JUDGEMENT

Per Gangele, J;-

This reference has been made by the First Additional Sessions Judge, Bhind (MP) in regard to confirmation of death sentence awarded vide judgment dated 22 December, 2011 passed in Sessions Trial No. 164/2011 it has been registered as Criminal Reference No. 03/2011. Appellant/accused Shyam Singh @ Bhima has also filed an appeal from jail against the same judgment dated 22 December, 2011 and it has been registered as Criminal Appeal No. 78/2012. Since the subject matter of Criminal Reference and Criminal Appeal is the same, therefore, both are heard together and disposed of by this common judgment.

(2) Kotwar of Village Barhad lodged a Dehati Nalishi that on 19-04-2011 at about 8:30 in the morning Karru S/o. Mohan Singh Bhadauria resident of village Barhad informed him that during the intervening night of 18-19/04/2011 Suram Singh, his wife, grandson Aman were killed by unknown persons by causing injuries on the heads and faces over the persons of the bodies of the deceased. The dead bodies had been lying over the cot. On the basis of aforesaid Dehati Nalishi (Ex.P/1) police station Mehgaon, District Bhind registered a Marg under Section 174 of Cr.P.C as Marg No. 789/2011 (Ex.P/26). Thereafter, the police prepared Panchanama of the dead bodies vide Ex.P/4, Ex.P/5 and Ex.P/6 and sent to the Hospital for postmortem. The police also seized blood-strained clothes, mosquito net (machhardani) and other articles from the spot. A spot map was prepared vide Ex.P/10. Statements of Shivram Singh and Sulekha were recorded vide Ex.P/11 and Ex.P/12. Thereafter, an FIR (Ex.P/25) was registered at police station Mehgaon, District Bhind against the accused Shyam Singh @ Bhima for commission of offence punishable under Section 302 of IPC vide Crime No. 85/2011. The accused was arrested on 22-4-2011 at about 17:45 hours and arrest memo was prepared vide Ex.P/18. Thereafter, a “Sabbal” (iron rod) was seized from the accused vide seizure memo Ex.P/13. His memorandum under Section 27 of the Evidence Act, was recorded on 22-4-2011 at about 18:40 hours vide Ex.P/15 and Ex.P/16. Old “Safi” and blood-stained black coloured clothes were also seized from the accused vide Ex.P/14 and the seized articles were sent for FSL report.

(3) After completion of investigation, charge-sheet was filed before the competent Court from where the case was committed to the Sessions Court. The learned trial Court framed the charge against the accused for commission of aforesaid offence.

(4) The statement of accused was recorded under Section 313 of Cr.P.C in which he adjured his guilt and claimed for trial. The accused pleaded innocence and false implication. He did not produce any evidence in his defence. After appreciating the evidence of prosecution witnesses and material available on record, the trial Court awarded death sentence against the appellant for commission of offence punishable under Section 302 of IPC.

(5) Learned counsel appearing on behalf of the appellant/accused has contended that there is no direct evidence against the appellant/accused. Circumstantial evidence on which the trial Court has placed reliance, is unreliable. Chain of circumstances is not complete to prove prosecution's case beyond reasonable doubt against the appellant/accused. It is further contended on behalf of appellant/accused that there being existence of material contradictions and omissions in the evidence of prosecution witnesses and the prosecution case cannot be said to be reliable and same is full of embellishment. Hence, the impugned judgment passed by the learned trial Court is against law and evidence on record. Therefore, the death sentence awarded by learned trial Court be set aside and in the alternative, looking to the nature of offence and to meet the ends of justice, death sentence so awarded by the trial Court be converted into life imprisonment.

(6) In support of contention, learned counsel appearing on behalf of appellant/accused, has placed reliance on the following judgments:-

(I). Hanumant, Son Of Govind Nargundkar v. State Of Madhya Pradesh AIR 1952 SC 343;

(ii). Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622;

(iii). Gurpreet Singh v. State Of Haryana.(2003) SCC (Cri) 186;

(iv). Balu Sonba Shinde v. State of Maharashtra2003 SCC (Cri) 112;

(v). Anil Kumar Singh v. State of Bihar2004 SCC (Cri) 1167;

(vi). State of M.P v. Sanjay Rai2004 SCC (Cri) 1913;

(vii). Sujoy Sen v. State of West Bengal AIR 2007 SC (Supp) 704;

(viii). State of UP v. Ramesh Prasad Misra1996 SCC (Cri) 1278;

(ix). Arokia Thomas v. State of Tamilnadu(2007) 1 SCC (Cri) 140;

(x). State of Rajasthan v. Rajaram2003 SCC (Cri) 1965;

(xi). State of Rajasthan v. Kheraj Ram2003 SCC (Cri) 1979;

(xii). Dharmendrasinh @ Mansing Ratansinh v. State of Gujrat2002 SCC (Cri) 859;

(xiii). State of Kerala v. Manaf2002 SCC (Cri) 7876;

(xiv). Balu Sonbe Shinde v. State of Maharashtra2003 SCC (Cri) 112

(xv). Bachittar Singh v. State of Punjab2003 SCC (Cri) 233;

(xvi). Kartarey v. State of U.P AIR 1976 SC 76;

(xvii).Ilam Singh v. State of U.P AIR 1976 SC 2423;

(xviii). Gambhir v. State Of Maharashtra AIR 1982 SC 1157;

(xix). A. Shankar v. State of Kerala 2011 (4) Supreme 354;

(xx). Sheo Shankar Singh v. State of Jharkhand 2011 (2) Supreme 33;

(xix). Kailash Gour v. State of Assam(2012) 2 SCC 34;

(7) On the contrary, learned Dy. Advocate General appearing on behalf of State has contended that the prosecution case is not suffering from any legal infirmity. There is enough evidence against the appellant/accused to establish his guilt beyond reasonable doubt. Learned Public Prosecutor has further contended that the appellant/accused had been sleeping with deceased persons and after the incident he had absconded. The deceased were father, mother and nephew of the accused. The family members clearly deposed that the accused had been seen soon after the incident fleeing from the house. Looking to the nature of offence, the death sentence has rightly been awarded by learned trial Court.

(8) Balram Kotwar (P.W.1) in his statement, deposed that he received information on 19-04-2011 that Suram Singh, his wife and his grandson had been killed by some unknown persons. On the information, he had reached at the house of Suram Singh where he found that all the three persons had been lying on the cot. There were injuries on their heads. Thereafter, he informed to Diwanji Krishnamurari of Mehgaon Police Station on mobile phone. Then, Police Constables and S.D.O.P of Police Station Mehgaon came to the village and at that time, Dehati Nalishi (Ex.P/1) was recorded. It was signed by him at the place “A to A”. Police seized mosquito net (machhardani), blood stained clothes and one blanket vide seizure memos Ex.P/7, Ex.P/8 and Ex.P/9. He signed seizure memos at place “A to A”. He further deposed that he knows the accused.

(9) Similar facts have been deposed by Shviraj (P.W.2). In his statement, he deposed that after the incident the accused had absconded and the accused used to take “Ganja” and used to demand money from his father.

(10) Sulekha (P.W.3) in her evidence deposed that deceased Suram and his wife were her maternal father-in-law and maternal mother-in-law and Aman was her nephew. Before six months she was at her home. At around 11 O'clock in the night she heard the noise of “Dham Dham” and when she came out then she had seen the accused Shyam Singh coming out from the house with “Sabbal” (iron rod). Her sister-in-law (Debrani) was also with her. Thereafter, they went to sleep and awakened at about 6 O' Clock in the morning. Then they had seen dead bodies of the deceased persons. She further deposed that Bhima @ Shyam Singh had been living with his father and mother in the same house. He used to take “Ganja’. In her cross-examination, she deposed that at around 6 O' Clock in the morning she went to attend the call of nature. Further, she deposed in her cross-examination that she had seen the accused coming out from the house with “Sabbal”.

(11) Vidyawati (P.W.4) in her evidence deposed that she came out in the night at around 3 O' Clock to attend the call of nature because she had a problem of dysentery. At that time, she saw accused Shayam Singh having “Sabbal” in his hand. Thereafter in the morning, she saw the dead bodies of deceased lying over the cot. She further deposed that Shyam Singh used to take “Ganja”. In her cross-examination, she further deposed that Shyam Singh used to quarrel with his father because he used to demand money for the purpose of “Ganja” and one day he had warned his father that he may kill him. She further deposed that in the night her daughter-in-law Sulekha and Mamata heard the noise “Dham Dham”.

(12) Mamata (P.W.5) in her evidence, deposed that she had also heard the noise “Dham Dham” in the night and thereafter she and Sulekha came out of the house to attend the call of nature and at that time, she had seen accused Bhima coming from the house and in the morning she had seen dead bodies lying over the cot. She further deposed that accused Bhima used to quarrel with his father for getting money for “Ganja”. In her cross-examination, she deposed that she heard the noise of “Dham Dham” and she had also seen accused Bhima coming out from the house.

(13) Mulu Singh (P. W.7) deposed that he had verified the fact that police seized blood-stained “Sabbal” (iron road), ‘Safi’ and black-coloured cloth from accused Shyam Singh and prepared seizure memos Ex.P/13 and Ex.P/14. He had signed the seizure memos. He further deposed that police interrogated the accused and prepared his memorandum Ex.P/15 and Ex.P/16. Panchanama (Ex.P/17) was also prepared before him. Police arrested accused Shyam Singh from village Barhad vide arrest memo Ex.P/18. He admitted the fact of signing the seizure memo, arrest memo and memorandum of accused.

14. From the evidence on record of the case, it is clear that the case is based on the circumstantial evidence. The witnesses are the relatives of the accused. The deceased were Father, mother and nephew of the deceased. The witnesses have clearly deposed that they had seen the accused coming from the house. The accused was in the house. He had been sleeping along with deceased persons in the night. He had absconded after the incident. The conduct of the accused is unnatural. He had not explained that why he had absconded or had been absconding when his father, mother and nephew were died. No explanation has been put-forth by the accused-appellant about this conduct. It is unbelievable or against common prudence to the fact that when father, mother and nephew were killed and the son was absconding. This conduct of the appellant-accused shows that he was perpetrator of the crime. Apart from this, he was seen coming out of the house by witness Sulekha (PW3), Vidyawati (PW4) and Mamta (PW5). It is admitted fact that the accused had not been seen since morning in the house when, he was supposed to be there. He was in the company of deceased in the night. There is no single injury to the accused. If somebody had assaulted three persons then certainly the accused could have had grievous injuries because, he was the fourth person sleeping along with the deceased persons in the night. The accused did not return for three days. The witnesses have specifically deposed that they had seen the accused coming out from the house in the night. If they wanted to implicate accused then, they could have deposed that they had seen the accused committing offence.

15. The Hon'ble Supreme Court in State of Rajasthan v. Omprakash AIR 2007 SC 2257 has held as under in regard to suspicious conduct of the accused:

“The conduct of the accused was highly suspicious, is a relevant factor. Why he did not lodge any report with the police”. It was further laid down when a case rests upon circumstantial evidence, such evidence must satisfy the following test:

(1). the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2). those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3). the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4). the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

16. The Hon'ble Supreme Court in the case of Sanatan v. State of West Bengal 2010 Cr.LJ page 3871 has held as under in regard to the proof of circumstances when a case rests upon circumstantial evidence:

“That the circumstantial evidence is more reliable then eye witness. The basic principle of circumstantial evidence is that it should be consistent with the guilt of accused and inconsistent with the innocence of the accused”.

(17). In Musheer Khan @ Badshah Khan v. State of M.P 2010 (2) JLJ 104, the Hon'ble Supreme Court has further cited Lord Coleridge that circumstantial evidence is like gossamera thread, light and as unsubstantial as the air itself and may vanish of merest of touch.

(18) The appellant's advocate has submitted that FIR has been lodged against unknown person. The admitted fact is that three persons Suram Singh, his wife and grand son have been brutally done to death with iron rod. Accused appellant is not named in dehati nalishi Ex. P.1 It has been further submitted that PW2 Shivraj Singh is hostile witness, he is not aware of any incident. In para 10 this witness stated that he is illiterate and the police statement was not read over to him. Regarding the witnesses Sulekha (PW3), Vidyawati (PW4) and Mamta (PW5) to this effect that they had not stated in their statement before the court that they saw the accused committing murder. Much emphasis has been laid to the fact that the evidence of the material witnesses was recorded after undue delay about 10 to 8 days. It has been further argued that it is normal human conduct that son will demand money from his father and the father himself was of an addict of ganja. Therefore there was no motive for the accused to commit murder of his parents. The iron rod seized on the spot did not had any blood stain. Therefore recovery is of no value.

(19) The appellant advocate further submitted that story of sabbal came in record on 25.04.2012 when the statement of Sulekha (PW3) and Vidyawati (PW4) were recorded. It is further submitted that Vidyawati PW4 is 70 years old who stated that she recognized the accused in darkness despite the fact that there was no source of light. Sulekha (PW3) heard dham dham at about 12.00 to 1.00 but no cries were heard by her. While Subhadra and Aman were sleeping on same cot but no one heard cries of them.

(20) Regarding the hearing of the cries, one fact has to be taken into account that the deceased Suram was an addict of ganja. A person who is addicted to ganja, does have a sound sleep. The incident is alleged to have happened at 12 to 1 pm when the person is normally in sound sleep. Another deceased Aman is a child. Children usually have a good sleep. Therefore he could also not cry. It is nothing unusual that no one heard cries because at that time normally everyone was in sound sleep. The villagers have good sleep compared to urban people. Therefore in sound sleep, the deceased did not cry nor they struggle with the assailant, therefore the factor that there was no cry at the time of incident, is of no value. Also it is an admitted fact that three persons have been murdered in house at deadly hours of the night. The question only before the court is that whether only accused has committed the murder. All the three Sulkha (PW3), Vidyavati (PW4) and Mamta (PW5) are close relatives of the accused and deceased. Had there been any enmity, they would have named the accused in the FIR. Dehati nalishi is against unknown persons. The relative of the deceased of the accused would not spare the real culprit and falsely implicate the accused as laid down by Hon'ble Supreme Court in Chandra Mohan Tiwari v. State of M.P AIR 1992 SC 891 that “being the parents of the victim, they would be the least disposed to falsely implicate the accused or substitute them in place of the real culprit”. Also the appellant advocate could not point out any material on record to prove that why these three witnesses, who are the relatives of the deceased and accused, would falsely implicate the accused. In the absence of any cogent and reliable evidence in this regard, it can be said that the three relative witnesses would not falsely implicate the accused.

(21) The defence advocate further emphasized that accused have been made after deliberation as the evidence of these witnesses recorded by IO after considerable delay. It is a well settled law that merely on delay in recording of statement of witnesses, there evidence does not become unreliable unless this fact is brought on record that delay was engineered to give a new twist to prosecution story only then such delay assumes importance in the case. In this case IO has given proper explanation before the court in para 10 in his cross examination, Mr. Moti Singh Sikarwar retired SI PW8 which is as, “witness Karu Singh, Shivraj Singh, Veer Singh and Balram met him at village Barhad. Wife of Shivraj Singh and their daughter-in-law were also present. But they were so pensive on account of death and they had been in shock, therefore they were not in position to tender evidence to the police. Hence, their statements were not recorded. He mentioned this fact in case diary also. “Hon'ble Sureme Court in Siddharth v. State AIR 2010 SC 2352 has held that merely because of delayed examination of prosecution witnesses, the prosecution case cannot be thrown away”.

(22) The statement of IO proves that there was proper explanation of delay in recording statements of witnesses. It is usual that in a family where close members of the family numbering in three had brutally assaulted to death and one small child of 13 years also lost his life, the entire family and relatives of the deceased would be in great shock. Nothing has been suggested to the IO that he deliberately did not record the evidence of the witnesses for ulterior motive. FIR is against only one person. Therefore the delayed recording of statements by IO pales into insignificance.

(23) The defence advocate further submitted that accused did not abscond. In para 5 of the written statement it has been submitted that appellant had not been absconding and was present in the village itself and was arrested from the place of last rites of his father and mother. All the evidence has been created against appellant to falsely implicate him. He further emphasized in the written arguments that the appellant was seen or observed going, why was this fact not narrated in the morning or on the same day to any one.

(24) It is an admitted fact that accused had not been in the house since morning. Although, he was supposed to be there. Where had he gone? there is no explanation on record. He had been last seen in the company of the deceased in the night in the house where three persons were brutally assaulted and done to death. There is not a single injury to the accused. If somebody else had assaulted the deceased then certainly the accused could not have escaped unhurt. He had been seen coming from the house at deadly hours of the night, did not return thereafter for three days, this fact has been stated by three witnesses. None of the prosecution witness stated that they had seen the accused committing the crime. If they wanted to falsely implicate the accused, they would have stated in their statement before the police that they had seen the incident but they did not say so. Not coming to the house despite knowing that his parents were died, not caring to inform the police about the incident, is the suspicious conduct of the accused, it points towards the guilt of the accused. The defence counsel could not point out the above facts in the argument that why accused did not lodge FIR if he was present in the house. There is no suggestion to the investigating officer that accused did not abscond.

(25) Strong emphasis has been laid on the point that the sabbal was seized with blood stain but FSL report Ex.P-23 and P-24 does not found any blood stain. Therefore it is not proved that the sabbal was used for commission of the offence. Even if such evidence is eschewed from evidence then also, the offence against the accused is proved because it is not the case of the defence that death caused by sabbal is not proved. It is admitted fact that death has been caused by hard and blunt object. The sabbal has been seized after delay on 23.04.2011 which was found to have some bloodstains. As per FSL report, it had no bloodstain. When it had no bloodstain, no useful purpose was likely to be served to have this weapon of offence to be shown to the doctor Prabhat Upadhyay (PW-9) as per written argument para 14. If the sabbal had bloodstain only then, it ought to have been shown to the doctor and his opinion would have been sought on this point. Also it is not mandatory in the criminal law to have weapon of offence always seized in order to bring home the charge against the accused. Hon'ble Supreme Court in Anwarhul Haq v. State of UP AIR 2005 SC has held to this effect that, “if the weapon of offence is not seized, it makes no dent in the prosecution case.” Also in Mano v. State of Tamilnadu 2007 SCW 2736 has held that, “even if the recovery of the weapon as claimed after a short period and those were not sent for forensic examination that does not anyway dilute the evidentiary value of prosecution version.”

(26) The defence advocate further submitted that Sulekha (PW-1) states that she saw appellant accused going with iron rod at about 11.00 am, Vidyawati (PW-4) says that she saw accused at 3:00 am. Therefore there is major contradiction on this point. Hon'ble Supreme Court has laid down in Balveer v. State of Punjab 1994 Cr.L.J 1206 SC and (1973 Cr.L.J 1783) to this effect that the evidence of village folk cannot be exactitude regarding time and distance.” Since these witnesses are rustic lady villagers, therefore they were not sure about exact time in the night. Hon'ble Supreme Court in State Of Punjab v. Hakam Singh AIR 2005 SC 3759 (Supp.) has held that, “some time while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate their testimony from our rational angle.” Also “Hon'ble Supreme Court in Krishna Kumar v. Union of India AIR 1959 SC 1390 has held that “the prosecution has to prove only beyond reasonable doubt, it need not rule out other possibilities in favour of accused.”

(27) The defence advocate in para 7 of the written arguments in page number 2 emphasized that (PW-2) Shivraj Singh in para 10 has stated that he is illiterate and evidence recoded by the police was not explained or read over to him. This arguments of defence advocate is without any force because section 161 Cr.P.C provides that, “the police officer shall record the statement of the person who is acquainted with the facts and circumstances of the case. Section 161(3) Cr.P.C provides that, “the police officer may reduce into writing any statement made to him in the course of his examination under this section and if he does so, he shall make a separate and true record of statement of each such person whose statement he records”. This section does not provide like FIR to be read over and explained to person concerned. The police statement as recorded by the police is not to be read over and explained to the witness.

(28) The presence of Sulekha (PW-3), Vidyawati (PW-4) and Mamta (PW-5) cannot be doubted because their presence on the spot is natural. It is quite natural that villagers do go outside the house for defection without any light as their eyes are well turned to the darkness and they are well acquainted with the geography and topography of the village.

(29) Regarding identification of the accused in the night by PW-3 Sulekha, PW-4 Vidyawati and Mamta PW-5, their evidence appears to be reliable as their presence on the spot is natural being the resident of that house and neighbors at where the offence was committed. Accused was well known to the three witnesses, therefore they could identify him with gait and other physical features even in the night.

(30). The Hon'ble Supreme Court in the case of Brahm Swaroop v. State of Uttar Pradesh(2011) Volume 6 SCC 288 in regard to appreciation of evidence has held as under:

“30. It has been submitted by the learned Sr. Counsel for the appellants that there is a contradiction between the medical and ocular evidence. From the post-mortem report of Virendra Singh (D-3) (Ext.Ka-8) it is evident that his body was having contusions; the post-mortem report of Rajendra Singh (D-2) (Ext.Ka-9) reveals that he was having abrasions; and the postmortem report of Natthu Singh (D-1) (Ext.Ka-10) also reveals several abrasions. The High Court has given cogent reasons explaining these discrepancies by saying that at the time of firing, the deceased must have reacted to the assault and might have received some abrasions and contusions in order to save themsevles.

31. Rajendra Singh (PW2) has stated that he remained at the place of occurrence till 7 PM and he denied his signatures. The High Court has furnished a cogent explantion for such contradiction, and held that his statement had been recorded after 3 years of the incident and thus, such infirmity is bound to occur but does not affect the credibility of the witnesses.

32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety. “Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions”. Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses”.

31. The Hon'ble Supreme Court in the case of Sheo Shankar Singh v. State of Jharkhand(2011) Volume 3 SCC 654 in regard to delay in examination of witnesses has held as under:

“65. Mr. Lalit contended that Mr. Prashant Banerjee (PW6) was not an eyewitness as he had come to the place of occurrence 7-8 minutes after the occurrence. He also argued that the witness had not made any statement to the police till 2.6.2000 which renders his story suspect. There is no doubt a delay of one and half months in the recording of the statement of Prashant Banerjee (PW6). The question is whether the same should be itself justify rejection of his testimony. Our answer is the negative.

66. The legal position is well settled that mere delay in the examination of a particular witness does not, as a rule of universal application, render the prosecution case suspect. It depends upon the circumstances of the case and the nature of the offence that is being investigated. It would also depend upon the availability of information by which the investigating officer could reach the witness and examine him. It would also depend upon the explanation, if any, which the investigating officer may offer for the delay. In a case where the investigating officer has reasons to believe that a particular witness is an eyewitness to the occurrence, but he does not examine him without any possible explanation for any such omission, the delay may assume importance and require the court to closely scrutinize and evaluate the version of the witness but in a case where the investigating officer had no such information about any particular individual being an eyewitness to the occurrence, mere delay in examining such a witness would not ipso facto render the testimony of the witness suspect or affect the prosecution version.

67. We are supported in this view by the decision of this Court in Ranbir v. State of Punjab where this Court examined the effect of delayed examination of a witness and observed: (SCC pp.447-48, para 7).

“7…. The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing. A got-up witness to falsely support the prosecution case. It is, therefore, essential that the investigating officer should be asked specifically about the delay and the reasons therefor”.

68. Again in Satbir Singh v. State of UP the delay in the examination of the witness was held to be not fatal to the prosecution case. This Court observed: (SCC p. 800, para 32).

“32. Contention of Mr. Sushil Kumar that the investigating officer did not examine some of the witnesses on 27.1.1997 cannot be accepted for more than one reason; firstly, because, the delay in the investigation itself may not benefit the accused; secondly, because the investigating officer (PW8) in his deposition explained the reasons for delayed examination of the witnesses.

69. The investigating officer has, in the instant case, stated that Prasant Banerjee (PW6) had met him for the first time on 2.6.2000 and that he recorded his statement on the very same day. He has further stated that prior to 2.6.2000 he had no knowledge that Prasant Banerjee (PW6) was a witness to the occurrence. Even Prasant Banerjee has given an explanation as to how the investigating officer reached him. According to his deposition, the Inspector had told him that he had come to record his statement after making an enquiry from the person who was sitting on the pillion of his motorcycle on the date of occurrence. Ravi Ranjan, the pillion rider had also informed him that his statement had been recorded by the police. The trial Court and the High Court have accepted the explanation offered by the investigating officer from the delay. We see no reason to take a different view or to reject the testimoney of his witness only because, his statement was recorded a month and half after the occurrence.

(32). On the basis of principle of law laid down by the Hon'ble Supreme Court in above mentioned cases and after appreciation of oral and documentary evidence of the case, in our opinion, the trial Court has rightly held that the accused, appellant is guilty for an offence under Section 302 of I.P.C

(33). The Hon'ble Supreme court in the case of Ramesh v. State of Rajasthan(2011) 3 SCC 685 in regard to circumstantial evidence and award of death punishment has held as under:

“62. The appellate court has quoted AIR para 16 of Sushil Murmu and has given four circumstances which may be relevant in awarding the death sentence. They are as under: (SCC p. 346, para 15) “15. The following guidelines which emerge from Bachan Singh case will have to be applied to the facts of each individual case where the question of imposition of death sentence arises: (Machhi Singh case, SCC p. 489, para 38)

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

63. In our opinion, none of the four circumstances mentioned in Sushil Murmu is available in the present case. It is no doubt true that the murder of Ramlal and Shanti Devi was cruel. However, that cannot be said to be brutal, grotesque and diabolical nor could it be said that the murder was committed in a revolting manner so as to arise intense and extreme indignation. This was not a case where accused Ramesh was in a dominating position or in a position of trust nor could it be said to be a murder for personal reasons. This is also not a case of bride burning or dowry death which is committed in order to remarry for extracting dowry once again.

64. Though this is a double murder, it cannot be said to be a crime of enormous proportion. Ramesh could not be said to be a person in a dominating position as this is not a murder of an innocent child or a helpless woman or old or infirm person. This was undoubtedly a murder for gains. The High Court has come out with a case that appellant Ramesh was having criminal record. However, we do not find any previous conviction having been proved against Ramesh by the prosecution. It is apparent that the original intention was theft and on account of the deceased having been awakened, the accused persons took the extreme step of eliminating both the inmates of the house for the fear of being detected.

65. It cannot be said that it was Ramesh alone who has committed the murder only because he was the one who discovered the murder weapon jharbad. It is not clear from the evidence as to who was the actual author of the injuries on Ramlal and Shanti Devi though all the three were participants of the crime. There is no definite evidence about the acts on the part of each of the accused. It will be, therefore, difficult to say that Ramesh alone was the author of injuries on Ramlal as well as Shanti Devi.

66. The learned counsel relied on two decisions of this Court, the first being Dilip Premnarayan Tiwari v. State of Maharashtra. The other decisions relied upon are Mulla v. State of U.P as also Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra. In Mulla case in SCC paras 80 and 81, the Court held as under: (SCC p. 534)

“80. Another factor which unfortunately has been left out in much judicial decision-making in sentencing is the socio-economic factors leading to crime. We at no stage suggest that economic depravity justify moral depravity, but we certainly recognise that in the real world, such factors may lead a person to crime. The 48 Report of the Law Commission also reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances. Socio-economic factors lead us to another related mitigating factor i.e the ability of the guilty to reform. It may not be misplaced to note that a criminal who commits crimes due to his economic backwardness is most likely to reform. This Court on many previous occasions has held that this ability to reform amounts to a mitigating factor in cases of death penalty.

81. In the present case, the convicts belong to an extremely poor background. With lack of knowledge on the background of the appellants, we may not be certain as to their past, but one thing which is clear to us is that they have committed these heinous crimes for want of money. Though we are shocked by their deeds, we find no reason why they cannot be reformed over a period of time.”

The observations are extremely germane to the question before us.

67. There can be no dispute that this was a case in which money was the motive. We have already seen that the accused persons do not come from a wealthy background. On the other hand, it has been held that they could not justify the possession of ornaments found with them. It has also been held that they were unlikely to own the ornaments on account of their financial position.

68. Practically, the whole law on death sentence was referred to in Santosh Kumar case. In SCC para 56, the Court observed: (SCC p. 527)

“56. … The court must play a proactive role to record all relevant information at this stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict, etc. Quality of evidence is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socioeconomic background of the offender. This issue was also raised in the 48 Report of the Law Commission.” (emphasis supplied)

The Court, thus, has in a guided manner referred to the quality of evidence and has sounded a note of caution that in a case where the reliance is on circumstantial evidence, that factor has to be taken into consideration while awarding the death sentence. This is also a case purely on the circumstantial evidence. We should not be understood to say that in all cases of circumstantial evidence, the death sentence cannot be given.

69. In fact in Shivaji v. State of Maharashtra this Court had awarded death sentence though the evidence was of circumstantial nature. All that we say is that the case being dependent upon circumstantial evidence is one of the relevant considerations. We have only noted it as one of the circumstances in formulating the sentencing policy. Further in that case the Court upheld the principles emanating from Bachan Singh v. State of Punjab where the probability that the accused can be reformed and rehabilitated was held as one of the mitigating circumstances and it was observed that the State should, by evidence prove that the accused does not satisfy these conditions, meaning thereby that the accused is not likely to be reformed. The Court went on to hold that the rarest of the rare dictum imposes a wide ranging embargo on the award of death punishment which can only be revoked if the facts of the case successfully satisfy double qualification:

(1) that the case belongs to the rarest of the rare category and;

(2) alternative option of life imprisonment will not suffice in the facts of the case.

70. The Court then observed that the rarest of the rare dictum places an extraordinary burden on the Court. Considering these principles, we do not think that there was no possibility of reformation of the accused persons. True it is that the accused were driven by their avarice for wealth but given a chance there is every possibility of their being reformed. We are also of the clear opinion that in this case it is not established that alternative punishment of life imprisonment will be futile and would serve no purpose.

71. In SCC para 66 of Santosh Kumar case, the Court observed that life imprisonment can be said to be completely futile only when the sentencing aim of reformation can be said to be unachievable. The Court further went on to say: (SCC p. 530, para 66) “66. … Therefore, for satisfying the second exception to the rarest of the rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.”

(emphasis in original).

(34). The Hon'ble Supreme court in the case of Sushil Murmu v. State of Jharkhand AIR 2004 SC 394 has given following four circumstances which may be relevant in awarding death sentence:

“15. the following questions may be asked and answered as a test to determine the “rarest of the rate” case in which death sentence can be inflicted:-

(a). Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for all death sentence?

(b). Are the circumstance of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offener?

(35). The Hon'ble Supreme court in the case of Santosh Kumar Satish Bhushan Bariyar v. State of Maharashtra(2009) 6 SCC 498 in regard to awarding sentence has held as under:

“71. It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded.

72. We must also point out, in this context, that there is no consensus in the Court on the use of “social necessity” as a sole justification in death punishment matters. The test which emanates from Bachan Singh in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigour and fairness are given primacy over sentiments and emotions.

73. In Panchhi the Court downplayed the heinous nature of crime and relied on mitigating circumstances in the final opinion. The Court held: (SCC p. 183, para 20)

“20. We have extracted the above reasons of the two courts only to point out that it is the savagery or brutal manner in which the killers perpetrated the acts on the victims including one little child which had persuaded the two courts to choose death sentence for the four persons. No doubt brutality looms large in the murders in this case particularly of the old and also the tender-aged child. It may be that the manner in which the killings were perpetrated may not by itself show any lighter side but that is not very peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the ‘rarest of rare cases’ as indicated in Bachan Singh case. In a way, every murder is brutal, and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder.” (emphasis supplied)

74. In Vashram Narshibhai Rajpara v. State Of Gujarat. this Court relied on the dictum of Panchhi and further explained the approach: (Vashram case, SCC p. 176, para 9)

“9. … As to what category a particular case would fall depends, invariably on varying facts of each case and no absolute rule for invariable application or yardstick as a ready reckoner can be formulated. In Panchhi v. State of U.P it has been observed that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the ‘rarest of rare cases’, as indicated in Bachan Singh v. State of Punjab and that every murder being per se brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. The intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation were held to be also a relevant factor.”

(emphasis supplied)

75. This Court also gave primacy to mitigating circumstances in the final analysis: (Vashram case, SCC p. 177, para 10)

“10. Considering the facts of the case presented before us, it is on evidence that despite his economic condition and earnest attempt to purchase a house for the family after raising loans, the wife and daughters were stated to be not pleased and were engaging in quarrels constantly with the appellant. Though they were all living together the continuous harassment and constant nagging could have very well affected his mental balance and such sustained provocation could have reached a boiling point resulting in the dastardly act. As noticed even by the High Court the appellant though hailing from a poor family had no criminal background and it could not be reasonably postulated that he will not get rehabilitated or that he would be a menace to the society. The boy of tender age would also once for all be deprived of the parental protection. Keeping in view all these aspects, in our view, it could not be said that the imposition of life imprisonment would not adequately meet the requirements of the case or that only an imposition of the extreme punishment alone would do real or effective justice. Consequently, we direct the modification of the sentence of death into one of rigorous imprisonment for life, by partly allowing the appeal to that extent. In other respects the appeal shall stand dismissed. The appellant shall undergo the remaining period of sentence as above.”

76. In Om Prakash v. State of Haryana K.T Thomas, J. deliberated on the apparent tension between responding to “cry of the society” and meeting the Bachan Singh dictum of balancing the “mitigating and aggravating circumstances”. The Court was of the view that the sentencing court is bound by Bachan Singh and not in specific terms to the incoherent and fluid responses of society: (Om Prakash case, SCC p. 24, para 7)

7. It is true that court must respond to the cry of the society and to settle what would be a deterrent punishment for an abominable crime. It is equally true that a large number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. It is also a truism as observed in State of M.P v. Shyamsunder Trivedi (SCC at p. 273) that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis, the society suffers and a criminal gets encouraged. Sometimes it is stated that only rights of the criminals are kept in mind, the victims are forgotten. Despite this it should be kept in mind that while imposing the rarest of rare punishment i.e death penalty, the court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case.” (emphasis supplied)

77. In Dharmendrasinh v. State of Gujarat (SCC p. 696, para 22) the Court acknowledged that the crime committed was “no doubt heinous and unpardonable” and that two innocent children lost their lives for no fault of theirs, but the Court chose to give force to mitigating circumstances in the following terms: (SCC p. 696, para 21)

“21. … The offence was obviously not committed for lust of power or otherwise or with a view to grab any property nor in pursuance of any organised criminal or anti-social activity. Chances of repetition of such criminal acts at his hands making the society further vulnerable are also not apparent. He had no previous criminal record.”

78. The Court also stated the law in the following terms: (Dharmendrasinh case, SCC pp. 695-96, para 20)

“20. Every murder is a heinous crime. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death, as held in different cases referred to above, would be awarded only in the rarest of rare cases. A number of factors are to be taken into account, namely, the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed, has been committed for satisfying any kind of lust, greed or in pursuance of anti-social activity or by way of organised crime, drug trafficking or the like. Chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future and ultimately as held in several cases, mitigating and aggravating circumstances of each case have to be considered and a balance has to be struck. The learned State counsel as indicated earlier has already indicated the aggravating circumstances by reason of which it has been vehemently urged that sentence of death deserves to be confirmed.”

(emphasis supplied)

79. Whether primacy should be accorded to aggravating circumstances or mitigating circumstances is not the question. Court is duty-bound by virtue of Bachan Singh to equally consider both and then to arrive at a conclusion as to respective weights to be accorded. We are also bound by the spirit of Article 14 and Article 21 which forces us to adopt a principled approach to sentencing. This overarching policy flowing from Bachan Singh applies to heinous crimes as much as it applies to relatively less brutal murders. The Court in this regard held: (SCC p. 751, para 209)

“209. … Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency—a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception.”

36. In the present case, the accused-appellant had murdered his mother, father and nephew. The murder was cruel, brutal and it was committed in revolving manner. The accused-appellant was in a dominating position and he was in a position of trust because, he is the son of deceased father and mother. The deceased could not have had imagined that the appellant would commit such type of crime. There was no reason to commit the crime. Neither there was any provocation from the deceased persons. They had been sleeping. In our opinion, this is a fit case where the death punishment awarded by the trial court is to be confirmed because, the appellant is so cruel that he had murdered his own father, mother and nephew. For such type of offence, there must a deterrent punishment so the society can live peacefully.

37. Hence, we confirm the death sentence awarded by the trial Court and answer the reference accordingly. Consequently, the reference made by the trial Court is answered in affirmative and the appeal filed by the appellant is hereby dismissed.