Brij Bhushan Sharma vs State Of U.P. on 19 December, 2000

JUDGMENT

U.S. Tripathi, J.

1. The appellant Brij Bhushan Sharma, having been convicted Under Section 302, I.P.C. for committing murder of his wife and two minor daughters aged about 7 years and 2 ½ years and being sentenced to death, has preferred this appeal against the judgment and order dated 7-1-1999 passed by Sri Chandranath Mishra, Special Judge (Anti Corruption, Gorakhpur) in sessions trial No. 582 of 1997.

2. The prosecution story, briefly stated is as below.

Appellant Brij Bhushan Sharma original resident of village Khusalpur, P.S. Gulawati, district Bulandshahar was a Constable in Central Industrial Security Force (in brief CISF). His marriage was prefromed with Smt. Vimlesh Sharma (35) deceased, daughter of Chandra Pal Sharma (PW-13) on 29-6-1986. Out of the above wedlock two daughters Indu Sharma (7 years) deceased and Monika Sharma (2 ½ years) deceased were born. During his service the appellant was posted at different places like Gauhati, Burdwan and from 1996 up to the date of occurrence of this case, he was posted in Fertiliser Corporation of India, Gorakhpur. He was residing along with his wife and minor daughters in Quarter No. E 788 Fertiliser Corporation Colony, P.S. Chiluwatal, Gorakhpur. It is alleged that the appellant was not satisfied with dowry given by parents of his wife and he was not happy with the behaviour of his wife with his mother and younger brother.

3. On 16-6-1997 at about 8 p.m. the appellant was deputed on patrol duty from 1 p.m. to 9 p.m. But he was seen roaming near his quarter in Fertiliser Corporation Colony by Surender Kumar (PW-6) who was residing in quarter No. 778 of fertiliser Corporation Colony. At that time he was wearing “Baniyan” and pant. At about 10.30 p.m. on the same night Shyam Dutta Pandey (PW-9) resident of quarter No. 790 Fertiliser Corporation Colony heard cry of appellant Brij Bhushan Sharma that his wife got electric shock. Shyam Dutta Pandey (PW-9) rushed to the quarter of appellant and found it locked from out side. He tried to break open the lock, but was stopped to do so by another persons. At about 10.30 or 11 p.m. appellant Brij Bhushan Sharma came to Dinesh Chandra Joshi (PW-12) a Constable in C.I.S.F. at his quarter and told him that his wife and children had been murdered. Getting the said information Dinesh Chandra (PW-12) along with Satish and the appellant came to the quarter of appellant and found that main door of his quarter was locked and window was open. Ceiling fan and the lights were on in the room. Peeping through the window he observed that wife of appellant was lying on the floor by her head and blood had spread near her mouth. Her daughters were also lying on the floor. The quarter of appellant was locked from out side. The appellant was crying that his wife and children had been murdered. At 11.15 p.m. Constable R.K. Ram, Santary of unit line, knocked the doors of Sri K.K. Mohanan Inspector, C.I.S.F. and on his coming out told him that wife of appellant B.B. Sharma had died inside his house and his quarter was locked from outside. On enquiry Constable R.K. Ram told that he was informed about it by Company Hawaldar Major, Head Constable Satish Chandra. Sri K.K. Mohnan (PW-1) informed about the incident on telephone to Sri R.C. Prasad Company Commandant at his residence who directed Sri Mohanan to send information to P.S. Chiluwatal and to reach at the spot with some other constables Shri Mohanan then directed Sub Inspector Sri B.B.S. Chauhan to lodge report of the occurrence at P.S. Chiluwatal and reached on the spot along with 10-12 Constables. On the spot he found Head Constable Satish Chandra standing in front of the quarter of the appellant. He tried to get details of occurrence, but none was in a position to tell the details Sri B.B.S. Chauhan, Sub Inspector, CISF (PW-8) prepared report of the occurrence (Ext. Ka-8) and lodged the same at P.S. Chiluwatal at 23.45 p.m. On the basis of above report Constable Shesh Narain (PW-14) prepared chick F.I.R. (Ext. Ka-24) and got the endorsement of the same made in G.D. No. 41 at 23.45 p.m. (Ext. Ka-25) through Constable Upendra Sharma and registered a case against the unknown persons.

4. The investigation of the case was entrusted to Vijay Shankar Singh (PW-21). He was not present at the police station. The copies of F.I.R., G.D. report and inquest register were received by him at village Sikhaur through Constable Prem Shankar Yadav. On receiving the papers he reached the spot were he interrogated witnesses, visited place of occurrence and prepared site plan (Ext. Ka-26). There was a crowd on the spot arid appellant Brij Bhushan Sharma was also present, but he was brightened. The I.O. remained at the spot during night. In the morning he appointed Punchas and conducted inquest of the dead body of Smt. Vimlesh Sharma, Km. Monika Sharma and Km. Indu Sharma and prepared inquest reports, (Ext. Ka-1 to Ka-3) and other relevant papers, sealed the dead bodies of the three deceased and sent the same for post mortem. I.O. also obtained photographs of the dead bodies. He took into possession Pahsual (iron made implement for cutting vegetables), which was kept on the chair after wash. He also took into his possession blood stained pillow cover, blood stained Khakhi pant, which the appellant was wearing, electric heater with cable, small broken piece of chain of wrist watch, broken pieces of bangles, blood stained parts of floor and plain piece of cement floor and sealed the same separately and prepared recovery memo (Ext. Ka-4 to Ka-7). He also checked the duty register of the appellant in CISF Unit and found that on the day of occurrence duty of appellant was from 1 p.m. to 9 p.m. The appellant had put his signature on entry of the duty, but there was no signature on leaving the duty. He also obtained extract of the said register (Ext. Ka-27).

5. The I.O. interrogated other witnesses. Help of dog squad was also taken.

6. Autopsy on the dead bodies of Smt. Vimlesh Sharma, Km. Monika Sharma and Km. Indu Sharma was conducted on 17-6-1997 between 4.30 p.m. and 5.30 p.m. by Dr. R.A.L. Gupta (PW-11), who found incised wounds on the persons of the deceased and the cause of death as Coma due to head injuries. The Doctor prepared post mortem reports (Ext. Ka-9 to Ka-11).

7. The appellant was apprehended by the police and after completion of investigation charge sheet was submitted against him Under Section 302, I.P.C.

8. The appellant was tried by the learned Sessions Judge for having committed murder of his wife and two minor daughters for the offence punishable Under Section 302, I.P.C. He pleaded not guilty and contended that relations between him and his wife were cordial and he was living with his wife and daughters happily. On the night of occurrence he was on patrol duty from 1 p.m. to 9 p.m. After his duty hours he came to his quarter along with his colleague Arup Kalsena at about 9.30 p.m. when he reached at the quarter he found no light in the quarter and main door was locked. He was very much perturbed. On peeping through the window he observed his wife and two daughters lying on the floor with blood spread on the floor. He entered into the room from the back door. Due to paucity of light he slipped on clotted blood and therefore his uniform came into contact with blood. Finding his wife and children dead he came out side, fell down and started weeping. Several persons of the locality including security people and police officers came to the spot and lock was broken at late night. The above lock did not belong to him. Dog squad was also called. The Inspector of police with the help of dog squad apprehended two boys of butcher. He told to the police that the boys of butcher. He told to the police that, the hoys of butcher were having evil eye on his wife and they might have murdered her. The above boys were taken to police station, but were released. His father-in-law a greedy man, had taken entire ornaments of his wife and had given in the marriage of his other two daughters. He had also taken Rs. 4,000/ – from him (appellant) for purchasing land and constructing house. His father-in-law was not coming to his house as he was apprehending that he would demand his money. No quarrel had taken place between him and his wife for last one year and he was falsely implicated for murder of his own wife and children.

9. The prosecution in support of its case examined K.K. Mohanan, Inspector, CISF (PW-1), R.B. Pandey (PW-2), Ram Vyas (PW-3), Ghanshyam Bajpayee (PW-4), Ram Nagina (PW-5), Surendra Kumar (PW-6), Ram Dutta Pandey (PW-7) B.P.S. Chauhan (PW-8), Shyam Dutt Pandey (PW-9), Laxmi Prasad (PW-10), Dr. R.A.L. Gupta (PW-11) Constable Dinesh Chandra Joshi (PW-12), Chandra Pal Sharma (PW-13), Constable Shesh Narain Tiwari (PW-14), Constable Hridya Nand (PW-15), Sibbon Lai (PW-16), Rajendra Pandey (PW-17), Smt. Basnati (PW-18), Km. Pare Srivastava (PW-19), Constable C.D. Basante (PW-20) and Vijay Sharikar Singh, LO. (PW-21).

10. The appellant examined his brother Bhupendra Kumar Sharma (DW-1), Constable Ram Suresh Singh (DW-2) and Manof Kumar Das (DW-3).

11. The learned Sessions Judge on considering the evidence of the prosecution and that of defence held that circumstantial evidence adduced by the prosecution lead to infer the only inference that, the appellant committed murder of his wife Vimlesh Sharma and two minor daughters Km, Monika and Km. Indu and therefore, offence punishable Under Section 302, I.P.C. was fully established agianst him. On the question of sentence he held that the facts and circumstances of the case and the manner in which three persons were murdered indicated that three innocent persons were butchered. It was a cruel, gruesome and horrendous murder and it was a rarest of rare case. Therefore, the appellant was liable to be sentenced to death. With these findings he convicted the appellant under Section 302 and sentenced him to be hanged by his neck till dead. The learned Sessions Judge had made a reference for confirmation of the death sentence awarded by him.

12. The appeal as well as reference are taken up together for decision.

13. We have heaard Sri V.C. Tiwari, learned Senior counsel for the appellant and the learned A.G.A.

14. During course of argument it was found that the report of Chemical Examiner and Serologist could not be produced before the Trial Court therefore, we summoned the same. On receipt of the report of Chemical Examiner (Ext. C-I) the appellant was again examined Under Section 313, Cr. P.C.

15. Sri R.K. Mohanan, Inspector CISF (PW-1) stated in his evidence that on 16-6-1997 at about 11.15 p.m. Sri. R.K. Ram, Constable, Unit Lines came to his quarter and awoke him. When he came out of his quarter the above Constable told that wife of Constable B.B. Sharma died inside her quarter and that the quarter was locked from outside. When he inquired as to how the occurrence took place and who gave the information then he told that information was given to him by Hawaldar Major of the Company and he was not knowing about the details of occurrence. Head Constable Satish Chandra was the Company Hawaldar Major. Thereafter he informed Company Commandant Sri. R.C. Prasad on telephone, who directed him to lodge report at the Police Station Chiluwatal and to reach at the quarter of B.B. Sharma along with some other Cosntables. He directed Inspector B.B.S. Chauhan to lodge report at P.S. Chiluwatal and reached at the quarter of B.B. Sharma along with 10-12 Constables. Constable B.B. Sharma and Head Constable Satish Chandra were standing in front of the quarter of accused. He tried to know about the occurrence from B.B. Sharma and Satish Chandra, but they told that they had no knowledge. He consoled B.B. Sharma and stayed there for about 20 minutes. In the meantime, other Officers of the Company also came there. Police also came on the spot and told that without giving information to higher Officers lock could not be broken. Senior Superintendent of Police and Additional Superintendent of Police and dog squad came on the spot. Then the lock was broken. Dog squad got arrested two persons. In his cross examination, the witness stated that he got information about the occurrence at 11.05-11.10 p.m. orally at his house. The police of P.S. Chiluwatalcame to the spot at 11.40-11.45 p.m. The lock was broken between 1-2 a.m. He did not know the persons, who were arrested with the help of dog squad. The accused B.B. Sharma remained on the spot till whole night.

16. Sri R.B. Pandey (PW-2), Sri Ram Vyas (PW-3), Sri Ram Nagina (PW-5) and Sri Ghanshyam Bajpai (PW-4) are the witnesses of inquest. They have not stated any thing about the occurrence. Ghanshyam Bajpai (PW-4) further stated that the l.O. had also taken into possession broken pieces of bangles, a red coloured heater, switch board, broken piece of wrist watch lying near the dead bodies of the deceased, sealed the above articles on the spot and had prepared recovery memo (Ext. Ka-4), which was attested by him. Besides it, the I.O. had also taken into possession blood stained plaster of the floor and simple plaster of floor, sealed it and had prepared recovery memo (Ext. Ka-5). One ‘Pahsul’, (a sharp edged implement for cutting vegetables) electric heater and cable were also taken into possession by the I.O. and recovery memo (Ext. Ka-6) was prepared, which was attested by him. The I.O. had also taken into possession two pillow covers, which were blood stained and khaki pant of the accused, which was blood stained, sealed them and prepared recovery memo (Ext. Ka-7), and it was attested by him.

17. Sri Surendra Kumar (PW-6) stated that in the year 1997 he was residing along with his brother-in-law (Sala) in quarter No. 778, Fertiliser Colony, Gorakhpur and was practising law in Civil Courts, Gorakhpur. He was not knowing B.B. Sharma but on the next day of occurrence he came to know that wife and two dughters of B.B. Sharma were murdered. How and under what circumstances above persons were murdered was not know to him. He further stated that on the night, of 16-6-1997 at about 8 p.m. he was walking in the colony (Fertiliser Colony) along with a person and when he reached near the quarter of B.B. Sharma, he observed him roaming near his quater and at that time he was wearing a pant and baniyan and had kept one cloth on his shoulder. The prosecution declared the above witnesses hostile. In his cross examination by the prosecution the witness denied to have told before the I.O. that the accused was suspecting fidelity of his wife and quarrel between the accused and his wife often took place till 2 in the night.

18. Sri Ram Dutta Pandey (PW-7), R/o quarter No. 790 Fertiliser Colony and a Medical Practitioner stated that he had no knowledge about the murder of wife and daughters of accused B.B. Sharma. He again stated that he came to know about their murders on the next morning and prior to a day of the occurrence when he came but of his quarter he observed accused B.B. Sharma coming out of his quarter wearing a pant and “Bandi” and going towards mosque. He did not notice whether “Bandi” of the accused was soaked with sweat and was torn or not. He also did not noice whether accused was smoking “Bidi” or not. The prosecution declared the witnesses hostile. In his cross examination the witness denied to have told about the occurrence before the I.O.

19. Sri B.P.S. Chauhan, Sub Inspector CISF (PW-8) stated that on 16-6-1997 at about 10.30 p.m. he was called by Inspector K,K. Mohanan who told him that wife of Constable B.B. . was murdered in quarter No. E-778 and his quarter was locked from outside and that he should lodge report at the police station. He went to police station Chiluwatal and lodged written report (Ext. Ka-8). In his corss examination, the witness stated that P.S. Chiluwatal was at a distnace of 2 ½ Km. from Unit Lines and after returning from police station he went to the spot where there was a great crowd, but no proceeding took place before him nor he participated in any one of them.

20. Shyam Dutta Randey (PW-9) a residents of quarter No. 790 FCI Colony, Gorakhpur, a student stated that on the night of 16-6-1.997 between 10.11 p.m. he heard cries that fire had taken place and a person was electrocuted. That Brij Bhushan Sharma was raising alarm that his wife got electric shock. He came out of his quarter and his mother told that at the time the person should be helped. Knowing that some one had got electric shock in the house of Brij Bhushan Sharrna he rushed with a hammer to his quarter and gave one or twp blows on the lock, but the person residing above his quarter came out and peeped into window. He stopped him from breaking open lock saying that it was a murder case and he would be involved. Thereafter he retreated back, but remained on the spot till arrival of police. In his cross examiantion the witness stated that quarter of B.B. Sharrna is situate after one quarter at a distance of 20-25 paces and he was studying when he heard the cries as his examination was to start from next 20th. That B.B. Sharma was crying and weeping but he had no talk with him. He had told what he had seen to the I.O. on next day.

21. Laxmi Prasad (PW-10) is also witness of inquest of the three dead bodies.

22. Dr. R.A.L. Gupta (PW-11) who conducted autopsy on the dead bodies of Smt. Vimlesh Sharma, Km. Monika Sharma and Km. Iridu Sharma on 17-6-1997 between 4.30 p.m. and 5.30 p.m. stated that sealed dead bodies of above persons were brought before him, which were identified by Constable Jamuna Singh and Hirdya Nand Singh of P.S. Chiluwatal, who brought the same. That he found following facts:–

Post mortem of Smt. Vimlesh Sharma

Smt. Vimlesh aged about 35 years had sustained following ante mortem injuries on her person.

1. Multiple incised wound 4 in number over 10 cm x 9 ½ cm area over both side face, left side nose and adjacent and both eye brows. Size of smallest was 3 cm. x 1 cm. x bone deep and the biggest was 6 ½ cm. x 2 ½ cm x bone deep.

2. Incised wound 6 cm x 1 cm x bone deep over left side head 10 cm above from left ear.

3. Multiple incised wound over right side head 10 cm x 8 cm x bone deep, 5 cm above and posteriority to right ear.

4. Second and third toe of right foot were burnt.

On internal examination right side occipito parietal bone was found fractured into pieces. Scalp and membrane contained haematoma. Brain contained profuse haematoma. The Stomach contained 6 ounce semi digested food materials. The cause of death was due to coma as a result of ante mortem head injuries.

Post mortem-of Km. Monika.

Km. Monika aged about 2 ½ years has sustained following ante mortem injuries on her person:–

Incised wound 3 cm x 1 cm x bone deep over left side head. 8 cm. above left ear.

On internal examination ternporo parietal bone was found fractured. Membrane and brain contained haematoma. Two ounces fluid was found in the stomach and cause of death was due to coma, as a result of head injury.

Post mortem of Km. Indu .

Km. Indu Sharma aged about 7 years had sustained following ante mortem injuries on her person:–

1. Incised wound 3 cm x 1 cm x bone deep over left side forehead, 6 cm above from left eyebrows.

2. Incised wound 7 cm x 4. cm x bone deep over left side head, 5 cm above from left ear.

On internal examiantion fronto parietal bone was found fractured. Haematoma was present in scalp, membane and brain. The stomch contained three ounce semi digested food material. The cuase of death was due to coma, as a result of head injury.

23. In his cross examiantion Dr. Gupta stated that in case the death of Smt. Vimlesh Sharma had taken place due to electric shock, there would have been different symptoms for the same, which was not found on her body. That incised wound and fracture of bones of head indicated that a heavy sharp cutting weapon would have been used. Fracture of bones of children was possible due to ordinary knife, but it was not possible for fracture of bones of Smt:. Vlmlesh Sharma. However, It would have been possible due to butcher’s knife. He further stated that the death of deceased was also possible between 7 and 8 P.M. on 16-6-1997.

24. Constable Dinesh Chandra Joshl (PW-12) stated that on the night of 16-6-1997 between 10.30 and 11 p.m. constable Brij Bhushan Sharma came to his quarter and told that his wife and children have died. Constable Satish. Hawaldar CISF was also with him. How his wife and children died, was not told to him by the accused. At that time he was packing his house hold articles as he was transferred. On getting information from B.B. Sharma he along with B.B. Sharma and Satish came to the quarter of accused and found there that one window was open and fan and light in the room were on. He saw from the window that wife of accused was lying on the floor and her mouth was blood stained and her two daughters were also lying on the floor. The quarter of B.B. Sharma was locked from the outside. Accused B.B. Sharma was weeping and crying that his wife and children died, but was not telling how it was done. He also did not try to open the lock of house. Other persons and civil police came on the spot in the night. Dog squad also came and when the dog squad returned police had arrested two persons, whom he was not knowing. In his cross examination the witness stated that lock of the door of accused was of medium size and was locked by key. He did not notice whether the lock could be locked by pressure.

25. Chandrapal Sharma (PW 13) the father-in-law of the accused stated that his daughter. Vimlesh Sharma was married with the accused on 29-6-1986. Quarrel had taken place about the dowry at the time of marriage. Bhupendra, the brother of accused had written a letter (Ext. Ka-12) on 29-9-1986 regarding demand of dowry. On 31-8-1996 B.B. Sharma had written a letter (Ex. Ka-16) to his daughter condemning her conduct. He also proved letters (Ext. Ka-17), (Ext. K-18) (Ext. Ka-19) and (Ext. Ka-20) written by accused to his wife. His daughter Vimlesh Sharma had also written letter (Ext. Ka-21) to him complaining about the conduct and behaviour of the accused.

26. Constable Moharrier Shesh Narain Tiwari (PW-14) is the scribe of chick, F.I.R. (Ext, Ka-24) and stated that he prepared chick F.I.R. (Ext. Ka-24) on the basis of written report (Ext, Ka-8) and endorsement of the lodging of F.I.R. and registration of the case against the accused was made by Constable Upendra Sharma in G.D. report (Ext. Ka.-25). In his cross examination he stated that after lodging of the report he sent papers of the case inquest report book and other papers to the I.O. through Constable Prem Shankar Yadava.

27. Constable Hridya Nand (PW-15) stated that he escorted the sealed dead bodies -of Smt. Vimlesh Sharma, Km. Indu Sharma and Km. Monika Sharma from the spot to the mortuary and produced before the Doctor, who conducted post mortem.

28. Constable Sibbon Lai (PW-16), Rajendra Pandey (PW-17), Smt. Vasant (PW-18) and Km. Para (PW-19), who were examined by the prosecution to State about the conditions in which the accused was seen roaming outside his house after the occurrence had not supported the prosecution story and were declared hosile.

29. Sri C.D. Basnet, Constable of, CISF (PW-20) stated that at the time of occurrence he was residing In quarter No. E-792 FCL Colony and his quarter was on upper story. Accused B.B. Sharma was residing on the ground iloor portion of the quarter. On the night of occurrence he was sleeping on the open roof of his quarter. At about 9.30-10 p.m. his wife awoke him and told that entire family of B.B. Sharma accused had been finished. He awoke and rushed to the quarter of the accused. Several persons had assembled there. He peeped through broken glass of window and saw that wife and daughters of accused were lying dead and his quarter was locked from outside. B.B. Sharma was not present there, Hawaldar Major Satish Chandra Yadava told him to send information to the Lines. He immediately went to Lines and informed to Lines Santary and returned to his quarter. At about 4.30-5.00 p.m. on the same day he had seen wife and two daughter of B.B. Sharma in front of Kitchen garden of their house and thereafter he saw them dead. When he returned from Lines he found B.B. Sharma accused weeping in front of his quarter and saying that his entire family was ruined. Neither B.B. Sharma nor any other person tried to open the lock.

30. Sub Inspector Vijay Shankar Singh Yadava (PW-21) is the I.O. of the case. He stated the papers regarding the case were received by him on the night of occurrence at village Sikhaur. He reached the spot and started investigation. First of all he prepared site plan (Ext. Ka-26). Several persons were present on the spot. Accused B.B. Sharma was also present there and he was frightened. He had not enquired of him at that time. He conducted inquest of the dead bodies in the morning and prepared inquest report and other papers. From the spot he recovered one ‘Pahsul’, which was washed and placed at chair, blood stained pillow covers, blood stained khaki pant, which the accused was wearing, electric heater, cable wire, a broken chain of wrist watch, broken pieces of bangles, blood stained and simple piece of floor, sealed above articles on the spot and prepared recovery memo. On examination of the person of the accused he found that there was scratch on his left hand, which was probably due to breaking of chain of wrist watch. On 16-6-1997 the Sub Inspector inspected duty register of the Unit of accused and found that on the night of occurrence his duty was from 13 p.m. to 21 p.m. The accused had singed at the time of joining duty and but had not signed while leaving the duty. He obtained extract of duty register (Ext. Ka-18). The lock at the quarter of the accused was got broken. On inspection of the quarter of the accused he did not find any sign of theft or dacoity in the quarter or entry of any outsiders. The murders appeared to have been committed patiently. No sign of resistance on the part of the deceased came to notice. A basket was found lying in the bath room, but no lock of the boxes inside the quarter was broken. In his cross examination, the witness stated that he reached the spot at about 12-12-15 in the night. He did not find any blood stains on the switch board inside the bath room. He noticed that some red coloured thing was washed in the bath room, but had not mentioned this fact in the case diary. On enquiry the accused told that lock belonged to him, but he had no key. The accused also told before him that when he entered into the room from back door by pushing it, he slipped and fell down on the floor. He was wearing uniform at that time. That he apprehended the accused on 19-6-1997 in village Bhagwanpur. He further stated that at the time of his visit he found back door of the quarter of accused open.

31. This was the gist of evidence adduced by the prosecution.

32. In this case, there is no direct evidence and the case is based on circumstantial evidence. Sri V.C. Tiwari, learned counsel for the appellant contended that circumstantial evidence must be of conclusive nature and nothing but guilt of the appellant be proved excluding his innocence. That chain must be complete. That the distance between what “may be proved” and what “must be proved” has to be travelled by the prosecution by cogent, sufficient and reliable evidence. He further contended that in this case there is no complete chain of circumstances, which leads to the hypothesis of guilt of the accused. That it is not known when and how the murder took place and who murdered the deceased and there was no motive for the appellant to commit murder of his own wife and two minor children. The circumstances relied on by the prosecution are not conclusive and the totality of circumsances cannot prove the guilt of the appellant.

33. In the case of Sharad Birdhi Chand Sarda v. State of Mharashtra, AIR 1984 SC 1633 : 1984 Cri LJ 1738 the Apex Court enumerated following five golden principles of the proof of a case based on circumstantial evidence:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must or should” and not “may be” established.

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

3. The circumstances should be of a conclusive nature nd tendency.

4. They should exclude every possible hypothesis except the one to be proved, and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

34. The Apex Court further held in the case of Tarseem Kumar v. Delhi Administration, 1994 JT (5) SC, 264 (AIR 1994 SC 2585) that in the cases based solely on the circumstantial evidence, the Court has to be satisfied that (i) The circumstances from which conclusion of guilt is to be drawn has been fully established, (ii) All the facts so established are consistent only with the hypothesis of guilt of the appellant and they do not exlcude any other hypotheses except the one sought to be proved (iii) The circumstances on which reliance has been placed are conslusive in nature.

35. It was further held by the Apex Court in the case of Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 : (AIR 1991 SC 1388) that in cases depending largely upon circumstantial evidence there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the complete chain must be such as to rule out a reasonable likelihood of the innocence of the accused. When the main link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this juncture the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. At times it can be of ‘may be true.’ But there is a long mental distance between ‘may be true’ and must be true and the same divides conjectures from sure conclusions.

36. Reiterating the above principles it was held by the Apex Court in the recent case of Joseph v. State of Kerala, (2000) 5 SCC, 197 (AIR 2000 SC 1608) that it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused.

37. It is not disputed that deceased Smt. Vimlesh Sharma was wife of appellant and Km. Indu Sharma and Km. Monika Sharma were his daughters. Their death and cause of death is also not disputed. It is also admitted that three persons were found dead inside the quarter No. E 788 CISF Colony, Fertiliser Corproation of India, Gorakhpur. The evidence of Dr. R.A.L. Gupta referred to above as well as the fact that dead bodies of deceased were found inside the room clearly established that the three deceased died due to incised wounds on their persons and that their death was homicidal.

38. In the light of above principles we have to scrutinise whether the circumstantial evidence led by the prosecution is sufficient to prove the guilt of the appellant.

39. From the evidence of the prosecution referred to above, the prosecution has relied on the following circumstances:–

(1) The relations between the appellant and his wife Smt. Vimlesh Sharma deceased, were strained as it was apparent from the evidence of Chandrapal Sharma (PW-13) father-in-law of the appellant and the letters written by the appellant and Smt. Vimlesh Sharma deceased to each other.

(2) On the date of occurrence the appellant and three deceased were living in quarter no. E-778 FCI Colony, Gorakhpur and no other person was residing there. No other person had any motive or occasion to commit the murder of three deceased and there was no sign of theft, robbery or dacoity to indicate entry of any outsider.

(3) Duty hours of appellant on the day of occurrence was from 1 p.m. to 9 p.m. The appellant had signed the duty register at the time of arrival on duty, but had not signed the register while leaving the duty.

(4) Surendra Kumar (PW-6) had seen the appellant at about 8 p.m. in the night of occurrence roaming near his quarter and wearing pant and baniyan.

(5) At about 10-11 p.m. in the night of occurrence, the appellant was raising alarm that his wife got electric shock, while Medical evidence showed that all the three deceased died due to coma as a result of ante mortem head injuries and all the three deceased had multiple incised wounds on their head. Still an attempt was made to give a false picture that Smt. Vimlesh Sharma got electric shock through electric heater to pretend that Smt. Vimlesh Sharma died due to electric shock, which she got at the time of preparing some food on electric heater.

(6) Inspector K.K. Mohanan (PW-1) enquired from the appellant about the occurrence, but he did not disclose any thing about the occurrence.

(7) The quarter of appellant was locked from outside to pretend that inmates of house had gone out.

(8) Khaki pant (of uniform of appellant) which the appellant was wearing contained human blood.

(9) The appellant gave false explanation that lock on outer door did not belong to him and regarding presence of human blood on his pant that when he came to his quarter and peeped from window found his wife and children dead, then he entered into the quarter from back door, which was open and slipped in darkness due to which his pant was soaked with blood.

40. We will consider whether the above circumstances have been sufficiently proved and provide complete, chain of circumstances through which the hypothesis of guilt of appellant can be inferred.

41. Regarding motive Chandrapal Sharma (PW-13) father in-law of appellant stated that the appellant was not saitsfied with the dowry given to him at the time of marriage as the appellant had demanded dowry of Rs. 5,100/- and he could provide only Rs. 2,100/-. Annoyed with it the appellant had left the articles given in dowry. He had also written letter dated 20-9-1986 (Ext. Ka-12) that he was not satisfied with the dowry given by the witness. Smt. Vimlesh Sharma had written letter in July, 1986 (Ext. Ka-14) to the appellant that her brother would pay the money of dowry. The appellant had written letter on 31-8-1986 (Ext. Ka-16) to Smt. Vimlesh Sharma condemning her conduct, which would be harmful for her and that he was also a bad person. The appellant had also written letter dated 11-7-1987 (Ext. Ka-18) to his wife Smt. Vimlesh Sharma saying that he was an angry person and would not pardon her of any mistake. Smt. Vimlesh Sharma had also written a letter dated 30-10-1992 (Ext. Ka-20) to her mother that Satyendra, brother of accused had misbehaved with her and when she told this to her mother-in-law, she tried to hush up the matter but she mentioned this fact in the letter to her husband that she was apprehending that Satyendra might repeat his misbehaviour and it was not appreciated by the appellant, who showed his anger. Chandrapal Sharma (PW-13) further stated that marriage of Bhupendra younger brother of appellant was settled on 11-2-1997 and the marriage of Nirmala the younger sister of Smt. Vimlesh deceased was also settled on 14-2-1997. Smt. Vimlesh Sharma had come to Aligarh to participate in the marriage of Nirmala and the appellant had directed her to come to his house on 15-2-1997. However, she could not go to her ‘Sasural’ at village Khusalpur on 15-2-1997 and went there on 16-2-1997. The appellant came to his house at Aligarh at 9 p.m. on 16th and was very angry. Smt. Vimlesh Sharma had also written letter dated 26-2-1997 to him (her father) that appellant often quarrelled on account of dowry given in the marriage as his younger brother recieved more dowry in his marriage and he also threatened her to kill.

42. The above letters were proved by Chandrapal Sharma (PW-13). It was contended by the learned counsel for the appellant that these letters were not given to I.O. during investigation and the possibilities that these letters were subsequently manufactured cannot be ruled out. But having considered the postal stamp on the above letters filed by the witness it cannot be said that these letters were subsequently prepared. The appellant had also filed certain letters written by Smt. Vimlesh Sharma and her father to him and letters written by Tarun Sharma brother-in-law of appellant and Saroj Sharma sister-in-law of appellant to him, which were proved by Bhupendra Kumar Sharma (DW-1) which indicate that relations between Smt. Vimlesh Sharrna and appellant were very much cordial. The learned counsel for the appellant further contended that the marriage of appellant with Smt. Vimlesh Sharrna subsisted for 11 years and during this period some sort of altercation often took place, but this does not mean that: appellant wanted to get rid of Smt. Vimlesh Sharrna and there was also no possibility of any cruelty on account of demand of dowry after a lapse of 11 years of marriage.

43. From perusal of above letters, it appears that some tit bits often took place between the appellant and his wife, but the wife and children of apnellant were residing with him, at the place of his duty. It may be said that these letters do not. show that the appellant really wanted to get rid of his wife. Moreover, there is nothing in the above letters against the two minor daughters of the appellant, who were also murdered in the same incident.

45. But what was going on between the appellant and his wife may not be known by the others and it was very difficult for the prosecution to collect evidence on the motive. The absence of motive in a case based on circumstantial evidence is not fatal and if the prosecution could not adduce evidence on the motive, it does not indicate innocence of the appellant. It was held by the Apex Court in the case of Mulkh Raj v. Satish Kumar, AIR 1992 SC 1175 (1992 Cri LJ 1529) that in cases of murder circumstantial evidence bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover motive of an offence does not signify its non existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.

46. Again it was held by the Apex Court in recent case of State of U.P. v. Babu Ram 2000 (4) JT SC 456 (2000 All LJ 1439) that there is no legal warrant for making a hiatus in criminal cases for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. In, a case depending on circumstantial evidence, motive could be counted as one of the circumstances. However it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to ban imposed by law and it is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person who be offended.

47. It this way, the helplessness of the Investigating Officer in collecting evidence of the neighbours regarding motive is not an insurance that the appellant was innocent.

48. It is not disputed that quarter No. E-778 FCI Colony, Gorakhpur was allotted to the appellant in which he was residing along with his wife Srnt. Vimlesh Sharma deceased and two daughters Km. Monika Sharma and Km. Indu Sharma deceased. It is not the case of either party that any other person was residing in the said quarter or had easy access in the said quarter. It is also not disputed that the murder of the three deceased took place inside bed room of the said quarter. The occurrence had taken place between 8-9 p.m. in the month of June, 1997 in the Colony where there are several quarters on ground floor and first floor. In case any outsiders would have entered into the room of the deceased for committing murder of the three deceased, he must have been noticed by the neighbours and in all probability wife and children of appellant would have raised alarm. There is also nothing on record to show that any other person had motive to commit the murder of the deceased. No doubt, the appellant has stated in his statement-Under Section 313, Cr. P.C. as well as in the written statement filed by him that butcher’s son was having an evil eye on his wife and he would have murdered his wife. But lie had not disclosed his name and in case he would have entered into the quarter of the appellant in his absence, Smt. Vimlesh Sharma or her daughters must have raised alarm and the neighbours and inmates of the nearby quarters would have come to her rescue. It is not the case of the appellant that his wife had any sort of illicit connection with any other person or that any other person also had access to his quarter in his absence. Therefore, there appears no force in the contention of the appellant that butcher’s son would have entered into the quarter of the appellant and would have murdered the deceased as there is no evidence on record to establish the same and the circumstances appearing in the case rule out of such a possibility. As mentioned above it is also clear from the evidence of Dr. R.A.L. Gupta (PW-11) that death of all the three deceased was homicidal.

49. It is also in the evidence of Sri Vijay Shankar Singh Yadav (PW-21) I.O. the case that no sign of theft or dacoity was found on the spot. There was also no sign regarding commission, of offence by outsider. The conditlpn of the dead bodies as noticed by the I.O. also indicated that the three deceased were murdered patiently and not a hit and run manner. Taking an overall view of the above circumstances it is clear that the above circumstantial evidence is conclusive on the point that there was no other inmate in the room of occurrence expet the deceased and the appellant. If the three deceased had died homicidal death none else but the appellant was their assassin.

50. Admittedly on the day of occurrence the duty hours of appellant was from 1 p.m. to 9 p.m.I.O. Vijay Shankar Singh Yadava (PW-21) checked the duty register of the appellant and according to above duty register the appellant had signed the duty register on arrival of the duty, but he had not signed the same while leaving the duty. Extract of ‘B’ Shift duty register on 16-6-1997, 13.00 hours to 21 hours (Ext. Ka-27) shows that name of Sri B.B. Sharma appellant is shown at Sl. No. 7 and he signed the duty register at the time of arrival (at 12,40 p.m.) and there was no signature at the time of leaving the duty while other constables had signed the above register twice, on arrival of the duty and at the time of leaving the duty. It also shows that except appellant no other constable on duty had mentioned time of arrival (12.40 p.m.). This indicates that appellant with guilty mind was making his alibi from before the occurrence. This conduct of appellant is a factor which points towards his guilt.

51. The appellant examined Manoj Kumar Das Inspector CISF (DW-3) who stated that on 16-6-1997 appellant Brij Bhushan Sharma had reported for duty at Control Room at 12.40 p.m. and his duty was to parol from Railway gate to Hower No. 4 and his duty hours were from 1 p.m. to 9 p.m. He further stated that from perusal of the General Diary of Control Room it is clear that the appellant remained on duty through out and there is no mention of his going outside. In his cross examination he stated that he had not brought the original diary, but its carbon copy as the original General Diary was taken by the police and was sealed. However, he denied the suggestion that in case a person on duty leaves the duty with permission of the In-charge, no endorsement of it is made in the General Diary. The fact that the appellant had not signed duty register at the time of leaving of the duty itself indicates that the appellant had left duty much before 9 p.m. and his contention that he left his duty at 9 p.m. does not appear correct.

Sri Surendra Kumar (PW-6) categorically stated that he was residing with his Brother-in-law (Sala) in quarter No. E-778 FCI Colony, Gorakhpur and was practising in Civil Court, Gorakhpur. That on 16-6-1997 at about 8 p.m. while he was walking in the Colony along with a person and reached near quarter of B.B. Sharma appellant, he observed the appellant roaming near his quarter and at the time he was wearing a pant and “Baniyan” and some clothe was kept on his shoulder. Though the witness was declared hostile on some other point, but no cross examiantion was made from him on the point that he had seen the appellant roaming near his quarter at about 8 p.m. on the night of 16-6-1997. It is settled law that entire testimony of a hostile witness cannot be discarded simply because he was declared hostile by the party examining him and that much of his evidence will be relied on which is reliable. Therefore, the evidence of the witness that he had seen the appellant roaming near his quarter at about 8 p.m. can be safely relied upon as it had not been challenged by the appellant. The witness had no motive to depose falsely. As the witness was residing in the same colony and therefore had occasion to reach near the quarter of the appellant while walking in the colony,

53. The learned counsel for the appellant argued that if the appellant as seen near his own quarter it was not unnatural arid is not an incrimianting circumstances. But contention of appellant was that he was on his duty from 1 p.m. to 9 p.rn. and murder was done during his absence. The fact that he was seen near his quarter at 8 p.m. when he claims himself on duty at that time, falsifies the defence of appellant that he left his duty hours at 9 p.m. and reached at his quarter at about 9.20-9.25 p.m. and indicates that the appellant had left his duty much before and had corne to his quarter to fulfil his evil design.

54. The evidence of Shyam Dutta Pande (PW-9) a student and resident of quarter No. E-790 is on the point that on the night of 16-6-1997 he was busy in his studies as his examination was to commence from 20th. At about 10-11 p.rn. he heard alarm that fire had taken place. He also heard alarm that shock had taken place from electric courrent and Brij Bhushan Sharma was raising alarm that his wife got electric shock. He came out of his quarter and was standing in front of the quarter. His mother told that at such time person be helped. He rushed to the house of appellant with a hammer and tried to open the lock, but was stopped from doing so by the person residing on the upper storey. This witness had no motive to depose falsely against the appellant and there is no such suggestion in his cross examiantion. He was a student and his examination was to commence from 20th. Therefore, he must be busy in his studies. Being a young boy he had enthusiasm to reach the spot to help his neighbour. Therefore, his arrival on the spot was natural and probable and there is no ground to disbelieve him. The evidence of Shyam Dutta Patidey clearly indicates that the appellant wanted to spread a false story that his wife died due to electric whock. As mentioned above the I.O. found one electric heater with electric cable and plug near the dead body of Smt. Vimlesh Sharrna and Dr. R.A.L. Gupta (PW-11) found at the time of conducting autopsy on the dead body of Smt. Vimlesh Sharma that the second and third toe of right foot were burnt. This burning was due to electric current. A suggestion was also given to Dr. Gupta that death of Smt. Vimlesh Sharma was possible due to electric shock, but he repelled the above suggestion. The presence of electric heater near the dead body of Smt. Vimlesh Sharma and the evidence of Shyam Dutta Pandey show that appellant was aware of the fact as to how Snit. Vimlesh Sharma and his two dauthers were murdered, but he wanted to give a different picture of the occurrence to show his innocence.

55. Inspector K.K. Mohanan (PW-l) on getting information about the death of wife and children of appellant came to the quarter of appellant and found him present there. He enquired from the appellant as to how his wife and children had died, but he kept mum and did not disclose any thing about the occurrence.

56. Admittedly, the quarter of appllant was locked from outside. The appellant had told before the I.O. that the lock did not belong to him. It is also not disputed that the above lock was not broken when the appellant came to his quarter for the first time and found his room locked from outside. He did not try to get the lock open either himself or with the help of other persons, but he preferred to enter into the room from the back door, which according to him was open. This circumstance also shows that quarter was locked from out side to give impression to the neighbours and others that inmates of the house had gone out and it was also in the knowledge of appellant that back door was open.

57. Admittedly, the khaki pant of the uniform of the appellant which he was wearing was blood stained. The I.O. had taken into possession the above pant of the appellant and had sent the same for chemical examiantion. The report of Chemical Examiner and Serologist (Ext. C-1) shows that the pant contained human blood. The appellant in his statement Under Section 313, Cr. P.C. was asked to explain about the presence of human blood on his pant and at first time he explained the same in an answer to question No. 5 that he knew only this much that after, three or four days of the occurrence Darogaji demanded pant from him and he handed over the same to him, but the evidence of I.O. and the recovery memo of pant (Ext. Ka-7) shows that pant was taken into possession by the I.O. on the next morning of the occurrence. The appellant had offered another explanation regarding this fact in his written statement (paper No. 60-B) submitted before the Trial Court on 5-10-1998 that when he came to his quarter along with his colleague Arup Kalsena at about 9.20 or 9.25 p.m. and found no light in the quarter and the quarter being locked. He wa;s frightened and peeping from window he saw his wife and daughters lying on floor in pool of blood. He became purturbed and entered into the quarter from back door, which was open. Due to dim light he slipped on blood on the floor and the above blood was soaked in his pant of uniform. The above explanation does not appear convincing as the appellant was seen cut side his quarter at 8 p.m. and was found wearing only pant and baniyan. The fact which is within the knowledge of the accused, the burden of proof of that fact lies on him and false answer to question put Under Section 313, Cr. P.C. is a missing link for completing the chain of circumstances. The false explanation given by the accused provided a missing link in the circumstances. In the case of Swapan Patra v. State of West Bengal, 1999 SCC (Criminal) 1153 it has been held by the Apex Court that it is well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. The similar principle was reiterated in the case of State of Maharashtra v. Suresh, 2000 SCC (Criminal) 263 and in the case of Kuldeep Singh v. State of Rajasthan, (2000) 5 SCC 7 (AIR 2000 SC 3649) in Which it was held by the Apex Court that a false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. It was further held that in a situation like this a false answer can also be counted as providing “a missing link” for completing the chain. It was also held by the Apex Court in the case of Joseph v. State of Kerala, (2000) 5 SCC 197 (AIR 2000 SC 1608) that missing link to connect the accused-appellant in the case was provided by the blunt and outright denial of every one and all 6f the incrimiant-ing circumstances pointed out which, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of the deceased.

58. Dr. R.A.L. Gupta (PW-11) stated that death of the three deceased could have occurred at about 9 p.m. on 16-6-1997. However, in his cross examination he also stated about possibility of death at 7 or 8 p.m.

59. The defence of the appellant was that on the date of occurrence he was on his duty from 1 p.m. to 9 p.m. and reached his quarter at about 9.20 or 9.25 along with his collegue Arup Kalsena and found his wife and children murdered. But evidence of Surendra Kumar (PW-6) and extract of Duty Registar (Ext. Ka-27) show that he had not signed duty register while leaving his duty and falsify the above defence theory. Moreover, Arup Kalsena with whom the appellant claimed to have come to his quarter at about 9.20 or 9.25 p.m. was not examined by him. This further indicates that Arup Kalsena was not prepared to depose falsely.

60. In this way the circumstances enumerated above have been fully established by the prosecution. The above circumstances taken together complete the chain of events that appellant having planned to get rid of his wife left his duty on 16-6-1997 much before the scheduled time, came to his quarter, murdered his wife and two minor daughters patiently, gave electric burn on the foot of his wife to show that his wife died due to electric shock, washed pahsual, locked the room from outside to give an impression that inmates of the house had gone some where else, and after 9.30 which was usual time of his return from duty raised alarm that his wife got electric shock and informed officers of his Department that his wife and daughters were murdered by some one else.

61. The incriminating circumstances enumerated above unmistakably and inevitably lead to the fuilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. It is also clear from the statement of the appellant Under Section 313, Cr. P.C. and the written statement filed by him that the appellant instead of making at least an attempt to exlain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude and set up a case of total denial and that he remained on his duty from 1 p.m. to 9 p.m. and reached his quarter at 9-30 p.m. by which time his wife and two daughters were murdered. Thus, he denied everything when those circumstances were brought to his notice. The above circumstances were personally arid exclusively within the knowledge of the appellant and only he could explain the same and as such it provides missing link for completing the chain of incriminating circumstances necessary to connect the appellant with the crime committed. Therefore, for the reasons stated above we have no hesitation to agree with the finding of the Trial Court holding the appellant guilty of the offence punishable Under Section 302, IPC for committing murder of his wife and two minor daughters.

62. The next question, which arises for consideration is whether the sentence of death awarded to the appellant is appropriate.

63. Learned counsel for the appellant submitted before us that after recording conviction of the appellant Under Section 302, IPC the learned Sessions Judge imposed death sentence on the same day only on hearing the learned counsel for the accused (Amicus Curiae) without giving real and effective opportunity of hearing on the question of sentence as envisaged by Section 235(2) Cr. P.C. A perusal of the judgment under appeal sows that the appellant was brought in custody before the Court when the order of conviction was pronounced against him. The learned Sessions Judge thereafter observed that hearing on the question of sentence shall be held on the same day. Thereafter, taking into consideration the aggravating circumstances appearing against the appellant the learned Sessions Judge imposed extreme penalty of death upon the appellant. In our opinion, the learned Sessions Judge has not made due compliance of the provisions of Section 235(2), Cr. P.C. which requires “to hear the accused on the question of sentence and then pass sentence on him according to law”.

64. The question as to what is the import and meaning of expression “hear the accused on the question of sentence” occurring in Sections 235(2) and 248(2) Cr. P.C. is no more a debatable one and the same has been answered in a catena of decissions of the Supreme Court. In Santa Singh v. State of Punjab, AIR 1976 SC 2386 it was held that this new provision is in consonance with the modern trend in the penology and sentencing procedure. It was held that the hearing on the question of sentence would be rendered devoid of all meaning and content and would become an idle formality if it were to be confined merely to hearing oral submission without giving an opportunity to the parties and particularly to the accused to produce material in regard to various factors bearing on the question of sentence and if necessary, to lead evidence for the purpose of placing such material before the Court. It was also held therein that Section 235(2) enjoins on the Court that after passing judgment of conviction, the Court should stay its hand and hear the accused on the question of sentence before passing the sentence in accordance with law, which obviously postulates that the accused must be given’ an opportunity of making his representation only regarding the question of sentence and for this purpose he should be allowed to place such material on record as he may think fit, but which may have hearing on the question of sentence.

65. In the another decision in Allauddin Mia v. State of Bihar 1989 SCC (Criminal) 490 (AIR 1989 SC 1456) the Apex Court further explained the importance of this right of accused which is enshrined in Section 235(2) Cr. P.C, and laid down certain guide lines for the trial Courts to follow before sentencing an accused. It was observed (at page 1466 of AIR) :

The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced Sub-section (2) to Section 235. The said provision, therefore, satisfies a dual purpose, it satisfies the rule of natural justice by affording to the accused an apportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutory and must be strictly followed. It is clearly mandatary had should not be treated as a mere formality.

In a case of life or death as stated earlier, the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this case, without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc. before the Court, the Court decision on the sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has far more serious consequences on the offender and his family members than in the case of a purely administrative decision, a fortiori, therefore, the principle of fair play must apply with greater vigiour in the case of the former that the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. Likewise a sentencing decision taken without following the requirements of SubSection (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing Court must approach the question seriously and must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence.

We think as a general rule the trial Court should after recording the convinction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender.

67. In the present case we are unable to find either from the judgment or from the record that there has been due compliance of the provisions of Section 235(2) Cr. P.G. and since death penalty has been awarded to the appellant, we feel it appropriate to give that opportunity to the appellant here in this Court.

68. For the reasons assigned above, we maintain the conviction of the appellant Under Section 302, IPC. However, the sentence shall be passed after the appellant is heard on the question of sentence as per requirement of Section 235(2) Cr. P.C. Let the appellant be called from jail to appear before this Court on 15-12-2000 for hearing on the question of sentence and he shall also be at liberty to produce evidence material having a bearing on the question of sentence.

Order of Sentence

69. Pursuant to the order dated 7-12-2000 whereby we had called upon the appellant to hear him on the question of sentence and to produce evidence material having bearing on the question, of sentence, appellant Brij Bhushan Sharma was produced in custody before us. We afforded him opportunity of hearing as per the requirement of Section 235(2) Cr. P.C. The appellant stated before us, which had been reduced in writing, that he had nothing to say and no evidence material was to be produced.

70. We have also heard learned A.G.A. and Sri V.C. Tiwari, learned Senior Counsel appearing for the appellant on the question of sentence.

71. As per order dated 7-12-2000 we have maintained the conviction of appellant Under Section 302, IPC, now it is to be considered as what sentence be imposed on the appellant. The Trial Court has awarded the appellant, the extreme penalty of death considering the case to be an exceptional one of brutality and cruelty as he murdered a helpless wife and two innocent female children being her husband and their father,, who owed a duty to maintain and look after them.

72. It was observed by the Apex Court in the case of Om Prakash v. State of Haryana, 1999 SCC (Cri) 334 : (AIR 1999 SC 1332) that it is true that the Court must respond to the cry of the society and to settle what would be a deterrent punishment for an abominable crime. It is equally true that a large number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. It is also a turism as observed in the case of State of M.P. v. Shyamsunder Trivedi, 1995 SCC (Cri) 715 : (1995 AIR SCW 2793) that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect, in the ultimate analysis, the society suffers and a criminal gets encouraged. Sometimes it is stated that only rights of the criminals are kept in mind the victims are forgotten. Despite this it should be kept in mind that while imposing the rarest of rare punishment, i.e. death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of that case.

73. Dealing with this aspect in the case of Shankar v. State of Tamil Nadu, 1994 SCC (Cri) 1252, the Apex Court observed as under :–

The choice as to which of the two punishments provided for murder is the poroper one in a given case will depend upon the particular circumstances of that case and the Court has to exercise its discretion judicially and on well-recognised principles after balancing all the mitigating and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about the crime which renders sentence of imprisonment of life inadequate and calls for death sentence. The nature of the crime and the circumstances of the offender should be so revealing that the criminal is a menace to the society and the sentence of imprisonment of life would be inadequate. The sentence of death should be reserved for the rarest of rare cases after a due consideration of both mitigating and aggravating circumstances. What circumstances bring a particular case under the category of rarest of rare cades vary from case to case depending upon the nature of the crime, weapons used and the manner in which it is perpetrated etc.

74. A constitutional Bench of the Supreme Court in the case of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : (AIR 1980 SC 898) the Apex Court after referring to aggravating circumstances held that the following mitigating circumstances are undoubtedly relevant circumstances and must be given weightage in determination of sentence.

(1) xx xx xx xx

(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.

(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.

75. The Apex Court further observed in the said case that there are numerous other circumstances justifying the passing of the lighter sentence, as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murders has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extrems penalty with extreme in-frequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high road of legislative policy outlined in Section 354(3), viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception.

76. In Rajendra Prasad v. State of U.P. AIR 1979 SC 916 : (1979 Cri LJ 792) in its majority judgment the Apex Court observed :

It is not the number of deaths caused nor the situs of the stabs that is telling on that decision to validate the non application of its ratio. It is a mechanistic art which counts the cadavers to sharpen the sentence obligious of other crucial criteria shaping a dynamic realistic policy of punishment.

Three deaths are regrettable, indeed terrible. But it is no social solution to add one more life lost to the list. In this view, we are satisfied that the appellant has not received reasonable consideration on the question of the apprepriate sentence. The criteria we have laid down are clear enough to point to the softening of the sentence to one of life imprisonment. A family, feud, an altercation, a sudden passion although attended with extraordinary cruilty, young and malleable age, reasonable prospect of reformation and absence of any conclusive circumstances that the assilant is a habitual murderer or give to chronic violence-these catena of circumstances bearing on the offender call for the lesser sentence.

77. Again in Anshad v. State of Karnataka (1994) 4 SCC 381 it was observed that the number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case falls in the category of rarest of rare cases’. The Court must keep in view the nature of the crime and the brutality with which it was committed, the antecedents of the criminal, the weapons used etc. It is neither possible nor desirable to catalogue all such factors and they depend on case to case.

78. The learned A.G.A. contended that in the instant case the appellant has murdered his own wife and two innocent female children aged about 7 years and 2 ¼ years in a planned manner for no fault of them and at every stage tried to give a false version such as pleading false alibi, showing false cause and manner of death and was unable to show the circumstances, which compelled him to kill them. That the victims were none else, but the own wife and children of the appellant and the appellant being their guardian committed ghastly crime and brutal murder, which comes within the category of rarest of rare cases. He also placed reliance on the cases of Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420 : (1994 Cri LJ 3420) Amrutlal Someshwar Joshi v. State of Manarashtra, AIR 1994 SC 2582 and Jai Kumar v. State of M.P., AIR 1999 SC 1860 : (1999 Cri LJ 2569).

79. On the other hand, Sri V.C. Tewari, learned Senior Counsel for the appellant contended that in the instant case the prosecution was not able to establish the motive for which the victims were murdered and it is also not clear from the evidence adduced by the prosecution as to what had exactly preceded the attack on the victims and what prompted him to inflict those injuries on his own kith and kin and therefore, it is not one of the rarest of rare cases, where death sentence alone should be awarded. He placed reliance of cases Vithal v. State of Maharashtra, 1994 SCC (Cri) 629, Bullu Das v. State of Bihar, 1998 SCC (Cri) 1721, Om Prakash v. State of Haryana, 1999 SCC (Cri) 334 : (AIR 1999 SC 1332) and Ranadhir Basu v. State of W.B., 2000 SCC (Rel) 587 : (AIR 2000 SC 908).

80. In Suresh Chandra Bahri’s case (supra) the main accused had strong motive and entertained some grievances against his wife because she had made up her mind to dispose of house and migrate to Foreign Country, in which her parents were settled, along with her children with the sale proceeds against the wishes of her husband and therefore to put an end to her life accused planned a long drawn plot and hatched a conspiracy with the other accused for execution of this plan and committed murder of his wife and 8 years old daughter. In the above circumstances of the case it was found that the evidence on record showed that the murder of wife was committed in an extremely, brutal, gruesone, diabolical revolting and dastardly manner so as to arouse intense and and extreme indignation of the society. The victim was subjected to inhuman acts of torture and cruelty while causing her murder as her body was truncated into two parts in a devilish style evincing total depravity simply to gain control over the property. Having been not satisfied with the killing of his wife the accused was further determined to kill his two innocent children at his farm making them believe that they were being taken on a pleasure trip to the farm and then after they were done to death by inflicting severe injuries on neck and other parts of the body, threw their dead bodies in the river having no consideration for the human life and that too or his own flesh and blood. Accordingly, it was held that in the facts and circumstances so far as the main accused in conspiracy was concerned the rule of the rarest of rare cases has to be applied as the case fells within the category of the rarest of rare cases and for the perpetration of such crime there could be no other proper and adequate sentence except the sentence of death as there were no mitigating circumstances whatsoever.

81. In the instant case the circumstances occurring in the above rioted case do not exist as there is nothing on record to show that the appellant had murdered is wife for purposes of getting or saving property.

82. In Amrutlal Someshear Joshi’s case (supra) a domestic servant committed cold-blooded, cruel and diabolical crime of murdering three members of a family where he was serving and the motive for the same was loot and extreme greed. It was held that motive was heinous and the crime committed was cold-blooded cruel and diabolical. There was absolutely no mitigating circumstances relevant for awarding a lesser sentence. Consequently, death sentence awarded by the Courts below was confirmed by the Apex Court. None of the circumstances mentioned In the said case are present in the instant case.

83. In Jai Kumar’s case (supra) the accused aged about 22 years entered the house and bolted from outside the mother’s room and threafter removed certain bricks from, the wall and ‘choukat’, thus facilitating the entry into the room where the deceased sister-in-law in advanced stage of pregnancy was sleeping with the child. The evidence on record depicted that the accused committed the murder of his sister-in-law by ‘parsul’ blows and then axe blows on her neck severing her head from the body and taking away her 8 years old daughter and killing her in a jungle by axe blows said to be by offering sacrifice to Mahuva Maharaj and burying her in the sand covered with stones and thereafter the accused came back home and carried the body of the deceased sister-in-law tied in a cloth to the jungle and hung the head being tied on a branch with the heirs and put the body, on the trunk of the tree.

84. Held, the fact that the age of the accused was 22 years cannot, in the factual matrix of the matter under consideration be said to be a mitigating factor. Accused was of 22 years of age while the victim was aged 30 years and at the time of the unfortunate death, she was under pregnancy between 22 to 30 weeks the other victims was an innocent girl a child of 8 years the murders were cold blooded while two victim in helpless and hapless situation…. It certainly, makes it a rarest of a rare cases in which there are no extenuating or mitigating circumstances. Thus, the sentence imposed on accused and confirmed by the High Court was not interfered with the Apex Court. The above situations also do not exist in the instant case.

85. In the case of Om Prakash v. State of Haryana, 1999 SCC (Cri) 334 : (AIR 1999 SC 1332) relied on by the learned counsel for the appellant on account of dispute ever small house between two neighbours seven persons of the rival family were murdered. The murder was prempted and in a well though out manner, but. it was found that the accused was under extreme mental disturbances caused by a constant harassment of his family members by the deceased parties, was were rich and influential despite repeated written prayers the accused was not getting protection from authority concerned. The accused being a disciplined member of paramilitary force aged about 23 years having no criminal antecedents, held, in the circumstances of the case, that the case cannot be treated as one of the rarest of rare cases where lesser sentence of imprisonment of life could not at all be adequate.

86. In the case of Ranadhir Basu’s ease (supra) the accused committed murder of four persons of a family viz parents and grandparents of his paramour, who was his student in a planned manner by poisoning. In the said case initially the accused wanted to kill only the mother of his paramour since she objected her getting familiar with him, but when accused though he was seen by her father and grandparents, who were also coming to that place he gave sweets mixed with poison to them also out of confusion and fright. Held that the subsequent events of murdering the other members of his family occurred unexpectedly and in the circumstances it. was not a fit case in which death sentence could be regarded as appropriate sentence. The sentence, therefore, was reduced to that of life imprisonment.

87. In the case of Vithal v. State of Maharashtra (supra) the accused committed murder of his brother’s wife and inflicting injuries on his father and brother. Thereafter taking 7 years old son of his brother inside the house and afterwards the body was found dead. The cause of death being asphyxia due to strangulation. No explanation was offered by accused as to how he parted with the company of the boy and it, was found from the circumstances that the only inference was that the accused alone caused the death of the boy. It was found that the prosecution has established that accused has committed murders of the two deceased (his brother’s wife and nephew) and caused injuries to his parents. Regarding sentence it was observed as below :–

As discussed above we are not able to agree with the High Court that the appellant, in the said case, committed murder of deceased 1 and 2 and inflicted injuries on P.Ws. 6 and 7 with a deliberate motive of wrongful gain and with extreme greed and therefore he does not deserve to exist arid be a member of the society and that the death sentence is the only appropriate sentence to be awarded and that there are no extenuating circumstances at all. The High Court in arriving at this conclusion has failed to note that PW. 6, who is the main person to be eliminated, has not been attacked by the accused in the manner expected of him with such motive. As already pointed out, what has exactly preceded the attach is not clear. However, the participation of the accused is proved. But what prompted him to inflict those injuries on his own kith and kin is not clearly established by the prosecution. Therefore we cannot say that this is one of the rarest of cases where death sentence alone should be awarded. For these reasons while confirming the conviction Under Section 302, 323 and 326, IPC, we reduce the sentence to imprisonment for life.

88. From the aforesaid decisions, it is thus clear as to what circumstances bring a particular case in the category of rarest of rare case will vary from case to case depending upon the nature of crime, weapons used, the manner in which it is purported and the reasons, cause of motive for which of it was committed. As we have discussed the incriminating circumstances, proved by the prosecution, unmistakably and inevitably lead to the guilt of appellant that the appellant alone committed murder of his wife and two female children aged about 7 years and 2¼ years. We have also found that the prosecution could not establish the motive though the absence or no proof of motive is not fatal and in no way an insurance that the appellant, was innocent, but it. cannot. be ignored that what has exactly proceded the attack on the deceased is not clear and what prompted the appellant to inflict those injuries on his own wife and children is also not clearly established by the prosecution, though the participation of the appellant is proved. Therefore, applying the principles laid down in Vithal’s case (supra), in the absence of motive and cause for murder of his own wife and children and what prompted the appellant to kill his own wife after 11 years of marriage and children aged 7 years and 2½ years, being not established by the prosecution, we are unable to say that this is one of the rarest of rare case where death sentence alone should be awarded. Therefore on visualising the entire facts and circumstances of the case referred to above we are of the view that the sentence of death is liable to be reduced to imprisonment for life. For these reasons while confirming the conviction of the appellant Under Section 302. IPC we reduce the sentence of death to imprisonment for life.

89. Accordingly, the appeal is partly allowed to the extent indicated above. Reference made by Sessions Judge is rejected.

90. Office is directed to send a copy of this judgment to Chief Judicial Magistrate, Gorakhpur, for necessary action.