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Supreme Court of India
Mofil Khan vs The State Of Jharkhand on 26 November, 2021Author: L. Nageswara Rao
Non-Reportable
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
Review Petition (Criminal) No.641 of 2015
In
Criminal Appeal No. 1795 of 2009
Mofil Khan & Anr. …Petitioner (s)
Versus
The State of Jharkhand …. Respondent(s)
JUDGMENT
L. NAGESWARA RAO, J.
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
Petitioners.
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.
…………………………..J.
[L. NAGESWARA RAO]
………………………….J.
[ B.R. GAVAI ]
..……………………….J.
[ B. V. NAGARATHNA ]
New Delhi,
November 26, 2021.
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