# MOFIL KHAN & ANR v. STATE OF JHARKHAND

- **Citation:** [2014] 10 S.C.R. 812
- **Court:** Supreme Court of India
- **Decided:** 2014-10-09
- **Case number:** Civil Appeal No. 1795 of 2009
- **Bench:** H.L. Dattu, R.K. Agrawal, Arun Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mofil-khan-anr-v-state-of-jharkhand-29518
- **Pages:** 31

## Headnote

SENTENCE/SENTENCING:
Murder - Sentencing policy - Held: The most significant
aspect of sentencing policy is independent consideration of
each case by the Court and extricating a sentence which is
the most appropriate and proportional to the culpability of the
0 accused - Aggregating circumstance,s and mitigating
circumstances, culled out -
The doctrine of "rarest 'of rare"
does not classify murders into categories of heinous or less
heinous - The difference between two is not in the identity of
the principles, but lies in the realm of application thereof to
E individual fact situations - Sentences of severity are imposed
ta reflect the seriousness of the crime, to promote respect for
the law, to provide just punishment for the offence, to afford
adequate deterrent to criminal conduct and to protect the
community from further similar conduct - It serves a threefold purpose- punitive, deterrent and protective -
It is not
F only the victims of crime that require soothing balm, but also
the incidental victims like the family, the co-sufferers and to
a relatively large extent the society too - The judiciary has a
paramount duty to safeguard the rights of the victims as
diligently as those of the perpetrators -
Code of Criminal
G Procedure, 1973 - s.354(3).
H
SENTENCE/SENTENCING:
Murder - Accused person committing murders of 8
812
MOFIL KHAN v. STATE OF JHARKHAND
813
persons of their family - Death sentence by courts below -
A
Held: The time, place and manner of the commission of crime
are indicative of the motive of accused-appellants - They
have ruthlessly and successively butchered their own kith and
kin for obtaining possession of certain pass-book, money and
immovable property without any provocation - Being armed s
with sharp edged weapons, the quick succession with which
the accused-appellants proceeded to slaughter the eight
members of their family classifies their act as pre-planned
and reflects the cold-blooded fashion with which the callous
design was executed - Their lack of remorse is reflected from c
the act of extending threat of life to other members of the
family present in the house should they dare to inform the
police - The mitigating circumstances enumerated, under
which the appellants seek refuge, have failed to convince the
Court - In the considered view of the Court, the "rarest of the
0
rare" case exists when an accused would be a menace, threat
and anti-thetical to harmony in the society - Especially in
cases where an accused does ndt act on provocation, acting
in spur of the moment but meticulously executes a
deliberately planned crime inspite of understanding the
E
probable consequence of his act, the death sentence may be
the most appropriate punishment - Keeping in view the
principle of proportionality of sentence or what it termed as
"just-desert" for the vile act of slaughtering eight lives including
four innocent minors and a physically infirm child whereby an
entire family is exterminated, the depravity of appellant's
offence would attract no lesser sentence than the death
penalty.
Mahesh v. State of Madhya Pradesh, 1987 (2)
F
SCR 710 = (1987) 3 sec 80- relied on.
G
Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), 2013
(9)SCR 1000 = (2014) 4 SCC 375 - held inapplicable.
Jagmohan Singh v. The State of U.P. 1973 (2)
H
814
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A SCR 541= (1973) 1 SCC 20 and Bachan Singh v. State of
Punjab (1980) 2 SCC 684, Machhi Singh and Ors. v. State
of Punjab 1983(3)SCR 413 = (1983) 3 SCC 470, Ajitsingh
Harnamsingh Gujral v.
State of Maharashtra 2011
(13) SCR 1000 = (2011) 14 SCC 401, State of Uttar Pradesh
B v. Sattan @ Satyendra & Ors. 2009 (3) SCR 643 = (2009) 4
SCC 736; Govindasami v. State of Tamil Nadu, 1998 (2)
SCR 1135= (1998) 4 sec 531, Atbir v . ..Govt. (NCT of Delhi),
2010 (9) SCR 993 = (2010) 9 SCC 1, Ajay Kumar Pal v. State
of JharkhC!!J_d, (2010) 12 SCC 118, Shobhit Chamar v. State
C of Bihar 1998 (2) SCR 117 = (1998}- 3 SCC 455, Sunder
Singh v. State of Uttaranc

## Text

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A
8
c
[2014] 10 S.C.R. 812
MOFIL KHAN & ANR.
v.
STATE OF JHARKHAND
(Civil Appeal No. 1795 of 2009)
OCTOBER 9, 2014
[H.L. DATTU, CJI, R.K. AGRAWAL AND
ARUN MISHRA, JJ.]
SENTENCE/SENTENCING:
Murder - Sentencing policy - Held: The most significant
aspect of sentencing policy is independent consideration of
each case by the Court and extricating a sentence which is
the most appropriate and proportional to the culpability of the
0 accused - Aggregating circumstance,s and mitigating
circumstances, culled out -
The doctrine of "rarest 'of rare"
does not classify murders into categories of heinous or less
heinous - The difference between two is not in the identity of
the principles, but lies in the realm of application thereof to
E individual fact situations - Sentences of severity are imposed
ta reflect the seriousness of the crime, to promote respect for
the law, to provide just punishment for the offence, to afford
adequate deterrent to criminal conduct and to protect the
community from further similar conduct - It serves a threefold purpose- punitive, deterrent and protective -
It is not
F only the victims of crime that require soothing balm, but also
the incidental victims like the family, the co-sufferers and to
a relatively large extent the society too - The judiciary has a
paramount duty to safeguard the rights of the victims as
diligently as those of the perpetrators -
Code of Criminal
G Procedure, 1973 - s.354(3).
H
SENTENCE/SENTENCING:
Murder - Accused person committing murders of 8
812
MOFIL KHAN v. STATE OF JHARKHAND
813
persons of their family - Death sentence by courts below -
A
Held: The time, place and manner of the commission of crime
are indicative of the motive of accused-appellants - They
have ruthlessly and successively butchered their own kith and
kin for obtaining possession of certain pass-book, money and
immovable property without any provocation - Being armed s
with sharp edged weapons, the quick succession with which
the accused-appellants proceeded to slaughter the eight
members of their family classifies their act as pre-planned
and reflects the cold-blooded fashion with which the callous
design was executed - Their lack of remorse is reflected from c
the act of extending threat of life to other members of the
family present in the house should they dare to inform the
police - The mitigating circumstances enumerated, under
which the appellants seek refuge, have failed to convince the
Court - In the considered view of the Court, the "rarest of the
0
rare" case exists when an accused would be a menace, threat
and anti-thetical to harmony in the society - Especially in
cases where an accused does ndt act on provocation, acting
in spur of the moment but meticulously executes a
deliberately planned crime inspite of understanding the
E
probable consequence of his act, the death sentence may be
the most appropriate punishment - Keeping in view the
principle of proportionality of sentence or what it termed as
"just-desert" for the vile act of slaughtering eight lives including
four innocent minors and a physically infirm child whereby an
entire family is exterminated, the depravity of appellant's
offence would attract no lesser sentence than the death
penalty.
Mahesh v. State of Madhya Pradesh, 1987 (2)
F
SCR 710 = (1987) 3 sec 80- relied on.
G
Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), 2013
(9)SCR 1000 = (2014) 4 SCC 375 - held inapplicable.
Jagmohan Singh v. The State of U.P. 1973 (2)
H
814
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A SCR 541= (1973) 1 SCC 20 and Bachan Singh v. State of
Punjab (1980) 2 SCC 684, Machhi Singh and Ors. v. State
of Punjab 1983(3)SCR 413 = (1983) 3 SCC 470, Ajitsingh
Harnamsingh Gujral v.
State of Maharashtra 2011
(13) SCR 1000 = (2011) 14 SCC 401, State of Uttar Pradesh
B v. Sattan @ Satyendra & Ors. 2009 (3) SCR 643 = (2009) 4
SCC 736; Govindasami v. State of Tamil Nadu, 1998 (2)
SCR 1135= (1998) 4 sec 531, Atbir v . ..Govt. (NCT of Delhi),
2010 (9) SCR 993 = (2010) 9 SCC 1, Ajay Kumar Pal v. State
of JharkhC!!J_d, (2010) 12 SCC 118, Shobhit Chamar v. State
C of Bihar 1998 (2) SCR 117 = (1998}- 3 SCC 455, Sunder
Singh v. State of Uttaranchal 2010 (11) SCR 927 = (2010) 10
SCC 611, C. Muniappan v. State of T.N., 2010 (10) SCR 262
= (2010) 9 SCC 567, Jagdish v. State of M.P. 2009 (14)
SCR 727 = (2009) 9 SCC 495, Prajeet Kumar Singh v. State
D of Bihar 2008 (5) SCR 969 = (2008) 4 SCC 434, Ram
Singh v. Sonia, 2007 (2) SCR 651 = (2007) 3 SCC 1, Holiram
Bordoli v. State of Assam 2005 (3) SCR 406 = (2005) 3 SCC
793, Saibanna v. State of Karnataka 2005 (3) SCR 760 =
(2005) 4 SCC 165, Karan Singh v. State of U.P., (2005) 6
SCC 342, State of Rajasthan v. Kheraj Ram, 2003
E (2) Suppl. SCR 861 =
(2003)
8
sec
224, Om
Prakash v. State of Uttarancha/, 2002 (4) Suppl. SCR 623 =
(2003) 1 SCC 648, Praveen Kumar v. State of Karnataka,
(2003) 12 SCC 199, Suresh v. State of U.P.; 2001
(2) SCR 263 = (2001) 3 SCC 673, Ramdeo Chauhan v. State
F of Assam, 2000 (2) Suppl. SCR 28 = (2000) 7 SCC
455, Narayan Chetanram Chaudhary v. State of Mahrashtra,
2000 (3) Suppl. SCR 104 = (2000) 8 sec 457 I State of
U.P. v. Dharmendra Singh 1999 (3) Suppl. SCR 52 = (1999)
8 SCC 325, Ronny v. State of Mahrashtra 1998 (2) SCR 162 =
G (1998) 3 SCC 625, Surja Ram v. State of Rajasthan, 1996 (6)
Suppl. SCR 783 = (1996) 6 SCC 271, Haresh Mohandas
Raj put v. State of Maharashtra 2011 (14) SCR 921 = (2011)
12 SCC 56, Rabindra Kumar Pal alias Dara Singh v. Republic
of India 2011 (6) SCR 1104 = (2011) 2 SCC 490, Surendra
H
MOFIL KHAN v. STATE OF JHARKHAND
815
Kofi v. State of UP. and Ors. 2011 (2) SCR 939 = (2011) 4
A
SCC 80 and Sudam @ Rahul Kaniram Jadhav v. State of
Maharashtra, 2011 (6) SCR 1104= (2011) 7 SCC 125, Birju
V. State of M.P. 2014 (1) SCR 1047= (2014) 3 sec 421;
Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4
SCC 292; Sushi/ Sharma v. The State of N. C. T. of Delhi,
B
(2014) 4 SCC 317; Anil@ Anthony Arikswamy Joseph v.
State of Maharashtra, 2014 (3) SCR 34 = (2014) 4 SCC 69;
State of Maharashtra v. Goraksha Ambaji Adsul, 2011
(9) SCR 41 = (2011) 7 SCC 437; Brajendrasingh v. State of
Madhya Pradesh, 2012 (3) SCR 599= (2012) 4 SCC 289, c
Dhananjoy Chatterjee @ Dhanna v. State of West Bengal
1994 (1) SCR 37 = (1994) 2 SCC 220, Rattan Singh v. State
of Punjab 1980 (1) SCR 846= (1979) 4 SCC 719, Sevaka
Perumal v. State of T. N. 1991 (2) SCR 711 = (1991) 3 SCC
471 - referred to.
Case Law Reference:
1973 (2) SCR 541
referred to
para 17
(1980) 2 sec 684
referred to
para 17
1983(3) SCR 413
referred to
para 17
2011 (13) SCR 1000
referred to
para 21
2009 (3) SCR 643
referred to
para 22
1998 (2) SCR 1135
referred to
para 23
2010 (9) SCR 993
referred to
para 24
(2010) 12 sec 118
referred to
para 25
1998 (2) SCR 117
referred to
para 26
2010 (11) SCR 927
referred to
para 27
2010 (10) SCR 262
referred to
para 28
2009 (14) SCR 727
referred to
para 29
D
E
F
G
H
816
SUPREME COURT REPORTS
[2014) 10 S.C.R.
A
2008 (5) SCR 969
referred to
para 30
2007 (2) SCR 651
referred to
para 31
2005 (3) SCR 406
referred to
para 32
B
2005 (3) SCR 760
referred to
para 33
(2005) 6 sec 342
referred to
para 34
2003 (2) Suppl. SCR 861 referred to
para 35
c
2002 (4) Suppl. SCR 623 referred to
para 36
(2003) 12 sec 199
referred to
para 37
2001 (2) SCR 263
referred to
para 38
2000 (2) Suppl. SCR 28
referred to
para 39
D
2000 (3) Suppl. SCR 104 referred to
para· 40
1999 (3) Suppl. SCR 52
referred to
para 41
1998 (2) SCR 162
referred to
para 42
E
1996 (6) Suppl. SCR 783 referred to
para 43
2011 (14) SCR 921
referred to
para 44
2011 (6) SCR 1104
referred to
para 44
F
2011 (2) SCR 939
referred to
para 44
2013 (9) SCR 1000
held
para 47
inapplicable
2014 (1) SCR 1047
referred to
para 48
G
(2014) 4 sec 292
referred to
para 49
(2014) 4 sec 317
referred to
para 50
2014 (3) SCR 34
referred to
para 51
H
MOFIL KHAN v. STATE OF JHARKHAND
817
2011 (9) SCR 41
referred to
para 52
2012 (3) SCR 599
referred to
para 53
1994 (1) SCR 37
referred to
para 57
1980 (1) SCR 846
referred to
para 58
1987 (2) SCR 710
relied on
para 60
1991 (2) SCR 711
referred to
para 61
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1795 of 2009.
From the Judgment & Order dated 02.07.2009 of the High
Court of Jharkhand in Death Reference No. 01 of 2008 with
Criminal Appeal No. (DB) No. 1103 of 2008.
Bimal Roy Jad (AC.) for the Appellants.
Ratan Kumar Choudhari, Jayesh Gaurav for the
Respondent.
The Order of the Court was delivered
ORDER
A
B
c
D
E
1. This appeal is directed against the judgment and order
passed by the High Court of Jharkhand at Ranchi in Death
Reference No. 01 of 2008 and Criminal Appeal (DB) Nos. 1103
F
of 2008, dated 02.07 J009. By the impugned judgment and
order, the High Court.has confirmed the judgment of conviction,
dated 01.08.2008 passed by the District and Sessions Judge,
Lohardaga in Sessions Trial No. 128 of 2007, whereby and .
whereunder the learned Sessions Judge has convicted the two
G
accused-appellants and two others for offence under Sections
302 and 449 read with Section 34 of Indian Penal Code, 1860
(for short, "the IPC"). The High Court while confirming the order
of death sentence, dated 05.08.2008 passed by the Trial Court
H
818
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A in respect of the accused-appellants, has thought it fit to modify
the sentence awarded to the other two accused persons,
Saddam Khan and Wakil Khan, to life imprisonment.
2. At the outset, the learned amicus, Shri Bimal Roy Jad,
8 appearing for the two accused-appellants has only assailed the
order of sentence passed by the Trial Court and confirmed by
the High Court and restricted his arguments to the quantum of
punishment awarded. Therefore, the scope of this appeal is
restricted to the determination of appropriate sentence that
C requires to be awarded to the accused-appellants. Further,
since other accused persons in the instant case are not in
appeal before us, the discussions hereinafter would be confined
to the fact relevant for the disposal of present appeal.
3. The prosecution case in brief is, on 06.06.2007 at about
D 8:30 p.m., one Haneef Khan (referred to as "the deceased"
hereafter) was offering Namaz in the mosque at village
Makandu, Jharkhand. The accused-appellants and others, who
are none other than the deceased's brothers and nephews,
approached him and started assaulting him with sharp-edged
E weapons such as sword, tangi, bhujali and spade. The
deceased succumbed to the injuries inflicted by the accused
persons. Leaving the deceased at the spot, the accusedappellants and others proceeded towards the house of
deceased where, upon hearing the cries of their father, the
F deceased's sons Gufran Khan @ Pala and lmran Khan had
come out on the street. The accused-appellants assaulted the
two unarmed brothers with the aforesaid weapons due to which
the two brothers collapsed and. died in front of their house.
Thereafter, the accused-appellants and others entered the
G house of the deceased and committed murder of Kasuman
Bibi, wife of the deceased and his four sons, namely, Anish
Khan (aged about 5 years), Danish Khan (aged about 8 years),
Yusuf Khan (physically disabled and aged about 18 years) and
Maherban Khan (aged about 1 Z years). After committing murder
H pfthe six persons, the accused-appellants threatened other
MOFIL KHAN v. STATE OF JHARKHAND
819
members of the household including their mother, Jainub
A
Khatoon (PW-2) of meeting the same fate if they inform the
police about the incident and thereafter left the house taking
away certain documents relating to the lands, Pass-book,
jewellery etc.
4. On 07.06.2007, at about 6:00 a.m., father of the
deceased, Gaffar Khan (PW-1) upon being informed reached
B
the village and saw the dead body of the deceased lying at the
mosque, the dead bodies of his grand sons, namely, Gufran
Khan @Pala and lmran Khan were lying in front of the house c
and the dead-bodies of his daughter-in-law, Kasuman Bibi and
her four sons were lying inside the house. There he was
informed by his wife- PW2 of the manner in which the accusedappella nts alongwith others had committed the offence.
Meanwhile, Chowkidar of Village had informed the Police of 0
the incident telephonically, upon which sanha was entered on
the station diary and the officer in-charge, Shambhu Nath Singh
(PW-13), reached the place of occurrence and recorded the
fardbeyan of the informant, PW-1. Thereafter, P.S. Case No.
80 of 2007was registered and an FIR was drawn. The police
E
authorities carried out the investigation and held inquest on the
bodies of the eight deceased persons and prepared inquest
rep()rts, whereafter, the dead-bodies were sent for post mortem
examination. During further investigation, the investigating
officer found blood smeared earth at all the three places of
occurrence, and recovered a plastic mat smeared with blood
F
at the mosque and blood smeared tangi from the house of
another accused person-Kariman Khan @ Kari Khan and
seized them as exhibits.
5. The genesis of the incident has been traced to a
G
property dispute between accused-appellants and the
deceased.
6. On completion of the investigation, the charges were
H
820
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A framed against the accused-appellants and others. The
accused-appellants had denied their guilt and thus, the case
was committed to trial.
7. The prosecution has examined 13 witnesses including
8 eye-witness, PW-2. They have also tendered by way of
documentary evidence Exhibit 1 to 9/5 (sic) and also has
marked Material objects 'I' and 'II' while the defence has
examined 4 witnesses and marked Exhibit 'A' to 'E' as
evidence.
c
8. PW-1 is the father of deceased-Haneef Khan and the
accused-appellants. Though not an eye-witness to the incident,
he has testified in respect of the genesis of the dispute
between parties and supported the version of PW-2. PW-2 is
the mother of deceased-Haneef Khan and was present in the
D house in another room during the occurrence of the incident and
hence is an eyewitness. She has deposed in respect of the
sequence of occurrence on the fateful night, the identification
of the accused-appellants and genesis of the dispute between
parties. PW-3 and PW-6 are independent witnesses who were
E offering Namaz at the mosque during the incident and PW-5
is the Imam of the mosque who also witnessed the incident.
Their testimony supports the prosecution case in respect of the
accused-appellants indiscriminately assaulting the deceasedHaneef Khan with sword and bhujali. PW-4 is a resident of the
F same village and has testified that the accused-appellants were
present in the village on the fateful night and did not take part
in the marriage proceedings held in another village where other
villagers including PW-1 were present. PW-7, neighbor of
deceased-Haneef Khan, has corroborated the prosecution
G version in respect of the accused-appellants assaulting the
deceased's two sons in front of his house with sword and
bhujali. PW-8, the medical practitioner who conducted post
mortem of the dead bodies has testified to the cause of death
being shock and hemorrhage of vital organs like brain due to
H injuries sustained by the deceased persons.
MOFIL KHAN v. STATE OF JHARKHAND
821
9. In their defense, the accused-appellants have denied the
A
charges against them.
10. The Trial Court after marshalling of facts and thorough
scrutiny of evidence on record has concluded that the accusedappellants, armed with sword and bhujali, alongwith other
8
persons had entered into the mosque and assassinated the
deceased, killed his two sons in front of his house and then
entered the house where they assaulted his wife and four
minors including a physically challenged child leading to their
death. The Court has further rejected the defense pleaded by C
the accused-appellants and established their presence in the
village on the fateful night in view of PW-4's testimony. Further,
the Court has found the testimony of the sole eye-witness, PW2, credible and trustworthy. Therefore, in light of the motive of
the accused-appellants being clear from the record, the
0
apparent pre-meditation of successive murders and their
choice of the day of execution of the said merciless plan when
residents of the village had left for another village to attend a
wedding, the Court has concluded the guilt of the accusedappellants in killing the eight persons and convicted them for
E
offence under Sections 302 and 449 read with 34 of IPC. While
sentencing them, the Trial Court has recorded the aggravating
and mitigating circumstances for awarding death sentence.
11. Aggrieved by the aforesaid judgment and order, the
accused-appellants along with two others had approached the
F
High Court in Criminal Appeal (D.B.) No. 1103 of 2008.
12. The High Court after carefully analyzing the evidence
on record has come to the conclusion that the Trial Court has
not committed any error in convicting and sentencing the
G -
appellants and accordingly has confirmed the judgment and
order of the Trial Court insofar as the appellants are concerned.
However, the High Court has modified the sentence of other
two accused persons from death sentence to imprisonment for
I~.
H
i
822
SUPREME COURT REPORTS
[2014) 10 S.C.R.
A
13. Aggrieved by the aforesaid conviction and sentence,
the accused-appellants are before us in this appeal.
14. The learned amicus for the appellants would confine
his arguments only to the question of sentence. He would submit
8
that neither do the appellants have any criminal antecedents nor
are they hardened criminals. He would contend that the
appellants are middle-aged and have a family and old aged
parents-PW-1 and PW-2 and sentencing them to death would
devastate the said dependents. He would further submit that
C there is a possibility of reformation of the appellants and they
must not be deprived of their life, but be provided with an
opportunity to reform themselves especially when they have a
considerable life-span ahead.
15. Learned counsel for the State ably justifies the judgment
D and order passed by the High Court.
16. We have given our anxious consideration to the
evidence on record and the submissions put forth by both the
learned counsel. We have carefully perused the judgments and
E orders of the Courts below.
17. The awarding of death penalty has been a matter of
serious academic and judicial debate to discern an objective
and rational basis for the exercise of the power and to evolve
F sound jurisprudential principles governing the exercise thereof.
In this regard the Constitution Bench decision of this Court in
Jagmohan Singh v. The State of U.P. (1973) 1 SCC 20 and
Bachan Singh v. State of Punjab (1980) 2 SCC 684, a three
Judge Bench decision in Machhi Singh and Ors. v. State of
G Punjab (1983) 3 sec 470, are the leading cases wherein
certain principles in the matter of sentencing has been evolved
by this Court. The broad principles tailored by this Court in its
judgments provide guidelines to ensure that the discretion
vested in the Court is not unbridled.
H
18. This Court in the aforesaid decisions has evolved the
MOFIL KHAN v. STATE OF JHARKHAND
823
doctrine of "rarest of the rare" case and put it to test via the
A
medium of charting out the aggravating and mitigating
circumstances in a case and then balancing the two in the facts
and circumstances of the case. As a norm, the most significant
aspect of sentencing__policy is independent consideration of
each case by the Court and extricating a sentence which is the
B
most appropriate and proportional to the culpability of the
accused. It may not be apposite for the Court to decide the
quantum of sentence with reference to one of the classes under
any one of the head while completely ignoring classes under
other head. That is to say, what is required is not just the
C
balancing of these circumstances by placing them in separate
compartments, but their cumulative effect which the Court is
required to keep in its mind so as to better administer the
criminal justice system and provide an effective and meaningful
reasoning by the Court as contemplated under Section 354(3)
D
Code while sentencing. The following broad heads have been
culled out by the successive judgments of this Court:
"Aggravating Circumstances:
1. The offences relating to the commission of heinous
crimes like murder, rape, armed dacoity, kidnapping etc.
by the accused with a prior record of conviction for capital
felony or offences committed by the person having a
substantial history of serious assaults and criminal
convictions.
2. The offence was committed while the offender was
engaged in the commission of another serious offence.
E
F
3. The offence was committed with the intention to create
a fear psychosis in the public at large and was committed
G
in a public place by a weapon or device which clearly
could be hazardous to the life of more than one person.
4. The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
H
824
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A
5. Hired killings.
B
c
D
E
6. The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
7. The offence was committed by a person while in lawful
custody.
8. The murder or the offence was committed, to prevent a
person lawfully carrying out his duty like arrest or custody
in a place of lawful confinement of himself or another. For
instance, murder is of a person who had acted in lawful
discharge of his duty under Section 43 Code of Criminal
Procedure.
9. When the crime is enormous in proportion like making
an attempt of murder of the entire family or members of a
particular community.
10. When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a child,
helpless woman, a daughter or a niece staying with a
father/uncle and is inflicted with the crime by such a trusted
person.
11. When murder is committed for a motive which
evidences total depravity and meanness.
F
12. When there is a cold blooded murder without
provocation.
13. The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even the
G
conscience of the society.
Mitigating Circumstances:
1. The manner and circumstances in and under which the
offence was committed, for example, extreme mental or
H
emotional disturbance or extreme provocation in
MOFIL KHAN v. STATE OF JHARKHAND
825
contradistinction to all these situations in normal course.
A
2. The age of the accused is a relevant consideration but
not a determinative factor by itself.
3. The chances of the accused of not indulging in
commission of the crime again and the probability of the
accused being reformed and rehabilitated.
4. The condition of the accused shows that he was
mentally defective and the defect impaired his capacity to
appreciate the circumstances of his criminal conduct.
5. The circumstances which, in normal course of life, would
render such a behavior possible and could have the effect
of giving rise to mental imbalance in that given situation
like persistent harassment or, in fact, leading to such a
peak of human behavior that, in the facts and
circumstances of the case, the accused believed that he
was morally justified in committing the offence.
6. Where the Court upon proper appreciation of evidence
is of the view that the crime was not committed in a preordained manner and that the death resulted in the course
of commission of another crime and that there was a
possibility of it being construed as consequences to the
commission of the primary crime.
7. Where it is absolutely unsafe to rely upon the testimony
B
c
D
E
F
of a sole eye-witness though prosecution has brought
home the guilt of the accused. While determining the
questions relateable to sentencing policy, the Court has to
follow certain principles and those principles are the
G
loadstar besides the above considerations in imposition
or otherwise of the death sentence.
Principles:
1. The Court has to apply the test to determine, if it was
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826
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A
the 'rarest of rare' case for imposition of a death sentence.
2. In the opinion of the Court, imposition of any other
punishment, i.e., life imprisonment would be completely
inadequate and would not meet the ends of justice.
B
c
D
3. Life imprisonment is the rule and death sentence is an
exception.
4. The option to impose sentence of imprisonment for life
cannot be cautiously exercised having regard to the nature
and circumstances of the crime and all relevant
circumstances.
5. The method (planned or otherwise) and the manner
(extent of brutality and inhumanity, etc.) in which the crime
was committed and the circumstances leading to
commission of such heinous crime."
19. We remind ourselves that the doctrine of "rarest of rare"
does not classify murders into categories of heinous or less
heinous. The difference between two is not in the identity of the
E principles, but lies in the realm of application thereof to
individual fact situations. Sentences of severity are imposed to
reflect the seriousness of the crime, to promote respect for the
law, to provide just punishment for the offence, to afford
adequate deterrent to criminal conduct and to protect the
F community from further similar conduct. It serves a three-fold
purpose- punitive, deterrent and protective.
20. Before proceeding to discuss the fact situation in the
instant case, it would be expedient to briefly visit the judicial
G decisions of this Court on sentencing policy in cases wherein
the entire family has been exterminated and where the accused
persons plead for lesser sentence on grounds of age, lack of
criminal antecedents and existence of dependents such as
children or old aged parents or seeks commutation indicating
H probability of reformation and rehabilitation.
MOFIL KHAN v. STATE OF JHARKHAND
827
21. In Ajitsingh Harnamsingh Gujral v. State of A
Maharashtra, (2011) 14 sec 401. the accused was convicted
under Section 302 of IPC for murder of his wife, one son and
two daughters by burning. This Court awarded him
death sentence classifying the case as rarest of rare. It
observed that burning living persons to death is horrible act
B
causing excruciating pain to the victim. The person in the
position of trust instead of doing his duty of protecting his family
has killed them in a cruel and barbaric manner, thus eliminating
possibility of being reformed or rehabilitated.
c
22. In State of Uttar Pradesh v. Sattan @ Satyendra &
Ors. (2009) 4 sec 736, the accused had committed the
murder of six members of family including helpless women and
children in brutal, diabolic and beastly manner. This Court held
that the crime is enormous in proportion and shocks
0
conscience of Court. The Court observed that the depraved
acts of accused call for only one sentence, that is the
death sentence.
23. In Govindasami v. State of Tamil Nadu, (1998) 4 SCC
531, the accused committed five murders for which he was
E
acquitted by the Trial Court but convicted and sentenced to
death by the High Court. This Court in appeal confirmed the
sentence and held, that, the brutal manner of wiping out the
entire family of his uncle (except one son studying in
Coimbatore escaping) by appellant to grab his properties
shocks judicial conscience and no lesser sentence is
appropriate.
F
24. Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1, is a
case where the accused had committed murder of step
G
relatives to grab entire family property. This Court held that
though the accused was 25 years old at the relevant point of
time, considering his hunger and lust for property, killing his own
(step) family members by trapping them within closed doors
when they were helpless and unarmed and had no occasion
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828
SUPREME COURT REPORTS
[2014] 10 S.C.R. -
A to provoke or resist has brutally and mercilessly caused 37 knife
blows on vital parts of all three victims until each one had died;
such act of barbarism calls for no sentence lesser than the
death sentence.
8
25. Similarly, in Ajay Kumar Pal v. State of Jharkhand,
(2010) 12 sec 118, the domestic servant had laced the food
with pesticide and assaulted the inmates with sharp-edged
weapons and thereafter had set the house on fire. This Court
held that murder of three persons without sudden provocation
C wiping out almost entire family involved preparation and preplanned execution and thus calls for imposition of death
penalty.
26. In Shobhit Chamar v. State of Bihar, (1998) 3 SCC
455, two accused were before this Court for committing dacoity
D and murder of all six male members of a family including two
minor children. While for one accused evidence of wieldfng any
specific weapon could not be produced by the prosecution, use
of firearm and presence of motive was proved by the
prosecution for the other accused. This Court considering
E former accused was not related to latter had commuted the
death sentence of former and confirmed the death penalty of
the latter accused.
27. In Sunder Singh v. State of Uttaranchal (2010) 10
F SCC 611, in the incident five persons lost their lives while the
sole surviving lady survived with 70% burn injuries. Therein, the
accused had arrived at the spot well prepared carrying jerry
cans containing petrol, sword, pistol with two bullets indicating
pre-meditation. The murder was committed in a cruel,
G grotesque and diabolical manner by closing the door of the
house evidencing that the accused actually intended to burn all
the persons inside the room. In absence of any mitigating
circumstance weighing in favor of the accused, the death
sentence was upheld.
H
MOFIL KHAN v. STATE OF JHARKHAND
829
28. In C. Muniappan v. State of T.N., (2010) 9 SCC 567,
A
three helpless, innocent, unarmed, girl students had died and
20 received burn injuries by burning of the bus bY three
members of an unlawful assembly engaged in road blocking
in a public demonstration. This Court held that it was one of
the rarest of rare cases, indicating prior planning, lack of
B
provocation and certainly one where the accused would be a
menace and threat to the harmonious and peaceful coexistence of the society and hence the death sentence was the
most appropriate punishment.
29. In Jagdish v. State of M.P.,(2009) 9 SCC 495, the
accused had murdered his wife and five children (aged 1 to
c
16 years) in his own house. The murders were particularly
horrifying as the assailant was in a dominant position and a
position of trust as the head of the family. This Court held that
0
the balance sheet of aggravating and mitigating circumstances
was heavily weighed against the assailant making it a rarest
of rare case and hence, the award of death sentence was
confirmed.
30. In Prajeet Kumar Singh v. State of Bihar, (2008) 4
sec 434, the accused, who was a paying guest for a
continuous period of four years in lieu of a paltry sum of Rs.500/
- for food and meals, had brutally killed three innocent and
defenseless children aged 8, 15 and 16, attempted to murder
the father (informant) and mother who survived the attack with
multiple injuries. In lack of provocation or motive for committing
this ghastly act at a time when the children were sleeping and
presence of several incised wounds caused to the deceased,
this Court held that the murders were brutal, diabolic, inhuman
E
F
in nature and considering the enormity of the crime held that
G
the mindset of the accused could not be said to be amenable
to any reformation and sentenced him to death.
31. Ram Singh v. Sonia, (2007) 3 SCC 1 involved facts
where a married couple murdered the wife's father, mother,
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830
SUPREME COURT REPORTS
[2014) 10 S.C.R.
A sister, step brother and his whole family including three young
ones of 45 days, 2 Y:z years and 4 years with the motive of
resisting her father from giving property to her step brother and
his family. This Court held that since the murders were
committed in a cruel, pre-planned and diabolic manner while
B the victims were sleeping, without any provocation from the
victim's side, it could be concluded the accused persons did
not possess any basic humanity and lacked the psyche or
mindset amenable to any reformation and therefore, the case
fell within the category or rarest of rare cases for imposition of
C death penalty.
32. In Holiram Bordoli v. State of Assam, (2005) 3 SCC
793, the accused persons, armed with lathis and other
weapons, had come to the house of the victim and started
0
pelting stones on the bamboo wall of the said house.
Thereafter, they closed the house from the outside and set the
house on fire. When the son, daughter and the wife of the victim
somehow managed to come out of the house, the accused
persons caught hold of them and threw them into the fire again.
E Thereafter, the elder brother who was staying in another house
at some distance from the house of the victim was caught and
dragged to the courtyard of the accused where the accused cut
him into pieces. It was held that even in absence of any strong
motive and lack of provocation, the offence was committed in
F the most barbaric manner to deter others from challenging the
supremacy of the accused in the village and therefore,
imposition of death penalty was found fit.
33. In Saibanna v. State ofKamataka, (2005) 4 SCC 165,
the accused had pre-planned the murder of his second wife and
G daughter age~round one year when the victims were sleeping
by usin9 a hunting knife Oambia) which is not ordinarily available
in a house at the time when he was out on parole. The Court
found no justified reasons for any extenuating circumstances
in favour of the accused, thus placing the case under the 'rarest
H
MOFIL KHAN v. STATE OF JHARKHAND
831
of rare case' category and justifying imposition of death
A
sentence.
34. In Karan Singh v. State ofU.P., (2005) 6 SCC 342,
the two appellants chased the three deceased persons involved ·
with them in a property dispute and butchered them with axes
B
and other weapons in a barbaric manner. Thereafter, they had
entered their house and killed two children with the sole intention
to exterminate the entire family. The Court held that it was a
'rarest of the rare' case and sentenced the appellants to death.
35. State of Rajasthan v. Kheraj Ram, (2003) 8 SCC224 .· C
is the unfortunate case where the accused deliberately planned
and executed his two innocent children, wife and brother-in-law
when they were steeping at night. The Court noticed that there
was no remorse for such a gruesome act which was indicated
by the calmness with which he was smoking "chilam" after .the
D
commission of the act. The incident being pre-planned, after
analyzing the entire chain of events and circumstances, the .
inevitable conclusion was reached that the accused acted in a
most cruel and inhuman manner and the murder was committed
in an extremely brutal, grotesque, diabolical, revolting and
E
dastardly manner.
·
36. In Om Prakash v. State of Uttaranchal, (2003) 1 SCC
648, the accused was a domestic servant who killed three
members and attempted to kilt the fourth member of
F
the family of his employer in order to take revenge for the
decision· to dispense with his service and to commit robbery.
The death sentence was upheld.
37. In Praveen Kumarv. State of Kamataka, (2003) 12
G
sec 199, the accused was accommodated in the houseby one
of the victims, his aunt, despite her large family, and she gave
him an opportunity to make an honest living as a tailor. The
accused committed the pre-planned, cold-blooded murders of
relatives and well wishers including one young child while they
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832
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A were asleep. After the commission of the crime the accused
absconded from judicial custody for nearly four years, indicating
that possibility of any remorse or rehabilitation is none. This
Court has held that the extreme penalty of death was justified.
B
38. In Suresh v. State ofU.P., (2001) 3 SCC 673, the brutal
murder of one of the accused's brother and his family members
including minor children at night when they were fast asleep with
axe and chopper by cutting their skulls and necks for a piece
of land was considered to be a grotesque & diabolical act,
C where any other punishment than the death penalty was
unjustified.
39. In Ramdeo Chauhan v.State of Assam, (2000) 7 SCC
455, the accused committed a pre-planned cold-blooded brutal
murder of four inmates of a house including two helpless
D women and a child aged 2 % years during their sleep with a
motive to commit theft. The accused also attacked with a spade
another inmate of the house, an old woman, and a neighbour
when they entered the house. The Court held that the young age
(22 years) of the accused at the time of committing the crime
E was not a mitigating circumstance, and death penalty was a
just and proper punishment.
40. In Narayan Chetanram Chaudhary v. State of
Mahrashtra, (2000) 8 SCC 457, there was a pre-planned,
F
calculated, cold-blooded murder of five women, including one
pregnant woman and two children of about 2 years of.age, all
inmates of a house, in order to wipe out all evidence of robbery
and theft committed by two accused in the house at a time
when male members of the house were out. It was held that the
G young age (20-22 years) of the accused persons cannot serve
as a mitigating circumstance.
41. In State ofU.P. v. Dharmendra Singh, (1999) 8 SCC
325, 5 persons were murdered, an old man of 75 years, a
H woman aged 32 years, two boys aged 12 years and a girl aged
MOFIL KHAN v. STATE OF JHARKHAND
833
15 years, at night when they were asleep by inflicting multiple
A
injuries to wreak vengeance. This Court held that the ghastly
and barbaric murder can be termed as rarest of the rare case
and death penalty was just for such a diabolic act. .
42. In Ronny v. State of Mahrashtra, (1998) 3 SCC 625,
B
the accused was the nephew of the deceased, and because
of the relationship he gained access inside the house for
himself and his friends. The victims were unarmed and the
crime was committed for gain i.e. to rob the valuables of the
deceased family. The accused then killed all three members c
and then committed rape on the lady who was the wife of his
maternal uncle and as old as his mother. Considering the facts
of the case this Court held that it cannot be said that the
offences were committed under the influence of extreme mental
or emotional disturbance as everything was done in a
0
preplanned way, and hence death penalty was upheld.
43. Surja Ram v. State of Rajasthan, (1996) 6 SCC 271
was a case where the dispute between the appellant and the
deceased only related to erecting a barbed fence on a portion
of the residential complex. The appellant in pursuance of the
E
same had murdered his bother, his two minor sons and an aged
aunt by cutting their neck with a kassi while they were all
sleeping and also attempted to murder his brother's wife and
daughter but they survived with serious injuries.
The death sentence was held to be justified.
F
44. In Haresh Mohandas Rajput v. State of Maharashtra,
(2011) 12 SCC 56, Rabindra Kumar Pal alias Dara Singh v.
Republic of India, (2011) 2 SCC 490, Surendra Kofi v. State
of U.P. and Ors., (2011) 4 sec 80 and Sudam@ Rahul
G
Kaniram Jadhav v. State of Maharashtra, (2011) 7 SCC 125,
this Court has opined that the death sentence must be awarded
where the victims are innocent children and helpless women,
especially when the crime is committed in a most cruel and
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[2014] 10 S.C.R.
A inhuman manner which is extremely brutal, grotesque, diabolical
and revolting.
45. The crime test, criminal test and the "rarest of the rare"
test are certain tests evolved by this Court. The tests basically
8 examine whether the society abhors such crimes and whether
such crimes shock the conscience of the society and attract
intense and extreme indignation of the community.