TMI Blog1995 (12) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... urt expressing his intention that one of the three advocates mentioned by him in his letter may be engaged to represent his case before this Court. Pursuant to such request, Mr. Natarajan, a senior advocate of this Court agreed to appear as amicus curiae in deference to the desire of the appellant. We appreciate such gesture on the part of Mr. Natarajan, for accepting the case of the appellant as amicus curiae. The appellant was committed to a Sessions Trial in Sessions Case No. 122/93 before the learned Additional Sessions Judge, Banswara, on the charge of committing murder of five persons including the wife and three minor sons of the appellant and attempting to murder his own mother and the wife of a neighbour. The trial court after relying on the evidences of witnesses including injured eye-witnesses inter alia came to the finding that the prosecution had established by leading cogent evidence that the appellant was guilty of murdering five persons and he was also guilty for attempting to murder his mother Smt. Mangi (PW 12) and a neighbour's wife Smt. Galal (PW 4). Considering the fact that the commission of the said murders was committed in a brutal and barbaric manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Galal herself has deposed in support of the prosecution case. The finding by the Courts below that the appellant has murdered Gulabji cannot be said to be without any basis and he fairly concedes that an attempt to assail such finding may be an exercise in futility. Mr. Natarajan has, therefore, submitted that in the facts of the case, it will be only appropriate for him to confine his submission on the question of sentence to be passed against the appellant. Mr. Natarajan has submitted that unfortunately in this case, the prosecution has failed to lead any evidence as to why the appellant suddenly killed his wife who was in advanced stage of pregnancy and three minor children when his wife and his three minor children were asleep in his house. Mr. Natarajan has also submitted that the prosecution has also failed to lead any evidence to indicate or even to suggest as to what was or could be the motive that impelled the appellant immediately after murdering his wife and three minor children and injuring his own mother when she tried to prevent him from committing such crime, to rush to his neighbour's house and to attempt to kill the wife of the neighbour Smt. Galal (PW 4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upbringing and exposure to teachers training, only suggests that he was temporarily seized of a gigantic psychic disorder. Why and how this wretched transformation had happened remains a mystery. The investigating officer, unfortunately, did not make any sincere effort to cause enquiries in this regard. Mr. Natarajan has submitted that this inexplicable sudden psychic disorder as an important mitigating factor on the question of awarding the extremely penalty of death has been last sight of both by the learned Additional Sessions Judge and by the High Court. Mr. Natarajan has referred to a decision of this Court in Dahyabhai Chhaganbhai Thakkar versus State of Gujarat (1964 (7) SCR 361) for the purpose of contending that it is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide should prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and always rests on the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contentions of Mr. Natarajan and has submitted that the charge of murder perpetrated on the appellant's pregnant wife and three minor children and also attempt to murder his own mother by the accused when she tried to prevent the appellant from committing the said heinous crime, has been established beyond reasonable doubt. Unfortunately, the mother of the appellant (PW.12) who herself was injured, did not support the prosecution case for which she was declared hostile. There are very strong reliable and clinching evidence which clearly indicates that it is the appellant and none else who was guilty of murdering the wife and three minor children and injuring his mother. From the deposition of the mother of the appellant though declared hostile, it transpires that accused and the deceased wife and minor children and the mother were present at home at the time of commission of the murder and no other person was present at home at that time. Both the mother and the deceased wife and the minor children suffered injuries caused by an axe and immediately after the said incident, the accused also attempted to murder the neighbour's wife Smt. Galal (PW 4) oy an axe and also mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The mother has not indicated that there was any quarrel or altercation between the husband and the wife immediately or shortly before the murders had taken place. The facts revealed from the evidences adduced only indicate that there was no occasion for any sudden provocation or a fit of impulse which had impelled or could impel the appellant to commit the said ghastly murder of his helpless wife and three minor children. On the contrary, the evidences point out that such heinous crime had been perpetrated in a cool and calculated manner. When the poor mother tried to prevent the appellant even did not spare his own mother and also caused injuries on her person in an attempt to kill her by the same axe with which the wife and the three minor children had been murdered. The learned counsel for the State has further submitted that the appellant thereafter went to the house of his neighbour and attempted to kill the neighbour's wife Smt. Galal who was also asleep in her house. There is no evidence on record to suggest that there was any occasion for the appellant to harbour any ill feeling, hatred or wrath against Smt. Galal which might have prompted him to murder her. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful but attempted to kill the neighbour's wife while she was sleeping and also killed another elderly neighbour, Gulabji without any provocation whatsoever. Gulabji was hacked to death by the appellant by giving successive blows with the axe thereby killing him on the spot, before the eyes of his wife. Mr. Bhati has submitted that both the learned Additional Sessions Judges and the High Court very carefully considered the question of sentence after being fully alive to mitigating circumstance if any in favour of the appellant. As in the instant case, the appellant without any provocation committed murder of five persons in a very cruel and barbaric manner in a cool and calculated manner and also attempted to kill two others including his own mother, the enormity and brutality of the crime had been taken note of by the courts below and in the absence of any mitigating factor the extreme penalty of death has been awarded against him. In this connection Mr. Bhati has referred to a decision of this Court in Shankar @ Gauri Shankar and others Versus State of Tamil Nadu (1994 (4) SCC 478). After referring to a number of decisions of this Court on the question of sentence and in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of U.P. (1994 (Suppl. 1) SCC 185) and Kuriakose and Another versus State of Kerala (1994 (Suppl. 1) SCC 602). Mr. Bhati has submitted that although Mr. Natarajan, the learned counsel appearing for the appellant, has very strongly contended that it was quite likely that the appellant was suffering from psychic disorder otherwise such facts, without any motivation could not have been perpetrated and likelihood of sudden psychic disorder ought to be considered as a mitigating factor in awarding the extreme penalty of death, there is not an iota of evidence regarding sudden psychic disorder of the accused appellant at the time of commission of the said crime. The evidences on the contrary reveal that in a cool and calculated manner, and without any provocation whatsoever, he committed one after the other the said dastardly crime in a very brutal and ghastly manner. Mr. Bhati has submitted that the number of murders in one continued course of action and attempt to kill two others including the mother of the appellant cannot but shock the conscience of the society. The offence committed by the appellant is one of the rarest and there is no mitigating circumstances which warrant punish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive for such crime, such motive, according to Mr. Natarajan, assumes significance in awarding the sentence particularly in a murder case. Mr. Natarajan has contended that the appellant appears to have suddenly lost the equillibrium of his mind and behaved in a strange manner thereby committing murder of his wife and three minor children apparently without any provocation and even attempting to kill his own mother when she tried to restrain him. Mr. Natarajan has submitted that in the absence of any evidence suggesting harbouring of hatred, grudge or ill feeling against the wife or Smt. Galal, the sudden spree of murderous assault unusual to the social and educational background of the appellant, becomes inexplicable and such strange behaviour only suggests that he must have been seized of psychic disorder momentarily. Mr. Natarajan has also submitted that the evidences do not reveal that the appellant was insane at the time of commission of the crime and such plea of insanity has also not been taken by the appellant. Hence, the appellant may not claim the benefit of absence of mens rea. But the possibility of temporary psychic disorder requires to be considered in awarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge number even go unpunished thereby encourage the criminal and in the ultimate making, justice suffer by weakening the system's credibility. It has also been indicated that : In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and 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 criminal. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. In our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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