Holding

The conviction under Section 302 IPC stands, but the death sentence is not justified as the case does not meet the 'rarest of rare' standard, and the sentence is commuted to life imprisonment.

Summary

The appellant, Dharmendrasinh, was convicted of murdering his two sons. The prosecution relied primarily on the ocular testimony of his wife, who described the incident in detail, and was corroborated by a neighbour. The defence challenged the credibility of the wife’s testimony, the contradiction regarding where the FIR was lodged, the absence of direct evidence of the appellant’s presence at the scene, alleged discrepancies in medical evidence, and claimed the appellant suffered from mental illness. The Supreme Court held that the wife’s testimony remained reliable despite minor inconsistencies, that the FIR‑lodging discrepancy did not vitiate the prosecution case, and that no evidence proved insanity. Applying the "rarest of rare" doctrine, the Court found the murder, though heinous, did not merit death; consequently, the death sentence was commuted to life imprisonment while the conviction was upheld.

Issues considered

The credibility of the wife’s (PW‑3) testimony despite contradictions and investigative lapses
The effect of the contradiction concerning the lodging of the FIR on the prosecution case
Whether the appellant’s presence at the scene was sufficiently proved
The significance of the discrepancy between oral and medical evidence regarding the weapon
Whether the appellant suffered from mental illness or insanity and if it was proved
Whether the case qualifies as a 'rarest of rare' warranting the death penalty

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 162
Indian Penal Code, 1860s. 302

Subjects

murderIPC 302death penaltyrarest of rare doctrinewitness credibilityFIR contradictionmental illnesslife imprisonmentevidentiary reliabilitycriminal procedure

Judgment

DHARMENDRASINH@ MANSING RATANSINH A
v.
STATE OF GUJARAT

APRIL 17, 2002

[DORAISWAMY RAJU AND BRIJESH KUMAR, JJ.] B

- Penal Code, I 860 : Section 302:
Murder-Husband suspecting fidelity of wife-Committing murder of
his two sons-Testimony of wife-Vivid description of occurrence given by C
her-Prosecution case established by cogent evidence on record-Held,
reliance on her testimony despite minor Contradiction and infirmity in
investigation was valid-Conviction of accused upheld-Case on facts do not
fall in the category of rarest of rare cases-Death penalty substituted with
imprisonment for life.
D
Code of Criminal Procedure, 1973 : Section 154.
FIR-Contradiction in lodging of-Effect.
Maxim
Falsus in Uno Falsus in omnibus-Applicability of E
The appellant was prosecuted under Section 302 of the Indian Penal
Code, 1860. He committed murder of his two sons. The prosecution case was
that he had suspicion about character of his wife and in that connection he
quite often quarrelled with her. Inspite of this, they lived together. In the night
preceding the incident the appellant told they would be sleeping inside the F
home though they usually slept outside in the open. In the early hours of
morning he woke up his wife and after milching of the cow told her to go to
the dairy to deliver the milk. He himself declined to go to the dairy when asked
by his wife and had also not allowed her to awake his son to go to the dairy
for the purpose. After his wife had left he alone was present in the house. On
her return appellant's wife found her husband assaulting the sleeping boys G
namely their sons. She raised alarm whereupon the appellant slipped away
by the back door leaving the weapon at the spot. Her father-in-law and
brother-in-law arrived. A neighbour of the appellant PW-7, also reached the
house of appellant, who in his evidence stated that on his arrival, he had found
no one else there. In his testimony he also stated that the appellant had been H
193
194 SUPREME COURT REPORTS [2002) 3 S.C.R.

A suffering from mental disease and had also been admitted in the hospitat
Regarding lodging of FIR there was contradiction. Appellant's wife, PW-3,
stated that she had gone to the police station where enquiries were made by
police personnel and thereafter report was lodged. The investigation officer,
PW-9 also stated that report was lodged by PW-3. But in bis cross examination
he made a contradictory statement that on his way back from Court he got
B a wireless message from the Control regarding the incident and report was
written at the house of PW-3, where her mother-in-law and father were also
present. The accused who was absconding was arrested after 15 days of the
incident. The doctor, PW-1, who conducted the post mortem examination
opined that injuries were ante mortem and were caused by sharp edged
C weapon.

Relying upon the ocular testimony of mother of the deceased children
and wife of appellant, PW-3, the Trial Court convicted the appellant of the
offence charged and awarded capital punishment to him.

D High Court upheld the conviction and sentence of the appellant. It held
that (i) the reliable testimony of appellant's wife could not be discarded on
the ground that there was negligence in conducting the investigation (ii) no
evidence had been led to prove the fact of mental illness of appellant; (iii)
while saying that on reaching the spot , he found no one else there PW-7 was
not speaking truth. As to contradiction in lodging the FIR High Court found
E that the investigating officer, PW-9, while returning from Court went to the
village where the FIR was scribed at the house of PW-3 which was forwarded
to police station for its registration.

In appeal to this Court it was contended on behalf of the appellant that
F (i) the presence of appellant at the scene of occurrence was not established;
(ii) the complainant had not actually witnessed the occurrence; (iii) there was
glaring contradiction in regard to lodging of FIR; (iv) there was discrepancy
between oral and medical evidence; and (v) the appellant was suffering from
mental disorder and insanity.

G Dismissing the appeal and modifying the sentence the Court

HELD: 1. The presence of PW-3 cannot be doubted in respect of which
an effort was made to raise an argument in vain. The prosecution story as ,..i...
per her statement rings true and stands established by cogent evidence on
the record and independent circumstances. Nothing could be elicited in her
H cross-examination by reason of which any doubt could arise about veracity
DHARMENDRASINH@ MAN SING RAT ANSINH v. ST ATE OF GUJARAT J95

of her statement. She was given a vivid description of the incident most A
naturally the way she was awakened and was told by her husband to go to
deliver milk at the dairy. She did go and on return as soon as she entered
into the house, she raised alarm; this part of statement is supported by PW-
7 also, but for the fact that according to him on his arrival, he found no one
else at the scene of occurrence. It would be a matter of minutes or a fraction
thereof, ifthe accused had at once left the place by the other door, the moment B
• the alarm of PW-3; PW-7 though a neighbour lives in different house
he heard
and by the time he reached, it is not unlikely that he may have missed the
appellant who had left the spot. Therefore, on the basis of the mere statement
of PW-7 that on his arrival be found no one else it cannot be said that PW-
3 told a lie while stating that her husband had slipped away from the other C
door on hearing her cries. At the same time, there is no good reason to suspect
that she would falsely implicate her husband for the killing of their sons by
some one else. [203-F, G; 206-G; 207-E, F, H; 208-A-C)

2. The father and brother of the appellant did not appear in his defence
in the Court to say that it was a case of false implication of the appellant by D
none else but his daughter-in-law. Normally a brother or father will also not
be a silent spectator to the false implication of his brother/son by his wife.
After incident appellant was not available for more than 15 days until he was
arrested by police. Relations between the appellant and PW-3 had not been
strained from her side to the extent that she would falsely implicate her E
husband. lo the circumstances statement of PW-3 totally inspires confidence.
[202-D, F, G; 207-F; 209-C)

3. The High Court rightly canie to the conclusion that otherwr.e reliable
statement of the witness PW-3 could not be discarded or discredited even
though there had been any fault or negligence in conducting the investigation, F
>
that too by itself, be not sufficient to dislodge the prosecution case as a whole.
The chances of making some embellishment here and there in the statement
are not ruled out even in cases of otherwise truthful and reliable witnesses.
The concept of falsus in uno faisus in omnibus has been discarded long ago.
Therefore in such circumstances the Court may have to scrutinize the matter
a bit more closely and carefully to find out as to how far and to wh~t extent G
the prosecution story as a whole is demolished or it is rendered unreliable.
For this purpose the statement of the witnesses will have to be considered
along with other corroborating evidence and independent circumstances so
as to come to a conclusion that the contradiction in the statement of a witness
could be considered as an embellishment by the witness under one or the other H
196 SUPREME COURT REPORTS [2002] 3 S.C.R.

A belief or notion or it is of a nature that the whole state~ent of the witness. '-!

becomes untrustworthy affecting the prosecution case as a whole. In this case
the Trial Court and the High Court have rightly placed implicit reliance upon
the statement of PW-3 despite the informities which crept in due to careless
investigation and contradiction regarding the place of lodging of the report.
[206-C-F; 208-F)
B
The State of Rajasthan v. Kishore, [1996) SCC (Crl.) 646; Karnail Singh
v. State of Madhya Pradesh, [1995r5 SCC 518; Ram Bihari Yadav v. State of
Bihar, [1998) 4 SCC 517; Paras Yadavv.StateofBihar, [1999] 2 SCC 126 and
Ambica Prasad and Anr. v. State (Delhi Admn.), (2000) SCC (Crl.) 522, referred
c to.
4. There is no doubt about the fact that there is definitely a contradiction
about the lodging of the FIR but the effect of such contradiction or
discrepancy may have to be viewed in the light of the facts and circumstances
of each case. There may be cases where such a discrepancy may prove fatal
D to the prosecution whereas in other cases it may not have the same effect.
The discrepancy in regard to the lodging of the FIR is certainly there and
the conduct of the Investigating Officer in carrying out the investigation of
the case has also been commented upon by the Trial Court but the
..,
consequences of such discrepancies or defensive or doubtful investigation is
not necessarily only one leading to discredit the main prosecution case if the
E prosecution evidence inspires confidence and circumstances lead to such a
conclusion and the prosecution story rings true. [204-C, F, G]

5. There is no force in the submission that there is discrepancy between
oral and medical evidence. The doctor has very clearly stated that all the injuries
F found on the dead bodies were caused by some sharp edged weapon. He has
categorically stated that those injuries could be caused by Dharia which was
exhibited in the Court though a suggestion was made and denied by the doctor
that such injuries could be caused only by an axe. In the FIR, PW-3 had
mentioned that the appellant had assaulted the children with. an axe but later
on changed her statement in the Court saying that it was by mistake she had
G mentioned 'axe' in the FIR but in fact it was Dharia. It is a very insignificant
contradiction which may not lead to any worthwhile conclusion in view of the
fact that it was immaterial whether the weapon was an axe or dharia as both
are sharp edged weapons and according to the statement of the doctor the
injuries as received by two children were caused by a sharp edged weapon.
"
There was thus no design or purpose in changing the statement or deliberately
H .......
~
DHARMENDRASINH@ MANSING RAT ANSINH v. ST ATE OF GUJARAT \ 97

giving out something wrong in the First Information Report about the weapon A
used by the appellant to cause the injuries upon the deceased persons. The
medical evidence supports the prosecution case in all respects. [203-A-DI
6. On the basis of the statement of the witnesses, no conclusion can be
drawn that the appellant was suffering from any mental illness or be used to
become mad. No circumstance has been indicated on the basis of which any B
such inference could be drawn. There is no infirmity in the finding of the High
Court that in case it was so, evidence should have been led on behalf of the
defence to prove the fact of mental illness. [207-C, El

7. Every murder is a heinous crime. Apart from personal implications
it is also a crime against the society but in every case of murder death penalty C
is not to be awarded. Under the present legal position imprisonment for life
is the normal rule for punishing crime of murder and sentence of death would
be awarded only in the rarest of rare cases. Number of factors are to be taken
into account namely the motive of the crime, the manner of the assault, the
impact of the crime on the society as a whole, the personality of the accused, D
circumstances and facts of the case as to whether the crime committed, has
been committed for satisfying any kind of lust, greed or in pursuance of anti-
social activity or by way of organised crime, drug trafficking or the like.
Chances of inflicting the society with the similar criminal act that is to say
vulnerability of members of the society at the hands of the accused in future
and mitigating and aggravating circumstances of each case bas to be E
considered and a balance has to be struck. [210-G-H; 211-A-B)

Bachan Singh v. State of Punjab AIR (1980) SC 898; Manoharlal @
Munna and Ors., v. State ofNCT ofNew Delhi, AIR (2000) SC 420; Kishori v.
State (NCT) Delhi, AIR (2000) SC 562; Om Prakash v. State of Haryana, AIR
> (1999) SC 1332; Krishanv. State ofHaryana, [2000110 SCC 451; Machhi Singh F
and Ors. v. State ofHaryana, AIR (1983) SC 957; State of Madhya Pradesh v.
Shyam Sunder Trivedi, [1994) 4 SCC 262; Ku/jeet Singh alias Ranga v. Union
ofIndia and Anr., AIR (1981) SC 1572; Asharaji Lal and Som v. State ofU.P.,
AIR (1987) SC 1721; Ramdeo Chauhan alias Rajnath Chauhand v. State of
Assam, [20001 7 SCC 455 and Dhanajoy Chatterjee alias Dhana v. State of West G
Bengal, [1994) 2 SCC 220, referred to.

8. The appellant had been labouring under the strain suspecting
character of his wife. It is true that there does not seem to be any immediate
cause before the commission of offence, yet the fact remains that rightly or
wrongly such a painful belief was being entertained by the appellant since H
198 SUPREME COURT REPORTS [2002] 3 S.C.R.

' A long which constantly engaged his mind as admittedly there had been quarrels
on that count between the two. The offence was obviously not committed for -•
lust of power or otherwise or with a view to grab any property nor in
pursuance of any orgainsed criminal or anti-social activity. Chances or
repetition of such criminal acts at his hands making the society further
B vulnerable are also not apparent. He had no previous criminal record.
Therefore, it cannot be said that the case falls in the category of rarest of
rare cases so as to make the appellante liable for extreme penalty of death.
The crime committed is no doubt heinous and unpardonable. The act of the
appellant is condemnable. However the normal sentence oflife imprisonment
for the offence of murder would meet the ends of justice. [211-C-D; F-H]
c CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
927 of 2001.

From the Judgment and Order dated 3.7.2001, 5.7.2001 and 10.7.2001
of the Gujarat High Court in Crl. C.C: No. 2/2000 with Crl. A. No. 500 of
D 2000.

Chandrakant Nayak (A.C.) for the Appellant.

Ms. Hemantika Wahi and Ms. Anu Sawhney for the Respondent.

The Judgment of the Court was delivered by
E
BRIJESH KUMAR, J. This appeal has been preferred by the appellant
from Jail against the judgment and order dated 5th, 7th and 10th July, 2001
passed by the Gujarat High Court upholding his conviction under Section
302 I. P. C. and sentence of death as awarded by the Additional Sessions
Judge Sabarkantha, at Himmatnagar. The reference for confirmation of the
. F
death sentence was also accepted.

We have heard the Amicus curiae representing the appellant at length
as well as the learned counsel representing the State.

The facts of the case are in a narrow campass. The appellant and PW-
G 3 Ashaben, were married about 15 years before the incident. They had two
sons, Jigarsinh and Vimalsinh aged about 12 and 7 years respectively. They
were residing in Village Bhadresar along with the parents of the appellant. " ·
The brother of the appellant, namely Dashrathsinh was living separately. The
prosecution case is that on .24. 8. 1998 while the appellant, the complainant
H PW-3 Ashaben and their two sons were sleeping on cots inside the house, the
DHARMENDRASINH@MANSING RAT ANSINH v. STATE OF GUJARAT [BRIJESH KUMAR, J.J } 99

appellant woke her up early in the morning. She milched the cow and requested A
her husband to deliver the milk at the dairy. The appellant declined to do so
upon which she tried to awake Jigarsinh for delivering the milk but the
appellant asked her to go herself for the purpose. She accordingly went to the
dairy and reached back home at about 7 a. m. She found her husband assaulting
the sleeping boys, namely their sons. She raised alarm and rushed into the B
room thereupon her husband left the house from the other door. Ratansinh
her father-in-law and Dasrathsinh her brother-in-law and others arrived. She
told them about the incident. The two sons died as a result of injury received
by them. PW-4 Mangusinh Tetsinh, father of the complainant, PW-3 Ashaben
on getting information of the incident through Sarpanch of his village went
to Village Bhadresar, his daughter narrated the whole story to him. He brought C
her to his village Mhudi from Bhadresar. According to him on the way they
also went to the Police Station, Jadar. According to PW-3 her report was
written and lodged at the Police Station. The PSI, Police Station, Jadar,
Bhurjibhai, who has been examined as PW-8 stated about the lodging of the
FIR and registration of the case at the Police station at 5 p.m. on 24.8.1998.
Thereafter PW-9 conducted the investigation into the case interrogating the D
complainant and other witnesses at the spot and taking into custody the other
material exhibits and prepared their respective recovery memos including
that of the weapon Dharia. He also took into custody the plain and blood
stained earth etc. Inquest reports were also prepared. He arrested the accused
on 17.9 .1998 at 11.15 A.M. The post-mortem examination on the dead bodies E
of the two deceased was held by PW-I Dr. Ganpatsinh Ambadan Charan, on
24.8.1998. He found three external injuries on the dead body of Jigarsinh,
which consisted of one sharp cut wound on the left cervical region up to the
middle line of neck and two other incised wounds. On internal examination
he found fracture of the jaws. So far Vimalsinh is concerned he was found
> to have one sharp cut wound on the neck from left mandible to right ear F
lobule. There was fracture of occipital bone as well as that of I st and 2nd
cervical spine. The Doctor opined that the injuries were ante-mortem and
they were caused by sharp edged weapon. On looking to the exhibit article
No. 9, Dharia lie stated that the said injuries could be caused by the said
weapon. He also stated that injuries were sufficient in the ordinary course of G
nature to cause death. He denied the suggestion made in the cross-examination
that the nature of the injuries indicated co,uld be caused only by axe. He also
denied the suggestion that the injury Nos. 2 and 3 could not be caused by
Dharia. PW-2, Nathosinh is a witness of recovery and the articles and memos
prepared there on. PW-3 is the complainant namely, the mother of the two
deceased children and wife of the appellant. She has stated that the appellant H
200 SUPREME COURT REPORTS [2002] 3 S.C.R.

A right from the beginning had suspicion about her character and in that
connection he quite often quarreled with her. She however, denied a suggestion
made on behalf of the defence in her cross-examination that the appellant
used to tell her that the two sons Jigar and Vimal were not born of him. PW-
4, Mangusinh Tetsinh, is father of the complainant. PW-5 Dineshbhai
B Paragbhai, who was examined as witness to the recoveries of his clothes etc.
made on the arrest of the accused on 17.9.1998, PW-6, is yet an another
witness in connection with the same. PW-7 Dalpatsinh is a neighbour, who
claims to have reached the house of the appellant on the shouts of PW-3, but
had found no one else there. PW-8 Bhurjibhai Kavjibhai Damor was PSI and
was posted at P. S., Jadar and had registered the case at the Police Station.
C PW-9 Babubhai Kodarbhai Patel is the Investigating Officer.

The Trial Court believed the testimony of PW-3 Ashaben, and accepting
the prosecution case that the murders have been committed by none else but
the appellant convicted him under Section 302 and awarded the capital
punishment. The High Court also, after appraising the evidence and considering
D the points raised by the appellant upheld the judgment of the Trial Court as
·· well as the conviction and the sentence awarded.

It is clear that the case rests on the only ocular testimony of PW-3 ;
Ashaben the mother of the slain children and the wife of the appellant. The
E other prosecution witness of fact regarding the alarm raised by Ashaben in
the morning is PW-7 Dalpatsinh, but he has not stated about the presence of
the appellant at the spot at the time he reached there. On the other hand he
has stated that he reached on the alarm raised by Ashaben whom he had seen
returning from the dairy, no one else was present at her house. In connection
with the evidence of this witness it has been held that he has not disclosed
F the full truth and had only tried to help his neighbour namely the appellant.
Apart from other evidence adduced as indicated earlier, there are certain
circumstances pointed to the fact that the offence was committed by the
present appellant.

G Learned counsel for the appellant has assailed judgment and conviction
broadly on the grounds th~t there was discrepancy between the oral and the
medical evidence. The next point, which has been urged with some vehemence
is that there being glaring contradiction in regard to lodging of the FIR, the ·-
investigation made in the case cannot be relied upon nor a case based on such
an FIR could be believed. He also submitted that the presence of the appellant
H at the relevant time is not established at the spot nor that of the complainant
DHARMENDRASINH@ MANS ING RATANSINH •·.STATE OF GUJARAT (BRIJESH KUMAR, J.] 2Q)

PW-3 Ashaben. Yet another submission is that FIR was lodged according to A
-- 'r the prosecution case itself after arrival of the parents of the complaint and the
complainant not having happy relationship with the accused, falsely implicated
him in the case. Yet another ground raised is that the appellant suffered from
mental disorder and ins~nity. Therefore, he could not be liable for the offence
convicted for.
B
Before dealing with each submission made we feel it appropriate to
have an over view of the factual position of the case.

According to the complainant as disclosed in the FIR itself besides in
her statement in the Court, the appellant had suspicion about her character C
right from the beginning. A suggestion made in the cross-examination though
denied by her was that the accused used to tell her that two slain children
were not born of him. In that background in the night preceding the incident
the appellant told that they would be sleeping inside the house though usually
they slept outside in the open. In the early hours of the morning he woke up
his wife and after milching of the cow told her to go to the dairy to deliver D
the milk. He had himself declined to go to the dairy when asked by the
complainant and had also not allowed her to awake Jigarsinh to go to the
dairy for the purpose. According to the prosecution case after the complainant
had left and he was alone in the house, he committed the crime which was
witnessed by PW-3 on her return from the dairy. According to the complainant E
she raised alarm on seeing the appellant assaulting the children, upon which
the appellant slipped away by the back door leaving the weapon at the spot.
It is also stated by her that on her shouts her father-in-law, brother-in-law and
others also arrived. Out of these persons Dalpat Sinh has been examined as
PW-7. He is a neighbour of the appellant. The prosecution case as disclosed
by PW-3 Ashaben, the complainant, is corroborated by the witness to the F
> extent that he saw her returning from the dairy and that she raised alarm upon
which he reached the spot and found that her two sons were lying murdered
but thereafter he adds that he had not found anyone else at the spot meaning
thereby that he does not state about the presence of the appellant there at that
point of time.
G
So far PW-3 is concerned, it is her own case that the appellant had been
quarreling with her quite often having suspicion on her character. The appellant
also used to drink and sometimes gave beating to her. Her father PW-4
Mangusinh Tetsinh stated that his daughter at times told that the appellant
had been having quarrels with her but other details were not brought to his H
..
202 SUPREME COURT REPORTS (2002] 3 S.C.R.

A notice. As observed by the High Court, and in our view, rightly, that the y
husband and wife had still been living together with the differences whatever
were there in between them which had not grown to such proportion that she
might have told about it to her father or may not be prepared to live together.
It also comes out from her statement that the appellapt had been having his
say in the matters at home and he woke her up and desired her to go to the
.,..
B dairy to deliver the milk refusing to do so himself even though asked by her.
He also did not allow to awake Jigarsinh for the purpose. That is to say she
was still obeying the wishes of her husband in the household chores and
affairs. It has been observed in the judgment that PW-7 while saying that on
-4
reaching at the spot, he found no one else there, he was not speaking the full
c truth. It is however, to be noted that to a very great extent the statement of <
PW-3, Ashaben stands supported by his statement. The circumstances which
undisputedly flow from the.se facts are that after PW-3 Ashaben left for dairy
there was none else at the house except the appellant with two children
asleep. On he.r return from the dairy she raised alarm seeing the appellant
assaulting the children upon which the accused slipped away. PW-7, who
D arrived at the spot, it would not be surprising that he did not find accused
present at that time. In the background of whatever has been indicated above
it is clear that the relations between the appellant and PW-3 had not strained
from her side at least to the extent that PW-3 would falsely implicate her .,
husband for the murder of her two children leaving the real culprit who may
E have murdered their two sons. She was still complying with whatever the
appellant desired her to do. It is also to be noted that father of the appellant
though resides in the same house and having arrived at the spot, did not
proceed to lodge the FIR. Brother of the appellant who also resides there
though separately, failed to inform the police even though he had also arrived
at the spot on the alarm raised by the complainant. The obvious reason
F appears to be that they might not be ready to lodge report against the appellant,
the own son and the brother. Not this alone, once the father and the brother
of the accused would find that the.appellant was being falsely roped in by his
wife, there was no reason for them not to come forward to inform the police
about the correct position or to say that the crime was not committed by the
G appellant. They also did not appear in his defence in the Court to say that it
was a case of false implication of the appellant by none else but his daughter-
in-Jaw. Normally a brother or father will also not be a silent spectator to the
false implication of his brother/son by his wife.
..t..
Now taking up the points as raised by the appellant regarding the
H medical evidence, we may at the outset indicate that there is no force in it.
•

DHARMENDRASINH@ MANS ING RAT ANSINH v. ST ATE OF GUJARAT [BRIJESH KUMAR, J.] 203

Learned counsel for the appellant has submitted that according to the statement A
of the doctor PW-lGanpat Sinh Ambadan Charan the injuries found on the
dead bodies of the deceased could only be caused by an Axe and not by a
Dharia. On going through the statement of the doctor we do not find that the
submission made is supported in any manner. The doctor has very clearly
stated that all the injuries found on the dead bodies were caused by some
sharp edged weapon. He has categorically stated that those injuries could be B
caused by Dharia which was exhibited in the Court though a suggestion was
made and denied by the doctor that such injuries could be caused only by an
axe. In this connection the other related argument which has been raised is
that in the FIR PW-3 had mentioned that the appellant had assaulted the
children with an axe but later on changed her statement in the Court saying C
that it was by mistake she had mentioned 'axe' in the FIR but in fact it was
Dharia. In our view it is a very insignificant contradiction which may not
lead to any worthwhile conclusion in view of the fact that it was immaterial
whether the weapon was an axe or a dharia as both are sharp edged weapons
and according to the statement of the doctor the injuries as received by two
children were caused by a sharp edged weapon. There was thus no design or D
purpose in changing the statement or deliberately giving out something wrong
, in the First Information Report about the weapon used by the appellant to
cause the injuries upon the deceased persons. The medical evidence supports
the prosecution case in all respects. We therefore find no force in this
submission as well. E
Learned counsel for the appellant then submitted that presence of the
appellant at the relevant time at the spot is not established and in this connection
he has mainly relied upon the statement of PW-7. We have already made our
observations in that regard. We find that it has rightly been found by the
courts below that PW-7 has not come out with full truth, may be with a view F
to help out his neighbour otherwise to a great extent prosecution case finds
supports from his statement up to the stage, the PW 3 on return from the
dairy had raised an alarm. In this view of the matter the presence of PW-3
can also not be doubted in respect of which an effort was made to raise an
argument in vain.
G
The next argument upon which much stress has been given by the
learned counsel for the appellant is about the contradiction relating to the
lodging of the FIR. According to the PW-3 she had gone to the police station
where inquiries were made from her by the police personnel and thereafter
, report was lodged on 24.8.98 itself at 5.00 P. M. PW-9 also states that H
204 SUPREME COURT REPORTS [2002) 3 S.C.R.

A complaint was given by Ashaben on the basis of which a case was registered
at the police station. In the cross-examination, he has however stated that on
his way back from the Court, he got a wireless message from the ContrQI
Room, regarding this incident thus he straightaway went to village Bhadresar
from Himmatnagar. The report was written at the house of Ashaben who was
B present there. The report was forwarded to the police station for registration
of the case. He also states that mother-in-law and father-in-law of the
complainant were also present at the house. He· inspected the spot and
completed the other formalities of .the investigation. He has also stated that
two dead bodies were identified by PW-3 who had also shown him the place
of occurrence. There is no doubt about the fact that there is definitely a
C contradiction about the lodging of the FIR but the effect of such contradiction
or discrepancy may have to be viewed in the light of the facts and
circumstances of each case. There may be cases where such a discrepancy
may prove fatal to the prosecution case whereas in other cases it may not
have the same effect. The high Court has considered this matter in some
detail taking into account all the discrepancies in regard to this point and
D came to the conclusion that PW-9 the Investigating Officer had come straight
to the village Bhadresar while returning from the Court after obtaining the
remand of accused persons in some other case and the FIR was scribed there
at the house of Ashaben which was forwarded to the Police Station for"its
registration. It has been observed that for an u'neducated village person, it is
E not unlikely that one may make some embellishment in the statement saying
that the FIR was recorded at the police station since normally it is recorded
there. It has also been observed that the complainant Ashaben was present in
Village Bhadresar when the police reached there and that the Panchnamas
etc. had also been prepared in her presence and that she had also identified
the bodies and pointed out the place of occurrence to the Investigating Officer.
F As observed earlier the discrepancy in regard to the lodging of the FIR is
certainly there and the conduct of the Investigating Officer in carrying out
the investigation of the case has also been commented upon by the trial court
but we are of the view that the consequences of such discrepancies or defective
or doubtful investigation is not necessarily only one leading to discredit the
G main prosecution case if the prosecution evidences inspires confidence and
circumstances lead to such a conclusion and the prosecution story rings true.
No doubt that in that event it would be necessary to evaluate as to what
extent such faulty investigation or discrepant statement on certain facts relating
thereto, shall cause damage to the prosecution case as a whole. In the judgment
of the High Court a few decisions on the point with their relevant observations
H made thereunder have been referred to which we may to reproduce. They are
•

DHARMENDRASINH@ MANSrNG RAT ANSINH v. ST ATE OF GUJARAT [BRIJESH KUMAR, J.] 205
'r as follows: A
"In State of Rajasthan v. Kishore, [1996] SCC (Crl) 646 has pointed
out that mere fact that the investigating officer committed irregularity
or illegality during the course of investigation would not and does
not cast doubt on the prosecution case nor trustworthy and reliable
evidence can be cast aside to record acquittal on that account. In that B
case piece of evidence was not considered by the High Court but it
fell it doubtful like Doubting Thomas with vacillating mind to accept
the prosecution case for the reasons which the Apex Court pointed
out were invalid reasons and has wrongly given benefit of doubt to
the respondent. Suffice it to say that in the instant case, there is C
sufficient, reliable, trustworthy and acceptable evidence and therefore
the discrepancy pointed out is of no importance and does not affect
the prosecution case and therefore, not only the evidence was rightly
accepted by the trial court but the trial court on appreciation of
evidence and circumstances in which offence was committed, made
the order. D

.. The Apex Court in the case of Karna ii Singh v. State of Madhya
Pradesh, [ 1995] 5 SCC 5 I 8 has observed as under:

"In case .of defective investigation, it would not be proper to
acquit the accused if the case is otherwise established conclusively E
because in that event, it would tantamount to the falling into the
hands of an erring investigating officer. "

In the case of Ram Bihari Yadav v. State of Bihar, (1998) 4 S.C.C.
517, the Apex Court observed in Para 13 as under: F
"In such cases, the story of the prosecution will have to be
examined dehors such omissions and contaminated conduct of the
officials otherwise the mischief which was deliberately done would
be perpetuated and justice would be denied to the complainant party
G
-
and this would obviously shake the confidence of the people not
merely in the law-enforcing agency but also in the administration of
> justice"

In the case of Paras Yadav v. State of Bihar, [1999] 2 SCC 126 the
Court held as under:
H
206 SUPREME COURT REPORTS (2002] 3 S.C.R.

A "It may be that such lapse is committed designedly or because of '{ ~

negligence. Hence, the prosecution evidence is required to be examined
dehors such omission to find out whether the said evidence is reliable
or not"

The High Court has also referred to a decision reported in 2000 S.C.C.
B (Cr!.) 522 Ambica Prasad and Anr. v. State (Delhi Administration) in which
this Court observed that faulty investigation or witnesses turning hostile may
not ultimately affect the merit of the case nor it could be a ground to disbelieve
the statement of the prosecution witnesses. -"·

c in the Indecision
our view the High Court taking into account the observations made
referred to above came to the conclusion that otherwise reliable
statement of the witness PW-3 Ashaben could not be discarded or discredited
even though there had been any fault or negligence in conducting the
investigation, that too by itself, be not sufficient to dislodge the prosecution
case as a whole. The chances of making some embellishment here and there
D in the statement are not ruled m~i: even in cases of otherwise truthful and
reliable witnesses. The concept of falsus in uno and falsus in omnibus" has
been discarded long ago. Therefore in such circumstances the Court may
have to scrutinize the matter a bit more closely and carefully to find out as
to how far and to what extent the prosecution story as a whole is demolished
"
or it is rendered unreliable. For this purpose the statement of the witnesses
E
will have to be considered along with other corroborating evidence and
independent circumstances so as to come to a conclusion that the contradiction
in the statement of a witness could be considered as an embellishment by the
witness under one or the other belief or notion or it is of a nature that the
whole statement of the witness becomes untrustworthy affecting the
F prosecution case as a whole. The same principle will apply to a faulty or
tainted investigation. Other relevant facts and circumstances cannot be totally
ignored altogether. While appreciating the matter one of the relevant
considerations would be that chances of false implication are totally eliminated
and the prosecution story as a whole rings true and inspires confidence. In
such circumstances despite the contradictions of the defective ~or tainted
G

-
investigation, a conviction can safely be recorded.

We may next consider the argument made on behalf of the appellant
.(,,.
that he was suffering from mental ailment and had received medical treatment
for the same. First of all a reference has been made to the statement of PW-
H 7 Danpatsinh who is neighbour of the appellant. He has stated that the appellant
.
DHARMENDRASINH@MANSING RATANSINHv. STATEOFGUJARAT[BRIJESHKUMAR. J J 207
·~· .,. had been suffering from mental disease and had been admitted in the hospital A
of Dr. Navin Modi. He further stated that the appellant was like a mad person
and did not have any sense. It was also stated by him that the husband and
wife were not on good terms and quarrel used to take between them. Whenever
he got ill, his father used to take him to the hospital. So far the nature of
illness of the appellant is concerned, PW-3 denied the suggestion that he was
suffering from any mental illness. She stated that he had been taking liquor.
B
She further goes on to say that he was admitted in Himmatnagar Hospital but
did not know if it was hospital of Dr. Navin Modi or some other hospital. We
._
do not think that on the basis of the statement of these witnesses, any
conclusion can be drawn that the appellant was suffering from any mental
illness or he used to become mad. We find no infirmity in the finding of the c
High Court that in case it was so, evidence should have been led on behalf
of the defence to prove the fact of mental illness. The prescription of the
treatment given to the appellant in the hospital should have been brought in
the record or the Doctor who may have treated him could be produced to
show that the appellant suffered from any mental illness. Obviously these
facts if at all, would be in the special knowledge of the defence and in case D
the defence wanted to take advantage of any such ground of mental illness,
this plea should have been substantiated by adducing relevant and cogent
• evidence. No circumstance has been indicated on the basis of which any such
inference could be drawn. We therefore, find no force in this argument as
advanced on behalf of the appellant. E
The Submission made on behalf of the appellant that the complainant
had actually not witnessed the occurrence also has no basis. She has made the
statement to that effect and nothing could be elicited in her cross-examination
by reason of which any doubt could arise about the veracity of her statement.
> On return from the dairy she found her husband assaulting the deceased and F
on her alarm raised he slipped away from the other door. It is also strange
that after the incident the appellant was not available for more than 15 days
until he was arrested by the police. In the normal course, on the murder of
his two sons, he should have been moving around the scene and to have
-I lodged the report against the real assailants or in case real assailants were not
known, he could have lodged the report without naming any accused therein.
G
PW-3 has made her statement in a very natural way without trying to hide
anything. She has stated categorically that her husband suspected her character
from the beginning and had been quarreling on that account . She also stated
that about a week before he was drunk and had also given a beating to her.
She has given a vivid description of the incident most naturally the way she H
>
208 SUPREME COURT REPORTS (2002] 3 S.C.R.
Tl •...::;,
.
A was awakened and was told by her husband to go to deliver the milk at the
dairy. She did go and on return as soon as she entered into the house, she
raised alarm, this part of statement is supported by PW-7 also, but for the fact
that according to him on his arrival, he found no one else at the scene of
occurrence. It would be a matter of minutes or a fraction thereof, if the
accused had at once left the place by the other door, the moment he heard
B the alarm of PW-3. The PW-7 though a neighbour lives in different house
and by the time he reached, it is not unlikely that he may have missed the
appellant who had left the spot. Therefore, on the basis of the mere statement
of PW-7 that on his arrival he found no one else it can not be said that PW-
,..
3 told a lie while stating that her husband had slipped away from the other
c door on hearing her cries. At the same time, we also find no good reason to
suspect that she would falsely implicate her husband for the killing of their
sons by some one else. The real assailants of her own children would not be
spared. It is true, as pointed out by the learned counsel for the appellant that
her husband suspected her and there had been quarrel between them yet the
fact remains that they continued to live together. It is difficult to accept that .
D after loosing sons she would be prepared to loose her husband too by falsely
implicating him though she had been living with him for last 15 years along
with his parents in the same house. As indicated earlier also at the risk of ,,
repetition we may again point out the question which stares for an answer is
as to why the appellant himself, his father or brother would not lodge the
E report or in any case if it was correct that he was being falsely fixed then too
they would prefer silence rather to come forward to save the life of his son
or the brother. .....

In the above background we find that the Trial Court and the High
Court have rightly placed implicit reliance upon the statement of PW-3 despite
F the infirmities which crept in due to careless investigation and contradiction
...
regarding the place of lodging of the report. PW-3 was quite categorical that
after the report was scribed she had put her thumb impression upon the same.
According to I. 0. PW-9, it was forwarded to the police station for registration
of the case, which according to PW-3 was lodged at the police station itself. ~

The Trial Court and the High Court have already appreciated the position and ~
'
G have rightly observed that it may be due to some confusion or carelessness
or under an impression that the reports are lodged at police station. PW-3 had
stated that she has lodged the report at the police station, whereas it has been
found that it was written at Village Bhadresar at her place. Learned counsel
for the appellant relying upon the decision reported in 1994 (Suppl) I SCC
H 590, submitted that if the Investigating Officer reaches the spot without
')

DHARMENDRASINH@ MANStNG RA t ANSINH "'· STATE OF GUJARAT [BRIJESH KUMAR, J.) 209

recording the FIR first, the statement given by the complainant is to be A
treated as under Section 162 Cr.P .C. and it would not be safe to rely upon
it and as it can not be treated as a FIR. It is also submitted that the prosecution
case also becomes doubtful and unreliable. We feel that we have substantially
dealt with this aspect of the matter in the earlier part of the judgment even
what has submitted by the learned counsel for the appellant is accepted, in
our view, it will have no effect on the merit of the case based on the
B
unimpeachable evidence on the record supported by the medical evidence
and the independent circumstances of the case .
....
... Statement of PW-3 Ashaben totally inspires confidence. It also appears
that she was not ill-disposed to her husband to the extent that it could be
inferred that she would be falsely implicating him in such a crime. This fact
c
would be apparent from the statement of her father PW-4 who had stated that
he knew that sometimes quarrels took place between her daughter and the
appellant but he was never given any details about the same. Had she been
ill-disposed to him, she might have been making all sorts of complaints to her
parents but that does not appear to be so. The prosecution story as per her D
· statement rings true and stands established by cogent evidence on the record
i and independent circumstances.

We may now turn to the question of sentence. In Bachan Singh v. State
of Punjab, AIR (1980) SC 898 this Court said that death sentence is to be
J awarded only in the rarest of rare cases. In Manoharla/ @ Munna and Ors.
E
v. State of NCT of New Delhi,. AIR (2000) SC 420 death penalty was not
awarded even though four innocent children of the family of the witness
were burnt to death. It was however a case of rioting. In the case of Kishori
v. State (NCT) Delhi AIR (2000) SC 562 also death sentence was not awarded
-..., as it was a case of mob attack and frenzy. A number of persons were killed. F
It was not considered to be the rarest of rare cases. Apart from these cases
a reference has also been made to a decision reported in AIR (1999) SC 1332
Om Prakash v. State of Haryana, where accused a member of para military
force had killed seven members of a family in a pre-planned manner as he
was labouring under the strain that the accused and the members of his
G

-
family were suffering agony at the hands of the family of the victims. He had
a feeling of injustice being meted out to them. The Court considered it to be
...,..._ a mitigating circumstance and not treated it to be rarest of rare cases. Similarly,
in the case of Krishan v. State ofHaryana, [2000) 10 SCC 451 punishment
of life imprisonment was awarded where the murder was committed while
the accused was already undergoing life imprisonment and was on parole. It H
..... 'k

210 SUPREME COURT REPORTS [20Q2] 3 S.C.R.

A was observed that this fact alone would not be sufficient to inflict the death ~· y

penalty. Other facts and circumstances would also have to be taken into
account. In Machhi Singh and Ors v. State of Haryana, AIR (1983) SC 957 (
it has been observed that extreme penalty of death need not be inflicted ,.__
except in gravest cases of extreme culpability. Circumstances of the offender
are also required to be taken into account while considering the question of \
B awarding the death penalty. Imprisonment for life is the rule as punishment
for murder and death sentence is an exception. It has then been observed that
a balance-sheet of aggravating and mitigating circumstances has to be drawn ~
up and a balance has to be struck. The other facts which need to be considered ..,..
are magnitude of the crime, the anti-social nature of the crime, personality
c of the victim, motive and the manner of commission of the murder etc. In t,,

State of Madhya Pradesh v. Shyam Sunder Trivedi, (1994] 4 SCC 262 also
it has been observed that the Court must balance the mitigating and aggravating
circumstances of the case which would depend upon the particular and peculiar
circumstances of each case. On the other hand the cases in which death
sentence was awarded and taken note of by the High Court are Kuljeet Singh
D alias Ranga v. Union of India and Anr. AIR (1981) SC 1572. In this case ~
,•
also two innocent children were murdered. However, we find that they were
kidnapped first with oblique motive and were murdered. In Asharaji Lal and ~.
··l

Sons v. State of U.P., AIR (1987) SC 1721 the accused persons had killed .
their two innocent nieces to wreak personal vengeance regarding property -.
E dispute with the mother of the victims. In this case also death sentence was
awarded by this Court. A reference is also made to a case reported in (2000)
7 S.C.C. 455 Ramdeo Chauhan alias Rajnath Chauhand v. State of Assam.
It was observed that when a man becomes beast and menace to the society,
he could be deprived of his life according to the procedure established by
law. In Dhananjoy Chatterjee alias Dhana v. State of West Bengal, [1994] ..,,..
F 2 sec 220 the accused had killed his pregnant wife and three minor children ...
for no reason and without provocation. He had assaulted his mother also who
came to their rescue. The incident was described to be shocking to the
ho
conscience of the society. Hence, death sentence was awarded.

G Every murder is a heinous crime. Apart from personal implications, it
is a crime against the society but in every case of murder death penalty is not
to be awarded. Under the present legal position imprisonment for life is the
normal rule for punishing crime of murder and sentence of death, as held in
different cases referred to above, would be awarded only in the rarest of rare
cases. The number of factors are to be taken into account namely, the motive
,,,
.. ~
.
H of the critrie, the manner of the assault, the impact of the crime on the society
DHARMENDRASINH@ MANSING RAT ANSINH ''· ST ATE OF GUJARAT [BRIJESH KUMAR, J_J 211
., as a whole, the personality of the accused, circumstances and facts of the A
case as to whether the crime committed, has been committed for satisfying
any kind of lust, greed or in pursuance of anti-social activity or by way of
organized crime, drug-trafficking or the like. Chances of inflicting the society
with the similar criminal .act that is to say vulnerability of the members of the
society at the hands of the accused in future and ultimately as held in several
cases mitigating and aggravating circumstances of each case has to be B

....
considered and a balance has to be struck. The learned State counsel has
already indicated the aggravating circumstances by reason of which it has
been vehemently urged that sentence of death deserves to be confirmed .

Now considering the facts of the present case in the background of our c
observations made in the preceding paragraph, we take note of the fact that
the appellant had been labouring under the strain suspecting character of his
wife. This fact is mentioned by none else but by the complainant Ashaben
herself in her report. She also admitted in her statement in Court that quite
often there has been quarrel between the two on that count. Though denied,
a suggestion has been made to PW-3 Ashaben in her cross-examination that D
the appellant had been telling her that their sons were not born of him. It is
true that there does not seem to be any immediate cause before the commission
"• of offence, yet the fact remains that rightly or wrongly such a painful belief
was being entertained by the appellant since long which constantly engaged
his mind as admittedly there had been quarrels on that count between the
E
two. Obviously he would have been brooding under that idea, which perhaps
he could not contain any more. It is true that two innocent children lost their
lives for no fault of theirs. We also notice that Dharia is a weapon, which is
ordinarily to be found in the house of any farmer or agriculturist in that area
as stated by PW-3. He seems to have used the weapon as lying in the house.
..., The offence was obviously not committed for lust of power or otherwise or F
with a view to grab any property nor in pursuance of any organized criminal
or anti-social activity. Chances of repetition of such criminal acts at his hands
making the society further vulnerable are also not apparent He had no previous
criminal record.

For the above reasons in our view it cannot be said that the case falls G
in the category of rarest of rare cases so as to make the appellant liable for
extreme penalty of death. The crime committed is no doubt heinous and
+- unpardonable. The act"of the appellant is condemnable. In our view however
the normal sentence of life imprisonment for the offence of murder would
meet the ends of justice. H
212 SUPREME COURT REPORTS [2002) 3 S.C.R.

A In the result, while dismissing the appeal against his conviction, we set
aside the sentence of death as awarded by the trial court and confirmed by
the High Court and commute to that of imprisonment for life. The appellant
shall serve out the sentence of imprisonment for life.

T.N.A. Appeal dismissed.
- B