Important points
1. Where on the question of sentence, trial Court heard both prosecution and the defence side and had shown utmost concern and after much deliberation came to conclusion about the matter of grant of punishment, merely because no formal question was put on accused on question of punishment it could not be said that provisions of Section 235(2) was violated.
2. Where accused in order to satisfy his lust broke open wall of room and killed severing head of her sister-in-law and hung the head by the hair on a tree and also killed a nine years old female child who witnessed the crime, murder being cold blooded and brutal, death sentence was justified.

Headnote:(i) Criminal Procedure Code, 1973—Sections 354(3) and 366—Death sentence — Accused broke open wall, made entry into room of sister-in-law attempted to commit rape and killed victim by severing her head — Mother of accused bolted inside another room—Head of victim tied by hair and hanged in tree and body also placed on tree—Nine years old female child who witnessed crime also was killed and buried in sand—Mother of accused gave evidence against accused narrating his bad character—Accused admitted of committing murder and alleged that reason for murder was that he was not given enough food by her sister-in-law—Reason false—Victim in advanced stage of pregnancy—Age of accused being 22 years cannot in factual matrix be said to be a mitigating factor—No amount of perversity would prompt a person to break open door by removing bricks from wall and commit such gruesome murders on failure to satisfy lust—Subsequent conduct of disposal of bodies also gruesome—There is no likelihood of accused being reformed or rehabilitated — Death sentence imposed by trial Court and confirmed by High Court justified — Murder was cold blooded and brutal without any provocation—It is a rarest of rare case — Death sentence affirmed.
       Held : Section 302 of the Indian Penal Code authorises the Court to punish the offender of murder with death or imprisonment for life—the statute therefore has provided a discretion to the court to sentence the offender either with death or with imprisonment for life : Obviously, a serious decision and a heavy burden imposed on the Court—This discretion conferred however, shall have to be thus exercised in a manner and in consonance with the concept of law so as to sub-serve the ends of justice and it is on this aspect of the matter that in a long catena of cases this Court in no uncertain terms laid down that award of death sentence though within the ambit of jurisdiction of the courts, but that does not clothe the courts to exercise the same in a manner indiscriminate—This Court has been candid enough to record on more occasions than one that it is only in the rarest of the rare cases that this discretion as regards capital punishment ought to be exercised. Ours is a civilised society—tooth for a tooth and eye for an eye ought not to be the criteria; the civilisation and the due process of law coupled with social order ought not to permit us to be hasty in regard to the award of capital punishment and as a matter of fact the Courts ought to be rather slow in that direction. (Para 9)
       Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub-serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of law is its flexibility and its adaptability, it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. In the present day society, crime is now considered a social problem and by reason therefore a tremendous change even conceptually is being seen in the legal horizon so far as the punishment is concerned. (Para 10)
       One school of thought on this score propagates the function of the law court is that of a social reformer and as such in its endeavour to act as such, question of deterring punishment would not arise since the society would otherwise be further prone to such violent acts or activities by reason of the fact that with the advancement of the age the mental frame of boys of tender age also go on changing and in the event of any arrogance being developed or a sense of revenge creeps the society, the society would perish to the detriment of its people. The other school, however, expressly recorded and rather emphatically that unless severest of the severe punishments are inflicted on an offender (obviously depending upon the nature of the crime) the society would perish. The other school professes that since one has taken the life of another that does not mean that his life shall have to be taken but during the trial if it transpires the method and manner or the nature of the activities which has resulted in the elimination of a human being from this world, there should not be any laxity on the part of the law courts, otherwise people will and in turn the society will be engulfed in false sense of security of life in the event of there being most heinous crime of the earth. The law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment. While it is true that a sentence disproportionately severe, ought not to be passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly inadequate having due regard to the nature of the offence since an inadequate sentence would fail to produce a deterrent effect on the society at large. Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, rather having its due impact on the society : while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large. (Paras 11, 12 & 13)
       Co-relation of aggravating and mitigating circumstances and a balance be struck on the basis of the factual matrix of the matter in issue, before the exercise of discretion in terms of the provisions of Section 302. In the matter in issue, however, we do not find any balancing factor so as to strike a balance. As a matter of fact aggravating factors there are aplenty and galore without any mitigating circumstances as noticed above. The age of the accused being of 22 years cannot, in the factual matrix of the matter under consideration, be said to be a mitigating factor. Accused is of 22 years of age while the victim was aged 30 years and at the time of the unfortunate death, she was under pregnancy between 22 to 30 weeks - the other victim was an innocent girl - a child of 8 years : the murders were cold blooded while two victims were in helpless and hapless situation. No amount of perversity would prompt a person to break open the door by removing the bricks from the wall and commit such gruesome murders on failure to satisfy the lust - the human lust ought to know its limits. Imaginations shall have to run wild to consider existence of any mitigating factors in the matter of sentence, having due regard to even the subsequent conduct of the accused in the matter of disposal of the bodies as noticed above. Can there be any mitigating circumstance on account of such a ghastly act—the answer cannot but be in the negative. The mother of the accused was bolted inside the room and she watches as a bewildered spectator from the creeks of the window and it is the mother who had given evidence about the bad characteristics and the reputation of the accused in the locality : the sister-in-law has been murdered along with an innocent child—Is this a man who deserves any sympathy from the society—Is this a man who can correct himself and the law courts ought to permit him to lead a decent life after he serves the sentence : The mother’s evidence becomes material and it is on this score that we are unable to record our concurrence with the submissions of Mr. Muralidhar that there are some mitigating circumstance and there is likelihood of the accused being reformed or rehabilitated. Incidentally, the High Court has described the accused as “a living danger” and we cannot agree more therewith in view of the gruesome act as noticed above. (Paras 17 & 18)
       The facts establish the depravity and criminality of the accused in no uncertain terms. - No regard being had for precious life of the young child also. The compassionate ground of the accused being of 22 years of age cannot in the facts of the matter be termed to be at all relevant. The reasons put forth by the learned Sessions Judge cannot but be termed to be unassailable. In the present case, the savage nature of the crime has shocked our judicial conscience. The murder was cold-blooded and brutal without any provocation. It certainly makes it a rarest of the rare cases in which there are no extenuating or mitigating circumstances. (Paras 20 & 21)
       (ii) Criminal Procedure Code, 1973 — Section 235(2) — Hearing accused on question of sentence —Death sentence — Both parties were heard on question of sentence—None of parties wanted to give any documentary or oral evidence with regard to sentence—No formal question put to accused on question of sentence—Trying judge had shown utmost concern and after much deliberation came to conclusion about matter of grant of punishment—There is no statutory mockery resulting in total miscarriage of justice—No infirmity in not putting question on accused on question of sentence.
       Held : The order of the learned Sessions Judge as recorded above unmistakably depicts that both the parties were heard and none of the parties wanted to give any documentary or oral evidence with regard to sentence. But the factum of submissions and considerations thereof as appears from paragraphs 27 and 28 leads us to a definite conclusion that there has been no miscarriage of justice. Be it noted that the statute has engrafted in the statute book the provisions of Sections 235(2) so as to see that proper appreciation of the evidence takes place and proper opportunity of hearing as regards punishment be afforded, but if there is no taker of such an opportunity inspite of there being lawyers appearing for the accused as well, question of further adjournment of the matter would not arise. It is true that the obligation is not discharged by putting formal questions to the accused - The Judge is supposed to elicit materials from the accused which will have a bearing on the question of sentence and it is on this requirement of law, let us consider as to whether there was in fact such a genuine attempt to elicit materials-but as the record depicts there was no taker of this opportunity and the defence lawyer pleaded two facts to be considered in the matter for award of punishment viz. (a) The accused is aged 22 years and (b) No other past Criminal Record : We wish to put on record that trying Judge has shown utmost concern and after much deliberation came to the conclusion as above in the matter of the grant of punishment. The ratio dicedendi of the cases noticed is to see that there is no statutory mockery resulting in a total miscarriage of justice. The judgment was adjourned and the lawyer was asked - and prompt came the reply that the sentence ought to be considered by reason of the age and no past record. But these aspects have duly been considered by the Sessions Judge and we do not see any infirmity therein. (Para 14)
       Result : Appeal dismissed.

Judgment

Banerjee, J.—Leave granted.

2. This appeal by the grant of special leave is directed against the order of confirmation of death sentence by the Division Bench of the High Court of Madhya Pradesh at Jabalpur. Since the appeal pertains to confirmation of death sentence by the High Court and the submission in support of the appeal is restricted to the question of sentence, it would be convenient to note at this juncture that it is only in the rarest of rare cases that this punishment is to be inflicted and it is on this score that Mr. Muralidhar, the amicus curiae appointed in the matter with the usual ability strongly contended that the punishment awarded by the Sessions Judge and as confirmed by the High Court, runs counter to the basic concept of law and justice of the situation. As a part of the submission, Mr. Muralidhar placed strong reliance on Sections 235(2) and 354(3) of the Code of Criminal Procedure. But before consideration of the submissions on legal issue as above, it would be convenient to advert to the factual matrix of the matter in issue, in order to assess the situation as to whether the matter in issue in fact falls squarely and evenly on the category of rarest of the rare cases.

3. The factual score depicts that the appellant was charged under Section 302 read with Section 201 for committing murder of deceased Dev Vati, aged 30 years and a girl child Renu aged 8 years, on the night of 7th January, 1997. Both the lady and the girl child, however, were related to the accused, being the sister-in-law (brother’s wife) and the niece respectively. Apart from the evidence tendered before the court by the mother and the nephew respectively of the accused, the latter himself in his examination under Section 313 of the Code categorically stated and admitted the factum of murder—the situation, therefore, is that the accused admits of murdering his sister-in-law and the niece—and the reason put forth—the sister-in-law has not been giving him enough food and as such on being enraged therewith, this offence was committed—but what about the child? Significantly there is no whisper pertaining thereto—is it because that the child witnessed the gruesome murder of the mother and as such the child shall also have to be eliminated—may be, but let us not proceed on any hypothesis, the fact remains however, that both the Sessions Judge and the High Court disbelieved this version of the accused.

4. The mother in her evidence in no uncertain terms stated that there was an attempt to commit rape on the sister-in-law and by reason of resistance, the rapist committed the offence and on the same being put forth to the accused—the answer comes that all the children of the sister-in-law were illegitimate children and her visit to her father’s place and affinity with friends in that area had brought about this situation of having two children : Incidentally, however, the lady murdered was at an advanced stage pregnancy at the time of her death.

5. The evidence on record depicts that on the fateful night of 7th January, 1997, at village Rakri Tola, Tikuri, District Rewa, Madhya Pradesh, the accused entered the house and bolted from outside the mother’s room and thereafter removed certain bricks from the wall and ‘choukat’ thus facilitating the entry into the room where the deceased sister-in-law was sleeping with the child and had to face this gruesome death in the hands of the brother-in-law. The evidence on record depicts that the accused committed the murder of his sister-in-law at about 11.00 p.m. by Parsul blows and then kulhadi (tanga) blows on her neck severing her head from the body and taking away her 8 years old daughter Renu and killing her in a jungle by Axe blows said to be by offering sacrifice to Mahuva Maharaj and burying her in the sand covered with stones and it is thereafter that the accused comes back home and carry the body of the deceased sister-in-law tied in a cloth to the jungl

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Cases Referred (5)