Supreme Court of India
AJITSINGH HARNAMSINGH GUJRALversusSTATE OF MAHARASHTRA
- Citation
- 2011 INSC 677
- Decided
- 13 September 2011
- Disposal
- Dismissed
- Bench
- MARKANDEY KATJU
Holding
The conviction and death sentence are upheld because the circumstantial evidence conclusively links the accused to the crime and the offence falls within the "rarest of rare" category.
Summary
Ajitsingh Harnamsingh Gujral was convicted of murdering his wife and three children by dousing them with petrol and setting them alight. The trial court and the Bombay High Court sentenced him to death. On appeal, the Supreme Court examined the circumstantial evidence, including the accused's last sighting with the victims, the presence of a petrol can and bucket, and his flight from the scene, and found the chain of circumstances sufficient to prove guilt beyond reasonable doubt. The Court applied the "rarest of rare" doctrine, noting the pre‑planned, gruesome nature of the killings, the accused's dictatorial behaviour, and the lack of any mitigating factors, and concluded that the death penalty was justified. Consequently, the appeal was dismissed and the death sentence upheld.
Issues considered
- The prosecution must establish the entire chain of circumstances linking the accused to the murders on the basis of circumstantial evidence.
- Whether the murder, involving the burning of four family members, qualifies as a "rarest of rare" case warranting the death penalty.
Legislation cited
- Code of Criminal Procedure, 1973s. 313, s. 354(3)
- Indian Evidence Act, 1872s. 114, s. 27
- Indian Penal Code, 1860s. 302
Subjects
murderdeath penaltyrarest of rarecircumstantial evidenceIPC 302premeditated killingfamily homicidesentencing guidelinescapital punishment
Judgment
(2011] 13 (ADDL.) S.C.R. 1000
A AJITSINGH HARNAMSINGH GUJRAL
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1969 of 2009)
SEPTEMBER 13, 2011
B
[MARKANDEY KATJU AND CHANDRAMAULI KR.
PRASAD, JJ.)
Penal Code, 1860 - s. 302 - Murder - Accused burnt
C his wife and three children to death by pouring petrol on them
and setting them on fire - Convicted uls. 302 and sentenced
to penalty of death by courts below - On appeal, held:
Prosecution established the entire chain of circumstances
which connects the accused to the crime - Accused had pre-
D planned the diabolical and gruesome murder in a dastardly
manner - He did not act on any spur of the moment - He
cannot be reformed and rehabilitated - Thus, the penalty of
death sentence is upheld.
Sentence/Sentencing - Death sentence - 'Rarest of rare
E case' - Held: Death sentence should only be given in the
rarest of rare cases - On facts, the accused burnt living
persons to death which is a horrible act causing exGruciating
pain to the victim, and this could not have been unknown to
the accused - Accused did not act on any spur of the moment
F provocation - There was a quarrel between accused and his
wife at midnight, but the accused having brought a large
quantity of petrol into his residential apartment shows that he
had pre-planned the diabolical and gruesome murder in a
dastardly manner - Such person who instead of protecting his
G family kills them in such a cruel and barbaric manner cannot
be reformed or rehabilitated - Balance sheet is heavily
against him - Thus, all the requisites for death penalty are
satisfied - Instant case belongs to the category of rarest of
H 1000
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1001
MAHARASHTRA
rare cases - Death sentence awarded to the accused is A
upheld.
Death sentence - Broad guidelines to award death
sentence - Stated.
Legislation - Abolition of death penalty - Held: It is not B
for the judiciary to repeal or amend the law, as that is in the
domain of the legislature - It is only the legislature which can
abolish the death penalty and not the courts - As long as the
death penalty exists in the statute book it has to be imposed
in some cases, otherwise it would tantamount to repeal of the C
death penalty by the judiciary.
According to the prosecution, appellant was married
and having one son aged about 20 years and two
daughters aged 22 years and 13 years respectively. On D
the fateful day, the appellant killed his wife 'KK' and three
children by pouring petrol on their persons and setting
thein on fire. The said incident took place 25-27 years
after the marriage of the appellant and 'KK'. The trial court
convicted the appellant under Section 302 IPC and E
imposed penalty of death upon the appellant. The High
Court dismissed the appeal and upheld the death
f;lentence. Therefore, the appellant filed the instant appeal.
Dismissing the appeal, the Court
F
HELD: 1. The prosecution has been able to establish
the entire chain of circumstances which connect the
accused to the crime. [Para 49] [1030-H]
2.1. In the instant case, reliance is entirely on
circumstantial evidence, as there are no eye witnesses G
of the crime. It is true that motive is important in cases of
circumstantial evidence, but that does not mean that in
all cases of circumstantial evidence if the prosecution has
been unable to satisfactorily prove a motive its case must
fail. It all depends on the facts and circumstances of the H
1002 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A case since men may lie but circumstances do not. In
cases of circumstantial evidence the prosecution must
establish the entire chain of circumstances which
connects the accused to the crime. [Paras 14, 20) (1018-
E-F; 1022-D]
B
Wakkar and Anr. vs. State of Uttar Pradesh 2011 (3) SCC
306: JT 2011(2) SC 502; Krishnan vs. State represented by
Inspector of police 2008(15)SCC 430 Sharad Birdhichand
Sarcia vs. State of Maharashtra AIR 1984 SC 1622: 1985 (1)
C SCR 88; Mohd. Mannan alias Abdul Mannan vs. State of
Bihar 2011(5) SCC 317 - referred to.
2.2. There is no reason to disbelieve PW3-brother-in-
law of the appellant or PW5-mother-in-law of the appellant
From their testimony it is evident that the appellant was
D a dictatorial personality, who wanted to dominate over his
family and was also hot tempered. He would even beat
his wife (deceased) with a leather belt. [Para 17) (1021-E]
2.3. As regards the Sl:bmission that if the relations
E between the accused and his wife were strained why did
his wife continue to live with him for 25 years, in India
many women accept the bad treatment of their husbands
and continue living with them because a girl at the time
of marriage is told by her parents that after marriage her
place is with her husband and she has to accept
F whatever treatment she gets from her husband and in-
laws. She has to 'nibhao' all treatment after marriage.
Thus, she continues living with him even If her husband
is a brutish, nasty and loathsome person. However, it is
evident that when the children of the accused grew up
G they often resisted and protested against the dictatorial
behaviour of the appellant, and this led to a lot of friction
in the family. Thus, the appellant did not have a happy
married life with his wife, rather it was just the reverse.
[Para 18) (1021-F-H; 1022-A]
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1003
MAHARASHTRA
2.4. As to what motivated the appellant to commit this A
gruesome and ghastly act is impossible to say because
the Court cannot enter into the mind of a human being
and find out his motive. It can only be speculated. [Para
19) [1022-B-C]
B
2.5. The last seen theory comes into play where the
time gap between the point of time when the accused and
deceased were last seen alive and when the deceased
is found dead is so small that the possibility of any person
other than the accused being the author of the crime C
becomes impossible. [Para 31) [1024-F]
Mohd. Azad alias Samin vs. State of West Bengal
2008(15) sec 449: 2008 (15 ) SCR 468; State through
Central Bureau of Investigation vs. Mahender Singh Dahiya
2011(3) SCC 109: 2011 (1 ) SCR 1104; S.K. Yusuf vs. State D
of West Bengal J.T. 2011 (6) SC 640 - relied on.
2.6. There is no reason to disbelieve the evidences
of PW3, PW4, PW 5 and PW 16. Their evidence fully
establishes that the appellant was last seen with his wife E
at about midnight and was in fact quarreling with her at
that time. The incident happened at 4 or 4.30 a.m. and
thus, there was a time gap of only about 4 hours from the
time when the appellant was seen with his wife
(deceased) and the time of the incident. Thus, he was last
seen with his wife and there was only a short interval F
between this and the fire. [Paras 29, 30) [1024-D-E]
2.7. Since the accused was last seen with his wife
and the fire broke out about 4 hours thereafter, it was for
him to properly explain how this incident happened, G
which he has not done. Thus, it is one of the strong links
in the chain connecting the accused with the crime.
Furthermore, the victims died in the house of the
accused, and he was there according to the testimony of
the witnesses. The incident took place at a time when. H
1004 SUPREME COURT REPORTS [2011] 13 (ADOL.) S.C.R.
A there was no outsider or stranger who would have
ordinarily entered the house of the accused without
resistance and moreover it was most natural for the
accused to be present in his own house during the night.
[Paras 32, 33] [1024-H; 1025-A-B]
B
2.8. The sudden disappearance of the accused from
the scene after the incident is another link in the chain
of circumstances connecting the accused with the crime.
The version of the accused is that he left the scene as
he had received a message that his sister in Delhi who
C was suffering from cancer had become critical, and thus, ·
he rushed from Mumbai to be with her. The story is not
at all convincing because in such a situation the person
would ordinarily take a flight from Mumbai to Delhi which
takes two hours, and would not go by car, which journey
D would take several days. There was no shortage of
money with the appellant as he was found with cash of
Rs.7,68,080/-. The submission that the appellant first went
by car to the Dargah in Ajmer to pray for his sister, cannot
be accepted because he could have gone to a Dargah
E only subsequently after seeing his sister. Under Section
114 of Evidence Act the natural conduct of persons is to
be presumed. [Para 34, 35] [1025-C-G]
2.9. The order of the High Court that the plea of alibi
F was totally false and bogus is accepted. [Para 37] [1024-
B]
2.10. It is difficult to speculate as to why the accused
fled from the scene of the crime carrying cash of
Rs.7,68.080/- apart from 7 safari suits and that too without
G a driver or an assistant, all of whom were easily available
to him. It is quite possible that after having committed this
horrible crime the accused may have himself realized the
gravity of his crime and in this shocked state fled from
the scene. However, this is only a speculation and
H nothing turns on it. [Para 38] [1027-C-D]
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1005
MAHARASHTRA
2.11. It was submitted that ordinarily the accused and A
his wife used to sleep in one bedroom, while the 3
children used to sleep in the other bedroom. However,
all 4 victims were found burnt in the children's bedroom.
This was explained by the prosecution by pointing that
in the night of 9.4.2003 when the accused came from his B
hotel he had a heated quarrel with his wife and due to this
quarrel the wife decided to sleep with the children and
not with the accused. This version seems quite probable,
and the defence cannot make much out of the fact that
all 4 bodies were found in one bedroom. [Para 39) (1027- c
E-r=]
2.12. When the police party carried out panchanama
of the house of the accused, after the fire was fully
extinguished and when the FIR was lodged by PW1, PSI
who found that in the bedroom to the northern side of the D
hall on the bed i.e. on the mattress of the bed a 10 litre
white plastic can was seen and it had some petrol in it. It
was also found and noticed that the can was new. It is a
fact that all the four inmates were burned to death by
using petrol. Therefore, the finding of the 10 litre can with E
some petrol in it clearly shows that petrol, sufficient in
quantity to burn and kill all the four persons, was brought
by the accused. [Para 40) (1027-G-H; 1028-A]
2.13. The prosecution also tendered one more piece F
of evidence which is in the form of recovery at the
instance of the accused under Section 27 of the Evidence
Act. In this regard, the prosecution examined PW14-
panch witness and proved the Exhibits which is the
statement of the accused under Section 27 of the G
Evidence Act and the recovery panchanama. PW14
stated that on 14th April, 2003 he was called by the Police
as the accused made a voluntary statement that he would
point out the bucket in which he took petrol from the
plastic can. This statement was recorded and thereafter, H
1006 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A the accused led the police party to his flat. The seal of
the flat was removed and from the bath room of the said
flat the accused pointed out the red bucket. The said
bucket was sent to a Chemical Analyzer who submitted
a report that the bucket showed positive result regarding
B detection of petrol. This means that the said bucket was
used for pouring petrol on all the four victims. [Para, 41
42] (1028-B-E]
2.14. The submission that the recovery of the red
bucket was a fabrication by the police cannot be
C accepted. It is true that on 10th April, 2003 the flat of the
accused was searched, but it is quite natural that the
investigating officer did not understand the significance
of the said bucket even if it was seen on that day. They
could not visualize or imagine the use of the bucket for
D splashing or spreading the petrol on the four victims.
They came to know about it only after the accused made
the disclosure statement, and then they recovered the
said bucket. The investigating office, regarding other
aspects of the matter appears to be truthful and sincere.
E There is no reason to suspect the bona fide of the
inv~~tigating officer, and therefore, there is nothing on
record' from which it can be inferred that the said bucket
was planted by the police to strengthen the case against
the accused. [Paras 43, 44] [1028-F; 1029-A-C]
F
2.15. Nothing turns on the. submission of the
appellant that he was making phone calls to his mother-
in-law after leaving his flat in Mumbai on 10.4.2003. It has
come in evidence that AS, son of the accused, was
G looking after the business, and if the accused was going
away for 3 to 4 days it was natural for him to expect calls
from, and make calls to his son and his wife and other
relatives, but that was not done. [Para 45] (1029-D]
2.16. Appellant submitted that as per the prosecution
H case, all the four victims were in one bed room; that iYfo
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1007
MAHARASHTRA
bodies were found on the bed and two were lying on the A
ground; that if all four victims were sleeping on one bed
then how were two bodies found on the ground; and that
if petrol was splashed on the persons of four victims then
why did none of them wake up before the accused set
them to fire. The presence of the 10 litre can and using B
the bucket clearly show that petrol in large quantity was
used. Use of the bucket further fortifies the prosecution
case because if the petrol was sprinkled from a can it
would have taken time to cover all the bodies of four
persons, the bed and the surroundings. But use of the c
bucket clearly shows that splashing of petrol could be
achieved within a second and that profuse splashing of
petrol could be achieved by using the bucket and then
setting the petrol on fire would not even require five
seconds. Petrol is a very combustible material. It might 0
be that before the actual death occurred two persons
rolled down from the bed and fell on the ground. All this
is speculation on which nothing turns. Since there were
no eye witnesses, and since presence of the accused a
few hours before the crime is proved, it was for the
accused to explain all this. [Para 46] [1029-F-H; 1030-A- E
BJ
2.17. There is no merit in the submission that several
of the circumstances were not put to the accused under
Section 313 Cr.P.C.; and that the circumstances which F
were not put to the accused in his examination under
Section 313 could not be used against him. On careful
examination of the statements of the accused under
Section 313 Cr.P.C. it is found that as many as 168
questions were put to him relating to all the relevant G
circumstances. [Para 47] [1030-C-D]
State of U.P. vs. Mohd. Jkram J.T. 2011 (6) SC 650 -
referred to.
2.18. As regards the submission that the incis.ed H
1008 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A wounds on the son of the appellant, have not been
explained by the prosecution, there were no eye
witnesses and the entire prosecution case rests on
circumstantial evidence it is hardly for the prosecution to
explain these injuries, rather it was for the appellant, who
B was present at the time of the incident (as it has been
found) to explain them. Moreover, the question of
explaining the injuries ordinarily arises when the injuries
are on an accused, and not on the victim. At any event,
the prosecution has explained that these were due to the
c broken glass pieces found on the spot. [Para 48] [1030-
E·G]
3.1. Section 302 provides the punishment for murder.
It stipulates a punishment of death or imprisonment for
life and fine. Once an offender is found by the court to
D be guilty of the offence of murder under Section 302, then
it has to sentence the offender to either death or for
imprisonment for life. The court has no power to impose
any lesser sentence. If there is a reasonable doubt about
the guilt of the offender, the only proper verdict is to
E acquit him and not to impose a sentence lesser than
imprisonment for life. [Paras 53, 54] [1033-H; 1034-A-B]
Santosh vs. State of MP AIR 1975 SC 654: 1975(3) SCR
463 - relied on.
F 3.2. In the Code of Criminal Procedure, 1973, Section
354(3), the discretion of the judge to impose death
sentence has been narrowed, for the court has now to
provide special reasons for imposing a sentence of
death. It has now made imprisonment for life the rule and
G death sentence an exception, in the matter of awarding
punishment for murder. [Para 57] [1035-H; 1036-A]
3.3. Death sentence should only be given in the
rarest of rare cases. This is one of such cases. Burning
H living persons to death is a horrible act which causes.
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1009
MAHARASHTRA
excruciating pain to the victim, and this could not have A
been unknown to the appellant. In the instant case, the
accused did not act on any spur of the moment
provocation. It is no doubt that a quarrel occurred
between him and his wife at midnight, but the fact that
he had brought a large quantity of petrol into his B
residential apartment shows that he had pre-planned the
diabolical and gruesome murder in a dastardly manner.
A person like the appellant who instead of doing his duty
of protecting his family kills them in s.uch a cruel and
barbaric manner cannot be reformed or rehabilitated. The c
balance sheet is heavily against him and thus, the death
sentence awarded to him is upheld. [Paras 95, 96 and 97)
[1050-D·G·F]
Bachan Singh vs State of Punjab AIR 1980 SC 898 -
relied on. D
3.4. A distinction has to be drawn between ordinary
murders and murders which are gruesome, ghastly or
horrendous. While life sentence should be given in the
former, the latter belongs to the category of rarest of rare E
cases, and thus, death sentence should be given. [Para
98) [1050-H; 1051-A]
Mohd. Mannan @ Abdul Mannan vs. State of Bihar
(2011) 5 sec 317 - relied on.
F
3.5. The expression 'rarest of the rare cases' cannot
be defined with complete exactitude. The very fact that
death penalty should be given only in the rarest of the
rare cases means that in some cases it should be given
and not that it should never be given. As to when it has G
to be given, the broad guidelines in this connection have
been laid down in Macchi Singh's case which has been
followed in several decisions. The accused deserves
death penalty where the murder was grotesque,
diabolical, revolting or of a dastardly manner so as to H
1010 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A arouse intense and extreme indignation of the
community, and when the collective conscience of the
community is petrified, or outraged. It has also to be seen
whether the accused is a menace to society and
continues to do so, threatening its peaceful and
B harmonious coexistence. The Court has to further
enquire and believe that the accused cannot be reformed
or rehabilitated and shall continue with his criminal acts.
Thus a balance sheet is to be prepared in considering the
imposition of death penalty of the aggravating and
c mitigating circumstances, and a just balance is to be
struck. The said view is accepted and all the requisites
for death penalty are satisfied in the instant case for the
said reasons. [Paras 99, 100 and 101] [1052-D-H]
Machhi Singh and Ors. vs. State of Punjab AIR 1983 SC
D 957: 1983 (3) SCR 413 - relied on.
Sunder Singh vs. State of Uttaranchal (2010) 10 SCC
611: 2010 (11) SCR 927; C.Muniappan vs. State of T. N.
(2010) 9 sec 567: 2010 (10) SCR 262; M. A Antony vs.
E State of Kera/a (2009) 6 SCC 220: 2009 (6 ) SCR 829;
Jagdish vs.State of M. P. (2009) 9 sec 49&. 2009 (14) SCR
727; Prajeet Kumar Singh VS. State of Bihar (2008) 4 sec .
434: 2008 (5) SCR 969; Ram Singh vs. Sonia (2007) 3 SCC
1: 2001 (2 ) SCR 651; State of U.P. vs. Satish (2005) 3 sec
F 114: 2005 (2) SCR 1132; Holiram Bordoli vs. State of Assam
(2005) 3 SCC 793: 2005 (3) SCR 406; Saibanna vs. State
of Karnatka (2005) 4 sec 165: 2005 (3) SCR 760; Karan
Singh vs. State of U.P. (2005) 6 SCC 342; Gurmeet Singh
vs. State of U.P. (2005) 12 SCC 107: 2005 (3) Suppl. SCR
651; Sushi/ Murmu vs. State of Jharkhand (2004) 2 SCC
G 338: 2003 (6) Suppl. SCR 702; State ofRajasthan vs. Kheraj
Ram (2003) 8 SCC 224: 2003 (2) Suppl. SCR 861; Om
Prakash vs. State of Uttaranchal (2003) 1 SCC 648: 2002 (4)
Suppl. SCR 623:;Gurdev Singh vs. State of Punjab AIR
2003 SC 4187: 2003 (2) Suppl. SCR 80; Praveen Kumar vs.
H State of Karnataka (2003) 12 SCC 199; Suresh vs. State of
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1011
MAHARASHTRA
U. P. AIR 2001 SC 1344: 2001 ( 2 ) SCR 263; Molai vs. State A
of M. P. AIR 2000 SC 177: 1999 (4 ) Suppl. SCR 104;
Ramdeo Chauhan vs. Stateof Assam AIR 2000 SC 2679:
2000 (2) Suppl. SCR 28; Narayan Chetanram Chaudhary vs.
State of Mahrashtra AIR 2000 SC 3352: 2000 (3) Suppl. SCR
104; State of U.P. vs. Dharmendra Singh AIR 1999 SC 3789: B
1999 (3) Suppl. SCR 52; Ronny vs. State of Mahrashtra AIR
1998 SC 1251: 1998 ( 2 ) SCR 162; Surja Ram vs. State of
Rajasthan AIR 1997 SC 18: 1996 (6) Suppl. SCR 783;
Umashankar Panda vs. State of M.P AIR 1996 SC 3011:
1996 (2) SCR 1154; Ravji vs. State of Rajasthan AIR 1996 c
SC 787: 1995 (6) Suppl. SCR 195; Suresh Chandra Bahri
vs. State of Bihar AIR 1994 SC 2420: 1994 (1) Suppl. SCR
483; Bheru Singh vs. State of Rajasthan (1994) 2 SCC 467:
1994 (1) SCR 559; Sevaka Perumal vs. State of T. N. AIR
1991 SC 1463: 1991 (2) SCR 711; Sudam@ Rahul Kaniram
0
Jadhav vs. State of Maharashtra Criminal Appeal Nos. 185·
186 of 2011decided on 4.7. 2011; Ranjeet Singh vs. State
of Rajasthan (1988) 1 SCC 633; Atbir vs. Govt. of f>JCT Delhi
AIR 2010 SC 3477: 2010 (9) SCR 993; Surendra Kofi vs.
State of U.P. AIR 2011 SC 970; Bhagwan Dass vs. State
(NCT) of Delhi AIR 2011 SC 1863; Prakash Kadam vs. R. V. E
Gupta AIR 2011 SC 1945; Satya Narayan Tiwari vs. State of
U.P. (2010) 13 sec 689: 2010 (12 ) SCR 1137 - referred
to.
Furman vs. Georgia 408 US 238 (1972); Gregg vs. F
Georgia 28 US 153 (1976) - referred to.
'Theories of Punishment' edited by Stanley E. Grupp;
'Punishment' by Ted Honderich; 'Punishment' by Philip Bean;
'The Death Penalty' edited by Irwin lsenberg;'The Penalty of G
Death' by Thorsten Sellen; 'The Death Penalty' by Roger
Hood referred to.
6. It is only the legislature which can abolish the
death penalty and not the courts. As long as the death
H
1012 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A penalty exists in the statute book it has to be imposed in
some cases, otherwise it will tantamount to repeal of the
death penalty by the judiciary. It is not for the judiciary
to repeal or amend the law, as that is in the domain of the
legislature. [Para 101] [1053-B]
B
Common Cause vs. Union of India 2008(5) SCC 511 -
relied on.
Case Law Reference:
2011 (3) sec 306 Referred to. Para 20
c
2008 (15) sec 430 Referred to. Para 20
1985 (1) SCR 88 Referred to. Para 20
2011(5) sec 311 Relied on. Para 20
D
2008 (15) SCR 468 Relied on. Para 31
2011 (1) SCR 1104 Relied on. Para 31
J.T. 2011 (6) SC 640 Relied on. Para 31
E J.T. 2011 (6) SC 650 Referred to. Para 47
408 us 238 (1972) Referred to. Para 50
428 us 153 (1976) Referred to. Para 50
F 1975 (3) SCR 463 Relied on. Para 54
2010 (11) SCR 927 Referred to. Para 63
2010 (10) SCR 262 Referred to. Para 64
2009 (6) SCR 829 Referred to. Para 65
G
2009 (14) SCR 727 Referred to. Para 66
2008 (5) SCR 969 Referred to. Para 67
2007 (2 ) SCR 651 Referred to. Para 68
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1013
MAHARASHTRA
2005 (2) SCR 113 Referred to. Para 69 A
2005 (3) SCR 406 Referred to. Para 70
2005 (3) SCR 760 Referred to. Para 71
(2005) 6 sec 342 Referred to. Para 72 B
2005 (3) Suppl. SCR 651 Referred to. Para 73
2003 (6) Suppl. SCR 702 Referred to. Para 74
2003 (2) Suppl. SCR 861 Referred to. Para 75
c
2002 (4) Suppl. SCR 623 Referred to. Para 76
2003 (2) Suppl. SCR 80 Referred to. Para 77
(2003) 12 sec 199 Referred to. Para 78
2001 (2) SCR 263 Referred to. Para 79 D
1999 (4) Suppl. SCR 104 Referred to. Para 80
2000 (2) Suppl. SCR 28 Referred to. Para 81
2000 (3) Suppl. SCR 104 Referred to. Para 82 E
1999 (3) Suppl. SCR 52 Referred to. Para 83
1998 (2) SCR 162 Referred to. Para 84
1996 (6) Suppl. SCR 783 Referred to. Para 85
F
1996 (2) SCR 1154 Referred to. Para 86
1995 (6) Suppl. SCR 195 Referred to. Para 87
1994 (1) Suppl. SCR 483 Referred to. Para 88
G
1994 (1) SCR 559 Referred to. Para 89
1991 (2) SCR 711 Referred to. Para 90
(1988) 1 sec 633 Referred to. Para 92
2010 (9) SCR 993 Referred to. Para 93 H
1014 SUPREME COURT REPORTS (2011) 13 (ADDL.) S.C.R.
A AIR 2011 SC 970 Referred to. Para 94
AIR 1980 SC 898 Relied on. Para 95
2011(5) sec 317 Relied on. Para 99
1983 (3) SCR 413 Relied on. Para 101
B
2008(5) sec 511 Relied on. Para 101
AIR 2011 SC 1863 Referred to. Para 101
AIR 2011 SC 1945 Referred to. Para 101
c
2010 (12) SCR 1137 Referred to. Para 101
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1969 of 2009.
D From the Judgment & Order dated 26.6.2006 of the High
Court of Bombay at Bombay in Confirmation Case No. 3 of
2005 with Crl. A. No. 518 of 2005.
Jaspal Singh, Aman Vachher, Ashutosh Dubey, L.K.
Sharma (for P.N. Puri) for the Appellant.
E
Sushil Karanjkar (for Asha Gopalan Nair) for the
Respondent.
The Judgment of the Court was delivered by
F MARKANDEY KATJU, J.
"Qareeb hai yaaron roz-e-mahshar,
Chupega kushton ka khoon kyonkar,
Jo chup rahegi zubaan-e-khanjar,
G Lahu pukaaregaa aasteen ka"
- Ameer Minai
1. Heard Shri Jaspal Singh, learned senior counsel for the
appellant and learned counsel for the State of Maharashtra for
H the respondent. This is an appeal by special leave against the
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1015
MAHARASHTRA [MARKANDEY KATJU, J.]
judgment of the Bombay High Court dated 26.6.2006, which A
has confirmed the death sentence of the appellant given by the
learned Sessions Judge dated 19.3.2005.
2. The accused is a businessman. He was a married man
having one son and two daughters. He was married with the B
deceased Kanwaljeet Kaur about 25 to 27 years prior to the
incident dated ·10.4.2003. He had a son Amandeep Singh aged
about 20 years and two daughters viz. Neeti and Taniya, aged
about 22 years and 13 years respectively. All of them were
allegedly killed by the accused in the early hours of the morning C
of 10.4.2003 by pouring petrol on their persons and setting
them on fire. ·
3. Earlier the accused had lived at Ludhiana. However, it
appears that he suffered business losses there, and so he
shifted to Mumbai with his family and started residing in D
Jyotsna Building. Initially he was doing business of catering in
the same building, and his son Amandeepsingh was assisting
him in that business. After some time, the accused shifted his
catering business to Kamlesh building which is situated in the
same locality of Shere-Punjab colony, Andheri. There were E
several employees of the accused to assist him in the business
of catering. Those servants used to sleep in front of his flat in
the verandah. The accused was having a Maruti Zen Car and
his son was having a motorcycle.
4. According lo the prosecution, the accused was a hot F
tempered man. He was like a dictator in the family, and
dominated his wife and children in the family, on account of
which there was resentment in his family members. Further, it
is alleged by the prosecution that the accused was ill-treating
his wife and twice he had assaulted her with a leather belt. G
5. On thr night of 9.4.2003 the accused and all his family
members were in their flat. All the servants were sleeping
outside. The accused was seen coming to the flat between the
night of 9.4.2003 and 10.4.2003 at about midnight. There. were . H
1016 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A two bed rooms in the flat of the accused. Ordinarily the accused
and his wife used to sleep in one bed room while the children
slept in another. There was a quarrel on the night of 9.4.2003
between the accused and his wife after he had returned back
from work. Between 4.00 and 4.30 a.m. some of the servants
B heard a big noise of something bursting followed by or
preceded by someone crying in pain. The servants woke up
and found that the flat of the accused was on fire. There was
utter confusion and chaos. Somebody phoned to the fire
brigade and a fire engine came. The police also followed. The
c door of the flat was open, and it was smoky inside. Strong smell
of petrol was coming from there. The fire was extinguished, and
then only could they enter the bed room, where the four bodies
of the members of the family of the accused viz. his wife, his
son and two daughters were found burnt, and they were dead.
The police made an inquiry from the servants and then a report
0
of murder was lodged by PSI Prakash Shivram Kamble. The
investigation soon started and inquest Panchanama, spot
panchanama etc. were made. The bodies were then sent for
post mortem.
E 6. In their preliminary inquiry, the police found that the
Maruti Zen car of the accused was not there and the accused
was also not there. Attempts were made to trace and search
him, and ultimately the accused was arrested on or near
Kishangadh, Madanganj in Ajmer District in Rajasthan on
F 14.4.2003. The car which the accused was driving was seized,
and so also an amount of Rs.7,68,080/- in cash along with
about 24 silver coins, 7 safari dresses and 7 turbans. A police
officer was deputed from Mumbai and the accused was
brought to Mumbai.
G
7. The statement of the accused was recorded under
Section 27 of the Evidence Act and a red bucket from which
he had allegedly thrown petrol on the persons of all the four
members of his family was recovered at his instance:
H 8. All the material recovered by the police from the spot
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1017
MAHARASHTRA [MARKANDEY KATJU, J.]
viz. burned clothes, petrol can, bucket, broken glass pieces, A
etc. were sent to the Chemical Analyzer.
9. In the inquest, it was found that the son of the accused,
Amandeepsingh had certain injuries on his body. Because of
fire, the glass pieces were shattered in the room and one piece 8
was removed from one of the injuries on the stomach of the son.
An expert electrician was called, and he inspected the
premises and opined that there was no short circuit. The Air-
Conditioner's compressor was intact. Post mortem of all the
bodies was conducted and it was found that all the four persons C
died as a result of burning.
10. During the course of investigation the statements of
relatives of the deceased, neighbours, and the servants of the
accused were recorded. All the seized property was sent to the
Chemical Analyzer for opinion. Thereafter the charge sheet was D
filed. Separate charges under Section 302 of the Indian Penal
Code was framed against the accused for committing murders
of his wife Kanwaljeet Kaur, his son Amandeepsingh and two
daughters Neeti and Taniya. The accused pleaded not guilty to
the charges. Thereafter, the Additional Sessions Judge, E
recorded the evidence of the.:.prosecution witnesses. In all 19
witnesses were examined as the prosecution witnesses.
Thereafter the statement of the accused under Section 313 of
the Criminal Procedure Code was recorded. The accused
expressed his desire to examine witnesses in defence of his F
plea of alibi and, accordingly four witnesses were examined by
the accused. The Additional Sessions Judge heard the
arguments and also took on record the written arguments
submitted by the advocate for the accused and, ultimately came
to the conclusion that the prosecution had proved its case G
beyond reasonable doubt that the accused committed murders
of all four members of his family. So far as sentence was
concerned, the Additional Sessions Judge came to the
conclusion, after considering the cases cited before him by both
the sides, that this was a rarest of the rare case and imposed H
penalty of death upon the accused.
1018 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A 11. Two question arise before us (a) is the appellant guilty
of murder? (b) if he is, should he be given the death sentence?
We shall deal with \hese separately.
12. The appellant filed an appeal before the Bombay High
6 Court and the matter was also sent for confirmation for the death
sentence. By the impugned judgment the High Court dismissed
the appeal and upheld the death sentence, and hence this
appeal before us.
ls the appellant guilty of murder ?
c
13. Mr.'Jaspal Singh, learned counsel for the appellant,
first submitted that the appellant was leading a happy married
life for more than 25 years before the incident and hence he
had no motive to kill his wife and 3 children. He submitted that
D the prosecution has not been able to prove any motive, and
motive is important in cases of circumstantial evidence like the
present one
14. This is a case relying entirely on circumstantial
evidence, as there are no eye witnesses of the crime. It is true
E that motive is important in cases of circumstantial evidence, but .
that does not mean that in all cases of circumstantial evidence
if the prosecution has been unable to satisfactorily prove a
motive its case must fail. It all depends on the facts and
circumstances of the case. As is often said, men may lie but
F circumstances do not.
15. The mother in law of the appellant Smt. Bhagwantkaur
Oberoi, PW5 has stated in her deposition :
..... ."I was having three daughters Kanwaljeetkaur,
G Harjeetkaur and Harvinderkaur. Accused before the court
·is my son-in-law. He was married to my daughter
Kanwaljeetkaur 25-26 years before. Accused was residing
along with his wife and children at Sher-a-Punjab colony,
Andheri, Mumbai. Accused came to Mumbai two years
H before. The relations between my daughter and accused
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1019
MAHARASHTRA [MARKANDEY KATJU, J.]
were not cordial and their matrimonial life was unhappy due A
to very angry nature of the accused. I used to go to the
house of my daughter and vice-versa occasionally. There
was talk between me and my daughter Kanwaljeetkaur. I
used to ask my daughter how she is and how her husband
is. At that time, she used to narrate to me that her husband 8
is of very angry nature. She was very unhappy in her
matrimonial life. She was subjected to the cruelty by the
accused. She further told me that accused was behaving
like a dictator. Children of my daughter Kanwaljeetkaur
also used to tell me regarding angry nature of accused. C
My daughter also told me that accused used to beat her
by leather belt. However, my daughter was behaving with
the accused by way of adaptive nature. Whenever
Kanwaljeetkaur was narrating me regarding ill treatment
and harassment, I used to persuade her. I also told my
daughter Kanwaljeetkaur that she should leave accused D
and reside separately <.long with her children. As I know
the nature of the accused I never dared to persuade him.
On 19th March, 2003, there was birthday ceremony
of my granason Simarpalsingh. I invited my daughter E
Kanwaljeetkaur and her family members telephonically to
attend the function at Mira road at my residence.
Kal)waljeetkaur replied on telephone that she is unable to
attend the function as she is busy with some work. After
sometime my daughter Kanwaljeetkaur again made a F
telephone call to me and told that at the time of earlier
telephone her husband was present and he quarreled and
she along with her children were not allowed to attend the
said function. At that time, Kanwaljeetkaur was crying on
the telephone and while crying she told that she is very G
unhappy and she may die. I told my other daughter namely
Harjeetkaur to ring Kanwaljeetkaur as there was quarrel
between her and the accused. On that very day, at about
7 p.m. I received a telephonic call from Niti and she told
that her father agreed and accordingly, we are attending
H
1020 SUPREME COURT RE~RTS [2011] 13 (ADDL.) S.C.R.
A the function. Accordingly, Kanwaljeetkaur and accused and
both daughters attended the function. At that time, accused
was under the influence of liquor. While leaving my
residence after the function accused told Kanwaljeetkaur
and her daughters that he will put you all below the running
B truck to die.
On 9th April, 2003, at about 11.30 p.m. I received a
telephonic call from the accused from his residence. On
10th April, 2003, at about 6 a.m. I received telephonic call
from Phuldeep~ingh Marva-PW3 regarding fire on the flat
c of accused. Accordingly, I went to the place of the incident.
When I reached, I did not find the accused present. When
I reached, four dead bodies were already kept in front of
the flat. I became unconscious noticing the dead bodies.
Police recorded my statement."
D
16. Phuldeepsingh Marva, PW3 also supported the
prosecution case. His wife and the wife of the appellant were
real sisters. In his deposition he has stated :
.......... ."Before shifting to Mumbai, accused was doing
E business at Ludhiana, Punjab in automobile spare parts.
Accused suffered loss in his business at Ludhiana and that
is why he shifted to Mumbai. We were having cordial
relations and we family members used to visit his house
and vice-versa. The relations between accused and his
F entire family members were tense. Accused used to
behave with his family members as a dictator. He was not
having cordial relations with his family members. Son and
daughters of the accused did not like the dictatorship of
accused and that is why there were always quarrels
G between accused and his family. Accused used to tell me
also that 75% decisions would be mine in my house. I
ifersuaded the accused several times to change his nature.
However, the accused never changed his nature and he
was not ready to reduce his dictatorship.
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1021
MAHARASHTRA [MARKANDEY KATJU, J.]
There-was also telephone in the house of accused. A
On 10th April, 2003, I was at my residence. I received a
telephonic call from the landlord and estate agent of the
accused at about 5.30 to 5.45 a.m. that there is a fire in
the flat of the accused. I along with my wife rushed to the
place of incident in my car. At about 6.30 a.m. I reached B
the place of incident. When I reached I saw fire brigade
vehicles, police staff, fire brigade staff and four dead
bodies which were kept in front of the flat. I saw all those
four dead bodies. I identified four dead bodies i.e. of
Kanwaljeetkaur, Amandeepsingh, Niti and Taniya. I noticed c
that accused along with his car was not present. Accused
used to park his Zeri car in front of the flat near the gate. I
saw four dead bodies who sustained burn injuries on their
person. I saw the bangles in the wrist of Kanwaljeetkaur. I
also saw a piece of glass in.the body_ of Amandeepsingh 0
near wrist. Article 1 - pair of bangles before the court was
in the hands of Kanwaljeetkaur. Police recorded my
statement."
17. We see no reason to disbelieve PW3 or PW5. from
their testimony it is evident that the appellant was a dictatorial E
personality, who wanted to dominate over his family and was
also hot tempered. He would even beat pis wife (deceased)
with a leather belt.
18. Mr. Jaspal Singh, learned counsel for the appellant, F
submitted that if the relations between the accused and his wife
were strained why did his wife Kanwaljeetkaur continue to live
with him for 25 years. In this connection, we have only to point
out that in India many women accept the bad treatment of their
husbands and continue living with them because a girl at.the G
time of marriage is told by her parents that after marriage her
place is with her husband and she has to accept whatever
treatment she gets from her husband and in- laws. She has to
'nibhao' all treatment after marriage. Hence she continues living
with him even if her husband is a brutish, nasty and loathsome H
1022 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A person .. However, it is evident that when the children of the
accused grew up they often resisted and protested against the
dictatorial behaviour of the appellant, and this led to a lot of
friction in the family. Hence we are of the opinion that the1
appellant did not have a happy married life with his wife, rathe1
B it was just the reverse.
19. As to what motivated the appellant to commit this
gruesome and ghastly act is impossible for us to say because
the Court cannot enter into the mind of a human being and find
C out his motive. We can only speculate.
20. This is a case of circumstantial evidence and in cases
of circumstantial evidence the settled law is that the prosecution
must establish the entire chain of circumstances which connects
the accused to the crime vide Wakkar and Anr. vs. State of
D Uttar Pradesh 2011 (3) SCC 306 = JT 2011 (2) SC 502,
Krishnan vs. State represented by Inspector of police
2008(15)SCC 430=JT 2008(6) SC 282, Sharad Birdhichand
Sarda vs. State of Maharashtra AIR 1984 SC 1622, Mohd.
Mannan alias Abdul Mannan vs. State of Bihar 2011 (5) SCC
E 317 (vide para 14), etc.
21. We have, therefore, to see whether the prosecution has
been able to establish the chain of circumstances connecting
the accused to the crime.
F 22. The accused was last seen with the deceased. It has
come in the evidence of Vinodkumar Gudri Manda!, PW16 that
he was working with the accused at Sher-E-Punjab caterers.
This witness along with some servants used to sleep near the
bedroom of the flat of the accused in the veranda. He has
G stated that at about midnight when he was in the veranda in
front of the flat of the accused he heard loud sound of quarrels
from the flat of the accused. He identified the sounds as the
voice of the accused and his wife.
23. This witness has stated that he was on talking terms
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1023
MAHARASHTRA [MARKANDEY KATJU, J.]
with the family members of the accused. Since he was known A
to the accused and his famiiy members he could obviously.
recognize their voices. Hence we see no reason to disbelieve
his evidence that at about midnight of 9.4.2003 there was a
quarrel between the appellant and his wife. No reason has been
ascribed by the defence counsel as to why this witness should 8
make a false statement.
24. This witness has also stated that on 10.4.2003 at 4.30
a.m. he heard a big sound in the building. He and the other
servants saw fire in the flat of the accused. They tried to
extinguish the fire with the help of water and sand but were C
unsuccessful. One member of the society informed the fire
brigade telephonically and the fire brigade came and
extinguished the fire. This witness identified the 4 dead bodies
inside the flat of the accused. He also noticed that the Zen car
was not at its parking place and the accused was also not D
present.
25. This witness has also stated in his evidence that one
month before the incident when he returned to the building
where the incident took place he went inside the flat of the E
accused and inadvertently opened a white color plastic can and
he noticed petrol in the said can. The witness identified the said
can before the court.
26. We see no reason to disbelieve this witness
Vinodkumar Gudri Mandal. No enmity has been shown between F
him and the accused and no motive shown why he should give
a false statement against the accused.
27. PW4, Kamalsingh Mahipatsingh Rawat was working
as a cook in the hotel cum catering of the appellant. He has G
stated in his evidence that after _his duty ended at 11.30 p.m.
he used to sleep in front of the flat of the accused in Jyotsna
building where the accused was residing with his wife and
children. He said that he knows all the family members of the
accused. H
1024 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A 28. In his evidence he has stated that at about 11.30 to
11.45 p.m. he left the hotel and went towards the Jyotsna
building where he sleeps in front of the flat of the accused. He
has further stated that about half an hour thereafter the accused
also returned to his· residence. At about 4.00 to 4.30 a.m. he
8 heard a noise of bursting of something and smoke was coming
out from the flat which was on fire. He also heard the sound of
crying from the said flat. He could not enter the flat as it was
too smoky. Thereafter the fire brigade came and extinguished
the fire. He entered the flat and saw the dead bodies of the
C deceased. The accused was not found there, nor his Maruti car.
The witness had seen the Maruti car parkf?d in front of the flat .
when he went to sleep but it was not found in the morning.
29. The evidences of PW3, PW4 and PW 5, which we see
no reason to disbelieve, thus fully establish that the appellant
D was last seen with his wife at about midnight and was in fact
quarreling with her at that time.
30. The incident happened at 4 or 4.30 a.m. and hence
there was a time gap of only about 4 hours from the time when
E the appellant was seen with his wife (deceased) and the time
of the incident. Thus he was last seen with his wife and there
was only a short interval between this and the fire.
31. The last seen theory comes into play where the time
gap between the point of time when the accused and deceased
F were last seen alive and when the deceased is found dead is
so small that the possibility of any person other than the
accused being the author of the crime becomes impossible,
vide Mohd. Azad alias Samin vs. State of West Bengal
2008(15) SCC 449 = JT 2008(11) SC658 and State through
G Central Bureau of Investigation vs. Mahender Singh Dahiya
2011(3) SCC 109 = JT 2011(1) SC 545, S.K. Yusuf vs. State
of West Bengal, J.T. 2011 (6) SC 640 (para 14).
32. In our opinion, since the accused was last seen with
H his wife and the fire broke out about 4 hours thereafter it was
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1025
MAHARASHTRA [MARKANDEY KATJU, J.]
for him to properly explain how this incident happened, which A
he has not done. Hence this is one of t~e strong links in the
chain connecting the accused with the crime.
l
33. The victims died in the house of the accused, and he
was there according to the testimony of !he above witnesses. 8
The incident took place at a time when there was no outsider
or stranger who would have ordinarily entered the house of the
accused without resistance and moreover .it was most natural
for the accused to be present in his own house during the night.
34. Another link in the chain of circumstances connecting C
the accused with the crime is his sudden disappearance from
the scene after the incident. The version of the accused is that
he left the scene as he had received a message that his sister
in Delhi who was suffering from cancer had become critical,.
and hence he rushed from Mumbai to be with her. We are not D
at all convinced with the story. When a person living in Mumbai
receives a message that his relative is critical in Delhi, he would
have o_r.dinarily take a flight from Mumbai to Delhi, and would
not go by car, which journey would take several days. A flight
from Mumbai to Delhi takes two hours. There was no shortage E
of money with the appellant as he was found with cash of
Rs.7,68,080/-.
35. Leaned counsel for the appellant submitted that the
appellant first went by car to the Dargah in Ajmer to pray for
his sister. We cannot accept this version. When a relative in . F
Delhi is critical, a person in Mumbai would have rushed to Delhi
by flight to see her and would have gone to a Dargah only
subsequently. Under Section 114 of Evidence Act we have to
presume the natural conduct of persons. Section 114 states :
G
"The Court may presume the existence of any fact which
it thinks likely to have happened, regard being had to the
common course of events, human conduct, and public and
private business"
H
1026 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 36. We agree with the High Court which has observed in
the impugned judgment:
........ "We are not at all in agreement with the
submissions made by the advocate for the accused in this
B regard. There are many reasons for this. The first reason
is that there is nothing on record to show that a day or two
before the accused left Mumbai on 10th April, 2003, the
accused had received any urgent message from the wife
of D.W.3 that his presence was imminently and
immediately required at Delhi and her condition was
c critical or that the accused received SOS, that he should
immediately rush to Delhi. Secondly, if the accused had
earlier planned to go to Delhi in such a case of urgency
and exigency, ordinarily he should have and could have
traveled by flight or train and would not have driven to Delhi
D by his car. Thirdly, looking to the age of accused, who was
around 50 to 52 years at that time, ordinarily the accused
would not have gone alone on such a long journey. He had.·
a number of servants at his disposal, at least 7 were
sleeping in front of his flat in the veranda at that very night,
E he could have taken one of them as assistant on the road.
Fourthly, there was no reason for the accused not to have
taken a driver for such a long journey. Fifthly, there is no
one examined from the hotel to whom the accused had
disclosed that he would not be available for looking after
F the business for at least a couple of weeks or one week.
The fact that the accused had with him 7 safari dresses
and 7 turbans when he was arrested, clearly shows that
the accused had an intention to stay for quite a long time
away from his house and away from his business. There
G is nothing on record to show that prior to this incident the
accused was not on talking terms or visiting terms with his
mother in law. Not a single suggestion was give to this
witness by the accused that they were informed by the
accused that he is going to Delhi to see his sister or wife
H of D.W.3. Next impossibility in the theory of alibi is that
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1027
. . MAHARASHTRA [MARKANDEY KATJU, J.)
there is no earthly reason for the accused to leave his A
house at odd time of 2.00 a.m. He could have traveled
either before mid night or he could have traveled after
sunrise. Further there is no explanation from the accused
as to why he was carrying such a huge amount of
Rs.7,68,080/- and 24 silver coins." B
37. We, therefore, agree with the High Court that the plea
of alibi was totally false and bogus.
38. It is difficult for us to speculate as to why the accused
fled from the scene of the crime carrying cash of Rs.7,68.080/ C
- apart from 7 safari suits and that too without a driver or an
assistant, all of whom were easily available to him. It is quite
possible that after having committed this horrible crime the
accused may have himself realized the gravity of his crime and
in this shocked state fled from the scene. However, this is only D
a speculation and nothing turns on it.
39. It has then been argued that ordinarily the accused and
his wife used to sleep in one bedroom, while the 3 children used
to sleep in the other bedroom. However, all 4 victims were found E
burnt in the children's bedroom. This has been explained by the
prosecution by pointing that in the night of 9.4.2003 when th"e
accused came from his hotel he had a heated quarrel with his
wife and due to this quarrel the wife decided to sleep with the
children and not with the accused. This version seems quite F
probable, and the defence cannot make much out of the fact
that all 4 bodies were found in one bedroom.
40. When the police party carried out panchanama of the
house of the accused, that is, after the fire was fully extinguished
and when the FIR was lodged by PW1, PSI Prakash Kamble, G
he found, as stated by him, that in the bedroom to the northern
side of the hall on the bed i.e. on the mattress of the bed a 10
litre white plastic can was seen and it had some petrol in it. It
was also found and noticed that the can was new. It is a fact
that all the four inmates were burned to death by using petrol. H
1028 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A Therefore, the finding of the 10 litre can with some petrol in its
clearly shows that petrol, sufficient in quantity to burn and kill
all the four persons, was brought by the accused.
41. In addition to this, the prosecution has also tendered
one more piece of evidence which is in the form of recovery at
8
the instance of the accused under Section 27 of the Evidence
Act. In this regard, th~ prosecution has examined PW14 Nilesh
Kamalakar Aarate the panch witness and proved Exhibit 50 and
50-A. Exhibit 50 is the statement of the accu,sed under Section
27 of the Evidence Act and Exhibit 50-A is recovery
C panchanama. In his evidence PW14 has stated that on 14th
April, 2003 he was called by Meghwadi Police as the accused
made a voluntary statement that he will point out the bucket in
which he took petrol from the plastic can. This statement was
recorded and thereafter the accused led the police party to his
D' flat. The seal of the flat was removed and from the bath room
of the said flat the accused pointed out the red bucket.
Discovery panchanama was Exhibit 50cA and red bucket was
Article 14.
E 42. This red bucket was sent to a Chemical Analyzer. The
report of the C.A. (Exhibit 67) is that the bucket showed positive
result regarding detection of petrol. This means that this bucket
was used for pouring petrol on all the four victims.
43. Regarding this piece of evidence, the learned counsel
F for the appellant contended that this was a fabrication by the
police. Learned counsel contended that if on 10th April, 2003
a detailed search of the house of the accused for finding out
incriminating articles was made and if a detailed panchanama
was prepared and a number of articles were seized, then how
G was it that the police could not find out this bucket on 10th April,
2003 itself and why they waited for recovery for this bucket till
the accused was arrested and brought to Mumbai and made
discovery statement on 14th April, 2003.
H 44. We are not at all convinced by this submission. It is
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1029
MAHARASHTRA [MARKANDEY KATJU, J.]
true that on 10th April, 2003 the flat of the accused was A
searched, but it is quite natural that the investigating officer did
not understand the significance of this bucket even if it was seen
on that day. They could not visualize or imagine the use of the
bucket for splashing or spreading the petrol on the four victims.
They came to know about it only after the accused made the B
disclosure statement, and then they recovered this bucket. The
investigating office, regarding other aspects of the matter
appears to be truthful and sincere. There is no reason to
suspect the bona fide of the investigating officer, and therefore
there is nothing on record from which it can be inferred that this c
bucket was planted by the police to strengthen the case against
the accused.
45. Learned counsel for the appellant submitted that the
appellant was making phone calls to his mother-in-law after
leaving his flat in Mumbai on 10.4.2003. In our opinion nothing D
turns on that. It has come in evidence that Amandeep Singh,
son of the accused, was looking after the business, and if the
accused was going away for 3 to 4 days it was natural for him
to expect calls from, and make calls to, his son Amandeep
Singh and his wife and other relatives, but that was not done. E
46. The learned counsel for the appellant then submitted
that as per the prosecution case, all the four victims were in
one bed room. Two bodies were found on the bed and two
were lying on the ground. The learned counsel contended that F
if all four victims were sleeping on one bed then how were two
bodies found on the ground. He also argued that if petrol was
·splashed on the persons of four victims then why did none of
them wake up before the accused set them to fire. In our
opinion, the presence of the 10 litre can and using the bucket G
clearly show that petrol in large quantity was used. Use of the
bucket further fortifies the prosecution case because if the petrol
was sprinkled from a can it would have taken time to cover all
the bodies of four persons, the bed and the surroundings. But
use of the bucket clearly shows that splashing of petrol could H
1030 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A be achieved within a second and that profuse splashing of
petrol could be achieved by using the bucket and then setting
the petrol on fire would not even require five seconds. Petrol is
a very combustible material. It might be that before the actual
death occurred two persons rolled down from the bed and fell
B on the ground. All this is speculation on which nothing turns.
Since there were no eye witnesses, and since presence of the
accused a few hours before the crime is proved, it was for the
accused to explain all this.
47. Mr. Jaspal Singh submitted that several of the
C circumstances were not put to the accused under Section 313
Cr.P.C. It is true that circumstances which were not put to the
accused in his examination under Section 313 cannot be used
against him, vide State of U.P. vs. Mohd. /kram, J.T. 2011 (6)
SC 650 (para 13). However, we have carefully examined the
D statements of the accused under Section 313 Cr.P.C., and we
find that as many as 168 questions were put to him relating to
all the relevant circumstances. Hence there is no merit in this
submission.
E 48. Mr. Jaspal Singh then submitted that the incised
wounds on the son of the appellant, Amandeep, have not been
•
explained by the prosecution. In this connection we wish to say
that since there were no eye witnesses and the entire
prosecution case rests on circumstantial evidence it is hardly
F for the prosecution to explain these injuries, rather it was for
the appellant, who was present at the time of the incident (as
we have found) to explain them. Moreover, the question of
explaining the injuries ordinarily arises when the injuries are on
an accused, and not on the victim. At any event, the prosecution
G has explained that these were due to the broken glass pieces
found on the spot.
49. Thus, in our opinion the prosecution has been able to
establish the entire chain of circumstances which connect the
accused to the crime. These are :
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1031
MAHARASHTRA [MARKANDEY KATJU, J.]
1. There were strained relations between the accused A
and his family members including his wife. He used
to beat his wife with a leather belt, and was
dictatorial, which attitude was resented by the family
members.
B
2. The accused came to his flat on 9th April, 2003 at
midnight, and was last seen with his wife in his flat
where his children also lived.
3. The accused had quarrel with his wife for five or ten
minutes on the night of the incident. c
4. Ten litre can with petrol residue was found in the
house.
5. The bucket showing positive result in the test
D
conducted by the Chemical Analyzer was found to
have been used for splashing or throwing the petrol.
6. The incident happened in the flat of t~e accused
where there was no one else inside except his
family members. All the deceased were asleep E
when the petrol was poured over them and their
bodies set on fire. They were killed in a most
gruesome, diabolical and cruel manner.
7. It was a pre-planned murder, because the accused
F
had brought sufficient petrol into his flat to kill
everyone. Ordinarily no one keeps so much petrol
in his residential apartment.
8. The accused absconded from the scene of the
offence immediately thereafter, and did not disclose G
to his family members or servants about his
departure.
9. The incident occurred between 4 to 4.30 A.M., and
the accused was the person last seen with his wife H
1032 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A before the incidenf.
10. The accused pointed out the bucket in his
statement under Section 27 of the Evidence Act;
11. The accused was arrested at Kisangadh,
B Madanganj in Ajmer District (Rajasthan) four days
thereafter with huge cash of Rs.7,60,080/-, with
safari dresses, turbans and 24 silver coins etc..
12. He raised false defence of alibi
c 13. There was full opportunity for the accused to kill all
the four persons. No one else was present in the
flat.
Does the Appellant deserves the death sentence ?
D
Death Penalties Worldwide
50. There is a wide divergence in various countries in the
world whether to permit or not permit the death penalty.
According to Amnesty International as per 31.12.2010, 96
E countries have legally abolished the death penalty, 34 countries
have not used it for a considerable period of time while 58
countries have still retained it. Most European countries have
abolished the death penalty . The United Kingdom abolished
.. death penalty in 1973, France in 1981, Germany in 1949, Italy
F · fri 1947 etc. Canada abolished it in 1976. Russia legally
permits death penalty, but has not used it after 1996. Australia
last used the death penalty in 1967, and formally abolished it
in 2010. China has death penalty for a variety of crimes, e.g.
aggravated murder, drug trafficking, large scale corruption etc.
G China executes more people than all the rest of the world put
together. In African and Latin American countries some permit
death penalty while others do not. Most Asian and Arab
countries permit death penalty. As regards the United States
of America, some States permit it while others do not. The US
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1033
MAHARASHTRA [MARKANDEY KATJU, J.]
Supreme Court in Furman vs. Georgia 408 US 238 (1972) held A
the death penalty to be unconstitutional, but this decision was
reversed four years later in Gregg vs. Georgia 428 US 153
(1976) which held that the death penalty is not unconstitutional.
51. The UN General Assembly in 2007-08 passed a non 8
binding resolution calling for a global moratorium of execution
with a. view to eventual abolition. However, 65% of the world
population live in countries like China, India, Indonesia and the
US which continue to apply death penalty, although both India
and Indonesia only use it rarely. Each of these four nations voted C
against the UN General Assembly resolution. Of the 194
independent States in the world that are members of the United
Nations or have UN observer status, 42(22%) maintain the
death penalty both in law and practice, 95 (49%) have abolished
it, 8(4%) retain it for crimes committed in exceptional
circumstances such as in time of war and 49(25%) permit its D
use for ordinary crimes, but have not used it for at least 10 years
and have a policy or established practice of not carrying out
an execution or it is under a moratorium.
52. In the present case, we are not going into the validity E
or otherwise of various theories of criminal penology viz., the
retributive, deterrent, preventive and reformative theories.
Suffice it to say that there are conflicting views and even
conflicting data on this topic (see 'Theories of· Punishm~nt' .
edited by Stanley E. Grupp, 'Punishment' by Ted Honderich, F
'Punishment' by Philip Bean, The Death Penalty' edited by Irwin
Isenberg, 'The Penalty of Death' by Thorsten Sellen, 'The Death
Penalty' by Roger Hood, etc.). We shall, therefore, confine
ourselves to the case before us.
Death Penalty in India G
53. Section 302 provides the punishment for murder. It
stipulates a punishment of death or imprisonment for life and
fine. Once an offender is found by the court to be guilty of the
offence of murder under Section 302, then it has to sentence H
1034 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A the offender to either death or for imprisonment for life. The
court has no power to impose any lesser sentence. ·
54. If there is a reasonable doubt about the guilt of the
offender, the only proper verdict is to acquit him and not to
B impose a sentence lesser than imprisonment for life vide
Santosh vs. State of MP AIR 1975 SC 654.
55. The Law Commission of India in its 35th Report, after
carefully sifting all the materials collected by them, recorded
their views regarding the deterrent effect of capital punishment
C as follows:
"In our view capital punishment does act as a deterrent.
We have already discussed in detail several aspects of
this topic. We state below, very briefly, the main points that
0 have weighed with us in arriving at the conclusion:
(a) Basically, every human being dreads death.
(b) Death, as a penalty, stands on a totally different
level from imprisonment for life or any other
E punishment. The difference is one of quality, and not
merely of degree.
(c) Those who are specifically qualified to express an
opinion on the subject, including particularly the
majority of the replies received from State
F
Governments, Judges, Members of Parliament and
Legislatures and Members of the Bar and police
officers - are definitely of the view that the deterrent
object of capital punishment is achieved in a fair
measure in India.
G
(d) As to conduct of prisoners released from jail (after
undergoing imprisonment for life), it would be
difficult to come to a conclusion, without studies
extending over a long period of years.
H
AJIJSINGH HARNAMSINGH GUJRAL v. STATE OF 1035
MAHARASHTRA [MARKANDEY KATJU, J.]
(e) Whether any other punishment can possess all the A
advantages of capital punishment is a matter of
doubt.
(I) Statistics of othe.r countries are inconclusive on the
subject. If they are not regarded as proving the 8
deterrent effect, neither can they be regarded as
conc!usively disproving it".
56. Prior to 1955, under the old Criminal Procedure Code
1898, Section 367 (5) of the Code stipulated that the Court had
to give reaso.ns, if the sentence of death was not imposed in a C
case of murder. In other words, imposition of death sentence
for the offence of murder was the rule, and if the court.desired
to make a departure from the rule and impose the lesser
punishment of imprisonment for life, :t was required to give
reasons for the same. In 1955, sub- Section 5 of Secticn 367 D
was deleted. The result of 5uch deletion was that the discretion
available to the Court in the matter of the sentence to be
imposed in a case of murder was widened. Several High
Courts also interpreted the consequence of the deletion to
mean that the sentence of life imprisonment was the·normal E
sentence for murder and the sentence of death could be
imposed only if there were aggravating circumstances. The
Code of the Criminal Procedure was further amended in 1973,
making life imprisonment the normal rule. Section 354 (3) of
the new Code provides: F
"When the conviction is for an offence punishable with
death or, in the alternative, imprisonment for life or
imprisonmentfor a term of years, the judgment shall state
reasons for the sentence awarded and, in the case of
sentence of death, the special reasons for such sentence". G
57. Thus in the new Code, the discretion of the judge to
impose death sentence has been narrowed, for the court has
now to provide special reasons for imposing a sentence of
death. It has now made imprisonment for life the rule and death H
1036 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A sentence an exception, in the matter of awarding punishment
for murder.
58. In Bachan Singh vs State of Punjab, AIR 1980 SC
898, a Constitution Bench (5 Judge Bench) of this Court, while
B upholding the constitutional validity~f death sentence observed
(vide para 207):
• For persons convicted of murder life imprisonment is the
rule and death sentence an exception. A real and abiding
concern for the dignity of human life postulates resistance
C to taking a life through law's instrumentality. That ought not
to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed".
59. After Bachan Singh's case (supra) this Court again
D considered the question as to when death sentence should be
imposed in Machhi Singh and others vs State of Punjab AIR
1983 SC 957 (a 3 Judge Bench decision). In that case the
accused had methodically in a pre planned manner murdered
seventeen persons of a village including men, women and
E children. The accused were, awarded death sentences but the
Court held that in order to apply the guidelines of Bachan
Singh's case (supra) inter-alia the following questions should
be asked: (a) Is there something uncommon about the crime
which renders sentence of imprisonment for life inadequate and
called for a death sentence? (b) Are the circumstances of the
F crime such ;that there is no alternative but to impose death
sentence' even after according maximum weightage to the
mitii:iatirlg circumstances which speak in favour of the offender.
The Court held that if the answer to the above is in affirmative,
l,t)'en death sentence is warranted.
G
60. In Macchi Singh's case (supra) thi::; Court further
observed:
"The reasons why the community as a whole does not
endorse the humanistic approach reflected in 'death
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1037
MAHARASHTRA [MARKANDEY KATJU, J.]
sentence-in-no- case' doctrine are not far to seek. In the A
first place, the very humanistic edifice is constructed on the
foundation of ·reverence for life' principle. When a member
of the community violates this very principle by killing
another member, the society may not feel itself bound by
the shackles of this doctrine. Secondly, it has to be realized B
that every member of the community is able to live with
safety without his or her own life being endangered
because of the protective arm of the community and on
account of the rule of law endorsed by it. The very
existence of the rule of law and the fear of being brought c
to book operates as a deterrent to those who have no
scruples in killing others it if suits their ends. Every member
of the community owes a 'debt to the community for this
protection. When ingratitude is shown instead of gratitude
by killing a member of the community which protects the 0
murderer himself from being killed, or when the community
feels that for the sake of self- preservation the killer has to
be killed, the community may well withdraw the protection
by sanctioning the death penalty. But the community will
not do so in every case. It may do so {in rarest of rare
cases) when its collective conscience is so shocked that E
it will expect the holders of the judicial power centre to inflict
death penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death penalty.
The community may entertain such a sentiment when the
crime is viewed fro,m the platform of the motive for, or the F
manner of commission, of the crime, or the anti-social or
abhorrent nature of the crime, such as for instance:
I. ~anner of Commission of Murder
G
When the murder is committed in an extremely
brutal, grotesque,, i;iiabolical, revolting or dastardly
manner so as to arouse intense and extreme
indignation of the community. For instarac~.
1038 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A (i) when tile house of the victim is set aflame with
the end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of
torture or cruelty in order to bring about his or her
death.
B
(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
c
When the murder is committed for~ 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
D 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
E motherland.
Ill. Anti Social or Socially abhorrent nature of the
crime
(a) When murder of a member of a Scheduled
F
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 terrorize such persons and
frighten them into fleeing from a place or in order
G to deprive them of, or make them surrender lands
or benefits conferred on the:m .with ,a view to reverse
past injustices and in order to restore the social
balance. (b) In cases of 'bride burning' and what are
known as 'dowry deaths' or when murder is
H committed in order to remarry for the sake of
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1039
MAHARASHTRA [MARKANDEY KATJU, J.]
extracting dowry once again or to marry another A
woman on account of infatuation.
IV. Magnitude of Crime
When the crime is enormous in proportion. For
instance when multiple murders say of all or almost B
all the members of a family or a large number of
persons of a particular caste, community, or locality,
are committed.
V. Personality of victim of murder c
When the victim of murder is (a) an innocent child
who could not have or has not provided even an
excuse, much less a provocation, for murder (b) a
helpless woman or a person rendered helpless by
old age or infirmity (c) when the victim is a person D
vis-'-. vis whom the murderer is in a position of
domination or trust (d) when the victim is a public
figure generally. loved. and respected by the
community for the services rendered by him and the
murder is committed for political or similar reasons E
other than personal reasons."
61. In Macchi Singh's case (supra) this Court further
observed that in determining the culpability of an accused and
the final decision as to the nature of sentence, a balance sheet F
of the aggravating and mitigating circumstances vis-a-vis the
accused had to be drawn up and in doing so the mitigating
circumstances had to be given full weig~t so that all factors were
considered before the option· is exercised.
G
Some decisions where death penalty has been affirmed
by this Court
62. We may now consider some decisions where death
penalty h1:1s been given by the court holding the crimes to
belong to the 'rarest of the rare cases'. H
1040 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 63. In Sunder Singh vs. State of Uttarancha/, (2010) 10
SCC 611 the accused had gone to the place of occurrence well
prepared carrying jerry cans containing petrol, sword, pistol with
two bullets, which showed his pre-meditation and cold blooded
mind. In the incident five persons lost their lives while the sole
B surviving lady survived with 70% burn injuries. The murder was
committed in a cruel, grotesque and diabolical manner, and
closing of the door of the house was the most foul act by which
the accused actually intended to burn all the persons inside the
room and precisely that happened. There were no mitigating
c circumstances, and hence it was one of the rarest of rare
cases. Consequently, the death sentence was justified.
64. In C. Muniappan vs. State of T. N., (2010) 9 SCC 567
three members of an unlawful assembly engaged in road
blocking (in a public demonstration against a court verdict),
D committed planned murder by burning a bus carrying helpless,
innocent, unarmed, girl students in a totally unprovoked
situation. Three girls died and 20 got burn injuries in the
incident. This Court held that it was one of the rarest of rare
cases, one where the accused would be a menace and threat
E to the harmonious and peaceful co-existence of the society. The
accused deliberately indulged in a planned crime without any
provocation and meticulously executed it, and hence the death
sentence was the most appropriate punishment. There being
aggravating circumstances and no mitigating circumstance
F death sentence imposed on the three members of the unlawful
assembly was upheld.
65. In M. A. Antony vs. State of Kera/a, (2009) 6 SCC 220
all six members of a family were murdered at their residence
G at night. The motive was money, and the absence of the
accused from his own residence during the corresponding
periods i.e on the night of the occurrence till next morning, and
recovery of clothes under Section 27 of Evidence Act 1872,
finger prints on the door steps of the house matching with those
of accused, and recovery of scalp hair of accused from place
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1041
MAHARASHTRA [MARKANDEY KATJU, J.]
of occurrence were damning circumstantial evidence. Having A
regard to the chain of circumstances the death sentence was
upheld.
66. In Jagd/sh vs. State of M. P., (2009) 9 SCC 495 the
assailant murdered his wife and five children (aged 1 to 16 8
years) in his own house. The murders wee particularly horrifying
as the assailant was in a dominant position and a position of
trust as the head of the family. The assailant betraying the trust
and abusing his position assailant murdered his wife and minor
children (youngest being the only son just 1 year old ). This Court C
held that the balance sheet of aggravating and mitigating
circumstances was heavily weighted against the assailant
making it a rarest of rare case. Consequently the award of
death sentence was just.
67. In Prajeet Kumar Singh vs. State of Bihar, (2008) 4 D
sec 434 the accused was a paying guest for a continuous
period of four years in lieu of a sum of Rs. 500/- for food and
meals. He brutally executed three innocent defenseless children
aged.8, 15 and 16, attempted to murder the father (informant)
and mother who survived the attack with multiple injuries. There E
was no provocation or reason for committing this ghastly act
at a time when the children were sleeping. There were several
incised wounds (muscle deep or bone' deep) caused to the
deceased. Considering the brutality, diabolic, inhuman nature
and enormity of the crime (multiple murders and attacks), this F
·Court held that the mindset of the aecused could not be said
to be amenable to any reformation. Therefore it came under
the rarest of rare category where not awarding a death sentence .
would have resulted in failure of justice.
68. In Ram Singh vs. Sonia, (2007) 3 SCC 1 the wife in G
collusion with her husband murdered not only her step brother
and his whole family including three tiny tots of 45 days, 2 and
Y. years 4 years, but also her own father, mother and sister so
as to deprive her father from giving property to her step brother
and his family. The murders were committed in a cruel, pre- H
1042 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A planned and diabolic manner while the victims were sleeping,
without any provocation from the victim's side. It was held that
the accused persons did not possess any basic humanity and
completely lacked the psyche or mindset amenable to any
reformation. It was a revolting and dastardly act, and hence the
B case fell within the category or rarest of rare cases and thus
death sentence was justified.
69. In State of U.P. vs. Satish (2005) 3 SCC 114 the victim
was a six year old girl who lost her life on account of the bestial
acts of the respon.dent who raped and murdered her. The body
C was found in a sugarcane field and blood was oozing from her
private parts and there were marks of pressing on her neck
(suggesting death by strangulation). It was held that this diabolic,
iniquitous, flagitious act reached the lowest level of humanity
when the rape was followed by brutal murder. Hence death
D sentence was justified.
70. In Holiram Bordoli vs. State of Assam (2005) 3 SCC
793 the accused persons were armed with lathis, and various
other weapons. They came to the house of the victim .and
E started pelting stones on the bamboo wall of the said house.
Thereafter, they closed the house from the outside and set the
house on fire. When the son, daughter and the wife of the victim
somehow managed to come out of the house, the accused
persons caught hold of them and threw them into the fire again.
F Thereafter the elder brother who was staying in another house
at some distance from the house of the victim was caught and
dragged to the courtyard of the accused where the accused cut
him into pieces. It was held that there was absence of any strong
motive and the victims did not provoke or contribute to the
G incident. The accused was the leader of the gang, and the
offence was committed in the most barbaric manner to deter
others from challenging the supremacy of the accused in the
village. Held, that no mitigating circumstances to refrain from
imposing death penalty were found.
H 71. In Saibanna vs. State of Kamatka (2005) 4 SCC 165
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1043
MAHARASHTRA [MARKANDEY KATJU, J.]
the accused was out on parole in the case of murder of his first A
wife, in which he was already convicted and sentence to life
imprisonment. He pre-planned the murder of his second wife
and daughter (aged 1 to 1 Y:z years) when the victims were
· sleeping by using a hunting knife (jambia) which is not ordinarily
available in a house. There were no justified reasons for any B
extenuating circumstances in favour of the accused. Putting the
case under the 'rarest of rare case' category death sentence
was upheld.
72. In Karan Singh vs. State of U.P. (2005) 6 SCC 342 C
the two appellants chased the deceased persons ~nd
butchered them with axes and other weapons in a very
dastardly manner. After killing three adults, the appellants
entered their house and killed two children who in no way were
involved with the alleged property dispute with the appellants.
It was held that the sole intention here was to exterminate the D
entire family. Thus, it was a 'rarest of the rare' case.
73. In Gurmeet Singh vs. State of U.P. (2005) 12 SCC
107, appellant G, along with his friend L killed thirteen members
of his family including small kids for a flimsy reason (objection E
of family of G to the visits and stay of L at their house) while
they were asleep. Award of death sentence was held proper.
74. In Sushi/ Murmu vs. State of Jharkhand (2004) 2 SCC
338, the accused sacrificed a child of another person before
Goddess Kali in a most brutal and diabolic manner for personal F
gain and to promote his fortunes by appeasing the deity with
blood. It was held that superstition can not and does not provide
justification for. any killing, much less a planned and deliberate
one.
G
75. In State of Rajasthan VS. Kheraj Ram (2003) 8 sec
224, the accused deliberately planned and executed his two
innocent children, wife and brother-in-law when they were
sleeping at night. There was no remorse for such a gruesome
act which was indicated by the calmness with which he was H
1044 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A smoking "chilam" after the commission of the act. As it was
pre-planned and after the entire chain of events and
circumstances were comprehended, the inevitable conclusion,
was that the accused acted in a most cruel and inhuman
manner and the murder was committed in an extremely brutal,
B grotesque, diabolical, revolting and dastardly manner.
76. In Om Prakash vs. State of Uttaranchal (2003) 1 SCC
648 the accused, a domestic servant killed three innocent
members and attempted to kill the fourth member of the famil~
of his employer in order to take revenge for the decision to
C disQense with his service and to commit robbery. The death
sentence was upheld.
77. In Gurdev Singh vs. State of Punjab, AIR 2003 SC
4187, the appellants, having known that on the next day a
D marriage was to take place in the house of the complainant and
there would be lots of relatives present in her house, came
there on the evening when a feast was going on and started
firing on the innocent persons. Thirteen oersons were killed on
the spot and eight others were seriously injured. The appellants
E thereafter went to another place and killed the father and brother
of PW 15. Out of the thirteen persons, one of them was a seven-
year old child, three others had ages ranging between 15 and
17 years. The death sentence was held justified.
78. In Praveen Kumar vs. State of Kamataka (2003) 12
F sec 199 the accused was accommodated by one of the
victims (who was his aunt) despite her large family, and she
gave him an opportunity to make an honest living as a tailor.
The accused committed the pre-planned, cold-blooded murders
of relatives and well wishers (including one young child) while
G they were sleeping. After the commission of the crime the
accused absconded from judicial custody for nearly four years,
which indicates the fact that the possibility of any remorse are
rehabilitation is nil. Held the extreme penalty of death was
justified.
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1045
MAHARASHTRA [MARKANDEY KATJU, J.]
79. In Suresh vs. State of U. P. AIR 2001 SC 1344 the A
brutal murder of one of the accused's brother and his family
members including minor children at night when they were fast
asleep with axe and chopper by cutting their skulls and necks
for a piece of land was considered to be a grotesque &
diabolical act, where any other punishment than the death B
penalty was unjustified.
BO. In Molai vs. State of M.P. AIR 2000 SC 177, the Jail
officer sent to his quarter a guard and a prisoner to work in the
house. The 16 year old daughter of the said officer was at that C
time alone in the quarter and was preparing for her class 10th
examination. Taking advantage of her loneliness, both the guard
and the prisoner raped her, strangulated her and stabbed her.
Thereafter with an intention to hide their crime they threw her
dead body into a septic tank. This Court held that death was a
fit punishment. D
81. In Ramdeo Chauhan vs. State of Assam AIR 2000
SC 2679, the accused committed a pre-planned cold-blooded
brutal murder of four inmates of a house including two helpless
women and a child aged 2 'h years during their sleep with a E
motive to commit theft. The accused also attacked with a spade
another inmate of the house, an old woman, and a neighbour
'when they entered the house. The Court held that the young age
(22 years) of the accused at the time of committing the crime
was not a mitigating circumstance, and death penalty was a F ·
just and proper punishment.
82. In Narayan Chetanram Chaudhary vs. State of
Mahrashtra AIR 2000 SC 3352 there was a pre-planned,
calculated, cold-blooded murder of five women, including one
pregnant woman and two children aged 1 'h years and 2 'h G
years, all inmates of a house, in order to wipe out all evidence
of robbery and theft committed by two accused in the house at
a time when male members of the house were out. It was held
that the young age (20-22 years) of the accused persons cannot
serve as a mitigating circumstance. H
1046 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 83. In State of U.P. vs. Dharrnendra Singh AIR 1999 SC
3789, 5 persons were murdered, an old man of 75 years, a
woman aged 32 years, two boys aged 12 years and a girl aged
15 years, at night when they were asleep by inflicting multiple
injuries to wreak vengeance. This Court held that the ghastly
B and barbaric murder can be termed as rarest of the rare case
and death penalty was just for such a diabolic act.
84. In Ronny vs. State of Mahrashtra AIR 1998 SC 1251,
the accused was the nephew of the deceased, and because
C of the relationship he gained access inside the house for
himself and his friends. The victims were unarmed and the
crime was committed for gain i.e. to rob the valuables of the
deceased family. The accused then killed all three members
and then committed rape on the lady who was the wife of his
maternal uncle and as old as his mother. Considering the facts
D of the case this Court held that it cannot be said that the
offences were committed under the influence of extreme mental
or emotional disturbance as everything was done in a
preplanned way, and hence death penalty was upheld.
E 85. In Surja Ram vs. State of Rajasthan AIR 1997 SC 18,
the appellant murdered his bother, his two minor sons and an
aged aunt by cutting their neck with a kassi while they were all
sleeping. He also attempted to murder his brother's wife and
daughter but they survived with serious injuries. The dispute
. F between them only related to putting a barbed fence on a
portion of their residential complex. The death sentence was
held to be justified.
86. In Umashankar Panda vs. State of M.P AIR 1996 SC
3011, the accused and his wife and five children took dinner
G together and went to bed in the same room. At midnight the
. accused started to attack his wife with a sword and on hearing
the shouting the children woke up. On being questioned by the
wife as to why he was trying kill her he did not give an answer
but rather inflicted on her head, hand and foot more injuries.
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1047
MAHARASHTRA [MARKANDEY KATJU, J.]
· When the eldest daughter intervened, he did not spare her A
either. The wife and two children died but three others escaped
death. On being asked, the accused confessed to a witness
that he had slaughtered all of them but he did not know now
three others had escaped the death. This attitude of the
accused clearly showed that he had purposely caused injuries B
to all his family members in order to liquidate them and was
not happy that even the three children had escaped from death.
There was no provocation or other circumstances to suggest
that there was any quarrel between the accused and his wife
or the children. The way in which the crime was executed c
showed that it was pre-meditated and not on account of sudden
provocation.
87. In Ravji vs. State of Rajasthan AIR 1996 SC 787, the
accused in a cool and calculated manner wanted to kill his wife
and three minor children while they were asleep. When his D
mother intervened he injured her with an axe with an intention
to kill her. He then silently went to the neighbour's house and
attempted to kill his neighbour's wife who was also asleep.
When his neighbour intervened he killed him too and fled from
the place of occurrence and tried to hide himself. The accused E
had a solemn duty to protect his family members and maintain
them but he betrayed the trust reposed in him !n a very cruel
and calculated manner without any provocation whatsoever.
l;ience the death penalty had to be upheld.
F
88. In Suresh Chandra Bahri vs. State of Bihar AIR 1994
SC 2420, the wife of accused wanted to sell her house and
migrate to USA with her children against the wishes of her
~
usband. Hence, the accused killed his wife after torturing her
y truncating her body into two parts in a devilish style evincing G
otal depravity only to gain control over the property. Further he
killed his own two innocent children making them believe that
they were being taken on a pleasure triP. to the farm, killing them
by inflicting severe injuries on their neck and other parts of the
body and throwing them in the river.
H
1048 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A 89. In Bheru Singh vs. State of Rajasthan (1994) 2 SCC
467, the accused slaughtered his own wife and five children for
no fault of theirs but only on mere suspicion that his wife was
having an affair. This deserved a death sentence.
90. In Sevaka Perumal vs. State of T. N. AIR 1991 SC
8
1463, the accused indulged in illegal business of purchase and
sale of "ganja". T~ey conspired to entice innocent boys from
affluent families, took them to far flung places where the dead
body could not be identified. Letters were written to the parents
C purporting to be by the deceased to delude the parents that the
missing boys would one day come home alive and that they
should not give any report to the police so that the crime would
go undetected. Four murders in a span of five years were
committed for gain in cold-blooded, premeditated and planned
way. This Court held that.any other penalty except the death
D penalty would amount to a miscarriage of justice.
91. In Sudam .@ Rahul Kaniram Jadhav vs. State of
Maharashtra (Criminal Appeal Nos. 185-186 of 2011 decided
on 4.7. 2011 this Court held that where an accused was found
E guilty of committing murEler of four children and a woman with
whom he was living with as husband a(ld wife, the death penalty
was justified. In that decision Hon'ble C. K. Prasad, J.
observed:
·"Now we proceed to consider as to whether the case in
F hand falls Jn the category of rarest of the rarest cases. The
appellant had chosen to kill the woman with whom he lived
as husband and wife, a woman who was in deep love with
him and willing to pay Rs. 15,000/- to PW. 6, Muktabai, to
save the relationship. Appellant had not only killed the two
G children of the deceased who were born from the first
husband but also killed his own two children. He projected
himself to be single and changed hL; name to dupe a
woman and in fact succeeded in marrying her. However,
when the truth came to light, he killed five p~rsons. The
H r.nanner in which the crime has been committed clearly
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1049
MAHARASHTRA [MARKANDEY KATJU, J.]
shows it to be premeditated and well planned. It seems A
that all the four children and the woman were brought near·
the Pod in a planned manner, strangulated to death and
dead bodies of the children thrown in the pond to conceal
the crime. He not only killed Anita but crushed her head to
avoid identification. Killing four children, tying the dead B
bodies in bundles of two each and throwing them in the
pond would not have belin possible, had the appellant not
meticulously planned the murders. It shows that the crime
has been committed in a beastly, extremely brutal, barbaric
and grotesque manner. It has resulted in intense and c
extreme indignation of the community and shocked the
collective conscience of the society. We .are of the opinion
that the appellant is a menace to the society who cannot
be reformed. Lesser punishment in our opinion is fraught
with danger as it may expose the society. to peril once 0
again at the hands of tile appellant. We are of the opinion ·
that the case in hand falls in the category of the rarest of
the rare cases and the trial court did not err in awarding
the death sentence and the High Court confirming the
same."
E
92. In Ranjeet Singh vs. State of Rajasthan (1988) 1 SCC
633, the entire family was murdered when they were fast asleep
and this Court observed as under:
"With regard to the sentence of death, there cannot be two F
opinions. The manner in which the entire family was
eliminated indicates that the offence was deliberate and
diabolical. It was pre-determined and cold blooded. It was
absolutely devilish and dastardly".
93. In Atbirvs. Govt. of NCT Delhi AIR 2010 SC 3477 this G
Court confirmed the death sentence given to the appellant who
had committed multiple murders of members of his family, who
are none other than step-mother, brother and sister in order to
inherit the entire property of his father. The appellant, in
consultation with his mother planned to eliminate the entire H
1050 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A family of his step-mother, and with this intention went to her
·house, closed the doors and mercilessly inflicted 37 knife
injuries on the vital parts of the victims' bodies.
94. In Surendra Ko/i vs. State of U.P. AIR 2011 SC 970,
8 the accused was a serial killer who used to lure small girls
inside a house, strangulate them, have sex with their bodies,
cut off their body parts, and eat them. This Court held that no
mercy could be shown to his horrifying and barbaric deeds, and
upheld the death sentence.
C Present Case
95. Having considered the law on the point and several
decisions of this Court where death sentence was affirmed, we
may now consider whether this case deserves the death
0 sentence. This Court held in Bachan Singh vs. State of Punjab
·(Supra) that death sentence should only be given in the rarest
of rare cases. In our opinion this is one of such cases. Burning
living persons to death is a horrible act which causes
excruciating pain to the victim, and this could not have been
E unknown to the appellant.
96. In our opinion, a person like the appellant who instead
of doing his duty of protecting his family kills them in such a
cruel and barbaric manner cannot be reformed or rehabilitated.
The balance sheet is heavily against him and accordingly we
F uphold the death sentence awarded to him.
97. In the present case the accused did not act on any spur
of the moment provocation. It is no doubt that a quarrel occurred
between him and his wife at midnight, but the fact that he had
G brought a large quantity of petrol into his residential apartment
shows that he had pre-planned the diabolical and gruesome
murder in a dastardly manne_r.
98. In our opinion a distinction has to be drawn between
ordinary murders and murders which are gruesome, ghastly or
H horrendous. While life sentence should be given in the former,
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1051
MAHARASHTRA [MARKANDEY KATJU, J.]
the latter belongs to the category of rarest of rare cases, and A
hence death sentence should be given.
99. This distinction has been clarified by a recent judgment
of my learned brother Hon'ble C. K. Prasad, J. in Mohd.
Mannan @ Abdul Mannan vs. State of Bihar (2011) 5 SCC B
317 (vide paras 23 and 24), wherein it has been observed:
"23. It is trite that death sentence can be inflicted only in a
case which comes within the category of the rarest of rare
cases but there is no hard-and-fast rule and parameter to C
decide this vexed issue. This Court had the occasion to
consider the cases which can be termed as the rarest of
rare cases and although certain comprehensive guidelines
have been laid to adjudge this issue but no hard-and-fast
formula ~f universal application has been laid down in this D
regard. Crimes are committed in so different and distinct
circumstances that it is impossible to lay down
comprehensive guidelines to decide this issue.
Nevertheless it is widely accepted that in deciding this
question the number of persons killed is not decisive. E
24. Further, the crime being brutal and heinous itself does
not turn the scale towards the death sentence. When the
crime is committed in an extremely brutal, grotesque,
. diabolical, revolting or dastardly manner so as to arouse F
intense and extreme indignation of the community and
when collective conscience of the community is petrified,
one has to lean towards the death sentence. But this is not
the end. If these factors are present the court has to see
as to whether the accused is a menace to the society and
would continue to be so, threatening its peaceful and G
harmonious coexistence. The court has to further enquire
and believe that the accused condemned cannot be
reformed or rehabilitated and shall continue with the
criminal acts. In this way a balance sheet is to be prepared
while considering the imposition of penalty of death of H
1052 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A aggravating and mitigating circumstances and a just
balance is to be struck. So long the death sentence is
provided in the statute and when collective conscience of
the community is petrified, it is expected that the holders
of judicial power do not stammer dehors their personal
B opinion and inflict death penalty. These are the broad
guidelines which this Court had laid down for imposition
of the death penalty".
We fully agree with the above view as it has clarified the
C meaning of the expression 'rarest of the rare cases'. To take a
hypothetical case, supposing 'A' murders 'B' over a land
dispute, this may be a case of ordinary murder deserving life
sentence. However, if in addition to murdering 'B', 'A' goes to
the house of 'B' and wipes out his entire family, then this will
come in the category of rarest of the rare cases' deserving
D death sentence. The expression 'rarest of the rare cases'
cannot, of course, be defined with complete exactitude.
However, the broad guidelines in this connection have been
explained by various decisions of this Court. As explained
therein, the accused deserves death penalty where the murder
E was grotesque, diabolical, revolting or of a dastardly manner
so as to arouse intense and extreme indignation of the
community, and when the collective conscience of the
community is petrified, or outraged. It has also to be seen
whether the accused is a menace to society and continues to
F do so, threatening its peaceful and harmonious coexistence.
The Court has to further enquire ·and believe that the accused
cannot be reformed or rehabilitated and shall continue with his
criminal acts. Thus a balance sheet is to be prepared in
considering the imposition of death penalty of the aggravating
G and mitigating circumstances, and a just balance is to be struck.
100. We fully agree with the above view and we are of the
opinion that all the requisites for death penalty as noted above
are satisfied in the present case for the reasons given above.
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1053
MAHARASHTRA [MARKANDEY KATJU, J.]
Abolition of Death Sentence A
101. It is only the legislature which can abolish the death
penalty and not the courts. As long as the death penalty exists
in the statute book it has to be imposed in some cases,
otherwise it will tantamount to repeal of the death penalty by 8
the judiciary. It is not for the judiciary to repeal or amend the
law, as that is in the domain of the legislature vide Common
Cause VS. Union of India 2008(5) sec 511 (vide paragraphs
25 to 27). The very fact that it has been held that death penalty
should be given only in the rarest of the rare cases means that C
in some cases it should be given and not that it should never
be given. As to when it has to be given, the broad guidelines
in this connection have been laid down in Macchi Singh's case
(supra) which has been followed in several decisions referred
to above. This Court has also held that honour killing vide
Bhagwan Dass vs. State (NCT) of Delhi AIR 2011 SC 1863, D
fake encounter by the police vide Prakash Kadam vs. R. V.
Gupta AIR 2011 SC 1945 and dowry death vide Satya
Narayan Tiwari vs. State of U.P. (2010) 13 SCC 689 comes
within the category of 'rarest of rare cases'. Hired killing would
also ordinarily come within this category. E
102. In view of the foregoing, there is no merit in this
appeal which is accordingly dismissed.
103.Before parting with this case, we would like to mention
that we are not dealing with mercy petitions under Article 72 F
. lnd 161 of the Constitution, but are confining ourselves to the
:iuestion of imposing death penalty on the judicial side.
\J.J. Appeal dismissed.
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