# 13 (ADDL.) S.C.R. 1000 AJITSINGH HARNAMSINGH GUJRAL v. STATE OF MAHARASHTRA

- **Citation:** [2011] 13 S.C.R. 1000
- **Court:** Supreme Court of India
- **Decided:** 2011-09-13
- **Case number:** Criminal Appeal No. 1969 of 2009
- **Bench:** Markandey Kat Ju, Chandramauli Kr. Prasad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-addl-s-c-r-1000-ajitsingh-harnamsingh-gujral-v-state-of-maharashtra-27248
- **Pages:** 54

## Headnote

Penal Code, 1860 - s. 302 - Murder - Accused burnt
C his wife and three children to death by pouring petrol on them
and setting them on fire - Convicted uls. 302 and sentenced
to penalty of death by courts below - On appeal, held:
Prosecution established the entire chain of circumstances
which connects the accused to the crime - Accused had preD planned the diabolical and gruesome murder in a dastardly
manner - He did not act on any spur of the moment - He
cannot be reformed and rehabilitated - Thus, the penalty of
death sentence is upheld.
Sentence/Sentencing - Death sentence - 'Rarest of rare
E case' - Held: Death sentence should only be given in the
rarest of rare cases - On facts, the accused burnt living
persons to death which is a horrible act causing exGruciating
pain to the victim, and this could not have been unknown to
the accused - Accused did not act on any spur of the moment
F provocation - There was a quarrel between accused and his
wife at midnight, but the accused having brought a large
quantity of petrol into his residential apartment shows that he
had pre-planned the diabolical and gruesome murder in a
dastardly manner - Such person who instead of protecting his
G family kills them in such a cruel and barbaric manner cannot
be reformed or rehabilitated - Balance sheet is heavily
against him - Thus, all the requisites for death penalty are
satisfied - Instant case belongs to the category of rarest of
H
1000
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1001
MAHARASHTRA
rare cases - Death sentence awarded to the accused is
A
upheld.
Death sentence - Broad guidelines to award death
sentence - Stated.
Legislation - Abolition of death penalty - Held: It is not
B
for the judiciary to repeal or amend the law, as that is in the
domain of the legislature - It is only the legislature which can
abolish the death penalty and not the courts - As long as the
death penalty exists in the statute book it has to be imposed
in some cases, otherwise it would tantamount to repeal of the C
death penalty by the judiciary.
According to the prosecution, appellant was married
and having one son aged about 20 years and two
daughters aged 22 years and 13 years respectively. On
D
the fateful day, the appellant killed his wife 'KK' and three
children by pouring petrol on their persons and setting
thein on fire. The said incident took place 25-27 years
after the marriage of the appellant and 'KK'. The trial court
convicted the appellant under Section 302 IPC and
E
imposed penalty of death upon the appellant. The High
Court dismissed the appeal and upheld the death
f;lentence. Therefore, the appellant filed the instant appeal.
Dismissing the appeal, the Court
HELD: 1. The prosecution has been able to establish
the entire chain of circumstances which connect the
accused to the crime. [Para 49] [1030-H]
F
2.1. In the instant case, reliance is entirely on
circumstantial evidence, as there are no eye witnesses
G
of the crime. It is true that motive is important in cases of
circumstantial evidence, but that does not mean that in
all cases of circumstantial evidence if the prosecution has
been unable to satisfactorily prove a motive its case must
fail. It all depends on the facts and circumstances of the
H
1002 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A case since men may lie but circumstances do not. In
cases of circumstantial evidence the prosecution must
establish the entire chain of circumstances which
connects the accused to the crime. [Paras 14, 20) (1018E-F; 1022-D]
B
Wakkar and Anr. vs. State of Uttar Pradesh 2011 (3) SCC
306: JT 2011(2) SC 502; Krishnan vs. State represented by
Inspector of police 2008(15)SCC 430 Sharad Birdhichand
Sarcia vs. State of Maharashtra AIR 1984 SC 1622: 1985 (1)
C SCR 88; Mohd. Mannan alias Abdul Mannan vs. State of
Bihar 2011(5) SCC 317 - referred to.
2.2. There is no reason to disbelieve PW3-brother-inlaw of the appellant or PW5-mother-in-law of the appellant
From their testimony it is evident that the app

## Text

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A
B
(2011] 13 (ADDL.) S.C.R. 1000
AJITSINGH HARNAMSINGH GUJRAL
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1969 of 2009)
SEPTEMBER 13, 2011
[MARKANDEY KAT JU AND CHANDRAMAULI KR.
PRASAD, JJ.)
Penal Code, 1860 - s. 302 - Murder - Accused burnt
C his wife and three children to death by pouring petrol on them
and setting them on fire - Convicted uls. 302 and sentenced
to penalty of death by courts below - On appeal, held:
Prosecution established the entire chain of circumstances
which connects the accused to the crime - Accused had preD planned the diabolical and gruesome murder in a dastardly
manner - He did not act on any spur of the moment - He
cannot be reformed and rehabilitated - Thus, the penalty of
death sentence is upheld.
Sentence/Sentencing - Death sentence - 'Rarest of rare
E case' - Held: Death sentence should only be given in the
rarest of rare cases - On facts, the accused burnt living
persons to death which is a horrible act causing exGruciating
pain to the victim, and this could not have been unknown to
the accused - Accused did not act on any spur of the moment
F provocation - There was a quarrel between accused and his
wife at midnight, but the accused having brought a large
quantity of petrol into his residential apartment shows that he
had pre-planned the diabolical and gruesome murder in a
dastardly manner - Such person who instead of protecting his
G family kills them in such a cruel and barbaric manner cannot
be reformed or rehabilitated - Balance sheet is heavily
against him - Thus, all the requisites for death penalty are
satisfied - Instant case belongs to the category of rarest of
H
1000
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1001
MAHARASHTRA
rare cases - Death sentence awarded to the accused is
A
upheld.
Death sentence - Broad guidelines to award death
sentence - Stated.
Legislation - Abolition of death penalty - Held: It is not
B
for the judiciary to repeal or amend the law, as that is in the
domain of the legislature - It is only the legislature which can
abolish the death penalty and not the courts - As long as the
death penalty exists in the statute book it has to be imposed
in some cases, otherwise it would tantamount to repeal of the C
death penalty by the judiciary.
According to the prosecution, appellant was married
and having one son aged about 20 years and two
daughters aged 22 years and 13 years respectively. On
D
the fateful day, the appellant killed his wife 'KK' and three
children by pouring petrol on their persons and setting
thein on fire. The said incident took place 25-27 years
after the marriage of the appellant and 'KK'. The trial court
convicted the appellant under Section 302 IPC and
E
imposed penalty of death upon the appellant. The High
Court dismissed the appeal and upheld the death
f;lentence. Therefore, the appellant filed the instant appeal.
Dismissing the appeal, the Court
HELD: 1. The prosecution has been able to establish
the entire chain of circumstances which connect the
accused to the crime. [Para 49] [1030-H]
F
2.1. In the instant case, reliance is entirely on
circumstantial evidence, as there are no eye witnesses
G
of the crime. It is true that motive is important in cases of
circumstantial evidence, but that does not mean that in
all cases of circumstantial evidence if the prosecution has
been unable to satisfactorily prove a motive its case must
fail. It all depends on the facts and circumstances of the
H
1002 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A case since men may lie but circumstances do not. In
cases of circumstantial evidence the prosecution must
establish the entire chain of circumstances which
connects the accused to the crime. [Paras 14, 20) (1018E-F; 1022-D]
B
Wakkar and Anr. vs. State of Uttar Pradesh 2011 (3) SCC
306: JT 2011(2) SC 502; Krishnan vs. State represented by
Inspector of police 2008(15)SCC 430 Sharad Birdhichand
Sarcia vs. State of Maharashtra AIR 1984 SC 1622: 1985 (1)
C SCR 88; Mohd. Mannan alias Abdul Mannan vs. State of
Bihar 2011(5) SCC 317 - referred to.
2.2. There is no reason to disbelieve PW3-brother-inlaw of the appellant or PW5-mother-in-law of the appellant
From their testimony it is evident that the appellant was
D a dictatorial personality, who wanted to dominate over his
family and was also hot tempered. He would even beat
his wife (deceased) with a leather belt. [Para 17) (1021-E]
2.3. As regards the Sl:bmission that if the relations
E between the accused and his wife were strained why did
his wife continue to live with him for 25 years, in India
many women accept the bad treatment of their husbands
and continue living with them because a girl at the time
of marriage is told by her parents that after marriage her
place is with her husband and she has to accept
F whatever treatment she gets from her husband and inlaws. She has to 'nibhao' all treatment after marriage.
Thus, she continues living with him even If her husband
is a brutish, nasty and loathsome person. However, it is
evident that when the children of the accused grew up
G they often resisted and protested against the dictatorial
behaviour of the appellant, and this led to a lot of friction
in the family. Thus, the appellant did not have a happy
married life with his wife, rather it was just the reverse.
[Para 18) (1021-F-H; 1022-A]
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1003
MAHARASHTRA
2.4. As to what motivated the appellant to commit this
A
gruesome and ghastly act is impossible to say because
the Court cannot enter into the mind of a human being
and find out his motive. It can only be speculated. [Para
19) [1022-B-C]
2.5. The last seen theory comes into play where the
time gap between the point of time when the accused and
deceased were last seen alive and when the deceased
B
is found dead is so small that the possibility of any person
other than the accused being the author of the crime C
becomes impossible. [Para 31) [1024-F]
Mohd. Azad alias Samin vs. State of West Bengal
2008(15) sec 449: 2008 (15 ) SCR 468; State through
Central Bureau of Investigation vs. Mahender Singh Dahiya
2011(3) SCC 109: 2011 (1 ) SCR 1104; S.K. Yusuf vs. State
D
of West Bengal J.T. 2011 (6) SC 640 - relied on.
2.6. There is no reason to disbelieve the evidences
of PW3, PW4, PW 5 and PW 16. Their evidence fully
establishes that the appellant was last seen with his wife
E
at about midnight and was in fact quarreling with her at
that time. The incident happened at 4 or 4.30 a.m. and
thus, there was a time gap of only about 4 hours from the
time when the appellant was seen with his wife
(deceased) and the time of the incident. Thus, he was last
seen with his wife and there was only a short interval
F
between this and the fire. [Paras 29, 30) [1024-D-E]
2.7. Since the accused was last seen with his wife
and the fire broke out about 4 hours thereafter, it was for
him to properly explain how this incident happened, G
which he has not done. Thus, it is one of the strong links
in the chain connecting the accused with the crime.
Furthermore, the victims died in the house of the
accused, and he was there according to the testimony of
the witnesses. The incident took place at a time when. H
1004 SUPREME COURT REPORTS [2011] 13 (ADOL.) S.C.R.
A there was no outsider or stranger who would have
ordinarily entered the house of the accused without
resistance and moreover it was most natural for the
accused to be present in his own house during the night.
[Paras 32, 33] [1024-H; 1025-A-B]
B
2.8. The sudden disappearance of the accused from
the scene after the incident is another link in the chain
of circumstances connecting the accused with the crime.
The version of the accused is that he left the scene as
he had received a message that his sister in Delhi who
C was suffering from cancer had become critical, and thus, ·
he rushed from Mumbai to be with her. The story is not
at all convincing because in such a situation the person
would ordinarily take a flight from Mumbai to Delhi which
takes two hours, and would not go by car, which journey
D would take several days. There was no shortage of
money with the appellant as he was found with cash of
Rs.7,68,080/-. The submission that the appellant first went
by car to the Dargah in Ajmer to pray for his sister, cannot
be accepted because he could have gone to a Dargah
E only subsequently after seeing his sister. Under Section
114 of Evidence Act the natural conduct of persons is to
be presumed. [Para 34, 35] [1025-C-G]
2.9. The order of the High Court that the plea of alibi
F was totally false and bogus is accepted. [Para 37] [1024B]
2.10. It is difficult to speculate as to why the accused
fled from the scene of the crime carrying cash of
Rs.7,68.080/- apart from 7 safari suits and that too without
G a driver or an assistant, all of whom were easily available
to him. It is quite possible that after having committed this
horrible crime the accused may have himself realized the
gravity of his crime and in this shocked state fled from
the scene. However, this is only a speculation and
H nothing turns on it. [Para 38] [1027-C-D]
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1005
MAHARASHTRA
2.11. It was submitted that ordinarily the accused and
A
his wife used to sleep in one bedroom, while the 3
children used to sleep in the other bedroom. However,
all 4 victims were found burnt in the children's bedroom.
This was explained by the prosecution by pointing that
in the night of 9.4.2003 when the accused came from his
B
hotel he had a heated quarrel with his wife and due to this
quarrel the wife decided to sleep with the children and
not with the accused. This version seems quite probable,
and the defence cannot make much out of the fact that
all 4 bodies were found in one bedroom. [Para 39) (1027- c
E-r=]
2.12. When the police party carried out panchanama
of the house of the accused, after the fire was fully
extinguished and when the FIR was lodged by PW1, PSI
who found that in the bedroom to the northern side of the
D
hall on the bed i.e. on the mattress of the bed a 10 litre
white plastic can was seen and it had some petrol in it. It
was also found and noticed that the can was new. It is a
fact that all the four inmates were burned to death by
using petrol. Therefore, the finding of the 10 litre can with
E
some petrol in it clearly shows that petrol, sufficient in
quantity to burn and kill all the four persons, was brought
by the accused. [Para 40) (1027-G-H; 1028-A]
2.13. The prosecution also tendered one more piece
F
of evidence which is in the form of recovery at the
instance of the accused under Section 27 of the Evidence
Act. In this regard, the prosecution examined PW14panch witness and proved the Exhibits which is the
statement of the accused under Section 27 of the G
Evidence Act and the recovery panchanama. PW14
stated that on 14th April, 2003 he was called by the Police
as the accused made a voluntary statement that he would
point out the bucket in which he took petrol from the
plastic can. This statement was recorded and thereafter,
H
1006 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A the accused led the police party to his flat. The seal of
the flat was removed and from the bath room of the said
flat the accused pointed out the red bucket. The said
bucket was sent to a Chemical Analyzer who submitted
a report that the bucket showed positive result regarding
B detection of petrol. This means that the said bucket was
used for pouring petrol on all the four victims. [Para, 41
42] (1028-B-E]
2.14. The submission that the recovery of the red
bucket was a fabrication by the police cannot be
C accepted. It is true that on 10th April, 2003 the flat of the
accused was searched, but it is quite natural that the
investigating officer did not understand the significance
of the said bucket even if it was seen on that day. They
could not visualize or imagine the use of the bucket for
D splashing or spreading the petrol on the four victims.
They came to know about it only after the accused made
the disclosure statement, and then they recovered the
said bucket. The investigating office, regarding other
aspects of the matter appears to be truthful and sincere.
E There is no reason to suspect the bona fide of the
inv~~tigating officer, and therefore, there is nothing on
record' from which it can be inferred that the said bucket
was planted by the police to strengthen the case against
F
the accused. [Paras 43, 44] [1028-F; 1029-A-C]
2.15. Nothing turns on the. submission of the
appellant that he was making phone calls to his motherin-law after leaving his flat in Mumbai on 10.4.2003. It has
come in evidence that AS, son of the accused, was
G looking after the business, and if the accused was going
away for 3 to 4 days it was natural for him to expect calls
from, and make calls to his son and his wife and other
relatives, but that was not done. [Para 45] (1029-D]
2.16. Appellant submitted that as per the prosecution
H case, all the four victims were in one bed room; that iYfo
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1007
MAHARASHTRA
bodies were found on the bed and two were lying on the
A
ground; that if all four victims were sleeping on one bed
then how were two bodies found on the ground; and that
if petrol was splashed on the persons of four victims then
why did none of them wake up before the accused set
them to fire. The presence of the 10 litre can and using
B
the bucket clearly show that petrol in large quantity was
used. Use of the bucket further fortifies the prosecution
case because if the petrol was sprinkled from a can it
would have taken time to cover all the bodies of four
persons, the bed and the surroundings. But use of the c
bucket clearly shows that splashing of petrol could be
achieved within a second and that profuse splashing of
petrol could be achieved by using the bucket and then
setting the petrol on fire would not even require five
seconds. Petrol is a very combustible material. It might 0
be that before the actual death occurred two persons
rolled down from the bed and fell on the ground. All this
is speculation on which nothing turns. Since there were
no eye witnesses, and since presence of the accused a
few hours before the crime is proved, it was for the
accused to explain all this. [Para 46] [1029-F-H; 1030-AE
BJ
2.17. There is no merit in the submission that several
of the circumstances were not put to the accused under
Section 313 Cr.P.C.; and that the circumstances which
F
were not put to the accused in his examination under
Section 313 could not be used against him. On careful
examination of the statements of the accused under
Section 313 Cr.P.C. it is found that as many as 168
questions were put to him relating to all the relevant G
circumstances. [Para 47] [1030-C-D]
State of U.P. vs. Mohd. Jkram J.T. 2011 (6) SC 650 -
referred to.
2.18. As regards the submission that the incis.ed
H
1008 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A wounds on the son of the appellant, have not been
explained by the prosecution, there were no eye
witnesses and the entire prosecution case rests on
circumstantial evidence it is hardly for the prosecution to
explain these injuries, rather it was for the appellant, who
B was present at the time of the incident (as it has been
found) to explain them. Moreover, the question of
explaining the injuries ordinarily arises when the injuries
are on an accused, and not on the victim. At any event,
the prosecution has explained that these were due to the
c broken glass pieces found on the spot. [Para 48] [1030E·G]
3.1. Section 302 provides the punishment for murder.
It stipulates a punishment of death or imprisonment for
life and fine. Once an offender is found by the court to
D be guilty of the offence of murder under Section 302, then
it has to sentence the offender to either death or for
imprisonment for life. The court has no power to impose
any lesser sentence. If there is a reasonable doubt about
the guilt of the offender, the only proper verdict is to
E acquit him and not to impose a sentence lesser than
imprisonment for life. [Paras 53, 54] [1033-H; 1034-A-B]
F
Santosh vs. State of MP AIR 1975 SC 654: 1975(3) SCR
463 - relied on.
3.2. In the Code of Criminal Procedure, 1973, Section
354(3), the discretion of the judge to impose death
sentence has been narrowed, for the court has now to
provide special reasons for imposing a sentence of
death. It has now made imprisonment for life the rule and
G death sentence an exception, in the matter of awarding
punishment for murder. [Para 57] [1035-H; 1036-A]
3.3. Death sentence should only be given in the
rarest of rare cases. This is one of such cases. Burning
H living persons to death is a horrible act which causes.
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1009
MAHARASHTRA
excruciating pain to the victim, and this could not have
A
been unknown to the appellant. In the instant case, the
accused did not act on any spur of the moment
provocation. It is no doubt that a quarrel occurred
between him and his wife at midnight, but the fact that
he had brought a large quantity of petrol into his
B
residential apartment shows that he had pre-planned the
diabolical and gruesome murder in a dastardly manner.
A person like the appellant who instead of doing his duty
of protecting his family kills them in s.uch a cruel and
barbaric manner cannot be reformed or rehabilitated. The c
balance sheet is heavily against him and thus, the death
sentence awarded to him is upheld. [Paras 95, 96 and 97)
[1050-D·G·F]
Bachan Singh vs State of Punjab AIR 1980 SC 898 -
relied on.
D
3.4. A distinction has to be drawn between ordinary
murders and murders which are gruesome, ghastly or
horrendous. While life sentence should be given in the
former, the latter belongs to the category of rarest of rare
E
cases, and thus, death sentence should be given. [Para
98) [1050-H; 1051-A]
Mohd. Mannan @ Abdul Mannan vs. State of Bihar
(2011) 5 sec 317 - relied on.
3.5. The expression 'rarest of the rare cases' cannot
F
be defined with complete exactitude. The very fact that
death penalty should be given only in the rarest of the
rare cases means that in some cases it should be given
and not that it should never be given. As to when it has
G
to be given, the broad guidelines in this connection have
been laid down in Macchi Singh's case which has been
followed in several decisions. The accused deserves
death penalty where the murder was grotesque,
diabolical, revolting or of a dastardly manner so as to
H
1010 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A arouse intense and extreme indignation of the
community, and when the collective conscience of the
community is petrified, or outraged. It has also to be seen
whether the accused is a menace to society and
continues to do so, threatening its peaceful and
B harmonious coexistence. The Court has to further
enquire and believe that the accused cannot be reformed
or rehabilitated and shall continue with his criminal acts.
Thus a balance sheet is to be prepared in considering the
imposition of death penalty of the aggravating and
c mitigating circumstances, and a just balance is to be
struck. The said view is accepted and all the requisites
for death penalty are satisfied in the instant case for the
said reasons. [Paras 99, 100 and 101] [1052-D-H]
Machhi Singh and Ors. vs. State of Punjab AIR 1983 SC
D 957: 1983 (3) SCR 413 - relied on.
Sunder Singh vs. State of Uttaranchal (2010) 10 SCC
611: 2010 (11) SCR 927; C.Muniappan vs. State of T. N.
(2010) 9 sec 567: 2010 (10) SCR 262; M. A Antony vs.
E State of Kera/a (2009) 6 SCC 220: 2009 (6 ) SCR 829;
Jagdish vs.State of M. P. (2009) 9 sec 49&. 2009 (14) SCR
727; Prajeet Kumar Singh VS. State of Bihar (2008) 4 sec .
434: 2008 (5) SCR 969; Ram Singh vs. Sonia (2007) 3 SCC
1: 2001 (2 ) SCR 651; State of U.P. vs. Satish (2005) 3 sec
F 114: 2005 (2) SCR 1132; Holiram Bordoli vs. State of Assam
(2005) 3 SCC 793: 2005 (3) SCR 406; Saibanna vs. State
of Karnatka (2005) 4 sec 165: 2005 (3) SCR 760; Karan
Singh vs. State of U.P. (2005) 6 SCC 342; Gurmeet Singh
vs. State of U.P. (2005) 12 SCC 107: 2005 (3) Suppl. SCR
651; Sushi/ Murmu vs. State of Jharkhand (2004) 2 SCC
G 338: 2003 (6) Suppl. SCR 702; State ofRajasthan vs. Kheraj
Ram (2003) 8 SCC 224: 2003 (2) Suppl. SCR 861; Om
Prakash vs. State of Uttaranchal (2003) 1 SCC 648: 2002 (4)
Suppl. SCR 623:;Gurdev Singh vs. State of Punjab AIR
2003 SC 4187: 2003 (2) Suppl. SCR 80; Praveen Kumar vs.
H State of Karnataka (2003) 12 SCC 199; Suresh vs. State of
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1011
MAHARASHTRA
U. P. AIR 2001 SC 1344: 2001 ( 2 ) SCR 263; Molai vs. State A
of M. P. AIR 2000 SC 177: 1999 (4 ) Suppl. SCR 104;
Ramdeo Chauhan vs. Stateof Assam AIR 2000 SC 2679:
2000 (2) Suppl. SCR 28; Narayan Chetanram Chaudhary vs.
State of Mahrashtra AIR 2000 SC 3352: 2000 (3) Suppl. SCR
104; State of U.P. vs. Dharmendra Singh AIR 1999 SC 3789:
B
1999 (3) Suppl. SCR 52; Ronny vs. State of Mahrashtra AIR
1998 SC 1251: 1998 ( 2 ) SCR 162; Surja Ram vs. State of
Rajasthan AIR 1997 SC 18: 1996 (6) Suppl. SCR 783;
Umashankar Panda vs. State of M.P AIR 1996 SC 3011:
1996 (2) SCR 1154; Ravji vs. State of Rajasthan AIR 1996 c
SC 787: 1995 (6) Suppl. SCR 195; Suresh Chandra Bahri
vs. State of Bihar AIR 1994 SC 2420: 1994 (1) Suppl. SCR
483; Bheru Singh vs. State of Rajasthan (1994) 2 SCC 467:
1994 (1) SCR 559; Sevaka Perumal vs. State of T. N. AIR
1991 SC 1463: 1991 (2) SCR 711; Sudam@ Rahul Kaniram 0
Jadhav vs. State of Maharashtra Criminal Appeal Nos. 185·
186 of 2011decided on 4.7. 2011; Ranjeet Singh vs. State
of Rajasthan (1988) 1 SCC 633; Atbir vs. Govt. of f>JCT Delhi
AIR 2010 SC 3477: 2010 (9) SCR 993; Surendra Kofi vs.
State of U.P. AIR 2011 SC 970; Bhagwan Dass vs. State
(NCT) of Delhi AIR 2011 SC 1863; Prakash Kadam vs. R. V.
E
Gupta AIR 2011 SC 1945; Satya Narayan Tiwari vs. State of
U.P. (2010) 13 sec 689: 2010 (12 ) SCR 1137 - referred
to.
Furman vs. Georgia 408 US 238 (1972); Gregg vs.
F
Georgia 28 US 153 (1976) - referred to.
'Theories of Punishment' edited by Stanley E. Grupp;
'Punishment' by Ted Honderich; 'Punishment' by Philip Bean;
'The Death Penalty' edited by Irwin lsenberg;'The Penalty of G
Death' by Thorsten Sellen; 'The Death Penalty' by Roger
Hood referred to.
6. It is only the legislature which can abolish the
death penalty and not the courts. As long as the death
H
1012 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A penalty exists in the statute book it has to be imposed in
some cases, otherwise it will tantamount to repeal of the
death penalty by the judiciary. It is not for the judiciary
to repeal or amend the law, as that is in the domain of the
legislature. [Para 101] [1053-B]
B
Common Cause vs. Union of India 2008(5) SCC 511 -
relied on.
Case Law Reference:
c
2011 (3) sec 306
Referred to.
Para 20
2008 (15) sec 430
Referred to.
Para 20
1985 (1) SCR 88
Referred to.
Para 20
2011(5) sec 311
Relied on.
Para 20
D
2008 (15) SCR 468
Relied on.
Para 31
2011 (1) SCR 1104
Relied on.
Para 31
J.T. 2011 (6) SC 640
Relied on.
Para 31
E
J.T. 2011 (6) SC 650
Referred to.
Para 47
408 us 238 (1972)
Referred to.
Para 50
428 us 153 (1976)
Referred to.
Para 50
F
1975 (3) SCR 463
Relied on.
Para 54
2010 (11) SCR 927
Referred to.
Para 63
2010 (10) SCR 262
Referred to.
Para 64
G
2009 (6) SCR 829
Referred to.
Para 65
2009 (14) SCR 727
Referred to.
Para 66
2008 (5) SCR 969
Referred to.
Para 67
2007 (2 ) SCR 651
Referred to.
Para 68
H
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1013
MAHARASHTRA
2005 (2) SCR 113
Referred to.
Para 69
A
2005 (3) SCR 406
Referred to.
Para 70
2005 (3) SCR 760
Referred to.
Para 71
(2005) 6 sec 342
Referred to.
Para 72
B
2005 (3) Suppl. SCR 651 Referred to.
Para 73
2003 (6) Suppl. SCR 702 Referred to.
Para 74
2003 (2) Suppl. SCR 861 Referred to.
Para 75
c
2002 (4) Suppl. SCR 623 Referred to.
Para 76
2003 (2) Suppl. SCR 80
Referred to.
Para 77
(2003) 12 sec 199
Referred to.
Para 78
2001 (2) SCR 263
Referred to.
Para 79
D
1999 (4) Suppl. SCR 104 Referred to.
Para 80
2000 (2) Suppl. SCR 28
Referred to.
Para 81
2000 (3) Suppl. SCR 104 Referred to.
Para 82
E
1999 (3) Suppl. SCR 52
Referred to.
Para 83
1998 (2) SCR 162
Referred to.
Para 84
1996 (6) Suppl. SCR 783 Referred to.
Para 85
F
1996 (2) SCR 1154
Referred to.
Para 86
1995 (6) Suppl. SCR 195 Referred to.
Para 87
1994 (1) Suppl. SCR 483 Referred to.
Para 88
1994 (1) SCR 559
Referred to.
Para 89
G
1991 (2) SCR 711
Referred to.
Para 90
(1988) 1 sec 633
Referred to.
Para 92
2010 (9) SCR 993
Referred to.
Para 93
H
A
B
c
D
E
F
G
1014 SUPREME COURT REPORTS (2011) 13 (ADDL.) S.C.R.
AIR 2011 SC 970
Referred to.
Para 94
AIR 1980 SC 898
Relied on.
Para 95
2011(5) sec 317
Relied on.
Para 99
1983 (3) SCR 413
Relied on.
Para 101
2008(5) sec 511
Relied on.
Para 101
AIR 2011 SC 1863
Referred to.
Para 101
AIR 2011 SC 1945
Referred to.
Para 101
2010 (12) SCR 1137
Referred to.
Para 101
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1969 of 2009.
From the Judgment & Order dated 26.6.2006 of the High
Court of Bombay at Bombay in Confirmation Case No. 3 of
2005 with Crl. A. No. 518 of 2005.
Jaspal Singh, Aman Vachher, Ashutosh Dubey, L.K.
Sharma (for P.N. Puri) for the Appellant.
Sushil Karanjkar (for Asha Gopalan Nair) for the
Respondent.
The Judgment of the Court was delivered by
MARKANDEY KATJU, J.
"Qareeb hai yaaron roz-e-mahshar,
Chupega kushton ka khoon kyonkar,
Jo chup rahegi zubaan-e-khanjar,
Lahu pukaaregaa aasteen ka"
- Ameer Minai
1. Heard Shri Jaspal Singh, learned senior counsel for the
appellant and learned counsel for the State of Maharashtra for
H the respondent. This is an appeal by special leave against the
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1015
MAHARASHTRA [MARKANDEY KAT JU, J.]
judgment of the Bombay High Court dated 26.6.2006, which
A
has confirmed the death sentence of the appellant given by the
learned Sessions Judge dated 19.3.2005.
2. The accused is a businessman. He was a married man
having one son and two daughters. He was married with the
B
deceased Kanwaljeet Kaur about 25 to 27 years prior to the
incident dated ·10.4.2003. He had a son Amandeep Singh aged
about 20 years and two daughters viz. Neeti and Taniya, aged
about 22 years and 13 years respectively. All of them were
allegedly killed by the accused in the early hours of the morning
C
of 10.4.2003 by pouring petrol on their persons and setting
them on fire.
·
3. Earlier the accused had lived at Ludhiana. However, it
appears that he suffered business losses there, and so he
shifted to Mumbai with his family and started residing in
D
Jyotsna Building. Initially he was doing business of catering in
the same building, and his son Amandeepsingh was assisting
him in that business. After some time, the accused shifted his
catering business to Kamlesh building which is situated in the
same locality of Shere-Punjab colony, Andheri. There were
E
several employees of the accused to assist him in the business
of catering. Those servants used to sleep in front of his flat in
the verandah. The accused was having a Maruti Zen Car and
his son was having a motorcycle.
4. According lo the prosecution, the accused was a hot
F
tempered man. He was like a dictator in the family, and
dominated his wife and children in the family, on account of
which there was resentment in his family members. Further, it
is alleged by the prosecution that the accused was ill-treating
his wife and twice he had assaulted her with a leather belt.
G
5. On thr night of 9.4.2003 the accused and all his family
members were in their flat. All the servants were sleeping
outside. The accused was seen coming to the flat between the
night of 9.4.2003 and 10.4.2003 at about midnight. There. were . H
1016 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A two bed rooms in the flat of the accused. Ordinarily the accused
and his wife used to sleep in one bed room while the children
slept in another. There was a quarrel on the night of 9.4.2003
between the accused and his wife after he had returned back
from work. Between 4.00 and 4.30 a.m. some of the servants
B heard a big noise of something bursting followed by or
preceded by someone crying in pain. The servants woke up
and found that the flat of the accused was on fire. There was
utter confusion and chaos. Somebody phoned to the fire
brigade and a fire engine came. The police also followed. The
c door of the flat was open, and it was smoky inside. Strong smell
of petrol was coming from there. The fire was extinguished, and
then only could they enter the bed room, where the four bodies
of the members of the family of the accused viz. his wife, his
son and two daughters were found burnt, and they were dead.
0 The police made an inquiry from the servants and then a report
of murder was lodged by PSI Prakash Shivram Kamble. The
investigation soon started and inquest Panchanama, spot
panchanama etc. were made. The bodies were then sent for
post mortem.
E
6. In their preliminary inquiry, the police found that the
Maruti Zen car of the accused was not there and the accused
was also not there. Attempts were made to trace and search
him, and ultimately the accused was arrested on or near
Kishangadh, Madanganj in Ajmer District in Rajasthan on
F 14.4.2003. The car which the accused was driving was seized,
and so also an amount of Rs.7,68,080/- in cash along with
about 24 silver coins, 7 safari dresses and 7 turbans. A police
officer was deputed from Mumbai and the accused was
brought to Mumbai.
G
H
7. The statement of the accused was recorded under
Section 27 of the Evidence Act and a red bucket from which
he had allegedly thrown petrol on the persons of all the four
members of his family was recovered at his instance:
8. All the material recovered by the police from the spot
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1017
MAHARASHTRA [MARKANDEY KAT JU, J.]
viz. burned clothes, petrol can, bucket, broken glass pieces,
A
etc. were sent to the Chemical Analyzer.
9. In the inquest, it was found that the son of the accused,
Amandeepsingh had certain injuries on his body. Because of
fire, the glass pieces were shattered in the room and one piece
8
was removed from one of the injuries on the stomach of the son.
An expert electrician was called, and he inspected the
premises and opined that there was no short circuit. The AirConditioner's compressor was intact. Post mortem of all the
bodies was conducted and it was found that all the four persons
C
died as a result of burning.
10. During the course of investigation the statements of
relatives of the deceased, neighbours, and the servants of the
accused were recorded. All the seized property was sent to the
Chemical Analyzer for opinion. Thereafter the charge sheet was
D
filed. Separate charges under Section 302 of the Indian Penal
Code was framed against the accused for committing murders
of his wife Kanwaljeet Kaur, his son Amandeepsingh and two
daughters Neeti and Taniya. The accused pleaded not guilty to
the charges. Thereafter, the Additional Sessions Judge,
E
recorded the evidence of the.:.prosecution witnesses. In all 19
witnesses were examined as the prosecution witnesses.
Thereafter the statement of the accused under Section 313 of
the Criminal Procedure Code was recorded. The accused
expressed his desire to examine witnesses in defence of his
F
plea of alibi and, accordingly four witnesses were examined by
the accused. The Additional Sessions Judge heard the
arguments and also took on record the written arguments
submitted by the advocate for the accused and, ultimately came
to the conclusion that the prosecution had proved its case
G
beyond reasonable doubt that the accused committed murders
of all four members of his family. So far as sentence was
concerned, the Additional Sessions Judge came to the
conclusion, after considering the cases cited before him by both
the sides, that this was a rarest of the rare case and imposed
H
penalty of death upon the accused.
1018 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A
11. Two question arise before us (a) is the appellant guilty
of murder? (b) if he is, should he be given the death sentence?
We shall deal with \hese separately.
12. The appellant filed an appeal before the Bombay High
6 Court and the matter was also sent for confirmation for the death
sentence. By the impugned judgment the High Court dismissed
the appeal and upheld the death sentence, and hence this
appeal before us.
ls the appellant guilty of murder ?
c
13. Mr.'Jaspal Singh, learned counsel for the appellant,
first submitted that the appellant was leading a happy married
life for more than 25 years before the incident and hence he
had no motive to kill his wife and 3 children. He submitted that
D the prosecution has not been able to prove any motive, and
motive is important in cases of circumstantial evidence like the
present one
14. This is a case relying entirely on circumstantial
evidence, as there are no eye witnesses of the crime. It is true
E that motive is important in cases of circumstantial evidence, but .
that does not mean that in all cases of circumstantial evidence
if the prosecution has been unable to satisfactorily prove a
motive its case must fail. It all depends on the facts and
circumstances of the case. As is often said, men may lie but
F circumstances do not.
G
H
15. The mother in law of the appellant Smt. Bhagwantkaur
Oberoi, PW5 has stated in her deposition :
..... ."I was having three daughters Kanwaljeetkaur,
Harjeetkaur and Harvinderkaur. Accused before the court
·is my son-in-law. He was married to my daughter
Kanwaljeetkaur 25-26 years before. Accused was residing
along with his wife and children at Sher-a-Punjab colony,
Andheri, Mumbai. Accused came to Mumbai two years
before. The relations between my daughter and accused
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1019
MAHARASHTRA [MARKANDEY KATJU, J.]
were not cordial and their matrimonial life was unhappy due
A
to very angry nature of the accused. I used to go to the
house of my daughter and vice-versa occasionally. There
was talk between me and my daughter Kanwaljeetkaur. I
used to ask my daughter how she is and how her husband
is. At that time, she used to narrate to me that her husband
8
is of very angry nature. She was very unhappy in her
matrimonial life. She was subjected to the cruelty by the
accused. She further told me that accused was behaving
like a dictator. Children of my daughter Kanwaljeetkaur
also used to tell me regarding angry nature of accused.
C
My daughter also told me that accused used to beat her
by leather belt. However, my daughter was behaving with
the accused by way of adaptive nature. Whenever
Kanwaljeetkaur was narrating me regarding ill treatment
and harassment, I used to persuade her. I also told my
daughter Kanwaljeetkaur that she should leave accused
D
and reside separately <.long with her children. As I know
the nature of the accused I never dared to persuade him.
On 19th March, 2003, there was birthday ceremony
of my granason Simarpalsingh. I invited my daughter
E
Kanwaljeetkaur and her family members telephonically to
attend the function at Mira road at my residence.
Kal)waljeetkaur replied on telephone that she is unable to
attend the function as she is busy with some work. After
sometime my daughter Kanwaljeetkaur again made a
telephone call to me and told that at the time of earlier
telephone her husband was present and he quarreled and
F
she along with her children were not allowed to attend the
said function. At that time, Kanwaljeetkaur was crying on
the telephone and while crying she told that she is very
G
unhappy and she may die. I told my other daughter namely
Harjeetkaur to ring Kanwaljeetkaur as there was quarrel
between her and the accused. On that very day, at about
7 p.m. I received a telephonic call from Niti and she told
that her father agreed and accordingly, we are attending
H
A
B
c
D
E
F
G
H
1020 SUPREME COURT RE~RTS [2011] 13 (ADDL.) S.C.R.
the function. Accordingly, Kanwaljeetkaur and accused and
both daughters attended the function. At that time, accused
was under the influence of liquor. While leaving my
residence after the function accused told Kanwaljeetkaur
and her daughters that he will put you all below the running
truck to die.
On 9th April, 2003, at about 11.30 p.m. I received a
telephonic call from the accused from his residence. On
10th April, 2003, at about 6 a.m. I received telephonic call
from Phuldeep~ingh Marva-PW3 regarding fire on the flat
of accused. Accordingly, I went to the place of the incident.
When I reached, I did not find the accused present. When
I reached, four dead bodies were already kept in front of
the flat. I became unconscious noticing the dead bodies.
Police recorded my statement."
16. Phuldeepsingh Marva, PW3 also supported the
prosecution case. His wife and the wife of the appellant were
real sisters. In his deposition he has stated :
.......... ."Before shifting to Mumbai, accused was doing
business at Ludhiana, Punjab in automobile spare parts.
Accused suffered loss in his business at Ludhiana and that
is why he shifted to Mumbai. We were having cordial
relations and we family members used to visit his house
and vice-versa. The relations between accused and his
entire family members were tense. Accused used to
behave with his family members as a dictator. He was not
having cordial relations with his family members. Son and
daughters of the accused did not like the dictatorship of
accused and that is why there were always quarrels
between accused and his family. Accused used to tell me
also that 75% decisions would be mine in my house. I
ifersuaded the accused several times to change his nature.
However, the accused never changed his nature and he
was not ready to reduce his dictatorship.
AJITSINGH HARNAMSINGH GUJRAL v. STATE OF 1021
MAHARASHTRA [MARKANDEY KATJU, J.]
There-was also telephone in the house of accused.
A
On 10th April, 2003, I was at my residence. I received a
telephonic call from the landlord and estate agent of the
accused at about 5.30 to 5.45 a.m. that there is a fire in
the flat of the accused. I along with my wife rushed to the
place of incident in my car. At about 6.30 a.m. I reached
B
the place of incident. When I reached I saw fire brigade
vehicles, police staff, fire brigade staff and four dead
bodies which were kept in front of the flat. I saw all those
four dead bodies. I identified four dead bodies i.e. of
Kanwaljeetkaur, Amandeepsingh, Niti and Taniya. I noticed c
that accused along with his car was not present. Accused
used to park his Zeri car in front of the flat near the gate. I
saw four dead bodies who sustained burn injuries on their
person. I saw the bangles in the wrist of Kanwaljeetkaur. I
also saw a piece of glass in.the body_ of Amandeepsingh
0
near wrist. Article 1 - pair of bangles before the court was
in the hands of Kanwaljeetkaur. Police recorded my
statement."
17. We see no reason to disbelieve PW3 or PW5. from
their testimony it is evident that the appellant was a dictatorial
E
personality, who wanted to dominate over his family and was
also hot tempered. He would even beat pis wife (deceased)
with a leather belt.
18. Mr. Jaspal Singh, learned counsel for the appellant,
F
submitted that if the relations between the accused and his wife
were strained why did his wife Kanwaljeetkaur continue to live
with him for 25 years. In this connection, we have only to point
out that in India many women accept the bad treatment of their
husbands and continue living with them because a girl at.the
G
time of marriage is told by her parents that after marriage her
place is with her husband and she has to accept whatever
treatment she gets from her husband and in- laws. She has to
'nibhao' all treatment after marriage. Hence she continues living
with him even if her husband is a brutish, nasty and loathsome
H
1022 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A person ..