Gauri Shankar vs The State Of Punjab on 16 February, 2021


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Supreme Court of India

Gauri Shankar vs The State Of Punjab on 16 February, 2021

Author: Hon’Ble Ms. Malhotra

Bench: Hon’Ble Ms. Malhotra, Ajay Rastogi

                                                                  NON­REPORTABLE

                                  IN THE SUPREME COURT OF INDIA

                                 CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPEAL NO. 135 OF 2021
                              (Arising out of SLP(Crl.) No(s).1836 of 2020)



          GAURI SHANKAR                                               ...APPELLANT

                                             VERSUS

          STATE OF PUNJAB                                           ...RESPONDENT



                                            JUDGMENT

Rastogi, J.

1. Leave granted.

2. The sole accused appellant faced trial for committing the

murder of two minor children aged 4 years and 2 years in brutal

manner by administering celphos to them. After being convicted by

learned trial Judge for offence under Section 302 IPC by judgment
Signature Not Verified

dated 1st July, 2013 and confirmed by the High Court on appeal
Digitally signed by
Rachna
Date: 2021.02.16
15:28:06 IST
Reason:

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preferred at his instance being dismissed by judgment impugned

dated 13th December, 2018, the appellant has preferred this appeal.

3. The case of the prosecution was that complainant Anju was

married with Ajay Kumar, S/o Sajjan Singh and from this wedlock,

she had two children, namely, Vijay Kumar @ Bittu aged 4 years

and Muskan aged 2 years. Ajay Kumar was addicted to liquor and

because of intoxicants, he died. The accused appellant was

residing on rent in the neighbourhood of complainant Anju.

Accused appellant allegedly enticed Anju and brought her with her

two children to Punjab where the fateful incident took place. The

appellant used to quarrel with Anju and frequently beat the

children and used to proclaim that he did not like the children as

they were not his own and that some day he would kill both of

them. About a month and half before the incident, he had

fractured the arm of Vijay @ Bittu, deceased son of Anju. On the

fateful day of 18th March, 2013, at about 7.30 a.m., Anju went to

the temple for prayers. At that time, the children were sleeping in

the house and the accused appellant was present. When Anju

returned from the temple, she saw both her children lying on the

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cot struggling for life. The accused appellant went away telling the

complainant Anju that he had given poison to both the children.

The complainant Anju raised alarm and with the assistance of

Jagdev Singh, PW­2, the landlord and his nephew Kamaldeep

Singh, PW­3, both the children were taken to Civil Hospital, Mandi,

Gobindgarh, where they were declared dead. On intimation to the

police, statement of the complainant Anju was recorded and FIR

was registered. The bodies were sent for post­ mortem examination.

The viscera was sent for chemical examination. After completion of

investigation, challan was presented in the Court.

4. Initially, the appellant pleaded guilty and did not claim trial.

He admitted that he administered poison to the children as a result

of which the children died within 15­20 minutes. However, after

the examination of the complainant Anju (PW­1) and the landlord

Jagdev Singh (PW­2), he moved an application dated 14 th May, 2013

stating that he had no concern with the crime and that he had been

misled by Government counsel to make a wrong statement

admitting his guilt.

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5. The prosecution examined number of witnesses including

Anju PW­1, the complainant, whose both children were murdered

by the accused appellant. The statement of PW­1 Anju was duly

supported by PW­2 Jagdev Singh and PW­3 Kamaldeep Singh who

are the landlord and his nephew where the complainant Anju along

with the accused appellant were residing at the time of the incident.

6. Apart from other prosecution witnesses duly supported by the

Histopathology reports Exhibits P­8 and P­9, the cause of death in

case of both the children was found to be Aluminium Phosphide

insecticide ingestion. The statement of the accused appellant was

recorded under Section 313 CrPC where he denied having

committed the crime, but did not lead any evidence in defence.

7. Learned trial Judge finally held the appellant guilty of an

offence under Section 302 IPC and punished him with

imprisonment for life which would mean remainder of natural life

and fine of Rs.5000/­ by judgment dated 1st July, 2013.

8. On the appeal being preferred by the appellant, the High Court

revisited the record in totality and confirmed the finding of guilt

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recorded by the learned trial Judge by judgment dated

13th December, 2018 which is impugned before us in the instant

appeal.

9. At the motion stage when the matter came up before this

Court on 20th February, 2020, the plea which was raised by learned

counsel for the appellant was that on the date of framing of

charges, i.e., 29th April, 2013, the statement of material prosecution

witnesses PW­1 and PW­2 was recorded without affording

reasonable opportunity to the accused appellant to cross examine

the prosecution witnesses as mandated under Section 230 of Code

of Criminal Procedure, 1973. After the notice was served, counter

affidavit has been filed by the respondent and the fact noticed by us

in our Order dated 20th February, 2020 has been explained in

paragraph 13 of the counter affidavit that after framing of charges,

the appellant pleaded guilty, however following the rule of

prudence, the trial Court decided to examine four witnesses before

recording the conviction, and accordingly PW­1 and PW­2 were

examined first and perusal of their statements, i.e. Annexure P­2

and Annexure P­3 would show that the opportunity was granted

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to the accused appellant to cross­examine the witnesses on 29 th

April, 2013 and in fact cross­examination was done by counsel for

the accused appellant. However, after cross­ examination of these

two witnesses, the appellant pleaded to claim trial on 14 th May,

2013 and thereafter the evidence of other prosecution witnesses

was recorded. At no stage, the appellant moved any application for

recalling the witnesses and to be more specific, of PW­1 and PW­2

and this issue has been raised for the first time before this Court.

10. After taking note of the statement of fact which has been

stated by the respondent in the counter affidavit and paragraph 13

in particular, of which the reference has been made and with

assistance of the learned counsel, we have gone through the

material available on record and find no error in the finding of guilt

being recorded by the trial Court and confirmed by the High Court

in the impugned judgment which calls for our interference.

11. Learned counsel for the appellant at this stage submitted that

while convicting the accused appellant for offence under Section

302 IPC, he has been sentenced with imprisonment for life which

would mean a remainder of natural life which was not in the

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domain of the trial Court, and this could have been exercised only

by the High Court or by this Court. In support of his submission,

learned counsel has placed reliance on para 105 and 106 of the

Constitution Bench judgment of this Court in Union of India Vs.

V. Sriharan @ Murugan and Others 2016(7) SCC 1, which is

extracted hereunder:­

“105. We, therefore, reiterate that the power derived from the
Penal Code
for any modified punishment within the
punishment provided for in the Penal Code for such specified
offences can only be exercised by the High Court and in the
event of further appeal only by the Supreme Court and not by
any other court in this country. To put it differently, the power
to impose a modified punishment providing for any specific
term of incarceration or till the end of the convict’s life as an
alternate to death penalty, can be exercised only by the High
Court and the Supreme Court and not by any other inferior
court.

106. Viewed in that respect, we state that the ratio laid down
in Swamy Shraddananda (2) v. State of Karnataka, (2008) 13
SCC 767 that a special category of sentence; instead of death;
for a term exceeding 14 years and put that category beyond
application of remission is well founded and we answer the
said question in the affirmative. We are, therefore, not in
agreement with the opinion expressed by this Court
in Sangeet v. State of Haryana (2013) 2 SCC 452 that the
deprival of remission power of the appropriate Government by
awarding sentences of 20 or 25 years or without any
remission as not permissible is not in consonance with the
law and we specifically overrule the same.”

12. Taking assistance thereof, learned counsel for the appellant

submits that at least judgment of the trial Court in imposing
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punishment of life imprisonment to the remainder of natural life

needs to be interfered by this Court.

13. Per contra, learned counsel for the respondent submits that

imprisonment for life could indeed be imposed by the learned trial

Judge and since this question was not raised by the appellant

before the High Court and has been raised for the first time before

this Court, it can be considered as to whether for such a heinous

crime which the appellant has committed, at least this Court may

exercise its power and approve the sentence which has been

imposed taking note of what has been observed by this Court in the

judgment referred to supra.

14. We find substance in what being urged by learned counsel for

the respondent, and after the accused has been held guilty for

offence under Section 302 IPC, and sentenced to imprisonment for

life could indeed be imposed by the learned trial Judge under its

judgment dated 1st July, 2013.

15. On the legal principles, the learned counsel for the appellant

appears to be correct, but we have taken note of the prosecution

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case in totality with motive of the crime that he was living in a

relationship with the complainant Anju who had two children from

the previous marriage, and had taken away the life of two minor

innocent children at the very threshold of their life and murdered in

a brutal manner by administering celphos to them has been

established. It is true that the punishment of remainder of natural

life could not have been imposed by the learned trial Judge but

after looking into the entire case, we consider it appropriate to

confirm the sentence of imprisonment for life to mean the

remainder of natural life while upholding the conviction under

Section 302 IPC.

16. Consequently, the appeal fails and is accordingly dismissed.

17. Pending application(s), if any, stand disposed of.

……………..…………………………J.

(INDU MALHOTRA)

……………………………………….J.

(AJAY RASTOGI)

NEW DELHI
FEBRUARY 16, 2021

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