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Asar Alam Alias Afsar Alam v/s State Of Bihar

    Decided On, 16 July 2009

    At, High Court of Bihar


    For the Appearing Parties: Akhileshwar Prasad Singh, Lala Kailash Bihari, Advocates.

Judgment Text

(1.) THE sole appellant stands convicted under Sections 302, 201 of the Penal Code, in Sessions Trial No. 647 of 2007/tr No. 72 of 2007 by judgment dated 16-2-2008 of the Additional Sessions judge, Fast Track Court, Kishanganj, and sentenced to death as also 7 years rigorous imprisonment under Section 201 of the Penal Code. Hence, the appeal and the death reference.

(2.) THE case of the prosecution was initiated on the fardbeyan of one Dil Mohammad, p. W. 2, recorded on 15-2-2007 at 9. 45 a. m. at his door by the Officer Incharge, kochadhaman Police Station registered as an FIR the same day at 4. 30 p. m. as kochadhaman P. S. Case No. 20 of 2007.

(3.) THE fardbeyan stated, that in the midnight of 14/15-2-2007, his younger brother (read the appellant) caused the brutal death of their mother Dilera Khatoon, aged 55 years by cutting her neck with a 'dabia' and breaking her leg. He woke up on the commotion when he saw that his mother was being brutally assaulted with 'dabia' and that her head had been severed from the torso. The witness raised alarm. The neighbours came running. His brother, the appellant, who was inside the room, threatened that if any one dared to touch him, he would meet the same fate. He then tore apart the thatched wall of the room and ran away towards the west.

(4.) THE cause of occurrence was ascribed to the belief of the appellant that his mother was instrumental in sending his wife away to her parental home. Agitated with the same, the appellant, brutally murdered their mother by cutting her neck and severed her head and ran away with the portion of the body above the neck. The fardbeyan was read over, understood and satisfied of its correctness was signed by him in presence of one Sabir Alam.

(5.) INQUEST report was prepared on 15-2-2007 at 9. 45 a. m. It was noticed that the neck of the deceased had been severed, the head was not available and three small piece of skull were lying. The right leg was twisted from knee after breaking while thigh portion was laid straight. The finger in the right hand was amputated. The death appeared to have been caused by sharp cutting weapon. Sabir Alam was a witness to the inquest report also.

(6.) POST-MORTEM was done at 9 a. m. on 16-2-2007 at the Sub-divisional Hospital, kishanganj. The examination revealed the following ante-mortem injuries on the body of the deceased : "1. Head amputated from level of neck, completely separated, with all the tissues of neck-trachea, oesophagus, muscles, vessels, nerves, subcutaneous tissues, skin, cervical vertebrae, spinal chord, meninges etc. truncated with lacerated and ragged margin although skin margins are sharp. 2. Incised wound extending of back of (R) shoulder extending up to back 12" x 4" with hampered (sic) lower part approximately

18" (one and half feet) x 3" with skin and muscle deep. 3. Incised wound back of (L) gluteal region obliquely. 4. Multiple piercing wound back of (L)arm and elbow with fracture of (L) forehand bone (radius and ulna). 5. Incised wound around (R) elbow with fracture both fracture (R) humerus 3" x 2" size with bone. 6. Lacerated wound (L) leg compound wound 4" x 3" x bone deep of both bon

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e (L)tibia and fibula compound fracture. 7. Incised wound front of upper chest 1" x 4 1/2 obliquely. 8. Lacerated wound (L) foot 3 1/2 x 1 1/2 bone deep with fracture bone. 9. Some tissues of head and face crushed and sent in a polythene bag for post-mortem time elapsed since death within 36 hours. Cause of injuries Nos. 1, 2, 3, 4, 5 and 7 due to sharp cutting weapon and injuries nos. 6,8 and 9 due to hard blunt substance. "

(7.) THE Doctor opined that the death was caused due to haemorrhage and shock, as a result of the above-mentioned injuries.

(8.) AFTER investigation and recording of statement of witnesses, charge-sheet was submitted under Sections 302, 201 of the penal Code against the appellant for causing death of his mother and disappearance of the head of the dead body. The charge was explained to him on 20-7-2007 which he denied.

(9.) ON 20-7-2007 the appellant stated that he was a poor person and he be provided with a defence counsel. Sri Suren prasad Saha, Advocate, was appointed as defence counsel by the Court. On 3-8-2007 a fresh Vakalatnama was filed by one Sri om Kumar, Advocate on behalf of the appellant. On 27-8-2007 another Vakalatnama was filed by another defence counsel along with an application by the erstwhile Advocate, Sri Om Kumar. The examination and cross-examination of witnesses followed.

(10.) THE prosecution examined seven witnesses. P. W. 1, Naeem stated that he woke up on hearing commotion at about midnight. He proceeded to the house of P. W. 2 from where the commotion was originating. The witness saw the appellant with 'dabia' in his hand butchering his mother. The appellant severed his mother's head from the torso. He confirmed that his statement was recorded by the Police next day. The suggestion of false implication because the appellant was the 'pairvikar' on behalf of the wife of the witness in a 498-A, IPC proceeding was denied. The appellant was stated to be mentally sane. The entire village consisted of 12-13 houses only. The mother's room had thatched walls and the door was wooden. The house of the witness was hardly 15-20 hands from the house of the appellant. No one had told him that any dacoits had come. He was discharged after cross-examination on 27-8-2007.

(11.) P. W. 2, the brother of the appellant, stated that he woke up around midnight to urinate when he saw blood and his mother's body in the torchlight. He had seen none and did not know who committed the murder. In his cross-examination, he stated that the walls of the room were thatched. The door was weak. It was a cold winter night. He suspected that dacoits had committed the occurrence. There was altercation between P. W. 1 and the appellant with regard to land. When the Police came he was extremely perturbed and went off to steep. The fardbeyan was dictated by Sabir, which, was not read over to the witness who knew how to sign but did not know how to read and write. The appellant resided at Punjab. The accused had filed a case against P. W. 1 creating animosity. He was also discharged after cross-examination.

(12.) P. W. 3, the Investigating Officer stated that the place of occurrence was a thatched room of the deceased. The body was found inside the room. On the north was the house of P. W. 1. The thatched wall at the rear of the room was broken. The witness proved the fardbeyan, FIR and the Inquest report, marked as Exhibits 1,2 and 3 respectively.

(13.) P. W. 4. Orbed Alam stated that P. W. 2 told him at about midnight on the date of occurrence that his brother, the appellant had cut the neck of his mother. He saw that the head has been severed. The appellant was not present in the house. There was blood in the room. Despite repeated calls, no one appeared to cross-examine the witness and he was discharged.

(14.) P. W. 5 stated that there was a common thatched wall between his and the house of the accused. He went there on hearing noise at midnight. P. W. 2 informed him that the appellant had killed their mother. He saw the body; the head was severed and lying at a distance of one and half hands. The appellant was not present in the house. None appeared to cross-examine the witness despite repeated calls, the witness was discharged.

(15.) P. W. 6, Afsar Alam, stated that he learnt of the occurrence at about 8 a. m. in the morning that Absar was stated to have severed his mother's head. He went there but did not see Absar there. He clearly stated that he had seen none assaulting and was only a hearsay witness. He was discharged after cross-examination.

(16.) P. W. 7, Dr. Vijoy Kumar, the Medical officer proved the post-mortem report, marked as Exhibit-4, stated that the injuries 1 to 5 and 7 were caused by sharp cutting weapon while injuries 6, 8 and 9 were those of hard blunt substance. He stated that first the head had been severed, and then the remaining injuries had been caused with hard blunt substance.

(17.) THE defence examined three witnesses. D. W. 1, Abdul Quadir stated that he was a co-villager. There was a dispute for lands between P. W. 1 and the accused. The wife of the accused was living with P. W. 1. The witness had not seen the assailant. The deceased resided with her son, the accused. The body was in three parts lying in the house which he saw. The appellant-accused was not in the house and was absconding.

(18.) D. W. 2, Anzar Alam stated that he was a co-villager and his house was 5-6 house away. Land dispute between P. W. 1 and the accused was reiterated. The witness had seen none committing the assault. The torso was separated from the head when he went there but did not meet the appellant.

(19.) D. W. 3, Zahidur Rahman stated that he had seen none committing the assault. He did not know of any dispute between P. W. 1 and the accused. He saw the accused in the dock after the death of his mother. The police had come to the village and arrested the accused.

(20.) MR. Akhileshwar Prasad Singh learned counsel for the appellant submitted that P. W. 1 was, in fact, not an eye-witness. The prosecution and defence witnesses had deposed of the estranged relationship between P. W. 1 and the accused because of land dispute and that the wife of P. W. 1 had run away and was residing with the accused, who was also pursuing the 498-A, IPC proceeding instituted by her against the witness. Being a grossly inimical witness, his evidence cannot be relied upon and no conviction can be based upon the same. Reliance was placed upon AIR 1981 SC 942 : (1981 Cri LJ 484) (Ram Ashrit v. State of bihar).

(21.) IT was next submitted that the informant, P. W. 2 did not stand by the fardbeyan while making his statement in Court. He should have been re-examined under Section 137 of the Evidence Act or questioned under Section 154 thereof. Neither has he been declared hostile. Being the primary witness, not supporting the prosecution case, that he had not seen the appellant, no conviction could be based upon his evidence. So long as he was not declared hostile, reexamined or questioned again, his deposition, as a prosecution witness in Court, that he had not seen the appellant become unimpeachable. It was now for the prosecution to prove who was the assailant. The witnesses had also stated that the appellant resided at Punjab. This was sought to be propounded as a defence of alibi. Reliance was placed upon AIR 1975 SC 1400 : (1975 Cri LJ 1009) (Jagir Singh v. State).

(22.) PLACING reliance on AIR 1980 SC 1382 (1981 Cri LJ 1029) (State v, Y. C. Shukla), air 1984 SC 1622 : (1984 Cri LJ 1738) (Sharad Birdhichandra Sharda v. State of maharashtra) and (1984) 4 SCC 116: (. 1984 cri LJ 1738) (Daulat Ram v. State of Punjab), it was urged that the prosecution had to prove its own case beyond all reasonable doubts. Any falsity or weakness in the defence does not prove the prosecution case and if two views are possible, the benefit must be given to the accused.

(23.) THE appellant has not had a fair trial in absence of proper legal assistance when he had to change lawyers frequently. The impugned judgment does not reflect any application of mind or contain any discussion of the defence. The entire judgment was, therefore, vitiated for lack of fair trial and proper opportunity to defend.

(24.) IT was next submitted placing reliance on 2008 (4) PJLR 122 (SC) (Swamy shraddhananda alias Murali Manohar mishra) that the present was not one of the rarest of rare cases warranting death sentence.

(25.) SRI Lala Kailash Bihari, learned counsel appearing for the prosecution submitted that the charge of committing murder with a 'dabia', severing the head and disappearance of the same to evade legal punishment were duly explained to the accused. Under Section 313, Cr. P. C. accusation was explained to the accused that he had severed his mother's neck, which was denied by him stating that he would present his defence. The appellant accused, therefore, was fully and explicitly aware of the specific nature of the accusation against him and the case that he had to meet. He was provided a defence counsel by the Court on his request. There are no allegations against the defence counsel. The appellant himself chose to engage private lawyers subsequently. The prosecution witnesses were cross-examined or were refused to be cross-examined. The order sheet of the trial Court' dated 4-2-2008 clearly records that the counsel for the accused was also heard at the stage of final argument as also at the stage of sentence. The appellant has, therefore, had a fair trial. The judgment was a conclusion recorded after discussing the entire case holding that the defence was not tenable and it had offered no explanation. P. Ws. 1 and 2 were not chance witnesses but natural witnesses. The evidence of P. W. 1 was cogent and convincing. He was a co villager and had witnessed the assault. The suggestion of false implication for animosity between the witness and the accused was too peripheral an issue when no cross-examination was done on the statement of witness that he saw the assault and the narration of the condition of the body. P. W. 2 was the younger brother of the accused and son of the deceased. In his deposition he had supported the fardbeyan on material aspect. The Court below rightly concluded at paragraph 7 of the judgment that he was attempting to now save his brother from the gallows since the mother was already dead. The Court, therefore, rightly culled out relevant materials from his deposition to arrive at the truth. In fact, the statement of P. Ws. 1 and 2 of the occurrence clearly corroborates each other. There was no need to declare the witness hostile or to re-examine him or question him further. The suggestion of the witness that the accused resided at Punjab was a plea of alibi which had to be propounded by the appellant at the trial with evidence. The appellant has not done so and the issue being one of fact cannot now be raised in appeal. The evidence was that the appellant accused and his mother resided together. This has been corroborated by the defence witnesses also. The defence witnesses have also confirmed that at the time of occurrence people had assembled in a village consisting of only 12-13 houses at midnight, but it was the appellant alone who was missing from the house when D. W. 1 stated that the appellant was absconding P. W. 1 has been examined on the very next day. The defence witnesses were not eye-witnesses. P. W. 2 was undoubtedly a relative and, therefore, the evidence of P. Ws. 1 and 2 had to be examined with caution but could not become suspect outright either because of the suggestion of previous enmity or being an interested witness. There was no need to examine the entire village or others and even the evidence of single witness was sufficient. The solitary change in the stand of P. W. 2 only on the point of identification during his deposition in Court was not relevant at all as he had read and signed the fardbeyan himself. Reliance was placed on 2002 (1) PLJR 54 (Prakash Poddar alias Jai Prakash Poddar v. State of Bihar).

(26.) THE entire sequence of evidence on the deposition of P. Ws. 1 and 2 both are in unison of the manner of killing by the appellant. The defence has not come forward with any other version or suggestion of the time, place and manner of occurrence and identification of the accused so as to cast any doubt on the prosecution case. We have considered the materials on record and the submission made on behalf of the parties. P. W. 1 and P. W. 2 are stated to be eye-witnesses to the occurrence. The evidence of two witnesses shall have to pass the test of intrinsically improbable and unreliable. But if they are otherwise truthful, cogent and there is material corroboration, their testimony cannot be discarded only for reason of their being an interested witness. P. W. 1 is stated to be having animosity with the appellant and has been challenged as not being an eye-witness but no such question was put to him during cross-examination. P. W. 2 is stated to be the son of the deceased and, therefore, an interested witness. But, he is also the brother of the appellant. This Court shall, therefore, proceed to examine their evidence with caution as the prosecution shall have to prove its case on it own strength beyond reasonable doubts and cannot draw any benefit from what may be termed as a weakness in the case of the defence.

(27.) THE village consisted of 12-13 houses only. The occurrence was at midnight when notice of any commotion shall travel fast in a given confined area. The house of P. W. 1 was only 15-20 hands away. It is, therefore, perfectly natural that he must have arrived within minutes of the occurrence. His statement, to the extent, that he saw the appellant with a Dabia in his hand Inside the house cannot be disbelieved and rejected. Even if his statement of being a witness to the assault is considered as an embellishment, a tendency to which a rustic witness may be prone in an effort to what he thinks is to make a cast iron case, that shall not affect so much of the testimony otherwise credible and convincing that he saw the appellant standing with a Dabia and the dismembered body of the deceased. This conclusion is fortified from the first statement made in the fardbeyan by P. W. 2 that the appellant after the assault, when villagers came there, stood in the house and threatened that if any dared to come near him they shall meet the same fate. It has to be kept in mind, that P. W. 2 was the son of the deceased but also the brother of the appellant. The first rendition in the fardbeyan was but the first statement of truth. Unless there be any material contradiction between it and what has been stated in Court with the accused cross-examining him on the contradiction, the appellant cannot draw any advantage from the attempt of p. W. 2 to shield his brother during his deposition by stating that he only saw the bleeding body of his mother but did not see the assailant. P. W. 2 in all material aspects is consistent in what he stated originally in the fardbeyan and in his deposition in Court of the date, time and manner of occurrence and the sequence of events. In fact, he has denied that he has falsely implicated his brother. He has stated in the fardbeyan that it had been read over to him and after having understood the same and satisfied that it was correct, he signed the same. In his cross-examination he admits his signature on the fardbeyan. His statement in Court that he went off to bed after the occurrence and was not aware of the contents of the fir but which did bear his signature, is only but a feeble and half hearted attempt to save his brother now from the gallows even while he suffered the agony of his mother being the deceased and denies falsely impleading him. This Court is satisfied that in the absence of any cross-examination of P. W. 2 with regard to his earlier identification of the assailant in the firdbeyan, no prejudice has been caused to the prosecution. There was no occasion or need to declare him as a hostile witness, and subject him to cross-examination or re-examination. His subsequent statement that perhaps dacoits may have committed the occurrence is grossly inconsistent with the fardbeyan which he does not deny, if there was a dacoity, surely he would have filed a report along with items looted.

(28.) THE evidence of P. W. 2 is cogent, convincing and not contradictory. The denial of identification subsequently is nothing but irrelevant in view of his clear statement denying that he was implicating his brother falsely. Like a prosecution witness attempting to make embellishments which may not be accepted shall not discredit such other evidence that be good in law, any reverse embellishment can be of no avail to the defence, if the grain and chaff can be separated.

(29.) IN AIR 2002 SC 1965 : (2002 Cri LJ 1965) (Krishna Mochi v. State of Bihar) the apex Court by a majority view noticed as follows at paragraph 75 and 76. The principles applicable in a criminal trial as noticed therein would apply notwithstanding differences of facts.

"75. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, moreso when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces as astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other allurence or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. . It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time. "

"76. Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower I had that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a, short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, Court should tread upon, it but if the same are boulders. Court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and society is so much affected thereby, duties and responsibilities of the Courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and Courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh v. State (Delhi Administration), AIR 1978 SC 1091, krishna Iyer, J. laid down that "proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes". In the case of State of U. P. v. Anil Singh, AIR 1988 sc 1998 : (1988 Cri LJ 88) it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. In the case of State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73 : (1994 Cri LJ 2104) it was held that justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh v. State of M. P. (1999) 1 SCR 276 : (1999, Cri LJ 1334) it was held that the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust put the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothes with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the Court, within permissible limit to find out the truth. It means, on one hand to innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. "

(30.) IT is, therefore, not difficult to understand the inconsequential deviation attempted to be made by P. W. 2 in an attempt to help his brother, the appellant. The Court has, therefore, reappraised the evidence of p. W. 2 and is satisfied that the question of invocation of Section 137 or 154 of the Evidence Act to reject his evidence does not arise. In the case of Jagir Singh (supra) relied upon by the appellant, the facts were materially different. The prosecution witness having deposed favourable to the defence was in fact cross-examined. In that context it was held that his entire deposition becomes unacceptable and the prosecution cannot seek to rely on what it considers favourable.

(31.) P. W. 2 states in the fardbeyan that the appellant tore apart the thatched wall of his mother's room and ran away. P. W. 3, the Officer Incharge, who visited the place of occurrence at 9. 45 a. m. in his cross-examination has stated that the rear thatched wall of the room was broken.

(32.) THE Court finds it extremely difficult to hold that his solitary disjointed statement on lack of identification as a prosecution witness is unimpeachable evidence of the appellant not being the assailant.

(33.) THERE is no material on record to suggest any other version of the occurrence to give any benefit of the doubt to the appellant in a situation of two possible views.

(34.) ON the contrary, the unimpeachable, evidence which has come on record is that the appellant resided with his deceased mother. In normal course of human conduct a person would be home and sleeping at midnight. There is no material on record of the appellant being away from home at this unusual hour for any other purpose. P. Ws. 4, 5 and 6, who all came immediately after the occurrence and saw the mutilated body of the deceased have consistently, stated that the appellant was not present in the house. There is no material on record in support of the plea of alibi. Any commotion at that time would have brought to appellant home immediately in a small village of 12-13 houses. Therefore, the case of the prosecution stands on its own strength as to the guilt of the accused. Unfortunately for him, D. Ws. 1, 2 and 3 have also stated that he was not present at home. It is not that the prosecution builds its case on the deposition of D. Ws. 1 to 3, but it certainly supports the case of the prosecution that the appellant as the assailant corroborated by his unnatural behaviour.

(35.) IN the case of Sharad Birdhichandra sharda (supra) it has been held that where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid to lend assurance to the Court in the present case, the occurrence is at midnight. The villagers came immediately. The appellant stood with a Dabia in his hand even while the dismembered body of his mother lay on the ground. He dared any one to come near him. He then broke the thatched wall and ran away corroborated by P. W. 3 the Investigating Officer and when other came as a family member he was found missing at midnight in a catastrophe of the kind in his house where he resided with his mother. The circumstances are telling.

(36.) THE charge against the appellant was that he committed murder with Dabia, severed the head and went away with the same to disappear evidence and evade punishment. Under Section 313,cr. P. C. he was explained the accusation that he had cut his mother's neck. Denying the charge, he stated that he would give evidence. He gave no evidence whatsoever much less, inconsistent with the case of the prosecution entitling him to the benefit of doubt. It is the appellant who chose not to cross-examine some of the witnesses or not to cross-examine properly. He was duly represented and heard.

(37.) THIS Court is, therefore, satisfied on the evidence of P. W. 2 that the appellant was the assailant. The evidence of P. W. 1 has been held to be cogent and convincing to the extent that immediately after the occurrence he saw the appellant standing with dabia in presence of the dismembered body corroborating P. W. 2.

(38.) THE next question shall be the confirmation of the sentence of death. The nature of the assault and mutilated condition of the body has already been notice. P. W. 7, the Medical Officer has clearly stated in his deposition that injuries I to 5 and 7 were caused by a sharp cutting weapon. As if that brutality was not sufficient. The witness has further stated that first the neck was severed and then injuries 6, 8 and 9 were caused on the helpless victim thereafter by hard blunt substance. The question of sentence need not detain this Court in view of the law laid down in Machi Singh v. State of Punjab (1983) 3 SCC 470 : (1983 Cri LJ 957) more recently referred to in 2008 (4) PLJR 122 (SC) (Swami Shraddhananda alias Murali manohar Mishra v. State of Karnataka). The present case clearly falls in both categories i and V of the classification, which runs as follows : "i. Manner of Commission of Murder : when the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) When the house of the victim is set aflame with the end in view to roast him alive in the house, (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. V. Personality of victim of murder when the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder, (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust, (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons. "

(39.) THE abhorrent, dastardly and diabolical nature of the crime is further aggravated by the fact that this brutal assault and absconding with the decapitated head was committed by the appellant on none other than his creator i. e. his mother. The one who gave birth to him met her nemesis at his hands. Not content with the hacking of the head, he then assaulted the corpse repeatedly with hard blunt substance. (Nothing can be more aggravating and reflective of the animal instinct of the appellant).

(40.) THIS Court, therefore, finds no merit in this appeal and it is, accordingly rejected.

(41.) THE conviction of the appellant is upheld and the death sentence is confirmed. Appeal dismissed