The State of Maharashtra v. Sunil Rama Kuchkoravi

16. After investigation, the Investigating Officer laid a chargesheet in the Court of the JMFC. After committal of the case to the Sessions Court, a charge was framed in terms of Exhibit 3. It was read over and explained to the convict, to which, he pleaded not guilty and claimed a trial.

17. To substantiate its case, prosecution examined 12 witnesses, coupled with documentary evidence in the form of 7 of 71 reports of the FSL, seizure, inquest as well as spot panchanamas and statements of some of the witnesses under Section 164 of the Cr.P.C. etc.

18. The Additional Sessions Judge, Kolhapur having meticulously gone through the facts and evidence and after giving full opportunity to the prosecution and the defence, found that the prosecution has proved beyond all reasonable doubts that the convict had committed most gruesome, barbaric and horrendous murder of his mother by means of a big Sattur and two knives. He eviscerated her body parts which he was about to eat. The learned Judge in the judgment, has considered not only the nature of evidence and the mode and manner in which the convict had committed the murder of his mother, but also made elaborate discussion on the motive, defence of the convict as to intoxication, insanity, false implication and delay in lodging an FIR etc.

19. The Additional Sessions Judge has also drawn a balancesheet of aggravating and mitigating circumstances as enunciated 8 of 71 in several decisions of the Supreme Court, especially in view of the decisions in the case of Bachan Singh Vs. State of Punjab[1]; Machhi Singh & Ors. Vs. State of Punjab[2] as well as in the case of Shabnam Vs. State of UP[3]. The Additional Sessions Judge had given pre-sentence hearing as mandated in Section 235(2) of the Cr.P.C. to both the prosecution and the defence and had concluded that convict deserves death penalty and, therefore, awarded sentence of death.

20. We heard Dr. Yug Chaudhry, learned Counsel for the convict and Mrs. P.P. Shinde, learned APP for the respondent State at a considerable length. We also heard the convict for a considerable duration, through video conferencing.

21. Although, no appeal has been preferred by the convict against his conviction and sentence of death, nevertheless, it would be expedient to reassess and evaluate the evidence adduced by the prosecution in the trial Court to substantiate his guilt, apart from the fact as to whether sufficient reasons have 1 AIR 1980, SC 989 2 1983 AIR 957

22. In order to bring home guilt of the convict, prosecution examined 12 witnesses. The case is based on circumstantial evidence. Apart from oral testimonies of 12 witnesses, prosecution has placed reliance on several documents in the form of inquest panchanama Exhibit 30, spot panchanama Exhibit 32 etc.

23. Indisputably, deceased Yallava died a homicidal death. The testimony of PW-5 Dr. Nikhil Jagtap, who conducted the autopsy indicates that in column no.17 of the autopsy report at Exhibit 41, he had described following surface injuries:- “1. Cut throat incised injury of length 7 cm., maximum breadth 3 cm in center, neck cavity deep, obliquely present over anterior neck at thyroid cartilage level, with tailing on right end and right end at higher level than left end. On dissection of neck thyroid cartilage cleanly cut at the vocal cord, both carotid arteries and jugular veins cleanly cut at thyroid cartilage level, esophagus and anterior neck muscles with other soft tissues cleanly cut at the level of thyroid cartilage level, below trachea and other soft tissues absent.

2. Incised injury of length 34 cm and maximum 10 of 71 breadth 9 cm from sternal notch of neck to umbilicus cutting right breast, sternum and ribs on right side exposing chest and abdominal cavity. Portion of 6th, 7th and 8th ribs on right side not present. All thoracic and abdominal organs already eviscerated outside (brought in separate plastic bags by police).

3. Incised injury of 15 cm x 4 cm, muscle deep present over upper part of right inguinal region medial aspect with infiltration of blood in margins.

4. Incised injury of 12 cm x 4 cm, muscle deep present over upper part of right thigh medial aspect with infiltration of blood in margine.

5. Two incised injuries of 4 cm x 1 cm, muscle deep present horizontally over middle part of pubic region with infiltration of blood in margins.” On internal examination, he found that all injuries (except second injury) are antemortem in nature. According to him, haemorrahagic shock due to multiple injuries was the probable cause of death of Yallava.”

24. The defence could not even slightly rebut the testimony of PW-5 Dr. Nikhil Subhash Jagtap. The witness ruled out any possibility of the death being either suicidal or accidental. Rather, there is no question of disputing the fact of a homicidal death of the deceased. The cause of Death Certificate Exhibit 40 and the Post Mortem Notes Exhibit 41 as well as inquest panchanama Exhibit 30 established that the deceased Yallava 11 of 71 died a homicidal death. The autopsy report Exhibit 41 also indicates following thoracic injuries:- “20. Thorax a. Walls, ribs, cartilages Shows injury as mentioned in column no.7. b. Pleura Thoracic cavity empty and only contains 500 ml blood c. Larynx, Trachea and Bronchi Trachea cleanly cut below thyroid cartilage. d. Right Lung Both lungs pale cleanly cut & eviscerate along with trachea and brought in separate plastic bag. e. Left lung f. Pericardium Lacerated at places g. Heart with weight Heart cleanly cut & eviscerate at the level of arch of aorta and brought in separate plastic bag. i. Additional remark

21. Abdomen - Walls Cut at places as mention in column no.17. Peritoneum Cavity Cavity empty Buccal cavity, teeth, tongue and pharynx Intact Oesophagus Pale cut at the level of thyroid cartilage 12 of 71 Stomach and its contents Small and large intestines already eviscerated and brought separately in plastic bags. Small intestine and its contents Large intestine and its contents Liver (with wt.) and gall bladder All abdominal organs eviscerated and brought in separate plastic bag. All organs were pale. Left kidney absent. Pancreas and Suprarenal Spleen with weight Kidneys with weight Bladder Empty Organs of generation Intact. Uterus empty Additional remark with where possible, medical officer’s deduction from the state of the contents of the stomach as to time of death and last meal. Nil State which viscera (if any) have been retained fro chemical examination and also quote the numbers on the bottles containing the same.

1) One sealed pocket containing one bottle of blood and one gauze piece containing blood for grouping. Pocket sealed, labeled and handed over to police

22. Spine and Spinal Intact not opened. 13 of 71 cord - Opinions as to the cause of death:- “Haemorrhagic shock following multiple injuries (Unnatural)”. ”

25. As already stated, the prosecutions case revolves around circumstantial evidence. The trial Court has culled out following circumstances:i. The deceased was last seen together with the convict. ii. The convict had a motive to commit murder. iii. It was a homicidal death. iv. Weapons of offence stained with blood were recovered at the scene of occurrence itself immediately after the incident. Blood stained clothes of the deceased, convict and other articles forensically proved that it was the convict and none other, responsible for the death of the deceased and; lastly v. The over-all conduct of the convict.

26. PW-2 Mayur, PW-4 Raju and PW-6 Rakshata are the natural and chance witnesses, who have been examined by the prosecution in order to substantiate its case. As per the testimony of PW-2 Mayur, he heard a quarrel between the convict and the deceased on the fateful day at about 12 O’clock. Thereafter, around 2.00 p.m. PW-6 Rakshata who was in 8th 14 of 71 standard at the relevant time testified that she was playing near the house of the convict. She further testified that Sunil committed murder of “Chavali Appa” (deceased). She is almost a direct witness, in the sense, she is as good as an eye-witness, though she did not witness the actual incident. We say so because by the time she reached the spot, the convict had almost eviscerated the inner parts of the body of the deceased and was about to proceed further to place some of the parts in the kitchen on a stove with chilli powder and salt. It can be easily inferred from all the circumstances as what might have been cooking in his mind. She noticed blood stains on the person of the convict.

27. PW-2 Mayur heard sound of the convict and Yallava around 12.00 pm. He also noticed deceased lying in a pool of blood. PW-4 Raju, who reached the spot immediately after getting the information about the act of the convict, noticed him standing on the spot itself with blood smeared Bermuda. His hands were also smeared with blood. There is hardly any crossexamination of any of the witnesses indicating possibility of any third element or third person entering into the house of the 15 of 71 deceased and committing her murder in such a brutal manner. It is testified by these witnesses that the hands, body and face of the convict was smeared with blood. Even PW-6 Rakshata, who was playing in the courtyard of the house of the convict, entered inside only to notice the deceased lying in a pool of blood and the convict was standing beside her.

28. We do not find anything, even remotely, to suspect the testimonies of any of these witnesses, who had seen the deceased in the company of the convict before her death. We shall discuss the scene of occurrence, inquest and other material evidence on record in context with the duration of time which must have been taken by the convict to commit the murder of the deceased, which perhaps lasted for about two hours.

29. Evidence of Investigating Officer PW-12 Sanjay More, who reached the spot of incident immediately after receiving the information, indicates that the convict was apprehended by the mob and in order to save his life from the furious crowd, he was immediately taken to the police station. It has not been seriously disputed by the defence that the convict always had a quarrel 16 of 71 with the deceased on account of money. The convict, therefore, had a requisite motive to eliminate his mother.

30. There is no question of PW-6 Rakshata being tutored by any one merely because her evidence came to be recorded after a span of 1½ years from the date of incident. The testimony of this witness is quite natural, acceptable and believable as neither she nor any other witness had any axe to grind against the convict. This is especially in the light of the fact that before recording the evidence of PW-6 Rakshata, the learned trial Judge had ascertained the fact that she understood the sanctity of oath. The Investigating Officer – PW-12 More had assigned satisfactory reason as to why there was delay in recoding the statement of PW-6 Rakshata. The reason assigned by the Investigating Officer is that after the incident, the family members of PW-6 Rakshata shifted her to an unknown place in view of the gruesome murder of the deceased by the convict and she being the first witness to witness the convict standing on the spot near the dead body with blood smeared clothes, face and body. Obviously, this could have adversely impacted the mind 17 of 71 of a small child and, therefore, she was taken away by the family members. Merely because PW-6 Rakshata was eight years old at the relevant time, does not ipso facto mean that her testimony should be viewed with some suspicion, especially in view of the other facts and circumstances proved by the prosecution on record.

31. There is one more very crucial angle to this case. The circumstances further indicate pathological cannibalism of the convict. Pathological cannibalism is rooted in some form of psychopathology i.e. at the core of the person’s motivation such as, someone who is actually psychotic or committing the act of cannibalism to act out paraphilia. It is in the realm of pathological cannibalism that most criminal acts of cannibalism are discussed. The act of the convict was quite close to cannibalism. We do not wish to venture much into that arena for want of sufficient investigation in that regard. Nevertheless, the overall circumstances speak volumes while considering the aspect of reformation or rehabilitation of the convict. Be that as it may. 18 of 71

32. Turning to the spot of incident, recovery of the weapons and other articles by the Investigating Officer, the prosecution has tendered and proved the following documentary evidence:- “1. Inquest panchanama (Exh.30)

2. Spot panchanama (Exh.31)

3. Complaint by PW-4 Raju, dated 28.08.2017 (Exh.37)

4. Cause of death certificate by Dr. Nikhil Jagtap, dated 28.08.2017 (Exh.40)

5. Post Mortem Notes (Exh.41)

6. Report in respect of weapon of offence i.e. knife (Exh.42)

7. Report in respect of another weapon (Sattur) (Exh.43)

8. Report in respect of another knife (Exh.44)

9. Opinion of Dr. Nikhil Jagtap in respect of Weapon (Exh.45)

10. Arrest panchanama (Exh.48)

11. Panchanama in respect of seizure of bermuda of the accused (Exh.49)

12. Muddemal forwarding letter to the C.A. Office, Pune dated 13.09.2017 (Exh.51)

13. DNA sample letter dated 13.09.2017 to the C.A. Office, Pune (Exh.53)

14. Form B ie. Police Report to the Civil Surgeon with the dead body (Exh.63)

15. Letter to Medical Officer, CPR Hospital, Kolhapur for medical examination of the accused (Exh.65)

16. Opinion letter to Forensic Department of Medication College, CPR Hospital, 19 of 71

17. Letter to Land Record Office, Kolhapur for map of spot of incident (Exh.67)

18. Letter to Kolhapur Municipal Corporation for obtaining Death extract of the deceased (Exh.68)

19. Letter to Chief Officer, Employee

20. Letter to MSDCL Co. for continuty of electricity on the Spot (Exh.70)

21. C.A. report dated 07.02.2018 in respect of Godhadi, cloth of deceased, blood sample from the spot, knife and barmoda of the accused (Exh.71)

22. C.A. report dated 13.12.2018 (Exh.72) & (Exh.73)

23. C.A. report dated 30.11.2019 (Exh.74)

24. C.A. report dated 16.08.2019 (Exh.75)

25. Pursis filed by the prosecution to close the evidence (Exh.77)”

33. PW-1 Guruprasad Jadhav, PW-3 Navnath Davari and PW-

11 Bhausaheb Malgunde - Police Sub-Inspector, are the witnesses of spot panchanama Exhibit 31. As per the evidence of PW-1 Guruprasad, the spot of incident was shown by the Police Officer and accordingly a panchanama was drawn. This witness noticed a knife lying on the ground. He also noticed inner body parts scattered on the floor as well as on the platform of the kitchen. Some inner body parts were kept in an utensil. One more knife was found placed on the kitchen platform. Similarly, PW-3 20 of 71 Navnath spoke in tune with PW-1 Guruprasad. He added that thoracic portion of the deceased was cut. Blood was found all over the floor surrounding the dead body. One quilt stained with blood, a knife and T-shirt were also found in the first room. In the kitchen, this witness noticed heart of the deceased placed on the platform of the kitchen alongwith salt and chilli powder kept near the utensil. He corroborated the testimony of PW-1 Guruprasad that there was one more knife in the kitchen. The witnesses also noticed an oil bottle in the kitchen, wherein piece of rib was inserted. The Investigating Officer collected the blood samples and seized all the articles in the presence of these witnesses. Both these witnesses identified all the articles during trial. Photographs of the scene of occurrence were also taken.

34. The defence has not seriously disputed drawing of the spot as well as recovery panchanama. Similar is the evidence of PW-

11 Malgunde - Police Sub-Inspector, who has reiterated in his cross-examination that three knives, a gown, petticoat, blous, Tshirt, bed-sheet, quilt all stained with blood were seized in the presence of panch witnesses. Both the witnesses also noticed one Sattur, a knife with wooden handle stained with blood near the 21 of 71 cupboard.

35. Chapter VII of the Indian Evidence Act deals with production and effect of evidence. Section 101 contemplates that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. It would be apposite to extract the relevant part from Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat 4, which reads thus:- “5. ….. Section 101: Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent 4 AIR 1964, SC 1563 22 of 71 and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S. 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as S.84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under S.105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under S.105 of the Evidence Act, read with the definition of "shall presume" in S. 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to' discharge 23 of 71 the burden under S. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.” (emphasis supplied)

36. It would be quite crucial to state something about the coloured photographs taken at the scene of occurrence by a photographer namely Anjum Shaikh on the day of incident. These are proved at Exhibit 91 to Exhibit 96. There are eight photographs of the deceased. Two photographs of both the breasts which had been chopped off the body by the convict and two photographs indicating blood on the floor with some internal body parts. A common man would find it quite difficult, distressing, frightening and unsettling even to have a glance at the photographs, which would speak more than thousand words. Words would fall short to describe the 24 of 71 grotesque, brutal, inhuman and most cruel act committed by the convict with his mother.

37. All the seized articles have been sent for chemical analysis to the Forensic Science Laboratory, through Police Head Constable PW-8 Tanaji Chougule and PW-9 Nathuram Gaikwad. Both these witness have testified about the same. Both these witnesses carried the muddemal articles to the Forensic Science Laboratory at Kolhapur and Pune respectively. There is no dispute or any reason to doubt that all the sealed muddemal properties have been duly forwarded to the FSL in a sealed packet and without any scope of tampering or manipulating any of the articles.

38. From the chemical analyzer’s report Exhibit 71, the prosecution has proved that the quilt, gown, blouse, petticoat, half T-shirt, bermuda, Sattur, knives, Cotton Swabs, Earth were stained with human blood. The CA report is proved at

39. The report of the Chemical Analyzer dated 13.12.2018 25 of 71 Exhibit 72 forwarded by the Office of the Chemical Analyzer, Pune, in respect of gown, bermuda, half T-shirt, Sattur, knives shows that the DNA profiling has been done in respect of the blood stains obtained from the aforesaid articles, which were then referred to the Regional Forensic Science Laboratory, Pune (RFSL, Pune). Exhibit 73 forwarded by the RFSL, Pune is in respect of nails swab, hand wash, foot wash, vomits of the convict and the blood on the gauze piece. The report forwarded by the FSL, Pune Exhibit 75 reveals following results after the analysis:- “Interpretation:-

1) DNA profiles obtained from Ex.[1] Blood stain from Ex.[2] (Gown), Ex.[4] Blood stain from Ex.[6] (Knife), Ex.[5] Blood scrapings from Ex.[7] (Knife), Ex.[6] Blood scrapings from Ex.[8] (Sattur) and Ex.[8] Blood stained cuttings from Ex.12 (Bermuda) are identical and from one and the same source of female origin and matched with DNA profile obtained from Ex.[7] Blood on gauze piece of Yallava Rama Kuchkoravi.

2. Mixed DNA profiles obtained from Ex.[1] Nails of Sunil Rama Kuchkoravi is identical and matched with DNA profile obtained from Ex.[7] Blood on gauze of Yallava Rama Kuchkoravi at all loci and DNA profile obtained from Ex.[1] Blood stain prepared from Ex.[1] Blood of Sunil Ratna Kochkoravi at 20 loci. Analysis started on: 04/12/2018 26 of 71 Analysis completed on: 30/12/2018”

40. Thus, unchallenged CA report strengthens, substantiates and proves that gown, two knives, Sattur which were seized from the spot of incident and the bermuda of the convict with blood stains, matched with the blood stains of the deceased Yallava. The CA report further proved that the DNA profile from the nails of convict are identical with the blood on the gauze piece of Yallava.

41. It can thus be seen from the evidence of the prosecution witnesses and the CA report that the convict used three different weapons in brutally murdering his mother – Yallava in a cold blooded manner. It would also be pertinent to describe the weapons in order to understand and evaluate not only the impact of those weapons, but the manner in which, the convict must have used different weapons while committing the offence, which perhaps lasted for more than two hours. It also reflects as to how the convict had already preplanned and premeditated a design in his mind as to how he would dissect the body of the deceased after killing her brutally. A bare look at the 27 of 71 photographs would make the picture clear.

42. In that context, evidence of PW-4 Dr. Nikhil Jagtap would be relevant to whom the weapons were sent by the Investigating Officer Shri. More. The reports of PW-5 Dr. Nikhil Jagtap are proved at Exhibit 42 to Exhibit 44. He testified that Sattur and knives are sharp edged weapons. Sattur has a heavy sharp edge while both the knives were of sharp edged. He opined that the injuries described by him in the autopsy report are possible by means of all these weapons. According to this witness, the chop injuries, incised injuries, the cut throat injury, fracture of bones, linear abrasion, all could be caused by a Sattur.

43. It reveals from the record that during the trial, the defence had raised a point that the offence has been committed by the convict under the influence of liquor. The prosecution did not produce medical certificate, which could be a missing link in the chain of circumstances and, therefore, the convict is entitled to a benefit of doubt. The record reveals and it has come in the evidence as well as in the statement of the convict under section 313 of the Cr.PC. that he was addicted to liquor. However, 28 of 71 there has been no suggestion to any of the prosecution witnesses that at the time of his arrest, the convict was under the influence of liquor. There is neither any whisper or suggestion to any of the witnesses regarding the convict being under the influence of liquor at the relevant time, in view of Section 85 of the Indian Penal Code. Even, there is no defence evidence adduced by the convict to substantiate the said fact. Interestingly, it is not the defence of the convict in view of Section 85 of the I.P.C. that he was intoxicated or was forced to consume liquor without his knowledge or against his will. Rather, it seems that he had voluntarily consumed liquor and, therefore, he is not entitled to avail the said defence which is ex facie unacceptable, improbable and unbelievable. In that context, we had already discussed the ratio laid down by the Supreme Court in the case of Dayabhai Chhaganbhai Thakkar hereinbefore.

44. It is also evident from the impugned judgment that the defence has also raised a ground of unsoundness of his mind in view of Section 84 of the IPC. However, there is absolutely no material placed on record in that regard. Section 84 of the IPC 29 of 71 reads thus:- “84. Act of a person of unsound mind – Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”

45. While determining whether the convict is entitled to the benefit of Section 84 of the Code, the Court has to consider the circumstances as that preceded, attended or followed the crime but it is equally true that such circumstances must be established by credible evidence. The trial Court rightly rejected the said plea for want of any evidence or material during trial. Even, there is no suggestion put to any of the prosecution witnesses in that regard.

46. At this stage, it would be advantageous to look into a decision of the Supreme Court in case of Seralli Wali Mohammed V. State of Maharashtra[5]. The ratio decidendi is that it would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. The mere fact that no motive was proved as to why the convict 5 AIR 1972, SC 2443 30 of 71 murdered his wife and child nor the fact that he made no attempt to run way when the door was broken open, could not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence. The convict in that case was charged under section 302 of the IPC for having caused the death of his wife and a female child with a chopper. While rejecting his plea of insanity the Supreme Court observed that the law presumes every person of the age of discretion to be sane unless the contrary is proved.

47. In the case of Ravinder Kumar and Anr. Vs. State of Punjab[6], the Hon’ble Supreme Court held that:- "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel

48. The prosecution herein, has proved the motive behind the offence, as already discussed. Similarly, from the entire circumstances on record, the prosecution has succeeded in showing that the convict had some ill-intention towards his mother and, as such, the said ill-intention swelled up in his mind to such a degree as to impel him to commit the murder of the deceased in such a brutal manner. This cannot be construed as a fatal weakness of the prosecution. The Supreme Court, has, therefore, rightly observed that it is almost impossible for the prosecution to unravel a full dimension of the mental disposition of an offender towards the person whom he offended.

49. By taking a false defence in view of Section 85 of the Indian Penal Code, the convict impliedly admitted his guilt. Such an admission in a criminal proceeding cannot be construed as a confession, nevertheless, it can be said to be proved on behalf of the convict himself and he is estopped from denying the same. It could be said to be the best evidence against the 32 of 71 convict himself, though not conclusive. It shifts the onus upon the maker on the principle that what he himself admits to be true, may be reasonably presumed to be true unless the presumption is rebutted.

50. The trial Court, after having taken into consideration all the facts, evidence and circumstances on record concluded that the prosecution has proved its case beyond reasonable doubt and having drawn a balance-sheet of aggravating and mitigating circumstances, reached a conclusion that despite giving maximum weightage to the mitigating circumstances, aggravating factors out-weighed the mitigating circumstances and, therefore, in his wisdom, awarded death penalty.

51. At the cost of repetition, we deem it necessary to elaborate a bit on Section 105 of the Indian Evidence Act. Essentially, in the case at hand, the convict had attempted to bring his case within the purview of Section 105 of the Indian Evidence Act in view of Section 85 of the Indian Penal Code. It was, therefore, incumbent upon the convict to discharge the said burden in view of Section 105 of the Evidence Act. The law contemplates that 33 of 71 the Court shall presume the absence of such circumstances. If Section 105 of the Indian Evidence Act is read with the definition of “shall presume” in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. In the case at hand, the convict failed to rebut the said presumption as no material has been placed by him in that regard, indicating that he had been intoxicated or was forced to consume liquor without his knowledge or against his will. There is absolutely nothing to hold that the convict was intoxicated or under the influence of liquor. It is even not the defence of the convict that he did the act which he did not intend and did not know that it would likely to cause death of his mother. As such, taking a false defence would also tantamount to an additional circumstance pointing towards the guilt of the convict. It has strengthen the chain of circumstances already firmly established.

52. The Supreme Court in case of G. Parshwanath Vs. State of 34 of 71 Karnataka[7] has categorically observed that taking a false defence would also tantamount to an additional circumstances pointing towards the guilt of the convict. It would be apposite to extract para 23 of the said judgment, which reads thus:- “23. If all the circumstances mentioned above are taken together coupled with the absence of any material to indicate that Chethana had committed suicide with the child, they lead to only one inference that in all human probability the murders of the deceased were committed by the appellant alone and none else. From the evidence of PW-3 ASI Nagaraj, it is clear that the appellant knowing fully well that he had committed murders of his wife and child gave false opinion to the police on the basis of which UDR proceedings were initiated. By examining the refrigerator repairer it was sought to be suggested by the appellant that he was not present in his house when the incident had taken place. Thus, the defence of the appellant was that a fire had taken place in his house and both the deceased had died because of inhaling of carbon monoxide after which their bodies were burnt because the house was engulfed in fire. However, at another stage the defence of the appellant was that his deceased wife with his child had committed suicide because her parents were pressurizing her to leave matrimonial home for their selfish purpose of having income of the deceased. Whereas, the deceased was not inclined to leave her matrimonial home, thus more than one and totally inconsistent defences have been taken by the appellant. All the defences were false to the knowledge of the appellant. Not a single defence was found to be probable or plausible either by the trial court or by the High Court. The appellant could not explain satisfactorily the circumstances in which his wife and child met violent deaths. Therefore, offering of false explanation by the

35 of 71 appellant regarding death of his wife and child will have to be regarded as an additional circumstance against him strengthening the chain of circumstances already firmly found.”

53. It can be seen that all the defences taken by the convict were false to his knowledge. Not a single defence was found to be probable or plausible by the trial Court. As already stated, offering a false explanation or giving a false defence, can be regarded as an additional circumstance against the convict strengthening the chain of the circumstances, already firmly found.

54. The law on the aspect of circumstantial evidence is no more res integra as there are numerous decisions of this Court as well as the Supreme Court in that regard. When there is no direct evidence and the decision has to be based on the circumstantial evidence, a few guidelines and salient features have been enunciated in various decisions, including a well known judgment in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra[8]. Broadly speaking, the evidence must satisfy the following tests:- 8 1984 AIR 1622 36 of 71 “(a) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (b) Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused;

(c) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;

(d) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”

55. Learned trial Court has correctly appreciated all the circumstances emerged from the over all evidence adduced by the prosecution. The chain of all the circumstances is intact. All the circumstances unerringly points towards the guilt of the convict. There is no reason for inferring any other hypothesis than that of the guilt of the convict. The evidence is consistent, inspiring, well corroborated and cogent in nature. Rather, the convict himself admitted the guilt by taking a false defence of 37 of 71 committing such a brutal murder of his mother while under the influence of liquor, which could also be an important circumstance against the convict. The deceased was, through out in the custody of the convict when she was done to death by him. The prosecution has established that the convict always used to pickup quarrel with the deceased on account of demand of the pension amount.

56. Dr. Yug Choudhry, would argue that the convict belongs to a de-notified tribe. He has two children and a wife to look after. He is an illiterate labour, who was accustomed to consume liquor heavily. There are no criminal antecedents or history. He had no vices and, therefore, he deserves leniency. Dr. Choudhry would also argue that in view of the report of the Probationary Officer, the convict used to consume flesh of cats and pigs and, therefore, perhaps he might have committed the said act, which according to the Counsel is a mitigating circumstance thereby entitling him to have his sentence reduced to the period which he has already undergone. The wife of the convict alongwith the children had already abandoned his company due to the harassment and ill-treatment by him and, therefore, there is no 38 of 71 question of he being worried about them. The second argument of Dr. Choudhry is quite shocking that the convict used to consume flesh of cats and pigs and, therefore, perhaps he might have committed the offence, meaning thereby Mr. Choudhry impliedly admits that the convict has in fact a tendency of cannibalism. To release such a person would amount to giving him a free ride and freedom to commit similar offence qua the members of the society. There is no question of considering it as a mitigating circumstance and showing any leniency to the convict. Rather, it is the most aggravating circumstance. We, therefore, out rightly reject the argument of Dr. Choudhry. We are surprised as to how such an argument can be made, when in fact, the conviction of the appellant has not been challenged by Mr. Choudhry.

57. The trial Court, after holding the convict guilty of the offence of murder, heard him on the point of sentence. It reveals from the record that advocate for the convict sought two days time and accordingly it was granted. The learned Judge heard the convict, his advocate and the learned Public 39 of 71 Prosecutor. The convict has been granted full opportunity and was also made aware about the punishment which could be awarded. It appears that the convict feigned innocence as regards the incident in question by contending that he had no knowledge as to how and in what manner it had occurred. He being the only bread earner of his family, prayed for taking a lenient view before the trial Court. Apart from the said aspect, learned Counsel for the convict had also put-forth ground of young age as well as two daughters to be looked after by him.

58. Learned APP, however, strongly advocated awarding death penalty to the convict categorizing the case as the one falling under the doctrine of “rarest of the rare case”. It appears that the learned APP in the trial Court placed reliance on several decisions of the Supreme Court in order to bring home the point as to how it was a premeditated and cold blooded murder by the convict of his mother.

59. The learned Judge, thereafter, jotted down various aggravating and mitigating circumstances and finally concluded 40 of 71 that the convict deserve death penalty.

60. Before we embark upon the issue as to whether death penalty awarded by the trial Court needs to be confirmed or whether the convict deserves life sentence in the alternative, it would be essential to revisit the crime and the mode and manner in which it has been committed by the convict as well as the criminal. In fact, we have sufficiently and elaborately discussed the mode and the manner in which the convict had committed the crime, which needs no reiteration.

61. It was indeed an extremely barbaric, inhuman, heinous as well as grotesque murder of a hapless, helpless and fragile old mother by her son. It was indeed a cold blooded and preplanned murder. The convict used to pickup quarrel with the deceased Yallava on account of demand of money to fulfill his vice of liquor. As such, on the fateful day, he entered her house. He was armed with a small knife, admeasuring 7 inch long with a steel blade admeasuring 3.[5] inch long with a yellow grip. Another knife admeasuring 10.[5] inch long with 6 inch blade and 41 of 71 a Sattur, admeasuring 14.[5] inch long with 9.[5] inch long steel blade. The width of the blade is around 2 inch. Sattur is mostly used by the butchers. Use of such kind of dangerous weapons itself indicates that the convict had a well hatched plan in his mind and was determined not only to simply kill his mother but to butcher her in a most cruel and barbaric manner. In view of the report of the Probationary Officer, the convict was accustomed to slaughter pigs and cats for eating their flesh (meat). Since he was habituated of slaughtering and eating flesh of pigs and cats, perhaps he must have killed his mother in the similar manner in order to eat her flesh, which is evident from the record. We have, therefore, in para 31 of our judgment expressed our view as to how there is a strong probability of the convict having syndrome of pathological cannibalism. The convict cannot be said to be a naive person. Rather, he feigned innocence. This could also be a motive of the convict which is almost an impossibility for the prosecution to unravel the full dimension of his mental disposition towards the deceased as has been enunciated by the Supreme Court in the case of Ravinder Kumar & Anr. (supra). 42 of 71

62. It is apparent from the evidence on record that he removed the clothes of his mother and thereafter inflicted multiple blows by means of the Sattur and knives. He did not stop there. He cut and removed both of her breasts. He removed her intestine, heart, liver and ribs and eviscerated outside. He kept the ribs in an oil bottle. He kept heart of his deceased mother in a utensil over the platform of the kitchen. He soaked and moped the blood scattered on the floor, meaning thereby he tried to destroy the evidence also. As already stated, the cause of death was due to multiple injuries caused to the victim by sharp edged weapons. The brutality and cruelty with which the convict had dealt with the body of his mother is evident from the fact that he had even cut the genital organ of his mother, which is one of the causes associated with her death. Torture and pain with which the deceased must have suffered is unimaginable and unfathomable. The convict had torn apart right portion of her body and thereafter removed the soft organs as above. He had also cut neck of the deceased. An old fragile defenseless lady had absolutely no chance to defend herself from a well built hefty son to whom she used to provide meals twice a 43 of 71 day, in view of the fact that wife and children of the convict had already abandoned him, perhaps because of his such conduct. The act of the convict in committing the murder of his mother even cannot be compared with an act of a butcher, who chops the flesh. It is unfathomable as to what must have been in the mind of the convict when he used the weapons such as knives and sattur while committing the murder of his mother. The conduct of the convict even cannot be regarded as a “Betrayal of Trust” of his mother as it would be too small a word to describe what he did. We do not think anything more is required to be said in that regard as we have already stated in the foregoing paragraphs.

63. Following are the aggravated circumstances, which can be culled out from the facts and evidence on record:i. The deceased was in the custody of the convict, in the sense, she was last seen alive together in his company for more than two hours. ii. The body of the deceased was lying on the floor with most 44 of 71 of her soft internal organs eviscerated outside namely, liver, heart, ribs and intestine etc. iii. The heart was found kept in a platter on the kitchen platform. iv. The ribs were found in an oil bottle along with chilli powder and salt. This also indicates an additional motive of cannibalism. v. Bermuda, cloths, hands and even mouth of the convict was found stained with blood, which was a case quite close to cannibalism, albeit, there is no direct evidence in that regard. vi. The motive to commit the murder was the refusal on the part of the deceased to fulfill the demand of her pension by the convict to satisfy his addiction of liquor. vii. No regards for human life and limb by the convict looking to the manner in which the offense had been committed. 45 of 71 viii. False defence under Sections 84 and 85 of the IPC. ix. For the first time, in his statement under Section 313 of the Cr.P.C., the convict raised another false defence as regards his alleged illicit relationship with the mother of PW-6 Rakshata. However, no such suggestion had been given to any of the prosecution witnesses or to the Investigating Officer during the course of evidence. The defence, therefore, is improbable, unacceptable and unbelievable. Rather, the testimony of PW-6 Rakshata was found to be quite natural. It inspires full confidence. She was the one who first noticed deceased lying in a pool of blood and the convict standing near her body. She was just short of an eye witness, for, had she entered the house a few minutes before, she could have noticed the act.

64. There are very few mitigating circumstances namely, there are no antecedents to his discredit. The case is based on circumstantial evidence. The convict was around 35 years of age at the time of committing offence. Since his wife and children 46 of 71 had already abandoned him much before the incident, there is no question of looking after them. There was no complaint from the Jail authorities till date.

65. In order to ascertain whether life imprisonment can be said to be completely futile, as the sentencing aim of reformation can be said to be unachievable and to get ourselves satisfied whether there is any remote possibility of the convict getting reformed, if awarded life sentence, we have asked the learned APP to tender material in that regard. We are mindful of the fact that we should also focus on the circumstances relating to the criminal, along with other circumstances and not only to the crime. We have, therefore, asked the learned APP to place on record all the relevant material in order to achieve the said purpose.

66. The Superintendent of Yerawada Central Prison, Pune by his communication dated 09.07.2024 forwarded a comprehensive report which comprises a report of the Probationary Officer, Kolhapur, in respect of the financial, social and educational background of the convict as well as the report 47 of 71 of a Psychologist and a Psychiatrist. It also comprises the medical examination report of the convict. He was lodged in Nagpur Central Prison and in Kolhapur Central Prison also.

67. The report dated 03.07.2024 forwarded by the District Probationary Officer, Kolhapur to the Superintendent of Yerawada Central Prison, Pune, indicates that the convict is a resident of a locality called Makadwala Vasahat, Kolhapur with a criminal background. He was earning his livelihood by working as a labourer. He was a habitual drunkard. He used to assault and abuse his wife, children and his mother under the influence of liquor. On the day of murder of his mother, he had purchased certain tablets from a medical store and had consumed the same. Since he was residing in the locality known as Makadwala Vasahat, the convict used to kill pigs and cats and used to consume their flesh. His friends’ circle has criminal background. In that year, one of his daughters was admitted in an Ashram School. His wife works as a domestic maid and fulfill the basic needs of the family. His wife used to earn Rs.9,000/per month while doing the work as a domestic help. The convict 48 of 71 had no agricultural land or any income other than labour. The eldest daughter of the convict was aged about 20 years, who is married and resides at Belgaum with her husband. The second daughter is 17 years old, who is prosecuting her studies in 11th standard (Arts). She resides with her mother. The third daughter is aged about 15 years, studying in 10th standard and also resides in a Ashram school. He has a son aged about 8 years studying in 4th standard. As such, the so called mitigating circumstance to look after his family has collapsed.

68. The Medical Superintendent, Sassoon General Hospital, Pune by communication dated 09.07.2024 has forwarded a Psychiatric Assessment Report received from its Department of Psychiatry to the Superintendent of Yerawada Central Prison, Pune about over all health and behaviour of the convict, which is extracted below:- “DEPARTMENT OF PSYCHIATRY B.J. Government Medical College & Sassoon General Hospital, Pune