State of Kerala Represented by Public Prosecutor v. Thomas Alva Edison
2019-12-12
A.HARIPRASAD, N.ANIL KUMAR
body2019
DigiLaw.ai
JUDGMENT : N.ANIL KUMAR, J. Death Sentence Reference No.1/2016 and Crl.Appeal No.145/2016 arise from the judgment and order in S.C. No.92/2012 dated 14th October, 2015 rendered by the Additional Sessions Judge-V, Ernakulam, convicting the accused under Sections 302, 307 and 436 of the Indian Penal Code (hereinafter referred to as the 'IPC') and awarding the sentence of death by hanging. Since the execution of death penalty is subject to the confirmation of this Court under Section 366 of Cr.P.C., the State has sought confirmation of the death sentence in DSR.No.1/2016. The appellant/accused has filed the instant appeal challenging his conviction under Sections 302, 307 and 436 of IPC. As the accused had been sentenced to death by hanging, for the offence punishable under Section 302 of IPC, the learned Sessions Judge was of the view that in view of Section 71 of IPC, no separate sentence was to be awarded for the offences under Sections 307 and 436 of IPC. Though the accused is the appellant in this appeal, for the sake of convenience, hereinafter, he is referred to as 'the accused'. The Death Sentence Reference and the appeal have been heard together and are being disposed of by way of this common judgment. 2. The brief facts leading to the filing of the above criminal appeal and the Death Sentence Reference are stated as hereunder :- The accused was a sub-contractor of a construction company under the name and style 'Kaveri Builtech', Ernakulam mainly engaged in building construction works. PW1 (Andrews) and deceased persons, viz; Dessi, Suresh and Vijay were the workers under him and all of them were residing in a room provided by the company. It is alleged that while they were residing together in the aforesaid room, at about 11 pm on 20.2.2009, there occurred a quarrel between PW1-Andrews and the accused by demanding arrears of salary entitled to PW1. It is further alleged that on account of the said enmity, with an intention of causing death to the workers under him and to destroy the room, the accused brought petrol in two plastic bottles and sprinkled the same on the victims, who were sleeping in the room and set them ablaze at about 01.00 a.m. Consequently, Dessi, Vijay and Suresh sustained burns and they succumbed to the burns later. PW1 also sustained burns and thereby the accused committed the aforesaid offences. 3.
PW1 also sustained burns and thereby the accused committed the aforesaid offences. 3. On getting information from the General Hospital, Ernakulam, PW31, the then SHO, Ernakulam Central Police Station rushed to the hospital and recorded Ext.P2 First Information Statement of one of the victims namely, Suresh, who was then undergoing treatment at the hospital and who succumbed to the injuries later. Pursuant to the statement given by one of the victims, PW31 recorded Ext.P26 First Information Report as Crime No.441 of 2009 of Ernakulam Central Police Station and forwarded the same to the court. On getting reliable information that the accused was at Tamil Nadu, PW31 proceeded to Tamil Nadu and arrested the accused by Ext.P27 arrest memo from the residence of the accused at Sathankulam. 4. On 21.02.2009, PW36 took over the investigation of this case. He conducted inquest on the body of the deceased Dessi, Vijay and Suresh. PW36 questioned the witnesses, recorded their statements and forwarded material objects for chemical examination. In continuation of the investigation, further investigation was done by PW35 on 04.03.2009. After completing the investigation, final report was filed before the learned Judicial First Class Magistrate-II, Ernakulam. 5. The learned Magistrate registered the case as C.P.No.8/2011 and committed the case to the court of Sessions, Ernakulam after complying with the usual formalities. 6. On committal, the learned Sessions Judge took cognizance of the offences under Sections 302, 307 and 436 of IPC and made over the case to the Additional Sessions Court-V, Ernakulam for trial and disposal. 7. Upon consideration of the final report and upon hearing both sides, the trial court filed charges against accused under Sections 302, 307 and 436 of IPC to which the accused pleaded not guilty. 8. The prosecution examined 36 witnesses altogether as PWs.1 to 36 and marked 42 documents as Exts.P1 to P42(a). MOs.1 to 6 were marked as material objects. From the defence side DW1 was examined. On closing the evidence of the prosecution, the accused was questioned under Section 313 of Cr.P.C. The case of the accused is one of total denial. 9. The case of the accused is that on 20.2.2009, after they had supper from a hotel, the accused, PW1-Andrews, deceased-Dessi, Vijay and Suresh had returned to the room allotted by the company. After they reached the room, they had consumed alcohol and all of them were intoxicated by the alcoholic effect.
9. The case of the accused is that on 20.2.2009, after they had supper from a hotel, the accused, PW1-Andrews, deceased-Dessi, Vijay and Suresh had returned to the room allotted by the company. After they reached the room, they had consumed alcohol and all of them were intoxicated by the alcoholic effect. After some time, there occurred a quarrel between PW1-Andrews and the accused in connection with some other extraneous matters. Consequently, the accused was physically assaulted by PW1 and thereafter the accused was pulled out from the room and threatened with dire consequences. Being afraid by the threatening words of PW1, the accused had left Ernakulam to his native place. He had not returned to the room as alleged. The accused was unaware of the occurrence alleged to have taken place in the room after he had left the place. He reached his home in Tamil Nadu on 21.2.2009 and he did not return to Ernakulam thereafter. The police arrested him from Tamil Nadu and brought him to Kerala. He further stated that he can understand the Malayalam language. 10. The learned Sessions Judge did not deem it fit and proper to acquit the accused under Section 232 of Cr.P.C. Therefore, the accused was called upon to enter on his defence. DW1 was examined on the defence side. 11. PW20-Dr.Santhosh John Abraham, the then Head of Department for Surgery, Lourdes Hospital, Kochi examined PW1 and issued Ext.P14 discharge certificate. Ext.P14 would show that PW1 was admitted at the Lourdes Hospital, Ernakulam on 22.2.2009 and discharged on 28.3.2009. He was referred from General Hospital, Ernakulam and the final diagnosis made as per Ext.P14 is alleged attempt of homicide. A 65% of burns on the body of PW1 was noted by PW20 in Ext.P14. 12. PW8, Dr.P.Rema, the then Professor, Forensic Medicine attached to Medical College Hospital, Alappuzha conducted postmortem examination on the body of the deceased Dessi, aged 24 years and issued Ext.P7 Postmortem Certificate. The details of ante-mortem injuries noted by PW8 are stated as herein below:- “1. Dermoepidermal burns with multiple blisters on the front of neck involving the whole body sparing hairy region of scalp, scrotum and patchy areas on both buttocks. 2. Contusion 4x3.5x0.4 cm involving the scalp on right side of forehead.
The details of ante-mortem injuries noted by PW8 are stated as herein below:- “1. Dermoepidermal burns with multiple blisters on the front of neck involving the whole body sparing hairy region of scalp, scrotum and patchy areas on both buttocks. 2. Contusion 4x3.5x0.4 cm involving the scalp on right side of forehead. 3.5 cm above inner end of right eyebrow (seen only on dissection).” PW8 opined that the injuries noted in Ext.P7 would be caused by any inflammable substance. PW8 further opined that 30 to 35% burns are independently sufficient to cause death. 13. PW26-Dr.P.S.Sanjay, the then District Police Surgeon, General Hospital, Ernakulam conducted postmortem examination on the body of deceased Suresh and issued Ext.P18 postmortem certificate. Considering the nature of burns, we think, it is just and proper to incorporate the details of ante-mortem injuries contained in Ext.P18 as follows:- “1. Face and neck and head: the scalp hairs was almost completely spaired of burns, only the front few hairs showed singeing. The hairs of eye brows and eye lashes were also singed. The entire face, ears and neck showed epidermal burns with suit staining. 2. Chest and abdomen; the entire chest and abdomen (front term back) showed dermo epidermal burns. The epidermis was charred and lost. 3. Upper limbs; The grated part of upper limbs showed dermo epidermal burns with charring of epidermis. Small patches of skin over the left elbow (front) and in the axillae were spared of burns. 4. Pelvic region and genitals; the greater part of front of pelvis corresponding to the undergarment including the genitals was spared of burns. The entire back aspect showed dermo epidermal burns. 5. Lower limps: The entire front and back aspects of the lower limbs including the soles and feet showed dermo epidermal burns with charring of the epidermis. Approximately 95% of the total body surface area had sustained burns. No other injury noted on the body.” PW26 testified that Suresh died of burns. During chief examination, PW26 stated that the ante-mortem injuries noted in Ext.P18 might be caused in a conflagration aided by the use of an accelerant fuel like petrol. During cross examination, PW26 clarified that even if a person sustained 100% surface burns, he can speak and be fully conscious. 14. PW29 Dr.Lisa John, Assistant Professor, Forensic Medicine, T.D.Medical College, Alappuzha conducted autopsy on the body of deceased Vijay and issued Ext.P21 postmortem certificate.
During cross examination, PW26 clarified that even if a person sustained 100% surface burns, he can speak and be fully conscious. 14. PW29 Dr.Lisa John, Assistant Professor, Forensic Medicine, T.D.Medical College, Alappuzha conducted autopsy on the body of deceased Vijay and issued Ext.P21 postmortem certificate. The antemortem injuries noted in Ext.P21 are stated as hereunder:- “Demo-epidermal burns involving the face, sparing the chin area, the whole of upper limbs, front of neck, chest and abdomen till the level of umbilicus, whole of back of trunk, till the level of small of the back, the lower 2/3rd of the front of lower limbs, and the back of whole of right leg, approximately involving 55% of body surface area.” 15. PW15, Dr.N.Suresh Kumar, the then Consultant Surgeon, Erode Trust Hospital, Tamil Nadu, who treated the accused on 23.02.2009 and issued Ext.P11 treatment summary. Ext.P11 discloses that the accused sustained IInd degree burns involving dorsum of both foot extending into ankle on lateral aspect. PW15 explained patient prognosis and treatment mode to the patient attenders, but the patient attenders were not willing for further treatment at the hospital. Hence the patient was discharged on 23.02.2009 under AMA (Against Medical Advice). According to PW15, the patient underwent treatment at P.S.G hospital, Coimbatore, prior to the date of seeking admission at the Erode Trust Hospital. PW15 has verified the scar mark on the accused and identified the accused as the patient treated as per Ext.P11 certificate. 16. PW30, Dr.Jayesh K.Thambi, the then casualty Medical Officer, General Hospital, Ernakulam treated the four victims of the accident namely Dessi, Vijay, Suresh and PW1 Andrews on 21.02.2009 at the casualty ward of the hospital. Ext.P22 would show that PW1 Andrews sustained more than 70% burns and a lacerated wound of 3 x 1 cm size over the lateral end of right eye brow. Ext.P23 would indicate that deceased Vijay sustained more than 90% burns. Ext.P24 would show that Suresh sustained more than 90% burns. Ext.P25 indicates that Dessi sustained more than 90% burns. On going through the evidence adduced by PW30, it is clear that Dessi, Vijay, Suresh and PW1-Andrews sustained serious burns on 21.02.2009, at about 3.40 a.m. PW8, 15, 20, 26, 29 and 30 are medical witnesses.
Ext.P24 would show that Suresh sustained more than 90% burns. Ext.P25 indicates that Dessi sustained more than 90% burns. On going through the evidence adduced by PW30, it is clear that Dessi, Vijay, Suresh and PW1-Andrews sustained serious burns on 21.02.2009, at about 3.40 a.m. PW8, 15, 20, 26, 29 and 30 are medical witnesses. Of the above, PW8, PW26 and PW29 conducted postmortem examination on the body of the deceased, Dessi, Suresh and Vijay and issued Exts.P7, P18 and P21 postmortem certificates noting serious burns. It is brought out from the evidence of PW15 that the accused underwent treatment for burns at the Erode Trust Hospital, Tamilnadu in connection with the very same incident by which Dessi, Suresh and Vijay sustained burns and succumbed to the injuries later. It is clear from the medical evidence that Dessi, Suresh and Vijay sustained burns. We have no doubt in our mind that the trio died out of homicidal injuries sustained by them. 17. We have heard Sri.Renjith. B. Marar, learned counsel for the appellant and Sri.S.U.Nazar, learned Senior Public Prosecutor for the State and perused the entire records. 18. Learned counsel for the appellant Sri.Renjith B.Marar, in support of the appeal contended that there being several dying declarations in the case, it was not proper for the court below to rely on Exts.P3 and P4 dying declarations recorded by the learned Magistrate. The first dying declaration allegedly given before PW5 and PW6 and the second time declaration before PW31 as per Ext.P2 were not considered by the trial court. It is contended that when there are several dying declarations, the court has to scrutinise the dying declarations carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. It is further submitted that PW1, being one of the co-workers of the deceased is an interested witness. It is further contended that the workers of the accused were sleeping in the room allotted to them and the occurrence took place as a result of short circuit and thus the case was one of accidental death. The learned counsel for the appellant highlighted the fact that the arbitrariness in sentencing under Section 302 of IPC may violate the idea of equal protection of law under Article 14 of the Constitution of India and the right to life under Article 21 of the Constitution.
The learned counsel for the appellant highlighted the fact that the arbitrariness in sentencing under Section 302 of IPC may violate the idea of equal protection of law under Article 14 of the Constitution of India and the right to life under Article 21 of the Constitution. The learned counsel for the appellant added that the court below failed to consider the circumstances which favour the accused in the instant case to hold it as not a rarest of rare case, which resulted in the death of three persons. 19. Refuting the contentions advanced by the learned counsel for the appellant, the learned Senior Public Prosecutor Sri.S.U.Nazar, appearing for the State, has supported the judgment of the trial court. It is submitted that the court below has not committed any error in relying on the dying declarations. Elaborating on the submission, the learned Senior Public Prosecutor, after examining the entire evidence on record, submitted that the cogent reasons were given by the trial Judge for accepting Exts.P2, P3 and P4 dying declarations recorded by PW19, the learned Magistrate. The learned Senior Public Prosecutor further submitted that the court below relied on the testimony of the injured witness and entered a finding that the accused had acted in most cruel and inhumane manner and committed the offences alleged against him. According to the learned Senior Public Prosecutor, the court below was right in putting the entire elements of crime on the accused and in treating those elements as aggravating circumstances so as to award death sentence. 20. PW1 is an injured witness. PW1 gave Ext.P1 dying declaration before the learned Magistrate while he was at the General Hospital, Ernakulam. Since he has survived, Ext.P1 cannot be taken as a dying declaration, as contemplated under Section 32 of the Indian Evidence Act. However, Ext.P1 can be taken as a previous statement given by PW1 to the learned Magistrate, which can be used for both contradiction and corroboration as contemplated under law. PW1 adduced evidence to show that on 20.02.2009, there occurred a quarrel between the accused and PW1 touching the arrears of salary entitled to PW1, Dessi, Suresh and Vijay from the accused for the false ceiling work at one of the sites carried on by them.
PW1 adduced evidence to show that on 20.02.2009, there occurred a quarrel between the accused and PW1 touching the arrears of salary entitled to PW1, Dessi, Suresh and Vijay from the accused for the false ceiling work at one of the sites carried on by them. According to him, on account of the said enmity, the accused with an intention to do away with PW1 and others stated above, brought petrol in two plastic bottles, sprinkled the same on the victims, who were sleeping inside the room bearing No.66/2685 of Cochin Corporation in Ernakulam. Apparently, an injured witness would enjoy greater credibility, because he is the sufferer himself and thus, there will be no occasion for such a person to state the incorrect version of those incidents. He cannot be treated as an interested witness. Merely because of the fact that there existed dispute between PW1 and the accused at the time of occurrence, there is no bar in law to examine such a person as a witness by the prosecution. If the statement of a witness, who was known to the deceased, is reliable and trustworthy, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was an employee of the accused, who was hostile to the accused. 21. With reference to the injured witness, it has been held by the Supreme Court in the case of Bhajan Singh alias Harbhajan Singh and Others V. State of Haryana [ (2011) 7 SCC 421 ], in paragraph 36 as under:- ''36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.'' Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.” 22. It has been also been held by the Supreme Court in the case of Mano Dutt and another V. State of Uttar Pradesh [ (2012) 4 SCC 79 ] in paragraph 30, as under:- ''30. Salik Ram was examined as PW2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution. However, the other injured witness, Nankoo, was not examined. In our view, non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.” 23. In support of the evidence let in by PW1, PW16 and 22 were examined to prove the ownership of the building where the occurrence took place. PW16, Shabeena Abraham is one of the co-owners and Power of Attorney Holder of the building where the occurrence took place. PW22, P.T. Vijayan, the then Revenue Officer, Cochin Corporation was examined to prove that Ext.P16 ownership certificate was issued in respect of the building bearing No.42/2095 (corresponding to building No.66/2685) of Cochin Corporation. 24. PW18, Francis Xavier, the Manager of Lekshmana Das and Company, Ernakulam was examined to prove that the accused and three more labourers had made false ceiling work on behalf of Kavery Builtech and the bill amount due to the accused was released to one Syam Kumar for and on behalf of the accused. 25.
24. PW18, Francis Xavier, the Manager of Lekshmana Das and Company, Ernakulam was examined to prove that the accused and three more labourers had made false ceiling work on behalf of Kavery Builtech and the bill amount due to the accused was released to one Syam Kumar for and on behalf of the accused. 25. PW24, Sri. P.R.Shibu, the Branch Manager of Kaveri Builtech was examined to prove that the accused and his workers were residing in one of the rooms in the building taken on rent by Kavery Builtech from PW16 and also to prove the production of rent agreement by PW16 before police. 26. On going through the oral evidence of PW1, 16, 18, 22 and 24, it is clear that PW1, deceased Dessi, Suresh and Vijay were residing together in the room provided by the Company in a rented building bearing Corporation No.66/2685 of Ernakulam on the date of occurrence. 27. Ext.P29-scene mahazar is one of the important pieces of evidence in this case. PW36 prepared Ext.P29 scene mahazar in which PW32, V.A.Martin was a signatory. He further stated that the police came over to the place of occurrence, verified the room where the occurrence took place and recovered MO1 to MO4(series), MO5 and MO6 from the room occupied by PW1 and others. 28. The prosecution examined PW12, Nithin Pushkaran to prove the source of petrol. PW12 was working as a Salesman at the Indian Oil Petrol Pump, owned by the Civil Supplies Corporation at Ravipuram. According to him, on 21.02.2009, at 01.00 a.m, the accused went to the above petrol pump and purchased two litres of petrol in two plastic bottles. When he was examined before court, he identified the accused as the person, who purchased petrol from the petrol pump at about 01.00 a.m. on 21.02.2009. 29. PW5, Anvar Bhasha is the brother of deceased Dessi. On getting information that his brother and fellow workers sustained burns and had been undergoing treatment at the General Hospital, Ernakulam, he rushed to the hospital to see them. However, his brother and fellow workers except PW1 Andrews succumbed to the injuries later. PW5 was a witness in Ext.P15 inquest report prepared by PW36 in which PW21, Ashokan was a signatory. PW5 had an occasion to talk with deceased Suresh before the latter succumbed to the injuries.
However, his brother and fellow workers except PW1 Andrews succumbed to the injuries later. PW5 was a witness in Ext.P15 inquest report prepared by PW36 in which PW21, Ashokan was a signatory. PW5 had an occasion to talk with deceased Suresh before the latter succumbed to the injuries. Suresh told him that there occurred a quarrel between the accused and his workers, including deceased Dessi, when they demanded arrears of salary from the accused. He also told PW5 that though the accused promised them that he would pay the entire arrears of salary in the next morning, he brought petrol during midnight, poured the same on the body of the victims and set fire on them. 30. PW6 is the father of deceased Vijay. He also went to the General Hospital, Ernakulam to visit his son and other victims involved in the occurrence. According to PW6, Vijay told him that there occurred a quarrel between the accused and others including Vijay, when they demanded arrears of salary from the accused. He added that though the accused promised them to pay the amount in the next morning, he brought petrol during midnight, poured the same on the body of the victims and set them on fire. 31. PW5 and PW6 adduced evidence before the court to show that the conditions of all the injured were critical. All the injured had sustained severe burns. Except PW1, all the others succumbed to the injuries. It is very clear from the evidence let in by PWs.5 and 6 that, the deceased Suresh and Vijay gave information in the form of statement to PW5 and PW6 in the nature of dying declaration under expectation of their death or impending death. During the course of investigation, PW36 took steps to record dying declaration of PW1, Suresh and Vijay, of which Suresh and Vijay died subsequently. PW19-Sri.K.S Sarath Chandran, the then Judicial First Class Magistrate-II, Ernakulam recorded the dying declarations of PW1, Suresh and Vijay. As already indicated, Ext.P1 statement of PW1 cannot be treated as a dying declaration, as PW1 is still alive. PW19 recorded Exts.P3 and P4 dying declarations given by Suresh and Vijay. 32. On going through the evidence of PW9, it is clear that even before lodging Ext.P2-First Information Statement, the deceased had stated the name of the accused.
As already indicated, Ext.P1 statement of PW1 cannot be treated as a dying declaration, as PW1 is still alive. PW19 recorded Exts.P3 and P4 dying declarations given by Suresh and Vijay. 32. On going through the evidence of PW9, it is clear that even before lodging Ext.P2-First Information Statement, the deceased had stated the name of the accused. Also, deceased Vijay had stated the name of the accused to his father, when the latter visited the hospital to see him. Ext.P2 statement was recorded at 09.30 am on the date of occurrence. PW31 went to the hospital and recorded the statement of Suresh with the assistance of PW2-M.Venkatesh, who is the translator. 33. The first informant died four days after lodging Ext.P2 FI Statement. Since the first informant is no more, the statement given by him in Ext.P2 operates as dying declaration. Ext.P2 was proved through PW2, who translated the same to PW31, who recorded the same. Over and above the statement contained in Ext.P2, PW19-the learned Magistrate recorded Ext.P1 dying declaration of PW1, Ext.P3, dying declaration of Suresh and Ext.P4 dying declaration of Vijay. Suresh and Vijay died later. PW1-Andrews has survived. On going through the dying declaration contained in Exts.P3 and P4, we are of the view that the contents contained in the above declarations are one and the same. To avoid repetition of facts, it is not necessary to state the contents in Exts. P3 and P4 declarations. PW1 who gave Ext.P1 statement before PW19 stated before the court that Suresh, Vijay and Dessi were engaged in the false ceiling work, along with him as assigned to them by the accused. According to him, they were temporarily residing along with the accused in the room allotted by Kavery Builtech, where the incident took place. While they were engaged in false ceiling work entrusted by the accused, according to PW1, an amount of Rs.14,000/-was due from the accused and when they demanded the amount, the accused picked up a quarrel with them and while they were sleeping, the accused set fire on them. Exts.P3 and P4 dying declarations as well as Ext.P2-FI statement would clearly indicate that the deceased Suresh and Vijay had directly seen the accused pouring petrol on the face of the body and dress materials of the victims and thereafter lit fire, by which they have sustained serious burns. 34.
Exts.P3 and P4 dying declarations as well as Ext.P2-FI statement would clearly indicate that the deceased Suresh and Vijay had directly seen the accused pouring petrol on the face of the body and dress materials of the victims and thereafter lit fire, by which they have sustained serious burns. 34. On going through the evidence of PW1 to 4 and 9, it is clear that the victim Dessi succumbed to the injuries on 21.02.2009 whereas Vijay and Suresh died subsequently while undergoing treatment at the hospital. The oral evidence of PW19 coupled with Exts.P3 and P4 dying declarations would show that the deceased Suresh and Vijay had stated the circumstances of the transaction which resulted in their death as well as their co-worker Dessi, who were sleeping in the very same room. We have dying declaration of the deceased Suresh by virtue of Ext.P3. Exts.P2 to P4 would show that they had found the deceased pouring petrol on the body of themselves and also on the body of deceased Dessi and PW1, and thereafter closing and locking the door from outside and setting them on fire with matches from a matchbox through the lower part of the door. The oral evidence of PW1, PW19 and PW31 coupled with the Ext.P1 statement of PW1, Ext.P3 and P4 dying declarations and the Ext.P2-FI statement lodged by the deceased Suresh would irresistibly lead to the conclusion that when PW1 demanded the arrears of salary amounting to Rs.14,000/-due to himself and his team of workers, the accused picked up a quarrel and slapped PW1 on his face. It is clear from the evidence on record that because of this enmity, the accused purchased two litres of petrol in two plastic bottles from the petrol pump at Ravipuram, where PW12 was working as a salesman, brought the same to the room within two hours of the quarrel, poured the same on the body of PW1, Suresh, Vijay and Dessi and lit fire from outside after locking the room from outside through the lower part of the door. MO5-matchbox and MO6-burnt mobile battery, that is partly burnt were recovered from the above room by PW35.
MO5-matchbox and MO6-burnt mobile battery, that is partly burnt were recovered from the above room by PW35. In view of the direct evidence adduced by the witnesses, it is quite unnecessary to peruse the oral evidence tendered by PW23, the Deputy Chief electrical Inspector who was in charge of the post of Deputy Chief Electrical Inspector, Ernakulam on the date of occurrence and Ext.X1(series) to rule out the possibility of fire due to short circuit in the room. It is very difficult to hold that the fire was due to some other causes other than the one proved by the prosecution. 35. Admissibility of dying declaration is explained in Sec.32(1) of the Indian Evidence Act. According to this Section, statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts when it relates to cause of death. The most important point of consideration is that the victim was in a fit condition of mind to brief the statement when recording was started and remained in a fit condition of mind till the recording of the statement was finished. In the case on hand, PW19-the learned Magistrate, who recorded the dying declaration of Vijay and Suresh testified that the victims were in such a condition of mind which did not prevent them from making the statements. The dying declaration is seen recorded in the form of questions and answers. Further, the doctor in whose presence the dying declarations were recorded, testified that the victims were in a fit state of mind to give the declarations. Ext.P2 dying declaration was made before PW31. The First Information Statement, got recorded by the Police has been taken as the dying declaration, when the person did not survive to get his dying declaration recorded as held in Munnu Raja and Another V. State of M.P. ( AIR 1976 SC 2199 )]. In the instant case, Suresh, one of the victims, who succumbed to the injuries survived for four days and in the meanwhile, Ext.P3 dying declaration was recorded by PW19. Exts.P2 and P3 dying declarations made by Suresh, one of the victims who succumbed to the injuries, tally each other.
In the instant case, Suresh, one of the victims, who succumbed to the injuries survived for four days and in the meanwhile, Ext.P3 dying declaration was recorded by PW19. Exts.P2 and P3 dying declarations made by Suresh, one of the victims who succumbed to the injuries, tally each other. Ext.P4 dying declaration made by Vijay is also in terms of the dying declaration given by Suresh in Exts. P2 and P3. 36. The validity of Ext.P2, P3 and P4 dying declarations is seriously challenged by the learned counsel for the appellant. According to the learned counsel, it is improper on the part of PW31 and PW19 to record the dying declarations in Malayalam for the reason that Suresh and Vijay had been hailing from Tamil Nadu and they were not well-versed in the vernacular language. Ext.P2 was recorded by PW31 with the assistance of PW2. Ext.P3 and P4 were recorded by PW19 with the assistance of PW2. According to the learned counsel for the accused, it is the duty of the prosecution to record the statement of the victims in their mother tongue. 37. Chapter XXIII of the Code of Criminal Procedure (hereinafter referred to as 'the Code') deals with the mode of taking and recording evidence in inquiries and trials. Section 272 and Section 273 of the Code read as follows:- ''Sec.272. Language of courts The State Government may determine what shall be, for purposes of this Code, the language of each court within the State other than the High Court.'' 'Sec.273. Evidence to be taken in presence of accused Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.'' 38. Section 277 of the code deals with the language of record of evidence. Section 277 reads as under:- ''277.
Section 277 of the code deals with the language of record of evidence. Section 277 reads as under:- ''277. Language of record of evidence In every case where evidence is taken down under section 275 or section 276 - (a) if the witness gives evidence in the language of the court, it shall be taken down in that language; (b) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record; (c) where under clause (b) evidence is taken down in a language other than the language of the court, a true translation thereof in the language of the court, shall be prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record: PROVIDED that when under clause (b) evidence is taken down in English and a translation thereof in the language of the court is not required by any of the parties, the court may dispense with such translation.'' 39. Section 279 deals with the interpretation of evidence to accused or his pleader. Section 279 of the Code reads as under:- ''279. Interpretation of evidence to accused or his pleader (1)Whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him. (2) If he appears by pleader and the evidence is given in a language other than the language of the court, and not understood by the pleader, it shall be interpreted to such pleader in that language. (3) When documents are put for the purpose of formal proof, it shall be in the discretion of the court to interpret as much thereof as appears necessary.'' 40. So far as the State of Kerala is concerned, one of the official languages for recording evidence in Sessions Case, is Malayalam. Even the language for investigation by police is also in Malayalam.
So far as the State of Kerala is concerned, one of the official languages for recording evidence in Sessions Case, is Malayalam. Even the language for investigation by police is also in Malayalam. Therefore, whatever material collected during investigation by the police, which is part of the final report and the statements of the witnesses which were recorded in Malayalam, was supplied in the Malayalam language. The statements of the witnesses including the statements of the deceased under Section 32(1) of the Indian Evidence Act were recorded in the Malayalam language. It is conceded that, in the present case, copies of the statement of witnesses translated in Malayalam and recorded in the case diary of the investigating officer were furnished to the accused sufficiently earlier. It must, therefore, be held that the provisions of Sec.173(5) and sub section (iii) of Section 207 of the Code have been complied with. The appellant was also represented through an advocate and the advocate knows both Malayalam language as well as the English language. PW31 and PW19 recorded the statement of the victims with the assistance of PW2, an interpreter provided to them. Under the circumstances, the submission of the learned counsel for the accused to record the statement of the witnesses in Tamil, cannot be accepted. There is no provision in the Code of Criminal Procedure to supply the material relied upon in the final report to be furnished in Tamil language. Further, the accused has admitted that he can understand Malayalam. As indicated earlier, Malayalam language is one of the languages accepted by the courts and investigation is being conducted by the police in Malayalam language and accordingly recording the statement of the witnesses in the Malayalam language with the assistance of an interpreter is not prohibited. Along with the charge sheet, the materials collected by the Investigating Officer had been furnished to the petitioner sufficiently earlier and the petitioner could have taken steps to get the documents translated into the language known to him as the petitioner was being represented through an Advocate of his choice in the trial court. Trial was conducted in the manner prescribed by Cr.P.C. and no serious prejudice was caused to the accused. Hence, the contention advanced by the learned counsel for the appellant before this Court is unsustainable. 41.
Trial was conducted in the manner prescribed by Cr.P.C. and no serious prejudice was caused to the accused. Hence, the contention advanced by the learned counsel for the appellant before this Court is unsustainable. 41. So far as the admissibility of dying declarations contained in Exts.P2, P3 and P4 is concerned, let us now examine the following judgments of the Apex Court which could be summed up as under:- 42. In S.Panneerselvam V. State of Tamil Nadu [ (2008) 17 SCC 190 ], the Supreme Court held as follows:- ''18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant.......'' 43. In the case of Ranjit Singh and Others V. State of Madhya Pradesh, [ (2011) 4 SCC 336 ], the Supreme Court relied on the dictum in Sunil Kumar V. State of M.P. [ (1997) 10 SCC 570 ], wherein it was held as follows:- ''This statement recorded by the Magistrate at the earliest available opportunity clearly discloses the substratum of the prosecution case including the names of the appellants as the assailants and there is not an iota of material on record to show that this was the upshot of his tutoring. On the contrary, this statement was made at a point of time when PW1 was in a critical condition and it is difficult to believe that he would falsely implicate the appellants leaving aside the real culprits.....'' The dictum in Ranjit Singh's case (supra) is followed in Sarnadhan Dhudaka Koli V. State of Maharashtra, [ AIR 2009 SC 1059 ]. The Supreme Court held as follows:- ''A dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaration.
The Supreme Court held as follows:- ''A dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaration. He is a neutral person.'' 44. In Sri Bhagwan V. State of Uttar Pradesh, [ (2013) 12 SCC 137 ], the Supreme Court had an occasion to consider the validity of a statement recorded under Section 161 Cr.P.C., having regard to the subsequent event of death of the person making the statement who was the victim, and held as under:- ''24. As far as the implication of 162 (2) of Cr.P.C is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 Cr.P.C statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of the Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such. '' 45. In Shanker v. State of U.P. [ AIR 1975 SC 757 ], the Supreme Court held as follows:- “11. It is well settled that unless a First Information Report can be tendered in evidence under any provision contained in Chapter II of the Evidence Act, such as a dying declaration falling under Section 32(1) as to the cause of the informant's death, or as part of the informant's conduct under Section 8, it can ordinarily be used only for the purpose of corroborating, contradicting or discrediting (under Sections 157, 145 and 155, Evidence Act) its author, if examined, and not any other witness.” 46.
In Muthu Kutty and Another V. State by Inspector of Police, Tamil Nadu, [ (2005) 9 SCC 113 ], the Supreme Court has held that ''the conviction can be maintained solely on the basis of dying declaration, if it is worthy and reliable and there is no infirmity in reinforcing the maximim 'nemo moriturus praesumitur mentire' which means that a man will not meet his maker with a lie in his mouth.'' Thus a dying person's utterances will be assumed very likely to be truthful. 47. In the case at hand, deceased Suresh first informed PW31 that the accused poured petrol on him and his colleagues and set them on fire. It is pertinent to note that PW5, who is none other than the brother of deceased Dessi, who rushed to the hospital, on seeing his brother in a death bed, enquired about the cause of the burns sustained by him. Suresh told him that there occurred a quarrel between the accused and the workers including deceased Dessi, when they demanded arrears of salary from the accused and though the accused promised to pay the arrears of salary in the next day, he brought petrol during midnight, poured the same on the body of the victims and set them on fire. PW6, who is the father of the deceased Vijay, also rushed to see the condition of the victims at the hospital. He was also informed by Vijay as stated by Suresh to PW5. PW1, one of the injured witnesses in the very same occurrence is an eye witness to the occurrence. He also supported the prosecution case. PW31, the then Sub Inspector of Ernakulam Central Police Station arrived at the hospital immediately and met the victim Suresh and took his Ext.P2-First Information Statement. In Ext.P2 statement which was duly signed by the witness, the victim stated that it was the accused, who poured petrol on him, along with others and set them on fire by burning a matchstick. Immediately thereafter, PW36 sent a request to PW19 and recorded Ext.P3 dying declaration from the very same victim namely Suresh. PW19 also recorded Ext.P1 dying declaration of Andrews and Ext.P4 dying declaration of the victim-Vijay on the very same day. When the dying declarations were recorded, the Doctor and PW2 were present. The doctor certified that the victims were in a fit state of mind to make the declarations.
PW19 also recorded Ext.P1 dying declaration of Andrews and Ext.P4 dying declaration of the victim-Vijay on the very same day. When the dying declarations were recorded, the Doctor and PW2 were present. The doctor certified that the victims were in a fit state of mind to make the declarations. Though Dessi, one of the victims died while undergoing treatment in the very same occurrence, his dying declaration could not be recorded. Having tested the present case in the light of the principles enunciated in the judgments of the Supreme Court cited supra, we have no hesitation in coming to the conclusion that Exts.P2, P3 and P4 dying declarations given by the victims are true. 48. The learned counsel for the appellant Sri.Ranjith B.Marar contended that with respect to the test for relying on a dying declaration in a case where there is more than one dying declaration, the court must be satisfied that the dying declaration is truthful. Relying on Satish Nirankari v. State of Rajasthan (2007 Crl.LJ. 2983; 2007 KHC 6499), the learned counsel for the appellant contended that the dying declarations alleged to have been given by the victims Suresh and Vijay are two independent declarations evidently relate to the circumstances of the transaction that would result in the death of two persons and it cannot be termed as dying declaration of Dessi. It is further contended that PW1, on whose behalf Ext.P1 dying declaration was made, is still alive. The learned counsel for the appellant highlighted the Division Bench decision of the Bombay High Court reported in Kashinath Tukaram Jadhav V. State of Maharashtra (1984 Crl.LJ. 1447), and argued that the view of the Travancore-Cochin High Court in Lukka Ulahannan v. Travancore-Cochin State (AIR 1955 Travancore-Cochin 104) is not good law. In Lukka Ulahannan's case, the Travancore-Cochin High Court held in paragraph 9 of the judgment as follows:- ''Section 32(1), Evidence Act, provides: When the cause of a person's death comes into question statements made by that person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death are relevant.
In our opinion, to exclude from the evidence statements made by a deceased person as to incidents which occurred during the course of the transaction which resulted in his death, statements other than those relating to the cause of his death would be to import a limitation to the words used in the section which their natural meaning does not warrant. When a limitation like that is intended, the Legislature specially provides for it.......'' 49. In Kashinath's case (supra), a Division Bench of the Bombay High Court held in paragraph 26 of the judgment as follows:- ''26. The upshot of the above suggests that the question whether the statement of one dying person can be a relevant fact with respect to the death of another will depend upon - (a) Whether it was made in the continuum of a narration describing the final occurrence concerning the declarant; and (b) Whether it is directly concerned with an event which took place in the presence, sight or hearing of the declarant; and (c) Whether that event has some proximate relation to the actual final occurrence; and (d) Whether the declaration would become unintelligible or distorted if the narration of that event is blotted out from the declaration.'' 50. Coming to the admissibility and reliability of the dying declaration to determine the cause of death of anyone other than the person making the statement, the Supreme Court held in Tejram Patil V. State of Maharashtra, [ (2015) 8 SCC 494 ], as follows:- ''18. On a plain reading, the statement is admissible about the cause of death or the circumstances of the transaction which resulted in the death of the person making the statement. Question is what happens when two deaths have taken place in the same transaction and circumstances of the transaction resulting in one death is closely interconnected with the other death. Admittedly, the DD of Prabhabai is admissible as to cause of her death as well as the circumstances of the transaction which resulted in her death. Such statement may not by itself be admissible to determine the cause of death of anyone other than the person making the statement.
Admittedly, the DD of Prabhabai is admissible as to cause of her death as well as the circumstances of the transaction which resulted in her death. Such statement may not by itself be admissible to determine the cause of death of anyone other than the person making the statement. However, when the circumstances of the transaction which resulted in death of the person making the statement as well as death of any other person are part of the same transaction, the same will be relevant also about the cause of death of such other person.'' 51. In fact, the Apex Court in the above decision had referred to the decisions dealing with the above legal issue in Kashinath's case and Lukka Ulahannan's case (supra). However, the decision rendered by the Apex Court in Tejram's case (supra) was not placed before us. Going by the decision in Tejram's case (supra), we are of the view that though the charge is of murder of Suresh and Vijay, the cause of death of Dessi which is an integral part of the very same occurrence, is a relevant fact. Thus, when a dying declaration relating to the circumstances of the transaction, which resulted in the cause of death of a person making the statements, are integral part of the circumstances resulting in death of any other person, such dying declaration has relevance for death of such other person also. We are satisfied that the sequence of events in Exts.P2, P3 and P4 are one and the same. In addition to the above, PW1-the injured witness adduced evidence in support of the dying declarations. On a perusal of the evidence adduced in this case, the present case stands by itself and there is reliable evidence on record to show that the accused has committed the crime. In all the dying declarations, Suresh and Vijay implicated the accused and they clearly stated that the accused poured petrol on them and set them on fire. In the very same occurrence, they stated that PW1 and Dessi sustained injuries. All the dying declarations are corroborated each other by other prosecution evidence adduced.
In all the dying declarations, Suresh and Vijay implicated the accused and they clearly stated that the accused poured petrol on them and set them on fire. In the very same occurrence, they stated that PW1 and Dessi sustained injuries. All the dying declarations are corroborated each other by other prosecution evidence adduced. Further, from the attendant circumstances, we are of the view that the condition of Suresh and Vijay at the relevant time, the evidence tendered by the learned Magistrate, the voluntariness and genuineness of the statement made by the victims Suresh and Vijay and the physical and mental fitness of Suresh and Vijay, are trustworthy. As per the medical evidence, it is fully proved that burns had occurred throughout the body of the above victims. We have considered each dying declaration on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. To put it differently, inconsistencies in the dying declarations are conspicuously absent in the instant case. 52. PW1, who sustained injuries in the very same occurrence stated the details of the occurrence which bring the accused alone in the occurrence. Dying declarations by virtue of Exts.P2, P3 and P4 would irresistibly lead to the version that the burns sustained by PW1, Suresh, Vijay and Dessi, the victims involved in the case were fatal injuries. They have sustained burns extensively all over their body and the percentage of the same has been narrated by the medical experts when examined before court. 53. The next aspect which we must bear in mind is that Ext.P29 scene mahazar shows that there were marks indicating the remnants of burnt materials after setting the victims on fire. The Investigating Officer recovered matchstick and other remnants from the room where the victims had suffered the burns on the date of occurrence. It is also brought out that at the time of occurrence, they were totally disarmed. It has also come out in evidence that the accused purchased petrol from a petrol pump of the Indian Oil Corporation at Ravipuram, as witnessed by PW12, which indicates that just before the occurrence, the accused had purchased petrol in two plastic bottles from the said petrol pump. 54.
It has also come out in evidence that the accused purchased petrol from a petrol pump of the Indian Oil Corporation at Ravipuram, as witnessed by PW12, which indicates that just before the occurrence, the accused had purchased petrol in two plastic bottles from the said petrol pump. 54. Judged by the above standards, we are of the view that dying declarations by virtue of Exts.P2, P3 and P4 are not only in relation to the cause and circumstances of the transaction which resulted in their death, but also leads to the circumstances relating to the death of another person. Hence the statement cannot be held to be in admissibile, when circumstances of 'his' death are integrally connected to the circumstances of death of such other person as held in Tejram Patil's case (supra). 55. In the present case, the facts of pouring petrol on PW1, Suresh, Vijay and Dessi are proved. In the process, on receiving burns resulting in the death of Suresh, Vijay and Dessi are integral part of the same transaction, where Dessi also sustained burns and succumbed to the injuries resulting in his death. PW1 adduced reliable evidence to support the dying declarations by virtue of Exts.P2, P3 and P4. The version of the accused that the victims sustained burns on account of natural causes is not proved. The fact that the accused had also sustained burns in the very same occurrence is not explained away. The court below has rightly found that the defence case is false. 56. In the light of the above stated legal principles, we hold that dying declarations made by the victims Suresh and Vijay by virtue of Exts.P2, P3 and P4 are admissible in evidence as to the circumstances of the transaction which included the circumstances of pouring of petrol and lighting of fire by the accused, resulting in the death of the victims namely, Suresh, Vijay and Dessi. We thus see no infirmity in the impugned judgment of learned trial judge. In our opinion, the guilt u/s.302, 307 and 436 of IPC is proved against the appellant beyond reasonable doubt. 57. The trial court awarded death sentence to the appellant after tallying a balance sheet weighing 'mitigating' circumstances against aggravating circumstances.
We thus see no infirmity in the impugned judgment of learned trial judge. In our opinion, the guilt u/s.302, 307 and 436 of IPC is proved against the appellant beyond reasonable doubt. 57. The trial court awarded death sentence to the appellant after tallying a balance sheet weighing 'mitigating' circumstances against aggravating circumstances. The trial court noted the circumstances of the offender, nature and circumstances of the crime, the dominating position of the accused as employer, triple murders committed by the appellant, heinousness of the offence, adverse reaction of the society, pre-planned manner of crime, burns on the body of the deceased three in numbers and the false defence taken by the appellant during trial, in the light of the settled legal principles in Bachan Singh V. State of Punjab [ (1996) 7 SCC 116 ] and Machhi Singh and Others V. State of Punjab [ (1983) 3 SCC 470 ] and accordingly the trial court held that awarding death penalty was justified. 58. The issue of sentencing u/s.302 of IPC has two aspects. Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. To track in such a discretion between awarding death sentence or life imprisonment, in Swamy Shraddananda @ Murali Manohar Mishra V. State of Karnataka [ (2008) 13 SCC 767 ], a three bench judge of the Apex Court evolved a special category of sentence holding that the court should commute a death sentence and substitute it with life imprisonment with a direction that the convict would not be released from prison for the rest of his life. 59.
59. In Swamy Shraddananda's case (supra), the Supreme Court had considered the following decisions that punishment of imprisonment for life handed down by the court means a sentence of imprisonment for the convict for the rest of his life (see the decisions of the Apex Court in Gopal Vinayak Godse v. State of Maharashtra [ AIR 1961 SC 600 ] (Constitution Bench), Dalbir Singh v. State of Punjab [ (1979) 3 SCC 745 ], Maru Ram v. Union of India [ (1981) 1 SCC 107 (Constitution Bench), Naib Singh v. State of Punjab [ (1983) 2 SCC 454 ], Ashok Kumar v. Union of India [ (1991) 3 SCC 498 ], Laxman Naskar v. State of W.B. [ (2000) 7 SCC 626 ], Zahid Hussein v. State of W.B. [ (2001)3 SCC 750 ], Kamalanantha v. State of T.N. [ (2005) 5 SCC 194 ], Mohd. Munna v. Union of India [ (2005) 7 SCC 417 ] and C.A.Pious v. State of Kerala [ (2007) 8 SCC 312 ]. 60. It is equally settled that when the situation demanded, the Apex Court confirmed death sentences in many rarest of the rare cases when the murder is committed in an extremely brutal and diabolical manner so as to arise extreme indignation of the right thinking members of the society. In Mukesh and another v. State NCT Delhi and others [ (2014) 15 SCC 661 ], Vasanta Sampat Dubare V. State of Maharashtra, [ (2017) 6 SCC 631 ], Khushwinder Singh V. State of Punjab [ (2019) 4 SCC 415 ], Manoharan V. Inspector of Police [ (2019) 7 SCC 716 ], the Supreme Court confirmed death sentences considering the extreme depravity and barbering manner in which the crimes were conducted. 61. Learned counsel for the appellant Sri.Renjith B.Marar contended that imposition of a higher standard of proof for the purpose of the death sentence is necessary on the part of the prosecution to prove the case with absolute or mathematical certainty.
61. Learned counsel for the appellant Sri.Renjith B.Marar contended that imposition of a higher standard of proof for the purpose of the death sentence is necessary on the part of the prosecution to prove the case with absolute or mathematical certainty. Relying on Ashok Debbarma@Achak Debbarma v. State of Tripura [ (2014) 4 SCC 747 ], Ravisankar v. State of Madhya Pradesh [ (2019) 13 SCALE 375 ] and Sudam V. State of Maharashtra [ (2011) 7 SCC 125 ], the learned counsel contended that criminal courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind, some ''residual doubt'', even though the courts are convinced of the accused persons' guilt beyond reasonable doubt. 62. We, therefore must, now turn our attention to the question whether the evidence on record is sufficient to maintain the death sentence awarded to the appellant. In the present case, there are no 'residual doubts' in our mind. We find that the evidence let in by PW1, the dying declarations by virtue of Exts.P2, P3 and P4 and the circumstances involved in this case are sufficient to prove the occurrence with absolute certainty. Accordingly, we hold that the 'residual doubt' as argued by the learned counsel for the appellant cannot be taken as a mitigating factor. However, we are of the view that the facts and circumstances evolved in this case do not fall into the category of 'rarest of rare' case sufficient to shock the collective conscience of the society. All murders are generally brutal and barbaric in nature. The crime may be heinous or brutal, but may not be in the category of the rarest of rare cases. There is nothing on record to show that the appellant is a menace in the society and could not be reformed and thus lesser punishment would expose the polity to peril at his hands. “Rarest of the rare cases” comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society as held in Haresh Mohandas Rajput V. State of Maharashtra, [ (2011) 12 SCC 56 ]. The accused was 22 years of age on the date of the occurrence.
“Rarest of the rare cases” comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society as held in Haresh Mohandas Rajput V. State of Maharashtra, [ (2011) 12 SCC 56 ]. The accused was 22 years of age on the date of the occurrence. In State of Kerala V. Unni [ 2013 (1) KLT 695 (FB)], a Full Bench of this Court had held that the Sessions Courts do not have power to impose harsher variety of life sentences as awarded in Swamy Shraddananda's case (supra). Keeping in mind the doctrine of prudence, though the residual doubt theory is as such not applicable in this case, the nature of the crime and other circumstances involved, including the age of the appellant at the time of committing the murder and the lack of jurisdiction of the learned Sessions Judge to invoke the principles formulated in Swamy Shraddananda's case (supra), we are of the view that the mitigating circumstances tilts in favour of the appellant. We are persuaded to conclude that award of death sentence based on the evidence recorded cannot be upheld in this case. 63. We are thus of the view that the instant case is not one of the rarest of rare cases where the death sentence alone deserves to be awarded to the appellant. Section 302 of IPC imposes a discretion on the court to award sentence of death or life to the offender. Hence, it may be appropriate to impose a restriction on the appellant's right to remission of sentence of life which usually works to 14 years in prison upon remission. Having taken into consideration of the fact that the three precious lives have been lost as a result of the occurrence committed by the appellant, the sentence of death awarded to the appellant is commuted to imprisonment for life as laid down in Swamy Shraddananda's case (supra). 64. Resultantly, DSR No.1/2016 is answered altering the death sentence to that of imprisonment for life and also to pay a fine of Rs.50,000/- (Rupees fifty thousand only) in default to undergo rigorous imprisonment for a period of one year more.
64. Resultantly, DSR No.1/2016 is answered altering the death sentence to that of imprisonment for life and also to pay a fine of Rs.50,000/- (Rupees fifty thousand only) in default to undergo rigorous imprisonment for a period of one year more. However, we are inclined to fix the term of imprisonment as 25 years, without remission, over and above the period of sentence already undergone by the accused, which, in our considered view, would meet the legal principles discussed as hereinabove. 65. Crl.Appeal No.145/2016 filed by the appellant stands allowed in-part as follows:- (i) The conviction of the appellant under Sections 302, 307 and 436 of IPC is confirmed. (ii) The death sentence awarded to the appellant is altered and reduced to imprisonment for life and also to pay a fine of Rs.50,000/-(Rupees fifty thousand only, in default to undergo rigorous imprisonment for one year more. (iii) The appellant shall undergo the term of imprisonment for 25 years, without remission, over and above the period already undergone by him. The DSR and the Crl. Appeal are disposed of, on the same terms as indicated hereinabove.