B.L. Hansaria, J.@mdashTo hang or not to hang, is the basic question to be decided in this appeal. The murder of Vijaya was undoubtedly most
foul. Even so, death sentence can be awarded if murder be of the ""rarest of the rare"" type. Let it be seen whether this was so.
2. The facts taken as established by the High Court, to whom .reference was made after the trial court had awarded the death sentence and
appeals were preferred, are that Vijaya got officially married to the appellant on April 24,1990. This was against the wishes of his father Trimbak,
who had wanted to get his son married to some other girl and had hoped for good dowry from that marriage. Vijaya could live only for a couple of
days with her husband before she returned back to her parents'' house, because she felt that she was persecuted by Priyatama, sister of the
appellant. On return to her parents'' house, she told her father Ashruba about the demand of dowry made by Trimbak and the appellant. The
demand was of No. 25,000/-. Ashruba, however, being an employee with meagre salary, could agree to pay only No. 5,000/-. The further
accepted case is that on or about December 2, 1990, the appellant took Vijaya to Bombay. On December 14, 1990, Trimbak and his wife
Mudrikabai came to Bombay. All of them were seen together at about 9.15 p.m. Thereafter nobody saw Vijaya alive.
3. Vijaya had been taken to Bombay with a promise that she would be sent back on January 3, 1991 for delivery at her parents'' house, as she
was carrying a child of about 8 months then. As she did not come even 8-10 days after 3rd January, Ashruba got worried as to what had
happened to her daughter. He sent his two sons to Bombay who, alongwith two of their friends, reached there on 15th January. On inquiry being
made from the appellant about Vijaya, it was told that she was in good health. On desiring to meet her, the appellant, who was then a lecturer in
Sardar Patel Engineering College at Andheri, said that he would take them to the house at about 4 p.m. when she could be met. The four persons
then left for Juhu Beach and when came back to College around 4 p.m., they came to know that the appellant had already left without leaving any
message. After making inquiries about the residential address they reached the place to be informed that the appellant and his father had left with
bags and baggage. About Vijaya, neighbours told that she had been sent to her parents'' house for delivery. This shocked the boys and they
apprehended some foul play. Coming back to Aurangabad (the town where the parents lived) they narrated to Ashruba what had happened at
Bombay. Further inquiries were made at Bombay to be given out the same story.
4. This led Ashruba to lodge a complaint at Borivli Police Station on 24th January. Police arrested Trimbak who expressed his willingness to show
the place where Vijaya''s head was thrown after she was murdered. The head was found in the shrub near Gorai Creek. The head was identified
to be of Vijaya because of the peculiar nature of her curly hair and projected teeth. Trimbak further told to the police that body of Vijaya was cut
in nine pieces and was kept in two suitcases which had been thrown in a Nala. Trimbak led to police that place but could not find the suitcases.
The appellant, on being interrogated, made a statement that he will point out the razor and certain other articles which had been thrown at Gorai
Creek. On the police being led to that place, two knives and a razor were found. Ultimately, the nine pieces of the cut body were found contained
in two bags which had been kept in a local train at Borivli which was proceeding towards Churchgate. The two bags were taken charge of by the
railway police and the body was sent for postmortem.
5. After completion of investigation, charge-sheet was filed against the appellant, his father Trimbak, his mother Mudrikabai and his sister
Priyatama. During the course of trial, the father and sister died; and so, only the appellant and his mother faced it fully. The former was convicted
u/s 302 read with 120B of the I.P.C. for committing the murder of Vijaya; and also of the child in the womb; He was further found guilty u/s s
201/34, so too u/s s 498-A/34 and 304-B/34 IPC. He was awarded the sentence of death for the offence u/s 302 read with 120B; to R.I. for
seven years for the offence u/s 201/34; to R.I. for three years and a fine of No. 500/- in default R.I. for three months for 498-A/34 offence; and
R.I. for seven years for 304-B/34 offence-the same being the minimum sentence prescribed under law. As the appellant was awarded death
sentence, it was stated by the trial court that all his substantive sentences shall merge in this sentence. Mudrikabai (the mother) was also found
guilty under some sections and various sentences were awarded to her.
6. On appeal being preferred by the convicts and reference being made by the Addl. Sessions Judge for confirmation of the death sentence, all the
cases were heard together and by the impugned judgment the High Court has acquitted Mudrikabai of all the charges, but has confirmed the
conviction of the appellant for the murder of Vijaya. As for the offence of causing the murder of the child in the womb, the conviction has been
altered to Section 316, for which the sentence is R.I. for ten years. The High Court has also confirmed the conviction under Sections 201/34 and
498-A/34 and the sentences as awarded. The conviction u/s 304-B/34 has, however, been, set aside.
7. This appeal having been admitted only on the question of sentence, we have heard learned Counsel for the parties regarding the same. Shri
Janardhnan, senior Advocate appearing for the appellant, has contended that the present was not a case of death sentence inasmuch as it was
Trimbak who had done all the acts and the appellant had really no part to play, as he had married Vijaya out of love and he continued to love her.
As to the prosecution case of his having brought Vijaya to Bombay, it is urged that that had been done at the request of Vijaya and the appellant
had no inkling as to what was playing in the mind of his father.
8. We cannot at all accept the aforesaid in view of the finding of both the courts below that the appellant was hand in glove with his father, both of
whom had hatched a plan and murdered Vijaya and also had thought out as how to dispose of the body. There are materials on record to show
that Vijaya had been brought to Bombay, not to show the love of the husband, but to get her killed at the cruel hands of her father-in-law. The
High Court, after noting the evidence, has come to categorical finding that the circumstances clearly establish the active participation of the
appellant with his father right from the beginning till the end.
9. The present was thus a murder most foul, as pointed out by us in the opening paragraph. The motive was to get another girl for the appellant
who could get dowry to satisfy the greed of the father. Dowry-deaths are blood-boiling, as human blood is spilled to satisfy raw-greed, naked
greed; a greed which has no limit. Nonetheless, question is whether the extreme penalty was merited in the present case ?
10. We have given considered thought to the question and we have not been able to place the case in that category which could be regarded as
the ""rarest of the rare"" type. This is so because dowry death has ceased to belong to that species of killing. The increasing number of dowry deaths
would bear this. To halt the rising graph, we, at one point, thought to maintain the sentence; but we entertain doubt about the deterrent effect of a
death penalty. We, therefore, resist ourselves from upholding the death sentence, much though we would have desired annihilation of a despicable
character like the appellant before us. We, therefore, commute the sentence of death to one of R.I. for life imprisonment.
11. But then, it is a fit case, according to us, where, for the offence u/s 201/34, the sentence awarded, which is R.I. for seven years being the
maximum for a case of the present type, should be sustained, in view of what had been done to cause disappearance of the evidence relating to the
commission of murder - the atrocious way in which the head was severed and the body was cut in nine pieces. These cry for maximum sentence.
Not only this, the sentence has to run consecutively, and not concurrently, to show our strong disapproval to the loathsome, revolting and dreaded
device adopted to cause disappearance of the dead body. To these sentences, we do not, however, desire to add those awarded for offences
under Sections 316 and 498-A/ 34, as killing of the child in the womb was not separately intended, and 498-A offence ceases to be of significance
and importance in view of the murder of Vijaya.
12. The result is that the appeal stands allowed to the extent that the sentence of death is converted to one of imprisonment for life. But then, the
sentence of seven years'' R.I., for the offence under Sections 201/34 IPC would start running after the life imprisonment has run its course as per
law.