Supreme Court of India
Mofil Khan vs The State Of Jharkhand on 26 November, 2021Author: L. Nageswara Rao




Review Petition (Criminal) No.641 of 2015
Criminal Appeal No. 1795 of 2009

Mofil Khan & Anr. …Petitioner (s)


The State of Jharkhand …. Respondent(s)



1. This Petition has been filed under Article 137 of the

Constitution of India, seeking review of the judgment dated

09.10.2014 in Criminal Appeal No.1795 of 2009. The Petitioners

were convicted for offences under Sections 302 and 449 read

with Section 34 of the Indian Penal Code, 1860 (for short, “IPC”)

and sentenced to death for offence under Section 302 read with

Section 34, IPC and 10 years of rigorous imprisonment for

offence under Section 449 read with Section 34, IPC. The

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conviction and death sentence imposed by the trial court was

upheld by the High Court of Jharkhand by an order dated

02.07.2009 and the Criminal Appeal filed by the Petitioners

against the said order was dismissed by this Court by its

judgment dated 09.10.2014. In Mohd. Arif v. Registrar,

Supreme Court of India1, this Court held that review petitions

arising out of appeals affirming the death sentence are required

to be heard orally by a three-Judge bench. Pursuant to the said

judgment, this Review Petition is listed for open court hearing.

2. At the outset, it is necessary to set out the scope and

ambit of the jurisdiction of this Court in hearing review petitions.

Article 137 of the Constitution empowers the Supreme Court to

review any judgment pronounced by it, subject to the provisions

of any law made by Parliament or any rules made under Article

145 of the Constitution of India. Order XLVII, Rule 1 of the

Supreme Court Rules, 2013 provides that the Court may review

its own judgment or order, but no application for review will be

entertained in a civil proceeding except on the ground

mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure,

1908 and in a criminal proceeding except on the ground of an

error apparent on the face of the record. Needless to mention

that the Supreme Court Rules, 2013 are framed under Article

1 (2014) 9 SCC 737

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145 of the Constitution. Order XLVII, Rule 1 of the Supreme

Court Rules, 2013 is materially the same as Order XL, Rule 1 of

the Supreme Court Rules, 1966. In P.N. Eswara Iyar v.

Registrar, Supreme Court of India2, this Court observed that

Order XL, Rule 1 of the Supreme Court Rules, 1966 limits the

grounds for review in criminal proceedings to “errors apparent

on the face of the record”. Review is not rehearing of the appeal

all over again and to maintain a review petition, it has to be

shown that there has been a miscarriage of justice (See:

Suthendraraja v. State3). An error which is not self-evident

and has to be detected by a process of reasoning can hardly be

said to be an error apparent on the face of the record justifying

the Court to exercise its power of review (See: Kamlesh Verma

v. Mayavati4). An applicant cannot be allowed to reargue the

appeal in an application for review on the grounds that were

urged at the time of hearing of the appeal. Even if the applicant

succeeds in establishing that there may be another view

possible on the conviction or sentence of the accused that is not

a sufficient ground for review. This Court shall exercise its

jurisdiction to review only when a glaring omission or patent

mistake has crept in the earlier decision due to judicial fallibility.

There has to be an error apparent on the face of the record
2 (1980) 4 SCC 680
3 (1999) 9 SCC 323
4 (2013) 8 SCC 320

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leading to miscarriage of justice (See: Vikram Singh v. State

of Punjab5). Justice Mohan M. Shantanagoudar in Sudam v.

State of Maharashtra6 held that review petitioners cannot

seek re-appreciation of the evidence on record while hearing

review petitions.

3. Keeping in view the aforementioned principles laid down

by this Court, we refer to the facts that are necessary for

adjudication of the present Review Petition. The prosecution

case is that there was a dispute relating to property between the

Review Petitioners and their brother, Haneef Khan. At 8.30 PM

on 06.06.2007, the Petitioners, along with others, assaulted

Haneef Khan, who was offering namaz in the mosque of village

Makandu, with sharp-edged weapons such as sword, tangi,

bhujali and spade. Haneef Khan died on the spot. The

Petitioners and others, thereafter, attacked Gufran Khan @ Pala

and Imran Khan, who were proceeding to the mosque on hearing

their father. Gufran Khan and Imran Khan were attacked in front

of their house and they died. The Petitioners and others rushed

into the house of Haneef Khan and murdered Kasuman Bibi, wife

of Haneef Khan and their four sons, namely, Yusuf Khan

(physically disabled and aged about 18 years), Maherban Khan

(aged about 12 years), Danish Khan (aged about 8 years) and
5 (2017) 8 SCC 518
6 (2019) 9 SCC 388

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Anish Khan (aged about 5 years). PW-2, Jainub Khatoon, mother

of the Petitioners and the deceased-Haneef Khan, and others

present were threatened by the Petitioners. PW-1, Gaffar Khan,

who reached the village at 6.00 am on the next day, i.e.,

07.06.2007, saw the dead bodies of the family and was informed

by his wife, PW-2, about the Petitioners and others committing

the crime. In the meanwhile, the chowkidar of the village

informed the police telephonically about the crime. PW-13,

Shambhu Nath Singh, rushed to the place of occurrence and

recorded the statement of the informant, Gaffar Khan. Inquest

of the bodies of the eight deceased persons was prepared and

post-mortem was conducted later. The Petitioners and others

were charged for offences under Sections 302, 449, 380 read

with Section 34 and Section 120B, IPC. Out of the 11 accused, 7

were acquitted and 4 of the accused individuals were convicted

by the trial court. The Petitioners as well as Saddam Khan and

Wakil Khan were convicted under Sections 302 and 449 read

with Section 34, IPC and sentenced to death for offence under

Section 302 read with Section 34, IPC and 10 years of rigorous

imprisonment for offence under Section 449 read with Section

34, IPC. As stated earlier, the High Court upheld the conviction

and sentence of the Petitioners, except the separate sentence of

rigorous imprisonment for 10 years under Section 449 read with

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Section 34, IPC, which was done away with. However, the High

Court converted the sentence of death in respect of Saddam

Khan and Wakil Khan to life imprisonment. The Appeal filed by

the Petitioners against the conviction and sentence was

dismissed by this Court on 09.10.2014. This Petition is filed

seeking review of the said judgment.

4. Mr. C.U. Singh, learned Senior Counsel appearing for the

Petitioners, submitted that a grave error was committed by the

amicus curiae appearing for the Petitioners while arguing the

Criminal Appeal by restricting his submissions only to the

sentence. He submitted that the judgment of this Court in the

Criminal Appeal suffers from an error apparent on the face of the

record, as it relies upon a charge under Section 380, IPC of

which the Petitioners have been acquitted by the trial court. He

took us through the evidence and argued that the Petitioners

ought not to have been convicted in the first place in view of the

glaring errors in the prosecution case. The clothing of the

Petitioners was not seized nor were any splatter marks found on

the wall of the mosque or the house of Haneef Khan. Except the

recovery of tangi, no other weapons alleged to have been used

by the Petitioners were seized. PW-2 did not, admittedly,

witness the murder of five persons in the house as she went into

the room and locked her door out of fear. There is no evidence

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that the Petitioners had caused the death of the wife and four

children of Haneef Khan. Insofar as the death sentence is

concerned, Mr. Singh submitted that the Petitioners have no

criminal antecedents, did not have proper legal assistance

during the entire proceedings so far and there is a possibility of

reformation and rehabilitation of the Petitioners. He further

stated that shortly after the crime, the Petitioners had sought to

record a confessional statement before the Magistrate

expressing remorse, which had not been permitted by the

Investigating Officer. These incidents are recorded in the police

diary. He argued that the conduct of the Petitioners during the

period of incarceration has been satisfactory, as is clear from the

certificate issued by the Jail Superintendent. The affidavits filed

by family and community members of the Petitioners show that

they have strong emotional ties with the Petitioners even now,

which would demonstrate that the probability of the Petitioners’

rehabilitation and reformation is not foreclosed.

5. Ms. Prerna Singh, learned Counsel appearing for the State,

countered the submissions of Mr. C.U. Singh and argued that the

conviction of the Petitioners should not be interfered with. There

is no error, much less an error apparent on the face of the record

committed by the trial court, the High Court or this Court. She

pointed out that apart from PW-1, the mother of the Petitioners,

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there are other independent eye-witnesses whose testimony was

consistent during the rigorous cross-examination. PW-3 and PW-

6 are natural eye-witnesses, who were performing namaz in the

mosque when Haneef Khan was attacked and killed by the

Petitioners and others. PW-5, the Imam of the mosque, also

deposed against the Petitioners. The medical evidence of PW-8

is consistent with the ocular testimony of the eye-witnesses.

Insofar as the death of Gufran Khan and Imran Khan outside the

house is concerned, the evidence of PW-2 and other individual

eye-witnesses, PW-7 and PW-12, is consistent and rightly relied

on by the courts. PW-7, who is an independent witness, spoke

about the forcible entry into the house of Haneef Khan by the

Petitioners and other assailants, who carried deadly weapons.

PW-2 deposed that she saw the Petitioners entering the house to

kill Kasuman Bibi and her children and heard the shouts, though

she had locked herself in a room. The chain of events is

complete leading to the conclusion that the murder of the

persons inside the house were committed by the Petitioners. In

view of the nature of the murders committed in the goriest

manner in a pre-meditated fashion, the Petitioners are not

entitled to seek conversion of the death sentence. The manner

of commission of the crime shows that this is the rarest of the

rare cases, warranting a death sentence. She argued that the

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diabolic and cold-blooded nature of the crime is a factor to be

borne in mind to decide the possibility of reformation of the


6. Though a valiant effort was made by the learned Senior

Counsel of the Petitioners seeking re-appreciation of evidence to

interfere with their conviction, in view of the limited jurisdiction

of this Court under Article 137 of the Constitution and Order

XLVII, Rule 1 of the Supreme Court Rules, 2013, we are not

inclined to do so. Even in an appeal by special leave, this Court

does not re-appreciate the concurrent findings of fact recorded

by the courts below (See: Duli Chand v. Delhi

Administration7; Dalbir Singh v. State of Punjab8). It is

relevant to deal with a submission made on behalf of the

Petitioners that this Court relied upon the theft committed by the

Petitioners from the house of the deceased, for which charge

they had been acquitted by the trial court. Though such an error

appears from the judgment of this Court, it is not an “error

apparent on the face of the record” as the impugned judgment

of this Court in affirming the death sentence was not rendered

on the basis of the said finding.

7 (1975) 4 SCC 649
8 (1976) 4 SCC 158

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7. Apart from others, the principal contention of the

Petitioners is that the plausibility of reformation and

rehabilitation was not taken into account by the trial court, the

High Court as well as this Court while sentencing them to death.

The trial court convicted the Petitioners and others on

01.08.2008. On hearing the Petitioners on the sentence, the

trial court passed an order on 05.08.2008 after balancing the

aggregating factors and mitigating circumstances. The brutality

of the crime was taken into account by the trial court, which

considered it fit to impose capital punishment on the Petitioners.

The High Court set aside the death sentence imposed on Gurfan

Khan and Imran Khan as there was no evidence to prove that

they inflicted injuries on the deceased and also taking into

account their young age. However, they were sentenced to life

imprisonment after their conviction under Sections 302 and 449

read with Section 34 IPC was upheld. Taking note of the

Petitioners’ culpability in the gruesome murders which assumed

“the proportion of extreme depravity”, the High Court refused to

interfere with the death sentence imposed by the trial court.

This Court dismissed the Criminal Appeal taking note of the

manner in which the offence was committed against the helpless

children and others and concluded that the Petitioners would be

a menace and threat to harmony in the society. Putting an end

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to the lives of innocent minors and a physically infirm child,

apart from other members of the family, in a pre-planned attack,

was taken note of by this Court to hold that the case falls under

the category of “rarest of the rare” cases.

8. One of the mitigating circumstances is the probability of

the accused being reformed and rehabilitated. The State is

under a duty to procure evidence to establish that there is no

possibility of reformation and rehabilitation of the accused.

Death sentence ought not to be imposed, save in the rarest of

the rare cases when the alternative option of a lesser

punishment is unquestionably foreclosed (See: Bachan Singh v.

State of Punjab9). To satisfy that the sentencing aim of

reformation is unachievable, rendering life imprisonment

completely futile, the Court will have to highlight clear evidence

as to why the convict is not fit for any kind of reformatory and

rehabilitation scheme. This analysis can only be done with

rigour when the Court focuses on the circumstances relating to

the criminal, along with other circumstances (See: Santosh

Kumar Satishbhushan Bariyar v. State of Maharashtra10).

In Rajendra Pralhadrao Wasnik v. State of Maharashtra11,

9 (1980) 2 SCC 684
10 (2009) 6 SCC 498
11 (2019) 12 SCC 460

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this Court dealt with the review of a judgment of this Court

confirming death sentence and observed as under:

“45. The law laid down by various decisions of this Court
clearly and unequivocally mandates that the probability
(not possibility or improbability or impossibility) that a
convict can be reformed and rehabilitated in society
must be seriously and earnestly considered by the
courts before awarding the death sentence. This is one
of the mandates of the “special reasons” requirement of
Section 354(3) CrPC and ought not to be taken lightly
since it involves snuffing out the life of a person. To
effectuate this mandate, it is the obligation on the
prosecution to prove to the court, through evidence, that
the probability is that the convict cannot be reformed or
rehabilitated. This can be achieved by bringing on
record, inter alia, material about his conduct in jail, his
conduct outside jail if he has been on bail for some time,
medical evidence about his mental make-up, contact
with his family and so on. Similarly, the convict can
produce evidence on these issues as well.”

9. It would be profitable to refer to a judgment of this Court in

Mohd. Mannan v. State of Bihar12 in which it was held that

before imposing the extreme penalty of death sentence, the

Court should satisfy itself that death sentence is imperative, as

otherwise the convict would be a threat to the society, and that

there is no possibility of reform or rehabilitation of the convict,

12 (2019) 16 SCC 584

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after giving the convict an effective, meaningful, real

opportunity of hearing on the question of sentence, by

producing material. The hearing of sentence should be effective

and even if the accused remains silent, the Court would be

obliged and duty-bound to elicit relevant factors.

10. It is well-settled law that the possibility of reformation and

rehabilitation of the convict is an important factor which has to

be taken into account as a mitigating circumstance before

sentencing him to death. There is a bounden duty cast on the

Courts to elicit information of all the relevant factors and

consider those regarding the possibility of reformation, even if

the accused remains silent. A scrutiny of the judgments of the

trial court, the High Court and this Court would indicate that the

sentence of death is imposed by taking into account the

brutality of the crime. There is no reference to the possibility of

reformation of the Petitioners, nor has the State procured any

evidence to prove that there is no such possibility with respect

to the Petitioners.We have examined the socio-economic

background of the Petitioners, the absence of any criminal

antecedents, affidavits filed by their family and community

members with whom they continue to share emotional ties and

the certificate issued by the Jail Superintendent on their conduct

during their long incarceration of 14 years. Considering all of the

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above, it cannot be said that there is no possibility of

reformation of the Petitioners, foreclosing the alternative option

of a lesser sentence and making the imposition of death

sentence imperative. Therefore, we convert the sentence

imposed on the Petitioners from death to life. However, keeping

in mind the gruesome murder of the entire family of their sibling

in a pre-planned manner without provocation due to a property

dispute, we are of the opinion that the Petitioners deserve a

sentence of a period of 30 years.

11. Accordingly, the sentence of death imposed on the

Petitioners is converted to life imprisonment for a period of 30

years. The Review Petition is disposed of.


[ B.R. GAVAI ]


New Delhi,
November 26, 2021.

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