SONU SARDARversusSTATE OF CHHATISGARH

                        [2012] 3 S.C.R. 558


A                         SONU SARDAR
                                  v.
                    STATE OF CHHATISGARH
            (Criminal Appeal Nos. 1333-1334 of 2010)

                       FEBRUARY 23, 2012
B
        [A.K PATNAIK AND SWATANTER KUMAR, JJ.)

         Penal Code, 1860 - s. 396 - Conviction and sentence
   under - Commission of dacoity at the house of the deceased
C and murder of five persons including two minor children with
   knife, rod and axe by the appellant and four others - Appellant
   convicted uls. 396 and sentenced to death by the courts below
   - Sustainability of - Held: Prosecution proved beyond
   reasonable doubt that the appellant participated in the offence
D of dacoity and murder - Conviction of the appellant based not
   only on the oral testimony of the daughter of the deceased
   but also on the evidence of other prosecution witnesses,
   seized articles and the forensic report - Clear and definite
    evidence to show that the appellant not only participated in
E the crime but also played the lead role in the commission of
    offence - Five members of a family including two minor
   children and driver were ruthlessly killed by use of a knife, an
   axe and an iron rod and with help of four others - Crime was
    obviously committed after pre-meditation with absolutely no
F . consideration for human lives, and for money - Even though
    appellant was young, his criminal propensities are beyond
    reform and he is a menace to society - Thus, courts below
   rightly held that this is one of those rarest of rare cases in
    which death sentence is appropriate punishment - Order of
    conviction of the appellant as well as sentence of death
G sustained.

      According to the prosecution, appellant, 'A' and
  others committed dacoity in the house of 'S' and
  thereafter, committed murder of 'S', his driver, his wife ·
H                          558
     SONU SARDAR v. STATE OF CHHATISGARH                 559


and his two minor children with rod, knife and axe. The         A
appellant and the other co-accused went to the house of
'S' and demanded money from 'S'. One of them bolted
the door from inside, two others caught hold of the driver
and one of them caught hold of 'S'. They kept knife on
the neck of 'S' and compelled him to give cash. Daughter        B
of 'S' (PW 1), managed to escape and went to the house
of 'R' (PW-2) and narrated about the incident to him. FIR
was lodged. The appellant and his co-accused 'A' and 'C'
were arrested. On the basis of the statement of the
appellant, blood stained clothes of the app~llant, axe,         c
knife and rod were seized. Test identification parade was
carried out in which PW 1 identified the appellant and 'A'.
PW 1, PW 2, PW 3 and PW 4 and other witnesses .were
examined. The trial court convicted the appellant under
Section 396 IPC and imposed sentence of death. The              0
High Court upheld the order. Therefore, the appellant filed
the instant appeals.

    Dismissing the appeals, the Court

      HELD: 1.1. During investigation a Test Identification     E
Parade was carried out and out of the ten persons who
were presented, the appellant and 'A' were identified by
PW 1-'SH' as the two persons, who were amongst the five
persons who had come to the house of 'S' and were
demanding money from him. From the evidence of PW               F
2-'R' as well as the evidence of PW 4-'D' it is found that
PW-1, soon after she escaped from the house of 'S',
mentioned that one of the five persons who had gone to
the house of 'S' was a sardar. In her cross-examination,
PW-1 stated that she knew the appellant as he had come          G
to their house for selling scrap. Moreover, the broken axe
with broken handle and iron rod were recovered
pursuant to the statement of the appellant. PW 36-doctor,
after narrating the injuries on the dead bodies of 'S', 'AG',
'R', 'Y' and 'KR', opined that the death was on account
                                                                H
    560    SUPREME COURT REPORTS               [2012] 3 S.C.R.


A of shock as a result of fatal injuries. The injuries described
  by them were not only incised wounds but multiple
  fractures of temporal and parietal bones and on the head
  which could have been caused by the axe and the iron
  rod. The report of the Forensic Science Laboratory
B confirmed the presence of human blood on the clothes
  of the deceased persons, axe and iron rod as well as the
  turban and T-shirt of the appellant which had been
  seized. Thus, the conviction of the appellant was not only
  based on the oral testimony of PW-1, but also the
c evidence of PW-2, PW-3, PW-4, PW-36, the seized articles
  and also the report of the Forensic Science Laboratory.
  It is further established from the evidence of PW-1 and
  the Panchanama of the house of 'S' that only cash of
  Rs.65,760/- was available and the remaining cash out of
0 Rs.1, 70,000/- was missing. The prosecution proved
  beyond reasonable doubt that the appellant participated ·
  in the offence of dacoity and murder and was rightly
  convicted for the offence under Section 396 IPC. [Para 6]
  [566-C-H; 567-A-B]

E     Ramesh and others v. State of Rajasthan (2011) 3 SCC
  685: 2011 (4) SCR 585; Sushi/ Murmu v. State of Jharkhand
  (2004) 2 sec 338: 2003 (6) Suppl. SCR 102; Atbir v.
  Government of NCT of Delhi (2010) 9 SCC 1: 2010 (9) SCR
  993; Sunder Singh v. State of Uttaranchal (2010) 10 SCC
F 611: 2010 (11) SCR 927 - referred to.

       1.2. The trial court recorded special reasons under
  Section 354 (3) of the Code of Criminal Procedure, 1973
  for awarding the death sentence on the appellant that the
G crime was pre-meditated; the crime struck fear and terror
  in the public mind; helpless and defenceless women and
  two minor children aged eight and four years besides two
  adult men were murdered; the driver of 'S', who had only
  stopped in the house for his food, was also not spared;
H taking advantage of earlier business relations with 'S', the
    SONU SARDAR v. STATE OF CHHATISGARH                  561


 appellant made a friendly entry and committed the              A
 murders; the intention was to kill all members of the
 family' though surprisingly a six month old baby and a
 four year old child remained alive; the five murders were
 brutal, grotesque, diabolical, revolting and dastardly,
 which indicated the criminality of the perpetrators of the     B
 crime; and no physical or financial harm appears to have
 been caused by the deceased to the accused. As against
 the aggravating circumstances, the trial court did not find
 any mitigating circumstance in favour of the appellant to
 avoid the death penalty. This is, therefore, not one of        c
 those cases in which the trial court has not recorded
 elaborate reasons for awarding death sentence to the
 appellant. (Para 9] [568-D-H; 569-A, B, C]

       1.3. Regarding the role of the appellant in the
  commission of the offence of dacoity and murder, it is        D
· found that the turban and T-shirt of the appellant, which
  were seized and sent for examination to the Forensic
  Science Laboratory, had presence of human blood; the
  axe and the iron rod, which were recovered pursuant to
  the statement of the appellant, had also blood-stains; and    E
  that the evidence of PW-1 that when her mother was
  cooking food and came out on hearing the commotion,
  the appellant was demanding money from her father and
  her father gave to the appellant all the money which he
  was having in his pocket. There is, therefore, clear and      F
  definite evidence in the instant case to show that the
  appellant not only participated in the crime, but also
  played the lead role in the offence under Section 396 IPC.
  Therefore, this is not a case where it can be held that the
  role of the appellant was not such as to warrant death        G
  sentence under Section 396 IPC. [Para 10] [569-D-F]
      1.4. In the instant case, five members of a family
 including two minor children and the driver were
 ruthlessly killed by the use of a knife, an axe and an iron
                                                                H
    562      SUPREME COURT REPORTS                  [2012] 3 S.C.R.


A   rod and with the help of four others. The crime was
    obviously committed after pre-meditation with absolutely
    no consideration for human lives and for money. Even
    though the appellant was young, his criminal
    propensities are beyond reform and he is a menace to
B   the society. The trial court and the High Court were.
    therefore, right in coming to the conclusion that this is
    one of those rarest of rare cases in which death sentence
    is the appropriate punishment. The conviction of the
    appellant as well as the sentence of death under Section
c   396, iPC is sustained. [Paras 11 and 12) [570-B-D]

        Sunder Singh v. State of Uttarancha/ (2010) 10 SCC
    611: (2010) 11 SCR 927 - referred to.

                          Case Law Reference:
D
      2011 (4) SCR 585               Referred to.        Para 7

      2003 (6) Suppl. SCR 702        Referred to.        Para 8

      2010 (9) SCR 993               Referred to.        Para 8

E     2010 (11) SCR 927              Referred to.        Para 11

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1333-1334 of 2010.

         From the Judgment & Order dated 08.03.2010 of the High
F   Court of Chattishgarh at Bilaspur in Reference No. 1 of 2008
    & Criminal Appeal No. 240 of 2008 in case arising out of
    Judgment & Order of sentence dated 18.02.2008 in ST No. 6
    of 2006 of Ld. Sessions Judge Baikanthpur, Dist. Koriya.

G         Vanita Mehta for the Appellant.

        Dharmendra Kumar Sinha, Atul Jha, Sandeep Jha for the
    Respondent.

          Jhe Judgment of the Court was delivered by
H
    SONU SARDAR v. STATE OF CHHATISGARH                     563


     A.K. PATNAIK, J. 1. These are appeals against the             A
judgment of the High Court of Chhattisgarh in Criminal
Reference No.1 of 2008 and Criminal Appeal No. 240 of 2008
confirming the conviction of the appellant and the death penalty
imposed on him under Section 396 of the Indian Penal Code
(for short 'IPC').                                                 B

     2. The prosecution case very briefly is that on 26.11.2004,
Shamim ~khtar (for short 'Shamim'), a scrap dealer and a
resident of village Cher, Distt. Baikunthpur, Chhattisgarh, had
gone to Raipur for selling scrap. He sold the scrap and received C
cash of Rs.1,70,000/- and returned to his house with the cash.
His wife, Ruksana Bibi, kept the cash in different places of her
house, which was to be deposited in the bank the next day. At
about 6.00 p.m. on 26.11.2004, Sonu Sardar, the appellant
herein, and Ajay Singh @ Fotu along with three other persons
came with scrap to the shop of Shamim and left after selling D
scrap for Rs.480/-. The appellant and Ajay Singh and three
other persons, however, returned at about 7.00 p.m. on the
same day and knocked on the door of the house of Shamim.
When the door was opened, the appellant and Ajay Singh and
three other persons demanded money from Shamim. One of E
these, five persons then bolted the door from inside and two
other persons caught hold of Asgar Ali, driver of Shamim, and
one of them caught hold of Shamim. They kept a knife on the
neck of Shamim and compelled him to give cash which he was
having in his pocket. Shabana Khatun (for short 'Shabana'), the F
daughter of Shamim, who was present inside, tried to fight but .
an attempt was made by the appellant and his people. to
ass~ult her and she somehow escaped through the back door
and went to the house of Ramlal, a kilometer away from the
house of Shamim. Shabana told Ramlal about the incident at G
her house and when Ramlal wanted to go to their house,
Shabana asked him not to go because she was afraid that
Sonu Sardar and others may kill him. That night Shabana
stayed at the house of Ramlal and next morning at about 4-5
a.m., Shabana, Ramlal and his wife Dhanpatbai came to the H
    564     SUPREME COURT REPORTS                  [2012] 3 S.C.R.


A house of Shamim and found that Yakut and Asna, 3 years old
  son and 5 years old daughter of Shamim, were crying near the
  dead bodies of Shamim, Ruksana Bibi, Yakub and Kumari
  Rana, 7 years old son and 9 years old daughter of Shamim.
  Shabana then went to Baikunthpur and narrated the incident to
B her uncle Nasim Akhtar, who reported the matter the Police.
  The Police reached the spot and the FIR was lodged. The dead
  bodies were sent for autopsy to the Community Health Centre,
  Baikunthpur, and a team led by Dr. Ashok Kumar carried out
  the post mortem. In course of investigation, the Investigating
c Officer recorded statements of several persons under Section
  161, Cr.P.C. The appellant and his co-accused, Ajay and
  Chhoti Bai, were arrested but the other persons absconded
  after commission of crime. Blood-stained T-shirt and turban of
  the appellant and an axe with broken handle, a rod and a knife
D were seized. Test Identification Parade was carried out on
  01.12.2004 in which Shabana identified the appellant as well
  as Ajay as two of the five persons who had come to the house
  of Shamim on 26.11.2004 and were demanding money. The
  seized articles were sent to the Forensic Science Laboratory,
E Raipur. After completion of investigation, a chargesheet was
  filed and Sessions Trial No.06/2006 was conducted by the
  Sessions Judge, Koriya, Baikunthpur (Chhattisgarh).

    ' 3. In course of the trial, the prosecution examined 38
  witnesses. Shabana was examined as PW-1, Ramlal was
F examined as PW-2, Nasim Akhtar was examined as PW-3 and
  Dhanpatbai was examined as PW-4. Dr. Ashok Kumar was
  examined as PW-36 and the Investigating Officer was
  examined as PW-37. A large number of documents and the
  seized articles were also exhibited. The trial court recorded the
G statements of the appellant under Section 313, Cr. P.C. After
  hearing the arguments, the trial court held that it was clear from
  the evidence of PW-1, PW-2, PW-3 and PW-4 that the
  appellant had committed the dacoity at the house of Shamim
  beti.yeen 7.00 p.m. of 26.11.2004 and 4.00 a.m. of 27.11.2004
H and thereafter committed murder of Shamim, Asgar, Ruksana
    SONU SARDAR v. STATE OF CHHATISGARH                    565
              [A.K. PATNAIK, J.]

Bibi, Yakub and Kumari Rana with rod, knife and axe and that       A
the prosecution had succeeded in establishing the guilt of the
appellant under Section 396, IPC, beyond reasonable doubt.
After hearing counsel for the parties on the question of
sentence, the trial court also held that the case falls in the
category of rarest of rare cases and imposed the sentence of       B
death on the appellant. By the impugned judgment, the High
Court has confirmed the conviction of the appellant under
Section 396, IPC, and also the sentence of death.

     4. Learned counsel for the appellant submitted that the
appellant had been convicted on the sole testimony of Shabana      C
(PW-1), a ten years old child who could not have identified the
appellant as one of the five persons who committed the dacoity
and murder on the night of 26.11.2004. She submitted that it
is on the information received from PW-1 that PW-3 had lodged
the FIR, but in the FIR the appellant has not been named. She      D
argued that had PW-1 known the appellant, she would have told
PW-3 the name of the appellant and PW-3 would have
mentioned the name of the appellant in the FIR. She submitted
that it will therefore not be safe for this Court to sustain the
conviction of the appellant.                                       E

      5. Learned counsel for the State, on the other hand,
submitted that although PW-1 is a minor, her evidence was
reliable and she had stood the test of cross-examination. He
further submitted that PW-1 narrated the incident not only to      F
PW-3, but also to PW-2 and PW-4 and the evidence of PW-2
and PW-4 would show that PW-1 had clearly mentioned that
out of the five persons, who had committed the dacoity and
murder on the night of 26.11.2004, there was a sardar. He
further submitted that PW-1 has also stated in her evidence that
the appellant had gone to her father's shop 5 to 6 times before    G
the 26.11.2004 to sell scrap and hence she could identify him
as one of the five persons who had committed the dacoity and
murder on the night of 26.11.2004. Moreover, at the time of the
Test Identification Parade conducted by the Magistrate (PW-
11 ), PW-1 identified the appellant as one of the five persons,    H
   566      SUPREME COURT REPORTS                 [2012] 3 S.C.R.


A who had come to the house of Shamim on 26.11.2004 and
  were demanding money. He submitted that the evidence of
  PW-1 that the appellant partic;ipated in the dacoity and murder
  on 26.11.2004 is corroborated by the recovery of the iron rod
  and axe on the statement of the appellant and by the fact that
B the seized T-shirt and turban of the appellant were blood-
  stained.

         6. We have considered the submissions of learned
   counsel for the parties and we find that during investigation a
   Test Identification Parade was carried out on 01.12.2004 and
C out of the ten persons who were presented, the appellant and
   Ajay Singh@ Fotu were identified by PW-1 as the two persons,
   who were amongst the five persons who had come to the house
   of Shamim and were demanding money from him. From the
 - evidence of PW-2 as well as the evidence of PW-4, we find
D that PW-1, soon after she escaped from the house of Shamim,
   has mentioned that one of the five persons who had gone to
   the house of Shamim was a sardar. In her cross-examination,
   PW-1 has stated that she knew the appellant as he had come
   to their house for selling scrap. Moreover, the broken axe with
E broken handle and iron rod (Ext. P.24) were recovered pursuant
   to the statement of the appellant (Ext. P.16). PW-36, Dr. Ashok
   Kumar, after narrating the injuries on the dead b_odies of
   Shamim, Asgar Ali, Ruksana Bibi, Yakub and Kumari Rana,
   has opined that the death has been on account of shock as a
F result of fatal injuries. The injuries described by them are not
   only incised wounds but multiple fractures of temporal and
   parietal bones and on the head which could have been caused
   by tlhe axe and the iron rod. The report of the Forensic Science
   Laboratory (Ext.P.61) confirms presence of human blood on the
G clothes of the deceased persons, axe and iron rod (Ext. P.24)
   as well as the turban and T-shirt of the appellant (Ext. P.37)
   which had been seized. Thus, the conviction of the appellant is
   not only based on the oral testimony of PW-1, but also the
   evidence of PW-2, PW-3, PW-4, PW-36, the seized articles
H and also the report of the Forensic Science Laboratory. It is
    SONU SARDAR v. STATE OF CHHATISGARH                      567
              [A.K. PATNAIK, J.]

further established from the evidence of PW-1 and the               A
Panchanama of the house of Shamim made on 28.11.2004
that only cash of Rs.65,760/- was available and the remaining
cash out of Rs.1,70,000/- was missing. The prosecution has,
in our considered opinion, proved beyond reasonable doubt
that the appellant participated in the offence of dacoity and       B
murder and has been rightly convicted for the offence under
Section 396, IPC.

      7. On the question of sentence, learned counsel for the
appellant submitted that this Court has held in Ramesh and          C
others v. State of Rajasthan [(2011) 3 SCC 685] that before
awarding death sentence, the trial court was expected to give
elaborate reasons. She submitted that the reasons given by the
trial court for awarding death sentence on the appellant were
not elaborate. She submitted that in Ramesh and others v.
State of Rajasthan (supra) this Court did not find clear evidence   D
as to which of the three persons who participated in the crime
was the actual author of the injuries on Ramlal and Shanti Devi
and held that as it is difficult to say that Ramesh alone was the
author of the injuries on Ramlal as well as Shanti Devi, death
sentence awarded to Ramesh should be modified to life               E
imprisonment. She submitted that in the present case also five
persons have committed the offence under Section 396, IPC,
and as the actual role of the appellant in the offence is not
known the death sentence should be modified to life
imprisonment.                                                       F·

     8. Learned counsel for the State, on the other hand,
submitted that the appellant has participated in the offence
under Section 396, IPC, and as many as five innocent persons,
including two children, have lost their lives and the trial court   G
has given sufficient reasons for awarding death sentence to the
appellant. He cited the decision of this Court in Sushi/ Murmu
v. State of Jharkhand [(2004) 2 SCC 338) for the proposition
that the punishment should be proportionate to the crime
committed by the accused. He submitted that in the facts of the     H
    568          SUPREME COURT REPORTS                [2012] 3 S.C.R.


A present case, since the crime was heinous in nature and
  resulted in the death of five persons, death sentence would be
  proportionate to the crime committed by the appellant. He also
  relied on Atbir v. Government of NCT of Delhi [(2010) 9 SCC
  1] in which this Court held that preventing persons in the house
B to escape and committing brutal murder of as many as three
  persons inside the house are aggravating circumstances
  warranting imposition of death sentence on the accused. He
  submitted that in the present case also, as the appellant had
  closed and bolted the door to prevent an escape of any person
c from the house, and had then brutally murdered as many as five
  persons, death sentence should be imposed on the appellant.

       9. We have considered the submissions of the learned
  counsel for the parties and we find that the trial court has
  recorded the following special reasons under Section 354 (3)
D of the Criminal Procedure Code, 1898 for awarding the death
  sentence on the appellant:

          (i)      The crime was pre-meditated.

          (ii)     The crime has struck fear and terror in the public
E
                   mind.

          (iii)    Helpless and defenceless women and two minor
                   children aged eight and four years besides two adult
                   men were murdered.
F
          (iv)     Asgar Ali, the driver of Shamim, who had only
                   stopped in the house for his food, was also not
                   spared.

          (v)      Taking advantage of earlier business relations with
G
                   Shamim, the appellant made a friendly entry and
                   committed the murders.

          (vi)     The intention was to kill all members of the family
                   though surprisingly a six month old baby and a four
H                  year old child remained alive.
    SONU SARDAR v. STATE OF CHHATISGARH                       569
              [A.K. PATNAIK, J.]
      (vii)   The five murders were brutal, grotesque, diabolical,   A
              revolting and dastardly, which indicated the
              criminality of the perpetrators of the crime.

      (viii) No physical or financial harm appears to have been
             caused by the deceased to the accused.
                                                                     B
As against these aggravating circumstances, the trial court did
not find any mitigating circumstance in favour of the appellant
to avoid the death penalty. This is, therefore, not one of those
cases in which the trial court has not recorded elaborate
reasons for awarding death sentence to the appellant as              C
contended by learned counsel for the appellant.

      10. Regarding the role of the appellant in the commission
of the offence of dacoity and murder, we have already found
that the turban and T-shirt of the appellant, which were seized      0
and sent for examination to the Forensic Science Laboratory,
had presence of human blood. We have also found that the axe
and the iron rod, which were recovered pursuant to the
statement of the appellant, had also blood-stains. We have also
found from the evidence of PW-1 that when her mother was             E
cooking food and came out on hearing the commotion, the
appellant was demanding money from her father and her father
gave to the appellant all the money which he was-having in his
pocket. There is, therefore, clear and definite evidence in this
case to show that the appellant not only participated in the
crime, but also played the lead role in the offence  under Section   F
                                                 l·r

396, IPC. This is, therefore, not a case where it can be held
that the role of the appellant was not such as to warrant death
sentence under Section 396, IPC.

     11. In a recent judgment in Sunder Singh v. State of G
Uttaranchal [(2010) 10 SCC 611), this Court found that the
accused had poured petrol in the room and set it to fire and
closed the door of the room when all tbe members of the family
were having their food inside the room and, as a result, five
members of the family lost their lives and the sixth member of       H
    570     SUPREME COURT REPORTS                 [2012] 3 S.C.R.

A the family, a helpless lady, survived. This Court held that the
  accused had committed the crime with pre-meditation and in
  a cold blooded manner without any immediate provocation from
  the deceased and all this was done on account of enmity going
  on in respect of the family lands and this was one of those
B rarest of rare cases in which death sentence should be
  imposed. The facts in the present case are no different. Five
  members of a family including two minor children and the driver
  were ruthlessly killed by the use of a knife, an axe and an iron
  rod and with the help of four others. The crime was obviously
c committed after pre-meditation with absolutely no consideration
  for human lives and for money. Even though the appellant was
  young, his criminal propensities are beyond reform and he is
  a menace to the society. The trial court and the High Court were
  therefore right in coming to the conclusion that this is one of
  those rarest of rare cases in which death sentence is the
0
   appropriate punishment.

         12. In the result, we find no merit in these appeals and we
    sustain the conviction of the appellant as well as the sentence
    of death under Section 396, IPC, and dismiss the appeals.
E
    N.J.                                      Appeals dismissed.