DEATH REFERENCE NO. 01 OF 2008
With
CRIMINAL APPEAL (D.B.) NO. 1103 OF 2008
In the matter of Letter No. 419 dated 6.8.2008 sent by Sri Gautam Kumar
Choudhary, District & Sessions Judge, Lohardaga in S. T. No. 128 of 2007 arising
out of Kuru P.S. Case No. 780 of 2007 (G.R. No. 292 of 2007).
Against the judgment of conviction and order of sentence dated 1.8.2008 and
5.8.2008
respectively passed by Sessions Judge, Lohardaga in S. T. No. 128 of 2007.
IN DEATH REFERENCE NO. 01 OF 2008
State of Jharkhand ... ... Appellant
Versus
1. Mofil Khan
2. Mobarak Khan
3. Wakil Khan
4. Saddam Khan ... ... Convicts
In Cr. Appeal (D.B.) NO. 1103 OF 2008
1. Mofil Khan
2. Mobarak Khan
3. Saddam Khan
4. Wakil Khan ... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
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For the Appellants : Mr. P.C. Roy, Amicus Curiae
For the State : Mr. R. Mukhopadhyay & Mrs. M. Palit, A.P.P.
------
PRESENT
HON'BLE MR. JUSTICE AMARESHWAR SAHAY
HON'BLE MR. JUSTICE R.R. PRASAD
C.A.V. ON 10/02/2009 PRONOUNCED ON 02/07/2009
R.R. Prasad, J. Aforesaid four appellants were put on trial to face charges under
Sections 302/449/380 read with Sections 34 and 120B of the Indian Penal Code on
the allegation of committing murder of as many as eight persons, namely, Haneef
Khan, Gufran Khan, Imran Khan, Danish Khan, Anish Khan, Maherban Khan, Yusuf
Khan, Kasumanbibi and also for committing theft of Pass-book, documents relating
to land, cash etc. from the dwelling house of the informant. Learned trial court while
acquitting other seven persons of all the charges did find the appellants guilty for
the offence under Sections 302/449/34 of the Indian Penal Code and awarded death
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sentence to them and also sentenced each of them to pay fine of Rs. 500/- with
default clause for the offence under Section 302/34 of the Indian Penal Code but
seems to have been wrongly recorded as Section 302 of Indian Penal Code and
further sentenced each of them to undergo rigorous imprisonment for ten years and
also to pay fine of Rs. 500/- for the offence under Sections 449/34 of the Indian
Penal Code though wrongly recorded as Section 449 of Indian Penal Code and in
default to undergo simple imprisonment for one month.
2. The case of the prosecution is that on 6.6.2007 while one Haneef
Khan (deceased), son of the informant, Gaffar Khan, P.W. 1, was offering Namaz at
about 8:30 p.m. in the mosque at Village Makandu along with others, these
appellants, who are none else than the sons and grandsons of the informant, came
over there with sword, tangi, bhujali and spade and assaulted Haneef Khan as a
result of which, he died at the spot. Thereafter, Gufran Khan @ Pala and Imran Khan
when after hearing cries of his father came out of the house, these appellants and
others also assaulted them with the weapons which they were holding as a result of
which, both of them died in front of their house. Thereupon, the appellants and
others entered inside the house of the informant and committed murder of Kasuman
Bibi, wife of deceased-Haneef Khan, and her four sons, namely, Anish Khan (aged
about 5 years), Danish Khan (aged about 8 years), Yusuf Khan (a handicapped and
aged about 18 years) and Maherban Khan (aged about 12 years). After committing
murder of those persons, all the accused persons left the house after extending threat
not to inform the police otherwise they will meet the same fate. They also took away
certain documents relating to the land, Pass-book, jewellery etc.
3. The informant, Gaffar Khan, P.W. 1, who was at Lohardaga, when
was informed by someone, he came to his village in the next morning at about 6:00
a.m. and saw the dead-body of Haneef Khan lying at the mosque, whereas the dead-
bodies of his grand sons, namely, Gufran Khan @ Pala and Imran Khan, were lying
in front of his house and the dead-bodies of his daughter-in-law, namely, Kasuman
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Bibi, and her four sons were lying inside the house and then he was informed by his
wife-Jainub Khatoon, P.W. 2, about the manner in which accused persons committed
the said offence. Meanwhile, Chowkidar of Village Makandu informed about the
occurrence to the Officer In-charge of Kuru P.S. at about 6 O`clock on 7.6.2007
telephonically upon which Sanha was entered on the Station Diary and the Officer
In-charge, Shambhu Nath Singh, P.W. 13, rushed to the place of occurrence and
recorded the fard-beyan (Ext. 6) of the informant, Gaffar Khan, P.W. 1, upon which a
case was registered and a formal FIR (Ext. 7) was drawn. Shambhu Nath Singh, P.W.
13, himself took up the investigation and held inquest on the dead-bodies of Haneef
Khan, Gufran Khan, Imran Khan, Danish Khan, Anish Khan, Maherban Khan, Yusuf
Khan, Kasumanbibi and prepared Inquest Reports which have been proved as Ext. 8
to 8/7 respectively and the dead-bodies were sent for post mortem examination.
Meanwhile, the Investigating Officer inspected all the three places of occurrence
where he found earth smeared with blood and also found plaster at the mosque
smeared with blood, piece of plaster as well as earth smeared with blood were
seized under Seizure List (Ext. 9 to 9/3). The Investigating Officer also found a
plastic Mat smeared with blood at the mosque which was seized under Ext. 9/4.
Next day, the Investigating Officer also seized a tangi (Ext. I) smeared with blood
from the house of accused-Kariman Khan @ Kari Khan which was seized under
Seizure List (Ext. 9/5). On receiving the dead-bodies, Dr. Arvind Kumar Arya, P.W.
8, held autopsy on the dead-bodies of all the deceased and found injuries on their
persons which are being noted hereunder :-
“Haneef Khan: (i) There was almost circular sharp cutting injury
involving just above the tip of nose going on both
sides posterior aspect of head showing fracture of
concerned bone and laceration of brain matter with
accumulation of blood and blood clot all around
where found.
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(ii) Sharp cut injury on left middle and ring finger with
fracture of middle finger bone.
(iii) Stab injury on left side of chest lower side. Size 3
c.m. x 1 c.m. muscle deep.
According to the doctor, all the injuries were
caused by sharp cutting substance or weapon like sword,
tangi and bhujali and the death of the deceased occurred
on account of shock and hemorrhage due to injury on the
vital organ like brain.
Gufran Khan : (i) There is sharp cutting injury on the posterior side of
head which extended to upper part of left ear. Size
was 6″ x 2.5″ into bone deep with fracture of
concerned bone and brain matter came out.
(ii) There was sharp cut injury on left cheek size 3″ x ½”
x bone deep with fracture of under lying bone
maxilla.
(iii) There was sharp cut injury on lower chin size 4″ x
1″ x bone deep with fracture of under lying
mandibuler bone and tooth of that came out.
(iv) Multiple cut injury on left posterior side of fore arm
which was muscle deep.
(v) Cut injury on right cheek size 2″ x 1″ x muscle
deep.
According to the doctor, all the injuries were
caused by sharp cutting weapon like Talwar, Chhura and
bhujali and the death of the deceased occurred on
account of shock and hemorrhage due to injury on the
vital organ like brain.
Imran Khan : (i) There was sharp cut injury size 6″ x 1″x ½” x bone
deep and the brain matter comes out and which
extends over right side of the head towards
posterior side of the head and there was sharp cut
injury extending from base of nose to the right eye
up to the right temporal area. Size 5″ x 1″ x bone
deep with fracture of concerned bone.
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According to the doctor, all the injuries were
caused by sharp cutting weapons like Talwar, Chhura
and bhujali and the death of the deceased occurred due
to shock and hemorrhage as a result of injury on the vital
organ like brain.
Kasuman Bibi : (i) There was sharp cut injury on right side of forehead
size 1.5″ x ½” x bone deep.
(ii) There was sharp cut injury posterior side of head
size 6″ x 1.5″ x bone deep and brain matter comes
out blood and blood clot present in hair face and
neck.
According to the doctor, all the injuries were
caused by sharp cutting weapons like Talwar, Chhura
and bhujali and the death of the deceased occurred due
to shock and hemorrhage as a result of injuries on the
vital organ like brain.
Meharban Khan: (i) There was sharp cut injury on the posterior side of
the head, size 6″ x 2″ x bone deep with fracture of
bone from where brain matter comes out. Blood and
blood clot present over both the hands and upper
part of cloths.
According to the doctor, all the injuries were
caused by sharp cutting weapons like Talwar, bhujali
and Kudal and the death of the deceased occurred due to
shock and hemorrhage as a result of the injuries on the
vital organ like brain.
Danish Khan : (i) There was sharp cut injury on right side of head,
size 3″ x ½”x bone deep with fracture of bone and
brain matter comes out
(ii) There was sharp cut injury extending from right
side of ear to right eye orbit such that right eye
comes out. Size 5″ x 2″ x bone deep with fracture of
bone and brain matter comes out. Blood and blood
clot present on hair face and upper part of cloths.
According to the doctor, all the injuries were
caused by sharp cutting weapons and the death of the
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deceased occurred due to shock and hemorrhage on
account of injuries on the vital organ like brain.
Anish Khan : (i) There was a sharp cut on right eye or orbit such that
eye ball comes out. Size 4" x 2" x bone deep with
fracture of underlying bone and brain matter comes
out.
(ii) There was sharp cut injury on right cheek size 3" x 1"
x bone deep fracture of right side of maxilla.
(iii) There was sharp cut injury on left cheek extending
left side of the head in front of left ear size 4" x 1" x
bone deep with fracture of bone.
(iv) Blood and blood clot present on hair, T-shirt and
upper limbs.
According to the doctor, all the injuries were
caused by sharp cutting weapons like Talwar, Kudal and
Bhujali and the death of the deceased occurred due to shock
and hemorrhage caused by the injury on the vital organ like
brain.
Yusuf Khan : (i) There was sharp cut injury from right ear to lower
part of right side of mandible size 4″ x 1″ x bone
deep and bone fracture with brain matter comes
out.
(ii) Sharp cut injury on left side of cheek, size 5″ x 1″ x
bone deep. Fracture of bone.
(iii) Sharp cut injury on left side of neck, size 4″ x ½ ” x
skin deep. Blood and blood clot present in hair face
and upper part of cloths.
According to the doctor, all the injuries were
caused by sharp cutting weapons like Talwar, Kudal and
Bhujali and the death of the deceased occurred due to
shock and hemorrhage caused by the injury on the vital
organ like brain.
The doctor has proved post mortem reports of the deceased, named above,
as Ext. 3 to 3/7 respectively.
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4. In course of investigation, the Investigating Officer also got the
statements of Mahmood Khan, Islam Khan, Samir Khan, Safru Pawaria, Noor
Mohammad, Jainub Khatoon, Moulana Khaleel Ahmad recorded under Section 164
Cr.P.C. which have been proved as Ext. 4 to 4/6.
5. After completion of the investigation, the Investigating Officer
submitted charge-sheet against these appellants as well as against other seven
accused persons under Sections 302/449/380 read with Sections 34 and 120B of the
Indian Penal Code upon which cognizance of the offence was taken. On committal
of the case, charges were framed to which these appellants and other accused
persons pleaded not guilty and claimed to be tried.
6. In course of trial, the prosecution in order to prove the charges
examined as many as 13 witnesses. Of them, P.W. 3, Safru Pawaria, P.W. 5, Khaleel
Ahmad, P.W. 6, Islam Khan, are the eye witnesses to the occurrence which took
place at the mosque. According to them, while they were offering Namaz at the
mosque, the appellants came over there variously armed and committed murder of
Haneef Khan. P.W. 7, Mohammad Khan @ Mahmood Khan, and P.W. 12, Samir
Khan, claimed to have seen the appellants and other accused persons coming in
front of the house of Haneef Khan and also saw appellants, Mobarak Khan and
Mofil Khan, committing murder of Gufran Khan and Imran Khan, whereas P.W. 2,
Jainub Khatoon, wife of the informant, is the eye witness to the occurrence which
took place inside the house of Haneef Khan, where Kasuman Bibi and her four
children were murdered. Gaffar Khan, the informant, P.W. 1, is the hearsay witness
who came to know about the occurrence from his wife, P.W. 2. Learned trial court
having placed his implicit reliance on the testimonies of the eye witnesses getting
corroboration from the medical evidence and also by the objective findings of the
Investigating Officer found the appellants guilty, whereas other accused persons
were acquitted, as nothing was there to establish that they shared the common
intention. Consequently, learned trial court, taking into consideration the
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aggravating circumstances like that of the brutality with which eight persons,
including a child of five years and a handicapped boy of 18 years, were murdered,
awarded death sentence to them. Accordingly, a reference in terms of Section 366
Cr.P.C. was made to this Court for confirmation of death sentence awarded.
Meanwhile, the appellants also preferred an Appeal against the judgment of
conviction and order of death sentence and, therefore, both the cases were heard
together.
7. Learned counsel appearing for the appellants submits that though
three of the witnesses, namely, P.W. 3, Safru Pawaria, P.W. 5, Khaleel Ahmad, and
P.W. 6, Islam Khan, have claimed to have seen the appellants committing murder of
Haneef Khan but they never informed anyone either to the villagers or to the Police
Station or to the Chowkidar and as such, the conduct of these witnesses never
inspire confidence to be believed particularly when the prosecution is silent about
the source of light at the mosque which could have facilitated identification of the
culprits. It was also submitted that other witnesses such as P.Ws. 7 and 13 who
claimed to have identified the accused persons in front of the house of Haneef Khan
who, according to them, committed murder of Gufran Khan and Imran Khan but
their claims of identification get falsified, as no source of light was there inasmuch as
it was a dark night, still the trial court accepted their versions though their
testimonies are unworthy of its credence. Similar is the case with P.W. 2 who has
claimed to have identified the appellants and others who committed murder of five
persons inside the house but she herself has stated that she kept herself confined in a
room out of fear and in that view of the matter and also keeping in view that there
was no source of light, she cannot be believed to have identified the appellants.
Lastly, it was submitted that the trial court while awarding death sentence to the
appellants never considered the mitigating circumstances appearing in this case,
rather the trial court being influenced by the fact that number of persons including
minors have been done to death assumed it to be a case of “rarest of rare cases”
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though it was never the case of extreme culpability and cruelty and as such, the facts
and circumstances never warrant infliction of death sentence. Therefore, the order
awarding death sentence is fit to be set aside.
8. Learned counsel appearing for the State in support of judgment did
submit that the prosecution, by leading clinching evidence of the eye witnesses to
the occurrence took place at all the three places, has been able to establish the
charges and as such, the trial court has rightly recorded the judgment of conviction
and order of death sentence against the appellants.
Learned counsel further submit that the appellants without any
provocation committed murder of Haneef Khan while he was offering Namaz and
then came in front of his house where they did find Gufran Khan and Imran Khan
who were done to death brutally and then the appellants by entering into the house
committed murder of Kasuman Babi and her four children, including a minor and a
handicapped, and in that circumstance, there was no alternative but to impose death
sentence after considering both the aggravating as well as the mitigating
circumstances and, therefore, the trial court has rightly awarded death sentence to
the appellants.
9. Having heard learned counsel appearing for the parties and on
perusal of the record, we do find that this is the case where the accused persons
have committed offence of murder in a series whereby eight persons of a family,
including a minor as well as a handicapped, were exterminated. In the said series of
the acts, first occurrence took place inside the mosque situated at Village- Makandu,
whereby deceased-Haneef Khan was done to death and then Gufran Khan and
Imran Khan, sons of Haneef Khan, were done to death in front of the house of
Haneef Khan and lastly five persons, wife and four children of Haneef Khan, were
done to death inside the house of Haneef Khan. Three witnesses, P.W. 3, Safru
Pawaria, P.W. 5, Khaleel Ahmad, and P.W. 6, Islam Khan, are the persons who
claimed to have seen the appellants committing murder of Haneef Khan inside the
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mosque. According to them, while the deceased-Haneef Khan was offering Namaz
along with aforesaid three persons, all the appellants, namely, Mofil Khan,
Mobarak Khan, Saddam Khan and Wakil Khan armed with sword, bhujali, tangi
and spade respectively came over there all on a sudden and started assaulting the
deceased indiscriminately as a result of which, Haneef Khan died at the spot. It
would be worthwhile to note here that according to P.W. 3, it were Mofil Khan and
Mobarak Khan who first entered the mosque and started assaulting Haneef Khan
with the weapons which they were holding and then two other appellants, namely,
Saddam Khan and Wakil Khan, came and they also joined them in assaulting the
deceased, whereas other two witnesses P.Ws. 4 and 6 have testified that all four
appellants came simultaneously but this minor contradiction does not have any
adverse bearing over the case of the prosecution that all the accused persons entered
into the mosque and assaulted the deceased. Further, it appears that P.W. 5 has
testified that before offering Namaz he had put on the light but such statement had
not been made by the witness before the police. Still this omission would have
hardly any impact on the case of the prosecution, as it would be quite natural for the
persons offering Namaz to offer Namaz in the illumination of some light, as it is
beyond comprehension that one would offer Namaz in the darkness. Moreover, the
fact that Namaz is being offered in the light at night has been accepted by D.W. 1.
Moreover, the testimonies of all the eye witnesses get corroboration from the
medical evidence, as it would appear from the evidence of the doctor, P.W. 8 that
three injuries inflicted upon the deceased-Haneef Khan were caused by sharp
cutting weapons. Further the Investigating Officer in course of inspection of the
place of occurrence did notice a Mat (Ext. II) at the mosque which was smeared with
blood which has been seized by him under Ext. 9/4. Moreover, plaster of the floor
where the occurrence took place was also found to be smeared with blood.
Therefore, the witnesses, referred to above, are fully trustworthy and there appears
to be no reason whatsoever to discard their testimonies.
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10. Going further in the matter, it appears that P.W. 7, Mohammad Khan
@ Mahmood Khan, P.W. 12, Samir Khan and P.W. 2, Jainub Khatoon, have claimed
to have seen the appellants of committing murder of Gufran Khan and Imran Khan
in front of the house of Haneef Khan. According to P.W. 7, he came out of his home
on hearing Halla and saw Mofil Khan assaulting Gufran Khan with a sword,
whereas Mobarak Khan was assaulting Imran Khan with Bhujali and in the
meantime, one co-accused flashed torchlight towards him upon which Mofil Khan
threatened him to run away from there otherwise he would also be done to death
and then he fled away and in the next morning, he found both the dead-bodies at
that place. More or less, similar is the evidence of P.W. 12 who has testified that
while he was going to mosque, he was prevented by co-accused from going inside
the mosque and then when he raised alarm, Gufran Khan and Imran Khan came out
of their house and then Mofil Khan and Mobarak Khan cut them with sword and
bhujali and seeing this he also fled away from there out of fear. Subsequently, he
found dead-bodies over there. The testimonies of these two witnesses substantially
get corroboration from the testimony of P.W. 2 that Gufran Khan and Imran Khan
were done to death in front of the house of Haneef Khan by appellants Mofil Khan
and Mobarak Khan. However, she has testified that apart from aforesaid two
appellants, other appellants were also involved in committing murder. Thus, there
appears to be slight variation in the matter of involvement of the persons who
committed murder of Gufran Khan and Imran Khan which may have same bearing
on the other aspect of the case but the fact remains that the witnesses are consistent
on the point that the appellants Mofil Khan and Mobarak Khan cut the aforesaid two
persons. Moreover, the testimonies of those get corroboration not only from the
medical evidence but also by the objective finding of the Investigating Officer who
did find blood spilled over the ground at that place of occurrence.
11. Coming to last act of the appellants in the same series, whereby the
appellants committed murder of Kasuman Bibi and her four children inside the
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house of Haneef Khan. We do find that P.W. 2, Jainub Khatoon, who is none other
than the mother of two appellants, namely, Mofil Khan and Mobarak Khan, and
grand mother of appellants, Saddam Khan and Wakil Khan, has testified that the
appellants and other accused persons after committing murder of Haneef Khan at
mosque came in front of his house where they committed murder of Gufran Khan
and Imran Khan and then entered into the house where they committed murder of
Kasuman Babi and her four children. This piece of evidence was sought to be
assailed on behalf of the defence on the plea that she would not be in a position to
identify the accused persons, as admittedly, it was dark night. It is true that the
prosecution does not come forward to say about any source of light but we cannot
lose sight of the fact that the appellants are none other than the sons and grand sons
of the witness- Jainub Khatoon and moreover, the appellants were giving warning in
loud voice to other persons not to come to rescue to the persons who were killed.
Under these situations, it never appears to be unnatural on the part of the witness to
be in position to identify the appellants.
12. It would also be appropriate to note here that this witness in her
cross-examination has admitted that her house and the house of Haneef Khan is the
same which has been divided by the common wall, but this witness in her evidence
has asserted that she was living in the house of Haneef Khan and this assertion of
P.W. 2-Jainub Khatoon gets corroboration from the testimony of P.W. 12 who has
testified that P.W. 2 was living on the Varanda of the house of Haneef Khan.
13. Further, we do find that P.W. 2 when saw the accused persons
entering into the house, she locked herself in a room and when the accused persons
went away, she saw the dead-bodies which, according to her, were lying in three
rooms though the Investigating Officer did find all the five dead-bodies only in two
rooms but this variation never goes to the root of the prosecution case and as such, it
has got hardly any adverse impact over the case of the prosecution. Moreover, the
testimony of this witness also gets corroboration from the testimony of P.W. 7 who
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has testified that when he came in front of the house of Haneef Khan, he was
threatened by the accused and then he left the place out of fear and came to his
house. After a while, he saw the appellants as well as other accused persons entering
into the house of Haneef Khan and in the morning when he came to the house of
Haneef Khan, he found the dead-bodies of five persons. Thus, none of these two
witnesses appears to have seen the accused persons assaulting the deceased, but in
the facts and circumstances, no other conclusion can be drawn than the fact that it
was the appellants who committed murder of Kasuman Bibi, as other accused
persons, who were put to trial, were never found to have been sharing common
intention. Moreover, the testimonies of these witnesses gets corroboration from the
medical evidence, as the doctor has found sharp cut injuries on the person of the
deceased, whereas the accused persons were seen entering into the house with sharp
cutting weapons and that apart, the Investigating Officer has also found earth
smeared with blood at the place of occurrence.
14. Regard being had to the facts and circumstances, we do find and
hold that the trial court was absolutely justified in holding the appellants guilty for
committing murder of all the deceased.
Once guilt has been established in such a case, where number of persons
have been exterminated, the court is bound to fall in punitive dilemma and in the
words of Hon’ble Justice Krishna Iyer, as expressed in a case reported in 1974 (4)
S.C.C. 443, this dilemma reaches its peak when the magnitude of the crime is
enormous, viewed from the angle of number of causalities inflicted by the offenders.
We are also no exception to it. However, before determining the sentence to be
awarded, we need to observe certain guidelines laid down by the Hon’ble Supreme
Court in such a situation. In the case of Anshad Vs. State of Karnataka {1994(4)
S.C.C. 381}, it has been observed by the Hon’ble Supreme Court that the Courts are
expected to exhibit sensitiveness in the matter of award of sentence particularly, the
sentence of death because life one lost cannot be brought back. It has been further
14
observed that this Court has in cases more than one emphasized that for
determining the proper sentence in a case like this while the court should take into
account the aggravating circumstances it should not overlook or ignore the
mitigating circumstances. Further their Lordships in the case of Sheikh Ishaque and
others Vs. State of Bihar {(1995)3 S.S.C. 392} has observed that the manner in which
the crime was committed, the weapons used and the brutality or the lack of it are
some of the considerations which must be present to the mind of the court. The
courts must be alive to the legislative changes introduced in 1973 through Section
354 (3) Cr.P.C. Death sentence, being an exception to the general rule, should be
awarded in the ‘rarest of the rare cases’ for ‘special reasons’ to be recorded after
balancing the aggravating and the mitigating circumstances, in the facts and
circumstances of a given case. It has further 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 the rare cases’. Again the same view has
been expressed by the Hon’ble Supreme Court in the case of Gyasuddin Khan @
Md. Gyasuddin Khan Vs. State of Bihar {AIR 2004 S.C. 210}, wherein it has been
observed that the nature of the crime, the circumstances of the criminal and the
impact of the crime on the community are broadly the considerations that ought to
be kept in view by a Court called upon to choose between the death sentence and
the life imprisonment. At the same time, the circumstances in which the death
sentence can be imposed cannot be placed in pigeon holes.
The aggravating and mitigating circumstances have been enumerated in the
famous case of Bachan Singh Vs. State of Punjab {1980 (2) S.C.C. 684}. While
enumerating the aggravating and also the mitigating circumstances, their Lordships
have observed as follows :-
“As we read Ss. 354(3) and 235(2) and other related provisions of the
Code of 1973, it is quite clear to us that for making the choice of
punishment or for ascertaining the existence or absence of “special
reasons” in that context, the Court must pay due regard both to the
15crime and the criminal. What is the relative weight to be given to the
aggravating and mitigating factors, depends on the facts and
circumstances of the particular case. More often than not, these two
aspects are so intertwined that it is difficult to give a separate
treatment to each of them. This is so because ‘style is the man.’ In
many cases, the extremely cruel or beastly manner of the commission
of murder is itself a demonstrated index of the depraved character of
the perpetrator. That is why, it is not desirable to consider the
circumstances of the crime and the circumstances of the criminal in
two separate watertight compartments. In a sense, to kill is to be
cruel and, therefore, all murders are cruel. But such cruelty may vary
in its degree of culpability. And it is only when the culpability
assumes the proportion of extreme depravity that “special reasons”
can legitimately be said to exist.”
Subsequently, in the case of Machhi Singh Vs. State of Punjab {1983(3)
S.C.C. 470}, this Court after referring to the guidelines adverted to in Bachan Singh’s
case applied the following working test to reach the conclusion whether a particular
case warrants death sentence :
“(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence ?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in
favour of the offender?”
15. Keeping in view all these guidelines, we would be turning our
attention to the relevant facts and circumstances having a bearing on the question
of sentence and to test as to whether learned trial court was justified in awarding
death sentence. Learned trial court keeping in view the guidelines laid down in the
case of Machhi Singh (supra) did find the aggravating circumstances as that of
extermination of the entire family of deceased-Haneef Khan executed in most
gruesome, brutal and merciless manner without any provocation and at the same
time did take notice the age of two appellants Saddam Khan and Wakil Khan as
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that of 19 and 21 years respectively and absence of criminal antecedents as the
mitigating circumstance but perhaps keeping in view the aggravating
circumstance overweighing mitigating circumstances, the trial court thought it
proper to award death sentence to the appellants but while coming to such
conclusion, the trial court overlooked certain mitigating circumstances which
would certainly have bearing in the matter of infliction of sentence. Some of the
mitigating circumstances appearing against the appellants particularly Saddam
Khan and Wakil Khan are that, according to P.Ws. 7 and 12, they have not
committed any overt act in commission of murder of Gufran Khan and Imran
Khan and that there has been no evidence at all that they in fact inflicted injuries
on the persons who were found dead inside the house. So far first occurrence is
concerned, where deceased-Haneef Khan was done to death inside the mosque, it
is evident from the evidence of P.W. 3 that it was appellant Mofil Khan and
Mobarak Khan who first entered into the mosque and then inflicted the injuries
indiscriminately by sword and bhujali to Haneef Khan and subsequently, these
two appellants having tangi and spade came and started assaulting the deceased,
but the doctor did find only three injuries on the persons of deceased- Haneef
Khan. Therefore, when it is not sure whether they inflicted injuries, though they
were certainly sharing common intention to commit murder and that they are of
young age, it would not be appropriate to inflict death sentence to them. The trial
court certainly seems to have overlooked the important mitigating circumstance
and, therefore, committed illegality in awarding death sentence to them.
16. Therefore, we set aside the death sentence imposed upon appellants
Wakil Khan and Saddam Khan and instead of that they are sentenced for
imprisonment of life for the offence under Section 302/34 of Indian Penal Code.
However, in the facts and circumstances of the case, we do not find it proper to
pass separate sentence for the offence under Section 449/34 of Indian Penal Code.
However, keeping in view the act committed by other two appellants namely,
17
Mofil Khan and Mobarak Khan, whereby they not only committed murder
dastardly of their brother at the place of worship but again committed murder of
Gufran Khan and Imran Khan, sons of deceased-Haneef Khan, and then
committed murder of Kasuman Bibi, wife of Haneef Khan, and her four children
i.e. the entire family of Haneef Khan though nothing specific is there that they
inflicted fatal injuries to Kasuman Bibi and her four children still it can be said in
the totality of the circumstances that the culpability of these two appellants
assumes the proportion of extreme depravity which can be said to be something
uncommon about the crime and under these circumstances, there was no other
alternative for the trial court but to impose death sentence under Section 302/34 of
Indian Penal Code, which in our view is absolutely proper and appropriate.
Therefore, death sentence imposed upon them under Section 302/34 of Indian
Penal Code is hereby confirmed. So far sentence imposed for the offence under
Section 449/34 of Indian Penal Code is concerned, we do not find any justification
in imposing separate sentence for the offence under Section 449/34 of Indian Penal
Code.
17. Thus, the death sentence imposed upon the appellant nos. 3 and 4,
namely, Wakil Khan and Saddam Khan, is commuted to imprisonment for life
whereas death sentence imposed upon the appellant nos. 1 and 2, namely, Mofil
Khan and Mobarak Khan, is hereby confirmed.
18. In the result, appeal stands dismissed with modification in sentence
as indicated above so far appellants Wakil Khan and Saddam Khan are concerned,
whereas appeal stands dismissed as against appellants Mofil Khan and Mobarak
Khan. Accordingly, Reference is answered.
(R.R. Prasad, J.)
Amareshwar Sahay, J.
(Amareshwar Sahay, J.)
Jharkhand High Court, Ranchi
Dated 02 /07/2009
AKT/N.A.F.R.