ABSAR ALAM @ AFSAR ALAMversusSTATE OF BIHAR

                         [2012) 1 S.C.R. 890


A                 ABSAR ALAM @ AFSAR ALAM
                                   v.
                         STATE OF BIHAR
                (Criminal Appeal No. 1436 of 2010)

                        FEBRUARY 07, 2012
B
         [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

       Sentence/sentencing - Imposition of death sentence -
  Propriety of - Appellant accused his mother to have been the
C cause of his wife running away from house and out of anger,
  appellant cutting neck of his mother and severing her head,
  fled away with the head - Conviction of appellant ulss. 302 and
  201 /PC and imposition of death sentence by courts below -
  On appeal held: Appellant was an illiterate rustic and a
D cultivator residing in a village with virtually no control over his ·
  emotions - He over-reacted impulsively to the situation and
  severed neck of his mother - Thus, conviction of the appellant
  upheld but sentence of death converted to life imprisonment
  - Penal Code, 1860 - ss. 302 and 201.
E
      The trial court convicted the appellant under Sections
  302 and 201 IPC and imposed death sentence for killing
  his mother by cutting her neck and severing her head and
  thereafter fleeing from the house with the head of his
F mother leaving behind her body. The High Court upheld
  the conviction and confirmed the death sentence.
  Therefore, the appellant filed the instant appeal.

         Partly allowing the appeal, the Court

G       HELD: It is found on reading the FIR lodged by the
    brother of the appellant on the morning of the date of the
    incident that the appellant's wife had run away to her
    maternal house three or four days before the incident and
    the appellant had been accusing his mother to have been
H                                  890
 ABSAR ALAM @ AFSAR ALAM v. STATE OF BIHAR 891


the cause of his wife running away from this house and        A
out of anger and excitement the appellant severed the
neck of his mother and fled with the head. The appellant
was an illiterate rustic and was a cultivator residing in a
village with virtually no control over his emotions and has
over-reacted impulsively to the situation and has severed     B
the neck of his mother. On these facts, the appellant is
no doubt guilty of the offence under Section 302 IPC, and
has to suffer the punishment of imprisonment for life
normally awarded for the offence, but should not be
condemned to death. The sentence of death is converted        c'
to one of life imprisonment for the offence under Section
302 IPC, committed by the appellant. [Paras 5, 8] [893-H;
894-A-C; 895-C]

     Machhi Singh and others v. State of Punjab (1983) 3
SCC 470: 1983 (3) SCR 413; Swamy Shraddananda (2) alias D
Murali Manohar Mishra v. State of Kamataka (2008) 13 SCC
767: 2008 (11) SCR 93; Prajeet Kumar Singh v. State of
Bihar (2008) 4 SCC 434: 2008 (5) SCR 969; Surja Ram v.
State of Rajasthan 1996 (6) Suppl. SCR 783; Atbir v.
Government of NCT of Delhi (2010) 9 SCC 1: 2010 (9) SCR E
993; Lehna v. State of Haryana (2002) 3 SCC 76: 2002 (1)
SCR 377; Gyasuddin Khan alias Md. Gyasuddin Khan v.
State of Bihar (2003) 12 SCC 516: 2003 (5) Suppl. SCR 367;
Shamshul Kanwar v. State of U.P. (1995) 4 SCC 430: 1995
(3) SCR 1197; Om Prakash v. State of Haryana (1999) 3 F
SCC 19: 1999 (1) SCR 794 - referred to.
                    Case Law Reference:
    1983 (3) SCR 413          Referred to        Para 2
                                                              G
    2008 (11) SCR 93          Referred to        Para 3
    2008 (5) SCR 969          Referred to        Para 4
    1996 (6) Suppl. SCR 783 Referred to          Para 4

    2010 (9) SCR 993          Referred to        Para 4       H
    892      ~UPREME COURT REPORTS                 [2012] 1 S.C.R.

A         2002 (1) SCR 377           Referred to           Para 6,7
          2003 (5) Supp!. SCR 367 Referred to              Para 7
          1995 (3) SCR 1H'7          Referred to           Para 7
          1999 (1) SCR 794           Referred to           Para 7
B
        CRIMINAL AP PELLATE JURl8DICTION : Criminal Appeal
    No. 1436 of 2010.

         From the Judgment & Orner dated 16.7.2009 of the High
c   Court of Judicature at Patna, Bihar in Death Reference No. 7
    of 2008 with Criminal Appeal (D.B) No. 169 of 2008.

        Ramesh Chandra Mishra, Dr. Meena Agarwal for the
    Appellant.

D         Gopal Singh, Chandan Kumar for the Respondent.

          The Judgment of the C::iurt was delivered by

          A.K. PATNAIK, J. 1. This is an appeal by way of special
    leave under Article 136 of the Constitution of India against the
~   judgment and order dated 16.07.2009 of the Patna High Court
    in Death Reference No. 7 of 2008 with Criminal Appeal (DB)
    No.1 '39 of 2008. On 18.01.2010, !hie; Court issued notice in the
    Specl9I Leave Petition confined to the question of sentence
    oniy and on 02.08.2010 after he~ring learned counsel for the
F   parties, granted leave. Hence, the only question that we have
    to decide in this appeal is whether the High Court was right in
    confirming the death sentence of the ap;:iellant imposed by the
    trial court.

G        2. For deciding this question, the relevant facts as have
    been found by the trial court are that in the midnight of 14/
    15.02.2007, the appellant killed his mother by cutting her neck
    and severing her head and thereafter fled from the house with
    the head of his mother leaving behind her body. The trial court,
H   after convicting the appellant under Sections 302 and 201 of
ABSAR ALAM @ AFSAR ALAM v. STATE OF BIHAR 893
             [A.K. PATNAIK, J.]

the Indian Penal Code (for short 'IPC'), held that the appellant A
committed the murder of his mother in an extremely brutal,
grotesque, diabolical and revolting manner and hence it is one
of those rarest of the rare cases calling for a death sentence
on the appellant. The High Court, while upholding the conviction,
confirmed the death sentence relying on the decision of this B
Court in Machhi Singh and others v. State of Punjab [(1983)
3 SCC 470]. In the aforesaid case of Machhi Singh, this Court
has inter alia held that the manner of commission of murder
and the personality of the victim of murder have to be taken into
consideration while making the choice of the sentence to be c
imposed for the offence under Section 302, IPC : life
imprisonment or death sentence. The High Court has taken a
view that considering the abhorrent, dastardly and diabolical
nature of the crime committed by the appellant on none other
than his mother, who had given birth to him, the penalty of death 0
has been rightly awarded by the trial court.

     3. At the hearing of this appeal, learned counsel for the
appellant, relying on the decision of this Court in Swamy
Shraddananda (2) alias Murali Manohar Mishra v. State of
Kamataka [(2008) 13 SCC 767], submitted that even if it is a E
case of a son beheading his mother, this is not one of the rarest
of rare cases in which the death penalty should have been
imposed because the offence had been committed by the
appellant in a fit of passion and not after pre-meditation.
                                                                  F
     4. Learned counsel for the State, on the other hand,
submitted that considering the law laid down by this Court in
Prajeet Kumar Singh v. State of Bihar [(2008) 4 SCC 434],
Surja Ram v. State of Rajasthan [(1996) 6 SCC 271] and Atbir
v. Government of NCT of Delhi [(2010) 9 SCC 1], the G
imposition of death sentence on the appellant for the cruel act
of beheading his mother was proper.

    5. We find on reading the FIR lodged by the brother of the
appellant on the morning of 15.02.2007 at 09:45 hours marked
as Ext.2 that the appellant's wife Sakerun Nisha had run away H
    894      SUPREME COURT REPORTS                   [2012] 1 S.C.R.


A to her maternal house three or four days before the incident and
   the appellant had been accusing his mother to have been the
   cause of his wife running away from this house and out of anger
   and excitement the appellant severed the neck of his mother
   and fled with the head. The appellant was an illiterate rustic and
B was a cultivator residing in a village with virtually no control over
   his emotions and has over-reacted impulsively to the situation
   and has severed the neck of his mother. On these facts, the
   appellant is no doubt guilty of the offence under Section 302,
   IPC, and has to suffer the punishment of imprisonment for life
c  normally awarded for the offence, but should not be condemned
  "to death. We may cite a few authorities in support of this view.

         6. In Lehna v. State of Haryana [(2002) 3 SCC 76], the
    facts were that there was a quarrel between the accused and
    other members of his family, namely, his father, his brother and
D   sister-in-law, over a piece of land and in the assaults that
    followed the quarrel, the accused killed his mother, his brother
    and sister-in-law. While upholding the conviction of the accused
    under Section 302, IPC, this Court held that the mental condition
    of the accused, which led to the assault, cannot be lost sight of
E   and while such mental condition of the accused may not be
    relevant to judge cuipability, it is certainly a factor while
    considering the question of sentence. This Court further held
    that the factual scenario gave impressions of impulsive act of
    the accused and not of planned assaults and in this peculiar
F   background, death sentence would not be proper.

          7. In Gyasuddin Khan alias Md. Gyasuddin Khan v. State
    of Bihar [(2003) 12 SCC 516], the facts were that in the morning
    hours of 09.04.1996, in the precincts of a police camp stationed
G   near a village in Bihar, a policeman deployed in the police
    picket to contain the terrorist activities, unleashed terror by
    indulging in a firing spree, killing three of his colleagues
    instantaneously and this Court, relying on Shamshul Kanwar
    v. State of U.P. ((1995) 4 SCC 430], Lehna v. State of Haryana
H   (supra) and Om Prakash v. State of Haryana ((1999) 3 SCC
ABSAR ALAM @ AFSAR ALAM v. STATE OF BIHAR 895
             [A.K. PATNAIK, J.]

19], held that the mental condition or state of mind of the       A
accused is one of the factors that can be taken into account in
considering the question of sentence and in the facts of the
case, the killing of two other policemen without premeditation
and without any motive whatsoever was an act done out of
panic reaction and in a state of frenzy and it was not one of     B
the rarest of rare cases where death sentence could be
awarded.

      8. For the aforesaid reasons, we convert the sentence of
death to one of life imprisonment for the offence under Section   C
302, IPC, committed by the appellant and allow the appeal in
part.

N.J.                                   Appeal partly allowed.