2013 3 1502 21150 Judgement 05-Mar-2020

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. ……….. OF 2020

[Arising out of SLP (Crl.) No. 8682 of 2014]
Manoj Suryavanshi .. Appellant
Versus
State of Chhattisgarh .. Respondent
JUDGMENT
M. R. Shah, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 08.08.2013 passed by the Division
Bench of the High Court of Chhatisgarh at Bilaspur in Criminal
Appeal No. 550 of 2013 and Criminal Reference No. 05 of 2013, by
which the Division Bench of the High Court has dismissed the said
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2020.03.05
16:42:06 IST
Reason:
appeal preferred by the appellant-original accused and has
confirmed the judgment and order of conviction and death sentence

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awarded by the learned Trial Court for the offences punishable
under Section 302 of the IPC for having killed the three minor
children of the complainant Shivlal – P.W.18 and also for the
offences punishable under Section 364 of the IPC, the original
accused has preferred the present appeal.
3. As per the case of the prosecution, at 7.00 AM on 11.02.2011,
two sons of one Shivlal-original complainant – Vijay aged about 8
years, Ajay aged about 6 years and Kumari Sakshi aged about 4
years left their home in Darripara to attend the school at
Karaihapara and reached the school. On the school getting over at
11.30 AM, the three minors left the school for home on foot. When
they did not reach home, Shivlal-P.W.18 looked for the children in
the vicinity and went to school and enquired about the children.
On enquiry at the school, the teachers of the minor children told
Shivlal that the three minors had come to the school and on the
school getting over they had left the school for home on foot. That,
thereafter Shivlal and others looked for the three minors. On not
finding the three minor children, Shivlal-P.W.18 went to the police
station, Raipur and lodged the Missing Person Report. The missing
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person report was registered in the Daily Journal (Ex. P-18) by the
Head Constable Krishna Kumar Koshle-P.W.17. During the search
of three minor children, one Ashok Patel-P.W.8 stated that he had
seen the minor children along with the appellant-accused near the
school. As per the case of the prosecution, on 11.02.2011,
Rameshwar-P.W.11 contacted the accused on cell-phone and talked
with him and the accused asked Shivlal-P.W.18 how he was feeling
when his children are missing. According to the prosecution, the
accused was working as labourer in the house of Shivlal. It was
alleged that the wife of the accused, namely Sumrit Bai, eloped with
the younger brother of the complainant, namely Shivnath Dhiwar
and with the view to take revenge, the appellant abducted the
minors and thereafter killed them. The FIR-Ex.24 was lodged
against the accused initially for the offences under Sections 363
and 364 IPC. According to the prosecution, after the FIR was
lodged, the accused was contacted on his mobile no. 9179484724.
The accused received the call and told that he was 60 kms away.
The Investigating Officer-P.W.24 asked the Head Constable Hemant
Aditya, Crime Branch to trace the said mobile number and to tell its
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location. Then the Head Constable Hemant Aditya traced the
location of the said mobile and the location was found near Village
Lakhram. That, thereafter the Investigating team went to the
house of one Ashok Kumar Madhukar-P.W.13, a relative of the
accused. Initially, the accused was not in home. However,
thereafter continuing the search, they again went to the house of
the said Ashok Kumar Madhukar. According to the case of the
prosecution, thereafter the accused was found and brought to the
police station. He was interrogated in the presence of the
witnesses. A memorandum of statement Ex.P.2 was recorded
under Section 20 of the Evidence Act. On the basis of the
memorandum Ex.P.2 and at the instance of the accused, in the
barren land in Karaihapara – in the field of one Damodar Beldar,
the dead bodies of the three minors were recovered from the spot of
site. The Investigating Officer collected the incriminating materials
during the course of the investigation. The mobile of the accused
was also seized. The Investigating Officer conducted the
Panchnama of the dead bodies of the three minors. The dead
bodies were sent for post-mortem. One Dr. A.M. Srivastava-

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P.W.23 conducted the post-mortem. The cause of death of the three
minors was strangulation and the deaths were found to be
homicidal. During the investigation, the Investigating Officer
received the call details – Ex.P.30 of the mobile phone of the
accused. During the investigation, the Investigating Officer
recorded the statement of the witnesses, including the statement of
the original complainant Shivlal and others. That the accused was
arrested as per the memorandum dated 13.02.2011. After
conclusion of the investigation, it was found that the accused had
first abducted and thereafter killed the three minors to take the
revenge as his wife eloped with the brother of the complainant
Shivlal and thereby committing the offences punishable under
Section 302 and Section 364 IPC. The Investigating Officer filed
the charge-sheet against the accused for the aforesaid offences.
The case was committed to the Court of Sessions. The accused
pleaded not guilty and therefore he came to be tried for the
aforesaid offences.
4. To prove the charges against the accused, the prosecution
examined as many as 24 witnesses as under:

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P.W. NAME AND DATE

NO. OF DEPOSITION
P.W.1 Preetam Dhiwar Witness who seen the minor
15.06.2011 children with the accused for
the last time.
P.W.2 Hafiz Ali Independent witness
16.06.2011
P.W.3 Frukh Khan Independent witness
16.06.2011
P.W.4 Pooja Tiwari Witness of minors leaving the
16.06.2011 school together for home on
foot after the school getting
over.
P.W.5 Jilani Baig Witness of minors leaving the
17.06.2011 school together for home on
over.
P.W.6 Krishna Kumar Witness of seizure of Registers
Yadav concerning the attendance of
17.06.2011 the minors in school.
P.W.7 Damodar Singh Witness of recording the
08.08.2011 statements of the prosecution
witnesses under Section 161
Cr.P.C.
P.W.8 Ashok Patel Witness who seen the minor
08.08.2011 children with the accused for
the last time.
P.W.9 Imrat Singh Maternal uncle of the minor
11.08.2011 children.
P.W.1 Shweta Tiwari Witness of minors leaving the
0 12.08.2011 school together for home on
over.
P.W.1 Rameshwar Independent witness
1 12.08.2011
P.W.1 Ashish Kumar Witness who conducted the
2 Gupta photography of the dead bodies
20.9.2011 of the minors.
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P.W.1 Ashok Kumar Witness of the presence of the

3 Madhukar accused in his house situated
20.09.2011 in Lakhram and of his being
hidden.
P.W.1 Bharat Lal Witness of the preparation of
4 Dewangan map of the spot of incident.
21.09.2011
P.W.1 Anil Shitlani Witness of seizure of mobile
5 21.09.2011 phone of the accused.
P.W.1 Bharat Lal Witness of the dead bodies of
6 Chandravansi the minors being taken to the
22.09.2011 doctor for post-mortem
P.W.1 Krishna Kumar The Head-Constable who
7 Koshle registered the missing report in
22.09.2011 the Daily Journal
P.W.1 Shivlal Dhimar Father of the minor children.
8 16.11.2011
P.W.1 Santosh Kumar Witness of recording of
9 Yadav statements during investigation
17.11.2011 of missing report.
P.W.2 |Smit Manisha Mother of the deceased minor
0 Dhimar children.
17.11.2011
P.W.2 Dr. A.K. Doctor who conducted the post-
1 Shrivastava mortem and gave the post-
18.11.2011 mortem report.
P.W.2 Lav Kush Kashyap Witness of recording the
2 09.01.2012 statements of the prosecution
witnesses under Section 161
Cr.P.C.
P.W.2 Dr. A.M. Srivastava Doctor who conducted the post-
3 17.02.2012 mortem and gave the post-
mortem report.
P.W.2 B. Kujur The Investigating Officer
4 17.02.2012
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4.1 During the trial, the prosecution brought on record as many
as 41 documentary evidences. The relevant evidences are as under:
SL. DESCRIPTION EX. NO.

NO.
4. Seizure Memo of the attendance register Ex.P1
of the deceased dated 17.02.2011 at 3.30
pm
5. Memorandum of accused dated Ex.P2
13.02.2011
8. Seizure memo of school bags, plastic Ex.P5
bottle and soil from where Ajay’s body has
been found.
10. Inquest / Panchnama of deceased Ajay Ex.P7
12. Inquest / Panchnama of deceased Vijay Ex.P9
14. Inquest / Panchnama of deceased Sakshi Ex.P11
18. Site Map prepared by Patwari Ex.P12
19. Panchnama of Site Map in presence of Ex.P13
witnesses
20. Seizure Memo of mobile phone of accused Ex.P14
23. Missing Person Complaint dated Ex.P16
12.02.2011 filed by PW18, Shivlal
24. Roznamcha Ex.18C
31. FIR No. 64/2011 under Section 363, 364 Ex.P25
IPC registered by PS Ratanpur
34. Arrest Memo dated 13.02.2011 Ex.P28
35. Intimation of arrest of relative Ex.P29
36. CDR Ex. P30
39. Report received from FSL Raipur Ex.P33
41 Village Map Art. A
4.2 After closure of the evidence by the prosecution, further
statement of the accused under Section 313 CrPC was recorded.

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The case of the accused was of a total denial. He did not examine
any witness in support of his defence. That, thereafter, on
appreciation of evidence and giving the fullest opportunity to the
accused, the learned Trial Court held the accused guilty for the
offences punishable under Sections 302 and 364 IPC. After
considering the aggravating and mitigating circumstances and after
having heard the accused on the quantum of sentence, the learned
Trial Court awarded the death sentence, which was numbered as
Reference No. 05 of 2013 before the High Court. Feeling aggrieved
and dissatisfied with the judgment and order of conviction passed
by the learned Trial Court, the original accused also preferred an
appeal before the High Court, being Criminal Appeal No. 550 of
2013. Both, the appeal preferred by the accused as well as the
reference case were heard together by the High Court. By the
impugned judgment and order, the High Court has dismissed the
appeal preferred by the accused and has confirmed the conviction
and the death sentence awarded by the learned Trial Court. Feeling
aggrieved and dissatisfied with the impugned judgment and order
passed by the High Court in dismissing the appeal preferred by the

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accused and also confirming the death sentence awarded by the
learned Trial Court, the original accused has preferred the present
appeal.
5. Shri Singh, learned counsel appearing on behalf of the
appellant-original accused has vehemently submitted that in the
facts and circumstances of the case both, the learned Trial Court
and the High Court have committed grave error in holding the
appellant-original accused guilty for the offences punishable for the
offences under Section 302 and Section 364 IPC.
5.1 It is further submitted on behalf of the appellant-original
accused that both the Courts below ought to have appreciated that
there was no eye-witness to the incident and the whole conviction
was based on the circumstantial evidence. It is submitted that, in a
case of circumstantial evidence, unless the entire chain of events is
complete, which leads to the only conclusion that it is the accused
only who has committed the offence, a person cannot be convicted.
It is submitted that in the present case the prosecution has failed to
form a complete chain of circumstances and the instance which

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leads exclusively to the conclusion that the appellant only was
guilty of committing the offence.
5.2 It is further submitted on behalf of the appellant-original
accused that both the Courts below have materially erred in holding
the appellant-original accused guilty for the offences punishable
under Sections 302 and Section 364 IPC for having killed the three
minor children relying upon the prosecution witnesses, more
particularly, P.W.1, P.W.8, P.W.13, P.W.18 and P.W.24 and other
eye-witnesses.
5.3 It is further submitted by the learned counsel appearing on
behalf of the appellant-original accused that the case against the
appellant is based on three sets of circumstances: (i) last seen
evidence; (ii) recovery of bodies pursuant to a disclosure memo and
(iii) alleged calls made to the appellant during the search for the
missing children. It is further submitted that the prosecution has
sought to use the calls made to the appellant and the testimony of
P.W.13 as an extra-judicial confession made by the appellant. It is
submitted that such an extra-judicial concession is not admissible
in law.
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behalf of the appellant-original accused that to establish and prove
the last seen evidence, the prosecution has relied upon the
depositions of P.W.1 and P.W.8, whose evidences are full of material
contradictions. It is submitted that as such both the Courts below
have materially erred in heavily relying upon the depositions of
P.W.1 and P.W.8, insofar as last seen evidence is concerned.
behalf of the appellant-original accused that so far as P.W.1 is
concerned, he has specifically stated that he was stating the
material evidence for the first time in the court. It is submitted that
though another witness – Surya Pratap Dhimar was present with
P.W.1 on 11.02.2011, the prosecution had chosen not to examine
the said witness. It is submitted that P.W.1 is neither credible nor
reliable. It is submitted that dropping of a cited witness Surya
Pratap Dhimar has been unexplained by the prosecution. It is
submitted that this circumstance will operate as a presumption
against the prosecution in terms of Section 114(g) of the Indian
Evidence Act.
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5.6 Now, so far as the reliance placed upon the deposition of
P.W.8, who is the second last seen witness is concerned, it is
submitted that P.W.8 states that he communicated that he has
seen the accused with the deceased to P.W.9-Imrat Singh @ Mungi
Lal. It is submitted that, however, P.W.9 has categorically denied
knowing any person named as Ashok, where he resides. It is
submitted that he has affirmed that he had no conversation with
Ashok.
It is further submitted that as per the prosecution P.W.8
communicated his sighting of the missing children to P.W.18 and
his friends - P.W.2 and P.W.3. It is submitted that P.W.2 states
that they met Ashok Patel at about 6/6.30 pm near Dholpara, but
in his cross, has denied knowing Ashok Patel or having any
conversation with him. It is submitted that P.W.18 claimed that he
met P.W.8 near Darriparra prior to meeting P.W.2 and P.W.3. It is
submitted that though P.W.3 maintains that he met P.W.8 and
Dholpara, the testimony of P.W.18 belies the testimony of P.W.3. It
is submitted that the testimony of P.W.2, P.W.3 and P.W.18 that
they met P.W.8 is belied by P.W.8 himself who has unequivocally

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affirmed that P.W.18 and his friends did not come to him searching
for the children. It is submitted that therefore it is not safe to rely
the testimony of P.W.8 also.
behalf of the appellant-original accused that the prosecution has
not proved geographical proximity between the alleged sighting of
the appellant and the place of residence of the children; their school
or the location where the bodies were recovered. It is submitted
that there is no evidence on record to suggest that the fields where
the bodies were found were in the same direction as the children
were walking when they had been allegedly sighted.
5.8 It is further submitted that furthermore the medical evidence
concludes that the time of death of the children was between 12
noon on 11.02.2011 and midnight of the intervening night of
11/12.02.2011. It is submitted that therefore an alleged sighting in
the beginning of this period is not proximate to the time of death. It
is further submitted that even the missing person complaint dated
11.02.2011 does not refer to last seen evidence. It is submitted
that it was entered on the Roznamcha at 9.40 am on 12.02.2011. It

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is submitted that the Roznamcha is silent on the suspicion of
kidnapping by the appellant. It is submitted that neither the
complaint nor the Roznamcha contain any last seen evidence or
evidence with respect to the alleged calls between the appellant and
P.W.18. It is submitted that the FIR that is lodged on 12.02.2011
at 11.40 pm has a mention of P.W.8. It is submitted that therefore
the last seen evidence of P.W.8 is recorded for the first time only on
the intervening of 12-13.02.2011, which is also the time of the
appellant’s arrest. It is submitted that it is the settled law that the
circumstance of last seen together cannot by itself form the basis of
conviction and can only be an incriminating circumstance. In
support thereof, the learned counsel for the appellant has relied
upon the decisions of this Court in the cases of Digamber
Vaishnav v. State of Chhattisgarh (2019) 4 SCC 522, Anjan
Kumar Sarma v. State of Assam (2017) 14 SCC 359 and Ganpat
Singh v. State of Madhya Pradesh (2017) 16 SCC 353. It is
submitted that in light of the principles stated in the aforesaid
decisions, the testimony of P.W.8 does not inspire confidence and
cannot be relied upon as last seen evidence.

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behalf of the appellant that another circumstances considered by
the Courts below against the appellant is the calls and extra-
judicial confession.
5.10 It is submitted that the evidence against the appellant refers to
two calls involving the appellant. The first call is between the
appellant and P.W.11 and the second call is between the appellant
and P.W.18. It is submitted that with respect to P.W.11’s call,
P.W.11 categorically states that the call was on 12.02.2011 at night
which is when the appellant was in the custody of the police. It is
submitted that he further improved his version when he was re-
examined by the Trial Court. It is submitted that neither P.W.2 nor
P.W.18 has testified to this call. It is submitted that neither the
fact nor the contents of this call were put to the appellant during
his examination under Section 313 Cr.P.C.
5.11 It is further submitted that the prosecution has relied upon
the extracts of the appellant’s CDR-Ex.P30 (Call Details Report),
which does not contain any call made or received on 12.02.2011.
It is submitted that even otherwise the production of CDR is

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through the Investigating Officer who in turn receives it from the
Head Constable Hemant Aditya. It is submitted that there is no
material on record to show the manner in which the CDR was
obtained. It is submitted that even the CDR is not accompanied by
a certificate under Section 65-B of the Evidence Act. It is submitted
that therefore the calls/call details contained in the CDR-Ex.P30
are neither believable nor has been proved by the prosecution.
5.12 It is further submitted that so far as P.W.18 is concerned, he
has alleged a call made by him to the appellant on 11.2.2011. It is
submitted that the said call has not been corroborated by any other
witness. It is submitted that even it does not find mention in the
complaint, Roznamcha or the FIR, which are dated 11.2.2011. It is
submitted that there remains a discrepancy in P.W.18’s version of
when he lodged the missing person complaint.
5.13 It is further submitted that the prosecution has not seized the
phone, SIM card or any material with respect to P.W.18’s phone
records which would have proved the veracity of P.W.18’s
statement. It is submitted that even there is no material on record
to prove the phone number of P.W.18.

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5.14 It is further submitted that so far as the confession made by
P.W.13-Ashok Kumar Madhukar is concerned, no other document
or witness mentions his presence during the alleged recovery
proceedings. It is submitted that the statement made by the
appellant do not amount to a confession of the offence as a whole,
or of any inculpatory fact. It is submitted that since the appellant
was in police custody at that time, any confession made by him
would be inadmissible in terms of Section 26 of the Evidence Act,
irrespective of whom the alleged confession was made to. It is
submitted that therefore both, the Trial Court and the High Court
have materially erred in convicting the appellant on the basis of
such call details and/or the alleged confessions made to the
respective witnesses.
6. Now, so far as the conviction based upon the recovery of dead
bodies of the deceased minors is concerned, it is submitted that the
said recovery was made from an open area that had been searched
previously. It is submitted that as per the settled preposition of law
the recovery made from an open place, accessible to all and which
is not in the exclusive knowledge of the accused cannot be the basis

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of conviction. It is submitted that therefore the recovery of the
bodies at the instance of the appellant is full of suspicion.
6.1 It is further submitted that neither PW.7 nor P.W.22 who are
the independent witnesses to the disclosure memorandum and all
other documents relating to recovery proceedings on the intervening
night of 11.01.2011 and 12.1.2011, lend support to the recovery. It
is submitted that P.W.7 has specifically stated that he signed on
blank papers on the asking of the police and that he did not know
about the case. It is submitted that he has further stated that the
documents were not read over to him by the police and that no
notice/summons were given by the police to remain present for
seizures.
6.2 It is further submitted that P.W.22 also does not remember
the date on which the alleged events took place.
6.3 It is further submitted that all recovery related proceedings are
ante-dated and the same is proved from the evidence of P.W.22
himself. It is submitted that P.W.22 states that the interrogation of
accused continued till 9.00 pm on 12.02.2011 and that they went
to the field at 10.30-11.00 pm. It is submitted that even P.W.18

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and P.W.22 testify that all documentation with respect to the
recovery was done the next day at 9.00 pm. It is further submitted
that even there is a discrepancy with respect to the time and place
of arrest of the appellant which renders the recovery doubtful. It is
submitted that therefore on the basis of the alleged recovery, the
appellant could not have been convicted.
6.4 It is further submitted that even the recovery cannot be said to
be voluntary as the appellant was detained in custody without any
formal arrest.
6.5 It is further submitted that even the medical and forensic
examination does not support the recovery. It is submitted that the
post-mortem reports of the victims indicate the presence of incised
wounds on the bodies caused by a hard and sharp/blunt object. It
is submitted that, however, no such weapon was recovered at the
instance of the appellant. It is submitted that the prosecution has
not put forth any evidence to show how such wounds were caused
by the appellant. It is submitted that there are so many lacunas at
the time of the alleged recovery at the instance of the appellant,
which creates a serious doubt on the credibility of the recovery. It

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is submitted that therefore it is not safe to convict the appellant on
the basis of such recovery.
7. It is further submitted by the learned counsel appearing on
behalf of the appellant that the Courts below have committed grave
error in convicting the appellant solely based on (i) last seen
evidence; (ii) recovery of bodies pursuant to a disclosure memo and
(iii) alleged calls made to the appellant during the search for the
missing children and the so-called extra-judicial confession made
by the appellant, more particularly, when it is a case of
circumstantial evidence. It is submitted that in a case of
circumstantial evidence, even if one link is missing and the chain is
not complete which leads to the only conclusion that it is the
appellant-accused alone who has committed the offence, the
appellant could not have been convicted.
7.1 Now, so far as the judgment and order passed by the learned
Trial Court awarding the death sentence and confirmed by the High
Court is concerned, it is submitted that both the Courts below have
not appreciated and/or considered the mitigating and aggravating
factors while awarding the death sentence. It is submitted that

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even the learned Trial Court imposed the death penalty/award of
sentence on the same day on which the appellant was convicted. It
is submitted that after the decision relating to his conviction was
given, the learned Trial Court held the hearing of the sentence on
the same day when the conviction was recorded i.e. 04.05.2013,
thereby violating the right of the accused to be given ample
opportunity to adduce the evidence of mitigation and to be heard on
the question of quantum of sentence as provided under Section
235(2) Cr.P.C. It is submitted that it has been consistently held by
this Court that sufficient time must be given to the accused on the
question of sentence, to show the grounds on which he may show
that sentence of life imprisonment may be awarded and not the
death penalty. In support thereof, the learned counsel for the
appellant has relied upon a recent judgment of this Court in the
case of Chhannu Lal Verma v. State of Chhattisgarh (2019) 12
SCC 438. It is submitted that the absence of providing a separate
hearing for sentence vitiates the sentencing process. It is submitted
that under these circumstances this Court has previously
commuted the sentence of death to one of imprisonment for life. In

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support, reliance has been placed upon the decisions of this Court
in the cases of Santa Singh v. State of Punjab (1976) 4 SCC 190,
Rajesh Kumar v. State (NCT of Delhi) (2011) 13 SCC 706 and
Ajay Pandit @ Jagdish v. State of Maharashtra (2012) 8 SCC
43.
7.2 It is further submitted that even otherwise the death sentence
awarded by the learned Trial Court and affirmed by the High Court
is not sustainable. It is submitted that the learned Trial Court has
solely looked to the brutality of the crime to impose the death
penalty. It is submitted that this Court has rejected the contention
that the death penalty can be imposed on the basis of the crime
alone. It is submitted that consideration of the brutality or the
circumstances surrounding the crime alone renders meaningless
the objective of the sentencing exercise envisaged in death penalty
cases. Reliance has been placed upon the case of Bachan Singh v.
State of Punjab (1980) 2 SCC 684.
7.3 It is submitted that so far as the High Court is concerned, the
High Court has also committed a grave error in confirming the
death sentence. It is submitted that the High Court has not

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properly appreciated the mitigating circumstances, such as the fact
that the accused can be rehabilitated in the society and is capable
of being reformed. It is submitted that as held by this Court in the
case of Ajay Pandit (supra), there is a duty on the High Court to
elicit the relevant facts while considering mitigating circumstances
and awarding sentence.
7.4 It is submitted that both the Courts below have not
appreciated and considered the fact that there was no criminal
antecedents. It is submitted that the High Court has also not
considered the fact that there is a possibility of the appellant being
reformed. It is further submitted that at the time when the alleged
offence was committed, the appellant was of a young age of 28
years. It is submitted that the young age of the appellant at the
time of commission of the offence has not been considered as the
relevant mitigating circumstance by the learned Trial Court as well
as the High Court, which ought to have been considered, as held by
this Court in the cases of Gurvail Singh v. State of Punjab (2013)
2 SCC 713 and Amit v. State of Uttar Pradesh (2012) 4 SCC 107.
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7.5 It is further submitted that even otherwise in a case of
circumstantial evidence, as held by this Court in the case of Kalu
Ram v. State of Rajasthan [2015) 16 SCC 492, the doctrine of
prudence requires that a sentence of life be imposed, and ordinarily
death penalty should not be awarded. It is further submitted that
this Court in several judgments has commuted the death sentence
based on the doctrine of “residual doubt”. Reliance is placed on
the decisions of this Court in the cases of Sudam v. State of
Maharashtra (2019) 9 SCC 388 and Baba Vishwakarma v. State
of M.P. (2019) 9 SCC 689.
7.6 It is further submitted that even the conduct of the appellant
in the prison is very good, which is also a relevant consideration to
commute the death sentence to that of the life imprisonment.
7.7 It is further submitted that the emotional disturbance of the
appellant at the time of the offence is a relevant consideration not to
award the death sentence. It is submitted that at the relevant time
the appellant was emotionally disturbed due to the elopement of his
wife with the uncle of the deceased minors. It is submitted that the
appellant’s acts were not the product of a long period of cold

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blooded planning, but were instead actions committed during a
period of extreme emotional turmoil and disturbance after he had
come back from Chandigarh to Darripara after trying to find out his
wife. It is submitted that the aforesaid aspect has not been
considered by the Courts below.
behalf of the appellant that, unfortunately, subsequently the wife of
the appellant has died and the liability to maintain the children
was/is upon his old aged mother. It is submitted that the
appellant’s mother is no longer capable of working and the entire
family survives on Rs.300/- of old-age pension that she receives. It
is submitted that the daughter of the appellant was forced to drop
the school after class IX due to poverty. It is submitted that his one
daughter is married and the appellant has another daughter
Sanjana aged about 16 years. It is submitted that if the death
sentence of the appellant is converted to life, in that case, the
appellant would be in a position to work in the jail and earn
something which would be helpful to his mother and daughter. It

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is submitted that while the death sentence is continued, the
appellant would not be in a position to do any work in Jail.
7.9 Learned counsel appearing on behalf of the appellant has
further submitted that in many cases this Court has commuted the
death sentence imposed for heinous crimes. Reliance is placed
upon the decisions of this Court in the cases of Shaikh Ayub v.
State of Maharashtra (1998) 9 SCC 521, Allaudin Mian v. State
of Bihar (1989) 3 SCC 5, Dharmedrasinh v. State of Gujarat
(2002) 4 SCC 679, Nemu Ram Bora v. State of Assam &
Nagaland (1975) 1 SC 318, Rajesh Kumar (supra) and Brajendra
Singh v. State of M.P. (2012) 4 SCC 289.
7.10 Making the above submissions, it is prayed to allow the
present appeal and acquit the appellant-accused for the offences for
which he was tired. In the alternative, it is prayed to convert the
death sentence into the life imprisonment.
8. The present appeal is vehemently opposed by Shri Pranav
Sachdeva, learned counsel appearing on behalf of the respondent-
State.
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8.1 It is vehemently submitted by the learned counsel appearing
on behalf of the respondent-State that in the facts and
circumstances of the case both, the learned Trial Court and the
High Court have rightly convicted the accused for the offence
punishable under Section 302 IPC for having killed the three minor
children of the complainant and both the Courts below have rightly
awarded the death sentence.
8.2 It is vehemently submitted by the learned counsel appearing
on behalf of the respondent-State that the impugned judgment and
order passed by the High Court is a well-reasoned and has been
passed after hearing the parties and considering the entire facts
and circumstances and therefore the same is not required to be
interfered with by this Court in exercise of powers under Article 136
of the Constitution of India.
behalf of the respondent-State that though the present case is
based on circumstantial evidence, however, the prosecution has
been successful in completing the chain of events which lead to the

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only conclusion that it is the accused alone who had killed the three
innocent children.
behalf of the respondent-State that in the present case the
prosecution has been successful in proving the motive for the
accused to take revenge and killing three minor children of the
complainant Shivlal-P.W.18.
behalf of the respondent-State that thereafter the prosecution has
been successful in establishing and proving that the accused was
last seen together with the three minor children whose dead bodies
were found subsequently at the instance of the accused.
behalf of the respondent-State that there are three relevant and
material circumstances against the accused, namely, (i) last seen
evidence; (ii) recovery of dead bodies pursuant to a disclosure
memorandum at the instance of the accused and (iii) call details
made to the accused. It is submitted that therefore the aforesaid
three sets of circumstances are proved by the prosecution against

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the accused by examining P.W.1, P.W.8, P.W.13, P.W.16, P.W.18
and P.W.24.
behalf of the respondent-State that by examining P.W.2, P.W.5 and
P.W.10 the prosecution has been successful in proving that all the
three deceased-three minor children had gone to the school on that
day and thereafter after the school was over, they left the school
together for home. It is submitted that the same is supported by
the relevant documentary evidence.
behalf of the respondent-State that the minor children were last
seen together with the accused, has been established and proved by
the prosecution by examining P.W.1 and P.W.8.
8.9 It is submitted that the dead bodies of minors – Ajay, Vijay
and Kumari Sakshi – were recovered on the basis of the disclosure
memorandum Ex.P-2. It is submitted that Ex.P-2 and the recovery
of the dead bodies at the instance of the accused has been
established and proved by the prosecution beyond doubt, more
particularly, by examining P.W.7, P.W.22 and P.W.24.

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behalf of the respondent-State that during the course of the
investigation there were phone calls with the accused and the
conversation has been established and proved by Ex-P-30 – Phone
Call Details. It is submitted that the same have not been explained
by the accused.
behalf of the respondent-State that in the present case even the
conduct on the part of the accused, more particularly, his absence
from the date of missing of the minor children till he was arrested
from the house of witness Ashok Kumar Madhukar-P.W.13 is a
relevant factor. It is submitted that the accused has failed to
explain his absence from the village and from his house.
8.12 It is submitted that in fact the accused was found in the house
of his relative Ashok Kumar Madhukar-P.W.13. It is submitted that
therefore it is established and proved that after committing the
offence the accused had taken the shelter in the house of his
relative Ashok Kumar Madhukar-P.W.13. It is submitted that even
there was an extra-judicial confession by the accused before Ashok

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Kumar Madhukar-P.W.13 which has been established and proved
from the deposition of Ashok Kumar Madhukar-P.W.13.
8.13 It is further submitted that the death of the three minors was
homicidal deaths, which has been established and proved by
examining the doctors who conducted the post-mortem.
8.14 It is submitted that therefore the prosecution has been
successful in completing the chain of events. It is submitted that
therefore both the Courts below have rightly convicted the accused
for having killed the three minor children.
9. Now, so far as the submission on behalf of the accused that
there are material contradictions in the depositions of P.W.1, P.W.8,
P.W.18 and other witnesses is concerned, it is submitted by the
learned counsel for the respondent-State that the alleged
contradictions do not affect the case of the prosecution. It is
submitted that the aforesaid contradictions cannot be said to be the
material contradictions for which the benefit of doubt should be
given to the accused. It is submitted that most of the witnesses are
consistent with their statements under Section 161 Cr.P.C.
recorded by the Investigating Officer during the investigation. It is

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submitted that there are no much improvements. It is further
submitted by the learned counsel appearing for the respondent-
State that the so-called/alleged contradictions in any way do not
affect the case of the prosecution and the material evidence with
respect to the last seen evidence; recovery of the dead bodies as per
the disclosure memorandum at the instance of the accused and the
phone call details with the accused and even the motive for the
accused to commit the offence.
the incriminating circumstances against the accused from the
deposition of P.W.1 has not been put to the accused while recording
his statement under Section 313 Cr.P.C. is concerned, it is
submitted by the learned counsel appearing for the respondent-
State that, as such, the said irregularity shall not affect the
ultimate case against the accused. It is submitted that in any case
the case of the accused in his statement under Section 313 Cr.P.C.
is that of total denial. It is submitted that on the aforesaid ground
the accused cannot be acquitted.

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sufficient opportunity was not given to the accused on the sentence
inasmuch as the accused was heard on the sentence on the very
same day he was convicted is concerned, it is submitted that on the
aforesaid ground the judgment and order passed by the learned
Trial Court on sentence and confirmed by the High Court is not
required to be interfered with. It is submitted that after the
accused was held guilty, fullest opportunity was given to the
accused on sentence. It is submitted that elaborate submissions
were made by the learned Advocate appearing on behalf of the
accused on sentence and even on the death sentence also. It is
submitted that therefore as such no prejudice has been caused to
the accused.
12. Now, so far as the submission on behalf of the accused not to
confirm the death sentence and to convert the death sentence into
the life imprisonment is concerned, it is submitted by the learned
counsel appearing for the respondent-State that on striking the
balance between the aggravating circumstances and the mitigating
circumstances and considering the fact that the accused killed the
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three minor children after abducting them, no sympathy should be
shown to such an accused. It is submitted that, therefore, as such
this is a fit case to award the death sentence and the case would
fall into the rarest of rare cases. Therefore, it is prayed to dismiss
the present appeal and confirm the death sentence.
13. Heard the learned counsel appearing for the respective parties
at length. We have also gone through and considered in detail the
Judgment and order passed by the learned Trial Court as well as
the impugned judgment and order passed by the High Court
convicting and accused for the offences punishable under Sections
302 and 364 IPC. We have also gone through and considered in
detail the evidence on record - both oral and documentary.
13.1 The appellant-accused has been held guilty for having
committed the murder/killing of three minor children aged about 8
years, 6 years and 4 years respectively and has been convicted by
both the Courts below for the offences punishable under Sections
302 and 364 IPC. The learned Trial Court, after having held the
appellant-accused guilty for the aforesaid offences, has imposed the

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death sentence, which has been confirmed by the High Court by the
impugned judgment and order.
14. We are conscious of the fact that it is a case of circumstantial
evidence and therefore before convicting the accused on the basis of
circumstantial evidence, the prosecution has to prove beyond doubt
and complete the chain of events which lead to the conclusion that
it is the accused alone who has committed the offence. Therefore,
in the facts and circumstances of the case, it is required to be
considered whether the prosecution has been successful in
establishing the complete chain of events which lead to the
conclusion that it is the appellant-accused alone who has
committed the offence?
15. Having gone through the impugned judgment and order
passed by the High Court as well as the judgment and order of
conviction passed by the learned Trial Court and the case of the
prosecution, the appellant-accused has been convicted mainly
based on three sets of circumstances: (i) last seen evidence; (ii)
recovery of bodies pursuant to a disclosure memo and (iii) alleged

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calls made to the appellant during the search for the missing
children.
16. Before considering the submissions made on behalf of the
accused, few findings recorded by the learned Trial Court and
confirmed by the High Court, are required to be first referred to.
The prosecution has been successful in establishing and proving
that the accused was having enmity with Shivlal-father of the three
deceased minor children. The same has been established and
proved by the prosecution by examining Shivlal-P.W.18, Manisha-
P.W.20 and Rameshwar-P.W.11. The prosecution has been
successful in proving that on 11.02.2011 all the minors deceased
Ajay, Vijay and Kumari Sakshi went to the school from their house.
The prosecution has also been successful in establishing and
proving that on 11.02.2011 at about 11.30 hours the deceased
minors left for home on foot; that the minors did not return to their
home. On 11.02.2011 at about 12.00 noon – 1.00 pm, the
deceased were seen going with the accused in school uniform with
their school bags. Therefore, the accused was last seen together
with the deceased minors. That, after the incident, the accused was
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not found at his house and was missing even from the village.
During the search by Shivlal-P.W.18 and others and after the
accused was not found in the village, there were phone calls on the
mobile of the accused. That, thereafter, the accused was found
from the house of his relative Ashok Kumar Madhukar-P.W.13.
Immediately after his arrest, the dead bodies were recovered/found
along with the school bags etc. from the place shown by the
accused himself. The aforesaid are the chain of events which led to
the conclusion that the accused first kidnapped the three minor
children and thereafter killed all of them. The phone-calls made to
the accused has been established and proved by the prosecution by
examining the Investigating Officer and by producing the call details
from the mobile company as Ex.P.30.
17. Now, so far as the evidence of the accused having last seen
together with the deceased is concerned, the prosecution has
heavily relied upon the depositions of P.W.1 and P.W.8. So far as
the reliance placed upon the deposition of P.W.1 is concerned, it is
the case on behalf of the accused that while recording his statement
under Section 313 Cr.P.C., the incriminating material on the basis

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of the deposition of P.W.1 that he saw the accused with the
deceased minors at around 1.00 pm on the afternoon of
11.02.2011, was not put to him and therefore, to that extent, the
deposition of P.W.1 cannot be relied upon. However, it is required
to be noted that while recording the statement of the accused under
Section 313 Cr.PC., the deposition of P.W.1 was specifically referred
to. Therefore, not asking a specific question arising out of the
deposition of P.W.1, in the facts and circumstances of the case,
cannot be said to be fatal to the case of the prosecution. Even
otherwise, the accused was last seen together with the deceased
minors has been established and proved by the prosecution by
examining P.W.8-Ashok Patel. P.W.8-Ashok Patel in his deposition
has specifically stated that he saw the accused with all the three
minors deceased at around 12.00 hours on 11.02.2011. He has
identified/recognized the accused present in the court. He has also
stated that he knew the complainant Shivlal and he recognized all
the three minor children of Shivlal. The said witness has been
thoroughly cross-examined by the defence. However, from the
cross-examination, the defence has failed to make out any case

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which may doubt either the credibility and/or what the said witness
has stated in his examination-in-chief. He is an independent
witness on the evidence of last seen together. We see no reason to
doubt the same. There may be some contradictions, but according
to us, those contradictions are not material contradictions, which
may doubt the credibility of the said witness and/or may be fatal to
the case of the prosecution. Thus, the prosecution has been
successful in establishing and proving that the accused was last
seen together with all the three minor children at about 12.00 noon
on 11.02.2011 after they left the school.
17.1 At this stage, it is required to be noted that the prosecution
has proved beyond doubt that all the three minors went to the
school in the morning of 11.02.2011 and thereafter they left for the
home at about 11.30 hours. That, thereafter, at about 12.00 hours,
the accused was seen with all the three minor children. At this
stage, it is required to be noted that after Ashok Patel disclosed to
Shivlal-P.W.18 and others that he had seen the accused with the
three minor children on 11.02.2011 at about 11.30 hours, the
name of the accused was specifically mentioned in the missing

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report given by Shivlal on 11.02.2011 and the same was also
mentioned in the FIR. In the FIR, it was specifically mentioned that
during the investigation of missing person No. 3/11, he had
enquired the complainant and Ashok Patel and Ashok Patel told
that he saw the minor children with the accused. Thus,
considering the entire evidence on record, we see no reason to
doubt the credibility of P.W.8-Ashok Patel. He is an independent
witness and no mala-fides are alleged against him on behalf of the
accused.
18. Now, the next important evidence against the accused is the
recovery of dead bodies which were found from the places shown by
the accused after his arrest. During the course of the investigation,
the dead bodies were found from the places shown by the accused,
the places which the accused alone could have known. Therefore,
there is a recovery of the dead bodies along with the school dress
and bags at the instance of the accused. It has been established
and proved from the disclosure memo. The disclosure memo has
been exhibited. Therefore, the aforesaid circumstance definitely
goes against the accused.

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19. One another circumstance which goes against the accused is
that after the incident of missing of three minor children, the
accused was not found in his house and even in the village. He was
contacted on his mobile phone. Initially when he was tried to be
contacted, his mobile phone was found switched-off. However,
thereafter, he could be contacted on mobile when Rameshwar-
P.W.11 phoned the accused Manoj on 12.2.2011 at about 11.00
p.m. As per the said witness, at about 11.00 p.m. he phoned the
accused Manoj and asked him “Where are you” and the accused
told that he is present in his house. According to the said witness,
the accused also told when he was asked whether any information
about the where-about of Shivlal’s children was received, initially
the accused replied that he do not know. But, thereafter, he told
that “When my children are crying Guddu @ Shivlal was enjoying,
now when his children are missing how is he feeling”.
19.1 However, it is required to be noted that the accused was not
present in his house at all. From the evidence on record, it appears
that the concerned witnesses – Shivlal and others found that the
accused Manoj was not in his house. Phone calls made at 11.00
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pm on the mobile of the accused in the night of 11.02.2011 has
been established and proved by the prosecution by producing the
call details from the mobile company (produced as Ex.P.30). The
accused has failed to give any explanation on the same in his
statement under Section 313 Cr.P.C. Non-examination of the
officer of the mobile company cannot be said to be fatal to the case
of the prosecution, more particularly, when the CDR has been got
exhibited, through the deposition of the Investigating Officer and
when the same was exhibited, no objection was raised on behalf of
the defence. Even otherwise, it is required to be noted that the
mobile SIM No. 9179484724 was seized from the accused at the
time of his arrest and which is proved as per the seizure memo.
Therefore, the prosecution has proved that the mobile SIM No.
9179484724 belonged to the accused.
20. One other important evidence against the accused is the
deposition of P.W.13-Ashok Kumar Madhukar. The accused was
found hiding in the house of said Ashok Kumar Madhukar situated
at village Lakharam which is 5-6 kilometers away. It is true that
the said witness has turned hostile. However, in the cross-

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examination by the prosecution, P.W. 13 has specifically stated that
the accused Manoj told him that the children of Shivlal had gone
missing and Shivlal has lodged a report against him and the police
is looking for him. He has specifically stated in the cross-
examination that he engaged the accused Manoj in conversation
and thereafter the police came and took Manoj after arresting him.
Therefore, the fact that the accused was found from the house of
said Ashok Kumar Madhukar from village Lakharam has been
established and proved, despite the said Ashok Kumar Madhukar
has turned hostile. As per the settled proposition of law, even the
deposition of the hostile witness to the extent it supports the case of
the prosecution can be relied upon. The accused has failed to
explain his conduct in his statement under Section 313 Cr.P.C.
about his missing from the house and even the village after the
incident of kidnapping. He has also failed to explain the reason
why he was found from the house of Ashok Kumar Madhukar. It
may be that there is some doubt created by the defence about the
place where the accused was arrested. However, the fact remains
that the accused was arrested from village Lakharam on

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13.02.2011. According to the defence, the accsued was arrested on
12.02.2011 evening. But the same is not established and proved
from the evidence. On the contrary, as per the deposition of Ashok
Kumar Madhukar, he was arrested on 13.02.2011. Even as per
the arrest memo, the accused was arrested on 13.02.2011.
Immediately thereafter, during the course of the investigation and
as per the disclosure memo, the dead bodies of the deceased minor
children were recovered at the instance of the accused. Therefore,
as such, the chain of events established and proved by the
prosecution as under:
(1) That all the three minor children went to the school in
the morning of 11.02.2011;
(2) That all three minor children left the school at about
11.30 a.m. on 11.02.2011;
(3) That the accused was last seen together with the
deceased minors at about 12.00 hours – 1.00 p.m. on
11.02.2011;
(4) That there was a prior enmity between the accused and
the complainant Shivlal-father of the deceased minor children

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as the wife of the accused ran away with the brother of Shivlal
and that the children of the accused were without their mother
and therefore he took the revenge how Shivlal would feel if his
children are missing;
(5) That the accused was missing from his house and even
the village from the time of the incident of kidnapping;
(6) There were phone calls with the accused on his mobile
no. 9179484724 on the night of 11.02.2011;
(7) That he was hiding in the house of Ashok Kumar
Madhukar and he was arrested from village Lakharam from
the house of Ashok Kumar Madhukar on 13.02.2011 and/or
at least from Village Lakharam;
(8) Recovery of dead bodies of the minor children from the
place shown by the accused, which are recovered from the
place/places for which the accused alone could have the
knowledge; and
(9) That the death of the minors were homicidal death.
21. As per the learned counsel appearing on behalf of the accused,
there are contradictions in the depositions of various witnesses,

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more particularly, P.W.1 and P.W.8 having told that they had seen
the accused with the minor children on 11.02.2011 and even with
respect to the telephonic calls and having talked with the accused
after 11.02.2011. However, having considered the so-called
contradictions pointed out by the learned counsel appearing on
behalf of the accused and other evidences, we are of the opinion
that those contradictions are not material contradictions which may
ultimately affect the case of the prosecution as a whole. The minor
discrepancies and inconsistencies in the statements of the
prosecution witnesses and the minor lacuna in the investigation led
by the police cannot be a reason for discarding the entire
prosecution case, if the evidence is otherwise sufficient and
inspiring to bring home the guilt of the accused. As observed by
this Court in the case of Leema Ram v. State of Haryana [AIR
1999 SC 3717], there are bound to be some discrepancies between
the narrations of different witnesses, when they speak on details,
and unless the contradictions are of a material dimension, the same
should not be used to jettison the evidence in its entirety. It is
further observed that corroboration of evidence with mathematical

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48
niceties cannot be expected in criminal cases. Minor embellishment,
there may be, but variations by reason therefore should not render
the evidence unbelievable. Trivial discrepancies ought not to
obliterate an otherwise acceptable evidence. The Court shall have
to bear in mind that different witnesses react differently under
different situations: whereas some become speechless; some start
wailing while some others run away from the scene and yet there
are some who may come forward with courage, conviction and belief
that the wrong should be remedied . So it depends upon individuals
and individuals. There cannot be any set pattern or uniform rule of
human reaction and to discard a piece of evidence on the ground of
his reaction not falling within a set pattern is unproductive.
Therefore, we are of the opinion that the so-called minor
discrepancies/contradictions do not ultimately affect the case of the
prosecution. The benefit of such minor discrepancies/
contradictions should not go to the accused, more particularly,
when from the other evidences on record the guilt of the accused
has been established and proved.

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22. Thus, for the reasons sated above, we are of the opinion that
the High Court has not committed any error in upholding the
conviction of the accused for the offences punishable under
Sections 302 and 364 IPC. We are in complete agreement with the
view taken by the learned Trial Court as well as the High Court in
so far as convicting the accused for the offences punishable under
Section 302 and 364 IPC for having killed three minor children aged
about 8 years, 6 years and 4 years respectively.
23. Now, so far as the capital punishment imposed by the learned
Trial Court and confirmed by the High Court is concerned, it is the
case on behalf of the appellant-accused that as the learned Trial
Court heard the accused on sentence the very same day on which
the conviction was recorded and as such an error has been
committed by the learned Trial Court and therefore it vitiates the
award of sentence, reliance has been placed upon the decisions of
this Court in the cases of Santa Singh (supra), Allaudin Mian
(supra), Rajesh Kumar (supra), Ajay Pandit @ Jagdish (supra)
and a recent decision of this Court in Chhannu Lal Verma (supra).
While considering the aforesaid submissions, the object of Section

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235(2) Cr.P.C. is required to be considered. The object and purpose
of Section 235(2) Cr.P.C. is that the accused must be given an
opportunity to make a representation against the sentence to be
imposed on him. Sub-section (2) of Section 235 satisfies a dual
purpose; it satisfies the rule of natural justice by affording to the
accused an opportunity of being heard on the question of sentence
and at the same time helps the court to choose the sentence to be
awarded. So, what is required to be considered is whether at the
time of awarding of sentence, sufficient and proper opportunity has
been given to the accused or not and when the capital punishment
is awarded, whether the accused has been given the opportunity to
point out the aggravating and mitigating circumstances or not? An
identical question came to be considered by this Court in a recent
decision of this Court in the case of Accused ‘X’ v. State of
Maharashtra in Review Petition (Criminal) No. 301 of 2008 in
Criminal Appeal No. 680 of 2007 dated 12.04.2019. Before this
Court the very decisions on which the reliance has been placed now
by the learned counsel appearing on behalf of the accused, which
are referred to hereinabove, were pressed into service. This Court

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had the occasion to consider the very submissions made on behalf
of the accused, more particularly, the conviction and the sentence
on the very day on which the conviction was recorded. In
paragraphs 29 to 34, this Court has observed and held as under:
“29. Two recent three Judge Bench decisions of this

Court on this aspect merit our consideration. Firstly, in
the decision dated 28.11.2018 in Chhannu Lal Verma v.
State of Chhattisgarh (Criminal Appeal Nos. 14821483 of
2018), this Court observed that not having a separate
hearing at the stage of trial was a procedural impropriety.
Noting that a bifurcated hearing for conviction and
sentencing was a necessary condition laid down in
Santosh Kumar Satishbhushan Bariyar, (2009) 6 SCC
498, the Court held that by conducting the hearing for
sentencing on the same day, the Trial Court failed to
provide necessary time to the appellant therein to furnish
evidence relevant to sentencing and mitigation. We find
that this cannot be taken to mean that this Court
intended to lay down, as a proposition of law, that
hearing the accused for sentencing on the same day as
for conviction would vitiate the trial. On the contrary, in
the said case, it was found on facts that the same was a
procedural impropriety because the accused was not
given sufficient time to furnish evidence relevant to
sentencing and mitigation.
30. Secondly, in the decision dated 12.12.2018 in

Rajendra Prahladrao Wasnik v. State of Maharashtra,
(Review Petition (Crl.) Nos. 306-307 of 2013), this Court
made a general observation that in cases where the death
penalty may be awarded, the Trial Court should give an
opportunity to the accused after conviction which is
adequate for the production of relevant material on the
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52
question of the propriety of the death sentence. This is

evidently at best directory in nature and cannot be taken
to mean that a pre-sentence hearing on a separate date is
mandatory.
31. It may also be noted that in the older three-

Judge Bench decision of this Court in Malkiat Singh
Case (1991) 4 SCC 341, the Court observed that keeping
in mind the two-Judge Bench decisions in Allauddin
Mian Case (supra) and Auguswamy v. State of Tamil
Nadu, (1989) 3 SCC 33, wherein it had been laid down
that a sentence awarded on the same day as the finding
of guilt is not in accordance with law, the normal course
of action in case of violation of such procedure would be
remand for further evidence. However, on a perusal of
these two decisions we find that their import has not
been correctly appreciated in Malkiat Singh Case (supra),
since the observations in Allauddin Mian Case (supra), as
relied upon in Anguswamy Case (supra), regarding
conduct of hearings on separate dates, were only
directory. Be that as it may, it must be noted that the
effect of Malkiat Singh Case (supra) has already been
considered by this Court in Vasanta Sampat Dupare v.
State of Maharashtra (2017) 6 SCC 631, wherein it was
already noted that the mere non-conduct of the pre-
sentence hearing on a separate date would not per se
vitiate the trial if the accused has been afforded sufficient
time to place relevant material on record.
32. It may not be out of context to note that in case

the minimum sentence is proposed to be imposed upon
the accused, the question of providing an opportunity
under Section 235(2) would not arise. (See Tarlok Singh
v. State of Punjab, (1977) 3 SCC 218; Ramdeo Chauhan
v. State of Assam, (2001) 5 SCC 714).
33. There cannot be any doubt that at the stage of

hearing on sentence, generally, the accused argues based
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53
on the mitigating circumstances in his favour for

imposition of lesser sentence. On the other hand, the
State/the complainant would argue based on the
aggravating circumstances against the accused to
support the contention relating to imposition of higher
sentence. The object of Section 235 (2) of the Cr.P.C is to
provide an opportunity for accused to adduce mitigating
circumstances. This does not mean, however, that the
Trial Court can fulfill the requirements of Section
235(2) of the Cr.P.C. only by adjourning the matter for
one or two days to hear the parties on sentence. If the
accused is ready to submit his arguments on this aspect
on the very day of pronouncement of the judgment of
conviction, it is open for the Trial Court to hear the
parties on sentence on the same day after passing the
judgment of conviction. In a given case, based on facts
and circumstances, the Trial Court may choose to hear
the parties on the next day or after two days as well.
34. In light of the above discussion, we are of the opinion

that as long as the spirit and purpose of Section
235(2) is met, inasmuch as the accused is afforded a
real and effective opportunity to plead his case with
respect to sentencing, whether simply by way of oral
submissions or by also bringing pertinent material on
record, there is no bar on the pre-sentencing hearing
taking place on the same day as the pre-conviction
hearing. Depending on the facts and circumstances, a
separate date may be required for hearing on sentence,
but it is equally permissible to argue on the question of
sentence on the same day if the parties wish to do so.”
Thus, there is no absolute proposition of law that in no case there
can be conviction and sentence on the same day. There is no

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54
absolute proposition of law laid down by this Court in any of the
decisions that if the sentence is awarded on the very same day on
which the conviction was recorded, the sentencing would be
vitiated.
23.1 So far as the reliance placed upon by the learned counsel
appearing on behalf the appellant upon the decision of this Court in
the case of Santa Singh (supra) is concerned, on considering the
entire judgment and the facts in that case, we are of the opinion
that the said decision shall not be applicable to the facts of the case
on hand and/or the same shall not be of any assistance to the
accused. In that case before this Court, it was found that the
learned Trial Court did not give the accused an opportunity to be
heard in regard to the sentence to be imposed on him and by one
single judgment convicted the accused and also sentenced him to
death.
23.2 Similarly, the decision of this Court in the case of Allaudin
Mian (supra) also shall not be applicable to the facts of the case on
hand. In the case before this Court, it was found that the death
sentence was imposed by the Trial Court without affording proper

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55
opportunity of hearing as contemplated under Section 235(2)
Cr.P.C. No reasons were recorded for awarding the death sentence
which as such were mandatory and thereafter on merits this Court
found that the death sentence was no warranted.
23.3 Applying the law laid down by this Court in the aforesaid
decisions, more particularly, in the case of Accused ‘X’ (supra) to
the facts of the case on hand and on considering the reasoning
given by the learned Trial Court as well as the High Court, we are of
the opinion that there is sufficient compliance of the provisions of
Section 235(2) Cr.P.C. The learned Trial Court heard the accused
on the aspect of proposition of sentence separately which is clear
from paragraphs 76 to 82 of the judgment of the learned Trial
Court. Hence, based on the material on record, we are satisfied
that the learned Trial Court fully complied with the requirements of
Section 235(2) Cr.P.C. The learned Trial Court had considered the
mitigating circumstances pointed out on behalf of the accused and
also considered the aggravating circumstances which warranted the
death sentence. Thus, it cannot be said that the accused was not
given any sufficient opportunity to put forward his case on

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56
sentence. It also cannot be said that the learned Trial Court has
not given any special reasons while awarding the death sentence.
After considering the aggravating circumstances and the crime i.e.
the magnitude and the manner of the commission of the crime in
the form of kidnapping and thereafter murdering three minor
children, while awarding the death sentence the learned Trial Court
has considered the following aggravating circumstances against the
accused:
“A. This point is not disputed that the accused was

annoyed with Shivlal (PW-18) because 10 days prior
to the incident his wife Sumrit Bai eloped or got
eloped by the brother of Shivlal (PW-18) as there
was a love affair between Sumrit Bai and uncle of
the minors deceased Ajay, Vijay and Sakshi. In this
regard evidence is also available on record.
B. As well as this point is also considerable that being

acquaintance with the accused and having faith on
accused all the three minors innocent Ajay, Vijay
and Sakshi left the school with the accused and
were missing. Hence, breaching the faith of all the
three innocent minors the accused has committed
the offence of kidnapping.
C. It is also considerable that the accused has

committed culpable homicide of all the three minors
Ajay, Vijay and Sakshi whose age was in between 4
to 8 years. There was 10 days sufficient time gap
between the incident of eloping accused’s wife with
Shivnath, the uncle of the minors and the date of
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57
committing culpable homicide of the minors.

Hence, the act of the accused is not the act
committed under grave and sudden provocation.
On the basis of evidence available on record the act
of the accused is afterthought with planned
manner.
D. It is also considerable that accused has brutally

committed homicidal death of all three minors Ajay,
Vijay and Sakshi by processing their neck forcefully
who have no concern with the matter of eloping his
wife Sumrit Bai.
E. It is also considerable that accused has brutally,

mercilessly and cowardly committed murder of all
three minors Ajay, Vijay and Sakshi who were
tender age of 4-8 years and were completely unable
to resist and defend themselves at the time of
incident.
F. At the time of committing the said act accused had

two children thinking over it the accused did not
have to do the said act. In the light of the said act
committed by the accused the question of
maintaining their minor children is secondary.
G. It is also considerable that the said act of the

accused is the act which gives challenge to the
social security of the society.”
Thus, the submission on behalf of the accused that as the sentence
was recorded on the same day on which the conviction was
recorded and therefore it has vitiated the award of sentence, cannot

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58
be accepted. As observed hereinabove, there is a total compliance
of the provisions of Section 235 (2) as well as Section 354 Cr.P.C.
while awarding the capital punishment the learned Trial Court has
solely looked to the brutality of the crime is concerned, it is
factually incorrect. On considering the rival discussions as well as
the reasons given by the learned Trial Court while awarding the
capital punishment, it appears that the brutality of the crime was
considered to be one of the reasons and not the sole reason.
25. However, at the same time, the prayer on behalf of the accused
not to impose the death penalty and to convert the same into life
imprisonment, in the facts and circumstances of the case, requires
consideration. Therefore, now the question which is posed for
consideration of this Court is whether, in the facts and
circumstances of the case, the death sentence is warranted?
25.1 While answering the aforesaid questions, few decisions of this
Court on when the death sentence is warranted are required to be
referred to and considered.

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59
25.2 After analyzing many decisions of this Court on imposition of
death sentence, namely, Bachan Singh (supra); Machhi Singh v.
State of Punjab (1983) 3 SCC 470; Mohd. Chaman v. State (NCT
of Delhi) (2001) 2 SCC 28; Aloke Nath Dutta v. State of W.B.
(2007) 12 SCC 230; State of Punjab v. Manjit Singh (2009) 14
SCC 31; Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498; Sebastian v. State of Kerala
(2010) 1 SCC 58; Rajesh Kumar (supra); Ramesh v. State of
Rajasthan (2011) 3 SCC 685; Amit (supra); and Mohinder Singh
v. State of Punjab (2013) 3 SCC 294, the decisions which were
relied upon on behalf of the accused and after considering few
decisions of this Court involving death sentence which were relied
upon on behalf of the State, ultimately, this Court in the case of
Sushil Sharma v. State (NCT) of Delhi (2014) 4 SCC 317 in
paragraphs 100-104 has observed and held as under:
“100. In light of the above judgments, we would

now ascertain what factors which we need to take into
consideration while deciding the question of sentence.
Undoubtedly, we must locate the aggravating and
mitigating circumstances in this case and strike the right
balance. We must also consider whether there is
LatestLaws.com
60
anything uncommon in this case which renders the

sentence to life imprisonment inadequate and calls for
death sentence. It is also necessary to see whether the
circumstances of the crime are 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.
101. We notice from the above judgments that mere

brutality of the murder or the number of persons killed
or the manner in which the body is disposed of has not
always persuaded this Court to impose death penalty.
Similarly, at times, in the peculiar factual matrix, this
Court has not thought it fit to award death penalty in
cases, which rested on circumstantial evidence or solely
on approver's evidence. Where murder, though brutal, is
committed driven by extreme emotional disturbance and
it does not have enormous proportion, the option of life
imprisonment has been exercised in certain cases.
Extreme poverty and social status has also been taken
into account amongst other circumstances for not
awarding death sentence. In few cases, time spent by the
accused in death cell has been taken into consideration
along with other circumstances, to commute death
sentence into life imprisonment. Where the accused had
no criminal antecedents; where the State had not led any
evidence to show that the accused is beyond reformation
and rehabilitation or that he would revert to similar
crimes in future, this Court has leaned in favour of life
imprisonment. In such cases, doctrine of proportionality
and the theory of deterrence have taken a back seat. The
theory of reformation and rehabilitation has prevailed
over the idea of retribution.
102. On the other hand, rape followed by a cold-

blooded murder of a minor girl and further followed by
disrespect to the body of the victim has been often held
LatestLaws.com
61
to be an offence attracting death penalty. At times, cases

exhibiting premeditation and meticulous execution of the
plan to murder by levelling a calculated attack on the
victim to annihilate him, have been held to be fit cases
for imposing death penalty. Where innocent minor
children, unarmed persons, hapless women and old and
infirm persons have been killed in a brutal manner by
persons in dominating position, and where after ghastly
murder displaying depraved mentality, the accused have
shown no remorse, death penalty has been imposed.
Where it is established that the accused is a confirmed
criminal and has committed murder in a diabolical
manner and where it is felt that reformation and
rehabilitation of such a person is impossible and if let
free, he would be a menace to the society, this Court has
not hesitated to confirm death sentence. Many a time, in
cases of brutal murder, exhibiting depravity and sick
mind, this Court has acknowledged the need to send a
deterrent message to those who may embark on such
crimes in future. In some cases involving brutal murders,
society's cry for justice has been taken note of by this
Court, amongst other relevant factors. But, one thing is
certain that while deciding whether death penalty should
be awarded or not, this Court has in each case realising
the irreversible nature of the sentence, pondered over the
issue many times over. This Court has always kept in
mind the caution sounded by the Constitution Bench
in Bachan Singh [Bachan Singh v. State of Punjab, (1980)
2 SCC 684 : 1980 SCC (Cri) 580] that Judges should
never be bloodthirsty but has wherever necessary in the
interest of society located the rarest of the rare case and
exercised the tougher option of death penalty.
103. In the nature of things, there can be no hard-

and-fast rules which the court can follow while
considering whether an accused should be awarded
death sentence or not. The core of a criminal case is its
facts and, the facts differ from case to case. Therefore,
LatestLaws.com
62
the various factors like the age of the criminal, his social
status, his background, whether he is a confirmed
criminal or not, whether he had any antecedents,
whether there is any possibility of his reformation and
rehabilitation or whether it is a case where the
reformation is impossible and the accused is likely to
revert to such crimes in future and become a threat to
the society are factors which the criminal court will have
to examine independently in each case. Decision whether
to impose death penalty or not must be taken in the light
of guiding principles laid down in several authoritative
pronouncements of this Court in the facts and attendant
circumstances of each case.
104. We must also bear in mind that though, the

judicial proceedings do take a long time in attaining
finality, that would not be a ground for commuting the
death sentence to life imprisonment. Law in this behalf
has been well settled in Triveniben [Triveniben v. State of
Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri) 248] . The
time taken by the courts till the final verdict is
pronounced cannot come to the aid of the accused in
canvassing commutation of death sentence to life
imprisonment. In Triveniben [Triveniben v. State of
Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri) 248] , the
Constitution Bench made it clear that though ordinarily,
it is expected that even in this Court, the matters where
the capital punishment is involved, will be given top
priority and shall be heard and disposed of as
expeditiously as possible but it could not be doubted that
so long as the matter is pending in any court, before final
adjudication, even the person who has been condemned
or who has been sentenced to death has a ray of hope. It,
therefore, could not be contended that he suffers that
mental torture which a person suffers when he knows
that he is to be hanged but waits for the doomsday.
Therefore, the appellant cannot draw any support from
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63
the fact that from the day of the crime till the final
verdict, a long time has elapsed. It must be remembered
that fair trial is the right of an accused. Fair trial involves
following the correct procedure and giving opportunity to
the accused to probabilise his defence. In a matter such
as this, hurried decision may not be in the interest of the
appellant.”
25.3 In the case of Absar Alam v. State of Bihar (2012) 2 SCC
728, it is observed and held by this Court that the mental condition
of the accused, which led to assault, cannot be lost sight of. It is
further observed that the mental condition or state of mind of
accused is one of the factors that can be taken into account in
considering the question of sentence.
25.4 Thus, from the catena of decisions of this Court, more
particularly, the decisions referred to hereinabove, for deciding on
the issue of sentence, the aggravating circumstances and mitigating
circumstances must be located and the right balance must be
adopted. What can be said to be the mitigating circumstances has
been dealt with and considered by this Court in the case of Bachan
Singh (supra). As observed by this Court in the case of Bachan
Singh (supra), the following can be said to be the mitigating

LatestLaws.com
64
circumstances which are required to be considered while deciding
on the issue of death sentence.
“(1) That the offence was committed under the

influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young
or old, he shall not be sentenced to death.
(3) The probability that the accused would not
commit criminal acts of violence as would constitute a
continuing threat to society.
(4) The probability that the accused can be reformed
and rehabilitated.
The State shall by evidence prove that the accused
does not satisfy Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case
the accused believed that he was morally justified in
committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he
was mentally defective and that the said defect impaired
his capacity to appreciate the criminality of his conduct.”
25.5 In light of the above judgments, we would now ascertain the
factors which we need to take into consideration while deciding on
the question of sentence. We must locate the aggravating and
mitigating circumstances in this case and strike a right balance.
In the present case, the following are the mitigating
factors/circumstances:
LatestLaws.com
65
(i) That the offence was committed under the influence of
extreme mental or emotional disturbance. The accused was
emotionally disturbed due to the elopement of his wife with the
uncle of the deceased and that his children were suffering in
absence of their mother with them. The accused was so much
disturbed and troubled is also born out from the deposition of
one of the witnesses that on mobile the accused told how
Shivlal is feeling without his children.
(ii) There are no criminal antecedents.
(iii) At the time of commission of the offence the accused was
28 years of age and his conduct in prison is reported to be
good.
(iv) That he belongs to a poor family and is the only son of
his parents, and
(v) That he has got an old aged mother who is taking care of
two daughters of the accused, out of which one is married
now.
25.6 On the other hand, the only aggravating circumstance pointed
out by the State is that the manner in which the incident took place
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66
and three minors were brutally killed. Except the above, no other
aggravating circumstances are pointed out on behalf of the State.
Therefore, striking the balance between aggravating circumstances
and mitigating circumstances, we are of the opinion that in the
facts and circumstances of the case, more particularly, the mental
condition of the accused at the time of the commission of the
offence and that the accused was under extreme mental
disturbance due to his wife eloped with the uncle of the deceased
and his children were deprived of the company of their mother, the
mitigating circumstances are in favour of the accused to convert the
death sentence to life imprisonment. It is true that the court must
respond to the cry of the society and to settle what would be the
deterrent punishment for an abominable crime. It is also equally
true that a larger number of criminals go unpunished thereby
increasing criminals in the society and law losing its deterrent
effect. .It is also true that the peculiar circumstances of a given
case often results in miscarriage of justice and makes the justice
delivery system a suspect; in the ultimate analysis, the society
suffers and a criminal get encouraged. Sometimes it is stated that

LatestLaws.com
67
only rights of criminals are kept in mind, the victims are forgotten.
However, at the same time, while imposing the rarest of rare
punishment, i.e. death penalty, the Court must balance the
mitigating and aggravating circumstances of the crime and it would
depend upon particular and peculiar facts and circumstances of
each case. The mitigating circumstances as observed by this Court
in the case of Bachan Singh (supra) and the mitigating
circumstances in the present case, if are considered cumulatively
and more particularly, that the accused was under the extreme
mental disturbance because of the reasons stated hereinabove, we
are of the opinion that, in the peculiar facts and circumstances of
the case, the death penalty is not warranted and the same be
converted to life imprisonment.
26. In view of the above and for the reasons stated above, the
present appeal succeeds in part. The Judgment and Order passed
by the learned Trial Court and confirmed by the High Court
convicting the accused for the offences punishable under Sections
302 and 364 IPC is hereby confirmed. However, the death
sentence imposed by the learned Trial Court, confirmed by the High

LatestLaws.com
68
Court, is converted into the life imprisonment. It is further
observed and directed that the life means till the end of the life with
the further observation and direction that there shall not be any
remission till the accused completes 25 years of imprisonment.
The present appeal is partly allowed to the aforesaid extent.
…………………………..J.
(UDAY UMESH LALIT)
…………………………..J.
(INDIRA BANERJEE)
…………………………..J.
(M. R. SHAH)
New Delhi;
March 05, 2020.

2013 3 1502 21150 Judgement 05-Mar-2020

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LatestLaws.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. ……….. OF 2020

Manoj Suryavanshi .. Appellant

State of Chhattisgarh .. Respondent

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 08.08.2013 passed by the Division

Bench of the High Court of Chhatisgarh at Bilaspur in Criminal

Appeal No. 550 of 2013 and Criminal Reference No. 05 of 2013, by

confirmed the judgment and order of conviction and death sentence

awarded by the learned Trial Court for the offences punishable

children of the complainant Shivlal – P.W.18 and also for the

offences punishable under Section 364 of the IPC, the original

accused has preferred the present appeal.

3. As per the case of the prosecution, at 7.00 AM on 11.02.2011,

two sons of one Shivlal-original complainant – Vijay aged about 8

years left their home in Darripara to attend the school at

Karaihapara and reached the school. On the school getting over at

On enquiry at the school, the teachers of the minor children told

finding the three minor children, Shivlal-P.W.18 went to the police

Head Constable Krishna Kumar Koshle-P.W.17. During the search

of three minor children, one Ashok Patel-P.W.8 stated that he had

school. As per the case of the prosecution, on 11.02.2011,

Rameshwar-P.W.11 contacted the accused on cell-phone and talked

when his children are missing. According to the prosecution, the

accused was working as labourer in the house of Shivlal. It was

the younger brother of the complainant, namely Shivnath Dhiwar

minors and thereafter killed them. The FIR-Ex.24 was lodged

lodged, the accused was contacted on his mobile no. 9179484724.

The Investigating Officer-P.W.24 asked the Head Constable Hemant

location. Then the Head Constable Hemant Aditya traced the

Lakhram. That, thereafter the Investigating team went to the

house of one Ashok Kumar Madhukar-P.W.13, a relative of the

accused. Initially, the accused was not in home. However,

thereafter continuing the search, they again went to the house of

the said Ashok Kumar Madhukar. According to the case of the

prosecution, thereafter the accused was found and brought to the

police station. He was interrogated in the presence of the

witnesses. A memorandum of statement Ex.P.2 was recorded

under Section 20 of the Evidence Act. On the basis of the

memorandum Ex.P.2 and at the instance of the accused, in the

barren land in Karaihapara – in the field of one Damodar Beldar,

site. The Investigating Officer collected the incriminating materials

during the course of the investigation. The mobile of the accused

was also seized. The Investigating Officer conducted the

Panchnama of the dead bodies of the three minors. The dead

bodies were sent for post-mortem. One Dr. A.M. Srivastava-

P.W.23 conducted the post-mortem. The cause of death of the three

minors was strangulation and the deaths were found to be

homicidal. During the investigation, the Investigating Officer

received the call details – Ex.P.30 of the mobile phone of the

accused. During the investigation, the Investigating Officer

recorded the statement of the witnesses, including the statement of

arrested as per the memorandum dated 13.02.2011. After

conclusion of the investigation, it was found that the accused had

revenge as his wife eloped with the brother of the complainant

Shivlal and thereby committing the offences punishable under