2013 3 1502 21150 Judgement 05-Mar-2020
2013 3 1502 21150 Judgement 05-Mar-2020
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REPORTABLE
Versus
JUDGMENT
M. R. Shah, J.
Leave granted.
which the Division Bench of the High Court has dismissed the said
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2020.03.05
16:42:06 IST
Reason:
appeal preferred by the appellant-original accused and has
under Section 302 of the IPC for having killed the three minor
years, Ajay aged about 6 years and Kumari Sakshi aged about 4
11.30 AM, the three minors left the school for home on foot. When
they did not reach home, Shivlal-P.W.18 looked for the children in
the vicinity and went to school and enquired about the children.
Shivlal that the three minors had come to the school and on the
school getting over they had left the school for home on foot. That,
thereafter Shivlal and others looked for the three minors. On not
station, Raipur and lodged the Missing Person Report. The missing
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person report was registered in the Daily Journal (Ex. P-18) by the
seen the minor children along with the appellant-accused near the
with him and the accused asked Shivlal-P.W.18 how he was feeling
alleged that the wife of the accused, namely Sumrit Bai, eloped with
and with the view to take revenge, the appellant abducted the
against the accused initially for the offences under Sections 363
and 364 IPC. According to the prosecution, after the FIR was
The accused received the call and told that he was 60 kms away.
Aditya, Crime Branch to trace the said mobile number and to tell its
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location of the said mobile and the location was found near Village
the dead bodies of the three minors were recovered from the spot of
the original complainant Shivlal and others. That the accused was
first abducted and thereafter killed the three minors to take the
Section 302 and Section 364 IPC. The Investigating Officer filed
aforesaid offences.
The case of the accused was of a total denial. He did not examine
accused, the learned Trial Court held the accused guilty for the
appeal before the High Court, being Criminal Appeal No. 550 of
impugned judgment and order, the High Court has dismissed the
and the death sentence awarded by the learned Trial Court. Feeling
learned Trial Court, the original accused has preferred the present
appeal.
facts and circumstances of the case both, the learned Trial Court
and the High Court have committed grave error in holding the
accused that both the Courts below ought to have appreciated that
accused that both the Courts below have materially erred in holding
under Sections 302 and Section 364 IPC for having killed the three
eye-witnesses.
(iii) alleged calls made to the appellant during the search for the
sought to use the calls made to the appellant and the testimony of
in law.
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the last seen evidence, the prosecution has relied upon the
material evidence for the first time in the court. It is submitted that
Evidence Act.
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Ashok.
that they met Ashok Patel at about 6/6.30 pm near Dholpara, but
affirmed that P.W.18 and his friends did not come to him searching
the appellant and the place of residence of the children; their school
the bodies were found were in the same direction as the children
evidence with respect to the alleged calls between the appellant and
the last seen evidence of P.W.8 is recorded for the first time only on
support thereof, the learned counsel for the appellant has relied
the Courts below against the appellant is the calls and extra-
judicial confession.
two calls involving the appellant. The first call is between the
appellant and P.W.11 and the second call is between the appellant
fact nor the contents of this call were put to the appellant during
submitted that the said call has not been corroborated by any other
5.13 It is further submitted that the prosecution has not seized the
submitted that therefore both, the Trial Court and the High Court
respective witnesses.
said recovery was made from an open area that had been searched
the recovery made from an open place, accessible to all and which
6.1 It is further submitted that neither PW.7 nor P.W.22 who are
blank papers on the asking of the police and that he did not know
about the case. It is submitted that he has further stated that the
documents were not read over to him by the police and that no
seizures.
recovery was done the next day at 9.00 pm. It is further submitted
that even there is a discrepancy with respect to the time and place
formal arrest.
not put forth any evidence to show how such wounds were caused
behalf of the appellant that the Courts below have committed grave
(iii) alleged calls made to the appellant during the search for the
7.1 Now, so far as the judgment and order passed by the learned
Trial Court awarding the death sentence and confirmed by the High
given, the learned Trial Court held the hearing of the sentence on
the same day when the conviction was recorded i.e. 04.05.2013,
this Court that sufficient time must be given to the accused on the
support, reliance has been placed upon the decisions of this Court
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awarded by the learned Trial Court and affirmed by the High Court
that the death penalty can be imposed on the basis of the crime
cases. Reliance has been placed upon the case of Bachan Singh v.
2 SCC 713 and Amit v. State of Uttar Pradesh (2012) 4 SCC 107.
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wife with the uncle of the deceased minors. It is submitted that the
come back from Chandigarh to Darripara after trying to find out his
the appellant has died and the liability to maintain the children
the school after class IX due to poverty. It is submitted that his one
further submitted that in many cases this Court has commuted the
present appeal and acquit the appellant-accused for the offences for
State.
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circumstances of the case both, the learned Trial Court and the
High Court have rightly convicted the accused for the offence
punishable under Section 302 IPC for having killed the three minor
children of the complainant and both the Courts below have rightly
passed after hearing the parties and considering the entire facts
only conclusion that it is the accused alone who had killed the three
innocent children.
complainant Shivlal-P.W.18.
last seen together with the three minor children whose dead bodies
and P.W.24.
P.W.10 the prosecution has been successful in proving that all the
day and thereafter after the school was over, they left the school
seen together with the accused, has been established and proved by
investigation there were phone calls with the accused and the
Call Details. It is submitted that the same have not been explained
by the accused.
from the date of missing of the minor children till he was arrested
explain his absence from the village and from his house.
8.12 It is submitted that in fact the accused was found in the house
offence the accused had taken the shelter in the house of his
8.13 It is further submitted that the death of the three minors was
therefore both the Courts below have rightly convicted the accused
affect the case of the prosecution and the material evidence with
respect to the last seen evidence; recovery of the dead bodies as per
phone call details with the accused and even the motive for the
deposition of P.W.1 has not been put to the accused while recording
State that, as such, the said irregularity shall not affect the
the case of the accused in his statement under Section 313 Cr.P.C.
the accused.
confirm the death sentence and to convert the death sentence into
circumstances and considering the fact that the accused killed the
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this is a fit case to award the death sentence and the case would
13. Heard the learned counsel appearing for the respective parties
302 and 364 IPC. We have also gone through and considered in
both the Courts below for the offences punishable under Sections
302 and 364 IPC. The learned Trial Court, after having held the
death sentence, which has been confirmed by the High Court by the
and complete the chain of events which lead to the conclusion that
conviction passed by the learned Trial Court and the case of the
calls made to the appellant during the search for the missing
children.
that the accused was having enmity with Shivlal-father of the three
Ajay, Vijay and Kumari Sakshi went to the school from their house.
minors left for home on foot; that the minors did not return to their
deceased were seen going with the accused in school uniform with
their school bags. Therefore, the accused was last seen together
with the deceased minors. That, after the incident, the accused was
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not found at his house and was missing even from the village.
accused was not found in the village, there were phone calls on the
along with the school bags etc. from the place shown by the
accused himself. The aforesaid are the chain of events which led to
the conclusion that the accused first kidnapped the three minor
17. Now, so far as the evidence of the accused having last seen
the case on behalf of the accused that while recording his statement
11.02.2011, was not put to him and therefore, to that extent, the
otherwise, the accused was last seen together with the deceased
has specifically stated that he saw the accused with all the three
the three minor children of Shivlal. The said witness has been
which may doubt either the credibility and/or what the said witness
may doubt the credibility of the said witness and/or may be fatal to
seen together with all the three minor children at about 12.00 noon
has proved beyond doubt that all the three minors went to the
school in the morning of 11.02.2011 and thereafter they left for the
the accused was seen with all the three minor children. At this
Shivlal-P.W.18 and others that he had seen the accused with the
enquired the complainant and Ashok Patel and Ashok Patel told
accused.
18. Now, the next important evidence against the accused is the
recovery of dead bodies which were found from the places shown by
the accused after his arrest. During the course of the investigation,
the dead bodies were found from the places shown by the accused,
the places which the accused alone could have known. Therefore,
there is a recovery of the dead bodies along with the school dress
and proved from the disclosure memo. The disclosure memo has
accused was not found in his house and even in the village. He was
p.m. As per the said witness, at about 11.00 p.m. he phoned the
accused Manoj and asked him “Where are you” and the accused
the accused also told when he was asked whether any information
that the concerned witnesses – Shivlal and others found that the
accused Manoj was not in his house. Phone calls made at 11.00
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of the prosecution, more particularly, when the CDR has been got
mobile SIM No. 9179484724 was seized from the accused at the
time of his arrest and which is proved as per the seizure memo.
Therefore, the prosecution has proved that the mobile SIM No.
the accused Manoj told him that the children of Shivlal had gone
missing and Shivlal has lodged a report against him and the police
and thereafter the police came and took Manoj after arresting him.
Therefore, the fact that the accused was found from the house of
has turned hostile. As per the settled proposition of law, even the
about his missing from the house and even the village after the
may be that there is some doubt created by the defence about the
place where the accused was arrested. However, the fact remains
as per the disclosure memo, the dead bodies of the deceased minor
prosecution as under:
(1) That all the three minor children went to the school in
(2) That all three minor children left the school at about
(3) That the accused was last seen together with the
11.02.2011;
(4) That there was a prior enmity between the accused and
as the wife of the accused ran away with the brother of Shivlal
and that the children of the accused were without their mother
and therefore he took the revenge how Shivlal would feel if his
(5) That the accused was missing from his house and even
(6) There were phone calls with the accused on his mobile
knowledge; and
more particularly, P.W.1 and P.W.8 having told that they had seen
the accused with the minor children on 11.02.2011 and even with
respect to the telephonic calls and having talked with the accused
there may be, but variations by reason therefore should not render
wailing while some others run away from the scene and yet there
are some who may come forward with courage, conviction and belief
when from the other evidences on record the guilt of the accused
22. Thus, for the reasons sated above, we are of the opinion that
the High Court has not committed any error in upholding the
Sections 302 and 364 IPC. We are in complete agreement with the
view taken by the learned Trial Court as well as the High Court in
Section 302 and 364 IPC for having killed three minor children aged
Court heard the accused on sentence the very same day on which
and at the same time helps the court to choose the sentence to be
been given to the accused or not and when the capital punishment
Court the very decisions on which the reliance has been placed now
vitiated.
entire judgment and the facts in that case, we are of the opinion
that the said decision shall not be applicable to the facts of the case
accused. In that case before this Court, it was found that the
death.
Mian (supra) also shall not be applicable to the facts of the case on
hand. In the case before this Court, it was found that the death
23.3 Applying the law laid down by this Court in the aforesaid
given by the learned Trial Court as well as the High Court, we are of
Section 235(2) Cr.P.C. The learned Trial Court heard the accused
that the learned Trial Court fully complied with the requirements of
Section 235(2) Cr.P.C. The learned Trial Court had considered the
death sentence. Thus, it cannot be said that the accused was not
sentence. It also cannot be said that the learned Trial Court has
not given any special reasons while awarding the death sentence.
children, while awarding the death sentence the learned Trial Court
accused:
while awarding the capital punishment the learned Trial Court has
the reasons given by the learned Trial Court while awarding the
25. However, at the same time, the prayer on behalf of the accused
not to impose the death penalty and to convert the same into life
the various factors like the age of the criminal, his social
status, his background, whether he is a confirmed
criminal or not, whether he had any antecedents,
whether there is any possibility of his reformation and
rehabilitation or whether it is a case where the
reformation is impossible and the accused is likely to
revert to such crimes in future and become a threat to
the society are factors which the criminal court will have
to examine independently in each case. Decision whether
to impose death penalty or not must be taken in the light
of guiding principles laid down in several authoritative
pronouncements of this Court in the facts and attendant
circumstances of each case.
the fact that from the day of the crime till the final
verdict, a long time has elapsed. It must be remembered
that fair trial is the right of an accused. Fair trial involves
following the correct procedure and giving opportunity to
the accused to probabilise his defence. In a matter such
as this, hurried decision may not be in the interest of the
appellant.”
728, it is observed and held by this Court that the mental condition
been dealt with and considered by this Court in the case of Bachan
factors/circumstances:
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good.
(v) That he has got an old aged mother who is taking care of
now.
out by the State is that the manner in which the incident took place
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and three minors were brutally killed. Except the above, no other
disturbance due to his wife eloped with the uncle of the deceased
and his children were deprived of the company of their mother, the
respond to the cry of the society and to settle what would be the
only rights of criminals are kept in mind, the victims are forgotten.
and more particularly, that the accused was under the extreme
the case, the death penalty is not warranted and the same be
26. In view of the above and for the reasons stated above, the
observed and directed that the life means till the end of the life with
the further observation and direction that there shall not be any
…………………………..J.
(UDAY UMESH LALIT)
…………………………..J.
(INDIRA BANERJEE)
…………………………..J.
(M. R. SHAH)
New Delhi;
March 05, 2020.