IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1620 of 2007()
1. NAVAS @ MULANAVAS, S/O.IBRAHIM,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :09/02/2010
O R D E R
C.R.
R.BASANT & M.C.HARI RANI, JJ.
----------------------------------------------
D.S.R.No.4 OF 2007
&
CRL.APPEAL No.1620 OF 2007
-----------------------------------------------------
DATED THIS THE 9th DAY OF FEBRUARY, 2010
J U D G M E N T
Basant, J.
(i) Has the guilt of the accused been established
beyond doubt by the circumstances proved by
the prosecution.
(ii) Is the instant case one that belongs to the
category of rarest of rare cases, where the
alternative options of punishment are
unquestionably foreclosed and a sentence of
death has to be imposed as laid down in
Bachan Singh v. State of Punjab (1980)2
SCC 684.?
(iii) Does the decision in Swamy Shraddananda
(2) v. State of Karnataka (2008(13) SCC
767) raise the bar further in the attempt to
identify the rarest of rare cases where a
D.S.R.No.4/07
& CRL.A.No.1620 /07 -2-
sentence of death can be imposed and is liable
to be confirmed?
These questions arise for consideration in this Death
Sentence Reference and the Criminal Appeal, which we dispose
of by this common judgment.
2. Navas @ Mulanavas, a person aged about 28 years
has been found guilty, convicted and sentenced in a prosecution
for the offences punishable under Sections 449, 302 and 309
IPC. He faces a sentence of death for the offence under Section
302 IPC, sentence of rigorous imprisonment for a period of five
years and fine of Rs.1,000/- under Section 449 IPC and simple
imprisonment for a period of two months and a fine of Rs.500/-
for the offence under Section 309 IPC. Default sentences have
also been imposed.
3. The prosecution alleged that the appellant had gained
access into the house of the deceased persons – four in number,
by making a hole on the eastern wall of the house on the night of
3/4.11.2005. He allegedly caused the death of Latha, a woman
aged about 39 years, her husband Ramachandran aged about 45
years, their daughter Chithra aged about 11 years and her
D.S.R.No.4/07
& CRL.A.No.1620 /07 -3-
mother- in-law, Karthiayani Amma aged about 80 years. The
accused thereafter allegedly attempted to commit suicide by
cutting the vein of his left wrist. Investigation commenced with
suo motu FIR, Exhibit P23 registered by PW30, the local A.S.I.
and culminated with the final report submitted by PW32, who
completed the investigation.
4. The accused denied the offences alleged against him
and thereupon the prosecution examined Pws 1 to 32 and proved
Exhibits P1 to P45 series. M.Os.1 to 122 were also marked by
the prosecution. The accused did not examine any defence
witnesses; but proved Exhibits D1 to D5.
5. An appellate judgment must be read in continuation of
the judgment of the trial court. We have been taken through the
evidence of PWs 1 to 32, Exhibits P1 to P45 series and Exhibits
D1 to D5. The relevant material objects have also been perused
by us. In these circumstances, we are of the opinion that it is
unnecessary to attempt a re-narration of the evidence of the
prosecution witnesses as well as the prosecution and the defence
exhibits.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -4-
6. The prosecution version which they attempted to
substantiate by the evidence referred above can be summarised
as follows.
7. Deceased Ramachandran and Latha were residing in
the house which is the scene of occurrence. They have a child
aged 11 years, by name Chithra. The mother of Ramachandran,
Karthiayani Amma was also residing along with them. It is
suggested that Ramachandran had some psychiatric ailments
and was on medicines. It is further suggested that Latha had
dissatisfactions in the marital life and that she was involved in
extra marital relationships. The accused was known to the
family. He had initially helped the family to get out of certain
involvements which Latha had with certain others. He had
gained the confidence of Latha and Ramachandran.
Unfortunately, the relationship between Latha and the accused
had drifted and it had entered prohibited zones/domains. She
allegedly shared intimacy including physical intimacy with the
accused. It is even suggested that Latha had become pregnant
in the relationship between her and the accused. But that
pregnancy had to be aborted. At some point of time, the accused
D.S.R.No.4/07
& CRL.A.No.1620 /07 -5-
allegedly came to learn from Latha that Chithra, the child born
was not really begotten in her relationship with Ramachandran;
but Chithra was brought up as the child of the couple. When it
came to the alleged pregnancy through the accused, Latha was
allegedly not willing to continue the pregnancy and she had got
it aborted.
8. At some point of time, according to the prosecution,
the relationship had soured. It appeared as though the accused
perceived that Latha was not willing to continue the relationship.
She, he apprehended, was attempting to avoid him. Exhibits P9
to P11 suggest that on the complaint of Latha, the local police
had registered a crime and had filed the final report alleging
commission of offences by the accused against Latha.
Consequently, the relationship turned from bad to worse and the
accused allegedly was not getting opportunities to meet and
interact with Latha as he allegedly used to do earlier.
9. We come to the date of occurrence, i.e., 3.11.2005.
On that night, till 7 p.m., all the four deceased were found in the
house hale and hearty by the local neighbours including PW1.
On that morning i.e. at 7.30 am. on 4.11.2005 when PW1 went to
D.S.R.No.4/07
& CRL.A.No.1620 /07 -6-
sweep the courtyard of that house and was so sweeping, she
found that nobody came out of that house to open the door and
that blood was flowing out through the outlet on the southern
room on the ground floor. A commotion followed. People of the
locality came. They informed the police. The local police also
came. As there was no response from inside, the house was
broken open and access was made into the house. They had also
seen that a hole had been drilled on the eastern wall of the
house, suggesting that someone had gained illegal access into
the house. Persons who entered the house found that deceased
Latha was lying dead on the ground floor with multiple injuries
including stab injuries. Ramachandran and Chithra were lying
dead on the northern room on the first floor with serious
injuries. MO33 iron rod which was allegedly used to inflict
injuries on Ramachandran and Chithra was also available in that
room. Karthiayani Amma, the 80 year old mother of
Ramachandran was found with injuries on the northern room on
the ground floor. She was immediately shifted to the hospital for
emergent medical attention. Later, seeing the trail of blood from
the middle room to the southern room on the ground floor, the
D.S.R.No.4/07
& CRL.A.No.1620 /07 -7-
police opened the southern room on the ground floor and there
they found the accused with bleeding injuries on his left hand
lying unconscious. He was also shifted to the hospital.
Karthiayani Amma succumbed to the injuries. The accused was
nursed and he ultimately recovered.
10. The prosecution alleged that it was the accused who
caused injuries on all the four deceased persons. It is the case of
the prosecution that on the night of 3.11.2005, PW3, an auto
rickshaw driver had dropped the accused some where near the
scene of the crime after 10.30 p.m. According to the prosecution
the accused had, to gain access into the house, created a hole on
the eastern wall and had crept into the house with his belongings
including MO34 bag. He had gone to the southern room on the
ground floor and had indulged in making writings on the wall
and other surfaces in that room. According to the prosecution,
these writings suggest that he was disappointed in love and had
decided to commit suicide. According to the prosecution, he
wanted to murder Latha and commit suicide. He wanted both of
them to die together. Karthiayani Amma was occupying the
northern room on the ground floor, whereas the couple along
D.S.R.No.4/07
& CRL.A.No.1620 /07 -8-
with their child were occupying the northern room on the first
floor. It is the case of the prosecution, though there is no eye
witnesses for the occurrence, that the accused who reached the
room by 12 mid night continued to remain in the southern room
on the ground floor till 6.30 a.m. in the morning. He consumed
alcohol there and smoked. He made all the writings seen in that
room. When deceased Latha came down in the morning from the
bed room on the first floor, the accused allegedly, attacked Latha
and caused injuries to her. It is the inference of the prosecution
that Ramachandran and Chithra came to know of the attack on
Latha and they made a hue and cry. The accused then went up
with MO33 iron rod and allegedly inflicted fatal injuries on
Ramachandran and Chithra. He came down thereafter and went
on inflicting multiple stab injuries on Latha with one of the two
knives, which according to the prosecution, he had carried with
him to the house (marked as MOs.29 and 30). Thereafter the
mother-in-law of Latha, according to the prosecution, had also
tried to come to the scene and she was deterred by him by
kicking her forcibly. She fell, hit some surface and suffered the
fatal injuries.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -9-
11. Thereafter, the accused allegedly in an attempt to
commit suicide cut the vein of his left wrist. There was bleeding
from that self-inflicted injury. He went to the southern room
where he had already entered and made all the writings. He
closed the room from inside. He fell unconscious there. It is the
case of the prosecution that prior to that, the accused in that
southern room had consumed alcohol, had smoked cigarette and
had consumed Bombay gudka. It is the case of the prosecution
that the totality of circumstances relied on by the prosecution
unerringly points to the commission of the offence punishable
under sections 449, 309 and 302 IPC by the accused.
12. The accused in the course of cross-examination of
prosecution witnesses does not appear to have taken any specific
stand. He was not able to engage a counsel of his own at the
stage of trial, though he had earlier engaged a counsel. The
services of a counsel of standing Shri P.P.Haris was made
available to the accused as a State Brief counsel.
13. At the stage of 313 examination, after answering all
the questions, the accused advanced a version by filing a
statement. In that statement, the accused took an interesting
D.S.R.No.4/07
& CRL.A.No.1620 /07 -10-
stand, attempting to explain all circumstances which were
available in evidence at the close of the trial. The accused took
up the stand that there was a pact between him and Latha to
commit suicide. He had come to the house of Latha on that night
with the intention that both of them shall commit suicide. He
had brought with him MO25 audio cassette in which he had
made a record in his own voice of all the circumstances and the
relationship between him and Latha. Latha had kept the door
open as usual and he gained entry into the house through such
door which was kept open. After he entered the house, he found
that Latha and others had all suffered death. On account of the
grief, without much forethought, he had cut his left wrist for the
purpose of committing suicide. It was thus that he was found
available in the house in an unconscious state. His obvious
suggestion is that someone else had gained access into the house
by making a hole on the eastern wall and such miscreant must
have caused the death of all the four deceased persons and as he
found that they had died, he had proceeded to attempt to commit
suicide.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -11-
14. The court below on an anxious consideration of all the
relevant circumstances, came to the conclusion that the
prosecution has succeeded in establishing that all the four
deceased persons suffered death at the hands of the accused,
who had gained access into the house by creating that hole on
the eastern wall of the house. The court further came to the
conclusion that the accused had thereafter attempted to commit
suicide.
15. Before us, the learned counsel for the appellant Shri
Vijayabhanu, Shri Gracious Kuriakose, the Special Prosecutor
appointed in the Death Sentence Reference and
Shri K.J.Mohammed Anzar, the learned Public Prosecutor have
advanced their arguments.
16. The learned counsel for the appellant/accused
vehemently contends that the circumstances have not been
established satisfactorily by the prosecution and the
circumstances even if accepted in toto cannot lead to an
unerring conclusion about the complicity of the accused. The
circumstances cannot rule out his innocence also, it is
contended. At any rate, the learned counsel argues that a
D.S.R.No.4/07
& CRL.A.No.1620 /07 -12-
sentence of death is not warranted at all.
17. The learned Special Prosecutor who appeared in
D.S.R.No.4/2007 and the learned Prosecutor who appears for the
State in Crl.Appeal No.1620/2007 on the contrary contends that
sufficient circumstances have been established by the
prosecution pointing unerringly to the guilt of the accused and
excluding the innocence of the accused. The nature of the facts
and circumstances of this case, according to the prosecution,
clearly shows that this is an eminently fit case where the
sentence of death is warranted, as the case belongs to the
category of rarest of rare cases.
18. The learned Prosecutors submit that in the facts and
circumstances of this case, the explanation coming forth from
the accused is of crucial and vital significance. The learned
Prosecutors contend that if the explanation coming forth from
the accused is not acceptable, sufficient and clinching
circumstances are available to safely and unerringly come to the
conclusion that all the four persons who had suffered injuries
and who were inside the closed house, must have suffered
injuries at the hands of the accused, who was the only other
D.S.R.No.4/07
& CRL.A.No.1620 /07 -13-
person found inside the house, lying with suicidal injuries. The
learned Prosecutors in this context places reliance on the
decision in Trimukh Maroti Kirkan v. State of Maharashtra
(2006(4) KLT 638). It is not as though an accused person has
no burden at all in a criminal trial. Where an accused person is
found lying with suicidal injuries along with three other
deceased persons and the 4th deceased with serious injuries
inside a closed house, the accused has the burden to explain how
and under what circumstances these injuries were suffered by
himself and the others. That burden cannot be avoided by the
accused by falling back on his purported right to silence, it is
contended. We find merit in that contention.
19. It is in this context that the version of the accused
assumes importance. According to him, he had entered the
house on that night through a door which was kept open which
he assumed must have been kept open by Latha with whom he
was in love. It is his case that she used to keep the door open on
many earlier occasions. When he entered the house, he found
that death of Latha and others had taken place and then he went
on to attempt to commit suicide. If this version is found to be
D.S.R.No.4/07
& CRL.A.No.1620 /07 -14-
false, that will be one more circumstance against the accused
adding to the chain of circumstances which the prosecution has
chosen to rely on.
20. The accused and the deceased were known to each
other and the accused and the deceased Latha had illicit intimate
relationship. That is the case of the prosecution and that
version is accepted by the accused. There has been some
souring of that relationship and that is also indicated clearly by
Exts.P9 to P11 as also Exhibit P3 which is a transcript of the
audio tape, MO.24 which the accused carried with him to the
house admittedly. All the four deceased persons were hale and
hearty till the night of 3/11/2005 but on 4/11/2005 morning they
were found with fatal injuries inside the closed house.
Admittedly, the accused had come to the house later in the
night. All the four deceased persons suffered homicidal injuries
also. Till his examination under Section 313 Cr.P.C., nay till he
chose to file a statement at the end of the questioning under
Section 313 Cr.P.C., the present version was not advanced by the
accused. Serious doubts are aroused about the genuineness and
acceptability of the version of the accused. If that were a true
D.S.R.No.4/07
& CRL.A.No.1620 /07 -15-
version, it is unlikely that he would not have advanced such a
version earlier before the police, before the trial court or
subsequently till the statement was filed after his examination
under Section 313 Cr.P.C.
21. The prosecution relies on various circumstances to
drive home the charge against the accused and to disprove this
very ingenious explanation which has been offered in the
written statement filed at the end of 313 examination.
22. The learned Prosecutors have painstakingly narrated
before us various circumstances that are available which would
convincingly show that this version of the accused is an after-
thought and cannot be swallowed by a prudent mind.
23. The first circumstance relied on by the prosecution is
the fact that while drilling the hole on the eastern wall,
soil/powder was available at the site of that hole. MO.34 bag
carried by the accused seized as per Exhibit P12 scene mahazar
had identical soil/powder on it. MO.71 shirt belonging to the
accused, which is also seized under Exhibit P12 has identical
soil/powder on it. This is evident from the report of FSL. The
prosecution further relies on an unexplained injury which the
D.S.R.No.4/07
& CRL.A.No.1620 /07 -16-
accused had on his person when he was examined by the Doctor
on 4/11/2005. PW18, the Doctor to whom Karthiayani Amma
and the accused were rushed from the scene of the crime on
that morning had examined the accused and had issued Exhibit
P14 wound certificate. In that wound certificate in addition to
the self inflicted injury on the left wrist, there was an abrasion 2
millimetre on the right hand (dorsal side) of the accused. It is
the case of the prosecution that this injury must have been
suffered by the accused when he attempted to break open the
house and that part of the body came into contact with the
surface. The opinion of PW18, Doctor on this aspect has not
been specifically elicited by the prosecution in the course of
examination in chief. But the fact remains that the oral evidence
of PW18 and Exhibit P14 clearly indicate that the accused had
on his person one more injury which cannot be explained by the
accused as an incidental self inflicted injury in the course of his
attempt to commit suicide. But, perhaps, what is crucial on this
aspect is that the nail clippings of the accused which were taken
by PW31 on 14-11-2005 revealed that identical soil/powder were
available in such nail clippings of the accused. The same was
D.S.R.No.4/07
& CRL.A.No.1620 /07 -17-
sent to the expert and Exhibit P41(b) shows that the nail
clippings had such soil/powder. The prosecution relies on this
also as a crucial input in support of their case that it was the
accused who gained access to the house through that hole.
24. The learned counsel for the petitioner contends that the
accused was taken from the scene of the crime on 4/11/2005
and the nail clippings were taken only on 14/11/2005. The gap
of time between 4th and 14th November 2005 was relied on by the
learned counsel to argue that crucial significance cannot be
attached to the nail clippings and the report of the scientific
expert issued after examination of those nail clippings. It is
significant to note that the accused does not have a case at all
that soil/powder similar to the one which was detected from the
scene (of the hole) were planted on his nail clippings at any time
by the investigating officer. We reckon this as a formidable
circumstance to choose between the rival versions.
25. The prosecution relies on another very important
circumstance. Writings on the wall and surfaces in the southern
room on the ground floor have been identified to be that of the
accused by the handwriting expert by Exhibit P42 report. This
D.S.R.No.4/07
& CRL.A.No.1620 /07 -18-
aspect of the testimony of PW32 is not seriously challenged at
all. In the nature of the materials available before the court, we
have no reason whatsoever to doubt the prosecution version that
these writings were made by the accused himself. On that
aspect, we entertain not a semblance of doubt and in fact we
note that there is no serious dispute on that aspect also.
26. The writings in the room offer crucial assistance to the
court to choose between the rival versions. It is written that the
accused was available in the house on that day at 12 midnight.
Further, it is written that between 6 and 7 in the morning he is
‘finishing’. This clearly shows that on his own version, available
convincingly from the writings, he had spent about seven hours
in that room. This is definitely inconsistent with his version that
he saw Latha and others dead and proceeded to inflict suicidal
injuries on him in grief. His presence for about seven hours in
the room spending time to make the writings is inconsistent,
totally with his version that Latha and others were found dead
when he entered the room and he without forethought
proceeded to inflict injuries on himself.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -19-
27. It is true that in MO.24 and its transcript,Exhibit P3 he
describes that he loves Latha. There are many writings in the
southern room on the ground floor which also indicates that he
was in love with Latha. The question is not whether he was in
love with Latha or not. The other writings available in the room
clearly indicate that he had a grievance/grouse against Latha
and it was he who decided that both should die . “In love we are
one, in death also both must be together. This is certain” is one
of the writings. It is also written that “Latha is responsible for
my death. I, therefore, decided that Latha and me must die
together. This is certain”. The writings that he is in love with
Latha is not at all inconsistent with a decision on his part to
cause the death of Latha and commit suicide. It is true that in
Exhibit P3 there is a reference that a joint decision has been
taken by Latha and himself to end their lives together. This is
only an assertion on the part of the accused and there is
absolutely nothing otherwise available to show that on that date,
i.e. on the night of 3/11/2005 Latha had agreed to commit
suicide and had wanted him to go to her house to enable both of
them to commit suicide together. A careful reading of Exhibit
D.S.R.No.4/07
& CRL.A.No.1620 /07 -20-
P3/MO.24 must lead to the inference that the same was not
prepared immediately prior to 3/11/2005. The indications
therein about Latha wanting to commit suicide, definitely refer
to an anterior point of time. There is nothing to indicate a
decision taken immediately prior to 3/11/2005 by Latha and the
accused to commit suicide.
28. Clinching indications are also available to show that
Chithra could not have been dead when the accused entered the
house. In fact, one of the crucial writings found in the room is
that “Chithra knows all the truth”. That convincingly indicates
that Chithra had not died at the time when the writings were
made by the accused after he entered the house. That he did
not even know that Chithra was dead, when those writings
were made is very evident. The theory of the accused that he
found Latha and others dead when he entered the house is, in
these circumstances, found to be not acceptable at all.
29. The learned Prosecutors rely on the evidence of Doctors
(PWs.10,19 and 25) who conducted postmortem examination on
the body of the deceased to contend that death of
Ramachandran, Chithra and Latha must have taken place only
D.S.R.No.4/07
& CRL.A.No.1620 /07 -21-
after 12 midnight. Their unanimous opinion that death must
have taken place 6 to 18 hours prior to 6.25 p.m. on 4/11/2005.
Of course, the statement of the Doctors cannot be reckoned as
precise and authentic as they can and have given only a time
range. But the fact remains that the range of time given by them
clearly shows that death could not have taken place prior to 12
midnight when the accused was admittedly available in the
house as per the writings made by him available in the southern
room of the ground floor.
30. The learned Prosecutors further pointed out that there
are indications that death must have taken place only after 12
midnight going by the evidence of the postmortem doctors in
respect of Latha, Ramachandran and Chithra who were found
dead. Their stomachs were empty. Even though we do not have
precise evidence about the time when they consumed their last
meal, the Prosecutors argue that the indications suggest that
death must have taken place 4 to 6 hours after the last meal as
judged from the fact that the stomach was empty in respect of all
the three deceased. The learned Public Prosecutors further rely
on the fact that urinary bladders of all of them were found empty
D.S.R.No.4/07
& CRL.A.No.1620 /07 -22-
and from this it is argued that all the three must have emptied
the urinary bladder after getting up on that morning. This is also
pressed into service as a circumstance broadly suggesting that
death must have taken place only after the admitted arrival of
the accused at the scene of the occurrence at about 12 midnight.
31. Perhaps the last and the crucial indication on this
aspect, as we perceive the same, is available from what is not
written in the room. Obviously the writings on the walls and
other surfaces of the southern room on the ground floor are in
the nature of parting messages of the accused, who had decided
to commit suicide. If, as a matter of fact, the accused had seen
Latha and others dead when he entered the house as contended
by him, it is unlikely, nay impossible that he would not have
mentioned in at least one of those writings that he is not
responsible for the death of the deceased persons and that he
had found them dead when he entered the house. What is not
written is more eloquent and helps this court to rule out the
version of the accused as unworthy and impossible.
32. The learned Public Prosecutors further submit that it is
definitely possible to come to a conclusion that the accused was
D.S.R.No.4/07
& CRL.A.No.1620 /07 -23-
responsible for the fatal injuries of Chithra, the child. Exhibit P3
clearly reveals that the accused had affection and love for the
child. From the scene on the body of the child/Chithra, the
investigators had obtained strands of hair which on analysis
was found to be similar and identical to the hair of the accused.
The hair strands found on the body of Chithra clearly reveal that
the accused was near Chithra after she suffered injuries.
33. It is also important to note that the accused, who was
very close and near to the family has not been able to suggest
any circumstance to indicate that any other person was at the
relevant time entertaining any grouse or grievance against the
family. That also is one of the circumstances which points to the
inference of guilt against the accused when taken along with
other circumstances.
34. Totality of the circumstances clearly point to the
complicity of the accused. From Exhibit P3, it appears that the
accused did not have any particular motive against
Ramachandran, Chithra and Karthiayani Amma, the other
deceased persons. But even the case of the prosecution is not
that the accused had any motive or plan to cause the death of
D.S.R.No.4/07
& CRL.A.No.1620 /07 -24-
the other three persons. The obvious intention was to cause the
death of Latha and to die with her by committing suicide. The
accused was obviously under great mental strain and stress and
the injuries/death caused to Ramachandran, Chithra and
Karthiayani Amma cannot by any stretch of imagination be held
to be pre-meditated or with motive. The absence of specific
motive for the accused to act against Chithra, Ramachandran
and Karthiayani Amma cannot in the circumstances of the case
contra indicate or disprove the prosecution case. The totality of
circumstances persuade us to concur with the conclusion of the
court below that it was the accused who gained access into the
house of the deceased which was closed from inside by making a
hole through the eastern wall. After gaining access, we agree
with the court below, the accused remained in the southern
room on the ground floor and made all the writings. Thereafter,
when deceased Latha came down, he attacked her and caused
multiple injuries on her. He caused injuries to Chithra,
Ramachandran and Karthiayani Amma also. Subsequently, he
attempted to commit suicide.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -25-
35. In these circumstances, we uphold the finding that the
accused is guilty of the offences punishable under Sections 449,
309 and 302 of the Indian Penal Code. The challenge against
the verdict of guilt and conviction is, in these circumstances,
rejected.
36. What is the sentence to be imposed? This is the next
question to be considered. The court below has chosen to impose
a sentence of death on the accused for the offence under Section
302 of the Indian Penal Code. We are satisfied that the
sentences imposed for the offences under Sections 449 and 309
of the Indian Penal Code are absolutely justified and they do not
warrant any interference. The question is only whether the
sentence of death imposed on the accused under Section 302
I.P.C. deserves to be confirmed or not. We shall now specifically
advert to this aspect.
37. We shall now make a balance sheet of the extenuating
and aggravating circumstances which have been pointed out to
us in this case. Bachan Singh(supra) obliges the courts to
make a balance sheet of the aggravating and mitigating
circumstances before taking a decision on the crucial question.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -26-
38. The aggravating circumstances are that there obviously
was prior planning. As many as four lives were snuffed out by
the accused. An entire family has been wiped out. The
deceased persons include a minor child aged 11 years, an old
woman aged 80 years and a sick individual – Ramachandran,
husband of Latha. All the deceased persons were unarmed and
defenceless. No provocation/resistance is seen offered by them.
The offence has been committed after mischievously planning
the operation and after gaining access to the closed house in
that night by making a hole on the wall. A dare devil attitude on
the part of the miscreant is evidently indicated. The nature of
the weapons used – MOs.29, 30 and 33 can also be entered on
the aggravating side of the balance sheet. The nature and
number of the injuries inflicted on deceased Latha,(43 of which
38 are stab injuries) is again an entry on the debit side. Prior
instance of involvement in crimes is also against the accused.
The learned Public Prosecutors point out that in MO.24/Exhibit
P3, there is a veiled threat to many others. The initial
relationship itself was objectionable and contumacious – that is
the relationship which the deceased struck with Latha, a married
D.S.R.No.4/07
& CRL.A.No.1620 /07 -27-
woman having husband and child. The accused has no passion
for life as can be seen from his conduct of attempting to put an
end to his own life. That makes him potentially dangerous. The
learned Prosecutors contend that these circumstances would
bring the case within the sweep of the precedents including
Bachan Singh(supra) and Machhi Singh v. State of Punjab
(1983)3 SCC 470) and this would be a fit case where
imposition of death sentence would be justified.
39. The learned counsel for the accused, on the other
hand, has marshalled circumstances which fall under the
category of mitigating circumstances. He points out first of all
that there is no semblance of any element of gain, profit or
advantage for the accused. Rightly or wrongly the accused was
labouring under an impression of deprivation in love. He was
in an extremely agitated and excited state of mind when he
committed the capital offences. Counsel points out that
MO.24/Exhibit P3 must suggest that at least at some earlier
point of time, Latha herself had suggested commission of suicide
together. The accused had no motive whatsoever against
Ramachandran, Chithra and Karthiayani Amma. In fact, the
D.S.R.No.4/07
& CRL.A.No.1620 /07 -28-
materials suggest that he had great affection and love at least
for Chithra. He refers to Ramachandran in Exhibit P3 in
endearing terms. He had not used any weapon against
Karthiayani Amma, the mother of Ramachandran. He did not
make any attempt to flee from justice. He imposed on himself
the capital punishment of death by attempting to commit suicide.
He is a young man aged about 28 years only, going by the age
shown in the passport, though the driving licence suggests that
he is four years elder. He was dragged by circumstances into an
improper relationship with a woman much elder to himself –
elder at least by a decade. There was no element of pre-
meditation to cause the death of the other three. Pre-meditation
even if any could only be to die along with the said Latha. There
is no requirement of any deterrence in a rare incident like the
instant one. He cannot be termed a menace to society. He is
still young and is not lost to civilisation and humanity. His
liquidation would be totally unnecessary and uncalled for. The
learned counsel for the accused, in these circumstances,
contends that the court may be pleased not to confirm
death sentence and may choose to impose the lesser
D.S.R.No.4/07
& CRL.A.No.1620 /07 -29-
punishment of imprisonment for life.
40. Under Section 302 I.P.C., two alternative sentences
alone are possible. The graver sentence is the sentence of death
whereas the lesser option is to impose a sentence of
imprisonment for life. Constitutional validity of the sentence of
death has been considered by the Supreme Court. The last
decision on the point is the decision in Bachan Singh (supra)
The constitutional validity of the sentence of death has been
upheld by the Supreme Court. In paragraph 209 of the said
decision, the law on the point is stated succinctly as follows:
“A real and abiding concern for the dignity
of human life postulates resistance to
taking a life through law’s instrumentality.
That ought not to be done save in the rarest
of rare cases when the alternative option is
unquestionably foreclosed.”
41. The Supreme Court had upheld the constitutional
validity by insisting that a sentence of death can be imposed
only in the rarest of rare cases. The true clue to find out the
rarest of rare cases for imposition of the death sentence is also
D.S.R.No.4/07
& CRL.A.No.1620 /07 -30-
given in the said paragraph 209. Litmus test is that the
“alternative option must be unquestionably foreclosed”. That is
the test to find out the rarest of rare cases in which alone
imposition of a sentence of death would be justified. Only two
options were then available – a sentence of death or a sentence
of imprisonment for life. That lesser alternative option must be
unquestionably foreclosed, insisted Bachan Singh (supra).
42. How is the court to find out such a case. In Machhi
Singh(supra) and in many other subsequent Supreme Court
decisions, attempts were made to categorise the circumstances
which can be pressed into service to identify the rarest of rare
cases in which alone a sentence of death can be imposed. It is
unnecessary for us to advert to all those precedents. Suffice it to
say that in Aloke Nath Dutta v. State of West Bengal (2007)
12 S.C.C.230, the Supreme Court after adverting to the course
adopted by the Supreme Court itself in various cases lamented
that different Benches had reacted differently in different
decisions in their attempt to identify the rarest of rare cases.
That was a decision by a two Judge Bench of the Supreme
Court. Later, a three Judge Bench in Swamy Shraddananda
D.S.R.No.4/07
& CRL.A.No.1620 /07 -31-
(2) v. State of Karnataka (2008)13 S.C.C.767 stated thus
about the attempts made by the Supreme Court.
“49. In Aloke Nath Ddutta v. State of W.B.
(2007)12 SCC 230, Sinha.J. gave some very
good illustrations from a number of recent
decisions in which on similar facts this Court
took contrary views on giving death penalty
to the convict (see SCC pp.279-87, paras 151-
78 : Scale pp.504-10, paras 154-82). He
finally observed (SCC para 158) that “courts
in the matter of sentencing act differently
although the fact situation may appear to be
somewhat similar” and further “it is evident
that different Benches had taken different
view in the matter” (SCC para 168).”.
(emphasis supplied)
43. The three Judge Bench of the Supreme Court in
Swamy Shraddananda(supra), proceeded to observe in
paragraph 51 as follows:
D.S.R.No.4/07
& CRL.A.No.1620 /07 -32-
“51. The truth of the matter is that the question
of death penalty is not free from the subjective
element and the confirmation of death sentence
or its commutation by this court depends a good
deal on the personal predilection of the Judges
constituting the Bench”.
(emphasis supplied)
44. That appears to us to be a fair assessment of the history
of application of the Bachan Singh (supra) doctrine by courts
subsequently, including the Apex Court.
45. We have no hesitation to agree that the personal
element has to be eliminated totally and completely while
considering the two alternative sentences permissible under
Section 302 I.P.C. The law on the point is clear to us. In the
rarest of rare cases alone, such a sentence can be imposed. In
the attempt to identify such a rarest of rare case the true test is
whether the lesser alternative is unquestionably foreclosed or
not. Conscious of the alternatives available; considering the
extenuating and mitigating circumstances; having the
objectives which the sentence has to serve in the particular
D.S.R.No.4/07
& CRL.A.No.1620 /07 -33-
case in mind and liberating oneself from personal prejudices and
predilections a decision has to be taken on the crucial question.
46. We would repeat that courts must be satisfied that the
lesser options available (to the graver option of imposing a death
sentence) must be unquestionably foreclosed before they choose
to impose a death sentence. We will remind ourselves that
Judges dealing with this sublime area of criminal adjudication
can neither be retentionists nor abolitionists. Subject to the law
as declared in Bachan Singh(supra) and subsequent
decisions, the court will have to consider all available
circumstances without importing individual and personal
concepts of the need to retain death sentence or abolish the
same. It is true that the constitutional validity of the death
sentence has been upheld but before imposing/confirming such
sentence the court has to alertly consider the very purpose of
punishment and decide whether in the facts and circumstances
of the case imposition of the graver alternative is necessary and
unavoidable.
47. We have already extracted the relevant portion in
Bachan Singh (supra) which gives the quintessence of the law
D.S.R.No.4/07
& CRL.A.No.1620 /07 -34-
in paragraph 209. The lesser option must be unquestionably
foreclosed for the Court to identify the rarest of rare cases. In
this context, we feel that the decision in Swamy Shraddananda
(supra) is of vital relevance.
48. The three Judge Bench in Swamy Shraddananda
(supra) took the view that a sentence of imprisonment for life
simplicitor is not adequate in that case. The three Judge Bench
realistically took note of the prevalent situation where the
sentence of imprisonment for life gets boiled down virtually to a
sentence of imprisonment for 14 years, subject to remission,
commutation, etc. The learned Judges of the three Judge Bench
felt that to avoid a sentence of death, it is possible for the courts
to devise a graver form of sentence of imprisonment for life
which will virtually ensure that the society is insulated from the
criminal for such period as the court may specify including the
entire rest of his life. The court in its ingenuity has now raised
the bar to make sure that even in a case where the lesser
alternative of an ordinary sentence of life is found to be grossly
inadequate, the court has the option to impose a graver sentence
of life with appropriate stipulations to be specified by the court.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -35-
The following passages appearing in paragraphs 92 to 94
according to us is of very great significance in this ultimate and
sublime exercise of discretion between life and death by the
courts. In paragraph 92, the court after observing the
inadequacy of a sentence of life limited to imprisonment for 14
years, proceeded to observe that:
“……….. a far more just, reasonable and proper
course would be to expand the options and to
take over what, as a matter of fact, lawfully
belongs to the court, i.e., the vast hiatus
between 14 years’ imprisonment and death.”
The court proceeded in paragraph 94 to lay down the dictum
that such a graver sentence of imprisonment for life with
appropriate directions can be imposed. Paragraph 94 reads as
follows:
” 94. In the light of the discussions
made above we are clearly of the view that
there is a good and strong basis for the Court
to substitute a death sentence by life
imprisonment or by a term in excess of
D.S.R.No.4/07
& CRL.A.No.1620 /07 -36-fourteen years and further to direct that the
convict must not be released from the prison
for the rest of his life or for the actual term as
specified in the order, as the case may be.”
49. In devising or inventing such a mode of graver
sentence above the ordinary term of imprisonment for life but
below the sentence of death, the Court has realistically found
that insistence on imposition of death penalty can be further
reduced. The alternative option must be foreclosed. The court
has in fact increased the alternative options available. The only
alternative option prior to Swamy Shraddananda (supra) was
a sentence of life without any rider. The courts are now given
the option to suitably modulate and prescribe the manner in
which a life sentence can and ought to be executed. In Swamy
Shraddananda (supra), the court proceeded to direct that the
accused in that case who was guilty of a very heinous and
horrendous crime can be saved from the sentence of death by
imposing this modified version of a life sentence – with a rider/
direction that the accused shall not be released from prison for
the rest of his life.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -37-
50. To avoid the possibility of any confusion for the
subordinate courts, we would like to clarify that under Section
302 IPC, there are only two sentences permissible. They are a
sentence of death and a sentence of imprisonment for life.
Courts do not have the option to impose any other sentence.
Swamy Shraddananda (supra) only permits the imposition of a
sentence of imprisonment for life with the rider that the accused
shall not be released from prison invoking the jurisdiction for
commutation/reduction of sentence for a specified number of
years or for the rest of his life. Swamy Shraddananda (supra),
we may clarify, does not permit courts to impose a sentence of
imprisonment for any specified number of years above 14 years.
A sentence of death or imprisonment for life has to be imposed
under Section 302 IPC in every case invariably.
51. Abolitionists, according to us, have won a major
battle in the war against death sentence by the dictum of the
three Judge Bench in Swamy Shraddananda (supra). This has
been achieved by increasing the options that are available to the
court. It is the bounden duty of the court now to consider
whether the worst form of a sentence of imprisonment for life is
D.S.R.No.4/07
& CRL.A.No.1620 /07 -38-
also unquestionably foreclosed. Only when such a definite
conclusion is reached, can the court choose to impose the death
sentence now. We reckon this as a definite instance of raising
the bar much higher than it was available prior to Swamy
Shraddananda(supra). The court has to consider not only the
ordinary sentence of life as the lesser option. It has to consider
the graver sentence of life permitted under Swamy
Shraddananda (supra) and a conclusion must be reached that
even the gravest permissible alternative is unquestionably
foreclosed in the facts and circumstances of the given case. So
reckoned, the burden on the Court now becomes heavier. Before
imposing the death sentence, it has to be considered whether the
option of a life sentence with the gravest rider is also
unquestionably foreclosed.
52. It is perhaps of great relevance to note that in
paragraph 93 of Swamy Shraddananda (supra) the three Judge
Bench specifically observes that such an approach will have the
great advantage of having the death penalty on the statute book
but to actually use it as little as possible – really in the rarest of
rare cases only. We extract paragraph 93 below to ensure that
D.S.R.No.4/07
& CRL.A.No.1620 /07 -39-
we are properly guided on this aspect.
93. Further, the formalisation of a special
category of sentence, though for an
extremely few number of cases, shall
have the great advantage of having the
death penalty on the statute book but to
actually use it as little as possible, really
in the rarest of rare cases. This would
only be a reassertion of the Constitution
Bench decision in Bachan Singh besides
being in accord with the modern trends in
penology.”
53. This is not to say that the decision of the Constitution
Bench in Bachan Singh (supra) is in any way obliterated. Death
sentence remains on the statute book. It is for the Court,
without importing personal norms in favour of retention or
abolition to consider dispassionately whether the given case is
one belonging to the rarest of rare cases where, even the graver
options of life sentences with rider (ranging from an ordinary life
sentence which for all intents and purposes boils down to a
D.S.R.No.4/07
& CRL.A.No.1620 /07 -40-
sentence of imprisonment for 14 years to any specified minimum
number of years above 14 below the entire life and a sentence of
imprisonment with no release for the rest of life of the accused
as indicated in Swamy Shraddananda (supra)) is
unquestionably foreclosed. We totally agree with the learned
Prosecutors that in spite of Swamy Shraddananda (supra)
there is space for a certain narrow category of cases which still
belongs to the category of rarest of rare cases – call it the rarest
of rarest of rare cases if necessary, wherein also a sentence of
death permitted by Statute can be and will have to be imposed.
But, in identifying that case, the “lesser option” referred to in
Bachan Singh (supra) must be understood realistically. Till
Swamy Shraddananda (supra), there was only one alternative
option of sentence of life without prescribing any further
restrictions or guidelines. Now, we have not one alternative
option; but various alternative options taking advantage of the
“vast hiatus between 14 years’ imprisonment and imprisonment
till death”. All Courts called upon to choose between the
sentence of death and the alternative options now available can
impose a death sentence only when the Court is convinced and
D.S.R.No.4/07
& CRL.A.No.1620 /07 -41-
satisfied that none of the other alternatives available in the wake
of Swamy Shraddananda (supra) are sufficient and those
options are unquestionably foreclosed. We have no hesitation to
opine that the imposition of death sentence can now be made
only in such graver cases, where all the other options are found
to be insufficient. The bulk of such cases shall stand
considerably and substantially reduced now -after Swamy
Shraddananda (supra).
54. A question still remains whether the instant case is
one in which the graver alternatives of a life sentence are also
unquestionably foreclosed. We have rendered our anxious
consideration to all the relevant inputs. We are unable to agree
that all the options now available can be said to be
unquestionably foreclosed in the given circumstances. In every
case of death sentence, the court must consider the purpose of
the sentence. The theory of reformation will have no place
whatsoever in a case of imposition of death sentence. In a case
like the instant one, the consideration of compensation/
restoration cannot also have any place, as all the members of the
family have been liquidated by the conduct of the accused. The
D.S.R.No.4/07
& CRL.A.No.1620 /07 -42-
purpose of a death sentence – of eliminating the menace to the
society in the form of a hardened criminal and to save society
from the activities of such criminal may not also have much role,
given the alternative option of a life sentence which will ensure
that the accused does not come into contact with the society
thereafter. The learned Prosecutors point out that there may be
jail breaking or natural calamities which may lead to escape of
prisoners from the jail and such convicts may still come into
contact with the members of the society. We do not think that,
that contingency is one which can be taken into account by the
court ordinarily while considering whether the possibility of the
hardened criminal being exposed to society is eliminated by a
graver sentence of life as permitted under Swamy
Shraddananda(supra). The argument that tax payers’ money
will have to be spent unnecessarily for supporting a life in prison
with no tangible relevance or purpose for the society does not
impress us at all as that argument is virtually directed against
the prescription of a sentence of imprisonment for life by the
legislature. A refined civilization wedded to the ideal of respect
to life and its dignity must be happy to spend money to avoid
D.S.R.No.4/07
& CRL.A.No.1620 /07 -43-
liquidation of life when there is an alternative available.
55. Deterrence is the other possible concern which has to
be taken note of. As to how many criminals can be deterred from
committing the crime because of the severity of the death
sentence is itself a very uncertain area. Statistics, it appears to
us, cannot be of any crucial assistance on this aspect. We have
no hesitation to observe that more criminals can be deterred
from crimes by the conviction that immediate and certain
punishment shall follow rather than the impression that he may
be visited with a graver capital punishment on some uncertain
future date. Immediateness and certainty of reasonable
punishment and not the severity of the same serves the cause of
deterrence best in our assessment. In a situation where the
society comes across certain types of crimes frequently (like
bride burning or terrorist machinations or crimes by personnel
of the protection (armed) forces like body guards, etc..),
deterrence may certainly have a place. But to deter persons
from committing a crime like the instant one, we are of the firm
opinion that imposition of death sentence on an offender like the
accused herein may not have much significance.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -44-
56. The theory of retribution is the other concern.
Refined and civilised states have altogether given up the theory
of retribution as a theory in itself justifying imposition of a
sentence. But the theory of retribution has indirect influence on
the doctrine of proportionality. “To each what he deserves”
according to us is the most acceptable definition of justice. In
that view of the matter, a person who has deprived another of his
right to live may, under the doctrine of proportionality or on the
doctrine of moral entitlement, have to face a sentence of death.
Cry for justice from society is also relevant. The court must
translate into its decision the abhorrence with which the
enlightened society views a crime. No Judge can afford to be
more liberal, more refined, more tolerant or more civilised than
what the society, from which he hails can afford and accept. If
there is unbridgable gap between the norms prevalent in the
society and the liberal attitude of the Judges, the system would
run the risk of the ugly head of private vengeance being raised.
But, this is not to say that the judges must ride the crest of
populist sentiments and attitudes. The Judge also has a duty to
refine society. He can lead the society in civilisation and
D.S.R.No.4/07
& CRL.A.No.1620 /07 -45-
refinement. The judge need not wait to be the last die hard to
convert, transform, assimilate and imbibe liberal ideals. But it
will have to be ensured that he is only ahead of them and not far
removed from them in attitudes and norms. In this view of the
matter, in appropriate cases death sentence will certainly have
to be imposed.
57. Courts at all levels will have to ensure that subjectivity is
eliminated altogether while choosing to impose or not choosing
to impose the death sentence. Life is such a precious commodity
and the Constitution cherishes the human right of right to life so
much that personal prejudices and predilections of the individual
judge have to be eliminated completely in the decision to
judicially terminate and liquidate life. There cannot be benches
that are pro death sentences and anti death sentences. Of all the
arguments against the retention of the death sentence, none is
more effective and disturbing than the thought that the choice
between life and death may depend on the personal attitude
and vagaries of the judge before whom the case may
comeup. The observation in Aloke Nath and Swamy
Shraddananda (supra) to which we have already adverted to
D.S.R.No.4/07
& CRL.A.No.1620 /07 -46-
suggest that the Indian legal system has not yet been able to
acquit itself creditably on this aspect even during the post
Bachan Singh period. This imposes a great amount of
responsibility on the Judges called upon to perform that sublime
responsibility of choosing between the graver and the lesser
options. One of the surest ways to correctly identify the fit case
to impose the death sentence or to put it better to identify that
case where all the alternative options are unquestionably
foreclosed, is to ascertain whether all unbiased trained judicial
minds without doctrinaire prejudices and predilections are likely
to unanimously endorse and answer the question in favour of
death sentence. Then and then alone can the graver option of
death sentence be preferred by a court.
58. Having considered all circumstances, we are of the
definite opinion that in the facts and circumstances of this case,
the sentence of death is not warranted. A sentence of
imprisonment for life, subject to the safeguards/directions as
permitted by Swamy Shraddananda (supra) shall serve the
ends of justice, we are of the very definite opinion.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -47-
59. Let it not be assumed that this court does not perceive
the instant one to be a serious and dastardly crime. We, to say
the least, are convinced that the offence committed calls for
societal abhorrence and disapproval. But, the totality of
circumstances instill in us the satisfaction that this is not a case
where the range of further options available to the court after
Swamy Shraddananda (supra) are unquestionably foreclosed.
Placing fetter on the powers of the Executive under Section 432
and 433 Cr.P.C. for a prescribed period (and with due caution
administered that the powers under Article 72 and Article 161
should not be lightly invoked to get over the prescription of such
period fixed by this Court) a sentence of imprisonment for life
which shall ensure that the offender does not get exposed to
society for a period of 30 years can be imposed. We are not
prescribing the ‘entire rest of the life’ as the period, as fixed by
their Lordships in Swamy Shraddananda (supra), considering
the totality of circumstances and because of the optimistic faith
in the infinite capacity of the human soul to repent and reform.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -48-
60. In the result:
(a) this appeal is allowed in part.
(b) the verdict of guilty and conviction of the
appellant under Sections 449, 309 and 302
IPC are upheld.
(c) The sentence imposed on the appellant/
accused for the offences punishable under
Sections 309 and 449 IPC are upheld.
(d) The death sentence reference is answered
against the prosecution. The sentence
imposed for the offence punishable under
Section 302 IPC is modified and reduced to
imprisonment for life. It is further directed,
as permitted by the decision in Swamy
Shraddananda (supra) that the accused
shall not be released from prison for a period
of 30 (thirty) years including the period
already undergone with set off under Section
428 Cr.P.C. alone.
D.S.R.No.4/07
& CRL.A.No.1620 /07 -49-
(e) Needless to say, even thereafter, if the
question of release is being considered, the
same must be done only after careful
consideration and evaluation of all
circumstances.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn