Holding

The Supreme Court upheld the death sentence, finding the offence to be a "rarest of rare" case with no mitigating circumstances and confirming that the trial court complied with Sections 235(2) and 354(3) of the CrPC.

Summary

Jai Kumar was convicted for the brutal murder of his pregnant sister‑in‑law and his eight‑year‑old niece, whom he killed after attempting to rape the former and then dismembering and displaying the bodies. The Sessions Court sentenced him to death under IPC 302 (with a concurrent seven‑year term under IPC 201), a sentence affirmed by the Madhya Pradesh High Court. On appeal, the Supreme Court examined whether the death penalty was warranted under the "rarest of rare" doctrine and whether the trial court complied with the mandatory hearing provisions of Sections 235(2) and 354(3) of the CrPC. The Court held that the crime’s extreme cruelty, the victims’ helpless status, and the absence of any mitigating factors rendered the case a "rarest of rare" situation, justifying the death sentence. It also found no infirmity in the trial court’s compliance with the procedural requirements, as both parties were heard and no substantive material was omitted. Consequently, the appeal was dismissed and the death sentence upheld.

Issues considered

The appropriateness of the death penalty under the "rarest of rare" doctrine for the murders committed by the appellant.
Whether the trial court complied with Section 235(2) of the Code of Criminal Procedure, 1973, by providing the accused a proper opportunity to be heard on the question of sentence.
Whether there was any violation of Section 354(3) of the Code of Criminal Procedure, 1973, in the sentencing process.
The relevance of the appellant’s age (22 years) and lack of prior criminal record as mitigating factors.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 354(3)
Indian Penal Code, 1860s. 201, s. 302

Subjects

murderrape attemptdeath penaltyrarest of rare doctrinesentencing hearingSection 235(2) CrPCmitigating circumstancescapital punishmentIPC 302IPC 201

Judgment

A JAI KUMAR
v.
• STATE OF M.P.

MAY 11, 1999

B [DR. A.S. ANAND, CJ., M. SRINIVASAN AND
UMESH C. BANERJEE, JJ.]

Indian Penal Code, 1860-Section 302 read with Section 201-
Appellant murdering his pregnant sister-in-law aged 30 years-When faced
C with resistance while attempting to rape her, severed her head from the
body-Thereafter hanging her hand being tied on a branch with hair and
putting the body on the trunk of a tree-Appellant also murdering his niece
aged 8 years being witness to the gruesome murder of her mother-Mother
of the accused giving evidence about the bad character and the reputation
D of the accused in the locality-Award of death sentence by the Sessions
Judge and confirmed by the Division Bench of the High Court-Appeal
against-Held, the facts established the depravity and criminality of the
accused in no uncertain terms-Murder was cold-blooded and brutal without
any provocation-Accused being 22 years of age cannot be said to be a
mitigating factor-Rarest of the rare cases in which there are no extenuating
E or mitigating circumstances-Conviction and sentence upheld-Code of
Criminal Procedure, 1973-Section 354(3).

Code of Criminal Procedure, 1973--Section 235(2)-Requirement of
hearing of an accused on the question of sentence-Compliance of-Both
parties heard and none wanted to give any documentary or oral evidence
F with regard to sentence-Defence lawyer merely pleading two facts to be
considered in the matter for award of punishment viz. the accused being 22
years of age and no other past criminal record, both of which were duly
considered by the Sessions Judge-Held, no infirmity in complying with
Section 235(2).
\
G
On the night of 7th January, 1997, the appellant murdered D his
sister-in-law aged 30 years who was at that time at an advanced stage of
pregnancy and R, his niece aged 8 years. He first bolted from outside his
mother's room and thereafter removed certain bricks from the wall in order
to facilitate his entry into the room where D and R were sleeping. The
H appellant attempted to rape D and when faced with resistance murdered her
426
I
J,

JAi KUMAR v. STATE OF M.P. 427
by severing her head from the body by inflicting blows with a "kulhadi". The A
appellant then took R. who was witness to the gruesome murder of her
mother, to a jungle and killed her by axe blows and buried her in the sand
covered with stones. The appellant thereafter came back to his house and
carried the body of D tied in a cloth, to the jungle and hung the head being
tied on a branch with the hair and put the body on the trunk of a tree.
B
The Sessions Judge awarded death sentence to the appellant which was
confirmed by the Division Bench of the High Court. Hence this appeal.

On behalf of the appellant, it was contended that the sentence ran
counter to the basic concept of law and justice of the situation and that there C
was non-compliance of Sections 235(2) and 354(3) of the Code of Criminal
Procedure. It was further contended that there was a violation of the mandatory
legal requirement of an effective and substantial opportunity to be given to
the accused for being heard on the question of sentence. It was also averred
that the court has to take into account certain other factors in deciding upon
the appropriate sentence like the education, home life, social adjustment, and D
the emotional and mental conditions of the offender.

Dismissing the appeal, this Court

HELD: 1.1. The facts of the case establish the depravity and criminality
of the accused in no uncertain terms. The savage nature of the crime has E
shocked the judicial conscience. The murder was cold-blooded and brutal
without any provocation. It certainly makes it a rarest of the rare cases in
which there are no extenuating or mitigating circumstances to interfere
with the conviction and sentence.1441-C-D-G)

1.2. In the matter in issue there are no mitigating circumstances or F
any balancing factor so as to strike a balance. On the contrary the
aggravating situations are galore to support the finding of the Sessions
Judge as confirmed by the High Court. The age of the accused being 22
years cannot, in the factual matrix of the matter under consideration, be said
to be a mitigating factor. Accused is of 22 years of age while the victim was G
aged 30 years and at the time of the unfortunate death, she was under
pregnancy between 22 to 30 weeks- the ot'her victim was an innocent girl
- child of 8 years : the murders were cold blooded while two victims were
in helpless and hapless situation. No amount of perversity would prompt a
person to break open the door by removing the bricks from the wall and
commit such gruesome murders on failure to satisfy the lust. The evidence H
428 SUPREME COURT REPORTS (1999] 3 S.C.R.

A of the mother of the accused regarding the murders and the bad character
and the reputation of the accused becomes material and it is on this score
that it cannot be held that there are some mitigating circumstances and
there is likelihood of the accused being reformed or rehabilitated.[440-B-GJ

Kamta Tiwari v. State of M.P. (1996) Cri. Law Journal 4158; Machhi
B Singh v. State of Punjab, AIR (1983) SC 957 and Bachan Singh v. State of
Punjab, [1980] 2 SCC 684, referred to.

2. There is no infirmity under Section 235(2) or under Section 354(3)
of the Code of Criminal Procedure. Both the parties were heard and none
of the parties wanted to give any documentary or oral evidence with regard
C to sentence. But the factum of submissions and considerations thereof leads
to a definite conclusion that there has been no miscarriage of justice. The
statute has engrafted in the statute book the provisions of Section 235(2) so
as to see that proper appreciation of the evidence take place and proper
opportunity of hearing as regards punishment be afforded, but if there is no
D taker of such an opportunity in spite of there being lawyers appearing for
the accused as well, question offurther adjournment of the matter would not
arise. It is true that the obligation is not discharged by putting formal
questions to the accused-The Judge is supposed to elicit materials from the
accused which will have a bearing on the question of sentence. There was
in fact such a genuine attempt by t\le trial court to elicit materials- but as
E the record depicts there was no taker of this opportunity. The judgment was
adjourned and the lawyer was asked - and prompt came the reply that the
sentence ough_t to be considered by reason of the age and no past record:
Both these aspects have duly been considered by the Sessions Judge and
there is no infirmity therein. [441-B-C; 437-G-H; 438-A-DJ
F Muniappan v. State of Tamil Nadu, [19811 3 SCC 11; Santa Singh v.
State of Punjab, (1976) 4 SCC 190 and Allaudin Mian v. State of Bihar,
[1989) 3 sec 5, referred to.

3. Section 302 of the Penal Code authorises the Court to punish the
G offender of murder with death or imprisonment for life - the statute therefore
has provided a discretion to the court to sentence the offender either with
death or with imprisonment for life : Obviously, a serious decision and a
heavy burden is imposed on the Court. This discretion shall have to be
exercised in a manner and in consonance with the concept of law so as to
sub-serve the ends of justice and it is on this aspect of the matter that this
H Court in no uncertain terms laid down that award of death sentence though
~-

.JAI KUMAR v. STATE OF M.P. [BANERJEE, J.] 429

within the ambit of jurisdiction of the court, does not clothe the courts to A
exercise the same in a manner indiscriminate. It is only in the rarest of the
rare cases that this discretion as regards capital punishment-ought to be
exercised. (434-E-G)

4. The law courts have been rather consistent in their approach that
a reasonable proportion has to be maintained between the seriousness of the B
crime and the punishment. While it is true that a sentence disproportionately
severe, ought not to be passed but that does not even clothe the law courts
with an option to award the sentence which would be manifestly inadequate
having due regard to the nature of the offence since an inadequate sentence
would fail to produce a deterrent effect on the society at large. Punishments C
are awarded not because of the fact that it has to be an eye for an eye or a
tooth for tooth, rather having its due impact on the society: while undue
harshness is not required but inadequate punishment may lead to sufferance
of the community at large. [435-G-H; 436-A]

Dhananjoy Chatterjee alias Dhana v. State of Went Bengal, [1994) 2 D
sec 220, relied on.
CRIMINAL APP ELLA TE JURISDICTION : Criminal Appeal No.
548of1999.

From the Judgment and Order dated I 7.3.98 of the Madhya Pradesh E
High Court in Cr!. A.No. 2192of1997.

S. Muralidhar, (A.C.) for the Appellant.

Uma Nath Singh and Naveen Singh for the Respondent.
F
The Judgment of the Court was delivered by

BANERJEE, J. Leave granted.

This appeal by the grant of special leave is directed against the order
of confirmation of death sentence by the Division Bench of the High Court G
of Madhya Pradesh at Jabalpur. Since the appeal pertains to confirmation of
death sentence by the High Court and the submission in support of the
_ appeal is restricted to the question of sentence, it would be convenient to
note at this juncture that it is only in the rarest of rare cases that this
punishment is to be inflicted and it is on this score that Mr. Muralidh~r, the
amicus curiae appointed in the matter with his usual ability strongly contended H
430 SUPREME COURT REPORTS [1999] 3 S.C.R.

A that the punishment awarded by the Sessions Judge and as confirmed by the
High Court, runs counter to the basic concept of law and justice of the
situation. As a part of the submission, Mr. Muralidhar placed strong reliance
on Sections 235 (2) and 354 (3) of the Code of Criminal Procedure. But before
consideration of the submissions on legal issue· as above, it would be
convenient to advert to the factual matrix of the matter in issue, in order to
B assess the situation as to whether the matter in issue in fact falls squarely
and evenly on the category of rarest of the rare cases.

The factual score depicts that the appellant was charged under Section
302 read with Section 201 for committing murder of deceased Dev Vati, aged
C 30 years and a girl child Renu aged 8 years, on the night of 7th January, 1997.
Both the lady and the girl child, however, were related to the accused, being
the sister-in-law (brother's wife) and the niece respectively. Apart from the
evidence tendered before the court by the mother and the nephew respectively
of the accused, the latter himself in his examination under Section 313 of the
Code categorically stated and admitted the factum of murder - the situation,
D therefore, is that the accused admits of murdering his sister-in-law and the
niece- and the reason put forth- the sister-in-law has not been giving him
enough food and as such on being enraged therewith, this offence was
committed - but what about the child? Significantly there is no whisper
pertaining thereto - is it because that the child witnessed the gruesome
E murder of the mother and as such the child shall also have to be eliminated
- may be, but let us not proceed on any hypothesis, the fact remains however,
that both the Sessions Judge and the High Court disbelieved this version of
the accused.

The mother in her evidence in no uncertain terms stated that there was
F an attempt to commit rape on the sister-in-law and by reason of resistance,
the rapist committed the offence and on the same being put forth to the
accused - the answer comes that all the children of the sister-in-law were
illegitimate children and her visit to her father's place and affinity with friends
in that area had brought about this situation of having two children:
G Incidentally, however, the lady murdered was at an advanced stage pregnancy
at the time of her death.

The evidence on record depicts that on the fateful night of 7th January,
1997, at village Rakri Tola, Tikuri, District Rewa, Madhya Pradesh, the accused
entered the house and bolted from outside the mother's room and thereafter
H removed certain bricks from the wall and 'choukat' thus facilitating the entry
JAi KUMAR v. STATE OF M.P. [BANERJEE, J.] 431

into the room where the deceased sister-in-law was sleeping with the child A
and had to face this gruesome death in the hands of the brother-in-law. The

- evidence on record depicts that the accused committed the murder of his
sister-in-law at about 11.00 p.m. by Parsual blows and then kulhadi (tanga)
blows on her neck severing her head from the body and taking away her 8
years old daughter Renu and killing her in a jungle by Axe blows said to be
by offering sacrifice to Mahuva Maharaj and burying her in the sand ctivered B
with stones and it is thereafter that the accused comes back home and carry
the body of the deceased sister-in-law tied in a cloth to the jungle and hung
the head being tied on a branch .with the hairs and put the body, on the trunk
of the Mahua tree.

As regards the injuries suffered, P.W.11, Dr. RR Misra stated:-
c
(!) Rigor mortis was present over the body and clotted blood was
present all over the body. Head was separated from the body. Whole
face, head and hair were stained with blood. Clothes, saree, blouse,
petticoat were also stained with blood. Left eye was damaged. Lacerated D
wound at the bridge of nose size 3x2x I cm. Length, width and depth
and bone of nose fractures.

(2) Incised wound on occipital region of head, size was 13 cm. x
4 cm. x 4 cm. length, width and depth,. Bone at the place of injury was
cut, brain matter was visible at that place and damaged.
E
(3) Incised wound on upper part of neck. Head is separated from
the body. All structure of neck, muscles, veins were cut due to this
injury.

(4) Incised wound on middle finger of left, ring finger and index
finger and injury of size was 3 x2x I cm. was present on last vein. F
2. All the above mentioned injuries appeared to be caused with hard
and blunt object."

On the same date, the same constable had brought before me the dead
body of deceased Renu, daughter of Guiab Prasad, aged 7 years for G
the post-mortem. I started post-mortem on the dead body at 2.30 p.m.
and found following in the examination:-

External examination:-

Rigor mortis was present all over the body and dust particles were H
432 SUPREME COURT REPORTS [1999] 3 S.C.R.

A attached all over the body, clotted blood was present all over the
body. All the clothes were blood stained.

(1) Incised wound on front of chest on right side, size was 4.5 cm. x
l-l/2xt cm.

B (2) Incised wound on left side of neck, middle part of back of neck
• size was 7 cm. x 6 cm. x 2 cm. At the place of wound muscles, and
veins were cut. Vertebra of neck 3rd and 4th were fractured.

(3) Incised wound on left side of cheek. Size was 6x3x3 cm. and
mandible bone was fractured and it was in the left side.
c (4) Incised wound on right index finger and middle finger. Size was
2x Ix 1 cm. Middle finger of left hand was found cut and separated
means upper portion was separate."

It is on this evidentiary backdrop that the learned Sessions Judge
D thought it fit to pass death sentence in the matter and which stands confirmed
by the High Court and it is on this perspective that the basic issue of
punishment ought to be assessed.

Turning attention on to the issue as regards non-compliance of Section
235 (2) of the Code Mr. Muralidhar contended that there has been a violation
E of the mandatory legal requirement of an effective and substantial opportunity
to be given to the accused for being heard on the question of sentence. It
has been submitted that requirement of hearing of the accused on the question
of sentence, upon a plain reading of Sections 235(2) is not an empty formality
but a mandatory requirement and in support of his contention placed strong
reliance on the decision of this Court in the case of Muniappan v. State of
F Tamil Nadu, [1981] 3 SCC 11, wherein this Court at page 13 observed:-

"We are also not satisfied that the learned Session's Judge made any
serious effort to elicit from the accused what he wanted to say on the
question of sentence. All that the learned Judge says is that "when
the accused was asked on the question of sentence, he did not say
G
anything". The obligation to hear the accused on the question of
sentence which is imposed by Section 235 (2) of the Cr.P.C. is not
discharged by putting a formal question to the accused as to what he
has to say on the question of sentence. The Judge must make a
genuine effort to elicit from the accused all information which will
H eventually bear on the question of sentence... question which the
JAi KUMAR v. STATE OF M.P. [BANERJEE, .I.] 433
Judge can put to the accused under section 235 (2) and the answers A
which the accused makes to those questions are beyond the narrow
constraints of the Evidence Act. The co.urt, while on the question of

- sentence is in an altogether different domain in which facts and
factors which operate are of an entirely different order than those
which come into play on the question of conviction"
B
Mr. Muralidhar contended that there are certain other factors which
shall also have to be taken into account by the Court in deciding upon the
appropriate sentence to wit: his education, his home life, social adjustments
and the emotional and mental conditions of the offender and it is in this
context reliance was placed on the decision of this Court in Santa Singh v. C
State of Punjab, [ 1976] 4 SCC 190, wherein this Court observed:-

"The reason is that a proper sentence is the amalgam of many factors
such as the nature of the offence, the circumstances - extenuating or
aggravating - of the offence, the prior criminal record, if any, of the
offender, the age of the offender, the record of the offender, as to D
employment, the background of the offender with reference to
education, home life, sobriety and social adjustment, the emotional
and mental condition of 'the offender', the prospects for the
rehabilitation of the offender, the possibility of return of the offender
to a normal life in the community, the possibility of treatment or
training of the offender, the possibility that the sentence may serve E
as a deterrent to crime by the offender or by others and the current
community need, if any, for such a deterrent in respect to the particular
type of offence. These are factors which have to be taken into account
by the court in deciding upon the appropriate sentence and therefore,
the legislature felt that, for this purpose, a separate stage should be F
provided after conviction when the court can hear the accused in
regard to these factors bearing on sentence and then pass proper
sentence on the accused. Hence, the new provision in Section 235(2)."

Mr. Muralidhar contended further that the constitutional basis for
recognising this inviolable right of the accused has also been very lucidly G
elucidated by this Court in Allaudin Mian v. State of Bihar, [ 1989] 3 SCC 5
wherein this Court at page 20 of the report observed:

"The requirement of hearing the accused is intended to satisfy the
rule of natural justice. It is a fundamental requirement of fair play that
the accused who was hither to concentrating on the prosecution H
434 SUPREME COURT REPORTS [1999] 3 S.C.R.

A evidence on the question of guilt should, on being found guii,y be
asked if he has anything to say or any evidence to tender on the
question of sentence. This is all the more necessary since the courts

B
are generally required to make the choice from a wide range of discretion
in the matter of sentencing. To assist the court in determining the
correct sentence to be imposed the legislature introduced sub-section
(2) to section 235. The said provision therefore satisfies a dual purpose;
-
it satisfies the rule of natural justice .. And at the same time helps the
court to choose the sentence to be awarded .. There can be no doubt
that the provision is salutary and must be strictly followed. It is
clearly mandatory and should n~t be treated as a mere formality ... In
c case of life or death .. The presiding officer must show a high degree
of concern for the statutory right of the accused and should not treat
it as a mere formality ... We think as a general rule the trial court should
after recording the conviction adjourn the matter to a future date and
call upon the prosecution as well as the defence to place the relevant
material bearing on the question of sentence before it and thereafter
D pronounce the sentence to be imposed on the offender .... "

Before launching a discussion on the merits of the submissions, it
would be convenient to note the true purport of Section 302 for ascertainment
of the legislative perspective.
E
·Section 302 of the Indian Penal Code authorises the Court to punish the
offender of murder with death or imprisonment for life - the statute therefore
has provided a discretion to the court to sentence the offender either with
death or with imprisonment for life: Obviously, a serious decision and a heavy
burden imposed on the Court -This discretion conferred however, shall have
F to be thus exercised in a manner and in consonance with the concept of law
so as to sub-serve the ends of justice and it is on this aspect of the matter
that in a long catena of cases this Court in no uncertain terms laid down that
award of death sentence though within the ambit of jurisdiction of the courts,
but that does not clothe the courts to exercise the same in a manner
G indiscriminate - This Court has been candid enough to record on more
occasions than one that it is only in the rarest of the rare cases that this
discretion as regards capital punishment ought to be exercised. Ours is a
civilised society - tooth for a tooth and eye for an eye ought not to be the
criteria; the civilisation and the due process of law coupled with social order
ought not to permit us to be hasty in regard to the award of capital punishment
H and as a matter of fact the Courts ought to be rather slow in that direction.
JAi KUMAR v. STATE OF M.P. [BANERJEE, J.) 435
Justice is supreme and justice ought to be beneficial for the society so A
that the society is placed in a better off situation. Law courts exist for the
society and ought to rise up to the occasion to do the needful in the matter,
and as such ought to act in a manner so as to sub-serve the basic requiremeqt
·. of the society. It is a requirement of the society and the law must respond
to its need. The greatest virtue of law is its flexibility and its adaptability, it B
must change from time to time so that it answers the cry of the people, the
need of the hour and the order of the day. In the present day society, crime
is now considered a social problem and by reason therefore a tremendous
change even conceptually is being seen in the legal horizon so far as the
punishment is concerned.

One school of thought on this score propagates the function of the law
c
court is that of a social reformer and as such in its endeavour to act as such,
question of deterring punishment would not arise since the society would
otherwise be further prone to such violent acts or activities by reason of the
fact that with the advancement of the age the mental frame of boys of tender
age also go on changing and in the event of any arrogance being developed D
or a sense of revenge creeps the society, the society would perish to the
detriment of its people. The other school, however, expressly recorded and
rather emphatically that unless severest of the severe punishments are inflicted
on an offender (obviously depending upon the nature of the crime) the
society would perish.
E
The other school professes that since one has taken the life of another
that does not mean that his life shall have to be taken but during the trial if
it transpires the method and manner or the nature of.the activities which has
resulted in the elimination of a human being from this world, there should not
be any laxity on the part of the law courts, otherwise people will and in tum F
the society will be engulfed in false sense of security of life in the event of
there being most heinous crime on the earth.

The law courts as a matter of fact have been rather consistent in the
approach that a reasonable proportion has to be maintained betwe~n the
seriousness of the cr.ime and the punishment. While it is true that a sentence G
disproportionately severe, ought not to be passed but that does not even
clothe the law courts with an option to award the sentence which would be
manifestly inadequate having due regard to the nature of the offence since
an inadequate sentence would fail to produce a deterrent effect on the society
at large. Punishments are awarded not because of the fact that it has to be
an eye for an eye or a tooth for tooth, rather having its due impact on the H
436 SUPREME COURT REPORTS [I 999] 3 S.C.R.

A society: while undue harshness is not required but inadequate punishment
may lead to sufferance of the community at large.

Having dealt with the matter as above, it would be convenient to note
the finding of learned Sessions Judge as regards the compliance of Section
235 (2) of the Code. At page 22 of the judgment the learned Sessions Judge
B records:-
"26. From the appreciation of the above mentioned all the evidences,
the charge against the accused Jai Kumar is found proved under
Section 302 and Section 20 l IPC beyond any doubt. Therefore, the
judgment is adjourned for hearing on the question of order of sentence
c in the crime."
Sd/-
R.C. Chandel Sessions Judge,
RewaM.P.

27. Learned counsel of both the parties were heard on the question
D of sentence. Both .the parties do not want to give any documentary
oral verbal evidence with regard to the above. It is the request of the
learned defence counsel that the age of the accused is 22 years and
he has not any past criminal history and this is not such a c·ase in
which the accused may be awarded the maximum sentence i.e. sentence
of death. Learned counsel cited the reference of the 1996 (l) Crimes-
E 137 (S.C.) Ravender Trimbak Chothmal v. State of Maharashtra. ·
Learned Public Prosecutor pleads that the accused has committed
efforts to commit rape with his mother like Bhabhi-deceased Dev Vati
and on being failed in this, caused her brutal death, severed her head
from· the body and hanged her head on the tree and put her dead body
F on the tree. Along with this, the accused after taking the minor child
deceased Kumari Renu to the jungle merely for the reason that she
had seen the·accused committing murder. Firstly he offered prayers in
the jungle and then he committed her murder with the axe. The above
act of the accused being brutal is such a case where it is necessary
to award the accused the sentence.of death. Learned Public Prosecutor
G has given the reference of 1996 Crl. L.J. 4158 Kamta Tiwari v. State
of MP., (1995) Na.Ni.Sa.? 18, Amritlal Someshwar Joshi v. State of
Maharashtra. I have carefully perused the legal illustrations referred
by the learned counsel and I km agree with the principals which are -
propounded in the judicial illustrations.

H 28. As is clear from the evidences come up in the case that the
JAi KUMAR v. STATE OF M.P. [BANERJEE, J.) 437
accused tried to commit rape on the deceased Dev Vati who was his A
bhabhi and on being protested by her against him, he committed her
murder. Not to talk of this, he severed the head with kulhari and after
tying the dead body in a dhoti took it in the jungle at the Hardia
Pahari and there the head of the deceased was hanged with the tree
and put the dead body of the deceased on the tree. Because the
deceased Kumari Renu had seen the above accused committing the B
murder of the deceased Dev Vati. For this reason, the accused offered
the eight years minor child (female) deceased Kumari Renu who was
the daughter of the deceased Dev Vati, in the jungle and further
offered the broken mirror, oil of Awala Mustard oil, Guvava, onion,
Bindia to Mahua Maharaj (see thereby question No. 25 under Section C
313 Crl.P.C.) and then after causing the blow with kulhari on the head
of the deceased Kumari Renu committed her murder and after putting
her dead body under the Balu sand suppressed her dead body but
keeping the stones on her foot and head.

D
Before arriving at the conclusion, I seriously discussed over this for
so many times but in the circumstances of the case and keeping in
view the brutal act of the accused Jai Kumar, it would not be sufficient
to award him the sentence of life imprisonment and with· this there
would not be any proper effect on the society. Therefore keeping in E
view the entire circumstances, the accused Jai Kumar is sentenced to
death for the offence punishable under Section 302 IPC for committing
the murder of the deceased Dev Vati and the deceased Kumari Renu.
Beside this, the accused is sentenced to undergo 7 years rigorous
imprisonment for the crime punishable under Section 201 of the Indian F
Penal Code. The accused Jai Kumar has been in judicial custody since
8.1.97 in this case".

The order of the learned Sessions Judge as recorded above unmistakably
depicts that both the parties were heard and none of the parties wanted to
give any documentary or oral evidence with regard to sentence. But the G
factum of submissions and considerations thereof as appears from paragraphs
27 and 28 leads us to a definite conclusion that there has been no miscarriage
of justice. Be it noted that the statute has engrafted in the statute book the
provisions of Sections 235 (2) so as to see that proper appreciation of the
evidence takes place and proper opportunity of hearing as regards punishment
be afforded, but if there is no taker of such an opportunity in spite of there H
,....
I
:

438 SUPREME COURT REPORTS [1999] 3 S.C.R.

A being lawyers appearing for the accused as well, question Of further
adjournment of the matter would not arise. It is true that the obligation is not
discharged by putting formal questions to the accused -The Judge is supposed
to elicit materials from the accused which will have a bearing on the question ....)

of sentence and it is on this requirement of law, let us consider as to whether
B there was in fact such a genuine attempt to elicit materials-but as the record
depicts there was no taker of this opportunity and the defence lawyer pleaded
two facts to be considered in the matter for award of punishment viz. (a) The
accused is aged 22 years and (b) No other past Criminal Record: We wish to
put on record that trying Judge has shown utmost concern and after much
deliberation came to the conclusion as above in the matter of the grant of
C punishment. The ratio dicedendi of the cases noticed is to see that there is
no statutory mockery resulting in a total miscarriage of justice. The judgment
was adjourned and the lawyer was asked - and prompt came the reply that
the sentence ought to be considered by reason of the age and no past record:
Both these aspects have duly been considered by the Sessions Judge and
we do not see any infirmity therein.
D
Incidentally the High Court on the issue of punishment did Pely upon
the decision of this Court in Bachan Singh v. State of Punjab, [ 1980) 2 SCC
684 and a long catena of cases and upon reliance thereon, the High Court
observed :
E
"Absence of proof of motive and youth of the accused are two factors
urged here and also that he pleaded guilty. Let us ignore the statement
of the mother of the accused that he wanted to violate the chastity
of the deceased Dev Vati as no other overt-act of the accused about
it is established. It makes no difference whatsoever. His ruthlessness
F as indicated by the fact that he is not content with slaying Dev Vati
into two pieces and hung her head and trunk on a Mahua tree, but
he is now murdering her reputation by totally false assertion that she
was unchaste and all her children were illegitimate. The fact that even
his mother deposed against him (of course, the truth), goes to show
what type of living danger, he is to the family and to society. Absence
G
of proof of motive has not been held to be so relevant factor in
reaching the conclusion about a case being rarest of rare or not. As
we have seen in above precedents, absence of motive loses its
mitigating weight if the crime is concluded with extreme cruelty on
innocent child and hapless lady. In this case, help to the lady was
H foreclosed by the accused by bolting his mother in the room. He broke
JAi KUMAR v. STATE OF M.P. [BANERJEE, J.] 439

into the room of the victim by dismantling the bricks of wall around A
the door. We have found it as a fact that the plea taken by him about
suspicion for the last five years against the chastity of the deceased

... is deliberately false and an after-thought. Similarly, his plea that the
deceased child was born by illicit connections with somebody at her
matrimonial home is also deliberately false. His plea that he was not B
being given food for the last 3 days is certainly false and an after-
thought as already discussed. The deceased was his brother's wife
and he had no grievance against his brother. He broke into the room
of the lady, dragged her out and killed her and chopped off her head.
He was not content with this. It was not sudden rage. He was acting
in a calculated manner. He took away his 8 year old niece and chopped C
off her neck, but for slander attachment of the neck with the rest of
the body. Some of her fingers were chopped off and the body was
buried. He had offered 'Puja' to Mahuva Tree and hung the head of
Dev Vati there, separately. So, that shows the type of the man he is.
All these factors are corroborated by various photographs of the
scenes of killing, the scenes of body placed on Mahuva tree and the D
scene of the girl buried in sand and below stones. The mere fact that
the accused admits to have killed the lady and the daughter does not
amount to remorse on his part. He is justifying it on false and indecent
pleas. Such calculated ghastly and cruel murder of hapless lady who
was pregnant of about 22-30 weeks and hapless innocent child is E
bound to send shock waves in the society. It creates feeling of revolt
in the conscience."

In the contextual facts, we have no hesitation to record that as a matter
of fact there are no mitigating circumstances and our search in that direction
was in vain, on the contrary the aggravating situations are galore to support F
the finding of the Sessions Judge as confirmed by the High Court. And it is
on this count Mr. Muralidhar contended that hearing on the question of
sentence is also necessitated by reason of the fact that till then the Judge
has no opportunity to ascertain the relevant aggravating and mitigating
circumstances bearing upon the question of sentence and many of which may G
not appear from the record of the case. We are, however, unable to record our
concurrence to the submissions of Mr. Muralidhar in the contextual facts as
noticed herein before.

The guidelines as formulated in Bachan Singh 's case (supra) and adopted
in two subsequent decisions of this Court in Machhi Singh v. State of H
)-.

440 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Punjab, AIR (1983) SC 957 and Kamta Tiwari v. State of MP., (1996) Cd. Law
Journal 4158 do not lend any assistance to Mr. Muralidhar. This Court in
Kamta Tiwari's case as a matter of fact pointedly observed that co-relation

B
of aggravating and mitigating circumstances and a balance be struck on the
basis of the factual matrix of the matter in issue, before the exercise of
discretion in terms of the provisions of Section 302. Jn the matter in issue,
- ..
however, we do not find any balancing factor so as to strike a balance. As
a matter of fact aggravating factors there are aplenty and galore without any
mitigating circumstances as noticed above. The age of the accused being of
22 years cannot, in the factual matrix of the matter under consideration, be
said to be a mitigating factor. Accused is of 22 years of age while the victim
C was aged 30 years and at the time of the unfortunate death, she was under
pregnancy between 22 to 30 weeks - the other victim was an innocent girl -
a child of 8 years: the murders were cold blooded while two victims were in
helpless and hapless situation. No amount of perversity would prompt a
person to break open the door by removing the bricks from the wall and
commit such gruesome murders on failure to satisfy the lust - the human lust
D ought to know its limits. Imaginations shall have to run wild to consider
existence of any mitigating factors in the matter uf sentence, having due
regard to even the subsequent conduct of the accused in the matter of
disposal of .the bodies as noticed above.

E Can there be any mitigating circumstance on account of such a ghastly
act - the answer cannot but be in the negative. The mother of the accused
was bolted inside the room and she watches as a bewildered spectator from
the creeks of the window and it is the mother who had given evidence about
the bad characteristics and the reputation of the accused in the locality: the
sister-in-law has been murdered along with an innocent child - Is this a man
F who deserves any sympathy from the society - Is this a man who can correct
himself and the law courts ought to permit him to lead a decent life after he
serves the sentence: The mother's evidence becomes material and it is on this
scor.~ that we are unable to record our concurrence with the submissions of
Mr. Muralidhar that there are some mitigating circumstance and there is
G likelihood of the accused being reformed or rehabilitated. Incidentally, the
High Court has described the accused as "a living danger" and we cannot
agree more therewith in view of the gruesome act as noticed above.

A faint attempt has been made by Mr. Murlidhar as regards non-
compliance of Section 354 (3) of the Code. We however are not in a position
H . to. record our concurrence, thereto, having due regard to the reasonings
JAi KUMAR v. STATE OF M.P. [BANERJEE, J.] 441

available in the body of the judgment itself and we need not by reason thereof A
dilate much on that score.

r The facts establish the depravity and criminality of the accused in no
uncertain terms. - No regard being had for precious life of the young child
also. The compassionate ground of ·the accused being of 22 years of age
cannot in the facts of the matter be termed to be at all relevant. The reasons B
put forth by the learned Sessions Judge cannot but be termed to be
unassailable. The learned Judge has considered the matter from all its aspects
and there is no infirmity under Section 235 (2) or under 354 (3) of Code and
as such we are not in a position to record our concurrence with the submissions
of Mr. Muralidhar.
c
In the present case, the savage nature of the crime has shocked our
judicial conscience. The murder was cold-blooded and brutal without any
provocation. It certainly makes it a rarest of the rare cases in which there are
no extenuating or mitigating circumstances. The observations of this Court
in Dhananjoy Chatterjee alias Dhana v. State of West Bengal, [1994] 2 SCC D
220, to which one of us (CJI as he then was a party) while confirming the
sentence of death lend concurrence to the views expressed above. This Court
.opined:

"In our opinion, the measure of punishment in a given case must
depend upon the atrocity of the crime; the conduct of the criminal and E
the defenceless and unprotected state of the victim. Imposition of
appropriate punishment is the manner in which the courts respond to
the society's cry for justice against the criminals. Justice demands
that courts should impose punishment befitting the crime so that the
courts reflect public abhorrence of the crime. The court must not only
keep in view the rights of the criminal but also the rights of the victim F
of crime and the society at large while considering imposition of
appropriate punishment."

We do not see, by reason of the discussion as above, any mistake of
justice has taken place and we record our concurrence with the observations
and findings of the High Court. G
-· We, therefore, find no infirmity in the sentence awarded by the Sessions
Judge and as confirmed by the High Court. This appeal, therefore, fails and
is dismissed.

M.P. Appeal dismissed. H