Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Fine U/s 302 IPC Is Not Mandatory.
JUDGEMENT TITLE : Santosh Kumar Baranwal Vs. State Of U.P. On 11/05/2010 By Allahabad High Court
CASE NO : CAPITAL CASES NO. 6713 OF 2009
CORAM : Hon'ble Yatindra Singh,J. And Hon'ble B.N. Shukla,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
RESERVED

1. Criminal Appeal No. 6713 Of 2009

Santosh Kumar Baranwal ... Appellant
Vs.
State Of UP ... Respondent

2. Reference No. 14 Of 2009

Hon'ble Yatindra Singh, J
Hon'ble BN Shukla, J
(Delivered By Justice Yatindra Singh, J)
1. Pessimism And Hopelessness Often Drive A Person To Kill Himself. Is This The Case Here, Or Was There Dacoity In The House?

THE FACTS
2. An Incident Happened On 29.6.2008 At About 3 - 3:30pm. In This Incident Santosh Kumar Barnwal (the Appellant) Was Injured And His Two Daughters (one Aged About Three And Half Years And The Other Aged About Five And Half Years) Were Killed. His Neighbour Mala Gupta (the Informant), Lodged The FIR (Case Crime No. 1023 Of 2008 Under Section 302, 309 IPC And Section 3/25 And 4/25 Arms Act, Police Station Shahpur, District Gorakhpur) At 5:30pm.

3. The Allegations In The FIR Are As Follows:
The Informant Is A Tenant In The House Of RK Verma, Avas Vikas Colony, Harijan Basti, Shahpur. The Appellant Alongwith His Family Also Lives Next Door To Her Room. He Is The Son Of Her Munhboli Sister;
At About 3 - 3:30pm, The Appellant Came Back After Consuming Liquor And Closed The Latch Of His Room. Thereafter Cries Of His Children Were Heard. The Informant Saw From The Window That The Appellant Was Hitting His Two Daughters Runujhun (aged About 3-1/2 Years) And Khushi (aged About 5-1/2 Years) With The Knife. When The Effort Was Made To Open The Door Then, The Appellant Did Not Open And Injured Himself With The Knife.
The Police Came On The Information And Broke Open The Door In Front Of The Informant, Her Husband Ramji Gupta, Sunil Kumar, And Others;
The Appellant And His Daughters Were Found Lying Soaked In Blood And The Appellant Had A Revolver In His Hand. A Knife And A Sickle (हंसिया) Were Also Lying There;
The Police Alongwith The Residents Took The Appellant And His Daughters To The Medical College, Where The Doctor Declared The Daughters To Be Dead. The Appellant Is Still Under Medical Treatment;
The Information Is Being Given And Proper Action Be Taken.

4. The Police Investigated The Case And Submitted The Charge-sheet Against The Appellant. The District Magistrate, Gorakhpur Also Passed An Order On 1.8.2008 Sanctioning Prosecution Under The Arms Act. This Case Was Committed To The Sessions Court And Was Registered As ST No. 291 Of 2008.

5. The Additional Sessions Judge, Court No. 4, Gorakhpur (the ASJ) Framed Charges On 24.10.2008. The Appellant Was Charged Under Sections 3 And 4 Read With Section 25 Of The Arms Act, And Sections 302 And 309 IPC.

6. Among The Others, The Prosecution Filed The Following Documents:
FIR Dated 29.6.2008 (Ex Ka-1);
Written Report Dated 29.6.2008 (Ex Ka-2);
Recovery Memo For Blood Stained Cover Of Pillow, Piece Of Bed Sheet Gadda With Cotton Dated 29.6.2008 (Ex Ka-3);
Recovery Memo Of Blood Stained Knife And Sickle Dated 29.6.2008 (Ex Ka-3/1);
Recovery Memo Of Pistol And Live Cartridge Dated 29.6.2008 (Ex Ka- 3/2);
Charge-sheet Dated 14.8.2008 (Ex Ka-4);
Site Plan With The Index Dated 29.6.2008 (Ex Ka-5);
Post Mortem Report Of Deceased Runjhun Dated 30.6.2008 (Ex Ka-6);
Post Mortem Report Of Deceased Khusi Dated 30.6.2008 (Ex Ka-7);
Panchayatnama Dated 30.6.2008 (Ex Ka-8);
Letter To CMO For Post Mortem Of Deceased Runjhun Dated 30.6.2008 (Ex Ka-9);
Injury Report Of The Appellant Dated 29.6.2008 (Ex Ka-17);
Order Of DM Dated 1.8.2008 (Ex Ka-19);
Report Of Vidhi Vigyan Prayogshala Dated 2.2.2009 (Ex Ka-20);
Copy Of The Report No. 38 Of The GD Dated 29.6.2008 (Ex Ka-21).

7. The Prosecution Examined The Following Witnesses:
Veer Bahadur Yadav (PW-1): Head Constable, Prepared The Chik;
Mala Gupta (PW-2): Informant, An Eyewitness, Turned Hostile;
Ramji Gupta (PW-3): Eyewitness, Turned Hostile;
Vikrant Mishra (PW-4): Witness Of Recovery, Turned Hostile;
Radhey Krishna Verma (PW-5): Scribe Of The Written Complaint, Turned Hostile;
Sunil Kumar (PW-6): Eyewitness, Turned Hostile;
Hareshwar Pandey (PW-7): Witness Of Recovery, Turned Hostile;
Rajeev Ranjan (PW-8): Investigating Officer (IO);
Dr. TN Jha (PW-9): Doctor, Conducted The Post Mortem;
Onkar Nath Chaubey (PW-10): Constable, Accompanied The IO To The Spot;
Ram Briksh Ram (PW-11): Sub-inspector, Conducted The Inquest;
Dr. NK Agarwal (PW-12): Doctor, Examined The Injuries Of The Appellant.

8. The Statement Of The Accused Was Recorded On 19.8.2009 And 26.8.2009. He Denied The Place Of Incident As Mentioned In The Prosecution Case And Submitted That:
The Incident Was Committed By 6-7 Assailants At The Instance Of Other Coal Businessmen Who Were Jealous Of Him;
They Knifed Him First And Thereafter His Two Daughters;
They Took Away About A Lac Of Rupees And His Wife's Jewellery.

9. The Appellant Also Examined Vipulesh Kumar Pandey (DW-1) Who Deposed Seeing The Assailants Coming Out From The House Of The Appellant After The Incident.

10. The ASJ By His Judgement Dated 30.10.2009 Convicted The Appellant And Awarded The Following Sentence To Him On 31.10.2009:
Death Sentence And Fine Rs. 5000.00 Under Section 302 IPC;
Six Months Simple Imprisonment Under Section 309 IPC
Six Months Rigorous Imprisonment Under Section 3 As Well As 4 Read With Section 25 Of Arms Act And A Fine Of Rs. 10,000/- With Default Stipulation Of Two Months Simple Imprisonment.
All Sentences Were To Run Concurrently.

11. The ASJ Has Sent A Reference Registered As Reference No. 14 Of 2009 For Confirmation Of The Death Sentence. The Appellant Has Also Filed Criminal Appal No. 6713 Of 2009 Against The Same.

POINTS FOR DETERMINATION
12. We Have Heard Sri PN Misra And Sri Ashwani Kumar Mishra, Counsel For The Appellant; Sri DR Chaudhary Government Advocate, Sri Arunendra Kumar Singh, And Sri Anand Tiwari AGA For The State.1 The Following Points Arises For Determination In The Case:
(i)What Is The Place Of The Incident? Is It Avas Vikas Colony, Harijan Basti, Shahpur Or Some Other Place?
(ii)Whether The Appellant And His Daughters Were Attacked By The Assailants;
(iii) Whether The Prosecution Has Proved Its Case Against The Appellant;
(iv)If The Appellant Is Guilty Then, What Punishment Should Be Awarded To Him.

1st POINT: RESIDENT OF AVAS VIKAS COLONY
13. The Prosecution Case Is That The Appellant Was A Tenant In The House Of RK Verma At Avas Vikas Colony, Harijan Basti, Shahpur. The Appellant In Answer To The First Question In Statement Under Section 313 CrPC Stated That He Did Not Reside At Avas Vikas Colony. Is It Correct?

14. In This Case Three Witnesses Of Fact Namely Mala Gupta (PW-2), Ramji Gupta (PW-3), And Sunil Kumar (PW-6) And Two Witnesses Of Recovery Vikrant Mishra (PW-4) And Hareshwar Pandey (PW-7), And Scribe Of The Written Complaint RK Verma (PW-5) Have Been Examined. All Of Them Have Turned Hostile. Should Their Oral Testimony Be Totally Rejected?

15. It Is Settled (see Below For Citations)2 That The Evidence Of A Prosecution Witnesses Cannot Be Rejected In Totality Merely Because They Have Turned Hostile Or The Prosecution Has Chosen To Treat Them As Hostile And Cross-examined Them. Their Evidence Is Neither Effaced Nor Washed Off From The Record. It Can Be Accepted To The Extent Their Testimony Is Found Dependable.

16. The Informant (PW-2) And Her Husband Ramji Gupta (PW-3) Have Deposed That:
They Reside In The First Floor In The Avas Vikas Colony At Ghosi Purva; And
The Appellant Resides In The Room In Front Of Their Room.

17. RK Verma (PW-5) Has Also Deposed That:
His House Is In Avas Vikas Colony, Harijan Basti, Shahpur;
There Are Two Floors And The First Floor Was Let Out;
The Appellant Resided In One Room In The First Floor And In Front Of That Room, The Informant And Her Husband Ramji Gupta Resided As A Tenant.

18. These Witnesses Have Turned Hostile But So Far As Part Relating To Residence Of The Appellant Or PW-2 And PW-3 Is Concerned, There Is No Suggestion That They Did Not Reside In Avas Vikas Colony, Harijan Basti.

19. Rajeev Ranjan IO (PW-8) Deposed That He Received Telephonic Information From The Head Constable (the HC), Asuran Police Out-post That An Incident Happened In The House Of RK Verma At Vikas Colony, Ghosi Purva. It Is At This Place That He Reached.

20. The Appellant Examined Vipulesh Kumar Pandey (DW-1). He Has Deposed That:
The Appellant Lived In The House Close To His House;
In Front Of The Appellant's House, The Name Of RK Verma Is Mentioned;
However, He Did Not Depose That The Appellant Was Not Residing At Avas Vikas Colony, Harijan Basti, Shahpur. There Is No Evidence That RK Verma Has Any Other House That Was Let Out To The Appellant.

21. In Our Opinion, The Prosecution Has Proved Beyond Reasonable Doubt That The Appellant Resided As Tenant In The House Of RK Verma At Avas Vikas Colony, Harijan Basti, Shahpur.

22. It Seems Strange That Despite There Being Ample Evidence That The Appellant Resided In Avas Vikas Colony, Harijan Basti, Shahpur And No Evidence To The Contrary, The Appellant Chose To Dispute The Place Of The Incident. The Reason Is Not Far To Seek. It Will Be Clear, While Discussing The Next Point.

2nd POINT: DEFENCE EVIDENCE―NOT CREDIBLE
23. While Deciding The First Point, We Have Upheld The Place Of The Incident As Claimed By The Prosecution. The Time Of The Incident Is Not Disputed. The Only Dispute Is How It Happened: The Prosecution Claims It To Be By The Appellant; Whereas, The Appellant Claims It To Be By Some Assailants.

24. The Counsel For The Appellant Submitted That:
The Appellant Did Not Commit The Crime. It Was Committed By The Dacoits And They Have Looted The House;
The Appellant Not Only Stated This In His Statement Under Section 313 CrPC But Also Adduced Evidence To Substantiate It;
Unless The Prosecution Disproves It, It Should Be Accepted.

25. The Prosecution Case Is Contained In The FIR (mentioned In Paragraph 3 Of The Judgement). According To This, The Appellant Knifed His Daughters First And Thereafter Caused Injury To Himself. According To The Appellant This Was Done By The Assailants As Stated By Him Under Section 313 CrPC (mentioned In Paragraph 8 Of The Judgement).

26. The Appellant Examined Vipulesh Kumar Pandey (DW-1). He Deposed That:
He Lived Close To The Place Where Appellant Used To Reside;
He Heard Noises In The House Of The Appellant And Came Out Of His Room And Saw That 6-7 Assailants Armed With Knife, Fire-arms, Rod And Gupti Coming Out From The House Of The Appellant And Were Shouting That Keep Out Of The Way, If Anyone Stopped Them, He Would Be Killed;
He Went Up To The House Of The Appellant And Found That The Door Was Open And The Appellant And His Two Daughters Were Lying Unconscious In Blood In The Room. It Looked As If It Was Looted;
The Police Came After Some Time On The Spot And He Went Away.

27. In The Cross-examination Vipulesh Kumar Pandey (DW-1) Deposed That:
Prior To The Day Of The Incident, He Had Never Gone Upstairs;
He Did Not Know The Other Tenants;
He Neither Informed The Police Nor Gave Any Application Ever. He Was Deposing These Things For The First Time In The Court.

28. We Have Doubts About The Oral Testimony Of The Defence Witness. We Are Doubtful If He Resided Near The Place Of The Incident.

29. Vipulesh Kumar Pandey (DW-1) Has Not Given His Exact Address. He Does Not Say Where The Appellant Resides. The Appellant Was Disputing Place Of His Residence. To Us, It Appears That This Was Done To Give Some Credibility To This Witness.

30. Vipulesh Kumar Pandey (DW-1) Did Not Reside Near The Place Of Residence Of The Appellant. It Is Also Clear By His Deposition That He Does Not Know Anyone In The First Floor. His Statement Does Not Inspire Confidence For He Neither Informed The Police Nor Gave Any Application That He Saw 5-6 Persons Running Out Of The Room Of The Appellant And He Deposed It For The First Time In The Court.

31. In Our Opinion, Vipulesh Kumar Pandey (DW-1) Neither Resided Close To Awas Vikas Colony, Nor Was Present At The Spot At The Time Or Just After The Incident. No Reliance Can Be Placed On His Oral Testimony. Does It Mean That Prosecution Case Is Proved?

3rd POINT: APPELLANT IS GUILTY
Defence Case Not Proved―Prosecution Has To Prove Its Case
32. The Burden To Prove The Case Beyond Reasonable Doubts Is Always On The Prosecution. In Case The Prosecution Fails In Proving It, The Accused Is Entitled To Acquittal; Though Under Some Penal Provision The Presumption Of Guilt Can Be Presumed On Existence Of Certain Facts, Or Conditions. Nonetheless There Also, Existence Of Those Facts Or Condition Are To Be Proved Beyond Reasonable Doubt Before Presumption Of Guilt Is Raised.

33. In Rishi Kesh Singh Vs. State, AIR 1970 Allahabad 51 (the RishiKesh Case) The Following Question Was Referred To The Full Bench:
'Whether The Dictum Of This Court In The Case Of Parbhoo V Emperor, 1941 AllLJ 619 = (AIR 1941 All 402) (FB) To The Effect That The Accused, Who Puts Forward A Plea Based On A General Exception In The Indian Penal Code, Is Entitled To Be Acquitted If Upon A Consideration Of The Evidence As A Whole (including The Evidence Given In Support Of The Plea Based On Such A General Exception) A Reasonable Doubt Is Created In The Mind Of The Court Whether The Accused Person Is Entitled To The Benefit Of The Said Exception Is Still Good Law'.

34. The Majority Answered It As Follows:
'The Majority Decision In 1941 All LJ 619 - AIR 1941 All 402 (FB) Is Still Good Law. The Accused Person Is Entitled To Be Acquitted If Upon A Consideration Of The Evidence As A Whole (including The Evidence Given In Support Of The Plea Of The General Exception) A Reasonable Doubt Is Created In The Mind Of The Court About The Guilt Of The Accused.'

35. The Rishikesh Case Was In Respect Of General Exceptions Under The Penal Code. However The Law Laid Down There Is Equally Applicable To The Case Where Alternative Case Is Set Up By An Accused.

36. Here, The Defence Has Come Out With A Case And Adduced Evidence. We Have Not Held The Evidence To Be Unreliable. This Does Not Mean That Prosecution Case Is Proved. The Prosecution Has To Stand On Its Own Legs. In Case―considering The Circumstances (including The Case Put Forward By The Accused) And The Entire Evidence (including That Adduced By The Accused)―the Court Is Doubtful About The Prosecution Case Or Feels That Prosecution Has Not Proved Its Case Beyond Reasonable Doubt Then The Accused Is Entitled To Acquittal.

Police Reached On Information
37. The Counsel For The Appellant Submitted That:
The Police Reached The Spot Before The FIR Was Lodged;
No Written Complaint Was Scribed Or Lodged;
The Prosecution Version Is False So As To Hide The Incident Of Dacoity.

38. The Police Did Reach The Place Of The Incident Before The FIR Was Lodged. It Is So Mentioned In The FIR Itself; Nothing Turns Upon The Same: It Has Also Been Explained By The IO (PW-8).

39. Rajiv Ranjan Is The Investigating Officer (IO). He Was The SO Of Police Station Shahpur, District Gorakhpur At The Relevant Time. He Deposed That:
(i)He Was Taking Round Along With Other Constables On A Jeep On Day Of The Incident;
(ii)He Received A Telephonic Message From The Head Constable (HC) Of Asuran Police Out-post;
(iii)The HC Of Asuran Police Out-post Told Him That Mala Gupta Had Informed Him That:
The Appellant Was A Tenant Of RK Verma At Avas Vikas Colony, Harijan Basti, Shahpur;
He Injured His Two Daughters And Himself By The Knife; And
The IO (PW-8) Should Reach The Place Of The Incident.
(iv)It Is On This Information That He Reached The Spot.

40. The IO (PW-8) Further Deposed That:
At The Place Of The Incident The Door To The Room Was Broken And He Saw That The Appellant And His Two Daughters Were Lying In Blood And The Appellant Was Holding A Revolver In His Hand;
On Seeing This, The IO Left His Companion Constable Onkar Nath On The Spot And Took The Appellant And His Two Daughters To The Hospital;
The Doctor At The Hospital Declared The Daughters To Be Dead And The Appellant Was Admitted For Medical Treatment;
Thereafter He Went Back To The Spot Where He Was Given Chik That Was Said To Be Lodged By Mala Gupta (the Informant) (Case Crime No. 1023 Of 2008 Under Section 302, 309 IPC And Section 3/25 And 4/25 Arms Act, Police Station Shahpur, District Gorakhpur).

41. The Police Reaches A Place Only On Information. Sometimes, They May Be At The Place Of Incident But This Happens Only By Chance. In This Case The IO (PW-8) Has Explained As To How He Reached The Spot. There Is No Reason To Disbelieve Him. It Neither Proves Nor Disproves The Prosecution Case. There Is No Question Of Drawing Adverse Inference Against The Prosecution On This Account.

No Direct Oral Evidence
42. The Prosecution Examined Three Eyewitnesses Namely, Mala Gupta (PW-2), Her Husband Ramji Gupta (PW-3), And Sunil Kumar (PW-6). They Have Also Examined Radhe Krishna Verma (PW-5) Scribe Of The Written Complaint, Vikrant Mishra (PW-4), And Hareshwar Pandey (PW-7), The Witnesses Of The Recovery. All These Witnesses Were Declared Hostile.

43. Radhey Krishna Verma (PW-5) Is The Scribe Of The Written Complaint. The Prosecution Case Is That The Informant (PW-2) Dictated It To Him. PW-2 Deposed That This Was Not Dictated By The Informant (PW-2) But Was Dictated By The Police.

44. The Informant Deposed That:
She Was Not Present At The Spot At The Time Of The Incident;
She Came Back At 6:00pm And Saw A Crowd Of The Locality;
She Came To Know From The People There That Police Had Taken The Appellant And His Daughters To The Medical College.
However, She Has Accepted Her Signature On The Written Complaint But Stated That Whatever Is Written Was Not Dictated By Her But Her Signature Was Obtained On The Blank Paper.

45. Ramji Gupta (PW-3) Is The Husband Of The Informant. He Was Produced As Eyewitness And As Witness Of Recovery Of Knife Etc. (Ex Ka-3 To Ka-3/2). He Admitted That He Alongwith His Wife, The Informant Had Gone To The Medical College But Denied His Presence At The Time Of The Incident. He Denied His Signatures On The Recovery Memo.

46. Vikrant Mishra (PW-4) Was Also A Tenant Of The Same House As The Appellant. Hareshwar Pandey (PW-6) Lived In Front Of The House Where The Incident Took Place. They Are Witnesses Of Recovery Of Knife Etc. (recovery Memo Ex Ka-3 To Ka-3/2). They Denied Their Presence At The Time Of The Incident Or Recovery But Admitted Their Signatures On The Recovery Memo. They Deposed That The Recovery Memos Were Blank When They Signed The Paper.

47. The Counsel For The Appellant Submitted That:
The Eyewitnesses Have Denied Their Presence At The Time Of The Incident;
The Informant And Scribe Have Disowned The Lodging Of The FIR;
The Witnesses Have Disowned The Recovery Memo And Inquest;
The Prosecution Has Failed To Prove Its Case.
Has The Prosecution Failed To Prove Its Case? Is The Prosecution Case Doubtful?

48. We Have Some Reservation About The Conduct Of The Aforesaid Witnesses (PW-2 To 7). They Have Signed Different Documents, Gave Statements Under Section 161 CrPC Accordingly But Have Tuned Turtle In Their Oral Testimony Before The Court. The Reasons Are Not Far To Seek.

49. Mala Gupta (PW-2) Deposed That Her Parent's House Is In Gopalganj, Purani Chauki, Bihar And The House Of Parent Of The Appellant's Mother Was Also Next To The House Of Parent Of PW-2. It Is For This Reason That The Appellant Called Her Mausi. They Appear To Be Close To Him. The Other Witness Ram Ji Gupta (PW-3) Is The Husband Of Mala Gupta (PW-2).

50. Radhey Krishna Verma (PW-5) Is Land Lord Of The House. The Remaining Three Witnesses PW-4, PW-6, PW-7 Are Resident Of The Same House Or Live Opposite To The Appellant's House Or Adjacent To It. They Could Be Sympathetic To Him And Changed Their Testimony. However, The Fact Remains That In The Testimony Before The Court Below They Have Denied Their Presence At The Time Of The Incident And There Is No Direct Evidence Against The Appellant. The Question Is Whether The Prosecution Case Is Proved By The Circumstantial Evidence.

Prosecution Case Proved By Circumstantial Evidence
51. The Law―when A Case Can Be Said To Be Proved Against An Accused On Circumstantial Evidence―has Been Established In Different Decisions (see Below For Citations)3. It Is As Follows:
(i)The Circumstances From Which The Conclusion Of Guilt Is To Be Drawn Should Or Must Be Established.
(ii)The Facts So Established Should Be Consistent Only With The Hypothesis Of The Guilt Of The Accused, That Is To Say, They Should Not Be Explainable On Any Other Hypothesis Except That The Accused Is Guilty.
(iii)The Circumstances Should Be Of A Conclusive Nature And Tendency.
(iv)They Should Exclude Every Possible Hypothesis Except The One To Be Proved, And
There Must Be A Chain Of Evidence So Complete As Not To Leave Any Reasonable Ground For The Conclusion Consistent With The Innocence Of The Accused And Must Show That In All Human Probability The Act Must Have Been Perpetrated By The Accused.

52. The Following Circumstances Show That The Appellant Is Guilty Of The Crime:
(i)The Crime Was Committed In The Premises In Possession Of The Appellant;
(ii)The Appellant Was Present In The House;
(iii) The Premises Of The Appellant Was Closed From Inside. It Excludes The Possibility Of Anyone Committing The Crime And Then Coming Out;

53. In Deciding Point No.1, We Have Already Held That The Appellant Was A Tenant Of A Room In Avas Vikas Colony, Harijan Basti, Shahpur Of Which RK Verma Was The Landlord. The Incident Happened In A Room That Was In Possession Of The Appellant. He Was Present At The Time Of The Incident. The Only Question That Requires For Consideration Is Whether The Door Of The Premises Was Closed From Inside So As To Prevent Any Possibility Of Anyone Going Out Of The Room.

54. Rajeev Ranjan (PW-8) Is The IO. He, After Receiving The Phone Call, From HC Asuran Police Out-post Reached The Spot Alongwith Companion Onkar Nath Chaubey (PW-10). Both Of Them Deposed That:
The Door Of The Appellant's Room Was Closed From Inside;
They Broke Open The Door; And
Thereafter, Saw The Appellant And His Two Daughters Lying In Blood.

55. The Other Witnesses Produced By The Prosecution Namely From PW-2 To PW-7 Who Were Supposed To Be On The Spot Have Deposed That They Were Neither Present At The Time Of Incident Nor When The Police Reached The Spot. The Appellant Got Their Signature On The Blank Paper. They Did Not See The Police Breaking Open The Door.

56. According To These Witnesses, They Were Not Present When The Police Reached The Spot. They Cannot Say Whether The Police Broke Open The Door Of The Appellant's Room Or Not.

57. The Appellant Has Produced One Witness Namely, Vipulesh Kumar Pandey (DW-1). His Oral Testimony Has Been Disbelieved By Us. There Is No Evidence Contrary To The Oral Testimony Of The IO (PW-8) And Onkar Nath Chaubey (PW-10) That The Door Of The Appellant's Room Had To Be Broken.

58. The Counsel For The Appellant Submitted That The Evidence Of Opening The Door By Breaking Cannot Be Believed For The Reason That:
The Police Had Not Made Any Recovery Memo Of The Latch;
There Is Channel Gate Also And Anyone Could Go Out Of The Room From That Gate.

59. Onkar Nath Chaubey (PW-10) Deposed That:
The Latch Was The One Which Is Closed After Moving It Upward And Downward;
There Was No Latch In Middle Of The Door.

60. In Case Of Latch Of The Aforesaid Kind, It Is Affixed With Nails. If The Door Is Pushed Then Generally Nails On One Side Come Out And The Door Is Opened But The Latch Continues To Hang On The Door. It Is Not Disengaged.

61. The Question Of Making Recovery Memo Arises Only If Any Portion Of The Latch Was Disengaged. In The Present Case, There Is No Evidence That The Latch Was Disengaged From The Door. There Is No Such Suggestion Even. In Such A Situation, The Oral Testimony Of The IO (PW-8) And Onkar Nath Chaubey (PW-10) Cannot Be Disbelieved On This Ground.

62. The Site Plan Is Ex Ka-5. The Portion In Possession Of The Tenant Consists Of A Room And A Kitchen On Southern Side. There Is A Door Which Is Adjoining Between The Door And Kitchen. The Channel Gate Is In The Portion Of The Kitchen Side. There Is Neither Any Evidence Nor Any Suggestion That Their Was Any Passage To The Room Through Channel Gate.

63. The Site Plan Indicates That The Passage Through The Channel Gate Was To Kitchen And Not To The Room. The Passage To The Room Was Through The Door Between Kitchen And The Room. It Was This Gate That Was Broken Open By The Police As Deposed By The IO (PW-8) And Onkar Nath Chaubey (PW-10). In Our Opinion The Prosecution Has Also Proved Third Circumstance Against The Appellant.

64. There Are Other Indications That It Was Not Work Of The Assailants:
All Injuries Are By Sharp Weapon That Could Be Caused By Knife Or A Sickle. In Case Assailants Had Come Over Alongwith Firearms Then Normally They Would Have Used The Firearms. The IO (PW-8) Had Deposed That He Did Not Find Any Indication That Any Shot Was Fired. The Cartridge Found Was Live And Not Fired (Ex Ka-3/2);
It Is Surprising That The Assailants Left Their Weapons At The Place Of Incident. Had The Assailants Committed The Crime, They Would Have Taken All The Weapons With Them. Why Would They Leave Their Weapons With Their Finger Prints;
The Gun Was In The Hands Of The Appellant. If This Was Of The Assailants Then What Was The Reason For Placing It In The Hands Of The Appellant Or Leaving It Behind;
If The Appellant Had The Gun And The Assailants Had Come Over Then Why Didn't He Use It Against Them.

65. The Counsel For The Appellant Submitted That:
There Is No Motive For Committing The Crime;
The Appellant Was Also Injured. There Is No Explanation Of The Same.
The Appellant Never Wanted To Commit Suicide, Had He Wanted To Do So, He Could Have Easily Shot Himself As He Had A Gun.

Motive―Could Be Depression Or Frustration
66. There Is No Direct Evidence Of Any Motive. It Can Only Be Inferred From The Circumstances.

67. The Appellant Had Two Young Daughters: One Was Aged About 3-1/2 Years And The Other Was Aged About 5-1/2 Years. Normally The Mother Does Not Leave The Custody Of Such Young Daughters To Anyone Else. Mala Gupta (PW-2) And Her Husband Ramji Gupta (PW-3) Were Tenants Of The Room Adjacent To The Room Of The Appellant. They Deposed That The Wife Of The Appellant Had Gone To The House Of Her Parent Two Days Ago. It Is Surprising That She Left Young Daughters In Custody Of The Appellant. Normally The Grand Parents Enjoy The Company Of Their Grand Children. There Is No Explanation Why The Appellant's Wife Did Not Take Her Young Daughters With Her. It Was For The Appellant To Explain. There Is No Explanation.

68. The Injury Report (Ex Ka-17) Is On The Record. It Records That Alcoholic Smell Was Present. Dr. NK Agarwal (PW-12) Had Examined The Injuries. He Deposed That:
The Mouth Of Appellant Was Smelling Of Alcohol;
In Case Massage Is Done By Alcohol Then Smell Of Alcohol Would Come From Body And Not From The Mouth.
There Is No Evidence That The Appellant Was Prescribed Any Medicine With Alcoholic Content. This Clearly Indicates That The Appellant Was Drunk At The Time Of Incident.

69. The Incident Happened At About 3-3:30pm. It Is Day Time. Usually It Is Not An Hour To Consume Alcohol. Many People Consume Alcohol In The Day Time To Drown Their Depression And Frustration. It Is Just Possible That This Was The Period Of Depression And Frustration For The Appellant. This Could Be Motive For Committing The Crime. In Any Case Absence Of Motive Does Not Absolve The Appellant From The Crime, If Proved Beyond Reasonable Doubt By The Prosecution.

Explanation For Appellant's Injuries
70. The Counsel For The Appellant Submitted That The Appellant Had A Gun In His Hand If He Wanted To Commit Suicide He Could Have Easily Used It. This Shows That It Is Not A Case Of Suicide.

71. The GA Used The Same Argument And Brought To Our Notice Page 770 Under Chapter 25 Of 23rd Edition Of 'Modi's Medical Jurisprudence And Toxicology' Which Is As Follows:
'Wounds Inflicted By A Person On His Own Body Are Known As Self-inflicted Wounds. These Simulating Homicidal Wounds Are Usually Produced To Support A False Charge Of Assault Or Attempted Murder Against An Opponent, To Augment The Seriousness Of The Injuries Which One Has Already Received During A Quarrel, To Prove Self-defence In An Accusation Of Assault Or Murder, Or To Substantiate A Charge Of Violence And Robbery In A Case Where One Had Appropriated Money Or Valuables Placed On One's Charge. Sometimes, They Are Inflicted To Obtain The Release From Army Service, Commonest Being Blowing Of One's Left Index Finger By A Rifle Or Injuring The Foot Or By Prisoners, Soldiers And Policemen To Bring A False Charge Of Beating Against Officers Or By Watchmen, Servants Or Policemen To Avoid Charge Of Collusion In Theft Or Robbery. Such Wounds Are Commonly On The Front Of The Body, But May Be On Those Parts Of The Back Which Can Be Easily Reached By The Hand Or On Top Of The Head. They Are Several Superficial Cuts Or Scratches Made With A Knife, Razor Or Some Pointed Instrument. They Are Often Parallel With Straight Regular Margins. The Direction Varies According To Site, For Example, From Above Downward And Inward On Upper Arm Or Multiple Oblique Or Vertical Interlacing Superficial Incisions On The Abdomen. Contusions And Lacerations Are Rarely Self-inflicted. Modi Had Seen Several Cases Of Fabricated, Forged Or Fictitious Wounds―these Are Produced By A Person On His Own Body Or By Another Person With His Consent With Ulterior Motive.'

72. He (GA) Submitted That:
The Injuries Of The Appellant Are Not Of Serious Nature;
They Are Self Inflicted Injuries;
They Might Have Been Caused By The Appellant Himself After Realising The Seriousness Of The Incident And To Mislead Everyone.

73. Dr. NK Agarwal (PW-12) Deposed That:
At The Time Of Medical Examination, The Appellant Had Come Walking By Himself Without Any Support;
When He Was Produced Before Him, He Was Not Unconscious But Was In His Senses And Was Talking.

74. The GA Emphasised That:
The Injuries Of The Daughters (Appendix-1 To The Judgement) Were Serious Enough To Kill Them But The Injuries Of The Appellant Were Not Serious;
It Is Clear From Oral Testimony Of The Doctor As Well As From The Fact That Nothing Serious Happened To Him.

75. It Is Possible That The Appellant Might Be Faking His Injuries Or There Could Be Real Intention To Commit Suicide. There Is No Direct Evidence As To Why The Appellant Caused These Injuries To Himself. It Is In The Sphere Of Guess Work.

76. The Appellant Was Drunk At The Time Of The Incident. It Is Just Possible That He Could Not Succeed What He Wanted To Do. It Is Not Material That The Appellant Was Faking His Injuries Or Was Not Successful: The Material Point Is Whether They Were Inflicted By The Appellant Or Not. We Have Held That The Door Was Closed From Inside; They Could Not Be Caused By Outsiders; They Were Not Caused By Daughters. The Conclusion Is That They Were Caused By The Appellant.

4th POINT: NOT A CASE OF CAPITAL PUNISHMENT OR FINE
Not A Case Of Capital Punishment
77. The Case Proved Against The Appellant Is That He Killed His Both Daughters And Then Attempted To Commit Suicide. No One Kills His Own Children Or Try To Commit Suicide Unless He Is Undergoing Depression Or Is Frustrated: God Has Given Us Life To Live And Not To End. There Is No Direct Evidence Of Depression Or Frustration But Circumstances Do Point Towards The Same (see Sub-heading 'Motive―Could Be Depression Or Frustration' Of The Previous Point).

78. In Case Anyone In Society Is Depressed Or Frustrated, Then It Also Reflects Upon The Society That He Lives In. It Is The Duty Of The State To See That Such Conditions Do Not Exist. The State Also Has Some Accountability In This Regard. Considering The Circumstances, It Is Not A Case For Capital Punishment.

79. The Trial Court Had Awarded The Sentences Which Is Mentioned In Paragraph 10 Of This Judgement. The Trial Court, Apart From Capital Punishment, Had Also Awarded Fine. Should We Uphold The Sentence Of Fine? Is It Obligatory To Impose Fine Under Section 302 IPC Or Is It Discretionary?

Fine Is Discretionary
80. Chapter III Of IPC Is Titled As 'OF PUNISHMENT'. Section 53 Provides Different Punishment. Fine Is One Of The Punishment Mentioned Therein. Section 63 Of IPC Is Titled As 'Amount Of Fine'. It Explains, Where No Maximum Limit Of Fine Is Mentioned, The Liability Of The Offender For Fine Is Unlimited But It Cannot Be Excessive.

81. Section 421 Of The CrPC Is Titled 'Warrant For Levy Of Fine'. Its Sub-section (1) Explains That Fine May Be Recovered By Issuing A Warrant For Attachment And Sale Of The Moveable Property Or To The Collector Authorising Him To Realise It As Arrears Of Land Revenue From The Movable Or Immovable Property Or Both Of The Offender. The Liability To Pay Fine Is Attached To The Property.

82. Section 70 Of IPC Clarifies It Further. It States That The Death Of The Offender Does Not Discharge From The Liability And Property Which Would Be Legally Liable For His Debts After His Death: The Fine Can Be Recovered From The Property Left By The Offender.

83. IPC Uses Different Terminology While Providing Punishment Of Fine. Section 304 Part-II Of IPC States That The Offender Could Be Punished With Imprisonment Of Either Description For A Term Which May Extend To Ten Years, Or With Fine, Or With Both. Section 304 Part-I IPC Employs Different Phraseology. It Is Similar To The One Used In Section 302 IPC. Section 302 IPC Is As Follows:
'Whoever Commits Murder Shall Be Punished With Death, Or Imprisonment For Life, And Shall Also Be Liable To Fine.'

84. Under Section 304 Part-II IPC, The Court May Either Award Imprisonment Upto 10 Years Or Award Fine Only (ie Imprisonment May Not Be Awarded) Or Award Both Of Them Together. But The Words Used Under Section 302 IPC Are Different. It Used The Words 'shall Be Punished With Death, Or Imprisonment For Life' In The Earlier Part. This Shows That The Court Atleast Has To Award Either Capital Punishment Or Imprisonment For Life. It Has No Discretion In The Matter.

85. The Later Part Of Section 302 Talks About Awarding Fine. However, Different Language Is Used While Prescribing Fine. The Earlier Part Imposing Capital Punishment Or Imprisonment For Life Uses The Word 'shall Be Punished' But The Later Part, Permitting Imposing Of Fine, Uses The Words 'shall Also Be Liable To Fine'. Does It Mean That It Is Mandatory To Impose Fine. If That Be The Case Why Similar Language Was Not Used For Fine. What Was The Necessity Of Employing Different Language.

86. If The Intention Of Legislature Was To Make The Fine Mandatory Then In Place Of The Words 'shall Also Be Liable To Fine' In The Second Part, The Words 'also Fine' Would Have Sufficed. In This Eventuality, After Adding A Comma After Life, Section 302 Would Have Read Like,
'Whoever Commits Murder Shall Be Punished With Death Or Imprisonment For Life, And Also Fine'.

87. The Use Of Different In Language Indicates That Different Intention And Purport Was Intended. Whereas, The Earlier Part Regarding Punishment Of Death Or Imprisonment For Life Was To Be Mandatory, The Later Part Regarding Fine Was Meant To Be Discretionary. The Allahabad4, Patna5, Punjab6, And Kerala7, Andhra Pradesh8 High Courts Have Opined Similarly.

88. In The Kerla Case, Justice KT Thomas Held That:
'By The Words "and Shall Also Be Liable To Fine", Power Is Conferred On The Court To Impose Sentence Of Fine Also In Addition To Imprisonment. It Does Not Mean That Courts Should Impose Fine In All Such Cases As A Rule. The Court Has The Discretion To Impose Or Not To Impose A Fine Sentence Also In Addition To The Sentence Of Imprisonment.'

89. The Allahabad Case9 Not Only Held That Imposition Of Fine Is Discretionary But Also Said In Case Fine Is Imposed Under Section 302 IPC Then Reasons Should Be Recorded. The Court Observed,
Whether There Should Be A Sentence Of Fine Also Is For The Court To Determine. Nevertheless, When A Court Imposes A Sentence Of Fine Also Under Section 302 IPC, Then Obviously The Court Has Got To Give Reasons Why A Sentence Of Fine Also Was Being Imposed, For The Simple Reason That A Sentence Of Fine Over And Above The Substantive Sentence Is Deemed To Be In Excess Thereof And It Has Always Been Thought Desirable To Give Reasons For Imposing The Excess Penalty, So To Speak.


90. The Counsel For The State Cited The Following Three Decisions Taking Contrary View:
(i)Pancham Alias Pachuwa Vs. State Of UP: 2008 (62) ACC 513 (the Pancham Case);
(ii)Zunjarrao Bhikaji Nagarkar Vs. Union Of India And Others: AIR 1999 SC 2881 (the Zungarrao Case)
(iii)M/s Rajasthan Pharmaceutical Laboratory, Bangalore Vs. State Of Karnataka: (1981) 1 SCC 645 (the RPL Case).
Let's Consider Them In Some Detail.

91. The Pancham Case10 Is A Division Bench Decision Of Our Court. In This Case, The Appellant Was Convicted And Sentenced To Imprisonment For Life Under Section 302 IPC. He Filed An Appeal Before This Court. The Division Bench Of This Court Dismissed The Appeal. This Court While Dismissing The Appeal Observed As Follows:
'Before Parting With This Judgement, We Must Point Out That The Learned Trial Court Has Committed Patent Illegality In Passing The Sentence. No Fine Has Been Imposed, Whereas It Is Mandatory To Impose Fine In Addition To The Substantive Sentence Of Imprisonment For The Offence Punishable Under Section 302 IPC, As The Language Used In Section 302 IPC Is, "and Shall Also Be Liable To Fine". Where The Expression Used By The Legislature In Any Section Is "and Shall Also Be Liable To Fine", The Court Is Under Obligation To Impose Fine Also In Addition To The Substantive Sentence Of Imprisonment. No Discretion Is Left To The Court To Levy Or Not To Levy Fine And Imposition Of Both Imprisonment And Fine Is Imperative In Such Case, As Held By The Hon'ble Apex Court In The Case Of Zunjarrao Bhikaji Nagarkar V. Union Of India And Others: AIR 1999 SC 2881 In Which Reference Has Been Made To The Case Of
Rajasthan Pharmaceuticals Laboratory, Bangalore Vs. State Of Karnataka: !981 (1) SCC 645.'

92. In The Pancham Case The Trial Court Had Not Awarded Any Fine Against The Appellant. There Was No Government Appeal. The Question, Whether The Fine Is Mandatory Or Not, Was Not Involved In The Appeal. The Observations Are Merely Passing Remarks (obiter Dictum) And Are Not Reasons For Deciding (ratio Decidendi The Case. They Are Not Binding Upon Us.

93 The Pancham Case Relies Upon Two Supreme Court Decisions Namely The Zunjarrao Case And RPL Case. As Discussed In The Succeeding Paragraphs, These Cases Are Distinguishable And Not An Authority For The Proposition That The Fine Under Section 302 IPC Is Mandatory.

94. The Patna Case11 Was Overruled In The Zungarrao Case12. A Greater Scrutiny Of This Case Is Required:
(i)In This Case, The Appellant Before The Supreme Court Was A Civil Servant In Central Civil Services. He Was Served A Memorandum That The President Proposes To Hold Disciplinary Inquiry Against Him On The Allegation That He Favoured An Excise Evader By Not Imposing Any Penalty Under Rule 173-Q Of The Central Excise Rules 1944 (the Excise Rules):
(ii)In The Case Under The Excise Rules, The Appellant Had Confiscated The Goods, Imposed The Excise Duty But Did Not Impose Any Penalty. It Is For This Reason That The Memorandum To Hold Inquiry Was Issued Against Him.

95. In The Zungarrao Case, The Appellant Filed An Original Application Before Central Administrative Tribunal Challenging The Initiation Of The Proposed Inquiry. This Application Was Dismissed. Thereafter, His Writ Petition Was Also Dismissed By The High Court. Before The Supreme Court Argument Was That:
The Imposition Of Penalty Under Rule 173-Q Was Discretionary And Not Mandatory;
Failure To Impose Any Penalty Does Not Render The Appellant Before The Supreme Court For Disciplinary Proceedings; And
At The Most, It Would Be An Error Of Law That Could Be Corrected In The Higher Forum.

96. The Relevant Part Of Rule 173-Q Of The Excise Rules Involved In The Zungarrao Case Was As Follows:
'173-Q. Confiscation And Penalty- (1) If Any Manufacture, Producer, Registered Person Of A Warehouse Or A Registered Dealer―
(a) Removes Any Excisable Goods In Contravention Of Any Of The Provisions Of These Rules; Or
(b) Does Not Account For Any Excisable Goods Manufactured, Produced Or Stored By Him; Or
...
(d) Contravenes Any Of The Provisions Of These Rules With Intent To Evade Payment Of Duty,
Then, All Such Goods Shall Be Liable To Confiscation And The Manufacture, Producer, Registered Person Of A Warehouse Or A Registered Dealer, As The Case May Be, Shall Be Liable To A Penalty Not Exceeding Thee Times The Value Of The Excisable Goods In Respect Of Which Any Contravention Of The Nature Referred To In Clause (a) Or Clause (b) Or Clause (bb) Or Clause (c) Or Clause (d) Has Been Committed, Or Five Thousand Rupees, Whichever Is Greater.'

97. Rule 173-Q Of The Excise Rules Empowered Two Actions: The Earlier Part Empowered Confiscation Of The Goods And The Later Part Empowered Imposition Of Penalty. The Earlier Part Said ' All Such Goods Shall Be Liable To Confiscation' And The Later Part Of Rule Used The Words 'manufacturer, Producer, Etc. Shall Be Liable To Penalty'.

98. The Relevant Point To Be Noted In Rule 173-Q Of The Excise Rules Is That At Both Places The Words Used Were 'shall Be Liable To' That Is To Say Similar Phrases Were Used. As Same Phrase Is Used, Same Interpretation Was To Be Given At Both Places. In Case Later Part Was Discretionary Then Earlier Part Would Also Be Discretionary. This Would Have Been Against The Intention Of The Framers. It Was Because Of This That The Supreme Court Interpreted The Word 'shall Be Liable To Penalty' As Mandatory And Held:
'When We Examine Rule 173-Q It Does Appear To Us That Apart From The Offending Goods Which Are Liable To Confiscation The Person Concerned With That Shall Be Liable To Penalty Up To The Amount Specified In The Rule. It Is Difficult To Accept The Argument Of The Appellant That Levy Of Penalty Is Discretionary. It Is Only The Amount Of Penalty Which Is Discretionary. Both Things Are Necessary: (1) Goods Are Liable To Confiscation And (2) Person Concerned Is Liable To Penalty.'
However This Is Not So In Section 302 IPC. It Uses Two Different Phrases And Different Language. Should The Zungarrao Case Govern Interpretation Of Section 302 IPC?

99. In The RPC Case13, Appellants 2 And 3 Were Only Fined Under Section 18(c) Read With Section 27 (a) (ii) Of Drugs And Cosmetics Act, 1940 (The Drugs Act). No Imprisonment Was Awarded. The Relevant Part Of Section 27 Of The Drug Act Was As Follows:
'Whoever Himself Or By Any Other Person On His Behalf Manufactures For Sale, Sells, Stocks Or Exhibits For Sale Or Distributes―
(a) Any Drug―
(i) ...
(ii) Without A Valid Licence As Required Under Clause (c) Of Section 18,
shall Be Punishable With Imprisonment For A Term Which Shall Not Be Less Than One Year But Which May Extend To Ten Years And Shall Also Be Liable To Fine ...'

100. The Question Involved In The RPL Case Was Whether It Was Mandatory To Award Imprisonment Or Not And Not Whether Fine Was Mandatory. It Is In This Light That The Supreme Court Observed:
'Section 27(a) (ii) Makes A Sentence Of Imprisonment Of Not Less Than One Year Compulsory For Such Offence In Addition To Fine Unless For Special Reasons A Sentence Of Imprisonment For A Lesser Period Was Warranted.'
This Case Does Not Apply So Far As The Question Before Us Is Concerned.

101. In Quinn Vs. Leatham, 1901 AC 6495, Lord Halsbury Observed
'A Case Is Only An Authority For What It Actually Decides. I Entirely Deny That It Can Be Quoted For A Proposition That May Seem To Follow Logically From It. Such A Mode Of Reasoning Assumes That The Law Is Necessarily A Logical Code Whereas Every Lawyer Must Acknowledge That Law Is Not Always Logical At All'.
This View Was Endorsed By Justice Hidayatulla14 By Observing,
'A Case Is An Authority For What It Decides And Not What Might Be Deduced From It.'

102. A Constitution Bench Of Supreme Court In Raval & Co. Vs KG Ram Chandran, AIR 1974 SC 818 Observed,
'The General Observation In Some Earlier Case Should Be Confined To The Fact Of That Case. Any General Observation Cannot Apply In Interpreting The Provision Of The Act Unless This Court Has Applied Its Mind To And Analysed The Provision Of The Particular Act.'
This Is Applicable To The Zungarrao Case15 And The RPL Case16.

103. The Words 'and Shall Be Liable To Fine' May Have Different Meaning According To The Setting Where They Are Used. After All The, 'Words Are Such Temperamental Beings That The Surest To Lose Their Essence Is To Take Them At Their Face'.17

104. Justice Holmes Put It In His Own Words As18,
'A Word Is Not Crystal, Transparent And Unchanged. It Is Skin Of Living Thought And May Vary Greatly In Colour And Content According To The Circumstances And The Time In Which It Is Used.'

105. The Two Cases (the Zungarrao Case And The RPL Case) Said To Be For The Proposition That Fine Is Mandatory Do Not Apply For Interpretation Of Section 302 IPC:
In The Zungarrao Case The Supreme Court Was Not Involved With Section 302 IPC Or With Similar Use Of The Phrase 'and Shall Also Liable To'. In That Case This Phrase Was Used Differently. The Observation Made By The Supreme Court Are Confined To The Rule 173-Q Of The Excise Rules Or Similar Wordings But May Not Apply To Section 302 IPC Where The Words 'and Shall Also Be Liable' Are Used In Different Setting And In Conjunction With A Different Phrase.
In The RPC Case, The Question Involved Was Whether Imprisonment Is Mandatory Rather Than Whether The Fine Is Mandatory. The Question Involved Here Was Not Involved There.
There Is Some Support To What We Say

106. In Superintendent And Remembrancer Of Legal Affairs To Government Of West Bengal Vs. Abani Matty: (1979) 4 SCC 85, The Question Involved Was Whether The Vehicle Carrying Contraband Item Was Liable To Be Confiscated Or Not Under Section 63 Of Bengal Excise Act, 1909. Section 63 Uses The Words 'shall Be Liable To Confiscation'. In That Case Considering The Scheme And Language Of The Act, The Supreme Court Opined That:
'Accordingly, The Word "liable" Occurring In Many Statutes, Has Been Held As Not Conveying The Sense Of An Absolute Obligation Or Penalty But Merely Importing A Possibility Of Attracting Such Obligation, Or Penalty, Even Where This Word Is Used Along With The Words "shall Be". Thus, Where An American Revenue Statute Declared That For The Commission Of A Certain Act, A Vessel Shall Be Liable To Forfeiture", It Was Held That These Words Do Not Effect A Present Absolute Forfeiture But Only Give A Right To Have The Vessel Forfeited Under Due Process Of Law. Similarly, It Has Been Held That In Section 302, Indian Penal Code, The Phrase "shall Also Be Liable To Fine" Does Not Convey A Mandate But Leaves It To The Discretion Of The Court Convicting An Accused Of The Offence Of Murder, To Impose Or Not To Impose Fine In Addition To The Sentence Of Death Or Imprisonment For Life.' (emphasis Ours)

107. The Supreme Court In The Palaniappa Case19 Observed That:
'There Can Be No Doubt That For The Offence Of Murder Courts Have The Power To Impose A Sentence Of Fine Under S. 302 Of The Penal Code.
...
But Legitimacy Is Not To Be Confused With Propriety And The Fact That The Court Possesses A Certain Power Does Not Mean That It Must Always Exercise It.
...
Though There Is Power To Combine A Sentence Of Death With A Sentence Of Fine That Power Is Sparingly Exercised Because The Sentence Of Death Is An Extreme Penalty To Impose And Addition To That Grave Penalty A Sentence Of Fine Is Hardly Calculated To Serve Any Social Purpose. It Fact, The Common Trend Of Sentencing Is That Even A Sentence Of Life Imprisonment Is Seldom Combined With A Heavy Sentence Of Fine. .... Before Imposing The Sentence Of Fine, ... Alongwith The Sentence Of Death Or Life Imprisonment, One Must Pause To Consider Whether The Sentence Of Fine Is At All Called For And If So, What Is A Proper Or Adequate Fine To Impose In The Circumstances Of The Case (emphasis Ours)'.

108. In Surinder Kumar Vs. State: AIR 1987 SC 692, The Supreme Court Observed That,
'However, In So Far As The Sentence Is Concerned, We Do Not Think There Was Any Need To Have Imposed A Sentence Of Fine Of Rs.500/- Over And Above The Sentence Of Life Imprisonment. Hence We Set Aside That Part Of The Sentence And Confirm Only The Sentence Of Life Imprisonment Awarded To The Appellant.' (emphasis Ours)

109. In Our Opinion, The Words 'shall Also Liable To Fine' In Section 302 IPC Merely Empower The Court To Impose The Fine But Does Not Mandate It. To Impose Or Not To Impose Is In The Discretion Of The Court.

110. There Is Another Reason For Holding That There Is Discretion To Sentence Fine. Section 302 IPC Neither Prescribes Upper Limit Nor Prescribes Lower Limit. In View Of Section 63 Of The IPC The Upper Limit Is Unlimited But It Cannot Be Excessive: It Depends On The Fact Of Each Case. There Is No Mention Of Lower Limit Of Fine Under Section 302 IPC. It Also Means That The Court May Chose To Impose Nil Fine That Is No Fine At All.

111. In Case It Is Held That Award Of Fine Is Mandatory, It May Cause Injustice In Some Cases.

112. We Had Occasion To Decide Criminal Appeal No. 1942 Of 2009, Amar Singh Yadav Vs. State Of UP (the AmarSingh Case). The Facts Were As Follows:
The Appellant There Was Accused Of Burning His Family Members In A Car. In The Incident His Wife And Two Of His Daughters Died. One Daughter And A Son Were Injured But Survived. They Gave Evidence Against Their Father;
The Trial Court Had Awarded The Death Penalty As Well As A Fine Of Rs.10,000/-. By Our Judgement Dated 16.2.2010 We Have Accepted The Reference And Maintained The Death Penalty. However, We Did Away The Fine.
Had We Upheld The Fine Also, It Would Have Been Realised From The Property, That His Surviving Children Might Receive From Him. There Is No One To Look After The Surviving Children. They Might Have Been Deprived Of The Roof They Had.

113. The Present Appeal Is Similar To The Above Mentioned The AmarSingh Case.


Not A Case Of Fine As Well
114. What Should Be Guiding Factor For Determining The Fine. Should Compensation To The Heirs Of The Deceased Be The Guiding Factor ?

115. Section 357 (1) (c) Of The CrPC Corresponds To Section 545 (1) (bb) Of The Earlier CrPC. It Was Introduced By Section 110 Of The Amending Act 26 Of 1955. In The Palamiappa Case20, The Supreme Court After Referring The Joint Committee Report And Its Objects And Reasons Observed,
'It Cannot, However, Be Overlooked That Since By S. 357 (1) (c) Of The New Code And Its Precursor, S. 545 (1) (bb) Of The Old Code, Compensation Can Only Come Out Of Fine, It Is Always Necessary To Consider In The First Instance Whether The Sentence Of Fine Is At All Called For, Particularly When The Offender Is Sentenced To Death Or Life Imprisonment. If So, The Fine Must Not Be Excessive, Having Regard To All The Circumstances Of The Case Like Motivation Of The Offence, The Pecuniary Gain Likely To Have Been Made By The Offender By Committing The Offence And His Means To Pay The Fine.' (emphasis Ours)

116. It Is Difficult For Us Lay Own The Guidelines For All Circumstances But Some Guiding Factors Are Indicated Below:
The Pecuniary Circumstances, Means, And Capacity Of The Offender To Pay The Fine;
The Cases Where Offender Has Enriched Himself. No One Should Be Permitted To Live On The Wealth That Is Gained Unconsciously Or Unjustifiably. Economic Offences Are Generally Visited With Heavy Fines;
Character And Magnitude Of The Offence;
Motive For The Offence;
The Pecuniary Gain Likely To Have Been Made By The Offender.

117. The Appellant Is Accused Of Killing His Two Daughters And Attempting To Commit Suicide. We Have Upheld The Conviction But If We Uphold The Fine Also It Will Be Collected From His Property. The Only Person Who Might Be Using His Property Is His Wife. She Would Be Deprived Of The Same Without Any Fault Of Hers And Here As We Have Held (Sub-heading 'Not A Case Of Capital Punishment') There Is Some Accountability Of State Too. Imposing Fine In This Case Will Cause Injustice To The Wife. We See No Justification To Impose A Fine.


CONCLUSIONS
118. Our Conclusions Are As Follows:
(i)The Room Of The Appellant Was Closed From Inside And Was Broken Open By The Police;
(ii) The Crime Could Only Be Committed By The Someone Inside The Room And It Was Not An Outsider's Job;
(iii)The Prosecution Has Proved Its Case Beyond Reasonable Doubt;
(iv) The Appellant Is Guilty Under Section 3 And 4 Read With Section 25 Of The Arms Act, Section 302, And 309 IPC;
(v)It Is Not A Case For Capital Punishment;
(vi)Under Section 302 IPC, Imposition Of Fine Is Discretionary And Not Mandatory;
(vii)It Is Not A Case Where Any Fine Should Be Imposed.

119. In View Of Our Conclusions, The Reference Is Not Accepted. The Conviction Dated 30.10.2009 Passed In ST No. 291 Of 2008 By The ASJ Is Upheld; However, The Sentence Dated 31.10.2009 Is Altered. The Appellant Is Sentenced To,
Imprisonment For Life Under Section 302 IPC;
Six Months Simple Imprisonment Under Section 309 IPC;
Six Months Rigorous Imprisonment Under Section 3 And 4 Read With Section 25 Of Arms Act.
All The Sentences Will Run Concurrently. The Appellant Is In Jail. He Will Serve Out His Sentence.
Date: 11.5.2010
BBL
Appendix-1
The Ante-mortem Injuries Of The Deceased Runjhun (aged About 3-1/2 Years) Are As Follows
(i)Incised Wound 2 X 1 Cm X Cavity Deep Over Right Side Upper Abdomen, On Opening Liver Is Lacerated;
(ii)Incised Wound 3 X 1 Cm X Cavity Deep Just Below Umbilicus;
(iii)Incised Wound 2 X 1 Cm X Cavity Deep Over Left Flank, On Cutting Underneath Kidney Lacerated;
(iv)Incised Wound 2 X 1 Cm X Cavity Deep Over Back Of Abdomen Right Side;
(v)Incised Wound 4 X 3 Cm Over Right Side Lower Part Of Abdomen 3 Cm Away From Umbilicus, With Loops Of Intestine Coming Out And Punctured Intestine With About 1 Litre Of Blood Present In Abdominal Cavity.


The Ante Mortem Injuries Of Deceased Khushi (aged About 5-1/2 Years) Are As Follows
(i)Incised Wound 3 X 1 Cm X Cavity Deep Over Upper Part Of Chest Right Side, 1 Cm Lateral To Sternal Border On Cutting Lungs Lacerated;
(ii)Incised Wound 3 X 2 Cm X Cavity Deep Over Left Side Upper Chest, 1 Cm Lateral To Sternum On Cutting Lungs Lacerated;
(iii)Incised Wounds 12 X 3 Cm Over Front And Inner Aspect Of Right Upper Arm;
(iv)Incised Wound 3 X 2 Cm X Cavity Deep Left Side Chest 2 Cm Away From Nipple; On Opening Heart Punctured;
(v)Incised Wound 3 X 2 Cm Left Side Abdomen 3 Cm Away From Umbilicus;
(vi)Incised Wound 5 X 3 Cm Just Above Umbilicus With Intestine Loops Coming Out Through Wound And Punctured On Opening Peritoneum Punctured At Places With Punctured Intestine Blood About One Litre Present.


Appendix-2
The Injuries Of Appellants Are As Follows
(i)Incised Wound On Midline Of Abdomen 4 Cm Below To Sternal Angle, Size 2 Cm X 1 Cm;
(ii)Incised Wound On Midline Of Abdomen 3 Cm Below To Injury No. (i), Size 2 Cm X 1 Cm;
(iii)Incised Wound On Midline Of Abdomen 6 Cm Above Umbilicus, Size 4 Cm X 2 Cm, A Small Portion Of Gut Came Out;
(iv)Incised Wound On Right Side Of Abdomen 3 Cm Below Injury No. (iii), Size 1.5 X 1 Cm;
(v)Incised Wound On Left Side Of Abdomen 2 Cm Lateral To Umbilicus, Size 1.5 X 1 Cm.
From The Mouth Alcoholic Smell Was Present.

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