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Unknown vs Ustab Ali on 6 March, 2020

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Present:

The Hon’ble Justice Joymalya Bagchi

And

The Hon’ble Justice Suvra Ghosh

Death Reference No.2 of 2018
STATE OF WEST BENGAL
. . .APPELLANT
VERSUS

USTAB ALI
. . .RESPONDENT

With

C.R.A. No.130 of 2018

USTAB ALI
. . .APPELLANT

VERSUS

STATE OF WEST BENGAL
. . .RESPONDENT

For the Appellant/(s) : Mr. Sourav Chatterjee, Adv.

Ms. Surasri Baidya, Adv.

For the State/Respondent : Mr. Neguive Ahmed, A.P.P.

Mr. Sanjay Bardhan, Adv.

Heard on : 5.2.2020, 18.2.2020, 26.2.2020

Judgment on : 6.3.2020
2

Joymalya Bagchi, J.:

The appeal and death reference are taken up for hearing analogously and

are being disposed of by this common judgment and order.

By judgment and order dated 7.3.2018 and 8.3.2018 the learned Additional

Sessions Judge, Kandi, Murshidabad in Sessions Case No.374/2015

corresponding to Sessions Trial Case No.29(09) 2015/G.R.1361/2015 convicted

the appellant under section 302 of the Indian Penal Code (hereinafter referred to

as ‘I.P.C.’) and sentenced him to death.

Prosecution case, as alleged against the appellant is to the effect about

seven years ago the appellant married the deceased Nafija Bibi according to

Muslim rites and customs. Initially their conjugal life was happy. However, after

the birth of three daughters, the appellant and his in-laws subjected Nafija to

physical and mental torture. It was further alleged appellant had developed illicit

relation with another woman. On the night of 31.5.2015 when Nafija and her three

children, namely, Amina Khatun (5 years), Marsida Khatun (3 years) and Tuhina

Khatun (1 year) were sleeping in bed the appellant poured kerosene oil on them

and set them on fire. As per written complaint lodged by P.W.1, Golam Mostafa,

father of Nafija, Kandi P.S. Case No.529 of 2015 dated 31.5.2015 under sections

498A/304B/302/34 of I.P.C. and sections 3 and 4 of Dowry Prohibition Act was

registered against the appellant and one Akbar Ali. Appellant was arrested on

1.6.2015. On 6.6.2015 one blue coloured plastic jar smelling of kerosene and

some paddy straw were seized. Post-mortem report was collected and charge-sheet

was filed against the appellant. Charges were framed under sections

498A/304B/302 of I.P.C. Appellant pleaded not guilty and claimed to be tried.
3

In the course of trial, prosecution examined eight witnesses and exhibited a

number of documents.

It was the specific defence of the appellant that on the fateful night he had

gone to the house of his cousin at Hijal Natun Gram to collect firewood and was

not present at his residence when the incident occurred. He, however, did not lead

evidence to probabilise such alibi.

In conclusion of trial, the trial Judge by judgment and order dated 7.3.2018

and 8.3.2018 convicted the appellant under section 302 of I.P.C. and holding the

offence of murdering one’s wife and three minor children fell within the category of

‘rarest of rare’ cases, sentenced the convict to death.

Hence, the present appeal and death reference.

Arguments at the Bar

Mr. Chatterjee, learned advocate appearing on the behalf of the appellant

submitted that no one saw the appellant with the victims on the fateful day. There

is no direct evidence that the appellant had murdered his wife and children. Time

of occurrence has not been proved beyond doubt. It is unclear when the relations

of Nafija came to the place of occurrence. While P.W.s 1 (father of the deceased

Nafija Bibi), P.W. 2 (uncle of Nafija Bibi) and P.W. 4 (brother of Nafija Bibi) saw the

charred bodies in the room, P.W.5 (wife of P.W.4) claimed the bodies had already

been removed from the spot. None of the witnesses apart from investigating officer

(P.W.7) stated they detected smell of kerosene oil from bodies of the deceased

persons or the seized articles. Autopsy surgeon (P.W.6) also did not note smell of

kerosene during post mortem examination. FSL report of viscera of the deceased

persons produced during trial do not show presence of intoxicant in the viscera.

Plastic jar was belatedly seized and was not produced in court. Neither the

wearing apparels of the deceased persons nor the jar had been sent for FSL
4

examination and the trial court notwithstanding absence of scientific evidence

relied on ipse dixit of investigating officer (P.W.7) to come to a finding that the

seized articles as well as the jar smelt of kerosene. No cogent evidence with regard

to illicit relation between the appellant and another woman is forthcoming. Hence,

motive of crime is not proved beyond doubt. He relied on various authorities in

support of his aforesaid propositions and prayed for acquittal of the appellant.

On the other hand, Mr. Ahmed, learned Additional Public Prosecutor for the

State argued that circumstances in the present case establish beyond doubt the

role of the appellant in committing the heinous murders of his wife and three

helpless children in their sleep. The appellant gave a false explanation regarding

his alibi during trial. This is an additional link in the chain of incriminating

circumstances pointing to his guilt. As his wife was unable to bear a male child,

the appellant developed illicit relation with another woman and in a preplanned

manner committed the brutal murder of his wife and three minor children while

they were sleeping. The case falls within the category of ‘rarest of rare’ crimes

justifying death penalty.

Evidence on Record

Prosecution has examined the following relations of the deceased Nafija

Khatun:-

P.W.1 (father), P.W.2 (uncle), P.W.4 (brother) and P.W.5 (brother’s wife).

P.W.1, Golam Mostafa, deposed Nafija was married to appellant. Initially the

marriage was happy. After the birth of three daughters, appellant developed illicit

relation with another woman. As Nafija objected to such relationship, the

appellant tortured her mentally and physically. On 31.5.2015 the appellant

poured kerosene oil on Nafija and his three children, namely, Amina Khatun,

Marsida Khatun and Tuhina Khatun and set them on fire. He reached the spot
5

and found the charred bodies of Nafija and her three children. He lodged written

complaint. He also signed on the inquest report and seizure list. In cross-

examination, he stated he got news of the incident at 6.00 a.m. and thereafter he

came by bus to the place of occurrence. He found smoke emerging from the quilt.

He admitted he could not state the name and address of the woman with whom

the appellant had developed illicit relation.

P.W.2, Motiur Rahaman and P.W.4, Nur Alam Sk. have corroborated the

deposition of P.W.1. Further, P.W.2 stated, after birth of three daughters,

appellant tortured Nafija on demand of money and had developed illicit relation

with another woman. In cross-examination, he stated at 9.00 a.m. he came to the

crime spot and noticed smoke coming from clothing of the deceased persons.

P.W.4 in cross-examination claimed that they left for the residence of the

appellant around 8-8.30 a.m. and reached the residence of the accused one and

half hour later. He saw flame coming out from a portion of the quilt.

P.W.5, Arsina Bibi also corroborated the evidence of other witnesses. She,

however, claimed, the bodies of the victims had been removed by police when they

arrived at the spot.

P.W.3, Tapas Kr. Biswas, Executive Magistrate, held magisterial inquest over

the dead bodies and proved the inquest report (Exhibit-9).

P.W.6, Dr. Md. Rofiqul Hasan held post-mortem over the dead bodies of the

deceased persons, Nafija Bibi, Amina Khatun, Marsida Khatun and Tuhina

Khatun. He proved the post-mortem reports (Exhibits-10, 11, 12 and 13). He

opined death was due to neurogenic shock due to burn injuries and ante-mortem

in nature. In cross-examination, he stated it is not possible to suffer burn injuries

of such nature as noted in the post-mortem reports from a burning lamp. He did

not find smell of kerosene on the bodies of the deceased prsons.
6

P.W.7, S.I. Rajat Das, is the investigating officer. He deposed, the then IC,

Kandi police station directed him to investigate the case. S.I. Md. Hasanuzzaman

received complaint from P.W.1 against appellant and Akbar Ali. He filled up the

formal part of FIR. During investigation, he went to the place of occurrence and

prepared sketch map. He recorded statements of witnesses. He conducted inquest

over the dead bodies of the deceased persons (Exhibits-3 to 6). He took steps for

post-mortem of the bodies. He collected post-mortem reports. He seized burnt

pillow, bed sheet having smell of kerosene under seizure list (Exhibit-7). He

produced burnt pillow and chadar in court. He arrested the accused on 1.6.2015.

He seized blue coloured plastic jar with smell of kerosene and some paddy on

6.6.2015 under seizure list (Exhibit-8). He filed charge-sheet against the appellant.

Examination under section 313 Cr.P.C.

During examination under section 313 Cr.P.C. the appellant stated that he

was not at his residence on the fateful night. In the evening he had gone to the

house of his cousin at Hijal Natun Gram to bring fuel. He could not return home

as he did not get a tractor. He further stated, a kerosene oil lamp used to burn at

night at his residence.

Circumstances relied on by the Prosecution

From analysis of evidence on record, it appears, the case is based on

circumstantial evidence. Prosecution has relied on following circumstances to

establish the guilt of the appellant:-

(a) Appellant was married to deceased Nafija. From the wedlock three

girl children, namely, Amina Khatun (5 years), Marsida Khatun (3

years) and Tuhina Khatun (1 year) were born.
7

(b) After birth of three daughters appellant started torture on Nafija as

he developed illicit relation with another woman.

(c) On the night of 31.5.2015 the appellant poured kerosene oil on

them and set them on fire.

(d) Appellant was not found in his residence in the morning when

relations of Nafija came to the spot.

(e) On the next day, i.e. 1.6.2015 appellant was arrested from the

village.

(f) Post-mortem doctor stated that the victims died due to neurogenic

shock due to severe burns, ante-mortem in nature.

(g) Appellant gave false explanation that he was not at his residence

on the fateful night and had gone to his cousin’s house at Hijal Natun

Gram to fetch fuel. He further stated, a kerosene oil lamp used to

burn in their room at night hinting at accidental fire. Post-mortem

doctor in cross-examination wholly ruled out such possibility.

Analysis of the circumstances vis-à-vis evidence on record

In Sharad Birdhichand Sarda vs. State of Maharashtra1, the Court

while analyzing the law on circumstantial evidence reiterated five golden principles

as “panchsheel of the proof of a case based on circumstantial evidence”:-

“(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established.

(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,

1 1984 SCC (Cri) 487, para 153
8

(3) the circumstances should be of a conclusive nature and
tendency,

(4) they should exclude every possible hypothesis except
the one to be proved, and

(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused.”

It is my endeavour to see whether the aforesaid principles have been fully

satisfied in the present case or not. Fact that the appellant married the deceased

Nafija and three daughters were born from the wedlock has not been challenged. It

is also undisputed that the family resided together in the house where the incident

occurred. Evidence of post-mortem doctor establishes beyond doubt that Nafija

and her three daughters died due to neurogenic shock arising out of severe burn

injuries which were ante-mortem in nature. Possibility of accidental death as

hinted on behalf of the defence from a burning kerosene lamp was ruled out. It is

argued, there is no indication with regard to the time of occurrence in the charge

framed in this case. None of the witnesses, that is, P.W.s 1, 2, 4 and 5 who

claimed the incident took place at night had witnessed it. Post-mortem doctor,

P.W.6, held post-mortem examination on 31.5.2015 at 3.50 p.m. He opined the

death occurred within 24 hours of post-mortem examination. Reaching the place

of occurrence around 9/10 a.m., P.W.s 1, 2 and 4 found smoke coming out from

the quilt and wearing apparels of the deceased. In this backdrop, it may be

concluded that the victims were charred to death in the wee hours of 31.5.2015

and the witnesses found smoke smouldering from the quilt and wearing apparels

when they reached the place of occurrence in the morning. These facts were fully
9

established during trial and the appellant was wholly aware of them. Accordingly,

he was in no way prejudiced due to lack of particularization of time in the charge.

Whether the deaths were homicidal, suicidal or accidental? Manner and

circumstances in which the charred bodies of the victims were found in the bed

leave no doubt in my mind that they had suffered homicidal death. Faint plea of

accidental fire from a burning kerosene lamp had been ruled out by the post-

mortem doctor. P.W.s 1, 2 and 4 came to the spot around 9.00 a.m. and found

smoke coming out from the bodies and clothing of the deceased persons. I do not

give much credence to the deposition of P.W.5, wife of P.W.4, who claimed the

charred bodies had been removed at the time when she arrived at the spot. P.W.5

is a lady and it is possible in order to save her from the trauma of watching the

horrible sight of charred bodies she was made to understand that the bodies had

been taken away by police. Evidence on record establish beyond doubt that the

victims had severe burn injuries while they were sleeping in bed. Charred bodies

were found lying together in the bed and smoke was coming out from the

beddings, wearing apparels etc. Bodies had deep and extensive burn injuries.

These circumstances clearly indicate that the victims were set ablaze in their

sleep. If they were awake when they suffered burn injuries, they would have

definitely run helter skelter in pain and tried to save themselves. This rules out

any possibility of suicidal death. In fact no case of suicidal burning has ever been

suggested by the defence. Accordingly, I hold that the victims were set ablaze in

their sleep and suffered homicidal death. This brings us to the most vital question

who committed the murder of Nafija and her three daughters?

Prosecution evidence shows that Nafija and her daughters used to reside

with the appellant in the house. Evidence has also come on record after the birth

of three girls, the appellant had developed illicit relation with another woman and
10

as Nafija protested she was subjected to mental and physical torture. Bodies of

Nafija and her three children were found in the bed with severe burn injuries on

the morning of 31.5.2015. P.W.s 1, 2 and 4 found smoke emanating from the

beddings and wearing apparels. These circumstances for reasons recorded

hereinbefore clearly establish the homicidal death of the victims due to burn

injuries. No evidence of any outsider breaking into the room where the incident

occurred is forthcoming. No broken door or window was found at the place of

occurrence. These circumstances leave no doubt that Nafija and her daughters

were set on fire by a person who ordinarily resided with them, that is, the

appellant. After setting them on fire the appellant had run away and was not

found in the house on the morning of 31.5.2015. On the next day, he was

arrested. These circumstances unerringly point to the guilt of the appellant. False

plea of alibi raised by the appellant during trial provide an additional link to the

aforesaid chain of circumstances pointing to his guilt. Appellant claimed, he had

gone to the residence of his cousin at Hijal Natun Gram to bring fuel. He did not

examine any witness to probabilise such alibi. On the other hand, there is

evidence that the appellant used to reside with his wife and three children in the

house. It has been argued neighbours have not been examined to show that the

appellant was present in the house on the fateful night. As it is normal human

conduct that a couple would be together at night, non-examination of neighbours

is not fatal to the prosecution case. Under such circumstances, it was incumbent

on the appellant to probabilise his alibi that he had been away from his residence

at night as contended by him during his examination under section 313 Cr.P.C. I

am not unmindful of the fact that prosecution must stand on its own leg and not

rely on the weakness of the defence. However, when the circumstances of the case

give rise to an irresistible inference that the appellant ordinarily resided with his
11

wife and children in the house, it was incumbent on him to probabilise his

absence from the residence on the fateful night when his wife and children

suffered homicidal death. In the backdrop of the aforesaid facts, one may safely

conclude the false plea of alibi taken by the appellant is an additional

incriminating fact, which establishes his guilt beyond doubt.

Authorities relied upon by the appellant are inappropriate. In State of

Rajasthan vs. Ramanand2, the Apex Court upheld acquittal of the accused as

there was no reliable evidence that the accused was guilty of murder of his wife. In

fact, he had lodged complaint at the earliest opportunity regarding her death. On

the other hand, in the present case, the appellant was not found at his house in

the morning and raised a false plea of alibi which he failed to probabilise during

trial.

In State of Gujarat vs. Sonbai3, possibility of presence of a third person at

the place of occurrence could not be ruled out. Hence, conviction of stepmother for

killing her two stepsons was set aside. In the instant case, no evidence is

forthcoming that any outsider had broken into the room where the wife and

daughters of the appellant were set on fire. Hence, the aforesaid case is, therefore,

of little assistance to the appellant.

In Reena Hazarika vs. State of Assam4, one of the witnesses, that is

P.W.1 had claimed that the deceased told him that he suffered head injury due to

fall. In view of the contradictory evidence with regard to the circumstances leading

to the injury on the victim, accused/wife was acquitted. Manner and

circumstances in which the charred bodies of the deceased persons were found in

the bed room leaves no doubt that they had suffered homicidal death while they

2 (2017) 5 SCC 695
3 1991 Supp (2) SCC 120
4 (2019) 13 SCC 289
12

were sleeping at night. In the backdrop of the aforesaid facts and false plea of alibi

taken by the appellant, I am of the opinion, the present case is distinguishable

from the cited one.

Accordingly, I have no hesitation to hold that the prosecution has been able

to prove the guilt of the appellant beyond doubt and his conviction is accordingly

upheld.

Death sentence – whether justified

Trial Judge was of the opinion in view of the heinousness and gravity of

offence, brutality of attack, number of persons murdered, their age, vulnerability

and gender and the fact the appellant was in a position of trust to the victims, the

instant case fell within the ‘rarest of rare’ category justifying imposition of the

maximum sentence of death.

From the time of Bachan Singh5 till date penology in death sentencing is

pivoted on the premise whether the case fell within ‘rarest of rare’ category or not.

In order to arrive at such conclusion, the court is required to make a balance-

sheet of aggravating and mitigating circumstances and come to the following

conclusion:-

“…..(a) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is
no alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender?”6

5 Bachan Singh vs. State of Punjab (1980) 2 SCC 684
6See Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470, para 39
13

The court must give due weightage to the ‘crime test’, that is, aggravating

circumstances relating to the crime as well as ‘criminal test’, that is, mitigating

circumstances relating to the offender and come to a conclusion that the

possibility of rehabilitation of the offender is wholly foreclosed before imposing the

irreversible sentence of death.

In the present case the aggravating and the mitigating circumstances may

be enumerated as follows:-

Aggravating Circumstances:-

(a) All the victims were female and three of them were minor children.

(b) Appellant being the husband and father of the victims betrayed

their trust and committed the crime.

(c) Victims were vulnerable and defenceless as they were sleeping at

the time when the incident occurred.

(d) Appellant had acted with premeditation and the offence was a

diabolical one.

(e) Motive of the crime is a deplorable one. He was unhappy with his

wife since she had given birth to three daughters and had

developed an illicit relation with another woman.

Mitigating Circumstances:-

(a) Appellant was a young person aged about 26 years at the time of

occurrence.

14

(b) He does not have any criminal antecedent.

(c) Report has been received from Berhampore Central Correctional

Home, Murshidabad, where the appellant has been kept for the last

two years and it appears from the said report that he is always

found to be ‘well-disciplined’ and ‘well-behaved’.

Trial judge was swayed to impose the sentence of death, inter alia, holding

that the appellant committed a heinous and diabolical crime by burning

vulnerable and defenceless victims who were dependent on him in their sleep.

Such crime, according to the judge, shocked the collective conscience of the

community which ‘necessitated awarding death penalty’.

In Gudda @ Dwarikendra vs. State of Madhya Pradesh7, the Apex Court,

inter alia, held neither the ‘number of death’ nor ‘brutality of crime’ are sole

criteria to come to the finding the case falls within the ‘rarest of rare’ category:-

“This Court has consistently held that the number of
deaths or the factum of the whole family being wiped off
cannot be the sole criteria for determining whether the
case falls in the category of “the rarest of the rare”. (See
Aqeel Ahmad v. State of U.P., Ram Pal v. State of U.P.)
Further, we cannot lose sight of the fact that brutality
also cannot be the only criterion for determining whether a
case falls under the “rarest of the rare” category. In
Panchhi v. State of U.P., this Court has reiterated the said
principle and thereby justified the commutation of
sentence from death to life imprisonment.”

The aforesaid case involved the murder of three persons including a five year

old child and a pregnant lady and according to the Court, the appellant was a

person in a position of trust to the victims.

15

In State of Maharashtra vs. Goraksha Ambaji Adsul8, three members of a

family were murdered in the course of a family feud over ancestral property. The

Apex Court declined to come to a conclusion that the convict had committed a

crime which fell in the ‘rarest of rare’ category justifying death penalty. It may not

be out of place to note that in the said case the convict had acted with

premeditation by offering sweets containing sedatives to the victims in order to put

them to sleep and thereafter strangulated them.

Similarly, in Amar Singh Yadav vs. State of Uttar Pradesh9, the appellant, a

police constable, had murdered his wife and two out of four children by setting on

fire a Maruti van which was occupied by the victims. In the aforesaid case, the

Apex Court while noting the most cruel and inhuman manner in which the crime

was committed converted the sentence of death to one of life without remission for

thirty years as there was “no reason to believe that the accused cannot be reformed

or rehabilitated and that he is likely to continue criminal acts of violence as would

constitute a continuing threat to the society.”

These authorities clearly establish that neither the number of victims nor

the brutality of the crime are the sole determining factors for imposition of death

penalty. No doubt, they are relevant considerations. However, each case has to be

assessed on its own factual matrix to come to a conclusion whether a balance of

aggravating and mitigating factors eliminate all possibility of reformation and

rehabilitation of the convict and render death sentence as the only alternative. I

have analysed the circumstances in the present case from that perspective. For

the reasons recorded hereinbefore, I am convinced that the circumstances

establish the guilt of the appellant beyond doubt. However, it is one thing to

7 (2013) 16 SCC 596, paras 27 28
8 (2011) 7 SCC 437
16

assess the circumstances to ascertain guilt of an accused, it is entirely different to

analyse the said circumstances for the purpose of sentencing. In Santosh Kumar

Satishbhushan Bariyar Vs. State of Maharashtra10, quality of evidence

adduced was considered to be a relevant factor in the matter of sentencing. The

Court held that:-

“Circumstances which may not have been pertinent
in conviction can also play an important role in the
selection of sentence.”

Judging the circumstances of the case from that perspective I note that

there are certain investigational lapses and/or deficiencies which though does not

affect the conclusiveness of guilt may leave a residual doubt in the mind of the

court with regard to culpability of the appellant. Lapses in investigation which may

leave residual doubt in the mind of the court are as follows:-

(a) No forensic test was held to prove presence of kerosene oil in the

seized beddings and other articles.

(b) No one apart from investigating officer (P.W.7) deposed there was

smell of kerosene in the seized articles.

(c) No smell of kerosene was found by post-mortem doctor on the

bodies of the deceased persons.

(d) Plastic jar was belatedly seized and was neither sent for forensic

examination nor produced in court.

(e) Identity of the lady with whom the appellant allegedly had an illicit

relation had not been established.

9 (2014) 13 SCC 443
10 (2009) 6 SCC 498, para 57
17

Principle of residual doubt as a mitigating circumstance has been recently

incorporated in Indian jurisprudence in the last decade. In Ashok Debbarma vs.

State of Tripura11, the Apex Court quoting American authorities held, the

prosecution case must transcend beyond reasonable doubt to absolute certainty to

qualify as one where death sentence may be awarded.

Similar view has been taken in Sudam @ Rahul Kaniram Jadhav vs. State of

Maharashtra12, wherein the convict had murdered his wife and four children and

was initially awarded death sentence. In review, the Apex Court adopting the

aforesaid doctrine of residual doubt commuted death sentence to one of life

imprisonment without any right to remission.

Principle of residual doubt was again applied by the Apex Court to convert

sentence of death to one of life imprisonment in Ravishankar @ Baba

Vishwakarma vs. State of Madhya Pradesh13, where a minor was raped and

murdered.

The Law Commission of India14 while noting the vagaries of the criminal

justice system involving lack of resources, outmoded techniques of investigation,

ineffective prosecution and poor legal aid recommended the abolition of death

penalty for all crimes except terrorism related cases. It noted as follows:-

“Numerous committee reports as well as
judgments of the Supreme Court have recognized
that the administration of criminal justice in the
country is in deep crisis. Lack of resources,
outdated modes of investigation, over-stretched
police force, ineffective prosecution, and poor legal
aid are some of the problems besetting the system.

Death penalty operates within this context and
therefore suffers from the same structural and

11 (2014) 4 SCC 747
12 (2019) 9 SCC 388
13 (2019) 9 SCC 689
14 Law Commission of India, The Death Penalty, (Report no. 262 , August 2015), para 7.1.6
18

systemic impediments. The administration of
capital punishment thus remains fallible and
vulnerable to misapplication. The vagaries of the
system also operate disproportionately against the
socially and economically marginalized who may
lack the resources to effectively advocate their
rights within an adversarial criminal justice
system.”

The aforesaid observation of the Law Commission relating to outmoded

investigational techniques and ineffective prosecution justifies the invocation of

doctrine of residual doubt in our jurisprudence. When tools for unraveling truth

are themselves blunt or ineffective, one must come to an absolute certainty with

regard to guilt of an offender bereft of any shadow of lingering doubt arising out of

sublime or unexplored factors before the court may proceed to pronounce a

sentence of death.

Present case is a glaring example of investigational and prosecutorial lapses.

No forensic test to detect the presence of kerosene oil either on the beddings or on

the wearing apparels of the deceased persons was undertaken. Seized jar smelling

of kerosene was also not sent for FSL examination. Neighbours of the appellant

were not examined in court. These circumstances leave a lingering doubt whether

the guilt of the appellant has been established with absolute certainty although

one may have no doubt that the evidence on record is sufficient to uphold the

conviction.

Trial Judge has relied on various authorities which are factually

distinguishable.

In Ranjeet Singh vs. State of Rajasthan15, the appellant was convicted of

murdering eight persons. Prosecution case was essentially based on the evidence

15 (1988) 1 SCC 633
19

of approver which was corroborated by other witnesses. Some of the prosecution

witnesses heard cries of the victims and also witnessed part of the incident. In the

present case, there is no eye-witness to the incident. That apart, issue of residual

doubt as evolved and applied in the last decade had not been addressed in the

aforesaid report. Subsequent evolution of law, particularly in the matter of

identifying mitigating circumstances in death penology must prevail over earlier

authorities when such principle had neither been recognised nor applied.

It is settled law an authority is not a proposition for an issue which was neither

raised nor argued. [See Rajput Ruda Meha and Others vs. State of Gujarat16]

In State of Rajasthan vs. Kheraj Ram17, the accused was convicted of

murder of his wife as he suspected her fidelity. He had made an extrajudicial

confession which was believed by the Court. Other circumstances also established

his guilt. The Apex Court stated that the appellant acted in a pre-planned manner

and had executed the murder. He had no remorse and was seen smoking ‘chilam’

calmly. Accordingly, the Court imposed death sentence. In the present case, no

evidence is forthcoming that the appellant had committed the crime in a pre-

planned manner. Prosecution has not led evidence relating to appellant procuring

kerosene oil to commit the crime. No forensic report with regard to presence of

kerosene in the seized jar has been produced in court. In the face of the aforesaid

facts, I am of the view that the instant case does not portray similar state of facts

to justify imposition of death sentence.

In Ajitsingh Harnamsingh Gujral vs. State of Maharashtra18, convict was

sentenced to death for burning his wife and three grown up children. Evidence

had come on record in the said case that there was quarrel between the couple on

16 (1980) 1 SCC 677/AIR 1980 SC 1707, para 6
20

the night of the incident and on his leading statement the bucket used for

throwing petrol was recovered. Under such circumstances, death sentence was

imposed. Facts in the present case are not exactly the same as in the reported

decision. Due to investigational and/or prosecutorial lapses, absolute certainty

with regard to the guilt of the appellant cannot be said to have been established.

Imposition of death sentence may, therefore be not advisable.

Furthermore, in Viran Gyanlal Rajput vs. State of Maharashtra19, the Apex

Court considering good conduct of a young convict during incarceration commuted

his death sentence. Ratio of the aforesaid case applies with full force to the facts of

this case.

Upon weighing the aforesaid factors, I am of the opinion the prosecution has

failed to establish that the possibility of reformation and rehabilitation of the

convict is wholly ruled out. Under such circumstances and in the light of lingering

residual doubt vis a vis guilt of the appellant, it may not be prudent to confirm the

death sentence imposed upon him. Accordingly, death sentence imposed upon the

appellant is set aside. He is sentenced to imprisonment for life without remission

for a period of thirty years and to pay a fine of Rs.10,000/- (rupees ten thousand

only) in default to suffer rigorous imprisonment for one year more.

Death Reference No.2 of 2018 and Criminal Appeal No.130 of 2018 are thus,

disposed of.

17 (2003) 8 SCC 224
18 (2011) 14 SCC 401
19 (2019) 2 SCC 311
21

The period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off from the substantive sentence imposed upon him

in terms of section 428 of the Code of Criminal Procedure.

A copy of the judgment along with L.C.R. be sent down to the trial Court at

once for necessary action.

Urgent Photostat certified copy of this order, if applied for, be given to the

parties on priority basis upon compliance of all formalities.

I agree.

(Suvra Ghosh) (Joymalya Bagchi, J.)

PA to J. Bagchi, J.

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