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TMI Blog2010 (8) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and from the said wedlock, three children, namely, Satbir, Atbir and Anju were born to them. Thereafter, Jaswant Singh married Sheela Devi, the deceased and from their wedlock, one daughter Sonu @ Savita and one son Manish @ Mannu - the deceased, were born. Sheela Devi - the 2nd wife of Jaswant Singh was staying at Mukherjee Nagar, Delhi, with her children. They were having dispute over the division of their properties. (b) On the afternoon of 22.01.1996, on receiving information of murder of a man and that of one injured at N-33, Mukherjee Nagar, Delhi, Inspector Virender Singh, Addl. S.H.O., Mukherjee Nagar Police Station along with ASI Kanwar Lal, Ct. Manoj Kumar and Ct. Jogender Singh rushed to the place of occurrence and found two dead bodies, one of female and other of a boy aged about 16 years in the adjacent room on the ground floor of N-33, Mukherjee Nagar, Delhi. Both were later identified as Smt. Sheela Devi, second wife of Jaswant Singh and her son Manish @ Mannu. It was revealed at the spot that one injured, namely, Sonu @ Savita, daughter of Sheela Devi was removed to Hindu Rao Hospital in a PCR Gypsy. After leaving ASI Kanwar Lal at the spot, Inspector Virender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants awarded by him. Against the said judgment, the appellants have preferred these appeals by way of special leave before this Court. 3. Heard Mr. K.B. Sinha, learned senior counsel for the appellant in Crl. Appeal No. 870 of 2006, Mr. A.T.M. Rangaramanujam, learned senior counsel for the appellant in Crl. Appeal No. 877 of 2006 and Mr. J.S. Atri, learned senior counsel for the respondent-State. 4. Mr. K. B. Sinha, learned senior counsel, has raised the following contentions: (i) Whether the dying declaration made before the police officer without there being any corroboration from any other independent witness in itself is sufficient to convict the accused with capital punishment. (ii) When there was sufficient time for the Magistrate to be called for recording the dying declaration, the statement made before the Investigating Officer can be treated as dying declaration and the conviction of the accused with capital punishment can be sustained. (iii) When the Doctor-PW 30, in whose presence the alleged statement "Dying Declaration" was recorded, has stated in his deposition that the trachea of the deceased Sonu @ Savita was torn then whether the dying dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, major part relates to two legal submissions: a) Admissibility and reliability of the dying declaration made by Sonu @ Savita before the Investigating officer. b) Whether death sentence insofar as Atbir and life sentence insofar as Ashok is warranted. (A) "Dying Declaration". It is true that in the case on hand, conviction under Section 302 was based solely on the dying declaration made by Sonu @ Savita and recorded by Investigating Officer in the presence of a Doctor. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. This Court in a series of decisions enumerated and analyzed that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value etc. have to be taken into account. 9. In Munnu Raja and Anr. v. The State of Madhya Pradesh (1976) 3 SCC 104, this Court held: ...It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wakteng (2007) 14 SCC 550, the view in Balbir Singh's case (supra) has been reiterated. The following conclusions are relevant which read as under: 14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity. 15. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction. 13. In Bijoy Das v. State of West Bengal (2008) 4 SCC 511, this Court after quoting various earlier decisions, reiterated the same position. 14. In Muthu Kutty and An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate. In the case on hand, the incident occurred on 22.01.1996 at 2.30 p.m., the injured Sonu @ Savita was admitted in the hospital at 3.30 p.m. and she made declaration at 4.05 p.m. on the same day. It is also relevant to note that immediately after recording her statement, doctor referred her to Emergency Ward to save her life. However, she died on 24.01.1996 at 12.30 p.m. The Inspector who recorded the statement was cross-examined and the details and his evidence was not shattered by the defence, in fact, not even a suggestion to the Investigation Officer about the availability of Magistrate at the relevant point of time. Since the statement of Sonu @ Savita was very brief as to the circumstances and persons involved who caused brutal injuries on her body as well as her mother and brother, in addition to the same, Dr. Sharat Chandra has also certified that at the relevant time she was in a fit mental state and endorsed the same by putting his signatures near the signature of the deponent Sonu @ Savita. In such circumstances, there is no reason to disbelieve the statement of Sonu @ Savita implicating the three accused persons i.e. Atbir, Ashok (appellants herein) and Chandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed. The bigger the size of the cut in the artery it will speed up the process of affecting the brain function. It is clear that according to PW-9, right carotid was partially cut. Trachea was patent and other neck structures were intact. He has reiterated the same in cross-examination also. Inasmuch as the injury on the carotid was partial coupled with opinion of Dr. Sharat Chandra PW-30, it cannot be claimed that she was fully disabled from making any statement. 20. Dr. (Mrs.) Ruma Jain, PW-26, attached to Hindu Rao Hospital as CMO, on the date of the incident i.e. on 22.01.1996, in her evidence deposed that on that day at about 3.30 PM Savita was brought by ASI Shanti. She medically examined her. Though she found her general condition was not satisfactory she had stated that she was conscious and responding to verbal command. She also noted various injuries including the injury on the neck. Though during cross-examination, she has stated that the drowsiness was excessive but in respect of a specific question by the Public Prosecutor, she answered that "I did not indicate the extent of drowsiness in the MLC Ex.PW26/A. What was mentioned by me was drowsiness and respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, Sonu was taken to surgical emergency ward, since she had stab injuries and was bleeding profusely. It was in evidence that she was continuously in the emergency ward and ultimately died on 24.01.1996 at 12.30 PM. This was the reason that because of her critical position after admission and making her statement, the Magistrate could not be secured to record her statement. 22. The evidence of PW-26 and PW-30, who had treated Sonu, indicate that immediately after admission in the hospital at 3.30 PM on 22.01.1996 and at the time of making statement at 4.05 PM she was in a fit condition. It is also clear that immediately after her statement because of the injuries she was taken to emergency ward and she was kept therein till her death on 24.01.1996. It is also clear that in respect of injury on the carotid in view of the fact that it was only partially cut and able to speak and inform what had happened at 2.30 PM, her statement to Inspector P.S. Chauhan PW-41 in the presence of Dr. Sarat Chandra Jai Singh PW-30 is legally permissible and admissible in evidence. The learned trial Judge has rightly relied on those materials and the High Court correctly approved the same. We accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure, 1973, or who had rendered assistance to a Magistrate or a police officer after demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code. "Mitigating Circumstances" (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. 24. A three-Judge Bench in Machhi Singh v. State of Punjab (1983) 3 SCC 470 after ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout his or her death; (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner; II. Motive for commission of murder 34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-�-vis whom the' murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course of betrayal of the motherland. III. Anti-social or socially abhorrent nature of the crime 35. (a) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them bf, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances before the option is exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances 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 offender? If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so. 26. In view of the principles culled out from the earlier decisions, let us find out whether the present case would fall in the category of rarest of the rare case warranting death sentence. 27. It is seen from the evidence of Jaswant Singh, PW-5 that he had married one Chandra @ Chandrawati in the year 1963. Three children, namely, Satbir, Atbir and Anju were born to them. However, in 1971 Jawant Singh had desert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese mitigating circumstances and the legal principles as formulated in Bachan Singh's case and Machhi Singh's case, prayed for leniency and according to him, punishment of death sentence is not warranted. 29. It is relevant to mention that Jaswant Singh, father of Atbir deserted his first wife and their children in 1971. Atbir and his brother Satbir had some grievance about their father for deserting their mother and living with Sheela Devi - second wife and her children. Apart from the same, Atbir demanded land and house property and money immediately, though his father Jaswant Singh agreed and executed a Will. Since the properties would come to his hands only after the demise of his father, Atbir along with other accused persons committed this ghastly crime. As rightly observed by the courts below, among the three accused, Atbir planned for the crime which was executed in a brutal manner and decided to wipe out the entire family so that his father would leave all the properties and money in their favour. 30. The manner in which three persons were brutally murdered shocks the conscience. The aggravated accused, under the leadership of Atbir, reached the house of Sheela D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also enormous in proportion since Atbir, with the assistance of his mother and brother, committed multiple murders of all the members of the family. Apart from this, the victims are none else than his step-mother, brother and sister. The victims are innocent who could not have or has not provided even an excuse much less a provocation for murder. Further, the victims were unaware of the sudden entry of Atbir and others and after bolting the door from inside, they have no other way to go out or resist except subjecting themselves to the wishes of Atbir. Though the accused Atbir was also at the age of 25 at the relevant point of time considering his hunger and lust for property killing his own family members when they had no occasion to provoke or resist and causing 37 knife blows on vital parts of all the three persons, we conclude that it is a gravest case of extreme culpability and rarest of rare case and death sentence alone would be proper and adequate. We have already noted that the accused had no justifiable ground for his action. We are also satisfied that the victims were helpless and undefended. Taking into consideration of all the facts and materials, it is crystal clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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