Bombay High Court: Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., addressed a case of ‘Honour Killing’ by a brother of his own real sister and upheld the sentence of the death penalty.
Appellant Accused’s sister who was married had a love affair with another person prior to her marriage.
In 2017, she had left her matrimonial home without informing anyone and later her husband lodged a missing report. Since the accused-appellant was aware of the love affair he had a suspicion about the whereabouts of his sister.
Pooja could not forget her love. Consequently, she had not only left her matrimonial home without informing anyone, however, she had called deceased Govind on his mobile. Against the advice of the brother-in-law PW 5 Shankar Gade, deceased Govind had given his address to deceased Pooja.
Deceased Pooja went to village Kharbala at the house of PW 5 Shankar Gade and joined the company of the deceased Govind. Meanwhile, appellant-accused Digambar was searching for deceased Pooja and Govind. He was suspecting that both of them are together.
Appellant-accused reached the village Kharbala at the house of PW-5 and made a statement before all of them including deceased Pooja and deceased Govind that he will perform their marriage, though PW5 had told appellant-accused Digambar that marriage was not possible because Pooja was already married. Digambar, however, told PW 5 that deceased Govind was his childhood friend and even deceased Pooja made a statement that she had faith in her brother accused that he would perform her marriage with the deceased.
In view of the above said, appellant-accused Digambar, appellant-accused Mohan, deceased Pooja and deceased Govind left that place on one motorcycle being driven by appellant-accused Mohan.
Analysis, Law and Decision
Territorial Jurisdiction Issue
High Court agreed with the observations recorded by the trial court that the inspection notes, the defence evidence and the spot panchanama, if considered, then the spot where the dead body of deceased Pooja was lying comes under the jurisdiction of Telangana State. However, the spot where the actual incident of murder was committed was situated in the river towards southern side of Mahagaon-Palaj river confluence (sangam) which comes under the jurisdiction of Maharashtra State.
Bench opined that the entire case rested upon circumstantial evidence and there was no direct evidence in this case.
The prosecution established a link as to how even after marriage, deceased Pooja could not forget her love with deceased Govind and in consequence thereof, within one month and twelve days of her marriage with Jethiba Varshewar, she left her matrimonial home and went to the house of PW 5 to meet deceased Govind. Deceased Pooja left her matrimonial home with a determination to join the company of the deceased Govind.
Prosecution witness 5 and 6 revealed that the appellants accused had been to village Kharbala in exercise of the conspiracy hatched by them to eliminate Pooja and Govind.
Court noted that the manner in which the throats of both the deceased persons were slit, also indicated and gave a message that if the honour of the family is lowered down, the guilty thereof, are liable to be punished.
Hence, prosecution established the motive.
With regard to blood on weapon sickle, prosecution proved another link of circumstantial evidence that the blood on the clothes of appellant-accused Digambar and on the weapon was blood group “A”. There was no explanation from the appellant-accused about the same.
In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction.
In the present matter, Bench stated that the last seen theory was acceptable as the time gap between the point of time when the appellants-accused and both the deceased were last seen alive and both the deceased found dead is so small that the possibility of any other person than the accused being the author of the crime becomes impossible.
It was noted that both the appellants accused took deceased Pooja with them by giving her false assurance of her marriage with the deceased Govind and also took deceased Govind with them. Both the appellants-accused along with deceased Pooja and Govind left the house of PW 5 Shankar situated at village Kharbala, taluka Mudhol on one motorcycle being driven by appellant-accused no.2 Mohan leaving no chance for both the deceased persons to find out any other way of escape in case emergency so arises.
High Court added that, there was positive evidence about homicidal death, motive, so also the connecting evidence in the form of blood group of deceased appearing on the weapon and also on the cloths of the appellant-accused Digambar and thus, the circumstance of last seen together and the absence of satisfactory explanation on the part of the appellant-accused completed the chain of circumstantial evidence.
There was no possibility of any other person meeting or approaching the deceased at the place of incident or before commission of crime in the intervening period.
FIR given by accused
It is well settled that where the accused himself gives the first information report, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act.
Trial Court rightly observed that the said circumstance of confessional FIR was considered to the extent of the conduct of the appellant-accused Digambar under Section 8 of the Evidence Act.
High Court opined that there was sufficient positive evidence of homicidal death. The prosecution had established the chain of circumstantial evidence along with the motive on part of the appellant to commit murder.
Both the appellants failed to give a satisfactory explanation about the death of both the deceased persons when they were seen alive lastly in their company while leaving village Kharbala. Therefore, the death sentence of the accused person was confirmed for offence punishable under Sections 302, 201 read with 34 of Penal Code 1860 and Section 120-B IPC.
Capital Punishment and Mitigating Circumstances
Bench noted the fact that the incident in the present matter did not occur on the spur of the moment or a crime of passion, but craftily planned and meticulously executed.
The present crime is so grave as to shock the conscience of the society and would amount to the rarest of the rare.
In the Supreme Court decision of Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253, it was held that,
‘it is rarest of rare case and fit for imposition of death sentence. There are no mitigating circumstances. It is an act of taking advantage of absolute innocence. It is not only betrayal of individual trust but also betrayal of social trust. The act is an anathema to social balance. The act of the appellant shocks judicial conscience, conscience of the society and has a menacing effect on the society. His conduct and criminal antecedents reveal that he is and will be a menace to the society and cannot be reformed. Thus, there are no mitigating circumstances’.
In Bhagwan Dass v. State (NCT) of Delhi, (2011) 6 SCC 396, Supreme Court considered as to whether the death punishment can be awarded when the prosecution case rests on circumstantial evidence and particularly dealt with the issue of honour killing.
Court declined to accept the submission that the offence had been committed under the influence of extreme mental and emotional disturbance.
“We are shocked to see the manner in which deceased Pooja and deceased Govind were subjected to death.”
Elaborating its observation further, Bench stated that,
It was done not only with the sole intention to protect the honour of the family, and it was done by hatching conspiracy to punish both of them. The manner in which the throats were slit indicate the same. It was done with an intention to punish them so also to make it as a lesson for those who could dare to disobey the family.
The trial Judge had observed that the face of the accused was expressionless when the Court declared him guilty and there was no repentance at all.
Therefore, in view of the above, Court declined to consider the young age of the appellant-accused 1 and the possibility of his reformation.
High Court while reaching the conclusion expressed that the appellant accused could have cut off the social relations with Pooja and Govind, instead they opted to commit cold-blooded murder in a pre-planned and calculated manner.
In view of the above stated, Bench was not inclined to convert the death punishment of appellant-accused into life imprisonment. [State of Maharashtra v. Digambar, 2021 SCC OnLine Bom 5485, decided on 13-12-2021]