SUDAM @ RAHUL KANIRAM JADHAV versus THE STATE OF MAHARASHTRA on 1 October 2019

[2019] 14 S.C.R. 943

SUDAM @ RAHUL KANIRAM JADHAV

v.

THE STATE OF MAHARASHTRA

(Review Petition (Crl.) Nos.401-402 of 2012)

In

(Criminal Appeal Nos.185-186 of 2011)

OCTOBER 01, 2019

[N.V. RAMANA, MOHAN M. SHANTANAGOUDAR ANDINDIRA BANERJEE, JJ.]

Review Jurisdiction: Scope of review in criminal proceedings– Held: In criminal proceedings, the scope of review jurisdiction ofSupreme Court is guided by Art.137 of the Constitution as well asOr.XL r.10 of the Supreme Court Rules, 1966, which permit the Courtto correct miscarriage of justice caused by an error apparent onthe face of the record – Supreme Court cannot re-appreciate evidencein its entirety in the exercise of its review jurisdiction.

Penal Code, 1860: s.302 – Circumstantial evidence –Conviction by courts below and upheld by Supreme Court – Reviewpetition – Held: There is no ground for interference with any findingof the Courts with respect to the appreciation of the testimony relatingto the “last seen” circumstance, the extra judicial confession andthe motive of the petitioner – Chain of circumstances establishedthe guilt of the petitioner beyond reasonable doubt.

Sentence/Sentencing: Death sentence – Sentencing in caseof circumstantial evidence – Though it may be a relevantconsideration in sentencing that the evidence in a given case iscircumstantial in nature, there is no bar on the award of the deathsentence in cases based upon such evidence – In such a situation,it is upto the Court to determine whether the accused may besentenced to death upon the strength of circumstantial evidence,given the peculiar facts and circumstances of each case, whileassessing all the relevant aggravating circumstances of the crimeand mitigating circumstances of the accused.

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ASentence/Sentencing: Death sentence – Commutation ofsentence, prayed – Held: While arriving at the conclusion that theinstant case fell into the category of the rarest of rare cases, theCourt took into account the premeditated nature of the crime, andits brutal and barbaric nature, observing that the same was sufficientto shock the collective conscience of the society – The Court alsoBopined that the Petitioner was a menace to society and could not bereformed, and that lesser punishment would expose society to perilat his hands – However, the nature of the circumstantial evidence inthis case amounts to a mitigating circumstance significant enoughto tilt the balance of aggravating and mitigating circumstances inCthe Petitioner’s favour – Moreover, it is also possible that the incorrectobservations pertaining to deceased’s facial injuries further ledthe Court to conclude in favour of imposing the death sentence onthe Petitioner – Thus, there was a reasonable probability that thisCourt would have set aside the sentence of death in appeal, sincethe only surviving evidence against the Petitioner pertained to hisDmotive to commit the crime, the circumstance of “last seen” and asolitary extra-judicial confession – In other words, it cannot besaid that the punishment of life imprisonment is unquestionablyforeclosed in the instant case, in spite of the gravity and barbarityof the offence – The award of the death penalty in the instant case,Ebased on the evidence on record is not upheld – A sentence of lifeimprisonment simpliciter would, however, be inadequate, given thegruesome nature of the offence, and the menace posed to society atlarge by the Petitioner, as evinced by the conduct of the Petitionerin jail – The conduct of the Petitioner in jail was unsatisfactory,and that he was becoming aggressive and indulging in illegalFactivities in prison, intentionally abusing prisoners and prison staffand provoking fights with other prisoners – It is appropriate toimpose a restriction on the Petitioner’s right to remission – Petitionershall, therefore, remain in prison for the remainder of his life.

Partly allowing the Review Petitions, the CourtG

Conclusion

Partly allowing the Review Petitions, the CourtG

HELD: 1. It is well-settled that review proceedings cannotbe treated as an appeal in disguise. Particularly, in criminalproceedings, the scope of review jurisdiction of this Court isguided by Article 137 of the Indian Constitution as well as OrderXL Rule 10 of the Supreme Court Rules, 1966, which permit theH

Court to correct miscarriage of justice caused by an error apparenton the face of the record. This Court cannot re-appreciateevidence in its entirety in the exercise of its review jurisdiction.Furthermore, the reference to “additional grounds” in theobservations in the order dated 31.10.2018 in Md. Arif @ Ashfaqcase pertains to additional grounds which could have been raisedby the review petitioner before this Court in the exercise of itsreview jurisdiction and had not been raised when the reviewpetition had originally been filed before this Court. In fact, areading of the entire order reveals that the Court at that juncturewas dealing with a criminal miscellaneous application seekingthat the scope of the permission granted by this Court in Md.Arif @ Ashfaq v. The Registrar, Supreme Court to re-hear reviewpetitions dismissed by circulation be extended to also includecases where a curative petition had been dismissed by circulationafter the dismissal of review, since this category of cases hadbeen specifically denied the relief of re-hearing by the Court.With particular regard for the fact that the petitioner therein wasthe only person to be denied an open Court hearing due to thislimitation, and in light of the limited grounds on which a curativepetition could be filed, which meant that the rejection of a reviewpetition could never be completely reconsidered in curativejurisdiction, this Court in its order dated 31.10.2018 extendedthe relief of re-hearing to dismissed curative petitions as well. Itwas while doing so that the observations that were relied uponby the Petitioner came to be passed. In view of this, the contentionraised for the Petitioner that the above observations have createda window for this Court to re-appreciate the entire evidence onrecord while hearing review petitions is rejected. [Paras 6.2-6.5] [951-H; 952-A-B; 953-A-F]

2. The entire case of the prosecution is built uponcircumstantial evidence. This Court, in appeal, affirmed thefindings of the Courts below regarding the conviction of thePetitioner. There is no ground for interference with any findingof the Courts with respect to the appreciation of the testimonyrelating to the “last seen” circumstance, the extra judicialconfession made to PW-9, and the motive of the Petitioner.However, crucially, this Court, in appeal, also relied upon the AB

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Adeposition of PW-6 with respect to the extra-judicial confessionmade to her, inasmuch as she deposed in her examination-in-chief that the Petitioner had confessed to her over a telephoniccall that he had murdered the deceased. However, the Courtomitted to appreciate that PW-6 had admitted in hercross-examination that the Petitioner had not told her that heBhad murdered the deceased, which in fact was a reason for theTrial Court to not rely on her testimony. This Court committedan error apparent on the face of the record in placing relianceupon the extra judicial confession allegedly made by the Petitionerbefore PW-6, by noting that such evidence had been relied uponCby the Courts below, when in fact it had been rightly rejected bythe Trial Court. [Paras 10, 14, 14.1] [955-F; 956-F-H; 957-A-B]

3.1 This Court, in determining the correctness of thequantum of sentence assessed by the High Court, while notingthat the offence appeared to be premeditated and well-planned, Derroneously observed that the Petitioner had crushed the face ofthe deceased the deceased woman to avoid identification. Thisobservation is unsupported by the medical evidence on record.PW-4, the doctor who conducted the post-mortem on the body ofthe deceased woman, only deposed to the presence of contused

lacerated wounds on her face. There is no evidence to the effectEthat her face was marred beyond recognition or that thereappeared to be any attempt to do so. This is yet another errorapparent on the face of the record. [Para 15] [957-C-D]

3.2 The evidence relied upon in the instant case is purelycircumstantial, including the motive to commit the offence, theFcircumstance of the deceased being last seen with the Petitioner,and two extra-judicial confessions. Thus, keeping aside the extra-judicial confession to PW-6, it is evident that evidence as to thecircumstance of motive, the “last seen” circumstance as well asone extra-judicial confession still survive. The chain ofGcircumstances establishing the guilt of the Petitioner beyondreasonable doubt is not materially affected even if one of the twoextra-judicial confessions is discarded. Thus, this Court rightlyaffirmed the conviction of the Petitioner under Sections 302 and201, IPC, and there is no cause to interfere with such finding ofguilt in the exercise of review jurisdiction. [Para 17] [957-G-H;H958-A]

4. Though it may be a relevant consideration in sentencingthat the evidence in a given case is circumstantial in nature, thereis no bar on the award of the death sentence in cases based uponsuch evidence. In such a situation, it is up to the Court todetermine whether the accused may be sentenced to death uponthe strength of circumstantial evidence, given the peculiar factsand circumstances of each case, while assessing all the relevantaggravating circumstances of the crime, such as its brutality,enormity and premeditated nature, and mitigating circumstancesof the accused, such as his socio-economic background, age,extreme emotional disturbance at the time of commission of theoffence, and so on. [Paras 18.1-18.2] [958-C-E]

Ashok Debbarma v. State of Tripura(2014) 4 SCC747 : [2014] 4 SCR 287 – relied on.

Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ;Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC317 : [2013] 16 SCR 616 ;Kalu Khan v. State ofRajasthan(2015) 16 SCC 492 : [2015] 7 SCALE 195;Sebastian @ Chevithiyan v. State of Kerala(2010) 1SCC 58 ; Bachan Singh v. State of Punjab(1980) 2SCC 684 – relied on.

5. The material on record is sufficient to convince the Courtof the Petitioner’s guilt beyond reasonable doubt; however, thenature of the circumstantial evidence in this case amounts to amitigating circumstance significant enough to tilt the balance ofaggravating and mitigating circumstances in the Petitioner’sfavour, keeping in mind the doctrine of prudence. Moreover, itis also possible that the incorrect observations pertaining todeceased’s facial injuries further led the Court to conclude infavour of imposing the death sentence on the Petitioner. Thus,there was a reasonable probability that this Court would have setaside the sentence of death in appeal, since the only survivingevidence against the Petitioner pertains to his motive to committhe crime, the circumstance of “last seen” and a solitary extra-judicial confession. In other words, it cannot be said that thepunishment of life imprisonment is unquestionably foreclosed inthe instant case, in spite of the gravity and barbarity of the offence.

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AThe award of the death penalty in the instant case, based on theevidence on record, cannot be upheld. A sentence of lifeimprisonment simpliciter would be inadequate in the instant case,given the gruesome nature of the offence, and the menace posedto society at large by the Petitioner, as evinced by the conduct ofthe Petitioner in jail. The conduct of the Petitioner in jail hasBbeen unsatisfactory, and that he gets aggressive and indulges inillegal activities in prison, intentionally abusing prisoners andprison staff and provoking fights with other prisoners. Two FIRshave also been registered against the Petitioner for abusing andthreatening the Superintendent of the Nagpur Central Prison. ItCmay be appropriate to impose a restriction on the Petitioner’sright to remission. The Petitioner shall, therefore, remain inprison for the remainder of his life. [Paras 20-21, 22, 22.1] [962-E-H; 963-A-D]

Swamy Shraddananda v. State of Karnataka(2007) 12DSCC 288 : [2007] 7 SCR 616;Ramesh v. State ofRajasthan(2011) 3 SCC 685 : [2011] 4 SCR585 – relied on.

Mohd. Arif @ Ashfaq v. Registrar, Supreme Court ofIndia(2014) 9 SCC 737 : [2014] 11 SCR 1009 ; VikramESingh v. State of Punjab(2017) 8 SCC 518 : [2017] 8SCR 177 ;P.N. Eswara Iyer v. The Supreme Court(1980) 2 SCR 889 ;Suthendraraja v. State(1999) 9SCC 323 : [1999] 3 Suppl. SCR 540;Md. Mannan @Abdul Mannan v. State of Bihar 2019 (7) SCALE 468 ;Swamy Shraddhananda (2) v. State of KarnatakaF(2008) 13 SCC 767 : [2008] 11 SCR 93; Union ofIndia v. V. Sriharan(2016) 7 SCC 1 : [2015] 14 SCR613 – referred to.

Case Law Reference

G[2014] 11 SCR 1009 referred toPara 5[2017] 8 SCR 177 referred toPara 6.2(1980) 2 SCR 889 referred toPara 6.2[1999] 3 Suppl. SCR 540 referred toPara 6.2H[2007] 7 SCR 616 relied onPara 18.1

SUDAM @ RAHUL KANIRAM JADHAV v. STATE OFMAHARASHTRA

INHERENT JURISDICTION: Review Petition (Criminal)Nos. 401-402 of 2012 in Criminal Appeal Nos. 185-186 of 2011

From the Judgment and Order dated 04.07.2011 passed by thisHon’ble Court in Criminal Appeal Nos.185-186 of 2011

Ms. Nitya Ramakrishnan, Yash S. Vijay, Saad Uzzaman, ShadanFarasat, Ms. Ninni Susan Thomas, Ms. Jahnavi Sindhu, Ms. ShrutiNarayan, Advs. for the Appellant.

Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Ms. DeepaKulkarni, Advs. for the Respondent.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J.

1. The instant review proceedings pertain to Review Petition (Cri.)No. D19901 of 2012 seeking to review the final judgment and orderdated 04.07.2011 passed by this Court in Criminal Appeal Nos. 185-86of 2011 dismissing the appeal filed by the Review Petitioner (in short“the Petitioner”) and confirming his conviction under Sections 201 and302 of the Indian Penal Code (in short, “IPC”). Vide the impugnedjudgment, this Court upheld the sentence under Section 201, IPC andthe death sentence under Section 302, IPC imposed upon the Petitioner.

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A2. The brief facts pertaining to this case are as follows:

2.1 On the morning of 21.08.2007, the bodies of four childrenwere discovered floating in the village pond (known as Juna Pani talav)in the village of Rupla Naik Tanda, District Nanded, Maharashtra. Amale child aged six years along with a female child aged ten years wereBfound tied together, and a female child aged ten months along with amale child of two to four years, were found tied separately. The body ofan unidentified woman with a mangalsutra on her neck was alsosubsequently discovered below a nearby boulder by the police. Thedeceased persons were eventually identified as Anita, the daughter ofone Maroti Madavi, the two children born to her from her first husbandCand the two children born to her from the Petitioner. The Petitioner wasfound by the police on 24.08.2007, but is alleged to have abscondedsubsequently, and was arrested only on 22.09.2007.

3. The investigation revealed that the deceased Anita had beenliving with the Petitioner as his wife and had come to know about hisDmarriage with PW-6 Muktabai. The deceased was opposed to thisrelationship, which led to a serious dispute amongst the three of them.The Petitioner allegedly divorced PW-6, and agreed to pay her a sum ofRs. 15,000/-, which the deceased Anita promised to bear. Thereafter,PW-6 went to her village, and the Petitioner, the deceased Anita and herEfour children came to the village of Juna Pani, where, because of thestrained relationship with his wife, the Petitioner murdered her and thefour children by strangulating them.

4. The principal evidence put forth by the prosecution against thePetitioner includes the motive of the accused, the evidence put forth byFPW-8 Prahlad that the deceased were last seen with the Petitioner, andthat of PW-6 Muktabai and PW-9 Ishwar with respect to the extra-judicial confessions made to them by the Petitioner. The Trial Courtconvicted the Petitioner for the offences stated supra on the basis of thelast seen circumstance as deposed to by PW-8; the motive of the accusedas deposed to by PW-5, the mother of the deceased Anita; the extra-Gjudicial confession made by the Petitioner to PW-9 Ishwar; the fact thatthe Petitioner had absconded after the commission of the offence; andhis failure to explain the circumstances leading to the homicidal deathsof the deceased. The High Court confirmed the conviction and sentenceas awarded by the Trial Court, including the sentence of death, holdingHthat the case at hand falls into the category of the rarest of rare cases warranting punishment with death. This Court, in appeal, confirmed thesame.

5. Review Petition (Cri.) No. D19901 of 2012 filed by the Petitioneragainst the above judgment and order of this Court was dismissed bycirculation vide order dated 26.07.2012. A criminal miscellaneous petitionwas filed by the Petitioner seeking reopening of this review petition,placing reliance on the decision of this Court in Mohd. Arif @ Ashfaqv.Registrar, Supreme Court of India, (2014) 9 SCC 737, which heldthat in light of Article 21 of the Indian Constitution, review petitionsarising out of appeals where the death sentence had been affirmed wererequired to be heard orally by a 3-Judge Bench, and specifically permittedthe reopening of review petitions in all cases where review petitions hadbeen dismissed by circulation. This Court subsequently recalled the orderdated 26.07.2012 passed in Review Petition No. D19901/2012 andpermitted the re-hearing of such petition in open Court.

6. Learned counsel for the Petitioner, Ms. Nitya Ramakrishnan,argued for the acquittal of the Petitioner, contending that there are variousinfirmities in how the material on record has been appreciated by theCourts, in addition to highlighting errors apparent on the face of therecord. The broad thrust of her argument was that the entire case wasbuilt on circumstantial evidence, i.e. the “last seen” evidence, two purportedextra-judicial confessions, and the motive of the Petitioner, all of whichwere erroneously relied upon.

6.1 Thus, she virtually seeks a re-appreciation of the entireevidence, submitting that it is permissible to raise any additional groundat the stage of review. To make this submission, learned Counsel reliedon the permission given by this Court to the petitioner in Md. Arif@Ashfaq v. Registrar, Supreme Court of India, vide order dated19.01.2016 passed in Review Petition (Criminal) No. 692 of 2015 inWrit Petition (Criminal) No. 77 of 2014, to raise any additional ground asmay be legally permissible in the re-hearing of his review petition. Therelevant observation from the said order is reproduced below:

“We permit the petitioner to raise all such additional grounds insupport of the said review petition as may be legally permissibleto him.”

6.2 We would like to deal with this argument raised by learnedCounsel for the Petitioner at this juncture itself. It has been well-settled AB

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Aby a catena of decisions of this Court that review proceedings cannot betreated as an appeal in disguise. Particularly, in criminal proceedings, thescope of review jurisdiction of this Court is guided by Article 137 of theIndian Constitution as well as Order XL Rule 10 of the Supreme CourtRules, 1966, which permit the Court to correct miscarriage of justicecaused by an error apparent on the face of the record. In this regard, itBwould be fruitful to refer to the decision of this Court in Vikram Singhv. State of Punjab, (2017) 8 SCC 518, where the Court was re-hearinga review petition against the award of the death penalty to the reviewpetitioner therein, pursuant to the decision in Md. Arif @ Ashfaq v. TheRegistrar, Supreme Court (supra). In this decision, afterCcomprehensively explaining the scope of the review jurisdiction of thisCourt in criminal proceedings and revisiting its earlier decisions on thisaspect, including P.N. Eswara Iyer v. The Supreme Court, (1980) 2SCR 889 and Suthendraraja v. State, (1999) 9 SCC 323, this Courtconcluded as follows:

D“23. In view of the above, it is clear that scope, ambit andparameters of review jurisdiction are well defined. Normally in acriminal proceeding, review applications cannot be entertainedexcept on the ground of error apparent on the face of the record.Further, the power given to this Court under Article 137 is widerand in an appropriate case can be exercised to mitigate a manifestEinjustice. By review application an applicant cannot be allowed toreargue the appeal on the grounds which were urged at the timeof the hearing of the criminal appeal. Even if the applicant succeedsin establishing that there may be another view possible on theconviction or sentence of the accused that is not a sufficient groundFfor review. This Court shall exercise its jurisdiction to review onlywhen a glaring omission or patent mistake has crept in the earlierdecision due to judicial fallibility. There has to be an error apparenton the face of the record leading to miscarriage of justice toexercise the review jurisdiction underArticle 137 read with Order40 Rule 1. There has to be a material error manifest on the faceGof the record with results in the miscarriage of justice.” (emphasissupplied)

6.3 We prefer not to burden this judgment with further discussionon this issue. Suffice it to say that there can be no argument that thisCourt cannot re-appreciate evidence in its entirety in the exercise of itsH

review jurisdiction. Furthermore, it is evident that the reference to“additional grounds” in the observations in the order dated 19.01.2016in Md. Arif @ Ashfaq v. The Registrar, Supreme Court (supra)reproduced above pertains to additional grounds which could have beenraised by the review petitioner before this Court in the exercise of itsreview jurisdiction and had not been raised when the review petition hadoriginally been filed before this Court.

6.4 In fact, a reading of the entire order reveals that the Court atthat juncture was dealing with a review petition seeking that the scopeof the permission granted by this Court in Md. Arif @ Ashfaq v. TheRegistrar, Supreme Court (supra) to re-hear review petitions dismissedvide circulation be extended to also include cases where a curative petitionhad been dismissed vide circulation after the dismissal of review, sincethis category of cases had been specifically denied the relief of re-hearingby the Court. With particular regard for the fact that the petitioner thereinwas the only person to be denied an open Court hearing due to thislimitation, and in light of the limited grounds on which a curative petitioncould be filed, which meant that the rejection of a review petition couldnever be completely reconsidered in curative jurisdiction, this Court inits order dated 19.01.2016 extended the relief of re-hearing to dismissedcurative petitions as well. It was while doing so that the observationsthat have been relied upon by learned Counsel for the Petitioner came tobe passed.

6.5 In view of the above discussion, we are constrained to rejectthe contention raised by learned Counsel for the Petitioner that the aboveobservations have created a window for this Court to re-appreciate theentire evidence on record while hearing review petitions. The submissionsof learned Counsel for the Petitioner have to be considered keeping theabove discussion in mind.

7. With respect to the evidence for the circumstance of “lastseen”, learned Counsel led us through the evidence of PW-8 Prahlad topoint out the inherent improbabilities in his testimony, pointing out that hehad testified that his statement was recorded by the police on 19.8.2007,whereas the bodies of the deceased were discovered only on 21.8.2007.She argued that the Trial Court had erroneously supplied possible reasonsto explain this incongruity, which went to the root of the matter, sincePW-8 is a timeline witness, especially in the absence of any re-examinationin this regard.

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A7.1 With regard to the evidence of PW-9 Ishwar, one of thewitnesses for the extra-judicial confessions, it was argued that since hisstatement was only recorded on 30.11.2007, there was a high likelihoodof concoction of evidence, rendering it unreliable. She also contendedthat there was a complete absence of any semblance of a timeline inPW-9’s testimony, which also materially contradicted the “last seen”Btestimony, inasmuch as PW-9 deposed that he saw the Petitioner withhis wife and children four to five days before the purported extra judicialconfession was made.

7.2 Coming to the second extra judicial confession, learned Counselpointed out that the High Court and this Court had erred in relying on theCtestimony of PW-6 regarding the confession made by the Petitioner toher over a mobile phone conversation, by ignoring the admission to thecontrary made in the cross-examination. The testimony of PW-6 pertainingto the extra-judicial confession had been correctly discarded by the TrialCourt on this basis. The Trial Court had further found such testimony Dunreliable due to non-corroboration by call records. It was contendedthat the High Court and this Court had both overlooked this aspect andwrongly relied on this extra-judicial confession, and this Court had evengone on to incorrectly note that the Trial Court had relied on theconfession, which was an error apparent on the face of the record.

E7.3 It was further submitted that PW-13, the Investigation Officerhad deposed that he had not obtained the call records of PW-9’s mobile(to which the Petitioner had allegedly made calls and over which he hadallegedly made the extra-judicial confession to PW-6) even though hedeposed in the same breath that he had called for the same but could notobtain them. In such a situation, the Court was entitled to proceed on theFbasis that such evidence had not been adduced even though it couldhave been, and on that basis draw an adverse inference against theprosecution under Section 114 of the Evidence Act, 1872.

7.4 With respect to the motive, it was submitted that the motivefor the commission of the offence was weak since the dispute betweenGthe Petitioner and the deceased Anita regarding the Petitioner’srelationship with PW-6 Muktabai had already been settled.

7.5 She therefore argued that there was no reliable evidenceconnecting the Petitioner to the crime, in the absence of direct or forensicevidence.

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7.6 On the aspect of sentencing, learned Counsel argued that thePetitioner had no previous record of bad behaviour, and further that thedeath penalty may not be imposed for a conviction based solely oncircumstantial evidence. It was further submitted that this Court, whileimposing the death penalty, had travelled beyond the record to observethat the face of the deceased had been crushed with a stone, which hadunfairly prejudiced the Court.

8. Learned counsel for the Respondent, i.e. the State ofMaharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the otherhand, argued in favour of the judgments rendered by the Courts. Inparticular, he stressed that even if part of the testimony of PW-6 hadbeen misread by the Courts, her evidence against the Petitioner remainedunshaken on other aspects, such as motive, since she had deposed thatthe Petitioner had admitted to her that he had been harassing Anita. Healso highlighted that as per the Post Mortem Report (Exh. P-43) of thedeceased Anita, as spoken to by the examining doctor PW-4, the probablecause of her death was asphyxia due to throttling, and PW-4 hadspecifically denied the possibility of self-strangulation.

8.1 On the aspect of sentencing, he argued that in light of themenace posed to society, even if the death penalty were to be commuted,a minimum mandatory sentence of 30 years must be imposed upon thePetitioner.

9. We have perused the record of the case after hearing thelearned Counsel on either side.

10. At the outset, it is important to note that the entire case of theprosecution is built upon circumstantial evidence. As already mentionedsupra, this Court, in appeal, affirmed the findings of the Courts belowregarding the conviction of the Petitioner. For the reasons already notedabove, we cannot delve into the submissions of either party that pertainto appreciation of evidence anew. However, we deem it appropriate tobriefly refer to the evidence on record, i.e. the circumstance of thePetitioner being last seen with the deceased as deposed by PW-8, theextra judicial confessions made to PWs 6 and 9, and the motive of thePetitioner.

11. The “last seen” circumstance is spoken to by PW-8 Prahlad,who deposed that on 19.08.2007, when he was at his house, the Petitioneralong with his wife and four children came to his house and asked for AB

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Awater, and further that though he requested the Petitioner to stay back,the Petitioner left with his family.

12. PW-9 Ishwar’s testimony pertains to an extra judicialconfession, as he deposed that the Petitioner had confessed before himthat he had strangulated the four children and the deceased Anita toBdeath, and thrown their bodies in the pond, as Anita was harassing him.

13. The deposition of PW-5, Anusayabai, the mother of thedeceased Anita, as well as that of PW-6 Muktabai, is pertinent withrespect to the motive of the Petitioner to commit the murders. As perPW-5, her daughter bore two children with her first husband Anil Gedam,Cbut Anita started living with the Petitioner after Anil deserted her. PW-5deposed that the Petitioner had married PW-6 Muktabai, and that thePetitioner had committed the murder of Anita and her children on accountof the dispute caused by the Petitioner’s marriage with PW-6.

13.1 PW-6 Muktabai, in her turn, deposed that a few days afterDher marriage with the Petitioner, while they were visiting PW-6’s parentalvillage, Anita had visited them, claiming that the Petitioner was herhusband and they had two children together, and went to the PoliceStation with the Petitioner. However, only Anita returned, saying thatthe Petitioner had run away, and subsequently stayed for a few dayswith PW-6. A few days after Anita had left, the Petitioner returned toEPW-6, and revealed that Anita was harassing him, also admitting that hehad two children with her. He later got arrested and Anita got himreleased. After a few days, Anita again confronted PW-6 and thePetitioner, who offered to maintain both women, but Anita was notamenable to the offer. The Petitioner then wrote PW-6 a divorce, andFAnita agreed to pay Rs. 15,000/- to PW-6.

14. We are of the considered opinion that there is no ground forinterference with any finding of the Courts with respect to the appreciationof the testimony relating to the “last seen” circumstance, the extra judicialconfession made to PW-9, and the motive of the Petitioner.G14.1 However, crucially, this Court, in appeal, also relied upon the G14.1 However, crucially, this Court, in appeal, also relied upon thedeposition of PW-6 with respect to the extra-judicial confession made toher, inasmuch as she deposed in her examination-in-chief that thePetitioner had confessed to her over a telephonic call that he hadmurdered the deceased. However, it is clear that the Court omitted toappreciate that PW-6 had admitted in her cross-examination that theH

Petitioner had not told her that he had murdered the deceased, which infact was a reason for the Trial Court to not rely on her testimony. Thus,we find substance in the submission of the learned Counsel for thePetitioner that this Court committed an error apparent on the face of therecord in placing reliance upon the extra judicial confession allegedlymade by the Petitioner before PW-6, by noting that such evidence hadbeen relied upon by the Courts below, when in fact it had been rightlyrejected by the Trial Court.

15. There is yet another crucial aspect of the matter that we mustturn our attention to. We find strength in the submission made by theCounsel for the Petitioner that this Court, in determining the correctnessof the quantum of sentence assessed by the High Court, while notingthat the offence appeared to be premeditated and well-planned,erroneously observed that the Petitioner had crushed the face of thedeceased Anita to avoid identification. We find that this observation isunsupported by the medical evidence on record. PW-4, the doctor whoconducted the post-mortem (at Exh. P-25) on Anita’s body, only deposedto the presence of contused lacerated wounds on her face. There is noevidence to the effect that her face was marred beyond recognition orthat there appeared to be any attempt to do so. We find that this is yetanother error apparent on the face of the record.

16. Having found there have been errors apparent on the face ofthe record in the appreciation of evidence by this Court in appeal, wemust now consider the effect thereof on the conviction as well as on thesentence awarded. We find it worth repeating that we do not seek tore-appreciate the evidence on record, and merely wish to determinewhether the evidence as assessed by this Court in appeal, keeping asidethe extra-judicial confession to PW-6, was sufficient to affirm the findingof guilt and the award of the punishment of death to the Petitioner.

17. As noted previously, the evidence relied upon in the instantcase is purely circumstantial, including the motive to commit the offence,the circumstance of the deceased being last seen with the Petitioner,and two extra-judicial confessions. Thus, keeping aside the extra-judicialconfession to PW-6, it is evident that evidence as to the circumstance ofmotive, the “last seen” circumstance as well as one extra-judicialconfession still survive. It is our considered view that the chain ofcircumstances establishing the guilt of the Petitioner beyond reasonabledoubt is not materially affected even if we discard one of the two extra- AB

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Ajudicial confessions. Thus, we find that this Court rightly affirmed theconviction of the Petitioner under Sections 302 and 201, IPC, and thereis no cause for us to interfere with such finding of guilt in the exercise ofour review jurisdiction.

18. We must now turn our attention to the question of whether theBevidence on record, apart from the extra-judicial confession to PW-6and the observation pertaining to the facial injuries of the deceased Anita,is sufficient to affirm the death sentence awarded to the Petitioner.

18.1 At this juncture, it must be noted that though it may be arelevant consideration in sentencing that the evidence in a given case isCcircumstantial in nature, there is no bar on the award of the deathsentence in cases based upon such evidence (see Swamy Shraddanandav. State of Karnataka, (2007) 12 SCC 288; Ramesh v. State ofRajasthan, (2011) 3 SCC 685).

18.2 In such a situation, it is up to the Court to determine whetherDthe accused may be sentenced to death upon the strength of circumstantialevidence, given the peculiar facts and circumstances of each case, whileassessing all the relevant aggravating circumstances of the crime, suchas its brutality, enormity and premeditated nature, and mitigatingcircumstances of the accused, such as his socio-economic background,age, extreme emotional disturbance at the time of commission of theEoffence, and so on.

18.3 In this regard, it would also be pertinent to refer to thediscussion in Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747,where this Court elaborated upon the concept of “residual doubt”—which simply means that in spite of being convinced of the guilt of theFaccused beyond reasonable doubt, the Court may harbour lingering orresidual doubts in its mind regarding such guilt. This Court noted that theexistence of residual doubt was a ground sometimes urged beforeAmerican Courts as a mitigating circumstance with respect to imposingthe death sentence, and noted as follows:

G“33. In California v. Brown [93 L Ed 2d 934 : 479 US 538 (1987)]and other cases, the US courts took the view, “residual doubt” isnot a fact about the defendant or the circumstances of the crime,but a lingering uncertainty about facts, a state of mind that existssomewhere between “beyond a reasonable doubt” and “absolute H

certainty”. The petitioner’s “residual doubt” claim is that the Statesmust permit capital sentencing bodies to demand proof of guilt to“an absolute certainty” before imposing the death sentence.Nothing in our cases mandates the imposition of this heightenedburden of proof at capital sentencing.

34. We also, in this country, as already indicated, expect theprosecution to prove its case beyond reasonable doubt, but notwith “absolute certainty”. But, in between “reasonable doubt” and“absolute certainty”, a decision-maker’s mind may wander,possibly in a given case he may go for “absolute certainty” so asto award death sentence, short of that he may go for “beyondreasonable doubt”. Suffice it to say, so far as the present case isconcerned, we entertained a lingering doubt as to whether theappellant alone could have executed the crime single-handedly,especially when the prosecution itself says that it was the handiworkof a large group of people. If that be so, in our view, the crimeperpetrated by a group of people in an extremely brutal, grotesqueand dastardly manner, could not have been thrown upon theappellant alone without charge-sheeting other group of personsnumbering around 35. All the element test as well as the residualdoubt test, in a given case, may favour the accused, as a mitigatingfactor.” (emphasis added)

18.4 While the concept of “residual doubt” has undoubtedly notbeen given much attention in Indian capital sentencing jurisprudence,the fact remains that this Court has on several occasions held the qualityof evidence to a higher standard for passing the irrevocable sentence ofdeath than that which governs conviction, that is to say, it has found itunsafe to award the death penalty for convictions based on the nature ofthe circumstantial evidence on record. In fact, this question was givensome attention in a recent decision by this Bench, in Md.Mannan @Abdul Mannan v. State of Bihar, R.P. (Crl.) No. 308/2011 in Crl. A.No. 379/2009 (decision dated February 14, 2019), where we found itunsafe to affirm the death penalty awarded to the accused in light of thenature of the evidence on record, though the conviction had been affirmedon the basis of circumstantial evidence.

18.5 In Md. Mannan (supra), this Court affirmed the propositionthat the quality of evidence is a relevant circumstance in the sentencing A

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Aanalysis, referring to the following observations of this Court in SantoshKumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6SCC 498:

“56. At this stage, Bachan Singh [(1980) 2 SCC 684 : 1980 SCC(Cri) 580] informs the content of the sentencing hearing. TheBcourt must play a proactive role to record all relevant informationat this stage. Some of the information relating to crime can beculled out from the phase prior to sentencing hearing. Thisinformation would include aspects relating to the nature, motiveand impact of crime, culpability of convict, etc. Quality of evidenceadduced is also a relevant factor. For instance, extent of relianceCon circumstantial evidence or child witness plays an importantrole in the sentencing analysis. But what is sorely lacking, in mostcapital sentencing cases, is information relating to characteristicsand socio-economic background of the offender. This issue wasalso raised in the 48th Report of the Law Commission.”

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(emphasis added)

18.6 The Court also relied on Ramesh v. State of Rajasthan(supra) and Ram Deo Prasad v. State of Bihar, (2013) 7 SCC 725,which follow Bariyar (supra) in this respect, and referred to SushilSharma v. State (NCT of Delhi), (2014) 4 SCC 317, Kalu Khan v.EState of Rajasthan, (2015) 16 SCC 492 and Sebastian @ Chevithiyanv. State of Kerala, (2010) 1 SCC 58, where a similar position has beenadopted.

18.7 We find it pertinent to observe that the above trend onlyaffirms the “prudence doctrine” enunciated by this Court in BachanFSingh v. State of Punjab, (1980) 2 SCC 684. In this regard, we mayrefer to the following observations made in Bariyar (supra):

“149. Principle of prudence, enunciated by Bachan Singh [(1980)2 SCC 684 : 1980 SCC (Cri) 580] is sound counsel on this countwhich shall stand us in good stead—whenever in the givenGcircumstances, there is difference of opinion with respect to anysentencing prop (sic)/rationale, or subjectivity involved in thedetermining factors, or lack of thoroughness in complying withthe sentencing procedure, it would be advisable to fall in favour ofthe “rule” of life imprisonment rather than invoking the “exception”of death punishment.”

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18.8 The Court in Bariyar (supra) further observed that theirrevocable punishment of death must only be imposed when there is noother alternative, and asserted that in cases resting on circumstantialevidence, the doctrine of prudence should be invoked:

“167. The entire prosecution case hinges on the evidence of theapprover. For the purpose of imposing death penalty, that factormay have to be kept in mind. We will assume that in SwamyShraddananda (2), this Court did not lay down a firm law that ina case involving circumstantial evidence, imposition of deathpenalty would not be permissible. But, even in relation thereto thequestion which would arise would be whether in arriving at aconclusion some surmises, some hypothesis would be necessaryin regard to the manner in which the offence was committed ascontradistinguished from a case where the manner of occurrencehad no role to play. Even where sentence of death is to be imposedon the basis of circumstantial evidence, the circumstantial evidencemust be such which leads to an exceptional case.

168. We must, however, add that in a case of this nature wherethe entire prosecution case revolves round the statement of anapprover or is dependent upon the circumstantial evidence, theprudence doctrine should be invoked. For the aforementionedpurpose, at the stage of sentencing evaluation of evidence wouldnot be permissible, the courts not only have to solely depend uponthe findings arrived at for the purpose of recording a judgment ofconviction, but also consider the matter keeping in view theevidences which have been brought on record on behalf of theparties and in particular the accused for imposition of a lesserpunishment...”

18.9 In light of the above discussion, we find it appropriate togauge, in the exercise of our review jurisdiction, whether there is areasonable probability that this Court, in appeal, on the strength of theevidence on record as it stands, without the errors apparent on the faceof the record, would have concluded that the balance of aggravating andmitigating circumstances lies in favour of preserving the Petitioner’slife. Such probability would be sufficient to set aside the sentence ofdeath affirmed by this Court, in light of the doctrine of prudence, which A

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Areally only reflects the dictum of this Court in Bachan Singh (supra)that the Court must keep in mind while awarding the punishment ofdeath that the alternative option, i.e. imposition of life imprisonment, mustbe unquestionablyforeclosed.

19. We make it clear that we do not wish to re-enter into anBappreciation of the aggravating and mitigating circumstances relied uponby the Courts until this stage to award the death sentence to the Petitioner.However, before proceeding further, we would like to briefly revisit thesentencing assessment already done by this Court in appeal. Whilearriving at the conclusion that the instant case fell into the category ofthe rarest of rare cases, this Court took into account the premeditatedCnature of the crime, and its brutal and barbaric nature, observing that thesame was sufficient to shock the collective conscience of the society.The Court also opined that the Petitioner was a menace to society andcould not be reformed, and that lesser punishment would expose societyto peril at his hands.

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20. Evidently, even the fact that the evidence was circumstantialin nature did not weigh very heavily on the Court’s mind, let alone thestrength and nature of the circumstantial evidence. Be that as it may, wefind that the material on record is sufficient to convince the Court of thePetitioner’s guilt beyond reasonable doubt; however, the nature of theEcircumstantial evidence in this case amounts to a mitigating circumstancesignificant enough to tilt the balance of aggravating and mitigatingcircumstances in the Petitioner’s favour, keeping in mind the doctrine ofprudence. Moreover, it is also possible that the incorrect observationspertaining to Anita’s facial injuries further led the Court to conclude infavour of imposing the death sentence on the Petitioner. Thus, we are ofFthe considered opinion that there was a reasonable probability that thisCourt would have set aside the sentence of death in appeal, since theonly surviving evidence against the Petitioner herein pertains to his motiveto commit the crime, the circumstance of “last seen” and a solitary extra-judicial confession. In other words, it cannot be said that the punishmentGof life imprisonment is unquestionably foreclosed in the instant case, inspite of the gravity and barbarity of the offence.

21. We are thus compelled to conclude that the award of thedeath penalty in the instant case, based on the evidence on record, cannotbe upheld.

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22. At the same time, we conclude that a sentence of lifeimprisonment simpliciter would be inadequate in the instant case, giventhe gruesome nature of the offence, and the menace posed to society atlarge by the Petitioner, as evinced by the conduct of the Petitioner in jail.As per the report submitted in pursuance of the order of this Court dated31.10.2018, it has been brought on record that the conduct of the Petitionerin jail has been unsatisfactory, and that he gets aggressive and indulgesin illegal activities in prison, intentionally abusing prisoners and prisonstaff and provoking fights with other prisoners. Two FIRs have alsobeen registered against the Petitioner for abusing and threatening theSuperintendent of the Nagpur Central Prison.

22.1 As this Court has already held in a catena of decisions, byway of a via media between life imprisonment simpliciter and the deathsentence, it may be appropriate to impose a restriction on the Petitioner’sright to remission of the sentence of life imprisonment, which usuallyworks out to 14 years in prison upon remission. We may fruitfully referto the decisions in Swamy Shraddhananda (2) v. State of Karnataka,(2008) 13 SCC 767 and Union of India v. V. Sriharan, (2016) 7 SCC1, in this regard. We therefore direct that the Petitioner shall remain inprison for the remainder of his life.

23. In light of the above discussion, the review petitions are allowedto the extent that the sentence of death awarded to the Petitioner iscommuted to imprisonment for the remainder of his life sans any right toremission.