IMPORTANT POINT
Although appellant is guilty of committing murder of his two young minor sons but his case does not come under the category of "rarest of the rare cases thus his death penalty is commuted to life imprisonment.

Headnote:(i) Indian Penal Code, 1860-Section 302-Offence of murder-Appellant (father) found guilty of murdering his two sons Jigarsinh (aged 12) and Vimalsinh (aged 7) by assaulting with Dharia which was witnessed by PW 3 Ashaben (wife of appellant and mother of deceased)-Convicted by trial Court upheld by High Court-Appeal to Supreme Court-Contention that Relations between Appellant and PW 3 Ashaben were strained so she falsely implicated the appellant-Whether sustainable? (No) (Para 9) whether there was any discrepancy between oral and medical evidence as to assault made by an axe and not by Dharia? (No) (Para 10)-Whether presence of appellant at spot not established on the statement of PW 7 a neighbour (rejected) (Para 11)-Contradiction about lodging of FIR (whether at police station or at the spot) and faulty investigation-Whether fatal? (No) (Paras 12 to 14)-Whether appellant suffered from mental disorder or insanity? (No) (Para 15)-Whether complainant can be held to have not witnessed the incident? (No) (Para 16)-Result-Conviction of appellant under Section 302 IPC upheld.
       Held : In the above background we find that the Trial Court and the High Court have rightly placed implicit reliance upon the statement of PW-3 despite the infirmities which crept in due to careless investigation and contradiction regarding the place of lodging of the report. PW-3 was quite categorical that after the report was scribed she had put her thumb impression upon the same. According to I.O. PW-9, it was forwarded to the police station for registration of the case, which according to PW-3 was lodged at the police station itself. The Trial Court and the High Court have already appreciated the position and have rightly observed that it may be due to some confusion or carelessness or under an impression that the reports are lodged at police station. PW-3 had stated that she has lodged the report at the police station, whereas it has been found that it was written at Village Bhadresar at her place. Learned counsel for the appellant relying upon the decision reported in 1994 (Suppl.) 1 SCC 590, submitted that if the Investigating Officer reaches the spot without recording the FIR first, the statement given by the complainant is to be treated as under Section 162 Cr.P.C. and it would not be safe to rely upon it and as it can not be treated as a FIR. It is also submitted that the prosecution case also becomes doubtful and unreliable. We feel that we have substantially dealt with this aspect of the matter in the earlier part of the judgment even what has submitted by the learned counsel for the appellant is accepted, in our view, it will have no effect on the merit of the case based on the unimpeachable evidence on the record supported by the medical evidence and the independent circumstances of the case. Statement of PW-3 Ashaben totally inspires confidence. It also appears that she was not ill-disposed to her husband to the extent that it could be inferred that she would be falsely implicating him in such a crime. This fact would be apparent from the statement of her father PW-4 who had stated that he knew that sometimes quarrels took place between her daughter and the appellant but he was never given any details about the same. Had she been ill-disposed to him, she might have been making all sorts of complaints to her parents but that does not appear to be so. The prosecution story as per her statement rings true and stands established by cogent evidence on the record and independent circumstances. (Paras 17 and 18)
       (ii) Death Penalty imposed on appellant (father) for murdering his two young sons-Confirmed by High Court-Appeal against to Supreme Court-Whether the case comes under the category of "rarest of the rare cases"? (No)-Result-Death penalty converted into life imprisonment. (Paras 17 to 20)
       Held : For the above reasons in our view it cannot be said that the case falls in the category of rarest of rare cases so as to make the appellant liable for extreme penalty of death. The crime committed is no doubt heinous and unpardonable. The act of the appellant is condemnable. In our view however the normal sentence of life imprisonment for the offence of murder would meet the ends of justice. In the result, while dismissing the appeal against his conviction, we set aside the sentence of death as awarded by the trial court and confirmed by the High Court and commute to that of imprisonment for life. The appellant shall serve out the sentence of imprisonment for life. (Paras 22 and 23)

JUDGMENT

Brijesh Kumar, J.-This appeal has been preferred by the appellant from Jail against the judgment and order dated 5th, 7th and 10th July, 2001 passed by the Gujarat High Court upholding his conviction under Section 302 I.P.C. and sentence of death as awarded by the Additional Sessions Judge Sabarkantha, at Himmatnagar. The reference for confirmation of the death sentence was also accepted.

2. We have heard the Amicus Curiae representing the appellant at length as well as the learned counsel representing the State.

3. The facts of the case are in a narrow campass. The appellant and PW-3 Ashaben, were married about 15 years before the incident. They had two sons, Jigarsinh and Vimalsinh aged about 12 and 7 years respectively. They were residing in Village Bhadresar along with the parents of the appellant. The brother of the appellant, namely Dashrathsinh was living separately. The prosecution case is that on 24.8.1998 while the appellant, the complainant PW-3 Ashaben and their two sons were sleeping on cots inside the house, the appellant woke her up early in the morning. She milched the cow and requested her husband to deliver the milk at the dairy. The appellant declined to do so upon which she tried to awake Jigarsinh for delivering the milk but the appellant asked her to go herself for the purpose. She accordingly went to the dairy and reached back home at about 7 a.m. She found her husband assaulting the sleeping boys, namely their sons. She raised alarm and rushed into the room thereupon her husband left the house from the other door. Ratansinh her father-in-law and Dasrathsinh her brother-in-law and others arrived. She told them about the incident. The two sons died as a result of injury received by them. PW-4 Mangusinh Tetsinh, father of the complainant, PW-3 Ashaben on getting information of the incident through Sarpanch of his village went to Village Bhadresar, his daughter narrated the whole story to him. He brought her to his village Mhudi from Bhadresar. According to him on the way they also went to the Police Station, Jadar. According to PW-3 her report was written and lodged at the Police Station. The PSI, Police Station, Jadar, Bhurjibhai, who has been examined as PW-8 stated about the lodging of the FIR and registration of the case at the Police station at 5 p.m. on 24.8.1998. Thereafter PW-9 conducted the investigation into the case interrogating the complainant and other witnesses at the spot and taking into custody the other material exhibits and prepared their respective recovery memos including that of the weapon Dharia. He also took into custody the plain and blood stained earth etc. Inquest reports were also prepared. He arrested the accused on 17.9.1998 at 11.15 A.M. The post-mortem examination on the dead bodies of the two deceased was held by PW-1 Dr. Ganpatsinh Ambadan Charan, on 24.8.1998. He found three external injuries on the dead body of Jigarsinh, which consisted of one sharp cut wound on the left cervical region up to the middle line of neck and two other incised wounds. On internal examination he found fracture of the jaws. So far Vimalsinh is concerned he was found to have one sharp cut wound on the neck from left mandible to right ear lobule. There was fracture of occipital bone as well as that of 1st and 2nd cervical spine. The Doctor opined that the injuries were ante-mortem and they were caused by sharp edged weapon. On looking to the exhibit article No. 9, Dharia he stated that the said injuries could be caused by the said weapon. He also stated that injuries were sufficient in the ordinary course of nature to cause death. He denied the suggestion made in the cross-examination that the nature of the injuries indicated could be caused only by axe. He also denied the suggestion that the injury Nos. 2 and 3 could not be caused by Dharia. PW-2, Nathosinh is a witness of recovery and the articles and memos prepared there on. PW-3 is the complainant namely, the mother of the two deceas

Click Here to Read the rest of this document

2002 Supreme(SC) 508

IMPORTANT POINTAlthough appellant is guilty of committing murder of his two young minor sons but his case does not come under the category of "rarest of the rare cases thus his death penalty is commuted to life imprisonment.

Cases Referred (12)

IMPORTANT POINT
Although appellant is guilty of committing murder of his two young minor sons but his case does not come under the category of "rarest of the rare cases thus his death penalty is commuted to life imprisonment.