IMPORTANT POINTS
(1) Death sentence – Rarest of Rare Case – Death penalty for offence of murder would not be a violation of constitutional provisions – In grave cases of extreme culpability, capital punishment can be awarded and convict’s condition must be taken into consideration.
(2) Intoxicated condition of accused at the time of incident is a mitigating circumstance to commute death penalty to life imprisonment.

JUDGMENT

Vivek Agarwal, J.—The criminal appeal and the criminal reference have been filed being aggrieved of the judgment of conviction dated 15.09.2022 and sentence dated 19.09.2022 passed by learned Additional Session Judge, Bareli, District Raisen in S.T. No.46 of 2019, convicting the accused Jitendra Purviya with Death penalty for offence under Section 302 of IPC (4 counts) and with three years imprisonment under Section 25(1-b)(a) of the Arms Act with fine of Rs.1000/- with default stipulation of R.I. for two months. He is also convicted under Section 27 of the Arms Act with R.I. for five years, fine of Rs.1,000/- with default stipulation of two months R.I.

2. Brief facts of the present case are that the appellant is guilty of causing homicidal death of his wife Sunita, father Jalam Singh, mother Sharda and son Siddhant @ Shivyansh.

3. As per the prosecution story, on 16.05.2019 complainant Ranjana Bai (PW-1) lodged a Dehati Nalishi to the effect that on 16.05.2019 at about 1.30 – 2.00 a.m., she along with her son Sourabh and husband Ramji were sleeping in the courtyard of their house. In the neighbourhood, her uncle-in-law Jalam Singh was residing with his family. In that house, Jalam Singh, his wife Sharda Bai, Daughter-in-law Sunita Bai, grandson Siddhant @ Shivyansh and her brother-in-law (Devar) Jitendra Purviya were sleeping. At about 1.30 - 2.00 a.m. she heard sound of fire arm in the courtyard of her uncle-in-law when she and her son Saurabh got up. They heard cries of Sunita Bai for saving them as Jitendra was beating them armed with a gun and an axe. They immediately reached the place of the incident and saw Jalam Singh and Sharda Bai stepping in to save Sunita, then Jitendra had beaten them and caused injuries to them. When complainant stopped Jitendra, then he ran to attack her, she ran for her life along with her son. But in the process Jitendra had hit Sourabh i.e. her son on his left hand with the handle of the axe. Jitendra had hit axe on the head of Shivyansh when neighbourer Ratan Singh was woken up, then on his raising an alarm neighbourers gathered but in the meanwhile Jitendra after concluding the assault escaped with his gun and an axe. Sharda Bai and Sunita were already dead whereas Jalam Singh and Shivyansh were grievously injured.

4. On the basis of said Dehati Nalishi, FIR registering Case Crime No.241 of 2019 was registered under Section 302 and 307 of IPC.

5. Shri Atul Anand Awasthi, learned Senior Advocate for the petitioner, in his turn, submits that appellant is innocent, he has been falsely implicated. Place of the incidence is an open courtyard and in the postmortem report no gunshot injuries were found on the body of any of the injured/deceased persons.

6. It is submitted that all the three witnesses namely, Ranjana Bai (PW- 1), informant, is wife of Ramji (PW-11), and mother of Saurabh (PW-2) and they being all related witnesses, their testimony cannot be accepted as such without corroboration.

7. Reading from the spot map Ex.P-2, it is submitted that the place of the incident is on the west of the courtyard of witness Ranjana Bai (PW-1). House of Jalam Singh is also on the west of the house of Ranjana Bai (PW-1). No gate is shown in the spot map to permit Ranjana Bai (PW-1) to witness the incident taking place in the courtyard of Jalam Singh and, therefore, the spot map belies the story of Ranjana Bai (PW-1) being the eye witness. Referring to Ex.P-40, FIR, it is submitted that Ratan Singh is a hearsay witness.

8. It is submitted that, in the present case, firstly, appellant is innocent and secondly, his case is not the rarest of rare cases where death penalty be maintained. It is submitted that learned Additional Sessions Judge overlooked the fact that when accused appellant came back from his fields his father had already died and the wife was in some objectionable position, therefore, the incident took place. There was no motive of causing death of four persons. There was no ill- wil