REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.670 OF 2009

Sushil Kumar  ....Appellant   

Versus State of Punjab      ....Respondent

J U D G M E N T

Deepak Verma, J. 1. Life or death is the question involved in this appeal.  Sole appellant  Sushil Kumar alias Lucky has been awarded  death sentence in Sessions Case No. 70 of 2006, by Additional  Sessions  Judge,  Jalandhar  vide  judgment  and  order  dated  13/17.4.2007  holding  him  guilty   of  commission  of  offence  under Section 302 of Indian Penal Code (for short 'I.P.C.')  on three counts, i.e., for committing murder of his  wife  Pooja,  son  Jatin  (6  years)  and  daughter  Sofia  (4  years).  However,  he  was  acquitted  of  the  offence  punishable  under  Section  309,  IPC.   Feeling  aggrieved  thereof,  appellant  preferred  Criminal  Appeal  No.  447-DB  of  2007  in  the  High  Court of Punjab and Haryana at Chandigarh  and as required  under law, Death Reference under Section 366 of the Code of  Criminal  Procedure,  1973 (for short 'Cr.P.C.') was sent for

Crl.A.No.670/09 .... (contd.)

- 2 - confirmation  to  the  High  Court  by  the  learned  Additional  Sessions Judge vide Murder Reference No. 3 of 2007. 2.Vide impugned judgment and order pronounced on 30.5.2008 by  Division Bench of the High Court, Murder Reference No. 3 of  2007 has been answered against the appellant and  capital  punishment  awarded  to  the  appellant  stands  affirmed,  as  a  necessary consequence thereof, Criminal Appeal No. 447-DB of  2007  filed  by  appellant   stands  dismissed.   Hence,  this  appeal, but only against  Murder Reference and not against the  dismissal of his Criminal Appeal on merits.  In other words,  he is challenging only the capital punishment awarded to him  and  not the conviction under Section 302 IPC. 3.The genesis  of the prosecution  story was set at motion on  the  strength  of  telephonic  information  given  to  Police  Station, Division No.5, Jalandhar on 4.3.2005 by Mr. Ram Lal,  Councillor of Basti Danishmandan about the incident, which  triggered off the police in action.  S.I. Onkar Singh (PW-11),  Investigating  Officer,  reached  the  place  of  occurrence  alongwith other police personnel, where he found Sukhdev Kumar  (PW-2), brother of deceased Pooja, who gave details of the  unfortunate incident.  The information, as narrated by him, to  PW-11, I.O. is mentioned hereinbelow:

Crl.A.No.670/09 .... (contd.)

- 3 - 4.  (i) His younger  sister Pooja @ Ashma was married to  appellant  Sushil Kumar about seven years back.  They were  blessed with two children: a son, Jatin @ Babu, aged six years  and  a  daughter,  Sofia,  aged  four  years.   They  had  been  residing in a rented  accommodation of Pawan Kumar.      (ii) Earlier, appellant  Sushil Kumar was working in a  shop of Babbu of Kishanpura but for the last about 7-8 months  he  was  unemployed  and  was  thus  passing  through   great  financial difficulties.  He was borrowing money from others to  meet his daily needs.       (iii) Just  two  days  prior  to  the  incident,  i.e.  on  2.3.2005,  at about 1.30 p.m. PW-2 Sukhdev had visited their  house to enquire about their welfare and at that time had  noticed  a minor scuffle between his sister and her husband,  the present appellant.   He tried to intervene and advised  them to live peacefully and amicably.     (iv) On  4.3.2005  at  about  6.30  in  the  morning  PW-2  Sukhdev received a  telephonic call from appellant informing  him  that  he  has  been  admitted  in  the  hospital  and   he  requested Sukhdev to visit his house to enquire about the  welfare  of his wife and children, who were alone at home.  He  further asked him to enter the house by climbing  its wall.  When Sukhdev  enquired from the appellant if there had been

Crl.A.No.670/09 .... (contd.)

- 4 - any unpleasantness between the two, he was  told to first  visit  his house, then to inform him and abruptly snapped the  phone.             (v) Sensing foul-play, Sukhdev rushed to the house of his  sister and entered through the gate.  He then saw the dead  bodies of his sister Pooja, her son Jatin and daughter Sofia  lying on bed. It appeared that they were strangulated to death  with the aid of plastic  rope which was lying on the bed. Both  hands  of  son  Jatin  were  tied  and   all  of  them  had  also  sustained incised wounds.      (vi) While   Sukhdev  was  still  hovering  under  a  great  shock  and  agony,  he  received  yet  another  phone  call  from  appellant  at  about  6.45  a.m.   Sukhdev  enquired  from  the  appellant as to what he has done and also requested him to  reach home at the earliest but appellant once again snapped  the phone.        (vii) Later on Sukhdev came to know that appellant had  also consumed 'Sulphas tablets' and got himself admitted in  Civil Hospital at Jalandhar.  Sukhdev appeared to be confident  that appellant has done away with his wife Pooja, son Jatin  and  daughter  Sofia  by  strangulating   their  necks  and  by  inflicting injuries on their persons and thereafter allegedly  consumed  'Sulphas tablets' as he was poverty stricken.

Crl.A.No.670/09 .... (contd.)

- 5 - 5. On the strength of the aforesaid statement having been  recorded by P.W-11, Onkar Singh  (I.O.)  marked as Exh. PD/1,  endorsement was made by him, which was sent to the Police  Station for recording formal First Information Report, marked  Exh. PD/2.  He thereafter conducted inquest proceedings of  dead bodies and  removed  them to Civil Hospital, Jalandhar,  for post-mortem examination. 6. Dr. S.K. Sharma (PW-1) conducted post-mortem  on all the  three dead bodies.  As is clear from the impugned judgment,  Pooja  had  sustained  as  many  as  seven  injuries  including  incised wounds and multiple abrasions on her body, Jatin @  Babbu had sustained single incised injury on his chest  and  Sofia  had sustained  six incised wounds on her body.  The  cause of  death of  all the  three persons  according to  Dr.  Sharma  was shock  and haemorrhage. 7. It  is  pertinent  to  mention  here  that  doctor  had  specifically  mentioned in  all the post-mortem reports that  probable  time elapsed between injury and death within few  minutes and between death and postmortem within 24 hours. 8. It  has  neither  been  disputed   before  us  nor  it  was  disputed  in  the  High  Court  that  they  all  had  met  with  homicidal deaths.  Thus, the question that arises before us  is, whether the same has been committed by the appellant and

Crl.A.No.670/09 .... (contd.)

- 6 - if yes, what sentence would be just and appropriate to be  awarded to him, keeping in mind the enormity and dastardly  manner in which they were murdered.  9. The  Investigating  Officer  (PW-11)  took  possession  of  blood stained  bed sheet and pillows  vide recovery memo (Ex.  PH.  Plastic rope allegedly used   for strangulation of the  deceased was also taken into possession by a separate recovery  memo.  During the course of investigation, statements  of  witnesses  were recorded and  a rough site plan of scene of  occurrence  with correct marginal notes  was prepared.    10. Accused was arrested on 7.3.2005. During interrogation,  appellant made a disclosure Memo (Ex.PE) and pursuant thereto,  a blood-stained knife (Chhura)  (Ex.P/5)  allegedly used for  commission of the offence was recovered from the place shown  by him i.e. under some clothes in the same room where dead  bodies were found.  11. On completion of the investigation, challan was filed  against the appellant.  Learned Addl. Sessions Judge framed  charges against the appellant under Section 302 IPC for murder  of his wife, son and daughter and also under Section 309 of  the IPC for his attempted suicide.  Subsequently, charges were  amended to three separate charges on account of three murders  having been committed by the appellant in one incident.  

Crl.A.No.670/09 .... (contd.)

- 7 - Appellant pleaded not guilty and prayed to be tried. 12. To bring home the charges against the appellant, evidence  of Sukhdev (PW-2) brother of  deceased and complainant, Raj  Kumar (PW-3), who had received information about murder of  wife and children of the accused from his landlord, Satpal  (PW-4) appellant's neighbour, who had seen him last  at 5.00  a.m.  coming out from his house and Pushpa (PW-5) mother of  deceased Pooja, was  recorded at the instance of prosecution,  which we would scan deeply later.  Apart from the aforesaid  witnesses, prosecution  had  examined  Dr. S.K. Sharma (PW-1),  who had performed the post-mortem on the bodies of deceased,  (P.W-10) Dr. Kamaljit Singh Bawa, Medical Specialist, Civil  Hospital, Jalandhar, Onkar Singh, Investigating Officer (PW- 11) and other formal witnesses  to prove the seizure memos,  disclosure memos etc. 13. The  appellant  had  taken  a  plea  of  alibi that  on  the  fateful day, he  was not in Jalandhar and had gone to Amritsar  to complete the work of his employer. Since he was delayed at  Amritsar, he decided to stay back with his maternal uncle. To  prove the plea of  alibi, he examined Dharam Pal (DW-1)  as a  defence witness.  However, learned Trial Judge as also High  Court have not found the plea of alibi established, on account  of serious contradictions in the statement of appellant

Crl.A.No.670/09 .... (contd.)

- 8 - recorded under Section 313 of Cr.P.C and that of his defence  witness DW-1. 14. In the light of the aforesaid backdrop  of the factual  aspect as has been unfolded, we have to see whether it is a  fit case for confirming  the death sentence on the appellant  or to award him some other punishment. 15. At the cost of repetition we reiterate that this appeal  has been preferred only against Murder Reference No. 3 of 2007  as  is  manifest  from  the  memo  of  appeal.  Thus,  initially  finding it difficult to challenge the conviction and sentence  under Section 302 IPC awarded to appellant, learned counsel  for  appellant advanced   arguments only on the question of  quantum of sentence but later on prayed for leave of this  Court  to  permit  him  to  argue  both  on  the  question  of  conviction  and  sentence.  With  an  intention  to  do  complete  justice between the parties, we granted him permission.   16. Accordingly, we have heard Mr. Rishi Malhotra, learned  counsel appearing for appellant and Mr. Kuldip Singh, learned  counsel appearing for the respondent-State at great length and  have perused the record. 17. Learned   counsel  for  the  appellant  has  seriously  and  sincerely  attempted  to  convince  us  that  in  the  light  of  several serious discrepancies appearing in the evidence  of  

Crl.A.No.670/09 .... (contd.)

- 9 - Sukhdev (PW-2) brother of deceased Pooja, Raj Kumar (PW-3) and  Satpal (PW-4),  who had last  seen the accused coming out of  his house  in the  morning at  5.00 a.m.  and Pushpa  (PW-5)-  mother of the deceased, it was a case for acquittal or in the  light of  said discrepancies at least  benefit of doubt should  be extended to the appellant. It was also contended by him  that substantial part of evidence of Rajkumar (PW-3) was hit  by Section 25 of the Indian Evidence Act, 1872. 18. On the other hand, learned counsel for the respondent- State  Mr. Kuldip Singh, vehemently urged before us that it is  a fool-proof case and prosecution has proved beyond shadow of  doubt that it was the appellant alone who committed the crime.  Thus, it  calls for no interference.  He also contended that  looking to the brutality and dastardly  commission of crime by  appellant, he does not deserve to be dealt with leniently.  It  was also  contended by him that to send a proper signal to the  society and as a matter deterrence, capital punishment alone  as awarded by learned Trial Judge and confirmed by High Court,  would meet the ends of justice. 19.  Even though in this appeal, we are not legally obliged  to  look  into  or  to  critically  re-appreciate  the  evidence  available  on  record  but  with  the  intention  to  examine  if  justice has been meted out to him or not, we have gone through

Crl.A.No.670/09 .... (contd.)

- 10 - the entire evidence. 20.    Now, we shall deal with material evidence which is  necessary  to be considered in this appeal.  First, in this  line is the evidence of Sukhdev (PW-2)complainant and brother  of the deceased.  He has deposed that the deceased was his  younger sister, having married to appellant about seven years  back.  They were blessed with two children, Jatin aged six  years and daughter Sofia aged four years. Earlier, they were  living in Amritsar but had shifted to Jalandhar some time  back.  In Jalandhar, earlier they were living in a rented  house of Badri but then shifted to Basti Danishmandan close to  the residence of this witness, who was living along with his  mother (PW-5) Smt. Pushpa.  Earlier the appellant was working  in a shop but about seven to eight months back he  lost his  job, thus was rendered jobless.   21.        He has then deposed that  on 4.3.2005 at about 6.30  a.m. he had received a telephonic call from accused Sushil  Kumar asking him to go to his house to see Pooja and her  children, after climbing the wall.  He further informed him  that he is talking to him from  Civil Hospital,  where he has  been admitted.   Sukhdev (PW-2) made enquiries if there had  been any  differences with Pooja the previous night, to which  he  answered that he should first  go and see wife and

Crl.A.No.670/09 .... (contd.)

- 11 - children thereafter  to talk to him.  He then abruptly snapped  the phone.  He has further deposed that he immediately rushed  to his sister's house and found the door open.  He entered  their bed room and was shocked to see  dead bodies of his  sister, nephew and niece  lying on the bed.  Hands of Jatin  were tied behind his back and they had also sustained bodily  injuries.  A plastic rope was also lying on the bed,  which  gave an indication that the same might have been used for  strangulating them. 22.     At about 6.45 a.m. he received another call from the  accused, who once again enquired about his wife and children.  He  informed  him  about  dead  bodies  lying  on  the  bed  and  enquired  as  to  what  he  has  done,  to  which  he  once  again  abruptly  snapped the phone.   23.    This witness thereafter gave details of the incident to  SI. Onkar Singh (PW-11), who as mentioned hereinabove, after  recording  it  sent  it  to  the  Police  Station  for  formal  registration of the FIR. Even though he was cross-examined at  length but nothing came in the same to discard his evidence. 24.  Rajkumar (PW-3) has also deposed that on receiving the  information about the  murders having taken place, he visited  the house of the appellant  who is known to him  and found  three dead bodies.  He also gave information to the police,

Crl.A.No.670/09 .... (contd.)

- 12 - which reached the spot shortly.  He has deposed that accused  was not present in the house. The clothes of dead bodies were  blood-stained. He was also a witness to  disclosure statement  of  the  accused.    The  other  evidence  given  by  him  would  neither be relevant nor can be considered, in the light of the  provisions contained in Section 25 of the Indian Evidence Act. 25.  The other material witness is Satpal (PW-4), who stays  close to the house of the appellant and is well acquainted  with him.  He has deposed that on 4.3.2005 at 5.00 a.m while  he was going for morning walk and when he crossed the house of  appellant, he saw him coming out from his house.  He was  called  from  behind,  he  stopped  for  a  while  but  was  in  a  perplexed condition and after stopping for a while the accused  moved  ahead. Thereafter at about 6.45 a.m.  he came to know  about the murder of the wife and two children of the accused.  Recovery of rope, bed sheet, pillows stained with blood was  completed in his presence.  He is a witness to the memo Ex.PH.  Thus,  this  witness  is  important  as  he  had  last  seen  the  appellant coming out from his house, to which no explanation  has been offered by the appellant. 26.   The last material evidence to connect the appellant with  the commission of crime is of Pushpa (PW-5)-mother-in-law of  the appellant.  She has also deposed in great details with

Crl.A.No.670/09 .... (contd.)

- 13 - regard to the strained relations between appellant and his  wife  on  account  of  financial  problems.   She  has  further  deposed as to how the phone call was received on 4.3.2005 at  6.30 a.m. by her son Sukhdev from the accused. She has further  deposed that on 2.3.2005 on receiving a phone from Pooja, she  had sent her son to their house, who later on informed that  they  were  fighting,  obviously  on  account  of  financial  difficulties  and  on  his  intervention,   the  dispute  was  settled. 27.    Microscopic examination of the evidence of Pushpa (PW- 5) and that of Sukhdev (PW-2) would show that they are in  conformity with each other.  Minor discrepancies are bound to  be there otherwise they would be termed as tutored witnesses.  It is also pertinent to mention here  that evidence of (PW-2)  is in line with  F.I.R. and his statement given to the police. 28.   Even  though  we  have  critically  gone  through  the  evidence of all these witnesses and have thoroughly scanned  the same but apart from minor discrepancies which are bound to  appear in a natural course of conduct of a normal human being,  there are no  serious material discrepancies in the evidence  warranting us to completely  discard  their evidence. 29.   There is no reason to doubt  the credibility of all  these witnesses.  Apart from the above, there is no reason why

Crl.A.No.670/09 .... (contd.)

- 14 - they would falsely try to implicate the appellant, more so,  when they had already lost Pooja and her children.  Nothing  has come on record  that these witnesses were having strained  relations  with  the  appellant.   On  the  other  hand,  it  is  clearly  made  out  from  the  evidence  that  they  were  having  cordial relations and were visiting each other quite often. 30.   It is manifest from the evidence mentioned hereinabove  that the appellant had got himself admitted in Civil Hospital,  Jalandhar on 4.3.2005 and was under treatment of Dr. Kamaljit  Singh Bawa (PW-10), Medical Specialist of the Civil Hospital.  According to Dr. Kamaljit Singh Bawa (PW-10),  the appellant  was  admitted  on  4.2.2005  at  about  6.30  a.m.  and  was  discharged on 7.3.2005.  Dr. Kamaljit Singh Bawa has not been  able to conclusively say that any Sulphas tablet was taken by  the  appellant  or  not.   He  has  deposed  that  after  taking  tablets, it is difficult to survive for a long period.   31.Appellant has not offered any explanation as to where was  he before his admission in the hospital on the fateful day.  Plea of alibi taken by him has not been found to be truthful  and in our opinion rightly so as the same stands falsified  from the evidence of Satpal (PW-4) who had seen him coming out  of his own house at 5.00 a.m.  This is only indicative of the  fact that after commission of the alleged

Crl.A.No.670/09 .... (contd.)

- 15 - crime, he got himself admitted in the Civil Hospital.   It is  certain that he had committed the crime sometime in night and  then got himself admitted in the hospital at 6.30 a.m. 32.  For  all  these  reasons,  as  far  as  plea  of  alibi is  concerned, we concur with the findings recorded by learned  trial Judge as also High Court.   33.  In the light of the aforesaid evidence, learned counsel  for appellant submitted that the only evidence against the  appellant is, recovery of one rope and knife but in view of  medical evidence it was not a case that they had died on  account of strangulation, which is manifest from the post- mortem  reports  prepared  by   Dr.  S.K.  Sharma  (PW-1),  thus  recovery of rope was of no consequence.  As far as knife was  concerned, same did not have any blood  stains much less human  blood,  which would leave only with the evidence of Satpal  (PW-4) who had last seen the appellant coming out from his own  house.  It was therefore, contended that doctrine of last  seen, is a weak type of evidence and it is not enough to hold  the appellant guilty. 34.    On  the  other  hand,  learned  counsel  for  respondent  strongly contended  before us that in any case it is not a  case of acquittal  for the following reasons: 35.   (i)  Dead bodies were found from the house of appellant

Crl.A.No.670/09 .... (contd.)

- 16 - where he was also living with them and has not explained about  the incident;       (ii) Blood stained bed sheets, clothes, pillows were  recovered from the bed room, where the dead bodies were found  which was shared by the appellant too;            (iii) Recovery of knife and rope from the same place;  

(iv) appellant was last seen by (PW-4) at 5.00 a.m.,  while he was coming out from his  house  in a perplexed  condition;    (v)  Sukhdev (PW-2) had no occasion to visit the house  of the appellant at 6.30 a.m. on the fateful day unless he was  informed about the incident by the appellant;       (vi) couple was having strained relations and was passing  through bad financial conditions; and  

(vii)  taking of false plea of alibi is also one of the  strong circumstances against the appellant to connect him with  the commission of crime. 36.    Thus, looking to the totality of the facts and features  of the case and keeping in view the evidence available on  record, we have no doubt in our mind that the offence was  committed by the appellant and appellant only. 37.    While holding that he alone is guilty of commission of  the murder of his wife and two children, now the question that

Crl.A.No.670/09 .... (contd.)

- 17 - arises for consideration is what should be just and proper  sentence to be awarded. 38.    On this question also we have heard learned counsel for  the parties at length and given our anxious consideration.  Learned counsel for the appellant contended that  looking to  the mitigating  circumstances available on record, no case  for awarding death sentence has been made out and he deserves  to  be  acquitted  whereas  learned  counsel  for  respondent  submitted that it is a sure-shot  case for awarding of death  sentence to the appellant. 39.    To press the respective contentions in this regard they  have cited the most celebrated leading case on this point,  viz., Bachan Singh  Vs. State of Punjab and others reported  in (1980) 2 SCC 684.  This is a Constitution Bench Judgment of  this  Court.  In  para  206  of  the  said  judgment,  mitigating  circumstances  have  been  described  which  can  be  taken  into  consideration while awarding death sentence.  Paras 206 and  207 dealing in this regard are reproduced hereinbelow which  read as thus :

“206.  Dr.  Chatale  has  suggested   these  mitigating  factors:

Mitigating circumstances:- In the exercise of its  discretion in the above cases, the court shall take  into account the following circumstances:-

(1)    That the offence was committed under the  Crl.A.No.670/09 .... (contd.)

- 18 -

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. (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 circumstance 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.

207. We will do no more than to say that these are  undoubtedly relevant circumstances and must be given  great weight  in  the  determination  of  sentence.  Some of these factors like extreme youth can instead  be of compelling importance.   In  several  State  of  India, there are in force special  enactments,  according to which a 'child', that is,  a person  who  at the date of murder was less than 16 years of age',  cannot be tried, convicted and sentenced to death or   for life for murder, nor dealt with according to the  same criminal procedure as an adult.  The special  Acts provide for the reformatory procedure for such  juvenile offenders or children.”

40.The case of Bachan Singh (supra), is of course, the Crl.A.No.670/09 .... (contd.)

- 19 - leading case on the said question which was considered by a  three Judge Bench of this Court in the case of  Machhi Singh &  Ors. Vs. State of Punjab reported in (1983) 3 SCC 470 wherein  same principles of law have been reiterated.   In the case of  Om Prakash Vs. State of Haryana reported in (1999) 3 SCC 19,  it has been explained as to why death sentence  will not be  proper and what are the relevant factors to be considered and  it  has  further  been  observed  that  court  must  balance  the  mitigating and aggravating circumstances  of the case, mental  condition of the accused, the dispute between the families  which ultimately resulted in multiple murders.  Even though it  was a case of murder of seven persons, but Division Bench of  this Court came to the conclusion that it was not a fit case  which would fall within the ambit of “rarest of rare cases”.  41. On the other hand, learned counsel for the respondent has  placed reliance  on the judgments in the case of  Bablu @  Mubaraik  Hussain  Vs. State of Rajasthan reported in (2006)  13 SCC 116 and  State  of Uttar Pradesh Vs.  Sattan alias  Satyendra & Ors. reported in (2009) 4 SCC 736 to strongly  contend that in the facts and circumstances of the case, ends  of justice would be met only when the appellant is awarded  death sentence.

42.Learned counsel for the appellant has brought to our Crl.A.No.670/09 .... (contd.)

- 20 - notice yet another recent judgment of this Court in the case  of  Santosh Kumar Satish Bhushan Boriyar etc. vs.  State of  Maharashtra  etc. reported  in  (2009)  6  SCC   498.  In  this  judgment, all the previous judgments on the said issue have  been considered and analysed.  The law on the question of  Capital Punishment has been re-stated. Thereafter, guidelines  have been formulated  to be observed while awarding death  sentence.  Lastly, it has been held that there have to be very  special  reasons to record death penalty and if mitigating  factors in the case are stronger then it is neither proper nor  justified to award death sentence and it would be sufficient  to  place  it  out  of  “rarest  of  rare  category”.  We  have  critically gone through the said judgment. 43.In the case in hand, weighing the mitigating circumstances  the following facts are manifest:      (i)  appellant had been unemployed for last 7 to 8 months  

(ii) he used to borrow money from others  to meet his  daily needs.        (iii) he himself had consumed 'sulphas tablets'  to commit  suicide even though not medically established.       (iv) he therefore, was keen  that his whole family should  be finished and no one should be alive to suffer the pain and

agony alone.  Crl.A.No.670/09 .... (contd.)

- 21 -    (v) he was fed up with his life and was seen in a perplexed  condition by PW-4.       (vi) in any case, he cannot be a threat to the society and  there are fairly good chances of his reformation as he has  learnt  sufficient lesson from it. 44.Extreme poverty  had driven the appellant to commit the  gruesome murder of three of his very near  and dear family  members - his wife, minor son and daughter. 45. There is nothing on record to show that appellant  is a  habitual  offender.   He  appears  to  be  a  peace  loving,  law  abiding citizen but as he was poverty stricken, he thought in  his wisdom  to completely eliminate him family so that all  problems would come to an end.  Precisely, this appears  to be  the reason for him to consume some poisonous substances, after  committing the offence of murder.  No witness has complained  about his bad or intolerable behaviour in the past.  Many  people had visited his house after the incident is indicative  of the fact that he had cordial relations with all.  He is now  about 35 years of age and there appear to be fairly good  chances of the appellant getting reformed and becoming a good  citizen. 46.Thus,  looking  to  the  matter  from  all  angles  and  after

giving our serious consideration to the whole matter, we are  Crl.A.No.670/09 .... (contd.)

- 22 - of the opinion that it is not a fit case  where  it would fall  within the category of “rarest of rare case” and therefore  death sentence as awarded to him by learned trial Judge and  confirmed by High Court deserves to be set aside and quashed  and is  accordingly done so by us instead he is held  guilty  of commission of offence under Section 302 of the IPC on three  counts and is awarded life imprisonment for the same.  The  impugned judgment and order stands modified to the aforesaid  extent and  the appeal accordingly stands disposed of.

.......................J. (V.S. SIRPURKAR)

.......................J. [DEEPAK VERMA]

New Delhi. September 01, 2009.