'Murder Was Not Social Revenge, Convict Over 60 Yrs Old': Punjab & Haryana High Court Commutes Death Sentence In Beheading Case

Observing that the murder stemmed from personal animosity arising out of a family property dispute and not “social revenge”, and noting that the convict was over 60 years of age with no history of violent behaviour, the Punjab & Haryana High Court has commuted the death sentence awarded to a man convicted of murdering and beheading his younger brother.

While upholding the conviction under Sections 302 and 201 of the IPC, the Court found that the case did not satisfy the “rarest of rare” threshold warranting capital punishment, and instead sentenced the convict to life imprisonment with a mandatory minimum of 20 years of actual incarceration without remission, along with an enhanced fine payable as compensation to the victim's family.

A division bench of Justice Anoop Chitkara and Justice H.S. Grewal noted, "There is also no evidence on record to suggest that the appellants would be a menace and threat to the harmonious and peaceful co-existence of the society.4 In our opinion, the mitigating factors that would not justify the imposition of a capital sentence are that the motive for killing his brother was a property dispute, and it was the convict's personal revenge, not social revenge. Further, there is no allegation of convict's violent behavior in the prison(s). These factors, coupled with the applicant's age being over 60 years, would not justify the imposition of capital punishment."

The High Court was seized of a death reference under Section 407 BNSS, 2023, along with a criminal appeal under Section 415(2) BNSS filed by convict Ashok Kumar, who had been sentenced to death by the Sessions Court for the brutal murder and decapitation of his younger brother Deepak.

The prosecution alleged that Deepak, a physically disabled divorcee confined to a wheelchair, was murdered by Ashok due to a long-standing property dispute arising from their mother's decision to bequeath her house exclusively to Deepak.

According to the prosecution the deceased was found decapitated in his house at Tohana, with the severed head missing. Prior threats by Ashok to kill Deepak were disclosed by the deceased to his sister.

The accused was alleged to have removed CCTV DVRs, taken away the severed head, weapon (kappa), and keys, and disposed of them in a canal. The prosecution relied on motive rooted in property dispute. Extra-judicial confessions made by the accused to relatives and his doctor through phone calls.

Call recordings recovered from the accused's mobile phone, supported by FSL voice-matching reports and unexplained injuries on the accused's hands and Recovery of a gold kara with blood stains, added the State.

After examining the submissions in detail, the Court found that that the postmortem evidence conclusively established that Deepak died due to decapitation, constituting culpable homicide amounting to murder.

Last-Seen Theory Rejected

The Court categorically ruled that the last-seen evidence failed, since the sole witness who allegedly saw the accused with the deceased had died before trial, and his statement was not recorded under Section 164 CrPC / Section 183 BNSS. The testimony of another witness narrating what the deceased witness had said was held to be pure hearsay and inadmissible.

Scientific Lapses Noted

The Bench severely criticised the investigation for not conducting DNA analysis on a blood-stained vest recovered from the crime scene.

"The best evidence to help establish Ashok's presence in the house of Deepak when Deepak was alive would have been the recovery of Ashok's blood-stained vest from the house of the deceased Deepak. However, the Investigators and their supervisory officers relied more on mortal humans than on indestructible science. They preferred to rely on Surjeet's oral testimony to establish that the accused, Ashok, was wearing the recovered vest and did not pursue DNA testing. Before the recording of testimony in the trial, Surjeet expired, and with that, the investigation into this crucial aspect of the offence, which carries the harshest sentence, also expired," said the Court.

Speaking for the bench Justice Chitkara added that, "the prosecution did not opt to conduct a DNA examination of the blood-stained vest to connect the blood to that of deceased Deepak and to other genetic material of the accused, which could have been present in all likelihood on the vest due to sweating, etc., particularly because it was summer, when sweating increases."

The bench highlighted that, "had the Investigators and their supervisory officers sent the vest to the laboratory to extract and compare the DNA from the genetic material which most likely would have been present on the vest, by comparing DNA from the preserved genetic material of the victim Deepak and the DNA of the accused Ashok, the scientific evidence would have established the presence of Ashok in Deepak's house, and his link with the crime from the stains of blood of the deceased; and if established, it would have shifted the burden on the accused to demonstrate at what time he had left and at that time whether Deepak was alive or not."

However, the Court pointed that the prosecution did not discharge its burden to connect the vest with Deepak and link it to Ashok, and the mere presence of human blood on the vest is insufficient unless the vest was connected with the accused Ashok, which was not done. Thus, the fact that the vest recovered from the crime scene was of Ashok (Accused) is not proved.

Extra-Judicial Confession Accepted

The Court upheld the reliance on extra-judicial confessions made by the accused to PW8 (nephew Hemant Bharti) and PW14 (family doctor).

These confessions were, voluntary and corroborated by call recordings. It Matched with the accused's voice sample through FSL analysis. The Court held that the voice sample collection and comparison were lawful and reliable, and that the admissions amounted to legally admissible evidence.

"The prosecution has established that the voice retrieved from the Redmi mobile phone of accused Ashok was his own voice, and that the accused Ashok had confessed about killing his brother to his multiple relatives and to his Doctor, and two of these confessions amounting to admissions of the accused have been proved beyond reasonable doubt and are admissions and are legally admissible," noted the Court.

While the confessional part of the disclosure statements was excluded, the Court relied on portions leading to recoveries, such as: Mobile phones, Gold kara, Cash and clothes. The non-recovery of the weapon (kappa) and severed head was explained by strong canal currents.

The Court relied on catena of judgements including Sundar @ Sundarrajan v. State by Inspector o fPolice,[2023], a three-Judge Bench of the Supreme Court wherein it was held, 'Rarest of rare' doctrine requires that the death sentence not be imposed only by taking into account the grave nature of crime but only if there is no possibility of reformation in a criminal.

In the present case, the Court noted that the Amicus Curiae submitted that she had interviewed the convict in jail and, in her opinion, the convict is suffering from physical as well as psychological health issues. He is suffering from a cardiovascular disease, and after the pronouncement of the death sentence, he has severe sleep disruptions and is undertaking psychological treatment.

In the light of the above, the Court said given the above, the death sentence awarded by the trial Court to the appellant under Sec 302 IPC is commuted and altered to life imprisonment with the stipulation that the convict Ashok Kumar shall not be released on remission or otherwise, unless he has undergone 20 years of actual sentence in prison or in custody, and the fine amount is enhanced to Rs. 5,00,000.

The Court added that, in case the prisoner Ashok suffers from any mental or health issues, then during that time, he may be kept out of prison in some other facility, subject to and in terms of the opinion of the Doctors and the Subject Specialists, and the period spent for this term shall be considered as if he had served his actual sentence.

Mr. Rahul Mohan, Addl. A.G., Haryana Mr. Karan Sharma, D.A.G., Haryana Mr. Shiva Khurmi, D.A.G., Haryana Mr. Yuvraj Shandilya, A.A.G., Haryana.

Mr. H.S. Deol, Amicus Curiae for Respondent/Convict in Murder Reference.

Mr. Harvinder Singh Maan, Advocate,

Ms. Gurdeep Kaur, Legal Aid Counsel,

Mr. Harnoor Singh Sidhu, Advocate, and Ms. Kirandeep Kaur, Advocates for the appellant/Convict.

Title: State of Haryana v. Ashok Kumar

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