It must certainly be stated right at the very outset that in a most learned, laudable, landmark, logical and latest judgment titled State of Maharashtra vs Haribhau Telgote in Criminal Confirmation Case No. 4/2024 With Criminal Appeal No. 316/2024 and cited in Neutral Citation No.: 2024:BHC-NAG:12437-DB that was reserved on 17.10.2024 and then finally pronounced on 13.11.2024, the Division Bench of Nagpur Bench of Bombay High Court has frowned and seriously questioned the strange reasons that underpinned a Trial Court’s decision in Akot City of Akola District in Maharashtra to award the death penalty in a multi-murder case including an unwarranted invocation of the Mahabharata. The death sentence of two men and a women were commuted to life term. It was held by the Division Bench that:
The reasoning assigned by the Trial Court for awarding capital punishment are quite strange. The Trial Court has quoted a verse from Mahabharata, which we feel to be an unwarranted exercise. Very rightly so!

It must be noted here that the Division Bench comprising of Hon’ble Mr Justice Vinay Joshi and Hon’ble Mr Justice Abhay Mantri also was very critical of the Trial Court for relying solely on statistical data on murders to award the death sentence, instead of prioritizing the specific facts of the case before it. These sharp observations ostensibly came while the Division Bench was hearing an appeal that had been filed by a family parents and their son who was convicted of killing four members of their maternal family over a land dispute. The Bench noted that the conduct of Haribhau and Shyam while in jail was ‘satisfactory’ and that there were possibilities of reformation and therefore deemed it fit to commute their sentences to life imprisonment of 14 years and 30 years respectively.

At the very outset, this notable judgment authored by Hon’ble Mr Justice Vinay Joshi for a Division Bench of Nagpur Bench of Bombay High Court comprising of himself and Hon’ble Mr Justice Abhay J Mantri sets the ball in motion by first and foremost putting forth in para 1 that:
Extreme penalty provided under the Indian Penal Code (IPC) i.e. Death Penalty imposed by the Sessions Judge is placed before us for scrutiny due to mandate of Section 366 of the Code, as well as by virtue of appeal preferred by the accused in terms of Section 374[2] of the Code of Criminal Procedure (Cr.P.C.).

As we see, the Division Bench discloses in para 2 that:
Appellant Nos.1 to 3 were tried and convicted by the Additional Sessions Judge, Akot vide judgment and order dated 17.05.2024 in Sessions Case No.57/2015 for the offence punishable under Sections 302 read with Section 34 of the IPC and Section 506 [Part-II] read with Section 34 of the IPC. Though they have also been charged for the offence punishable under Section 323 of the Indian Penal Code, however, they were acquitted for the said charge. For offence punishable under Section 302 read with Section 34 of the IPC, accused nos.1 to 3 have been sentenced to death penalty along with fine of Rs.50,000/- each, with stipulation of default. For offence punishable under Section 506 [Part-II], read with Section 34 of the IPC, they have been sentenced to undergo rigorous imprisonment for 7 years along with fine of Rs.10,000/- each. Both sentences were directed to run concurrently. The trial Court has accorded benefit of set off to accused in terms of Section 428 of the Cr.P.C.

While co-relating relationship of deceased with accused, the Division Bench reveals in para 3 that:
Accused were related to each other. Accused no.1 Haribhau and accused no.2 Dwarkabai are husband and wife, whilst accused no.3 Shyam @ Kundan is their son. They have been charged for committing murder of 4 persons namely Shubham, Dhanraj, Gaurav and Baburao. The deceased are also interrelated to each other. Shubham and Gaurav were sons of Dhanraj, whilst 4th deceased Baburao was real brother of Dhanraj. Not only that rival parties are also related to each other. Accused no.2 Dwarkabai is real sister of deceased Dhanraj and Baburao, and thus, all are in relations.

To put things in perspective, the Division Bench envisages in para 4 that:
It is the prosecution case that family of deceased Dhanraj and Baburao had 29 Acres of ancestral agricultural land at village Malpura. Accused no.2 Dwarkabai, who was real sister of both brothers [Dhanraj and Baburao] was insisting for share in the said agricultural land. For the said purpose, accused no.2 Dwarkabai has filed a civil suit for partition long back in the Civil Court at Telhara. On account of allotment of share to accused no.2 Dwarkabai in ancestral land, there happened to be a dispute in between two brothers and sister Dwarkabai [accused no.2]. One month preceding to the incident accused no.2 Dwarkabai had sown cotton in 2 acres of ancestral land in between the field of two brothers Dhanraj and Baburao. For the reason of sowing in the land, accused no.2 Dwarkabai used to pick up quarrel with her two brothers.

While elaborating, the Division Bench observes in para 81 that:
It is the prosecution case itself that on the date of occurrence around 3 p.m. Dwarkabai was sowing cotton crop in the ancestral field. Deceased objected to such agricultural activities on which there was ruckus. In the said altercation, deceased Shubham misbehaved with Dwarkabai, which enraged her. Dwarkabai returned from the field to the village Malpura by hurling abuses, and in anger telephonically called her two sons and husband at village Malpura. In turn the accused arrived with weapons, and saw that the deceased Shubham was seated alone on the platform near flag post.

Immediately accused no.3 Shyam stabbed Shubham with knife at his stomach. Hearing shouts, Haribhau and Gaurav came to the rescue of Shubham, however, accused assaulted and axed them too. It was followed by Baburao arriving on the spot, but, he was dealt with the same treatment. The entire chain of events is to be appreciated as a whole to understand whether it was a pre-planned attack.

Do note, the Division Bench notes in para 82 that:
The above facts are clear enough to convey that before 3 p.m. everything was peaceful and normal. Even it is not the prosecution case that the accused have predetermined to kill all four deceased, and to execute the plan, they came and done victims to death. It can be gathered from the prosecution case itself that the accused i.e. Shyam and Haribhau were leading their normal day to day affairs till receiving phone message. It can be easily perceived that Dwarkabai informed that she has been manhandled by Shubham, that is why they have been called. Perhaps may be to teach a lesson to Shubham.

In response, Shyam and Haribhau got annoyed and came to the spot with weapons at their own. Undoubtedly Shyam came by auto from their residential place i.e. Akot, whilst Haribhau who was working in another field at village Malpura also came to the spot. It is evident that both of them had no prior communication, but, as Dwarkabai summoned, they came at their own to the help of Dwarkabai. The evidence discloses that there was no interaction, but, no sooner they saw Shubham seated on ota [platform], both of them assaulted him by means of deadly weapons.

These facts do not indicate that it was a pre-planned attack. Moreover, it requires to be noted that the initial assault was restricted to Shubham only. Since Gaurav and Dhanraj intervened to save Shubham, they became the prey. Likewise, Baburao also arrived on the spot with stick, hence, he was affected by the angried action of the accused. These circumstances indicate that accused did not planned to eliminate four persons, but, as the rest victims at their own came to the spot, it was at their detriment. The chain of events no where signals that the accused were predetermined to eliminate entire family of the victim, therefore, we are not in agreement with the submission advanced by the learned Addl.P.P. that it was a pre-planned murder of four victims. It is not the prosecution case that all the accused with pre-determined intention to kill came to the spot in search of victims and by finding, done them to death.

It is worth noting that the Division Bench notes in para 84 that:
Though the trial Court has culled out various circumstances, as referred in the above paragraphs, it needs consideration whether in real sense those can be termed as aggravating circumstances. The trial Court has culled out total 18 circumstances, however, most of them are repetition of one and the other. We fail to understand as to how the circumstances as delineated in paragraph nos.337/7 and 337/8, that there was no compulsion to commit murder or the accused were not under pressure or coercion to commit crime, can be termed as incriminating circumstance. Likewise, the circumstances culled out by the trial Court in paragraph no.337/13 and 337/15 that the accused Haribhau was a teacher which is a noble profession, however, how it can be termed as incriminating circumstance. The trial Court in paragraph no.337/17 has also observed that the accused took a false defence of shifting the responsibility on CCL Mangesh in a crooked manner.

In our considered view taking a particular defence cannot be termed as an aggravated circumstance. It is a statutory right of every accused to take defence, apart he may succeed or not, but, that cannot be treated as an aggravated circumstance. True, falsity of defence can be termed as an additional circumstance while recording finding of guilt, but, it cannot be termed as an aggravated circumstance while deciding the case on the set parameters of exceptional category.

Most significantly and interestingly enough, the Division Bench encapsulates in para 85 what constitutes the cornerstone of this robust judgment postulating that:
More interestingly the reasoning assigned by the trial Court for awarding capital punishment [paragraph nos.341 to 354] are quite strange. The trial Court has quoted a verse from Mahabharata, which we feel to be an unwarranted exercise. More interestingly in paragraph no.344 of the decision, the trial Court has reproduced some crime data regarding State of Maharashtra of last 10 years. It has been stated that during last 10 years, 23,222 offence of murder have occurred in the State. Incidents of 4 murder in a single occurrence in last 10 years are 19 in number. On the basis of said statistical data, it has been expressed that such incident of committing 4 murders in a single incident are rare and therefore, falls in the category of rarest of rare case. According to us, the said approach of the trial Court is erroneous, as on the basis of some statistical data, without returning to the facts of this case, the category cannot be decided. In criminal trial each case has its own feature and distinctions. The Court has to evaluate the case strictly on the facts of the case and not to be swayed by the statistics and numbers of similar cases. The said approach is wholly erroneous, which shall be kept out of consideration.

Be it noted, the Division Bench notes in para 86 that:
The trial Court in paragraph no. 347 has expressed that instances of active involvement of women in committing offence of murder is normally low. Instances of women committing murder of her two brothers and nephew is zero, and thus, it is a case of rarest of rare. Again we repeat that this reasoning to compress the case in exceptional category is wholly unjustified. As we have stated above, each case has its own feature and distinction, therefore, each and every case cannot be put in exceptional category by pointing out some unique feature. If such analogy is applied, then each case by its unique feature can be said to be falling in rarest of rare category. For example, by such analogy, murder by mother with two sons and husband perhaps may be unique, but, that cannot be an aspect for consideration.

Quite significantly, the Division Bench holds in para 101 that:
On careful consideration, we are of the considered opinion that the present case does not fall in the category of ‘rarest of rare’ case warranting the death penalty. For the aforesaid reasons, accused no.1 Haribhau is liable for alternate punishment of life imprisonment, as provided under law. However, considering that the accused no.3 Shyam has brutally attacked four innocents for no reason, allowing him to be released after 14 years of term is tantamount to trivializing the very purpose of sentencing policy. The ends of justice would be sufficiently served if the life imprisonment of the accused no.3 Shyam is for a minimum of 30 years of actual incarceration. We, accordingly, convert his death penalty into imprisonment of life, without remission for the period of 30 years of actual imprisonment.

It would be worthwhile to note that the Division Bench notes in para 102 that, The trial Court has convicted all the accused for the offence punishable under Section 506 (II) of the Indian Penal Code. There is no material to constitute said offence against accused no.2 Dwarkabai.

Most forthrightly, the Division Bench propounds in para 103 holding that:
In conclusion we hold that the conviction rendered by the trial Court to the extent of accused no.2 Dwarkabai is unsustainable in law under all charges. However, we maintain the finding of the trial Court to the extent of holding accused no.1 Haribhau and accused no.3 Shyam guilty of the offence punishable under Section 302 of the Indian Penal Code. We also hold that the trial Court seriously erred in understanding the principle of ‘rarest of rare’ case as delineated by the Supreme Court in catena of decisions, ultimately misdirecting itself, by awarding the extreme penalty. Therefore, we commute the death sentence of both the accused i.e. accused no.1 Haribhau and accused no.3 Shyam. We convert the sentence of accused no.1 Haribhau into life imprisonment, whilst convert the sentence of accused no.3 Shyam to undergo life imprisonment without remission for a period of 30 years of actual imprisonment.

In addition, the Division Bench directs in para 104 mandating that:
The trial Court has imposed fine of Rs.50,000/- on both i.e. accused no.1 Haribhau and accused no.3 Shyam for which we see no justification. We reduce the fine amount to the extent of Rs,10,000/- each with default clause as per the trial Court, for the offence punishable under Section 302 of the Indian Penal Code.

What’s more, the Division Bench further directs in para 105 stating that, Accused no.2 Dwarkabai is acquitted of all charges. She be released forthwith, if not required in any other offence. The fine amount, if any, paid by her, be refunded.

In sum, we thus see that the Bombay High Court in its 106-page judgment very rightly commutes death penalty awarded by the Trial Court to life term of two men and a woman. The reasons for commutation we have already dealt with herein aforesaid which were more than adequate to commute the death penalty to life term in proportion to the role played in the murder! One thus finds no reason to not concur with what the Bombay High Court has held in this leading case so elegantly, eloquently, eruditely and effectively!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh