PETITIONER: <NAME> (DEAD) BY LRS. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT11/12/1987 BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) NATRAJAN, S. (J) CITATION: 1988 AIR 752 1988 SCR (2) 352 1988 SCC (1) 681 JT 1988 (1) 297 1988 SCALE (1)235 ACT: Income Tax Act , 1922, Sections 66(5) , 66(7) Income Tax Act, 1961, Sections 297(2)(a), 297(2)(i) Excess Profit Tax Act, 1940, Section 21 . Removal of Difficulties Order, 1962. <ORG>- Assessment made and recovery effected under the 1922 Act-Tax reduced on reference to <ORG> subsequent to commencement of 1961 Act-Claim to interest on refund of income and excess profit taxes- 'Completed assessment'-Meaning of- Section 297(2)(i) and not 297(2)(a) held applicable-Claim to interest on refund of income tax wholly insupportable-Claim to interest on excess profit tax upheld-Suit for-Whether maintainable. Civil Procedure Code , 1908: Section 9-Civil Court- Exclusion of jurisdiction-When implied. HEADNOTE: % <NAME> was assessed in the capacity of <NAME> of a Hindu Undivided Family for Income and Excess Profit Taxes for the assessment year 1947-48. Pursuant to assessment order dated September 23, 1951 as modified by the orders of the Appellate Assistant Commissioner and <ORG> dated May 15, 1952 and March 3, 1957 respectively, a sum of Rs.2,57,383.87 was recovered from the assessee on March 27, 1957 under threat of coercive process. Payment was made by the assessee by borrowing money from a <ORG> on heavy interest by mortgage of his properties. The assessee's Reference under Section 66 of the 1922 Act and Section 21 of Excess Profit Tax Act 1940 was decided in his favour, and the quantum of both the taxes came to be substantially reduced. A sum of Rs.2,01,146.62 as income tax, and Rs.19,126.16 as Excess Profit Tax became refundable. In the meanwhile, the 1922 Act was repealed by Section 297(1) of the 1961 Act, and the assessee's claim of interest from the date of payment of tax in 1957 till the date of reference, was rejected by the <ORG> in view of Section 297 (2(i) of the I.T. Act , 1961. 353 The assessee filed a suit in the <ORG> for recovery of interest on the refunds of Income Tax and Excess Profit Tax claiming that the assessment for the year 1947-48 was completed the moment the assessment order dated March 28, 1951, was passed, and that the claim for interest squarely fell within Section 66(7) of the 1922 Act, read with, and saved by Section 297(2)(a) of the 1961 Act. The <ORG> resisted the suit contending that the suit was not maintainable; that it was statute barred, and being governed by Section 297(2)(i) and not Section 297(2)(a) of the 1961 Act no interest was payable. A Single Judge dismissed the suit, holding that the remedy of a civil suit was misconceived, for <ORG> has no jurisdiction to grant interest in place of the discretion vested in the Commissioner under Section 66(7) of the 1922 Act, and that on a reading of the provisions of section 297 with the Removal of Difficulties order 1962 it had to be held that the claim of the plaintiffs was governed by the provisions of the 1922 Act. In Appeal, <ORG> reversed the findings of the Single Judge and held that the provisions of the 1922 Act did not govern the claim, but sustained the decree of dismissal. The legal representatives of the <ORG> appealed by Special Leave to this Court. It was contended on behalf of the appellant-plaintiff that: (i) for purposes of Section 297(2)(i) the assessment must be held to have been completed not when the <ORG> made the initial order of assessment but only when the assessment assumes finality in appeal; (ii) the scheme of the 1961 Act and the provisions of the Removal of Difficulties order, 1962 suggest that the expression "assessment completed before the commencement of this Act" in Section 297(2)(i) should not be construed as to render the provisions of the 1922 Act relating to the payment of interest on refunds nugatory and deprive an assessee of a right vesting in him under the 1922 Act, and (iii) the claim for interest based on Section 21 of the Excess Profit Tax Act, 1940 pre-eminently survives, as Section 2 incorporates and assimilates into itself as a part of its own legislative- scheme, Section 66 of the 1922 Act and the provisions so built into Section 21 by the legislative expedient of incorporation and not merely of reference, continue to be operative notwithstanding the repeal of the 1922 Act. 354 Allowing the Appeal in part, ^ HELD: 1(a) An assessment would be a 'completed assessment' within Section 297(2)(i) if the <ORG> had passed the order of assessment prior to the coming into force of the 1961 Act. [360B] 1(b) The view taken by <ORG> of the <ORG> on the point must, therefore, be held to be correct and does not call for interference. [360Cl <CITATION> , 99 ITR 579 and CIT Bombay, Presidency & Aden v. <NAME>, 6 ITR 414 referred to. 2(a) Section 66(7) of the 1922 Act which by virtue of Section 21 of the Excess Profit Tax Act, 1940 is attracted to cases of refunds of Excess Profit Taxes stipulates that notwithstanding that a reference has been made to the <ORG>, the tax shall be payable in accordance with the assessment made in the case provided that if the amount of assessment is reduced as a result of such reference, the amount overpaid shall be refunded "with such interest as the Commissioner may allow." [360G-H; 361A] 2(b) This provision mandates the grant of interest, the discretion of the Commissioner being limited to the rate of interest only. [361A- <CITATION> of lncome- Tax, Bihar & Ors., 32 lTR 603 and <CITATION> , 3rd Income- Tax office <ORG>, Bombay & Ors., 130 ITR 180 approved. 3. Generally speaking the broad guiding considerations with regard to institution of suits are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provides a machinery for the enforcement of the right, both the right and the remedy having been created uno-flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil courts' jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, with out expressly excluding <ORG>s' jurisdiction, then both the common law and the statutory remedy might become concurrent remedies leaving open an element. Of election to the persons of inherence. [36ID-F] 355 <CITATION> ., AIR 1940 P.C. 105; <CITATION> , 1966 2 SCR 229; <CITATION> .,  3 SCR 662 and <CITATION> . AIR 1975 SC 2238, referred to. The instant case, is an old litigation which has vexed the parties for over two decades. It appears somewhat unjust to expose the parties to a fresh round of litigation. Counsel left the matter to this Court. In the particular and special circumstances of this case, and with a view to doing full and complete justice between the parties, a sum of Rs.12,282.11 representing the interest on the refund of the Excess Profit Taxes should be ordered to be paid to the appellants. [362B; E] 4. The judgment and decree in so far as they pertain to the dismissal of the suit concerning the claim of Rs.17,358.87 is left undisturbed. That part of the judgment and decree pertaining to the claim of Rs.12,282.11 is decreed directing the respondent-defendant to pay to the appellant-plaintiff the said sum together with pendente-lite interest and further interest at 6% per annum from the date of institution of the suit till realisation. [362F-G] JUDGMENT:

CIVIL APPELLATE JURISDICTlON: Civil Appeal No. 4034 of 1983.

From the Judgment and Decree dated 14.2.1980 of <ORG> in First Appeal (O.S.) No. 17 of 1972.

<NAME> and <NAME> for the Appellant. <NAME>, <NAME>, <NAME> and Ms. <NAME> for the Respondent.

The Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, by special leave, by the legal representatives of <NAME>, the unsuccessful plaintiff, is directed against the Judgment and decree, dated, 14.2.1980 of <ORG> in First Appeal (o.S.) No. 17 of 1972 on its file. affirming the judgment and decree of dismissal dated, 28.7.1972 in Suit no. 372 of 1969 entered by the learned Single Judge of <ORG>.

Plaintiff sued for recovery of interest on certain refunds of Income-tax and Excess Profit Tax claimed to be statutorily due and payable to him under Section 66(7) of the Income tax Act 1922 (here in after referred to as the ' 1922 Act') on the refunds of the taxes. The suit claim comprised of a sum of Rs.1,17,358.87 sought by way of interest on the refund of income-tax; and Rs.12,282.11 claimed as representing interest on the refund of Excess Profit Tax. The assessments were made under the Income Tax Act (1922 Act) and the Excess Profit Tax Act 1940 respectively.

2. The necessary and material facts may briefly be stated:

<NAME> was assessed in the capacity of <NAME> of a Hindu Undivided Family for Income and Excess Profit Taxes for the assessment year 1947-48. It would appear, pursuant to the order of assessment dated, 23.9.1951 made by the <ORG> officer, as modified by the appellate orders dated 15.5.1952 and 27.3.1957 of the Appellate Assistant Commissioner and <ORG>, respectively, a sum of Rs.2,57,383.87 was recovered from him on 27.3.1957 under threat of coercive process. It was plaintiff-assessee's case that he met this obligation by raising funds from <ORG> On the mortgage of his properties incurring heavy liability towards interest on the mortgage loans.

3. However, the quantum of both the taxes came to be substantially reduced pursuant to the consequential orders, dated, 16.9.1966 made under Section 66(5) of the 1922 Act and under Section 66(5) read with Section 2 1 of Excess Profit Tax Act 1940 respectively giving effect to the orders of <ORG> in certain references under P Section 66(1) of the Act. A sum of Rs.2,01,146.62 and a sum of Rs.19,126.16 became refundable by way of income-tax and Excess Profit Tax, respectively, on such recomputation of the income. The said sum of Rs.2,01,146.62 was refunded on 17.12.1966; and the sum of Rs.19,126.16 towards Excess Profit Tax refunded on 9.12.1967. The question that yet remained was whether plaintiff-assessee was entitled to the payment of interest on the said refunds under Section 66(7) of the 1922 Act.

4. In the meanwhile, on 1.4.1962, the Income-Tax Act (1961 Act) had come into force. Under Section 297(1) of the '1961 Act' repealed the ' 1922 Act'. Under the 1922 Act and the Excess Profit Tax Act 1940, appellant was entitled to claim interest on the refund of taxes under circumstances contemplated by Section 66(7) of the ' 1922 Act'. But Section 297(2)(i) provided that: A "(i) where, in respect of any assessment completed before the commencement of this Act, a refund falls due after such commencement or default is made after such commencement in the payment of any sum due under such completed assessment, the provisions of this Act relating to interest payable by <ORG> on refunds and interest payable by the assessee for default shall apply. "

Accordingly, the claim of the plaintiff-assessee for payment of interest on the refunds came to be considered by the authorities under the provisions of 1961 Act and no claim for interest was held to survive.

5. Plaintiff-assessee thereafter, instituted the present suit against <ORG> for recovery of the interest under Section 66(7) of the 1922 Act alleging that the assessment in the present case must be held to have been "completed" before the commencement of the 196 1 Act- according to the assessee the assessment was completed the moment the income-tax officer made the order dated, 28.3.1951-and that, therefore, the claim for interest squarely fell within Section 66(7) of the 1922 Act read with, and saved by, Section 297(2)(a) of the 1961 Act.

The defendant resisted the suit contending first, that the suit was not maintainable; secondly, that it was statute-barred and that, thirdly, at all events, the view taken by the authorities that the matter was governed by the Section 297(2)(i) of the 1961 Act was correct.

6. <ORG> framed the necessary and relevant issues stemming from the pleadings. Having regard to the questions agitated in this appeal, the following two issues- issues nos. 4 & 6-require to he noticed:

4. Whether this <ORG> has jurisdiction to try this suit?

6. Whether the claim of the plaintiffs in the suit is governed by the provisions of Income-Tax Act , 1922? The Learned Single Judge of <ORG> who tried the suit recorded findings against plaintiff-assessee on issue 4 and in his favour on issue no: 6. On issue no, 6, the learned Judge held: H " .. In my judgment, the present case is governed by the provisions of the old Act . . ."

"........ In the present case, the reference was pending when the present Act came into force. The rights of the parties will, therefore, be governed by the provisions of the old Act and it cannot be said that the assessment had been completed. As observed by <ORG> in <CITATION> gal and others, (66 ITR 680), the word "assessment" can bear a very comprehensive meaning; it can comprehend the whole procedure for ascertaining and imposing liability upon the tax-payer . . ."

".... On a reading of the provisions of Section 297 with the Removal of Difficulties order, it seems to me that the intention of the <ORG> was that in a case of assessment such as the present one the provisions of the old Act should apply ".... 1, therefore, hold that the claim of the plaintiffs is governed by the provisions of the Income Tax Act 1922 on issue no. 4, however, learned Judge held: " .... The remedy of a civil suit, it seems to me, is misconceived, for <ORG> has no jurisdiction to substitute its discretion to grant interest in place of the discretion vested in the Commissioner. Section 66(7) of the Act provides that the amount over-paid shall be refunded to the assessee "with such interest as the Commissioner may allow." Now. rate of interest may be anything between one percent and six percent. In view of this statutory provision, the discretion is vested in the public functionary created by the Statute and <ORG> in this suit has no power to over-ride him, and grant interest .. "

Accordingly, the suit came to be dismissed. In the appeal before <ORG> of <ORG>, the finding of the learned Single Judge on issue no. 6 was reversed. It was held that the Provisions of the 1922 Act did not govern the claim. As this appellate finding was sufficient to support and sustain the decree of dismissal, the appellate-Bench did not record any finding of its own on issue. 4. The Legal representatives of the deceased- plaintiff have come-up with this appeal.

7. <NAME>, learned Senior Counsel, appearing in support of the appeal, urged that the correct view which should commend itself for acceptance is that for purposes of 297(2)(i) the assessment must be held to be "completed" not when the <ORG> made the initial order of assessment, but only when the assessment assumes finality in appeal. Implicit in the idea of a completed assessment, says learned Counsel, is the element of its finality and the requirements and concomitants of the idea of a "completed assessment" would, accordingly be satisfied only when all proceedings including those in appeal come to an end and the assessment thus assumes finality under the Act. <NAME> relied upon some authorities including the one in <ORG>, <ORG> v. <NAME>, (6 ITR 414) to explain what the concept of a completed assessment or a final assessment connotes in law. Learned Counsel referred to the scheme of the 1961 Act in this behalf and to the provisions of the Removal of Difficulties order 1962 to suggest that the expression "assessment completed before the commencement of this Act" in the Section 297(2)(i) should not be so construed as to render the provisions in the 1922 Act relating to the payment of interest on refunds nugatory and deprive an assessee of a right vesting in him under the ' 1922 Act'. Learned Counsel urged that if the expression "assessment completed" in section 297(2) (;) is construed in a manner so as to advance justice, then, it should not be limited to cases where only the original assessment by <ORG> had come to be made. A proper construction would require that a case of the present kind was kept outside the mischief of 297(2)(i) and brought within the benignity of Section 297(2)(a) -a construction which would promote and preserve the vested rights under Section 66(7) of the ' 1922 Act'. It was urged that no provision under the 1961 Act envisaged payment of interest in a case of the present kind and any construction which brings the case under 297(2)(i) and not 297(2)(a) would not promote justice. <NAME> in fairness brought to our notice the pronouncement of this court in o. <CITATION> of <ORG>, Madras, (99 ITR 579) but he urged, however, that we should prefer a broader view of the matter consistent with justice and fairness.

8. <NAME>, learned Senior Counsel for the respondent, maintained that the point raised in the appeal is no longer res-integra, having been the subject of an earlier, definitive pronouncement of this court on the very question and that, therefore, the contention urged for the appellant is untenable. We think <NAME> is right in this submission.

In <NAME> case, a similar question having arisen, this court held that an assessment would be a 'completed assessment' within Section 279(2)(i) if the <ORG> had passed the order of assessment prior to the coming into force of the 1961 Act. In view of this pronouncement, it is not possible to accept the contention that the matter fell within Section 297(2)(a) and not Section 297(2)(i) of the 196 l Act. It is not disputed that, in the present case, if the matter fell under 297(2)(i) the claim for interest on the refund of income-tax becomes wholly insupportable. The view taken by <ORG> of <ORG> on the point must, therefore, be held to be correct and does not call for interference in appeal.

Accordingly, the first part of the claim in so far as it pertains to Rs.1,17,358.87 must be held to have been rightly rejected by <ORG>.

9. But the claim of Rs.12,282.11 said to represent interest on the refund of Excess Profit Tax does not admit of such an easy exit. Shri <NAME> urged that this claim rested on an altogether different and surer legal footing. Learned Counsel said that Section 21 of the Excess Profit Tax 1940 incorporated and assimilated into itself as a part of its own legislative-scheme, inter-alia, Section 66 of the 1922 Act and the provisions so built into Section 21 by the legislative expedient of incorporation-and not merely of reference-continue to be operative notwithstanding the repeal of the 1922 Act and that, therefore, the claim for interest based on Section 21 of the Excess Profit Act 1940 pre-eminently survives. Learned Counsel submitted that the claim for interest has been negatived by <ORG> without examining the scheme of Excess Profit Act 1940 and merely as a corollary of the untenability of the claim of interest on the refund of the income-tax.

The distinctive nature of this part of the suit claim pertaining to the interest on Excess Profit Tax has not been specifically dealt with by <ORG>. Section 66(7) of the 1922 Act which, by virtue of Section 21 of the Excess Profit Tax Act 1940, is attracted to cases of refunds of Excess Profit Taxes stipulates that notwithstanding that a reference has been made to <ORG>, tax shall be payable in accordance with the assessment made in the case provided that if the amount of assessment is reduced as a result of such reference, the amount over-paid shall be refunded "with such interest as the commissioner may allow". Several High-Courts have taken the view that the provision mandates the grant of interest, the discretion of the Commissioner being in the area of the rate of such interest ( <CITATION> , Bihar & Ors., 32 ITR 603; <CITATION> , 3rd Income-tax officer A-I Ward, Bombay & Ors, 130 ITR 180).

But then, even if the right to claim interest on the refunds of Excess Profit Tax could be said to have been preserved, the question yet remains whether a suit for its recovery is at all maintainable. The question turns on the scope of the exclusionary clause in the statute. The effect of clauses excluding the civil courts' jurisdiction are considered in several pronouncements of the judicial committee and of this Court ( <CITATION> ., AIR 1940 P.C. 105; <CITATION> ,  2 SCR 299: <CITATION> ,  3 . SCR 662. <CITATION> ., AIR 1975 SC 2238). Generally speaking. the broad guiding considerations are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno-flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil courts' jurisdiction is impliedly barred. If, however, a right pre-existing in common-law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil courts' jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open on element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the civil courts' jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in <NAME>'s case.

10. It was suggested for the revenue that a civil-suit is clearly barred and that the remedy of an assessee who has been denied interest by the Commissioner under Section 66(7) of the 1922 Act would be a recourse to proceedings under Article 226 of the Constitution, where if the assessee succeeds the remedy is limited to the issue of a direction to the repository of the statutory power to consider and dispose of the matter afresh in accordance with law and that, even then, the court, could not itself, grant the relief in terms of its own quantification of the interest. These contentions. Of course, are eminently arguable. <ORG> of the High Court did not keep the qualitative distinction between the two refunds distinguished; but treated the second claim stemming from the Excess Profit Taxes not with reference to the particularities characterising it but purely on its assumed similarity with that of the first.

11. This is an old litigation which has vexed the parties for over two decades. It appears to us somewhat unjust to expose the parties to a fresh round of litigation. Even if the contention of the respondent as to the non- maintainability of a civil-suit is upheld, appellants could yet have recourse to proceedings under Article 226 if they can satisfy <ORG> as to the delay in approaching it and seek an appropriate Mandamus to the Commissioner who would then have to reconsider the claim for interest under this head. Interest claimed is at 6% per annum In the particular and special circumstances of this case, we thought-and put it to the learned counsel-whether the interests of justice would not be served by granting relief in these proceedings itself without going into the technicalities of procedure and without a pronouncement on the question of the maintainability of the suit. Learned counsel, in all fairness, left the matter to the court. We think that with a view to doing full and complete justice between the parties, a sum of Rs. 12,282.11 representing interest on the refund of the Excess Profit Taxes should be ordered to be paid to the appellants. This direction we give without pronouncing on issue no. 4.

12. In the result, while the judgment and decree under appeal, in so far as they pertain to the dismissal of the suit concerning the claim of Rs, 1,17,358.87 is left undisturbed, this appeal is, however, allowed in part to the extent it pertains to the claim of Rs. 12,282.11 claimed by way of interest on the refund of excess profit tax; and in reversal of that part of the judgment and decree of <ORG> pertaining to this claim of Rs.12,282. 11, the suit is decreed directing the respondent-defendant to pay to the appellant-plaintiffs the aforesaid sum of Rs. 12,282.11 together with pendente-lite and further interest at 6% p.a. from the date of institution of the suit till realisation.

The appellants shall be entitled to costs in proportion to their success in the suit. Respondent, however is left to bear and pay its own costs throughout. The appeal is disposed of accordingly.

N.V.K. Appeal allowed partly.


IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.999 OF 2007 STATE OF MAHARASHTRA ... Appellant Versus GORAKSHA AMBAJI ADSUL ... Respondent AND CRIMINAL APPEAL NO.1623 OF 2007 GORAKSHA AMBAJI ADSUL ... Appellant Versus STATE OF MAHARASHTRA ... Respondent J U D G M E N T

<NAME>, J.

The learned trial court, while weighing the mitigating and aggravating circumstances and keeping in mind the principle of proportionality of sentence or what it termed as "just-

desert" for the brutal and diabolical killing of three innocent family members, formed an opinion that the Court could not resist from concluding that the only sentence that could be awarded to the accused was death penalty. Thus, it directed that the accused <NAME> be hanged by the neck till he is dead in terms of Section 354(5) of the Code of Criminal Procedure, 1973 (for short ` Cr.P.C .'), subject to confirmation by <ORG> in accordance with law.

Aggrieved by this extreme punishment and the order of conviction, the accused challenged the judgment of the learned trial court dated 14th February, 2005 by filing an appeal before <ORG> which vide its detailed judgment dated 30th September, 2005, declined to confirm the death sentence referred under Section 366 of the . and held the said accused guilty of offence under Sections 302 and 201 of the Indian Penal Code (for short ` IPC '), and sentenced him to undergo life imprisonment. In other words, <ORG> converted the death penalty into life imprisonment while sustaining the order of conviction.

The State of Maharashtra has preferred the present appeal bearing Crl.A. No. 999/2007, before this Court claiming that the said conversion by <ORG> is not appropriate in the facts and circumstances of the case. The State further avers that <ORG> in its judgment has fallen in error of law as well as failed in appreciation of evidence. It is contended that this Court should restore the judgment of the trial court on the quantum of sentence by awarding death penalty. The accused has filed a separate appeal being Crl.A.

No. 1623 of 2007 challenging the very same judgment of <ORG> on the ground that the appellant could not have been held guilty for an offence under Sections 302 and 201 of the  and the appellant was entitled to judgment of acquittal.

Thus, it will be appropriate for us to dispose of both the above appeals by a common judgment. For that purpose, we may briefly notice the facts giving rise to the present appeals.

Accused no.1 <NAME> is the son of the deceased, <NAME>. Accused no.3 <NAME>. <NAME> is the wife and Accused no.2 <NAME> is the brother of the Accused no.1 <NAME>. Accused no.1 was serving in <ORG> and used to visit his village Hivare-Korda where the family had some agricultural land and other properties. The deceased, <NAME> was also married to the second deceased, <NAME> and she was his second wife. In other words, <NAME> was the stepmother of the Accused no.1 and 2 and <NAME> (deceased) was their stepsister. All these persons used to jointly reside in their house in the said village. It has come in evidence that there used to be quarrels between the Accused no.1, his brother and wife on the one side and the deceased <NAME>, his wife <NAME> and daughter <NAME> on the other. The accused used to demand partition of the land and other property and allotment of share to the accused and his brother. This persisted for a considerable time and is said to be the motive for commission of the offence.

One <NAME>, Deputy Station Superintendent, Railway Station, Bhopal (PW9), received a memo sent by <NAME>, Train Ticket Examiner (TTE), informing him that a black coloured trunk was found in Bogie No.S-6 of Train No. 2779 (Goa-Nizamuddin Express) running via Ahmednagar when it reached Bhopal Railway Station on 25th October, 2002 at about 7.00 p.m. The black trunk was seized under panchnama and when the same was opened in the presence of Dr. <NAME> it was found that it contained a dead body which was later identified to be that of <NAME>. Mr. <NAME>, ASI, G.R.P. Bhopal (PW11) completed the formalities of inquest and post-mortem. After the body was received in the hospital it was inspected by one Dr. Mrs. <NAME>, the then Associate Professor at <ORG>, <ORG>, Bhopal, (PW19).

It was noticed that a lace was found to have been tied to the portion covering neck and throat of the deceased. Dr. <NAME> performed the autopsy on 26th October, 2002. She noticed ligature mark of brownish colour and ligature material of khaki colour shoe lace, two in number, tied around the neck encircling it and described the injuries as ante-mortem injuries. According to the said doctor, the cause of death was strangulation and homicidal in nature and was caused two to three days prior to the post-mortem examination. As nobody had claimed the body, the blood stained clothes of the deceased were seized and the body was cremated at Bhadbhada Vishram Ghat, Bhopal. An FIR (exhibit-82) was registered with regard to the said crime.

On 25th October, 2002 itself, another train, i.e. Train No. 7602-UP (<ORG>) reached Ahmednagar Railway Station at its scheduled time in the morning at about 6.15 a.m. and departed at 6.30 a.m. Enroute, during the stop at Akolner Railway Station for crossing of the train coming from opposite direction, Mr. <NAME>, TTE, found one white tin trunk in Bogie No. S-4 placed between the two toilets of the Bogie No. S-4. After arriving Kasthi Railway Station, Mr. <NAME> made a report to the Station Master, Kashti, informing him of the said trunk. This memo was delivered to GRP, Daund Railway Station (Ex.132). The trunk was removed from the bogie and a panchnama was prepared.

Thereafter, it was opened and two dead bodies were found in that trunk. These were later identified as those of <NAME> and <NAME>. Inquest formalities were completed and an FIR (exhibit 125) was lodged on 25th October, 2002 as Crime No. 43/2002 for offence punishable under Sections 302 and 201 of the .

The railway police investigating officer, Mr. <NAME>, (PW8) conducted investigation and registered a case vide Crime No. 237/2002 on 17th November, 2002 against the three accused namely, <NAME>, <NAME> and <NAME>. On further investigation, it was found that the accused persons had administered sedative/poisonous substance mixed in pedas and thereafter strangulated all the three victims with shoe laces. Thereafter, they placed the bodies of the these victims in two different trunks . One trunk was kept near the electricity board D.P. at nearby Village Malkop and the other at the house of one Mr. <NAME>, a friend of the accused (PW7), before both were transported to the Ahmednagar Railway Station by the accused <NAME> in a hired <ORG> van. Thereafter, as afore-noticed, these trunks were placed in different trains.

Accused nos. 2 and 3 were arrested on 14th November, 2002 and Accused no.1 on 30th November, 2002. Their statements were recorded under Section 164 of the . by Mr. <NAME>, Judicial Magistrate, First Class, on 6 th February, 2003 and 7th February, 2003 respectively. Investigation was completed and the accused were sent to the court of Judicial Magistrate on 11th February, 2003 for committal to <ORG> so that they could be tried in accordance with law.

All the three accused had taken the defence of total denial and pleaded false implication. Accused no. 1 had specifically taken up the plea that between 22nd October, 2002 and 25th October, 2002, he was present at his duty place i.e. <ORG> at Patiala. The prosecution has examined as many as 25 witnesses to bring home guilt of the accused persons and after recording the statement of the accused under Section 313 of the ., the trial court after discussing the entire evidence on record had found Accused no.1 <NAME> guilty of an offence under Section 302 as well as Section 201 of the  and awarded the sentence of death to him.

However, Accused Nos. 2 and 3 were acquitted as according to the trial court, the prosecution had failed to prove its case beyond reasonable doubt against these accused. The State did not prefer any appeal against the acquittal of the said two accused and thus, their acquittal has already attained finality.

Resultantly, in the present appeal, we are only concerned with Accused no.1 <NAME>, who has filed an independent appeal against the judgment of conviction and sentence.

As would appear from the above narrated factual matrix, it is a case of circumstantial evidence and there is no eye-witness or other direct evidence in regard to the murder of the three deceased persons. As is clear from the above, <NAME> Ahilaji Adsul was the real father of Accused nos.1 and 2 while Accused no.3 is the wife of Accused no.1. Deceased <NAME> was the second wife of <NAME> and therefore the step-mother of Accused nos.1 and 2. Deceased <NAME> and PW13 Sunil are the children born to <NAME> from <NAME>, thus, they are the step-sister and step-brother of the Accused nos.1 and 2.

It is the case of the prosecution that there used to be quarrels and the accused <NAME> used to demand partition of the land and other properties. In fact, he is stated to have assaulted his father during those quarrels. The accused <NAME> had returned home for Diwali. He had brought sweets (pedas) with him, which he offered to all, i.e. <NAME>, <NAME>, <NAME>, <NAME> and <NAME> on the night of 23 rd October, 2002. These pedas contained sedative/poisonous substance and after supper when the family was asleep, <NAME> killed his father, stepmother and stepsister by strangulation and packed the dead bodies in two metallic boxes. One of the boxes was loaded in the train 2779 UP, <ORG> while the other was loaded in train 7602-UP, <ORG> and the same were recovered at Bhopal and Daund Railway Stations respectively, as noticed above. <NAME> and the accused <NAME> required medical assistance on the next day as they suffered from vomiting and dysentery presumably because of food poisoning caused by the sedative-infused pedas, which were offered to them by Accused no.1 <NAME>. Another suspicious circumstance which led to the arrest of the accused was that on enquiry by the brother of the deceased <NAME>, the accused had informed him that <NAME>, <NAME> and <NAME> had gone to Ahmednagar for medical treatment and subsequently claimed that he had received a telephone call from his father stating that the family was proceeding to the holy place of Pandharpur. Still another circumstance which connected accused no.1 with the commission of the crime was that he had hired a maruti van owned by PW14 <NAME> for the purpose of carrying the two trunks containing the three dead bodies from Village Malkop to the Railway Station, Ahmednagar. PW-7 <NAME>, a friend of the accused had also deposed that the trunk was kept in front of his house before it was loaded in the <ORG> Van. PW12, <NAME> is a friend of <NAME> and both of them were together when <NAME> contacted <ORG> for hiring of <ORG> Van on 24th October, 2002. They were again together when two trunks were lifted in the early dawn hours on 25th October, 2002. Thus, these two persons were material witnesses for establishing the fact that these trunks/iron boxes were actually carried from the place afore-indicated to the Railway Station by the accused. <NAME>, <NAME> is the brother of the deceased <NAME> and had identified the dead bodies. His statement is of significance in regard to the identification of the dead bodies as well as the conduct of the accused subsequent to the recovery of the dead bodies. He is the person who was provided with incorrect information by the accused <NAME> regarding whereabouts of the deceased. PW13 <NAME> is another material witness as he was also administered the pedas laced with sedatives and the same was served in his presence to the deceased by the Accused no.1 <NAME>. Besides this evidence, the statement of Dr. <NAME>, PW10 also helps in completing the chain of events leading to the commission of the crime and its subsequent result. According to this witness, he had treated <NAME> (PW13) and <NAME> (Accused no.3) on 24th October, 2002 when they were brought to him with the complaint of diarrhea.

When they went to the doctor, <NAME>, the Accused no.1 had accompanied them.

PW23, <NAME>, Judicial Magistrate, First Class at Sahabad had recorded the statements of PW12, <NAME>, <NAME> and <NAME>, sister of the deceased <NAME> under Section 164 of the . We may also notice that some of the panch witnesses who had signed the panchnamas turned hostile and <NAME>, a personal friend of the accused <NAME> also did not fully support the case of the prosecution.

The above are the main witnesses on whose statement the entire case of the prosecution rests, of course, in addition to the statement of the Investigating Officers and other formal witnesses. Accused nos. 2 and 3 were acquitted by the trial court and <ORG> noticed that it was not concerned with the merit or otherwise of their acquittal by the trial court as the State had not preferred any appeal against the judgment of acquittal.

At this stage, we may usefully refer to the circumstances which were relied upon by the prosecution before the courts and they were as follows:-

i Motive - dispute over agricultural land/partition.

(Evidence of PW-13 Sunil and PW-17 Pandurang) i Last seen together - (togetherness by virtue of joint family).

i Administration of sedative through sweets. (Evidence of PW-13 Sunil and PW-10 Dr. <NAME>).

i The disposal of dead bodies by Accused no.1 (Evidence of PW-12 Baban, PW-14 Bapusaheb).

i Identification of Accused no.1 as person loading one trunk in Goa-Nizammuddin Express train (PW-15 Aradhana).

i Homicidal death. i False theory/explanation propounded by accused for absence of the victim. (Evidence of PW-13 Sunil and PW-17 Pandurang).

In the facts and circumstances of the case, <ORG> expressed the opinion that two circumstances, i.e. the last seen together and the homicidal death stands proved by themselves and do not require further evidence to prove that fact. We fully agree with the view expressed by <ORG> that, keeping in view the photographs of the dead body and the doctor's statement, it was proved to be a homicidal death.

The learned counsel appearing for the Accused no.1 (appellant) argued with some vehemence that the doctor had not expressed his opinion with regard to the cause of death particularly in relation to Reshma and Janabai, as is evident from Exhibits 113 and 114. But this argument does not impress us at all inasmuch as the death of the two persons have been proved. From the injury report on the body of the deceased, the photographs and the circumstances attendant thereto, it is more than clear that this was a case of homicidal death. The bodies of the deceased were duly identified. It was practically an admitted case that the deceased as well as the accused were living in a joint family and had their last meals together, during which the accused had offered pedas to the family including the deceased. This is fully substantiated by the statement of <ORG> and <ORG>. <ORG>, <NAME> is a family member. He had also suffered the consequences of consuming the pedas and was treated by <ORG>, Dr. <NAME>.

The factum of carrying of two boxes and loading them on the respective trains has also been fully established by the prosecution as we have above-discussed. At this stage, we may refer to some extracts of the <ORG> judgment where in our view the <ORG> has correctly appreciated the evidence. It disregarded the statement of <ORG> while fully relying upon and holding that there were witnesses who were truthful and can be safely relied upon, the Court held as under: -

"To sum-up the assessment of evidence of these seven vital witnesses, we may say that, PW-7 <NAME> has made himself sufficiently useless for the prosecution. Evidence of PW-12 Baban Thorat is acceptable to establish that Accused No.1 had contracted with PW-14 Bapusaheb and accordingly two trunks were transported from Malkop D.P. to Ahmednagar Railway Station at the instance of Accused No.1 (sic), for which accused no.1 paid hire charges of Rs.200/-. Evidence of PW-14 Bapusaheb, although shaky, can be relied upon on the same point, to the extent it is in harmony with the evidence of PW-12. We find PW-10 Dr. <NAME>, in the absence of case-papers to refresh his memory, to be not reliable. PW-

15 <NAME> also cannot be relied upon for the purpose of identification of Accused No.1, although she can be believed to the extent that the trunk was loaded in Goa-Nizamuddin Express, at Ahmednagar Railway Station. PW-17 <NAME> can be relied upon for identification of the victims and subsequent conduct of Accused No.1, so also to some extent, possible motive i.e. quarrels on the point of partition. PW-13 <NAME>, although a child witness, can certainly be believed regarding togetherness on the fateful night, more so because that is an admitted position. His evidence regarding quarrels on the point of partition can also be accepted, because of support from <NAME> and probability. The story of administration of <ORG> containing some sedative/poisonous substance and subsequent admission to <ORG>, has become a story not acceptable without risk, more so when such story is not supported by any case papers.

XXX XXX XXX XXX XXX We have subjected the evidence to close scrutiny and only thereafter arrived at our conclusion as to whether witnesses are to be believed and if yes, to what extent.

By relying upon Anthony D. Souza - Vs. - State of Kerala, A.I.R. 2003 S.C. 258 and <ORG>, 1995 S.C.C. (Crl.) 702, learned A.P.P. has propounded that, in case accused makes a statement under section 313 of .

completely denying the prosecution case and established facts and offers false answers or explanation, that can be counted as providing missing link from complete chain of the prosecution evidence and circumstances, in a case based on circumstantial evidence. Relying on these cases, an argument that false explanation can be utilized as one of the links in the chain of circumstantial evidence was advanced, in order to persuade this <ORG> that story narrated by accused <NAME> to PW-17 <NAME> about the victims having gone to Pandharpur should be taken into consideration as false explanation, although not to the <ORG>, to the relatives and others. In fact, as already pointed out earlier, accused have persisted in sticking to this explanation even during the curse (sic) of their statement under Section 313 ., 1973, without demonstrating to the <ORG> that either of the two trains, i.e. <ORG> and <ORG> travel via Padharpur (sic). We may state it here itself, that explanation offered by the accused about his having received a message from <NAME> of Village Padali, who received telephone of the deceased <NAME>, of the three victims having gone to Pandharpur cannot be said to have been probabilised in the absence of evidence of said <NAME>. The two trains not having been demonstrate as passing through Pandharpur gives another set back to the said defence.

24. In the light of acquittal of Accused Nos. 2 and 3 by the trial court, learned Advocate for the appellant has placed reliance upon the observations of <ORG> in the matter of <NAME> (Delhi Administration), A.I.R.

1979 S.C. 1408, and more particularly, observation to the following effect in para 2: -

"where witnesses make tow (sic) inconsistent statements in their evidence, either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence, and in absence of special circumstances, no conviction can be based on the evidence of such witness."

This was a case under Prevention of Corruption Act . Three police officers were tried for allegedly having accepted bribe.

PW No.s 6, 8 and 9, <NAME>, <NAME> and <NAME> resiled from their statements which they made in their chief examination and all of them stated that <NAME> (one of the three accused) refused to accept the bribe. <NAME> was, therefore, acquitted by the trial Court. Another accused <NAME> was acquitted by <ORG> on the ground that the sanction was not valid.

We are unable to appreciate the applicability of the ratio to the matter at hands. As can be seen from the impugned judgment, in the present matter, Accused No.s 2 and 3 are acquitted by <ORG> because there is no evidence referring to them....."

The above conclusion of <ORG> does not suffer from any legal infirmity. It is in conformity with the settled principles of law and is based on proper appreciation of evidence. In fact, finding of guilt by both the <ORG> is concurrent. However, they differ only on the question of quantum of sentence. On the appreciation of evidence, we are also of the considered view that the prosecution has been able to prove a complete chain of events which points only towards the guilt of the accused. Even in a case of circumstantial evidence, if the prosecution is able to establish the chain of events to satisfy the ingredients of commission of an offence, the accused would be liable to suffer the consequences of his proven guilt. In the present case, right from the evidence of the entire family having the last dinner together and administering of pedas with sedatives or poisonous substances to the recovery of bodies of the deceased at different railway stations the chain of events stands proved beyond reasonable doubt. In fact, the statement of the accused under Section 313 of the . further supports the case of the prosecution and demolishes the stand of the defence of complete denial. Thus, we are unable to find any error in the concurrent findings recorded by the <ORG> holding the accused guilty of an offence under Sections 302 and 201 of the I.P.C.

Next, we are concerned with whether this <ORG> should exercise its judicial discretion to enhance his punishment from life imprisonment to death sentence, as contemplated on behalf of the <ORG> in its appeal.

The factual matrix of the case as well as the evidence which has been led by the prosecution to bring home the guilt of the accused, we have already discussed in some detail.

Presently, we may discuss the principles which have been long settled by this <ORG> for imposition of death penalty. The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent, right from the pronouncement of the <ORG> judgment of this <ORG> in the case of <CITATION> []. Awarding punishment is certainly an onerous function in the dispensation of criminal justice. The <ORG> is expected to keep in mind the facts and circumstances of a case, the principles of law governing award of sentence, the legislative intent of special or general statute raised in the case and the impact of awarding punishment. These are the nuances which need to be examined by the <ORG> with discernment and in depth. The legislative intent behind enacting Section 354(3) of the . clearly demonstrates the concern of the legislature for taking away a human life and imposing death penalty upon the accused. Concern for the dignity of the human life postulates resistance to taking a life through law's instrumentalities and that ought not to be done, save in the rarest of rare cases, unless the alternative option is unquestionably foreclosed. In exercise of its discretion, the <ORG> would also take into consideration the mitigating circumstances and their resultant effects. Language of Section 354(3) demonstrates the legislative concern and the conditions which need to be satisfied prior to imposition of death penalty. The words, `in the case of sentence of death the special reasons for such sentence' unambiguously demonstrates the command of the legislature that such reasons have to be recorded for imposing the punishment of death sentence. This is how the concept of rarest of rare cases has emerged in law. Viewed from that angle, both the legislative provisions and judicial pronouncements are at ad idem in law. The death penalty should be imposed in rarest of rare cases and that too for special reasons to be recorded. To put it simply, a death sentence is not a rule but an exception.

Even the exception must satisfy the pre-requisites contemplated under Section 354(3) of the . in light of the dictum of the <ORG> in the case of <NAME> (supra).

The Constitution Bench judgment of this Court in the case of <NAME> (supra) has been summarized in paragraph 38 in the case of <CITATION>  and the following guidelines have been stated while considering the possibility of awarding sentence of death:

"i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

ii) Before opting for the death penalty the circumstances of the `offender' also required to be taken into consideration along with the circumstances of the `Crime'.

iii) Life imprisonment is the rule and death sentence is an exception, Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."

The judgment in the case of <NAME> (supra), did not only state the above guidelines in some elaboration, but also specified the mitigating circumstances which could be considered by the <ORG> while determining such serious issues and they are as follows:

"Mitigating circumstances. - In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

1 (1) That the offence was committed under the influence of extreme mental or emotional disturbance.

3 (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

1 (3)The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

1 (4) The probability that the accused can be reformed and rehabilitated. The <ORG> shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

1 (5)That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

1 (6) That the accused acted under the duress or domination of another person.

1 (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."

Now, we may examine certain illustrations arising from the judicial pronouncements of this <ORG>. In the case of <NAME>

<CITATION> [] this Court took the view that custodial torture and consequential death in custody was an offence which fell in the category of rarest of rare cases. While specifying the reasons in support of such decision, the Court awarded death penalty in that case. In the case of <CITATION> [], this Court also spelt out in paragraphs 56 to 58 that nature, motive, impact of a crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are the factors which the court may take into consideration while dealing with such cases. In that case the friends of the victim had called him to see a movie and after seeing the movie, a ransom call was made, but with the fear of being caught, they murdered the victim.

The <ORG> felt that there was no evidence to show that the criminals were incapable of reforming themselves, that it was not a rarest of rare case, and therefore, declined to award death sentence to the accused. Interpersonal circumstances prevailing between the deceased and the accused was also held to be a relevant consideration in the case of <CITATION> [AIR 2002 SC 2211] where constant nagging by family was treated as the mitigating factor, if the accused is mentally unbalanced and as a result murders the family members. Similarly, the intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge and retaliation were also considered to be a relevant factor by this <ORG> in different cases.

This <ORG> in the case of <NAME> (supra) also considered various doctrines, principles and factors which would be considered by the <ORG>s while dealing with such cases. The <ORG> discussed in some elaboration the applicability of doctrine of rehabilitation and the doctrine of prudence. While considering the application of the doctrine of rehabilitation and the extent of weightage to be given to the mitigating circumstances, it noticed the nature of the evidence and the background of the accused. The conviction in that case was entirely based upon the statement of the approver and was a case purely of circumstantial evidence. Thus, applying the doctrine of prudence, it noticed the fact that the accused were unemployed, young men in search of job and they were not criminals. In execution of a plan proposed by the appellant and accepted by others, they kidnapped a friend of theirs. The kidnapping was done with the motive of procuring ransom from his family but later they murdered him because of the fear of getting caught, and later cut the body into pieces and disposed it off at different places. One of the accused had turned approver and as already noticed, the conviction was primarily based upon the statement of the approver. Basing its reasoning on the application of doctrine of prudence and the version put forward by the accused, the <ORG>, while declining to award death penalty and only awarding life imprisonment, held as under: -

"135. Right to life, in its barest of connotation would imply right to mere survival. In this form, right to life is the most fundamental of all rights. Consequently, a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably. We realize the absolute nature of this right, in the sense that it is a source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the right to life. Right to life is the essential content of all rights under the Constitution. If life is taken away, all other rights cease to exist.

XXX XXX XXX XXX XXX

168. We must, however, add that in a case of this nature where the entire prosecution case revolves round the statement of an approver or dependant upon the circumstantial evidence, the prudence doctrine should be invoked. For the aforementioned purpose, at the stage of sentencing evaluation of evidence would not be permissible, the courts not only have to solely depend upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the matter keeping in view of evidences which have been brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment. A statement of approver in regard to the manner in which crime has been committed vis-a-vis the role played by the accused, on the one hand, and that of the approver, on the other, must be tested on the touchstone of the prudence doctrine

169. The accused persons were not criminals. They were friends. The deceased was said to have been selected because his father was rich. The motive, if any, was to collect some money. They were not professional killers. They have no criminal history. All were unemployed and were searching for jobs. Further if age of the accused was a relevant factor for <ORG> for not imposing death penalty on Accused No. 2 and 3, the same standard should have been applied to the case of the appellant also who was only two years older and still a young man in age. Accused Nos. 2 and 3 were as much a part of the crime as the appellant. Though it is true, that it was he who allegedly proposed the idea of kidnapping, but at the same time it must not be forgotten that the said plan was only executed when all the persons involved gave their consent thereto.

171. Section 354(3) of the Code of Criminal Procedure requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons thereof. We do not think that the reasons assigned by the courts below disclose any special reason to uphold the death penalty. The discretion granted to the courts must be exercised very cautiously especially because of the irrevocable character to death penalty.

Requirements of law to assign special reasons should not be construed to be an empty formality.

172. We have previously noted that the judicial principles for imposition of death penalty are far from being uniform.

Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this <ORG>, that life imprisonment is the rule and death penalty an exception.

Each case must therefore be analyzed and the appropriateness of punishment determined on a case-by- case basis with death sentence not to be awarded save in the `rarest of rare' case where reform is not possible. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no special reasons to record the death penalty and the mitigating factors in the present case, discussed previously, are, in our opinion, sufficient to place it out of the "rarest of rare" category.

173. For the reasons aforementioned, we are of the opinion that this is not a case where death penalty should be imposed.

The appellant, therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life. Subject to the modification in the sentence of appellant (A1) mentioned hereinbefore, both the appeals of the appellant as also that of the <ORG> are dismissed."

The above principle, as supported by case illustrations, clearly depicts the various precepts which would govern the exercise of judicial discretion by the <ORG> within the parameters spelt out under Section 354(3) of the . Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the constitutional point of view or from the human rights point of view. The condition of providing special reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the <ORG> to the extent that the only and inevitable conclusion should be awarding of death penalty.

In the present case, the accused belonged to the armed forces, his father had married for the second time and had children from the second wife. There were continuous quarrels with regard to the division of property and during these quarrels the accused is stated to have even hit his father. It was a pressure which had increased with the passage of time and probably this frustration attained the limit of commission of such a heinous crime by the accused. Surely, the manner in which the crime has been committed is deplorable but the attendant circumstances and the fact that he even administered the sweets (pedas) containing sedatives/poisonous substance to his own wife <NAME>, the Accused no.3, shows that his frustration, and probably greed, for the property had attained volcanic dimensions. The intensity of bitterness between the members of the family had exacerbated the thoughts of revenge and retaliation in him. The constant nagging would have to be taken as a mitigating circumstance in the commission of this crime. Resultantly, in view of the above factual matrix and the legal analysis, we do not find that the present case falls in the category of `rarest of rare cases'.

For the reasons afore-recorded, we dismiss both the appeals.

....................................J.

[Dr. B.S. Chauhan] ....................................J.

[Swatanter Kumar] New Delhi;

July 7, 2011.