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State of Rajasthan and anr. Vs. Lemba - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Murder Reference No. 1 of 1985 and D.B. Criminal (Jail) Appeal Nos. 28 and 62 of 1985
Judge
Reported in1985WLN(UC)151
AppellantState of Rajasthan and anr.
RespondentLemba
Cases ReferredState of Rajasthan v. Heera
Excerpt:
criminal trial - extra judicial confession-evaluation of--accused an adivasi with no high mental calibre--accused when detained got infuriated hurled threats and made confession--pw 10 is independent witness-held, extra judicial confession stands proved;while assessing and evaluating the evidence relating to extra-judicial ' confession, the understanding and mentality of the accused, the society to which he belongs and his status will have to be taken into consideration. the accused as a aadivasi with no high mental calibre. it is not unusual for aaddivasies to make confessions of the guilt in the manner alleged to have been made by the appellant. murders an aadivasies are committed for no reasons and so are confessions made without taking into account the ultimate consequences. it.....s.s. byas, j.1. accused lemba has been convicted and sentenced to death under section 302, ipc by the sessions judge, banswara by his judgment dated january 24, 1985. he has also been convicted under sections 201 and 436, ipc and has been sentenced to two years rigorous imprisonment with a fine of rs. 100/-, in default of the payment of fine to further undergo one month's like imprisonment on each count. the learned sessions judge has submitted the proceeding under section 366(1) cr. p.c. for the confirmation of the death sentence. as usual, the accused has come up in appeal to challenge his convictions and sentences. he has filed two appeals--one through jail and the other represented. we have, thus, two matters before us, viz. (1) the reference for confirmation of the death sentence and.....
Judgment:

S.S. Byas, J.

1. Accused Lemba has been convicted and sentenced to death under Section 302, IPC by the Sessions Judge, Banswara by his judgment dated January 24, 1985. He has also been convicted under Sections 201 and 436, IPC and has been sentenced to two years rigorous imprisonment with a fine of Rs. 100/-, in default of the payment of fine to further undergo one month's like imprisonment on each count. The learned Sessions Judge has submitted the proceeding under Section 366(1) Cr. P.C. for the confirmation of the death sentence. As usual, the accused has come up in appeal to challenge his convictions and sentences. He has filed two appeals--one through jail and the other represented. We have, thus, two matters before us, viz. (1) the reference for confirmation of the death sentence and (2) the appeals of the accused.

2. Briefly stated, the prosecution case is as follows : The appellant and three wives (1) Kauri, (2) Khatri & (3) Dalli and three daughters (1) Babli (aged about 8 years), (2) Ramila (aged about 6 years) and (3) Resham (aged about three years) from Mst Dalli. He was living with them in his house situate in Mauja Chhoti Basti P.S. Gaddi district Banswara. As none of the wives could oblige him by bearing a male child, the accused became frustrated and a sense of hatred against them overtook him.

3. At about 5.00 or 6.00 A.M. on November 23, 1983, some of the inhabitants of village Chhoti Basti noticed appellant's house in flames and smoke. They reached there. The house was burning. They extinguished the fire. The villagers further noticed three cots lying in the Parsal, each having the dead bodies of a wife and a daughter. There was blood all around. The six dead bodies i.e. of the three wives and three daughters of the accused had multiple wounds on their necks. The search for the accused was made but he could not be traced. PW 1 Hamira, who was among the villagers, went to Police Station, Gaddi and presented written report Ex.P 1 at about 11.00 A.M. on the same day. Suspicion was laid on the appellant. The police registered a case and proceeded with investigation. The Station House Officer Karansingh (PW19) arrived on the spot and prepared the inquest report of the victims' dead bodies. He also seized & sealed the blood-stained soil from the place where the cots were found lying. The clothes of the deceased-victims were also seized and sealed. The post mortem examination of the dead-bodies of all the six victims were conducted on November 23, 1983 by Dr. Vijay Singh (PW 16). According to him the cause of death of all the six victims was syncope consequent to haemorrhage from wound of large blood vessels in neck. The post-mortem examination reports issued by him are Ex.P 23 to Ex.P 28. Efforts were made by the Investigating Officer to trace-out the appellant, but with no success.

4. At about 9.00 A.M. on November 25, 1983, PW 14 Gaffer Lal, PW 8 Shanker, PW 10 Pratap Singh and PW 12 Mani Lal were sitting at the workshop of PW 12 Mani Lal in village Aanjna. They saw the accused going in the way situate nearby. They told him as to where he was going and that the police was in search of him. It is alleged that the appellant made a confession before them to have killed his wives and daughters. They tried to catch-hold of him but could not. The accused took to heels and thus managed to escape. At about 8.30 A.M. on November 25, 1983 he was arrested in the forest. At the time of his arrest, he was wearing a Dhoti. Blood-stains were noticed on it and it was seized and sealed. At the time of his arrest, gold and silver ornaments (Articles 1 to 6 ) were found with him. These articles were also seized and sealed. In the test-identification, these ornaments were identified as those which were worn by the wives and daughters of the appellant. In consequence of the information furnished by the accused, Dantera (Hansiya) Article 7 was recovered from a well. The seized articles were sent for chemical examination and blood was found on most of them, but not on the Dhoti of the appellant and the Dantera recovered in consequence of his information. On the completion of investigation, the police presented a challan in the Court of Munsif & Judicial Magistrate, Banswara, who in his turn committed the case for trial. The learned Sessions Judge, Banswara framed charges against the accused under Sections 302, 436 and 201 of the Penal Code, to which he pleaded not guilty and demanded the trial. In support of its case, the prosecution examined 19 witnesses and filed some documents. In defence, the accused adduced no evidence. In his statement recorded under Section 313, Cr.P.C, he claimed absolute innocence. However, he admitted therein that gold and silver ornaments were found in his possession at the time of his arrest and that be was there in his house in the fateful night of 22nd & 23rd November, 1983. According to him, some unknown person had killed the victims and set fire to his house. On the conclusion of trial, the learned Sessions Judge, found all the three charges duly proved against the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set.

5. We have heard the learned Public Prosecutor and the learned counsel appearing for appellant We have also gone through the case file carefully.

6. Before proceeding further, it may mentioned that Mr. Shishodia, learned counsel for the appellant, who argued the case at length, did not challenge the opinion of Dr. Vijay Singh (PW 16) relating to the cause of death of all the six victims. We, therefore, need not deal with the testimony of Dr. Vijay Singh. As stated by Dr. Vijay Singh, the death of the victims had taken place on account of syncope consequent to haemorrhage from wound of large blood-vessels in their necks. Thus, the deaths of all the six victims were not natural but homicidal.

7. Admittedly, there is no eye witness of the occurrence and the prosecution case rests squarely on the circumstantial evidence. In order to bring home the charges to the accused the prosecution adduced the following sets of circumstantial evidence:

(1) Recovery of Dantera (Article 7) in consequence of the information furnished by the accused;

(2) blood-stains were found on his Dhoti which he was wearing at the time of his arrest;

(3) extra judicial confession made by the accused on November 25, 1983;

(4) recovery of gold and silver ornaments of the victims (Articles 1 to 6) from the accused's personal possession at the time of his arrest ;

(5) the accused was present in his house in the night between 22nd and 23rd November, 1983 where the occurrence had taken place;

(6) the guilty conduct of the accused for remaining absconding after the occurrence; and

(7) the frustration and hatred which he had developed against the victims.

8. The learned Sessions Judge found the first two sets of evidence as furnishing no incriminating material against the appellant. He, however, was of the opinion that the remaining five sets of circumstantial evidence unerringly point out the guilt of the accused and were sufficient to hold that the appellant was the perpetrator of the crime. Mr. Shishodia has vehemently contended that these sets of evidence do not stand proved and even if taken as proved, are not sufficient to seek the conviction of the accused. He has made a severe criticism of each of these sets of evidence and submitted that the conviction was wholly unsustainable and unwarranted. It would be proper to deal with his contentions at seriatim.

9. The first contention raised by Mr. Shishodia is that the evidence relating to the extra judicial confession is shaky, discrepant and contradictory. The prosecution has examined four witnesses to prove the extra judicial confession. Out of them two turned hostile and the third stands contradicted by his previous statement. There was no occasion for the accused to make a confession of the guilt before so many persons who were neither his relatives nor his friends. It was argued that normally the accused confesses the guilt before a person on whom he has confidence. The four prosecution witnesses do not belong to this category. In these circumstances it would be unsafe to base the conviction of the accused on extra-judicial confession. It was, on the other hand, contended by the learned Public Prosecutors that the four witnesses, who were examined to prove the extra judicial confession were independent persons who had no animus against the accused to implicate him falsely. Though two of them turned hostile and the third stands contradicted by his previous statement, the fourth namely PW 10 Pratap Singh has lent full support to the Prosecution. PW 10 Pratap Singh is an independent person and there are no reasons to put his testimony at a discount. We have given our thoughtful consideration to the rival contentions.

10. In Ramsingh v. The State of Uttar Pradesh 1962 (2) SCC 136 it was observed that extra judicial confession are usually not considered with favour but that does not mean that such a confession coining from a person who has no reason to state falsely and to whom it is made in such circumstances which tend to support his statement, should not be believed. In Hardayal v. The State of Uttar Pradesh AIR 1978 SC 2055 it was observed that an extra judicial confession, if cogently proved to have been made truly and voluntarily, is an efficacious proof of guilt.

11. The pertinent question before us is whether any extra judicial confession was made by the accused. The value of the evidence as to the extra-judicial confession depends on the veracity, reliability and truthfulness of the witnesses who come forward to prove it. According to prosecution, at about 9.00 A.M. on November 25, 1983 the accused happened to pass in the way out side the village Aanjna near Aara Machine Workshop of PW 12 Manilal. PW 4 Gaffer Lal, PW 8 Shanker, PW 10 Pratap Singh and PW 12 Manilal were sitting at the workshop. They asked the accused as to why he was running hither and thither. The accused confessed before them that he had killed the six members of his family. Saying so, the accused took to heels and disappeared. The prosecution has examined all these four persons, PW 4 Gefferlal, PW 8 Shanker, PW 10 Pratap Singh and PW 12 Manilal to prove the extra judicial confession. Unfortunately, two of them viz. PW 4 Geffer Lal and PW 12 Manilal turned hostile to the prosecution, though they supported the prosecution to the extent that the accused happened to pass in the way situate out-side the workshop of Manilal (PW 12) in the morning of November 25, 1983. According to these two hostile witnesses, when the accused happened to pass in the way out-side the workshop, they tried to detain him but the accused managed to run away. He was chased by them but with no success. Both these hostile witnesses were cross-examined with reference to their earlier statement Ex. 11 and Ex. P. 16 recorded under Section 161 Cr.PC. They denied to have given these statements. Any way, the fact stands proved from what these two witnesses deposed that the accused happened to pass at about 9.00 A.M. on November 25, 1983 the workshop of PW 12 Manilal.

12. PW 8 Shanker deposed that when the accused happened to pass out-side the workshop of Manilal (PW 12), an attempt was made to detain him. The accused took to heels and managed to run away. He was chased by these witnesses and others. The accused took shelter in a ditch. The witness stated that before the police could arrive there, he had a talk with the accused. The accused Confessed the guilt and begged for his help to protect him. This story stated by PW 8 Shanker in the course of trial was not disclosed by him before the police in his statement Ex. P. 1, recording during trial. In Ex P.1, what he stated is that the accused made the confession out-side the workshop of PW 12 Manilal. Thus, the testimony of PW 8 Shanker does not help the prosecution in any way to prove the extra-judicial confession.

13. Now remains PW 10 Pratap Singh. He deposed that at about 9.00 A.M. on November 25, 1983 when he was sitting at the workshop of Manilal PW 12 alongwith Geffer Lal (PW 4), Shanker (PW 8) and Manilal (PW 12) the accused happened to pass in the way situate out-side the workshop. Shanker (PW 8) and Geffer Lal (PW 4) tried to detain the accused. The accused lifted a stone and told them not to detain him. He further told that in case they made an attempt to detain him he would kill them also as he had killed six members of his family. The accused saying so went away, the learned Sessions Judge accepted the testimony of this witness as reliable and dependable. The contention of Mr. Shishodia is that when three of these witnesses did not support the extra-judicial confession, it would be risky to accept the testimony of PW 10 Pratap Singh as reliable and dependable. It was argued that there was no occasion for the accused to make a confession in the manner alleged by this witness. We find no substance in the contention of Mr. Shishodia. PW 10 Pratapsingh has no animus or ill-will against the accused so as to implicate him falsely. He is an independent witness. Nothing has been brought out in his cross-examination which may put his testimony at a discount. He has no reason to state falsely against the accused. His statement is consistent through-out.

14. We are not much impressed with the contention that there was no occasion for the accused to make extra judicial confession. While assessing and evaluating the evidence relating to extra-judicial confession, the understanding and mentality of the accused, the society to which he belongs and his status will have to be taken into consideration. The accused is an Aadivasi with no high mental calibre. It is not unusual for Aadivasies to make confession of the guilt in the manner alleged to have been made by the appellant. Murders in Aadivasies are committed for no reasons and so are confessions made without taking into account the ultimate consequences. It appears that when an attempt was made to detain the accused, he got infuriated and hurled out the threats. While doing so, he made confession of having killed six members of his family. We may repeat that Pratap Singh (PW 10) is an independent witness. We find no risk in treating him as a witness of truth. We, are therefore unable to subscribe the view expressed by Mr. Shishodia that the extra judicial confession does not stand proved. The first contention thus, fails.

15. The next contention raised by Mr. Shishodia is that the recovery of gold and silver ornaments (Article 1 to Article 6) afford no incriminating circumstance against the accused. It was argued that gold and silver ornaments (Article 1 to Article 6) belong to the deceased-victims which were the wives and daughters of the appellant. The recovery of these articles from his personal possession, therefore, afford no incriminating material against him.

16. The prosecution case regarding recovery of the gold and silver ornaments (Article 1 to Article 6) is that when the appellant was arrested at about 8.00 P.M. on November 25, 1983, these ornaments were found in his personal possession. He had tied them in a bundle which he was having with him. The witnesses speaking to prove the arrest and recovery of the gold and silver ornaments are PW 8 Shanker and the Investigating Officer Karansingh (PW 19). The seizure-cum-arrest memo is Ex. P. 13. According to these two witnesses, when the accused was arrested, gold and silver ornaments (Article 1 to Article 6) were found in his personal possession which he had tied in a cloth-bundle. The accused, in his statement recorded Under Section 313, Cr. PC (vide questions No. 9 and 10) has clearly admitted that at the time of his arrest, these silver and gold ornaments (Article 1 to Article 6) were found in his personal possession. There is, therefore, no difficulty in concluding that at the time of the arrest of the accused, gold and silver ornaments (Article 1 to Article 6) were found in his personal possession.

17. There is again convincing evidence to show that the deceased-victims used to wear these gold and silver ornaments (Article 1 to Article 6). PW 6 Lakshi is the real elder brother of the accused. He deposed that the deceased-victim Khatri (wife of the appellant) used to wear silver Karas (Article 1 and Article 2), silver Hasli (Article 3) and gold Balas (Article 4 and Article 5). He further deposed that the deceased-victims Babli (daughter of the accused) used to wear silver Tagli (Article 6) and the deceased-victim Mst. Kauri (wife of the accused) used to wear gold Balas (Article 4 and Article 6). PW 7 Nagji is the real nephew of the accused. He stated that the deceased-victim Mst. Khatri (wife of the accused) used to wear ornaments Articles 1, 2, 3 and 4, whereas the deceased-victim Mst. Dalli (wife of the accused) used to were ornaments (Article 5). He had correctly identified these ornaments in the test-identification parade conducted by the Tehsildar, Ram Kripal (PW 15) on December 27, 1983. The test-identification memo of these ornaments is Ex. P 12.

18. PW 17 is yet witness speaking about these ornaments. He is also a nephew of the accused. He deposed that the deceased-victim Mst. Khatri (wife of the accused) used to wear ornaments Article 1, 2 and 3 and the deceased victim Babli (daughter of the accused) used to wear ornament Article 6. There is, thus, over whelming evidence in the prosecution side to show that the deceased-victims Mst. Khatri, Mst. Kauri Mst. Dalli and Mst. Babli, who were wives and daughter of the accused used to wear these ornaments.

19. The circumstances in which the accused was found in possession of these gold and silver ornaments speak heavily against him. He was arrested in the jungle on November 25, 1983, i.e. two days after the occurrence. As will be discussed at the appropriate place, the accused was found absconding from his house on 23rd, 24th and 25th of November, 1983. There was no occasion for him to take these ornaments with him and that too in a forest. We are quite conscious that the husband's possession of the ornaments of his wife is not unnatural. But in the peculiar circumstances, in which the accused absconded and was found in possession of these gold and silver ornaments, his possession cannot be said to be innocent or innocuous. The place where he was arrested and the circumstances that he was absconding after the murder of his wives and daughters play a significant role and furnish a very valuable link in the chain of circumstantial evidence.

20. It was argued by Mr. Shishodia that the prosecution has not adduced evidence to show that at the time of the murder of the victims they were wearing these ornaments. It was argued that unless the evidence that the victims were wearing these ornaments at the time of the commission of the crime is adduced, the mere recovery should not be taken as an incriminating circumstance against the accused. We are unable to subscribe the view placed before us. These silver and gold ornaments are of common pattern which the women-folk in the villages constantly put-on. Taking in view the type of ornaments it can be held without difficulty that the victims were wearing them at the time of the commission of the crime. It may be pointed out that when the inquest reports of dead bodies of the victims were prepared by the Investigating Officer Karansingh (PW 19) no ornament was found on their bodies. That leads to the inference that the ornaments which they were wearing and which were Article 1 to Article 6 were removed from their bodies. The contention of Mr. Shishodia, therefore, that the recovery of these ornaments (Article 1 to Article 6) from the personal possession of the accused at time of his arrest furnishes no incriminating material, has no force.

21. It was next contended that the finding of the trial court that the accused was present in the right between 22nd and 23rd of Nov., 1983 at his house(the right in which the murders were committed) is based on no evidence. It was argued that only one witness Lakshi (PW 6) was examined to prove his presence. The other witnesses of the locality have not supported him on this count. It would, therefore, be unsafe to accept the presence of the accused in that fateful night at his house on the basis of the testimony of PW 6 Lakshi. The contention does not go down well. The accused, in his statement recorded Under Section 313, Cr. PC (vide question No. 34) has admitted that he was at his house before the occurrence. PW 6 Lakshi is the real elder brother of the accused. There is nothing on record to show, nor any question was put to him in cross-examination to suggest that he bears any ill will against the accused or is on inimical terms with him. There is, therefore, no reason to discredit the testimony of PW 6 Lakshi. He deposed that on November 22, 1983 the wives of the accused (the deceased-victims) were working on the field as the accused was at his house because his minor daughters were there. He further deposed that when he was taking his bullocks to a water-tank, he had seen the accused at his house. The other prosecution witness do not state that the accused was not. present at his house on the day of occurrence. All they the state is that they had not seen him at his house. Simply because they had not seen him, it cannot be inferred that the accused was not there at his house. There is the positive evidence of PW 6 Lakshi and as discussed above, we are unable to discard it. Thus, the presence of the accused on November 22, 1983 at his house stands proved. His presence furnishes a very significant piece of circumstantial evidence against him.

22. The next contention raised by the learned counsel is that the trial court gave undue importance to the fact that the accused was not found at this house a on 23rd, 24th and 25th of November, 1983 and that he remained absconding during these days. It was argued that the accused got nervous and became apprehensive that since the murders of his wives and daughters had taken place, he would be falsely implicated. It was under these compelling circumstances that the accused left his house and did not make himself available. The argument is not well based.

23. The six close relatives of the accused three of whom were his wives and three were his daughters were done to death. The accused, though present at his house on November 22, 1983, was missing after the commission of the offence and was not traceable on 23rd, 24th and 25th of Nov. 1983. The conduct of the accused in absconding immediately after the occurrence furnishes a very useful piece of evidence if there is other evidence to connect the accused with the crime. It is true that mere absconding cannot be made the basis of conviction. But his disappearnce and specially in the circumstances of the present case, affords a link in completing the chain of circumstantial evidence. Section 8 of the Evidence Act permits the absconding conduct of an accused as a relevant fact in assessing the guilt of the accused. Here in the instant case, as discussed above, three wives and three daughters of the accused were done to death and yet the accused took no steps and remained absconding and untraceable for three days. He did not voluntarily make himself available. It was with great difficulty that the police could arrest him. In these circumstances, the absconding of the accused immediately after the occurrence is a serious circumstance to be taken into consideration against him. He has not furnished any explanation as to why he had remained absconding even after his wives and daughters were done to death.

24. It may be pointed out that in his statement recorded, Under Section 313, Cr. PC (question No. 35) he admitted that some body had killed his wives and daughters and yet he took no step to go to police and did nothing in that direction. All these facts, when taken together with the fact of his absconding after the murders, cannot be lightly brushed, aside. They speak heavily against him.

25. In assailing the conviction, the last contention raised by Mr. Shishodia is that no motive, good, bad or indifferent is forth coming from the prosecution side. It was argued that six deceased-victims were the wives and daughters of the appellant. As per prosecution, relations between them were sweet and cordial. The accused, therefore, had no animus to annihilate them. The absence of motive suggests that the accused has been falsely implicated and has been wrongly substituted for the real culprit.

26. The motive suggested by the prosecution is that though the accused had three wives, none of them would bear a male child to him. He, therefore, became frustrated and this frustration pushed him to finish his wives and the daughters. Admittedly, the appellant had no male child from his three wives. But from this fact only, we are unable to infer any motive for the crime. The appellant had already three wives and if none of them could bear a male-child to him, he would have taken another wife. The prosecution evidence shows that the accused has no dispute with his wives and the minor daughters. PW 5 Bala is the real elder brother of the appellant, according to whom the relations between the appellant and his wives were sweet and cordial and there was no dispute between them. There is no evidence to the contrary to show that the accused had started hating his wives and daughters. Thus the motive suggested by the prosecution does not stand proved. However, the absence or inadequacy of motive is not of much importance when there is formidable evidence to connect the accused with commission of the crime. The absence of motive only requires that the evidence adduced to prove the guilt should be scrutinized carefully and cautiously. The various pieces of circumstantial evidence alluded above unerringly point out that the six victims were done to death by the appellant and the appellant only. We are, therefore, unable to subscribe the view propounded before us that the absence of motive makes the entire prosecution case suspicious.

27. Where the case rests solely on the circumstantial evidence the various pieces of evidence connecting the accused with the commission of the offence should be taken into consideration. It is the cumulative and total effect of these various pieces of circumstantial evidence from which a conclusion has to be drawn about the guilt or innocence of the accused. The circumstances must not only be compatible with the guilt of the accused but they should also be incompatible with his innocence.

28. In the instant case, as discussed above, the various links in the chain of circumstantial evidence show that the accused was present in his house on November 22, 1983 he was found missing next day, remained absconding till the after noon of November 25, 1.983, it was with great difficulty that he could be arrested, and when he was arrested, gold and silver ornaments (Article 1 to Article 6) which his wives and daughter used to wear, were found in his possession in the suspicious circumstances and that he had made extra-judicial confession. These various sets of circumstantial evidence unerringly point out that it was the accused and the accused alone who is the perpetrator of the murders of the six victims.

29. For the reasons discussed above, we are of the opinion that the accused was rightly convicted Under Section 302 IPC. His conviction is unassailable. Mr. Shishodia did not challenge the conviction of the accused Under Section 436 and 201, IPC. No interference as regards the conviction of the appellant is, therefore, called for.

30. The question which now survives for consideration is whether the sentence of death awarded to the appellant should be confirmed. It was argued by the learned Public Prosecutor that as many as six innocent persons were hacked to death by the appellant and as such no leniency in the matter of punishment is called for. There are no extenuating or mitigating circumstances speaking in favour of the accused. As such it is a fit case for imposing the extreme penalty. It was, on the other hand, contended by Mr. Shishodia that as per prosecution evidence, the accused was suffering from imbalanced mind. The prosecution evidence shows that the mental condition of the accused was abnormal. The murders were motiveless. The victims were the appellant's wives and daughters. It was argued that though the accused could not make out a case of insanity Under Section 84. IPC, to absolve him completely from the guilt, yet his mental derangement should be taken into account while awarding the sentence.

33. Section 354(3) of the Code of Criminal Procedure enjoins a duty on the Court to mention special reasons for imposing the capital sentence on an accused. The scope and ambit of Section 354(3), Cr. PC were recently dealt with in State of Rajasthan v. Heera 1985 RLW 37, to which one of us (Byas, J) was party. In para 16, it was laid down:

The position is, thus, well settled that there is no, and cannot be a set formula, as to what would constitute 'Special reason' for awarding a sentence of death. It depends on various factors, such as whether the crime was motivated, pre-meditated, deliberate and a result of well-knit design, whether it was committed for lust or greed or whether it was committed at the spur of moment due to any sudden impulse or excitement. It is difficult to put 'Special reasons' in a straight jacket and each case depends on its particular facts. From the numerous injuries alone on the victim's body, it is not proper to take it a case of chilling murder. The absence of apparent motive on the part of the accused in a murder case has a material bearing on the question of sentence.

32. Here in the instant case, the prosecution evidence shows that the accused was suffering from imbalanced mind. PW 1 Hamira, PW 2 Moga, PW5 Bala and PW 7 Nagji deposed that the accused was behaving abnormally. cks[kyk gks x;k Fkk] og ikxyks dh rjg fQjrk jgrk Fkk && og xaM+k gks x;k Fkk They further stated that the accused used to loiter about aimlessly without purpose. He did not work properly. We are quite conscious that sheer abnormalities of behaviour should not be allowed to be used as an umbrella to protect the accused on the ground of insanity. We are, therefore, not extending any benefit of insanity to the accused Under Section 84 of the Penal Code and we are not absolving him from guilt on that account. But the acts of the accused, as stated by the prosecution witnesses do exhibit symptoms of his mental derangement. It may not be sufficient to afford him a complete defence Under Section 84, IPC, but is an important circumstance to be taken into consideration on the question of sentence. The murders were motiveless and were not actuated by any lust, vengeance or greed. The accused was suffering from imbalanced mind. In these circumstances we do not find any special or compelling reasons to impose the extreme penalty on the accused. It is not a fit case where the accused should be condemned to death. We accordingly commute the sentence of death to one of imprisonment for life.

33. In the result, we maintain the conviction of the accused Lemba Under Section 302 IPC, but, commute the sentence of death awarded to him to one of imprisonment for life. His conviction and sentence Under Section 436 and 201, IPC are maintained. Sentences shall run concurrently. The appeals are dismissed subject to the modification regarding the sentence Under Section 302, IPC. The reference for confirmation of the sentence of death is rejected. The period of detention undergone by the accused during enquiry, investigation and trial shall be set off against the period of imprisonment awarded to the accused.


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