons.  The victims apparently did not have any weapon  with them.  When PW-3 (informant) and PW-2 (his wife) on hearing  the noise came down to find out the cause for it and entered the  room, they were also brutally attacked without the slightest of  consideration by the accused-appellant that he had lived with them  for four years.  Not only that, when his friend on whose account he  was accommodated in the house reached the place of incident on  hearing the noise of his brother and sisters, he was also attacked and  seriously injured.  It is clear from the material placed on record by the  prosecution that all these persons were unarmed and the accused- appellant was the only person in the room having the deadly weapon  in his hand.   He could have escaped from the place giving the threat  to the persons without causing any harm to the witnesses, but he  acted in a different manner.  The enormity of the crime is writ large.  

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The accused-appellant caused multiple murders and attacked three  witnesses.  Thus, all the members of the family who were present on  that day in the house became the victims of the accused.  The  brutality of the act is amplified by the manner in which the attacks  have been made on all the inmates of the house in which the helpless  victims have been murdered, which is indicative of the fact that the  act was  diabolic of the superlative degree in conception and cruel in  execution and does not fall within any comprehension of the basic  humanness which indicates the mindset which cannot be said to be  amenable for any reformation.   21.     In view of the aforesaid facts, we are of the view that there  would be failure of justice in case death sentence is not awarded in  the present case.  The case falls in the category of the rarest of the  rare cases.  The Session Court and the High Court were justified in  imposing death sentence on the accused-appellant. 22.     For the aforesaid reasons, the appeal is dismissed.