Supreme Court of India
STATE OF MAHARASHTRAversusPRAKASH SAKHA VASAVE AND ORS.
- Citation
- 2009 INSC 51
- Decided
- 21 January 2009
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
The High Court erred in acquitting the two brothers; their convictions stand but the death penalty is inappropriate, while the acquittal of the uncle is upheld.
Summary
The State of Maharashtra prosecuted three accused—two brothers and their uncle—for the murder of Madhukar, alleging they acted out of jealousy over his illicit relationship. The trial court convicted them under IPC s.302 read with s.34 and sentenced the brothers to death and the uncle to life imprisonment. The Bombay High Court acquitted all three, relying on alleged delays in filing the FIR, inconsistencies in eye‑witness statements, and lack of an overt act by the uncle. On appeal, the Supreme Court held that the eye‑witness testimonies were reliable, the FIR delay was explained, and the prosecution had proved common intention, thus setting aside the acquittal of the brothers while upholding the uncle's acquittal. However, applying the "rarest of rare" doctrine, the Court reduced the brothers' death sentences to life imprisonment, concluding that the case did not merit capital punishment.
Issues considered
- The reliability of eye‑witness testimony despite inconsistencies and delayed FIR filing.
- Whether the delay in lodging the FIR vitiates the prosecution's case.
- Whether an overt act can be attributed to each accused under IPC s.34 for common intention.
- The applicability of the "rarest of rare" doctrine to the death penalty in this murder case.
- The justification for acquitting the third accused (uncle) on lack of overt act.
Legislation cited
- Indian Penal Code, 1860s. 302, s. 34, s. 506
Subjects
murderIPC s.302common intentioneye-witness testimonydelay in FIRdeath penaltyrarest of rare doctrinelife imprisonmentcriminal intimidation
Judgment
[2009] 1 S.C.R. 450
A STATE OF MAHARASHTRA
v. A.. "
PRAKASH SAKHA VASAVE AND ORS.
(Criminal Appeal No. 654 of 2004)
JANUARY 21, 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860 - s.302134 - Murder - By three
c accused - Eye-witnesses to the incident - Motive proved -
No overt act attributed to third accused - Conviction by trial
Court - Accused 1 and 2 sentenced to death and accused 3
sentenced to life imprisonment - Acquittal by High Court on
the ground interalia that version of eye-witnesses not reliable
D and that there was delay in lodging FIR - On appeal, held: {
>-
On facts, evidence of eye-witnesses reliable - [?easons
indicated for acquittal of accused Nos. 1 and 2 not justified -
However, their case does not fall in the category of rarest of
rare case - Hence, sentenced to life imprisonment - Acquittal
E of third accused is justified.
Appellants-accused were prosecuted for having
caused death of one person. According to prosecution,
appellant Nos.1 and 2 were the brothers and appellant
No.3 was the uncle of the wife of the deceased. They
F were annoyed with the deceased because he was having
illicit relationship with another woman. PWs.3, 4 and 6
were the eye-witnesses. All the three accused were
convicted uls.302134 IPC. Accused 1 and 2 were awarded
death sentence while accused 3 was given life
G imprisonment.
High Court acquitted all the accused on the grounds
that there was delay in lodging FIR and the place of its
recording was doubtful; that PW3 did not speak about the
H 450
STATE OF MAHARASHTRA v. PRAKASH SAKHA VASAVE 451
AND ORS.
assault by A2 with knife; that no overt act was attributed A
by PW6 to A-3; that PW4 did not say that the axe was
fixed on the head; and that evidence of PW2 was full of
contradictions as there was discrepancy about the
recovery. Hence the present appeal.
B
Party allowing the appeal, the Court
HELD: 1.1. High Court was not justified in directing
acquittal of A1 and A2. The conclusion of the High Court
is erroneous because PW-4 in his evidence has
categorically stated that the deceased was having injury c
on his body due to assault by means of axes. One axe
was found inserted in the bone of head near the left ear.
The handle of that axe was in a broken condition.
.. According to the evidence, the axe was inserted near
\
about 4 to 5 inches in the head. [Paras 6 and 5) [455-F- D
"' H; 456-G]
1.2. The High Court has come to an absurd
conclusion that the eye- witnesses PWs 3 and 6 gave
account of 4 to 5 external injuries but the witnesses did
E
not utter a single word about remaining 15 injuries. A
witness who witnesses an attack on another by three
persons armed is not supposed to go on counting
number of assaults on the parts of the body where the
"' injuries were inflicted. They had categorically stated about
the external injuries. PWs 3 and 4 came running after F
hearing shout of the deceased. So it was possible that
they had not noticed the injuries which were earlier
sustained due to assaults. They appeared at the spot
when the assault was continuing. PW-4, in his cross-
examination, had stated that on hearing shout of the G
deceased he rushed towards him and reached there
within a short time. When he reached at the spot of
incident, at that time the deceased was lying on the
ground having injuries on his person. There is practically
H
452 SUPREME COURT REPORTS [2009) 1 S.C.R.
A no cross- examination of any of the eye-witnesses i.e. A.
PWs 3, 4 and 6 on the assault part. [Para 5] (456-A-E]
1.3. So far as the delay in lodging the First
Information Report is concerned, it has been accepted
that the informant went to the wrong police station first.
B That clearly explains the delay. [Para 6] (456-F-G]
1.4. However, In view of the facts of the case, It is
apparent that the accused persons were annoyed with
the deceased because of his having illicit relationship
c with another lady while his wife was alive. The case does
not fall to the rarest of rare category. The appropriate
sentence would be life imprisonment. [Para 6] (457-A-B]
2. So far as A-3 is concerned, the High Court has
indicated sufficient reasons for holding him not guilty. (
D
Same needs no interference. [Para 6] (456-G-H]
,..
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 654 of 2004.
E From the Judgment and Order dated 11.10.2002 of the
High Court of Judicature of Bombay, Bench at Aurangabad in
Criminal Appeal No. 371 of-2002.
Pabbi (for Ravindra Keshavrao Adsure) for the Appellant.
F K. Sarada Devi, for the Respondent.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J.1. Challenge in this appeal is to
the judgment of a Division Bench of the Bombay High Court
G directing acquittal of the respondents who were convicted for
offence punishable under Section 302 read with Section 34 of
the Indian Penal Code, 1860 (in short the 'IPC') and sentenced
to suffer capital punishment so far as respondents 1 and 2,
namely, Prakash and Ramu are concerned. Accused No.3-
H
STATE OF MAHARASHTRA v. PRAKASH SAKHA VASAVE 453
AND ORS. [DR. ARIJIT PASAYAT, J.]
;.. Shiva was convicted for the aforesaid offence but was A
.... sentenced to suffer imprisonment for life. All the three accused
persons were also convicted for offence punishable under
Section 506 read with Section 34 IPC. No separate sentence
was imposed.
- 2. Prosecution version as unfolded during trial is as
B
follows:
Jaitubai is the sister of respondent Nos.1 and 2 and niece
of respondent No.3. Jaitubai was married to Madhukar
(hereinafter referred to as the deceased) long back. Jaitubai c
had a son Alpesh (PW6) and daughter Hema (PW5). Alpesh
and Hema are major. All of them are residents of Rayagaon
(Patilfali), Taluka Nawapur, District Nandurbar.
- -;. Deceased Madhukar brought Ramabai, a married woman D
and kept her in his house. On 15.7.2001, first husband of
Ramabai, alongwith 15 to 20 persons came to Madhukar. There
is a custom prevailing in their community, which is commonly
known as ZAGDA system. As per this custom compensation
is required to be paid to former husband. Pursuant to ZAGDA E
system, Madhukar paid Rs.5,051/- to the former husband of
Ramabai. Thereafter Madhukar was allowed to marry Ramabai.
Jaitubai and Ramabai stayed with Madhukar for a period of 15
days.
F
On account of marriage with Ramabai, the married life of
Jaitubai was disturbed. Accused nos. 1 to 3 were not happy
over this affair. They were shocked to know that their brother-
in-law Madhukar married Ramabai and kept her in the house
which adversely affected the married life of Jaitubai. Accused
became furious and decided to teach a lesson to Madhukar. G
~-
The incident occurred on 16.7.2001 at about 6.30 p.m. at
a close proximity of the house of deceased Madhukar.
Madhukar gave alarm to the effect "MARLE, MARLE". On
hearing the alarm of Madhukar, Reenabai (PW 3), sister of H
454 SUPREME COURT REPORTS [2009] 1 S.C.R.
A Madhukar, Gemji (PW 4), brother of Madhukar, daughter
Hemabai (PW 5) and son Alpesh (PW 6) immediately arrived
on the spot in order to see what had happened to Madhukar.
Surtan (PW 7), Gulabsingh (PW 8) and other persons from
neighbourhood also arrived on the spot after having heard the
B alarm of Madhukar. Accused Prakash went inside the house
and brought two axes. He retained one axe with him and
handed over another axe to his brother Ramu. Accused no.3
Shiva caught the legs of Madhukar by means of rope. Accused
no.I cut the left hand of Madhukar. He also cut right foot of
c Madhukar. Accused no.2 inflicted axe blows on the right eye-
brow and near the left ear of Madhukar. The blow was given
with so much force that the blade of the axe stuck into the head
of Madhukar and handle of the axe was broken. Accused no.2
brought knife from the house and inflicted blows on the back
of Madhukar by means of knife. Reenabai (PW 3) tried to
0
rescue her brother Madhukar, however, because of threats
administered by the accused, she did not dare to rescue her
prother Madhukar. In the presence of dear ones, Madhukar was
brutally assaulted. His organs were severed by means of axes.
E But the dear ones and close ones could not offer any kind of
help to Madhukar. After the brutal assault on Madhukar,
accused nos. 1 to 3 disappeared from the scene of offence.
Reenabai (PW3) asked Alpes: 1 (PW6) to go to the Police
Patil. Alpesh (PW6) went to Pangram and contacted Police
F Patil Shamji Gavit (PW11 ). Alpesh (PW-6) narrated the entire
incident to him. Police Patil Shamji (PW 11) went to Navapur
Police Station on the bike belonging to Sarpanch and disclosed
the occurrence to the Police. Reenabai (PW3) lodged FIR
(Exh.14) at 10.30 p.m. On the basis of FIR (Exh. 14) Crime No.
G 55/2001 came to be registered. P.1. Pradip Sonawane (PW18)
carried out further investigation of the crime and, after
completion of the irwestigation, sent 'up the charge sheet
against the accused nos.1 to 3. Learned Judicial Magistrate,
First Class, Navapur, Qistrict Nandurbar, committed the
H
STATE OF MAHARASHTRA v. PRAKASH SAKHA VASAVE 455
._ AND ORS. [DR. ARIJIT PASAYAT, J.]
accused nos.1 to 3 to the Court of Sessions to stand their trial. A
Since the accused persons pleaded innocence trial was
held. As noted above, the trial Court found the accused persons
guilty and death sentence in respect of A-1 and A-2 and life
imprisonment to A-3 was awarded. Three witnesses were B
stated to have witnessed the occurrence. They are PWs 3, 4
and 6. The trial Court found their evidence to be adequate and
accordingly recorded the conviction and imposed sentences.
The High Court directed acquittal primarily on the ground that
PW-3 did not speak about the presence of Gemji (PW-4) and
• there i~ doubt about the place of recording the first information
c
report and delay in lodging it. PW-3 did not speak about the
assault by A-2 with knife. Only PW-6 spoke about it. No overt
act was attributed by PW-6 to A-3. PW-4 did not say that the
-' axe was fixed on the head. The evidence of PW-2 was full of
D
"" contradictions as there was discrepancy about the recovery.
3. Learned counsel ~or the appellant-State submitted that
the High Court has lost sight of several important factors and
attached undue importance to minor discrepancies which are
·normal. E
4. Learned counsel for the r~ spondents on the other hand
supported the judgment of the High Court.
5. It is to be noted that PW-3 is the sister of the deceased.
There was practically no cross examination on the assault part.
F
So far as fixing of the axe on the head is concerned,
unnecessary importance appear to have been attached to the
same. As a matter of fact the conclusion of the High Court is
erroneous because PW-4 in his evidence has categorically
stated that the deceased was having injury on his body due to G
'1 assault by means of axes. One axe was found inserted in the
bone of head near the left ear. The handle of that axe was in a
broken condition. According to the evidence the axe was
inserted near about 4 to 5 inches in the head. Thereafter, all
H
456 SUPREME COURT REPORTS [2009) 1 S.C.R.
A the three accused persons ran away from the spot. The motive
indicated was that the deceased was having a illicit relationship
with another lady and, therefore, the family members of the wife
were upset. The High Court has come to an absurd conclusion
that the eye witnesses PWs 3 and 6 gave account of 4 to 5
B external injuries but the witnesses did not utter a single word
about remaining 15 injuries. The High Court came to the
conclusion that if at all these two witnesses witnessed the
incident from a short distance then it was not explained as to
why they were not able to account for the remaining injuries
c wbich were found on the body of the deceased. A witness who
witnesses an attack on another by three persons armed is not
supposed to go on counting number of assaults on the parts
of the body where the injuries were inflicted. They had
categorically stated about the external injuries 1, 4, 8, 14 and
18. It is noticed that PWs 3 and 4 came running after hearing
0
shout of the deceased. So it was possible that they had not
noticed the injuries which were earlier sustained due to
assaults. They appeared at the spot when the assault was
continuing. As a matter of fact, in his cross examination PW-4
had stated that on hearing shout of the deceased he rushed
E towards him and reached there within a short time. When he
reached at the spot of incident, at that time the deceased was
lying on the ground having injuries on his person. As noted
above, there is practically no cross examination of any of the
eye witnesses i.e. PWs 3, 4 and 6 on the assault part.
F
6. So far as the delay in lodging the First Information
Report is concerned, it has been accepted that the informant
went to the wrong police station and when he was directed to
go to Navapur Police Station, he went there and lodged the FIR.
G That clearly explains the delay. In the ultimate analysis, High
Court was not justified in directing acquittal of A1 and A2.
However, so far as A-3 is concerned, the High Court has
indicated sufficient reasons for holding him not guilty. Same
needs no interference. But the reasons indicated for directing
H
STATE OF MAHARASHTRA v. PRAKASH SAKHA VASAVE 457
AND ORS. [DR. ARIJIT PASAYAT, J.]
acquittal of A-1 and A-2 are not justified. We, therefore, set A
aside the judgment of High Court so far as their acquittal is
concerned. But considering the facts of the case, it is apparent
that the accused persons were annoyed with the deceased
because of his having illicit relationship with another lady while
his wife was alive. The case does not fall to the rarest of rare B
category. The appropriate sentence would be life imprisonment.
The State's appeal is allowed to the extent indicated above.
Respondents 1 and 2 are directed to surrender to custody
forthwith to serve the remainder of sentence.
K.K.T. Appeal partly allowed. C
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