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PETITIONER: RAVINDRA TRIMBAK CHOUTHMAL

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       23/02/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAY, G.N. (J)

CITATION:  1996 SCC  (4) 148        JT 1996 (5)   336  1996 SCALE  (2)368

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA, J.      To hang  or not  to hang,  is the  basic question to be decided in this appeal. The murder of Vijaya was undoubtedly most foul.  Even so,  death sentence an be awarded if murder be of  the "rarest of the rare" type. Let it be seen whether this was so. 2.   The facts  taken as  established by  the High Court, to whom reference  was made  after the  trial court had awarded the death  sentence and  appeals were  preferred,  are  that Vijaya got  officially married to the appellant on April 24, 1990. This was against the wishes of his father Trimbak, who had wanted to get his son married to some other girl and had hoped for  good dowry  from that marriage. Vijaya could live only for  a couple  of days  with  her  husband  before  she returned back  to her  parents’ house, because she felt that she was persecuted by Priyatama, sister of the appellant. On return to  her parents’  house, she  told her father Ashruba about the demand of dowry made by Trimbak and the appellant. The demand  was of  Rs.25,0O0/-. Ashruba,  however, being an employee  with  meagre  salary,  could  agree  to  pay  only Rs.5,000/-. The  further accepted  case is  that on or about December 2,  1990, the  appellant took  Vijaya to Bombay. On December 14,  1990, Trimbak  and his wife Mudrikabai came to Bombay. All  of them  were seen  together at about 9.15 p.m. Thereafter nobody saw ViJaya alive. 3. Vijaya  had been  taken to Bombay with a promise that she would be  sent back  on January  3, 1991 for delivery at her parents’ house,  as she  was carrying  a child  of  about  8 months then.  As she  did not  come even 8-10 days after 3rd January, Ashruba  got worried as to what had happened to her daughter. He  sent his two sons to Bombay who. alongwith two of their  friends, reached there on 15th January. On inquiry being made from the appellant about Vijaya, it was told that she was  in good  health.  On  desiring  to  meet  her,  the

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appellant,  who   was  then   a  lecturer  in  Sardar  Patel Engineering College at Andheri, said that he would take them to the house at about 4 p.m. when she could be met. The four persons then  left for  Juhu Beach  and when  came  back  to College around  4 p.m.  they came to know that the appellant had already  left without  leaving any message. After making inquiries about  the residential  address they  reached  the place to  be informed  that the appellant and his father had left with  bags and  baggage. About  Vijaya, neighbors  told that she  had been  sent to her parents’ house for delivery. This shocked  the boys  and they apprehended some foul play. Coming back to Aurangabad (the town where the parents lived) they narrated  to  Ashruba  what  had  happened  at  Bombay. Further inquiries  were made  at Bombay  to be given out the same story. 4. This  led Ashruba  to lodge a complaint at Borivli Police Station  on   24th  January.  Police  arrested  Trimbak  who expressed his  willingness to  show the place where Vijaya’s head was  thrown after  she was murdered. The head was found in the shrub near Gorai Creek. The head was identified to be of Vijaya  because of  the peculiar nature of her curly hair and projected teeth. Trimbak further told to the police that body of  Vijaya was  cut in  nine pieces and was kept in two suitcases which  had been  thrown in  a Nala. Trimbak led to police that  place but  could not  find the  suitcases.  The appellant, on  being interrogated,  made a statement that he will point  out the  razor and  certain other articles which had been  thrown at  Gerai Creek. On the police being led to that place.  two knives  and a razor were found. Ultimately, the nine  places of the cut body were found contained in two bags which  had been  kept in a local train at Borivli which was proceeding  towards Churchgate.  The two bags were taken charge of  by the  railway police  and the body was sent for postmortem. 5. After  completion of  investigation,  charge-sheet    was filed against  the appellant, his father Trimbak, his mother Mudrikabai and  his sister  Priyatama. During  the course of trial,  the  father  and  sister  died;  and  so,  only  the appellant and  his mother  faced it  fully. The  former  was convicted under section 302 read with 120B of the I.P.C. for committing the  murder of  Vijaya;  and also of the child in the womb. He was further found guilty under sections 201/34, so too  under sections   498-A/34  and 304-P/34  IPC. He was awarded the  sentence of death for the offence under section 302 read  with 120B; to R.I. for seven years for the offence under  section 201/34; to R.I. for three years and a fine of Rs.500/- in  default R.I.  for three  months  for  498  A/34 offence; and  R.I. for  seven years for 304-B/34 offence the same being the minimum sentence prescribed under law. As the appellant was  awarded death  sentence, it was stated by the trial court  that all  his substantive sentences shall merge in this  sentence. Mudrikabai  (the mother)  was also  found guilty  under  some  sections  and  various  Sentences  were awarded to her. 6. On  appeal being  preferred by the convicts and reference being made  by the Addl.. Sessions Judge for confirmation of the death sentence, all the cases were heard together and by the  impugned   judgment  the   High  Court   has  acquitted Mudrikabai  of  all  the  charges,  but  has  confirmed  the conviction of the appellant for the murder of Vijaya. As for the offence  of causing the murder of the child in the womb, the conviction  has been  altered to  section 316, for which the sentence  is R.I. for ten years. The High Court has also confirmed the  conviction under sections 201/34 and 498-A/34 and the  sentences as  awarded. The conviction under section

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304-B/34 has, however, been set aside. 7. This  appeal having been admitted only on the question of sentence, we  have heard  learned counsel  for  the  parties regarding  the   same.  Shri   Janardhnan,  senior  Advocate appearing for  the appellant, has contended that the present was not  a case of death sentence inasmuch as it was Trimbak who had  done all  the acts  and the appellant had really no part to  play, as  he had  married Vijaya out of love and he continued to  love her.  As to  the prosecution  case of his having brought  Vijaya to  Bombay, it is urged that that had been done  at the request of Vijaya and the appellant had no inkling as to what was playing in the mind of his father. 8. We  cannot at  all accept  the aforesaid  in view  of the finding of both the courts below that the appellant was hand in glove  with his  father, both  of whom had hatched a plan and murdered  Vijaya and  also had  thought out  as  how  to dispose of  the body.  There are materials on record to show that Vijaya had been brought to Bombay, not to show the love of the  husband, but to get her killed at the cruel hands of her  father-in-law.   The  High   Court,  after  noting  the evidence,  has   come  to   categorical  finding   that  the circumstances clearly  establish the active participation of the appellant  with his father right from the beginning till the end. 9. The  present was  thus a murder most foul, as pointed out by us  in the  opening paragraph.  The  motive  was  in  get another girl  for the  appellant  who  could  get  dowry  to satisfy the  greed of  the father.  Dowry-deaths are  blood- boiling, as human blood is soiled to satisfy raw-geed, naked greed; a  greed which has no limit. Nonetheless, question is whether the extreme penalty was merited in the present case? 10.. We have given considered thought to the question and we have not  been able to place the case in that category which could be  regarded as the "rarest of the rare" type. This is so because  dowry death  has ceased to belong to the species of killing. The increasing number of dowry deaths would bear this. To halt the rising graph, we, at one point, thought to maintain the  sentence; but  we entertain  doubt  about  the deterrent effect  of a  death penalty. We, therefore, resist ourselves from  upholding the death sentence, much though we would have  desired annihilation  of a  despicable character like the  appellant before  us. We, therefore character like the appellant before us. We, therefore, commute the sentence of death to one of R.I. for life imprisonment. 11. put  then, at is a fit case, according to us, where, for the offence  under section  201/34,  the  sentence  awarded, which is  R.I. for  seven years being the maximum for a case of the  present type,  should be  sustained, in vies of what had  been  done  to  cause  disappearance  of  the  evidence relating to  the commission of murder - the atrocious way in which the  head was  severed and  the body  was cut  in nine pieces. These  cry for  maximum sentence. Not only this, the sentence has  to run consecutively, and not concurrently, to show our  strong disapproval to the loathsome, revolting and dreaded device  adopted to  cause disappearance  of the dead body. To  these sentences, we do not, however, desire to add those awarded  for offences under Sections 316 and 498-A/34, as killing  of the  child in  the womb  was  not  separately intended, and 498-A offence ceases to be of significance and importance in view of the murder of Vijaya. 12. The  result is  that the  appeal stands  allowed to  the extent that  the sentence  of death  is converted  to one of imprisonment for  life. But  then,  the  sentence  of  seven years’ R.1.  for the offence under sections 201/34 IPC would start running after the life imprisonment has run its course

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as per law.