SUSHIL KUMAR v. STATE OF PUNJAB

Citation: [2009] 13 S.C.R. 1082

Court: Supreme Court of India

Bench: V.S. SIRPURKAR, DEEPAK VERMA

Case summary

SUSHIL KUMAR v. STATE OF PUNJAB.pdf

Judgment text

[2009] 13 (AOOL. ) $. C. R. 1082 SUSHIL KUMAR J.. - , v. ' STATE OF PUNJAB (Criminal Appeal No. 670 of 2009) SEPTEMBER 1, 2009 [V. S. SIRPURKAR AND DEEPAK VERMA, JJ. ] ¥ Penal Code, 1860: s. 302 - Murder - Accused allegedly '·~ murdered his wife and children and thereafter got himself ~ admitted in hospital - Evidence of prosecution witnessesiiJ -conformity with each other - No doubt about the credibility of witnesses - Prosecution witnesses having cordial relations with the accused hence case of false implication not made out - Plea of alibi taken by accused not found to be truthful - 0 Prosecution able to establish case· against him - Death -.. It sentence awarded by courts below however altered to life • impris01:iment as accused was not a habitual offender - Sentence/Sentencing. ·Prosecution case was that on the fateful day, PW-2 brother of deceased received call from appellant at 6 a. m.

The appellant ·informed PW-2 that he was admitted in hospital and asked PW-2 to visit his house to see well i being of his family. Thereafter appellant disconnected the phone. When PW-2 reached house of appellant, he found " wife and children of appellant dead. PW-2 again received call from appellant at 6. 45 a. m. PW-2. enquired from hirn about the incident but appellant again snapped the ~> ' phone. PW-2 later came to know that appellant had consumed 'sulphas tablets' and got himself admitted in hosplt~I. During interrogation, appellant made a disclosure memo. Pursuant thereto, a blood stained knife 'r- ;. --... allegedly used for commission of offence was . recovered · at his instance·. The trial court rejected the plea of alibi ·. raised by appellant on account of serious contradiction --... l . in his statement and convicted him u/s. 302 IPC and passed death sentence, which was affirmed by High - Court. Hence the present appeal. Partly allowing the appeal, the Court HELD: 1.

Microscopic examination of the evidence of PW-5, the mother of deceased and that of PW•2 would show that they were in conformity with each other. The ~\ evidence of PW-2 was in line with F. l. R. and his statement given to the police. Apart from minor discrepancies which are bound to appear in a natural course of conduct of a normal human being, there were no serious material discrepancies in the evidence in order to completely discard their evidence. There is no reason to doubt the . credibility of all these witnesses. There is no reason why ~ they would falsely try to implicate the appellant. Nothing was shown on record that these witnesses were having ' . strained relations with the appellant. On the other hand, it was clearly made out from the evidence that they were having cordial relations and were visiting each other quite often. [Paras 27 and 29] [1094-8-E] 2. It is manifest from the evidence that the appellant t had got himself admitted in Civil Hospital on 4. 3.

2005 and was under treatment. According to the doctor. PW-10, the • appellant was admitted on 4. 2. 2005 at about 6. 30 a. m. and was discharged on 7. 3. 2005. The doctor was not able to conclusively say that any Sulphas tablet was taken by the appellant or not. · He deposed that after taking tablets, it is difficult to survive for a long period. Appellant did not offer any explanation as to where was he before his admission in the hospital on the fateful day. Plea of alibi taken by him was not found to be truthful as the same .. ,.. "{ stood falsified from the evidence of PW-4 who had seen him coming out of his own house at 5. 00 a. m. This was only indicative of the fact that after commission of the alleged crime, he got himself admitted in the Civil -" ).. ,_ Hospital. It is certain that he had committed the crime sometime in night,and then got himself admitted in the hospital at 6. 30 a. m.

Looking to the totality of the facts and features of the case and keeping in view the evidence available on record, there is no doubt that the offence . r was committed by the appellant only. [Paras 30-32 and 36] [1094-F-H; 1095-A-B; 1096-0-E] ~- Bachan Singh v. State of. Punjab and others (1980) 2 J -- he was poverty stricken, he thought in his wisdom to completely eliminate his family so that all problems would ·---. I come to an end. Precisely, this appeared to be the reason -,,A, for him to consume some poisonous substances, after committing the offence of murder. No witness complained about his bad or intolerable behaviour in the past Many people visited his house after the incident is indicative of the fact that he had cordial relations with all. He Is now about 35 years of age and there appear to be fairly good chances of the appellant getting reformed and l becoming a good citizen.

Thus, looking to the matter from ' ' all angles_ and after giving serious consideration to the whole matter that it is not a fit case where it would fall within the category of "rarest of rare case" and therefore death sentence as awarded to him by trial Judge and confirmed by High C~urt is quashed and he is awarded life imprisonment. [Paras 43 and 46] (1099-D-H; 1100-A- ~ ~ - \ Case Law Reference~ (1980) 2 sec 684 referred to Para 39 (1983) 3 sec 470 referred to Para 40 (1999) 3 sec 19 i,eferred to Para 40 (2006) 13 sec 116 referred to Para 41 -t (2009) 4 sec 736 referred to Para 41 > (2009) 6 sec 498 referred to Para 42 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 670 of 2009. From the Judgment & Order dated 30. 5. 2008 of the High Court of Punjab and Harayana at Chandigarh in Murder ~---,Reference No. 3 of 2007. ... ' Rishi Malhotra for the Appellant. Kuldip Singh, R. K. Pandey and T. P. Mishra for the Respondent. . ).... - The Judgment of the Court was delivered by .

DEEPAK VERMA, J. 1. Life or death is the question involved in this appeal. Sole appellant Sushil Kumar alias Lucky has been awarded death sentence in Sessions Case No. 70 > of 2006, by Additional Sessions Judge, Jalandhar vide judgment and order dated 13/17. 4. 2007 holding him guilty of commission of offence under Section 302 of Indian Penal Code f (for short 'l. P. C. ') on three counts, i. e. , for committin~ murder, ' ·- - 8 the same criminal procedure as an adult: The special ActS ' -1 provide for·the reformatory procedure for such juvenile'' offenders or children. n , 40. The case of Bachan Singh (supra),. is of course, the leading case on the said question which was considered by a three Judge Bench of this Court in the case of Machhi Singh & Ors. v. State of Punjab reported. in (1983) 3 SCC 470""" wherein same principles. of law have been reiterated. In the case of Om Prakash v.

State of Haiyana reported in (1999) 3 sec 19, it has been explained as to why death sentence will not be proper and what are the relevant factors to . be . considered and it has further been observed that. court m·ust ·· balance the mitigating and aggravating circumstances· of the case, mental condition of the accused, the dispute between the families which ultimately resulted in multiple murders. Even·~ though it was a case of murder of seven persons, but Division · Bench of this Court came to the conclusion that it was not a fit _ • case which would fall within the ambit of "rarest of rare case's•. · :. 41. On the other hand, learned counsel for the respondent has placed reliance on the judgments in the case of Bablu @. . ,· Mubaraik Hussain v. State of Rajasthan reported in (2006) 13 SCC 116 and State of Uttar Pradesh v. Sattan. alias Satyendra & Ors.

reported in (2009) 4 SCC 736 to strongly contend th~t~ in the facts and circumstances of the case, ends ofjustice would ·~ -· -, be met only when the appellant is awarded death sentence. 42. Learned counsel for the appellant has brought to our~ . , ... ,_. notice yet another recent judgment of this Court in the case of Santosh Kumar Satish Bhushan Boriyar etc. v. State of Maharashtra etc. reported in (2009) 6 SCC 498. In this judgment, all the previous judgments on the said issue have been considered and analysed. The law on the question of Capital Punishment has been re-stated. Thereafter, guidelines have been formulated to be observed while awarding death ~sentence. Lastly, it has been held that there have to be very . - . special reasons to record death penalty and if mitigating factors in the case are stronger then it is neither proper nor justified to award death sentence and it would be sufficient to place it out of "rarest of rare category".

We have critically gone through the said judgment. 43. In the case in hand, weighing the mitigating _.. ,circumstances the following facts are manifest: 0 (i) appellant had been unemployed for last 7 to 8 months (Ii) he used to borrow money from others to meet his daily needs. · (iii) he himself had consumed 'sulphas tablets' to commit ~uicide even though not medically established. . - (iv) he therefore, was keen that his whole family should be finished and no one should be alive to suffer the pain and agony · alone. (v) he was fed up with his life and was seen ,in a perplexed condition by PW-4. (vi) in any case, he cannot be a threat to the society and _~re ~re fairly good chances of his refonnation as he has learnt .... sufficient lesson from it. 44. Extreme poverty had driven the appellant to commit the grueso~e murder of three of his very near and dear family A members - his wife, minor son and daughter. 45. There is nothing on record to show that appellant is a habitual offender.

He appears to be a peace loving,. law abiding citizen but as he was poverty stricken, he thought in his wisdom to completely eliminate his family so that all problems would 8 come to an end. Precisely, this appears to be the reason for him to consume some poisonous substances, after committing ,>. - 1 the offence of murder. No witness has complained about his · bad or intolerable behaviour in the past. Many people had visited his house after the incident is indicative of the fact that C he had cordial relations with all. He is now about 35 years of age and there appear to be fairly good chances of the appellant gettjng reformed and becoming a good citizen. 46. Thus, looking to the matter from all angles and after ~ .

D giving our serious consideration to the whole matter, we are of the opinion that it is not a fit case where it would fall within the category of "rarest of rare case" and therefore death sentence as awarded to him by learned trial Judge and confirmed by High Court deserves to be'set aside and quashed and is e accordingly done so by us instead he is held guilty of commission of offence under Section 302 bf the IPC on three counts and is awarded life imprisonment fo'r the same. The . ,. _ impugned judgment and order stands modified to the aforesaid extent and the appeal accordingly stands disposed of. F D. G. Appeal partly allowed.