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Supreme Court of India
THE HONOURABLE MR. JUSTICE V.S. SIRPURKAR & THE HONOURABLE MR. JUSTICE DEEPAK VERMA
Sushil Kumar
Versus
State of Punjab
CRIMINAL APPEAL NO.670 OF 2009
Decided on : 01-09-2009
Indian Penal Code, 1860 – Section 302 – Death sentence – Extreme poverty driving the appellant to commit the gruesome murder of his wife, minor son and daughter – Appellant aged about 35 years – No criminal antecedent – Having good behaviour – Not rarest of the rare case – Possibility of reformation remaining – Death sentence set aside. (Para 45, 46)
Facts of the case:
Sole appellant Sushil Kumar alias Lucky has been awarded death sentence by Additional Sessions Judge, Jalandhar holding him guilty of commission of offence under Section 302 I.P.C. on three counts, i.e., for committing murder of his wife Pooja, son Jatin (6 years) and daughter Sofia (4 years). However, he was acquitted of the offence punishable under Section 309, IPC.
Feeling aggrieved thereof, appellant preferred Criminal Appeal in the High Court; and, Death Reference under Section 366, Cr.P.C. was sent for confirmation to the High Court by the learned Additional Sessions Judge.
Division Bench of the High Court, answered the Murder Reference No. 3 of 2007 against the appellant and capital punishment awarded to the appellant stands affirmed.
The appellant has however challenged only the capital sentence and not his conviction u/s 302.
Finding of the Court:
Courts below have not considered the mitigating circumstances.
Result: Appeal partly allowed, sentence modified.
Judgment :-
Deepak Verma, J.
1. Life or death is the question involved in this appeal. Sole appellant Sushil Kumar alias Lucky has been awarded death sentence in Sessions Case No. 70 of 2006, by Additional Sessions Judge, Jalandhar vide judgment and order dated 13/17.4.2007 holding him guilty of commission of offence under Section 302 of Indian Penal Code (for short I.P.C.) on three counts, i.e., for committing murder of his wife Pooja, son Jatin (6 years) and daughter Sofia (4 years). However, he was acquitted of the offence punishable under Section 309, IPC. Feeling aggrieved thereof, appellant preferred Criminal Appeal No. 447-DB of 2007 in the High Court of Punjab and Haryana at Chandigarh and as required under law, Death Reference under Section 366 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) was sent for confirmation to the High Court by the learned Additional Sessions Judge vide Murder Reference No. 3 of 2007.
2.2. Vide impugned judgment and order pronounced on 30.5.2008 by Division Bench of the High Court, Murder Reference No. 3 of 2007 has been answered against the appellant and capital punishment awarded to the appellant stands affirmed, as a necessary consequence thereof, Criminal Appeal No. 447-DB of 2007 filed by appellant stands dismissed. Hence, this appeal, but only against Murder Reference and not against the dismissal of his Criminal Appeal on merits. In other words, he is challenging only the capital punishment awarded to him and not the conviction under Section 302 IPC.
3.3. The genesis of the prosecution story was set at motion on the strength of telephonic information given to Police Station, Division No.5, Jalandhar on 4.3.2005 by Mr. Ram Lal, Councillor of Basti Danishmandan about the incident, which triggered off the police in action. S.I. Onkar Singh (PW-11), Investigating Officer, reached the place of occurrence alongwith other police personnel, where he found Sukhdev Kumar (PW-2), brother of deceased Pooja, who gave details of the unfortunate incident. The information, as narrated by him, to PW-11, I.O. is mentioned hereinbelow:
4.4. (i) His younger sister Pooja @ Ashma was married to appellant Sushil Kumar about seven years back. They were blessed with two children: a son, Jatin @ Babu, aged six years and a daughter, Sofia, aged four years. They had been residing in a rented accommodation of Pawan Kumar.
(ii) Earlier, appellant Sushil Kumar was working in a shop of Babbu of Kishanpura but for the last about 7-8 months he was unemployed and was thus passing through great financial difficulties. He was borrowing money from others to meet his daily needs.
(iii) Just two days prior to the incident, i.e. on 2.3.2005, at about 1.30 p.m. PW-2 Sukhdev had visited their house to enquire about their welfare and at that time had noticed a minor scuffle between his sister and her husband, the present appellant. He tried to intervene and advised them to live peacefully and amicably.
(iv) On 4.3.2005 at about 6.30 in the morning PW-2 Sukhdev received a telephonic call from appellant informing him that he has been admitted in the hospital and he requested Sukhdev to visit his house to enquire about the welfare of his wife and children, who were alone at home. He further asked him to enter the house by climbing its wall.
When Sukhdev enquired from the appellant if there had been any unpleasantness between the two, he was told to first visit his house, then to inform him and abruptly snapped the phone.
.(v) Sensing foul-play, Sukhdev rushed to the house of his sister and entered through the gate. He then saw the dead bodies of his sister Pooja, her son Jatin and daughter Sofia lying on bed. It appeared that they were strangulated to death with the aid of plastic rope which was lying on the bed. Both hands of son Jatin were tied and all of them had also sustained incised wounds.
.(vi) While Sukhdev was still hovering under a great shock and agony, he received yet another phone call from appellant at ab
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