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sushil sharma death sentence was commuted in to life imprisonment = SUSHIL SHARMA Vs. STATE (NCT) OF DELHI published in judis.nic.in/supremecourt/filename=40866

sushil sharma death sentence was commuted in to life imprisonment  =

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

 

 

The appellant was  the  State  President  of  the Youth Congress in Delhi.

 

The deceased was a qualified  pilot  and  she  was

 

also the State General Secretary of  Youth  Congress  (Girls  Wing),  Delhi.

 

She was an independent lady, who was capable of taking  her  own  decisions.

 

From the evidence on record, it cannot be said that she  was  not  in  touch

 

with people  residing  outside  the  four  walls  of  her  house.  

 

 Evidence

 

discloses that even on the date of incident at  around  4.00  p.m.  she  had

 

contacted PW-12 Matloob Karim.   

 

She  was  not  a  poor  illiterate  hapless

 

woman.   Considering  the  social  status  of  the  deceased,  it  would  be

 

difficult to come to the conclusion that the appellant  was  in  a  dominant

 

position qua her.  

 

The appellant was deeply in love with  the  deceased  and

 

knowing full well that the deceased was very close to PW-12  Matloob  Karim,

 

he married her hoping that the deceased would settle down with him and  lead

 

a happy life.  

 

The evidence on record  establishes  that  they  were  living

 

together and were married but unfortunately, it appears  that  the  deceased

 

was still in touch with PW-12 Matloob Karim. 

 

It appears that  the  appellant

 

was extremely possessive of the deceased. The evidence on record shows  that

 

the appellant suspected her fidelity and the murder was the result  of  this

 

possessiveness.   

 

We have noted that when the appellant was  taken  to  Lady

 

Hardinge Mortuary and when the dead  body  was  shown  to  him,  he  started

 

weeping.  It would be difficult, therefore, to say that he was  remorseless.

 

 

 

The fact that he absconded is undoubtedly a circumstance  which  will  have

 

to be taken against him, but the same, in  our  considered  view,  would  be

 

more relevant to the issue of culpability  of  the  accused  which  we  have

 

already decided against him rather than the question of what  would  be  the

 

appropriate sentence to be awarded which is presently  under  consideration.

 

 

 

The medical evidence does not establish that the dead body of  the  deceased

 

was cut.  

 

The second post-mortem report states  that  no  opinion  could  be

 

given as to whether the dead body was cut as dislocation  could  be  due  to

 

burning of the dead body.  

 

There is no recovery of any weapon  like  chopper

 

which could suggest that the  appellant  had  cut  the  dead  body.   

 

It  is

 

pertinent to note that no member of the family of the deceased came  forward

 

to depose against the  appellant.   

 

In  fact,  in  his  evidence,  PW-81  IO

 

Niranjan Singh stated that the brother and  sister-in-law  of  the  deceased

 

stated that they were under the obligation of the appellant and  they  would

 

not like to  depose  against  him.   

 

Murder  was  the  outcome  of  strained

 

personal relationship.  It was not an  offence  against  the  Society.   The

 

appellant has no criminal antecedents.  

 

He is not a confirmed  criminal  and

 

no evidence is led by the State to indicate that he is likely to  revert  to

 

such crimes in future.  

 

It is, therefore, not possible in the facts  of  the

 

case to say that there is no chance of  the  appellant  being  reformed  and

 

rehabilitated.  

 

We do not think that that option is closed.  Though  it  may

 

not be strictly relevant, we may mention that the appellant is the only  son

 

of his parents, who are old and infirm.  

 

As  of  today,  the  appellant  has

 

spent more than 10 years in death cell.  Undoubtedly, the offence is  brutal

 

but the brutality alone would not justify death sentence in this case.   The

 

above mitigating circumstances persuade us to commute the death sentence  to

 

life imprisonment.  

 

In several judgments, some of which,  we  have  referred

 

to hereinabove, this Court has made it clear that life sentence is  for  the

 

whole of remaining life subject to the remission granted by the  appropriate

 

Government under Section 432 of the Cr.P.C., which, in turn, is  subject  to

 

the  procedural  checks  mentioned  in  the  said  provision   and   further

 

substantive checks in Section 433-A of  the  Cr.P.C.   We  are  inclined  to

 

issue the same direction.

 

 

 

84.   We have already confirmed the conviction of the appellant for  offence

 

punishable under Section 302 of the IPC and  for  offence  punishable  under

 

Section 120-B read with Section 201 of  the  IPC. 

 

  In  view  of  the  above

 

discussion, we commute the death sentence  awarded  to  appellant  –  Sushil

 

Sharma to life sentence.  We make it clear that life  sentence  is  for  the

 

whole of remaining life of the appellant subject to  the  remission  granted

 

by the appropriate Government under Section 432 of the  Cr.P.C.,  which,  in

 

turn, is subject to the procedural checks mentioned in  the  said  provision

 

and further substantive checks in Section 433-A of the Cr.P.C.

 

 

 

85.   Appeal is disposed of in the aforestated terms.

 

 

 

REPORTABLE

 

IN THE SUPREME COURT OF INDIA

 

CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NO.693 OF 2007

 
Sushil Sharma …Appellant

 

Versus

 
The State of N.C.T. of Delhi …Respondent

 
JUDGMENT

 
(SMT.) RANJANA PRAKASH DESAI, J.

 
1. In this appeal, by special leave, appellant – Sushil Sharma (“the
appellant”) has challenged judgment and order dated 19/02/2007 passed by
the Delhi High Court in Criminal Appeal No.827 of 2003 confirming the death
sentence awarded to him in Sessions Case No.88 of 1996. He was tried in
the said case along with A2-Keshav Kumar (“A2-Keshav”), A3-Jai Prakash, A4-
Rishi Raj and A5-Ram Prakash.

 

2. The appellant was tried for offences punishable under Section 302,
Section 120-B read with Sections 302 and 201 of the Indian Penal Code (“the
IPC”). A2-Keshav was tried under Section 120-B read with Sections 302 and
201 of the IPC. A3-Jai Prakash, A4-Rishi Raj and A5-Ram Prakash were tried
under Section 212 of the IPC. Learned Additional Sessions Judge by
judgment and order dated 3/11/2003 convicted the appellant under Section
302 of the IPC. He convicted the appellant and A2-Keshav under Section
120-B read with Section 201 of the IPC. Since the charge under Section 302
read with Section 120-B of the IPC was held not proved against A2-Keshav,
he was acquitted of the said charge. Charge under Section 212 of the IPC
was held not proved against A3-Jai Prakash, A4-Rishi Raj and A5-Ram Prakash
and they were acquitted. Learned Additional Sessions Judge forwarded the
death reference to the Delhi High Court, as required under Section 366 of
the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’). A2-Keshav did not
file any appeal. As stated above, by the impugned judgment, the Delhi High
Court confirmed the death sentence awarded to the appellant.

 

PROSECUTION CASE:
3. The appellant was the President of Delhi Youth Congress (I), at the
relevant time. Naina Sahni (‘the deceased’) was the General Secretary of
the Delhi Youth Congress (I) Girls Wing. The appellant and the deceased
were working for Delhi Youth Congress. The office of the Delhi Youth
Congress was earlier situated at 4, Bhai Veer Singh Marg, Gole Market, New
Delhi. Later on, it was shifted to 2, Talkatora Road, New Delhi. The
deceased used to visit the appellant at the office of Youth Congress at the
above-mentioned places. In the year 1992, the appellant obtained Flat
No.8/2A situated at Mandir Marg, New Delhi (“Flat No.8/2A” or “the said
flat”) from it’s allottee – Jagdish Prasad. The deceased used to visit the
appellant at the said flat also. At times, she used to stay there in the
night. The appellant and the deceased got married secretly. The deceased,
therefore, continued to live in the said flat as the wife of the appellant
till she was murdered.

 

4. The India Tourism Development Corporation (‘the ITDC’) which was
running its unit called Ashok Yatri Niwas at Ashoka Road entered into a
licence agreement on 10/11/1994 with Lalit Kishore Sachdeva, Virendra Kumar
Nagpal, Manoj Malik, R.P. Sachdeva and the appellant – partners of M/s.
Excel Hotel & Restaurant Inc., situated at 159, Kamla Market, Delhi. The
licence granted by the ITDC permitted the user of park in front of main
gate of Ashok Yatri Niwas towards Ashoka Road by the said partners of M/s.
Excel Hotel & Restaurant Inc. for running a ‘Bar-be-Que’. As per the
licence, Bar-be-Que was continuously run by the appellant at the said park.
It was called ‘Bagia Bar-be-Que’. There was a tandoor in the said park.
The park had fencing of bamboos called Jafri.

 

5. On the night of 2-3/07/1995, PW-3 HC Kunju, who was posted at the
P.S. Connaught Place and PW-4 Home Guard Chander Pal of Delhi Home Guard
were patrolling in the Ashoka Road, Western Court Area. At about 11.00
p.m., when they reached near Ashok Yatri Niwas they heard the cry of PW-7
Anaroo Devi saying ‘hotel main aag lag gayi’ (hotel is on fire). Having
heard the cry, PW-3 HC Kunju and PW-4 Home Guard Chander Pal rushed towards
Janpath lane where Ashok Yatri Niwas is situated. They noticed smoke
spiralling and flames leaping out of Bagia Bar-be-Que from the side of the
kitchen. PW-3 HC Kunju rushed to the nearby telephone booth to inform the
control room. However, the telephone booth was closed. He, then, left PW-
4 Home Guard Chander Pal at the site and rushed to the police post Western
Court situated nearby to inform the police station, on wireless, about the
fire. On return, PW-3 HC Kunju noticed that the smoke and fire had
increased. PW-3 HC Kunju and PW-4 Home Guard Chander Pal, in order to find
out the cause of the same, entered the Bar-be-Que from its back. They
found A2-Keshav standing near the tandoor. They also noticed him putting
wooden logs and small fire wood in the fire so as to increase it with the
aid of a bamboo. PW-3 HC Kunju told A2-Keshav that by this, the fire would
spread and the entire hotel would be burnt. A2-Keshav then represented to
PW-3 HC Kunju that he was a worker of the Congress Party and he was burning
old banners, posters and waste papers of the party.

 
6. Patrolling Officer SI Rajesh Kumar along with CW-5 HC Majid Khan of
Police Control Room, PW-62 PC Ranbir Singh and security staff of hotel PW-
35 Mahesh Prasad reached the Bar-be-Que from the main gate of Ashok Yatri
Niwas towards Ashoka Road. The appellant was noticed by them standing by
the side of the kanat at the gate of the Bar-be-Que. Foul and pungent
smell was emitting from the tandoor. A2-Keshav was detained out of
suspicion by SI Rajesh Kumar and PW-3 HC Kunju. SI Rajesh Kumar along
with security staff of the hotel and A2-Keshav then went upstairs to find
out whether the fire had spread there. They noticed that the flames in
the tandoor had flared-up again. SI Rajesh Kumar and others rushed
downstairs. By that time the appellant had run away from there.

 

 

 

7. The fire was doused. When they went near the tandoor they saw a part
of human body inside it. Closer look revealed that it was a charred body of
a female whose limbs had burnt. Intestines had come out of the body.
Burnt bones were lying in the tandoor. They also noticed near the tandoor
a black polythene sheet. Investigating Officer PW-81 IO Niranjan Singh and
senior officer of the hotel PW-5 K.K. Tuli also reached there. Then, A2-
Keshav was handed over to PW-81 IO Niranjan Singh. PW-81 IO Niranjan Singh
inspected the site. He found that the burnt body was of a woman. He
recorded the statement of PW-3 HC Kunju which was treated as FIR.

 

8. There were blood stains on the clothes of A2-Keshav. He was
arrested. His blood stained clothes were seized. PW-81 IO Niranjan Singh
seized the polythene sheet, besides other articles, from the place of
offence. After holding the inquest proceedings, PW-81 IO Niranjan Singh
sent the dead body to RML Hospital, where PW-85 Dr. Joginder Singh prepared
the Medico Legal Report (Ex.PW-85/A). PW-85 Dr. Joginder Singh noticed the
following condition of the charred body.

 
“Whole body burnt exposing underlying bones and tissues, gastro
intestinal contents are protruding outside. The left lower limb is
amputated above the knee joint, right limb is amputated below knee
joint. Brought dead.”

 

 

 

 

 
9. The prosecution had made an application to the hospital authorities
to preserve the dead body as it was not identified. In view of the
disclosure made by A2-Keshav, the search for the appellant and the Maruti
Car in which he had come to the restaurant was started. Since both could
not be traced out, the police obtained arrest warrant for the appellant.

 
10. On 04/07/1995 the police got information from Chanakya Puri Police
Station that Maruti Car No.DL-2CA-1872 had been found abandoned at Malcha
Marg near Gujarat Bhawan where the appellant had gone and spent the night
of 2-3/07/1985 with PW-31 D.K. Rao after fleeing from his Bagia Restaurant.
The police team reached the said place and found the Maruti Car abandoned
there. On inspection of the car, they found dried blood in the dicky and
some hair stuck on the back of the left front seat. On 4/7/1995 the
police also searched Flat No.8/2A where the appellant was residing.
Certain articles were seized. During the search, some cartridges, a lead
bullet and a ply having a hole and an air pistol were seen in the said flat
but they were not seized as Ballistic Expert was not present. They were
seized in the presence of Ballistic Expert on 5/7/1995 under a panchnama.
On enquiries made from the neighbourhood, the police came to know that the
deceased used to live in the said flat of the appellant as his wife. One
Maruti Car No.DAC 3283 was parked below the flat, which was found to be in
the name of the deceased. It was seized by the police.

 
11. Parents of the deceased were contacted for identification of the
corpse. On seeing the charred body kept in the mortuary, they simply wept
but they could not identify the dead body. On 05/07/1995 the dead body was
identified by PW-12 Matloob Karim, who was also a worker of the Congress
Party and was stated to be very close to the deceased. Thereafter, on
05/07/1995, the post-mortem examination was conducted by CW-6 Dr. Murari
Prasad Sarangi. The condition of the burnt body as noticed by CW-6 Dr.
Sarangi, in his Report, was as under:

 

 

 
“(Eyes, Ears, Nose, Mouth, Teeth and Tongue etc.)

 

Both eye lids with face charred, eye balls destroyed, ears, nose and
lips were also charred, teeth were exposed and studded with soot,
other natural orifices were studded with soot particles.

 

EXTERNAL EXAMINATION:-

 

Revealed extensive charring of a female dead body beyond
identification, having attained a Pugilistic attitude owing to
coagulation of the muscle proteins.

 

Skull bone exposed, partly burnt, blackened, showed multiple post
mortem cracks with a few strands of partially burnt hair and metallic
hair clip.

 

…intestines exposed to outside with portions of other internal
organs in the abdomen, more on the left side.

 

Thoracic cage, intercostals muscles and diaphragm were burnt more on
the lt side.

 

Lt. thigh was chopped off, 28 cms. below left. And super iliac spine,
underlying thigh bone cut from the back showing beveling from above
downwards vide overleaf. No evidence of firearm discharge from
internal examination of the organs.

 

HEAD and NECK

 

Scalp tissue almost burnt except over a very insignificant (2.5 x 0.8
cm) area on the occipital region with a few strands of burnt hair.
Skull showed multiple post mortem heat cracks partly charred and
blackened.

 

BRAIN, MENINGES and CEREBRAL BLOOD VESSELS:

 

Reddish white thick heat haematoma present more on the left cerebral
hemisphere above the dura adhered to the endoevanium on the same
side.Meninges intact and pale. Brain shrunken and substance looked
pale, no injury or haemorrhage anywhere.

 

LARYNX, PHARYNX and OTHER NECK STRUCTURES

 

Pharynx, Larynx and Tracheal rings intact lipoid bone intact. Mucous
membranes of Pharynx, Larynx and Trachea showed adhered soot
particles. Blood vessels were destroyed and collapsed due to burns.

 

THORAX

 

Burnt as mentioned above. Leg was chopped off 23 cm. below the knee.
Both the bones of the leg exposed being cut from the front showing
beveling below and inwards.

 

Patella (knee cap) bone was missing on the Rt.side Distal phalanges in
the hand missing (chopped off) Upper limb was chopped off just below
the elbow.

 

Trachea and Bronchi: Intact, mucosa of Tracheal rings smeared with
black soot particles.

 

Pleural Cavity and Lungs: Pleural studded with carbon particles did
not show any inflammatory sign to the naked eyes. Both lungs shrunken,
desiccated and pale WT 200 gms. (Lt) 210 gms (Rt.)

 

Abdominal wall, peritoneum: Abdominal and pelvic walls burnt,
peritoneum- partly burnt.

 

Stomach and contents: Contained about 500 ml of brownish-semi liquid
material, smelt alcoholic, walls looked pale

 

Pancreas, small and large intestines: Shrunken, desiccated, protruded
out, no injury/abnormality was noticed.”

 

 

 

12. CW-6 Dr. Sarangi opined provisionally that the cause of death was
“hemorrhagic shock consequent to various ante-mortem injuries found on the
dead body”. According to CW-6 Dr. Sarangi the burns noticed on the dead
body appeared to have been inflicted after death. Final opinion about the
cause of death was kept pending by him till the receipt of the Report about
histopathological examination as well as the Report of examination of
viscera and blood sample. Although PW-81 IO Niranjan Singh had also asked
for X-ray of the dead body to find out if there was any firearm injury, it
could not be conducted at that time because the X-ray machine was stated to
be out of order.

 
13. The appellant, in order to avoid his arrest, spent the night of
2/7/1995 at Gujarat Bhawan, New Delhi with PW-31 D.K. Rao and from there he
kept on going from one city to another. He called up PW-31 D.K. Rao on
4/7/1995 from Bombay and told him that he had killed his wife i.e. the
deceased. It may be mentioned here that the High Court has not relied upon
this piece of evidence and, in our opinion, rightly so. The appellant
obtained anticipatory bail from the Sessions Court at Madras upon coming to
know that the police were looking for him. The anticipatory bail granted by
Sessions Court, Madras was later on cancelled by the Madras High Court at
the instance of the Delhi Police. He was arrested on 10/07/1995 at
Bangalore by the Bangalore Police under Section 41A of the Cr.P.C. when he
was moving around in a suspicious manner with his advocate Mr.
Anantanarain. Delhi Police upon coming to know about his apprehension went
to Bangalore and took over the custody of the appellant on 11/7/1995 with
the permission of the concerned court. During the interrogation, it
transpired that the appellant was staying in one hotel called Pai Vihar
along with advocate Mr. Anantanarain. The appellant led the police to
Room No.110 of the said hotel. From the room he produced a briefcase which
was found to contain one .32 bore revolver No.1277725 (make Arminius) with
its license in his name, four live cartridges and some other documents.
All these articles were seized by PW-81 IO Niranjan Singh.

 

14. The appellant was then brought to Delhi. Pursuant to disclosure
statements made by him one blood stained kurta-pajama was recovered from
the bushes near Gujarat Bhawan at Malcha Marg. At his instance, another
blood stained kurta was also recovered from Rangpuri area.

 
15. The investigating agency decided to get another post-mortem
examination conducted from a Board of Autopsy Surgeons. Accordingly, second
post-mortem examination was done on 12/07/1995 by a team of three doctors
headed by PW-44 Dr. Bharat Singh. During the course of the second post-
mortem examination the dead body was subjected to X-ray examination and the
X-ray Reports showed the presence of one metallic piece in the skull and
one in the neck region of the dead body. Those metallic pieces were then
extracted out and were found to be lead bullets. The Board of Doctors
opined that the cause of death was due to “coma consequent upon firearm
injury on the head which was sufficient to cause death in the ordinary
course of nature”.

 
16. The bullets recovered from the body, fired cartridge cases, one lead
bullet which were recovered from the said flat, the live cartridges and
Arminius revolver recovered from the possession of the appellant at
Bangalore were sent to the Central Forensic Science Laboratory (“the CFSL”)
for examination by a Ballistic Expert. The Ballistic Expert – PW-70 Roop
Singh gave Report (Ex. PW-70/A) confirming that the .32 Arminius revolver
was a firearm in working condition and had been fired through. He further
opined that the five .32 cartridge cases and one lead bullet, which were
recovered from the said flat and the two lead bullets which were extracted
from the skull and neck of the deceased had been fired from the said .32
Arminius revolver. The piece of plywood seized from the said flat on which
a bullet hole was noticed, was also forwarded to the CFSL. The bullet hole
was found to have been caused by the aforesaid .32 lead bullet recovered
from the said flat. Blood stained articles seized from the Bagia Restaurant
and those recovered from the said flat were sent to the CFSL where, on
examination, it was found that human blood found on these articles was of
‘B’ group, which was the blood group of the deceased.

 
17. DNA test was also got conducted from the Centre for Cellular and
Molecular Biology, Hyderabad for confirming the identity of the corpse by
forwarding to it the blood samples of the parents of the deceased and the
tissues (muscle) from the thigh, radius and ulna bones and two ribs of the
deceased. The DNA Report (Ex.PW-87/A) confirmed that the dead body which
was burnt at the Bagia Bar-be-Que tandoor was that of the deceased, who was
the biological offspring of CW-1 Smt. Jaswant Kaur and CW-2 Harbhajan
Singh.

 
18. After completion of investigation, the prosecution came to the
conclusion that the deceased was killed by the appellant since he was
suspecting that she was having some relationship with PW-12 Matloob Karim.
The appellant also did not want to make his marriage with the deceased
public and the deceased was insisting on that. After killing her, the
appellant with the help of A2-Keshav burnt her dead body in the tandoor of
Bagia Bar-be-Que. The appellant was harboured to save him from punishment
from the crime by three persons, namely, A3-Jai Prakash, A4-Rishi Raj and
A5-Ram Prakash. After the case was committed to the Sessions Court,
learned Additional Sessions Judge framed charges as aforesaid against the
accused.

 

THE TRIAL:
19. In support of its case, the prosecution examined 85 witnesses. Seven
Court Witnesses were also examined. We shall refer to the important
witnesses as we proceed further. All the accused pleaded not guilty to the
charges and claimed to be tried. During the trial, A2-Keshav moved an
application confessing his guilt so far as the charges against him
under Section 201 read with Section 120-B of the IPC are concerned. He
requested the court to dispose of his case in view of the confession. He,
inter alia, stated that he had not conspired to murder the
deceased. He was serving in Bagia Restaurant of the appellant and, at
his command, he put the dead body of the deceased in the tandoor. At
the trial, A2-Keshav admitted the correctness of the contents of his
confessional application. However, he added that it was moved because the
Special Public Prosecutor told him that he would be released at the final
stage of the trial.

 
20. The appellant in his statement recorded under Section 313 of the
Cr.P.C., inter alia, stated that from the evening of 1/7/1995 to 6/7/1995
he was at Tirupati Balaji and then he went to Madras on 7/7/1995. From
Madras, he gave a telephone call at his residence in Maurya Enclave in
Delhi when he came to know that one ACP Alok Kumar had visited his
residence on 3/7/1995 and had removed from there his vehicle, licensed
revolver, license of the revolver and bullets. He, further, stated that the
ACP had given his telephone number and had left a message for him to
contact him on phone and when the appellant contacted the ACP, he told him
to get anticipatory bail otherwise he would be arrested. He, then, obtained
anticipatory bail from the Sessions Court at Madras. On 8/7/1995, he was
called for enquiry at a police station at Madras and that day in the
evening some police officers from Delhi reached there and brought him to
Bangalore and showed his arrest there on 10/7/1995. He admitted that Car
No.DL-2CA-1872 belonged to him. He stated that it was removed from his
residence at MP-27, Maurya Enclave, Delhi where it was parked by his
driver. At one stage, he admitted that he was living with the deceased at
Mandir Marg. However, as far as his relationship with the deceased is
concerned he stated as under:

 

“I knew Naina since 1985. She contested election of Shyama Parsad
Mukherjee college. She lost. I was president of N.S.U.I. Delhi. She
came in contact with me then. Her attendance was short in the college.
She was not allowed to sit in the examination. Next year I got
admitted her in the correspondence course. She was career oriented
woman. She learned the course of Pilot. I helped her in that. She went
to London for CPL (Commercial pilot license). From 1994 to January
1995 she lived in a flat Opp. Birla Mandir as paying guest. That flat
belonged to a lady working in Doordarshan. I have shown that flat to
police. Police did not cite her as witness. I used to be called at
various functions organized at her residence along with other lady
friends associated with her business and pilot course. She started
living separately from her parents after there was a dispute between
her and her father. She then lived at Gole Market. In the functions
which were organized at the residence at Gole Market her parents
visited and I also visited. She had a servant Ramu @ Bilas. She was
not allowing anyone else to stay there including her parents. I had no
contact with her after January, 1995. She remained busy in her career
and I remained involved in politics”.

 
21. None of the accused persons adduced any evidence in defense.

 
22. After considering the evidence, learned Additional Sessions Judge
convicted the appellant as aforesaid. The Reference made by the learned
Sessions Judge under Section 366 of the Cr.P.C. was heard by the High Court
along with the appeal filed by the appellant challenging his conviction and
sentence. The High Court dismissed the appellant’s appeal and confirmed
the death sentence awarded to him. Hence, this appeal by special leave.

 

23. We have heard Mr. Jaspal Singh, learned Senior Advocate for the
appellant and Mr. Amarjit Singh Chandhiok, learned Additional Solicitor
General for the State of NCT of Delhi. We have carefully perused the
written submissions filed by them. Since death sentence is awarded to the
appellant, we have independently considered the evidence. We shall now
give the gist of the submissions of the counsel.

 

24. WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT ON THE MERITS OF THE
CASE:

 

a) This is a case which rests on circumstantial evidence and,
therefore, motive assumes great significance. The prosecution
case is that the deceased wanted to make public her marriage
with the appellant and the appellant did not want to do that
because that would have affected his political career. To
substantiate this case, PW-12 Matloob Karim has been examined,
but, his conduct makes him a totally unreliable witness. He is
a married man. Despite the appellant’s marriage with the
deceased, he kept alive his relationship with the deceased. He
continued to assist the deceased in her attempt to go to Bombay
or migrate to Australia. All this indicates that he was
inimically disposed towards the appellant. In any case,
marriage can hardly spoil anyone’s political prospects.
Besides, there is ample evidence on record to establish that the
marriage was already known to everybody. PW-12 Matloob Karim
knew about it. Marriage was with the consent of the parents of
the deceased. They used to visit the said flat where the
deceased was allegedly living with the appellant as his wife.
Thus, the alleged motive for the murder viz. that the deceased
wanted to make the marriage between her and the appellant public
is not proved. Even otherwise, the prosecution evidence shows
that the appellant was deeply in love with the deceased.
Despite knowing her intimate relations with PW-12 Matloob Karim,
he did not turn her out of the house. He only restricted her
movements as he wanted to stop her from her wayward ways. There
is no evidence on record to show that there were any constant
quarrels between the appellant and the deceased. The story
that the appellant suspected the fidelity of the deceased and,
hence, he killed her is also not borne out by the evidence.
Therefore, the prosecution has failed to prove motive.

 

 

 
b) It is the prosecution case that empty cartridges were recovered
from the matrimonial house of the deceased on 4th and 5th of
July, 1995. According to PW-81 IO Niranjan Singh, on 4/7/1995,
he inspected the said flat in the presence of PW-14 Inspector
Suraj Prakash and PW-13 Dhara Singh. He found two bowls on the
cupboard containing empty cartridges and one .32 bore empty
cartridge under a stool and one lead bullet under the bed. He
further stated that he did not take them into possession as the
Ballistic Experts were not present. According to him, he left
the said flat under surveillance of PW-14 Inspector Suraj
Prakash. This story is concocted because PW-13 Dhara Singh, the
panch witness has nowhere stated that empty cartridges and lead
bullet were found in the house on 4/7/1995. He visited the said
flat on 5/7/1995 along with PW-70 Roop Singh, the Ballistic
Expert and took those cartridges and lead bullet into possession
in his presence. The lead bullet was stained with the blood of
the blood group of the deceased. PW-14 Inspector Suraj Prakash
admitted that in his statement recorded under Section 161 of the
Cr.P.C. there is no mention of those recoveries. No memo was
prepared that though empty cartridges and lead bullet had been
found, they had not been taken into possession on account of the
advise of persons from the CFSL. The Ballistic Expert – PW-70
Roop Singh does not say anything about the recoveries allegedly
effected on 5/7/1995. There is a recovery memo of 4/7/1995.
It does not speak of recovery of empty cartridges or lead
bullet. Thus, the version of PW-81 IO Niranjan Singh about the
recovery of empty cartridges and lead bullet is falsified.

 
c) It is the case of the prosecution that the deceased had received
two bullet injuries in the skull. This is confirmed by the
Report of the Board of Doctors. Any other firearm injury is,
therefore, ruled out. Therefore, the prosecution must explain
the presence of a lead bullet having blood group of the deceased
in the room. This suggests that there was some other person
also in the house having the same blood group as that of the
deceased as the appellant has a different blood group from that
of the deceased. Had the prosecution taken the finger prints
from the vodka bottle which was lying there, it would have
provided answer to this as someone was consuming vodka in the
room. The deceased was a teetotaler and so is the appellant.
Besides, the alleged recovery of empty cartridges, lead bullet
and bullet hole in the plywood show that at least 10 rounds were
fired (5 empty cartridges in the bowls, two recovered from the
floor, one causing hole in the ply and two found from the
skull). Surprisingly, the next door neighbours did not notice
such firing. Moreover, the police found no trail of blood in
the drawing room, on the stairs or on the road. This casts a
shadow of doubt on the prosecution story.

 
d) It is also doubtful whether the death was caused due to firearm
injuries. PW-85 Dr. Joginder Pal, the Casualty Medical Officer
at RML Hospital, who was on duty on 3/7/1995, stated that he did
not find any firearm injuries in the neck or in the head or in
the nape of the deceased. CW-6 Dr. Sarangi, who had conducted
the post-mortem of the deceased on 5/7/1995 at 3.30 p.m. at Lady
Hardinge Medical College stated that he had opened the skull and
had not noticed any bullet mark or any bullet and that the brain
matter was intact. CW-6 Dr. Sarangi is MBBS and MD in forensic
medicine and toxicology, having experience in the field and,
therefore, his evidence cannot be lightly brushed aside. The
Board of Doctors allegedly extracted two bullets and opined that
those two bullets caused the death. Report dated 13/7/1995 of
the Board headed by PW-44 Dr. Bharat Singh needs to be rejected
because as per PW-44 Dr. Bharat Singh, the Board first conducted
post-mortem on 12/7/1995 at 12.00 noon at Lady Hardinge Medical
College which lasted upto 2.00 or 3.00 p.m. and it was only
after 2.00 or 3.00 p.m. that the body was shifted to the Civil
Hospital. However, as per PW-57 SI Ombir Singh, on instructions
of PW-81 IO Niranjan Singh, he reached the mortuary of Lady
Hardinge Medical College at 9.00 a.m. on 12/7/1995, took the
body from there at 9.30 a.m. and reached the Civil Hospital at
11.30 a.m., where he entrusted the body to PW-44 Dr. Bharat
Singh. According to him, post-mortem started at Civil Hospital
at 12.30 p.m. However, as per the Report of the Board, the post-
mortem started at Lady Hardinge Medical College at 12.00 noon
and, thereafter, the body was shifted to the Civil Hospital. PW-
57 SI Ombir Singh has not been declared hostile and, if his
statement is accepted, the evidence of PW-44 Dr. Bharat Singh
about the post-mortem becomes suspect.

 
e) There is no evidence on record that the body and the skull
subjected to post-mortem by the Board were of the deceased. PW-
44 Dr. Bharat Singh stated that the body and the skull had been
identified by PW-57 SI Ombir Singh. However, PW-57 SI Ombir
Singh has nowhere stated that he had identified the body. There
is no evidence produced from the mortuary of Lady Hardinge
Medical College that on 12/7/1995 the body and the skull of the
deceased were in its mortuary and no record has been produced to
show that they were removed from there on 12/7/1995. Lady
Hardinge Hospital & Medical College is one of the top-most
hospitals in Delhi. It is unbelievable that it had no X-ray
facility. Therefore, the reason given for removal of the dead
body and skull from Lady Hardinge mortuary to Civil Hospital
that because X-ray facility was not available there, it was so
removed, is not acceptable.

 
f) The entire evidence relating to the Board of Doctors deserves to
be rejected because (a) there is no evidence that the skull sent
for X-ray was that of the deceased; (b) assuming that the skull
was that of the deceased, the prosecution has not led any
evidence to assure that before 12/7/1995, it had not been
tampered with; (c) the members of the Board have not proved the
sky grams which allegedly they had examined on 12/7/1995; (d)
although PW-44 Dr. Bharat Singh has stated that the sky grams
and the Report of the Radiologist were received from the
Radiologist on 12/7/1995 at 2.00 p.m. or 3.00 p.m., the Report
of the Radiologist shows that X-rays were taken on 13/7/1995 and
the Report was also prepared on 13/7/1995 and (e) as the X-ray
films were developed and the Report was prepared on 13/7/1995,
recovery of bullets from the skull on 12/7/1995 allegedly on the
basis of X-rays and the Report of CW-7 Dr. P.S. Kiran makes the
entire version regarding recovery of bullets unworthy of
reliance. There is no evidence on record to establish that the
members of the Board were experts in conducting post-mortems.
The answer given by CW-6 Dr. Sarangi to a court question, which
contains six reasons for rejecting the Report of the Board have
not been answered by the prosecution. CW-6 Dr. Sarangi stated
that after the post-mortem was conducted on 5/7/1995 on the
request of PW-81 IO Niranjan Singh, he had handed over the skull
bone, after separating the same from the body, to PW-81 IO
Niranjan Singh. This is supported by endorsement dated 5/7/1995
made by PW-81 IO Niranjan Singh on a letter addressed by SHO,
P.S. Connaught Place to the Autopsy Surgeon, Lady Hardinge
Medical College. If the skull was handed over to PW-81 IO
Niranjan Singh on 5/7/1995, then there is no evidence to show
where the skull was kept till 12/7/1995 when it was produced
before the Board headed by PW-44 Dr. Bharat Singh for post-
mortem. PW-44 Dr. Bharat Singh has stated that “a burnt dead
body with skull separated” was received by him and that the
skull was kept in a separate cardboard box. Therefore, there is
no evidence to establish that the skull was that of the deceased
and assuming it to be the skull of the deceased, there is no
guarantee that between 5/7/1995 and 12/7/1995, it was not
tampered with. From the evidence on record, it can be said that
only one unidentified skull of a lady containing two bullets was
handed over to the Board on 12/7/1995. When asked whether a
bullet can be put inside the body after death at a place where
it had been noticed by the Board, CW-6 Dr. Sarangi stated that
such a possibility could not be absolutely ruled out especially
in the presence of multiple post-mortem cracks and separation of
the skull bone from the neck for the purpose of superimposition.

 

 

 
g) Assuming that the skull produced before the Board was that of
the deceased and that two bullets were recovered from the skull,
the prosecution has failed to prove that the bullets were fired
from the revolver of the appellant. It is the prosecution case
that two bullets were put in two separate parcels and both bore
the seal of Civil Hospital and, they were handed over to PW-81
IO Niranjan Singh by PW-57 SI Ombir Singh. However, PW-81 IO
Niranjan Singh has nowhere stated that he had deposited the two
parcels with the seal of Civil Hospital with the Mohrar
Malkhana. He has not stated that he had himself sent those two
parcels with the seal of the Civil Hospital to the CFSL. PW-67
HC Raj Kumar, who was in-charge of Mohrar Malkhana has stated
that no parcel was deposited with him on 12/7/1995, 13/7/1995
and 14/07/1995. It was only on 15/7/1995 that two parcels were
deposited but they bore the seal of N.S. Thus, from his
evidence, it cannot be concluded that the parcels with the seal
of Civil Hospital were ever sent to the CFSL. If these parcels
were never sent to the CFSL, it cannot be said that the two
bullets which killed the deceased were fired from the revolver
of the appellant. Moreover, the two bullets which were
allegedly extracted by the Board from the skull have not been
identified by anyone.

 
h) The case that a revolver, a licence and four live cartridges
were recovered from Pai Vihar Hotel, Bangalore where the
appellant was staying is false because on 10/7/1995 at 11.30
p.m., the appellant was brought to Delhi. On 12/7/1995, a
remand application was made before the Metropolitan Magistrate’s
Court. In that application, it is stated that the weapon used
in the crime is to be ascertained and recovered. If the weapon
was already recovered, such averment would not have been made in
the application. Moreover, the appellant was brought on the
strength of a production warrant issued by a Delhi Court and,
therefore, he was in judicial custody. Section 27 of the
Evidence Act would not be, therefore, attracted. In any case,
no statement under Section 27 of the Evidence Act was recorded.
The alleged recoveries are, therefore, not admissible. [Bahadul
v. State of Orissa.[1]] Mr. Anantnarayan, the appellant’s
advocate was present in the hotel room when the alleged
recoveries were made. However, he has not been examined.
Similarly, PW-48 Srinivas Rao, the Manager of the hotel and PW-
50 Kancha, the waiter of the hotel were given-up after having
entered the witness box. Recoveries were made by PW-81 IO
Niranjan Singh of P.S. Connaught Place, New Delhi in Bangalore
i.e. outside his territorial jurisdiction. Therefore,
provisions of sub-sections (4) and (5) of Section 165 of the
Cr.P.C. ought to have been followed. The licence which was
allegedly recovered from Pai Vihar Hotel, Bangalore had expired
on 18/1/1994 and its validity was extended only on 15/10/1995.
Therefore, at the time of alleged recovery of revolver on
11/7/1995, there was no valid licence. Yet, no action was taken
by the police. To cover up this, the validity of the license
was extended later on. If the licence was deposited with Mohrar
Malkhana with the seal of N.S., it is not understood how the
entry of extension was made on it on 15/10/1995. This suggests
tampering of evidence.

 
i) Recovery of the appellant’s car from Malcha Marg is suspect
because no record of wireless message has been produced; no one
from P.S., Malcha Marg was examined; no record of P.S., Malcha
Marg has been produced, no information was given to the nearest
Magistrate; no record showing presence of PW-72 PC Mukesh Kumar
was produced. According to the prosecution, the CFSL team was
called and blood sample was taken from the blood stains in the
dicky of the car. However, no witness from the CFSL has been
examined; no photographs have been produced and no independent
witness has been examined. PW-72 PC Mukesh Kumar stated that PW-
81 IO Niranjan Singh remained at the site for six hours. PW-81
IO Niranjan Singh stated that he had received wireless message
about the car on 4/7/1995 at 9/10 a.m. Even if he had reached
the site at 10.00 a.m. he should have remained there till 4.00
p.m. He, however, stated in his evidence that he reached the
said flat at 11.30 a.m. or 12.00 noon on 4/7/1995. The seizure
memo dated 4/7/1995 states that in the dicky of the car, very
little blood was detected. The memo also states that the long
hairs were found at the back of the front seat next to the
driver’s seat. If the prosecution case is true then the dicky
ought to have a pool of blood and not very little blood and the
long hairs should have been found in the dicky and not on the
back of the front seat next to the driver’s seat.

 
j) To prove the presence of the appellant at the tandoor in the
night of 2/7/1995, the prosecution has examined PW-1 Philips and
PW-2 Mrs. Nisha. They stated that they had last seen the
appellant at around 9.45 p.m. at the gate of Ashok Yatri Niwas
in his Maruti car. However, PW-3 HC Kunju stated that he
noticed the fire at 11.20 p.m. Therefore, the presence of the
appellant at around 10.00 p.m. at the tandoor is not of much
importance. To prove his presence at the tandoor at 11.30 p.m.
the prosecution has also examined PW-4 Home Guard Chander Pal
and CW-5 HC Majid Khan. It is apparent from the evidence of PW-
3 HC Kunju that at the relevant time, the light at the Bagia
Restaurant was switched off. The appellant was not known to any
of the witnesses. He was identified because PW-35 Mahesh Prasad
had allegedly told the witnesses about him. However, PW-35
Mahesh Prasad has stated that he had never met the appellant.
It is doubtful whether PW-3 HC Kunju, PW-4 Home Guard Chander
Pal and CW-5 HC Majid Khan were actually present. They are from
P.S., Connaught Place. No record of P.S., Connaught Place, has
been produced to show that they were on duty at the relevant
time. No record has been produced to show that PW-3 HC Kunju
had sent wireless message about the incident. In fact, PW-59
ASI Sher Singh stated that the message was actually received
from Constable Rattan Singh. CW-5 HC Majid Khan of the PCR was
directed by the court to bring Log Book of the vehicle – Victor
20 in which he claimed to have gone to the restaurant. However,
the record is stated to have been destroyed. Thus, most vital
contemporaneous record was kept back intentionally. CW-5 HC
Majid Khan also stated that PCR Van did not enter the hotel and
remained parked outside. However, the register showing entry
and exit of vehicles indicates that the PCR Van entered the
hotel. PW-35 Mahesh Prasad stated that all entries were made in
the register by him as directed by the police at the police
station. Thus, the prosecution story is shrouded in suspicion.
The prosecution has not been able to prove its case beyond
reasonable doubt. The appellant, therefore, be acquitted.

 
25. SUBMISSIONS ON BEHALF OF THE RESPONDENT ON THE MERITS OF THE CASE.

 

a) Unnecessary doubt is sought to be created as regards location of
skull from 5/7/1995 till 12/7/1995. During trial no questions
were asked and no suggestions were put to the witnesses in this
regard. Had that been done, the witnesses would have offered
explanation. In any case, there is reliable and cogent
evidence on record that the skull was properly preserved and it
was the skull of the deceased.

 
b) At one stage, the stand of the appellant was that there was a
possibility of implanting bullets on 12/7/1995 itself when the
body was being taken to the Civil Hospital for X-ray. A
contrary stand is taken in this Court that two bullets might
have been put in the skull during the period 5/7/1995 to
12/7/1995. This submission of the defence deserves to be
rejected. There is no reason to disbelieve independent evidence
of the doctors who were part of the Board of Doctors.

 
c) A revolver was recovered from the custody of the appellant from
Bangalore on 11/7/1995. It was brought to New Delhi along with
the appellant on 12/7/1995. The Report of the CFSL shows that
the bullets found in the skull were from the revolver of the
appellant. There was no cross-examination on the veracity of
the said Report. The defence has not stated what could be the
motive for PW-81 IO Niranjan Singh or anyone else to falsely
involve the appellant. There was no enmity between them and the
appellant.

 
d) The contention that the bullets recovered were not deposited in
the Malkhana must be rejected. One lead bullet was deposited in
the Malkahna on 5/7/1995 by PW-81 IO Niranjan Singh. Two
bullets (Ex-36 and Ex-37) removed from the skull of the deceased
were duly sealed and handed over to the police by PW-44 Dr.
Bharat Singh immediately after the post-mortem examination. As
per the Register of the Malkhana, the two bullets recovered from
the skull of the deceased were deposited in the Malkhana by PW-
81 IO Niranjan Singh on 12/7/1995. They were received in the
CFSL on 17/7/1995 in sealed condition, as is evident from Ex-
PW70/A1-A9. The said bullets were also examined by Dr. G.D.
Gupta, Serologist, who confirmed that the blood on the bullets
was B+ve.

 
e) Only one lead bullet, five empty cartridges, one piece of ply
having one hole of bullet and one air pistol were collected on
5/7/1995 after the site was inspected by PW-70 Roop Singh, the
Ballistic Expert and also the Director of the CFSL – PW-16 Dr.
V.N. Sehgal. From memo (Ex-PW-16/A) which bears the signature
of PW-16 Dr. V.N. Sehgal and Inspector Ramesh, it is clear that
only one lead bullet (Ex-24) and five cartridges (Ex-25) were
found at the said flat. It is not the case of the prosecution
that bullet recovered from the said flat was stained with human
blood.

 
f) It is true that CW-6 Dr. Sarangi, who conducted the post-mortem
did not find any bullet injury but due to the condition of the
dead body the bullet injuries might not have been detected by
naked eyes at the time of first post-mortem. The second post-
mortem Report clearly states that the firearm injuries were ante-
mortem. The evidence on record thus clearly establishes that
firearm injuries were found on the skull of the deceased. It is
true that the Security Regulations prohibit the carriage of
weapons in the passenger cabin but it was not impossible for the
appellant to have flown from Jaipur-Mumbai-Chennai carrying a
revolver. There is no prohibition in carrying the revolver in
checked-in luggage. This plea is also raised during arguments.
The witnesses were not confronted with it at the trial.

 
g) The appellant has not established the plea of alibi. Since the
appellant pleaded alibi the burden was on him to prove it.
Since he has failed to prove alibi an adverse inference is drawn
against him. The appellant was noticed at or around 10.00 p.m.
or 11.00 p.m. in the night intervening 2nd and 3rd at Bagia
Restaurant with Car bearing No.DL-2CA-1872. This is established
by leading evidence of reliable witnesses. That the deceased
and the appellant were last seen together on 2/7/1995 at the
said Flat No.8/2A is established by the evidence of the
neighbour of the appellant. PW-11 Mrs. R.K. Chaudhary. PW-12
Matloob Karim and PW-82 R.N. Dubey, the servant of the appellant
have established that the relations between the appellant and
the deceased were strained. PW-81 IO Niranjan Singh who deposed
about the condition of the said flat and the recoveries made
from the said flat. He stated that recoveries were effected on
4/7/1995 in the presence of PW-13 Dhara Singh and PW-14
Inspector Suraj Prakash and, thereafter, the said flat was
locked and left under surveillance of SHO, Mandir Marg and on
5/7/1995 the recovery of one lead bullet, five cartridges, one
ply with a hole, one air pistol was made in the presence of the
Ballistic Expert – PW-70 Roop Singh and PW-16 Dr. V.N. Sehgal,
the Director of the CFSL. The testimony of PW-13 Dhara Singh
is supported by the photos taken by PW-84 PC Balwan Singh. The
contention that photos taken during investigation were not
placed on record is contrary to the facts. Photographs of the
burnt body are exhibited at Ex-PW-74/9-16 and their negatives
are at Ex-PW-74/1-9, skull photographs are at Ex-PW-76/A15-A28
and their negatives are at Ex-PW-76/A1-A31 and photographs of
the said flat, female clothes etc. were placed on record at Ex-
PW-76/A1-A14.

 
h) The appellant absconded from Bagia Restaurant on the night
intervening 2/7/1995 and 3/7/1995 and stayed at Gujarat Bhawan.
He absconded from Delhi to Jaipur by taxi on 3/7/1995. On
4/7/1995 he travelled by air from Jaipur-Bombay and from Bombay-
Madras and, in the end, he went to Bangalore from where he was
apprehended by the Bangalore Police on 10/7/1995. In the
presence of the DCP of Bangalore Police, search of the briefcase
and shoulder bag produced by the appellant was done and the
revolver was recovered from his possession. The Report of the
CFSL states that the damaged fired lead bullets recovered from
the head and the neck of the deceased and the damaged fired lead
bullet recovered from the carpet in the said flat were fired
from the said revolver. The hole in the ply was also caused by
the shot fired from the said revolver. Though the incident in
question was widely published the appellant never sought to
contact any one. Abscondence of the appellant is an important
circumstance and lends support to the case of the prosecution.
His conduct is relevant under Section 8 of the Indian Evidence
Act. [Swamy Shraddananda alias Murali Manohar Mishra v. State of
Karnataka[2]]

 

 

 
i) The car of the appellant bearing No.DL-2CA-1872 was found
abandoned at Malcha Marg on 4/7/1995. On information received
by PW-81 IO Niranjan Singh, the same was seized. Dry human
blood was found in the dicky of the said car. The key of this
car was recovered at the Pai Vihar Hotel at Bangalore in the
presence of the appellant and his advocate. The testimony of PW-
81 IO Niranjan Singh about the recovery of the car at Malcha
Marg has not been questioned in cross-examination. Thus, all the
circumstances clearly establish the prosecution case. The
conviction of the appellant deserves to be confirmed.

 

ANALYSIS OF EVIDENCE IN LIGHT OF SUBMISSIONS OF THE COUNSEL.
26. We shall now consider the submissions of the counsel in light of
evidence on record. Since this is a case based on circumstantial
evidence, we must see whether chain of circumstances is complete and points
unerringly to the guilt of the appellant. It is first necessary to see the
background of the case. The fact that the appellant and the deceased were
staying at the said flat as husband and wife can hardly be disputed. PW-12
Matloob Karim, who was known to the appellant and the deceased stated that
in the year 1989, he was the Organizing Secretary of Youth Congress. At
that time, the appellant was its President and the deceased was General
Secretary of its Girls Wing. He stated that he knew the deceased from 1984
when they were in the Students Union of Delhi University and because of
their close association, they had fallen in love with each other. However,
they could not marry because they belonged to different religions. He
stated that he got married in December, 1988. The deceased got married to
the appellant in the year 1992 and informed him about it. He further
stated that after her marriage, she was staying with the appellant at the
said flat. CW-1 Mrs. Jaswant Kaur, the mother of the deceased, CW-2 Sardar
Harbhajan Singh, the father of the deceased and PW-82 Ram Niwas Dubey, who
was the personal servant of the appellant also confirmed this fact.
Pertinently, no suggestion was put to them in the cross-examination that
what they were saying was false. In this connection, it is important to
note that the DNA Report [Ex-PW-87/A] confirms that the dead body which was
burnt at Bagia Restaurant was that of the deceased, who was the biological
offspring of CW-1 Mrs. Jaswant Kaur and CW-2 Sardar Harbhajan Singh. PW-11
Mrs. Chaudhary, a retired Government servant, was staying along with her
husband in Flat No.8/2-B, which was in front of the appellant’s Flat No.8/2-
A. She stated that the appellant was living with his wife i.e. the
deceased in the said flat. Her husband PW-9 M.L. Chaudhary corroborated
her evidence. According to PW-11 Mrs. Chaudhary, the deceased was last seen
with the appellant in the evening of 2/7/1995 in the said flat. Though his
statement recorded under Section 313 of the Cr.P.C., in answer to one of
the questions, the appellant stated that he was the President of NSU(I);
that he knew the deceased since 1985; that the deceased was living with his
parents at Gole Market and that he had no contact with her after 1985,
while answering another question, he admitted that he was living with the
deceased in the said flat. PW-15 HC Amba Das was the beat constable of
Mandir Marg Area at the relevant time. According to him, once he had gone
to the house of the appellant for verification of the quarters. At that
time, the appellant told him that he should take care of the Car bearing
No.DAC 3285 belonging to his wife and his Car bearing No.DL-2CA-1872 as the
vehicles were increasingly being stolen. According to him, the appellant
also told him that since during the day time they were out, he should take
care of their house. Admittedly, Car bearing No.DAC 3285 belonged to the
deceased. It may be noted here that on 5/7/1995, this car was seized by
PW-81 IO Niranjan Singh when it was parked below the said flat. We are,
therefore, of the opinion that the prosecution has successfully proved that
the appellant and the deceased were married and they were staying in the
said flat as husband and wife and that the deceased was last seen in the
company of the appellant in the said flat on the evening of 2/7/1995 by PW-
11 Mrs. Chaudhary.

 

27. The appellant’s connection with the Bagia Restaurant is very crucial
to the prosecution because the infamous tandoor was situated there. The
appellant has not disputed that the Bagia Restaurant is run as per the
agreement with the ITDC. In his statement recorded under Section 313 of
the Cr.P.C., he stated that his Manager at Bagia Restaurant was one Mr.
Handa and his Accountant was one Mr. Karan. He admitted that A2-Keshav was
employed in Bagia Restaurant. A2-Keshav has also admitted this fact.
Thus, the prosecution has successfully proved that the appellant was the
owner of Bagia Restaurant.

 

28. From the evidence on record, it is clear that all was not well
between the appellant and the deceased. PW-12 Matloob Karim has admitted
that the deceased and he were in love with each other but they could not
marry because they belonged to different religions. His evidence indicates
that he got married to a Muslim girl in December, 1988. According to him,
the deceased told him that she had married the appellant in the year 1992.
He stated that even after his marriage, he and the deceased used to meet
and talk. According to him, in August, 1989, the deceased told him to
enquire about the antecedents of the appellant. She told him that the
appellant had proposed to her. According to this witness, he had told her
that the appellant was not a good person. The deceased phoned him
sometimes in the year 1992 and stated that she had got married with the
appellant and that prior to the marriage, she had disclosed their
friendship to the appellant. Six months thereafter, he received a call
from the deceased stating that she was trapped; that the appellant was not
a good man and that he used to abuse and thrash her on trivial matters.
The deceased again phoned him and told him that the appellant had thrown
her out of their house. On 2/7/1995 between 3.00 p.m. to 4.00 p.m., the
deceased telephoned him and told him to help her to migrate to Australia.
The evidence of this witness is criticized on the ground that he is not a
person of good character because he admitted that even after marriage, he
continued to have relationship with the deceased. It is contended that he
was inimically disposed towards the appellant and, therefore, he had
falsely implicated him. We find no substance in this submission. Assuming
this witness loved the deceased and he continued to meet her after her
marriage with the appellant that, in our opinion, has no relevance. His
evidence has a ring of truth. By falsely implicating the appellant, he
would not have gained anything. In our opinion, this witness is worthy of
credence. PW-82 Ram Niwas Dubey’s testimony also throws light on this
aspect. His association with the appellant began in the year 1989 when the
appellant was the President of Youth Congress (I). He was working as a peon
with him till April, 1995. He stated that the appellant obtained the said
flat in 1992. The appellant lived with his wife i.e. the deceased in the
said flat. He knew the deceased since 1992 as she was the General
Secretary of Youth Congress and used to visit the appellant at his office
at Talkatora. After the appellant’s marriage with the deceased, he was
working with the appellant and was living in the said flat. He stated that
the appellant and the deceased used to quarrel on the topic of marriage.
The deceased used to ask the appellant as to when he would make their
marriage public. The appellant used to tell her that he will disclose
their marriage to the people at the appropriate time. According to him,
there used to be frequent quarrels between the two and the appellant used
to beat the deceased with legs, fists and dandaa. He further deposed that
as directed by the appellant, he used to accompany the deceased to keep a
watch on her movements because the appellant suspected her fidelity. The
defence has not elicited anything in the cross-examination of this witness,
which can persuade us to discard his testimony. PW-11 Mrs. R.K. Chaudhary,
the neighbour of the appellant and the deceased, stated that once when they
were watching T.V. in their house, they heard a noise coming from outside.
They opened the door of the drawing room and saw that scuffle was going on
between the appellant and the deceased. The deceased wanted to go out of
the house but the appellant was pulling her back inside the house. This
witness has no reason to concoct a story. She appears to us to be a
reliable witness. Though the father and the mother of the deceased, the
neighbours of the appellant and the deceased and their servant knew that
the appellant and the deceased were staying together and the parents of the
deceased stated in the court that the appellant and the deceased were
married to each other, the marriage was not made public. The deceased
wanted the marriage to be made public. The appellant was reluctant to do
so and was suspecting her fidelity. On account of this suspicion, he used
to quarrel with her and beat her. He had asked PW-82 Ram Niwas Dubey to
keep watch over her movements and had also put restrictions on her
movements. On account of this, the deceased was making efforts to leave
him. It appears that perhaps the appellant did not want to make the
marriage public because the deceased was continuing her relationship with
PW-12 Matloob Karim even after marriage. These circumstances established by
evidence adduced by the prosecution lead us to conclude that there was a
strong motive for the appellant to do away with the deceased. It was urged
that the appellant was deeply in love with the deceased and despite knowing
her relationship with PW-12 Matloob Karim, he did not drive her out. He
only restricted her movements because he wanted to stop her from her
wayward ways. He would have, therefore, never killed her. In our opinion,
the appellant’s love for the deceased does not dilute the prosecution case
on motive. In fact, it strengthens it.

 

29. That there was fire in the Bagia Restaurant around 10.30 p.m. on
2/7/1995 and that, at that time, the appellant was present near the Bagia
Restaurant is established by the prosecution by leading reliable evidence.
PW-7 Mrs. Anaro Devi who was running a vegetable shop near Ashok Yatri
Niwas stated that two years back at about 11.30 p.m. on 2/7/1995 when she
was present at her shop, a fire broke out in Bagia Restaurant. One
constable and home guard came there. She informed them about the fire. PW-
3 HC Kunju stated that on 2/7/1995 he was posted as Constable at P.S.,
Connaught Place. PW-4 Home Guard Chander Pal was with him. When they
reached near Ashok Yatri Niwas at about 11.20 p.m., they found that fire
had broken out in the Bagia Restaurant. He rushed to the Police Post,
Western Court and gave information to the police through wireless. On
reaching the spot, he saw flames coming up from the Bagia Restaurant. He
entered the restaurant along with PW-4 Home Guard Chander Pal and saw A2-
Keshav standing near the tandoor. He was putting pieces of wood into the
tandoor and was shuffling the same with a long wooden stick. On enquiry,
A2-Keshav told him that he was a Congress Party worker and he was burning
the old banners, posters and waste papers, etc. of the Congress Party. In
the meantime, the patrolling officer SI Rajesh Kumar, the staff of PCR and
security officials Rajiv Thakur and PW-35 Mahesh Prasad also came there.
According to him, he saw the appellant near the gate of the Bagia
Restaurant. PW-35 Mahesh Prasad told him that the appellant was the owner
of the Bagia Restaurant. PW-3 HC Kunju identified the appellant at the
police station as the same person whom he had seen at the gate of the Bagia
Restaurant. PW-4 Home Guard Chander Pal stated that on 2/7/1995, when he
was on patrolling duty along with PW-3 HC Kunju, they reached Ashok Yatri
Niwas at about 11.30 p.m. They saw fire at the Bagia Restaurant. PW-3 HC
Kunju went and phoned the police station and came back. Both of them
scaled the wall and entered the Bagia Restaurant for extinguishing the
fire. They saw A2-Kesahv trying to stoke the fire with the help of a
wooden stick. When asked, A2-Keshav told them that he was burning the old
banners and posters of the Congress Party. He further stated that the
appellant was standing there wearing white coloured kurta pyjama. He was
so informed by PW-35 Mahesh Prasad. He further stated that the appellant
came near the tandoor and shuffled the fire with wooden stick and,
thereafter, he left from there. He stated that he identified the appellant
at the police station. CW-5 HC Majid Khan deposed that in the night of
2/7/1995, he was on duty on PCR vehicle driven by Ranbir Singh. They went
to Ashok Yatri Niwas for drinking water and there they noticed the fire in
Bagia Restaurant. They went towards the gate of Bagia Restaurant. There
was a kanat fixed at the gate and one man was standing there. The man told
them that they were burning the old banners and waste papers and flags of
Congress Party and that he was the leader of Youth Congress. PW-35 Mahesh
Prasad then told them that that man was the owner of Bagia Restaurant and
his name was ‘Sushil Sharma’. According to him, A2-Keshav was stoking the
fire. He stated that A2-Keshav was apprehended at the spot. PW-1
Philips’s evidence is also important. He was working as a Stage Programmer
in Bagia Restaurant. This fact is confirmed by PW-5 K.K. Tuli, the General
Manager of Bagia Restaurant. According to PW-1 Philips, on 2/7/1995, he
was on duty from 8.00 p.m. to 12.00 midnight. He stated that he and his
wife PW-2 Mrs. Nisha were to stage a performance on that day. One guest
had come to see him. He had gone to see off that guest at 9.30 p.m. or
9.45 p.m. When he came back, he saw the appellant coming there in Maruti
Car No.1872. After 5-7 minutes, A2-Keshav asked him to stop the programme
and go back to his house as his duty was over. He obeyed and left for his
house along with his wife PW-2 Mrs. Nisha. While going, he saw the
appellant sitting in his Maruti car which was standing at the gate. PW-2
Mrs. Nisha corroborated PW-1 Philips. She stated that she had seen the
appellant at about 10.15 p.m. at the gate of Bagia Restaurant in Maruti Car
No.1872. PW-5 K.K. Tuli, General Manager of Bagia Restaurant stated that
around the time when the incident occurred, the appellant used to visit the
Bagia Restaurant every day. All these witnesses have stood firm in the
cross-examination.

 

30. PW-3 HC Kunju stated that since foul smell was emanating from the
tandoor, he and SI Rajesh Kumar went near the tandoor out of suspicion.
They saw a human body whose hands and feet were completely burnt and whose
intestines were protruding out from the stomach in the tandoor. On a close
look, they found that the dead body was of a female. PW-4 Home Guard
Chander Pal corroborated PW-3 HC Kunju on this aspect. He stated that a
body of a woman was found lying in the tandoor. It’s bones were cut and
intestines were protruding. PW-5 K.K. Tuli, the General Manager of Ashok
Yatri Niwas stated that on receiving telephonic information from the
security staff, he went to the Bagia Restaurant and found a dead body of a
woman in burnt condition lying amongst the wood pieces in tandoor. There
is no challenge to these statements of the witnesses in the cross-
examination. On receiving information, senior police officers including PW-
81 IO Niranjan Singh reached the spot. Photographs of the dead body were
taken by PW-74 HC Hari Chand. He produced the photographs of the dead body
(Ex-PW-74/9 to 16) and negatives thereof (Ex-PW-74/1 to 8). PW-75
Inspector Jagat Singh and PW-81 IO Niranjan Singh have also deposed about
it. A2-Keshav was handed over to PW-81 IO Niranjan Singh. PW-81 IO
Niranjan Singh recorded the statement of PW-3 HC Kunju, which was treated
as FIR. In the FIR, PW-3 HC Kunju narrated all the events which took place
after he reached the Bagia Restaurant till his statement was recorded. It
is necessary to note here that he specifically mentioned about the presence
of the appellant. He made it clear that he was informed about the
appellant’s presence by the Security Guard PW-35 Mahesh Prasad. He stated
that the Security Guard PW-35 Mahesh Prasad told him that the appellant,
who is the owner of the Bagia Restaurant was standing there. He noted the
presence of the appellant and A2-Keshav. He stated that A2-Keshav was
detained, however, the appellant had run away. He also stated about the
finding of burnt body of an unknown lady in the tandoor.

 

31. It must be mentioned here that PW-35 Mahesh Prasad has not supported
the prosecution on this aspect. He stated that he had not seen the
appellant on that day at the Bagia Restaurant. It appears that he was won
over by the defence. Tenor of his evidence suggests that he was hiding the
truth and favouring the appellant. The trial court has rightly commented on
his demeanor and stated that his demeanor indicates that he was won over by
the appellant. In the circumstances, we see no reason to disbelieve PW-1
Philips, PW-2 Mrs. Nisha, PW-3 HC Kunju, PW-4 Home Guard Chander Pal and CW-
5 HC Majid Khan. In any case, even if we leave the evidence of PW-3 HC
Kunju, PW-4 Home Guard Chander Pal and CW-5 HC Majid Khan out of
consideration on this aspect, the evidence of PW-1 Philips and PW-2 Mrs.
Nisha establishes the presence of the appellant at the Bagia Restaurant at
the relevant time in the night of 2/7/1995 at around 10.15 p.m. Some
controversy is sought to be created as to whether PCR Vehicle entered the
Bagia Restaurant or not because the log book of the PCR Vehicle was not
produced. We have no manner of doubt that this discrepancy is created by PW-
35 Mahesh Prasad, who was won over by the appellant. It needs to be
ignored. In our opinion, whether the PCR vehicle entered the Bagia
Restaurant or was parked outside is not a material circumstance. The
presence of the witnesses is well established. It is, therefore, not
necessary to dwell on this point. On the basis of the evidence discussed
above, we are satisfied that the prosecution has established the presence
of the appellant at the Bagia Restaurant at around 10.30 p.m. on 2/7/1995.
It has also established that a dead body of a woman in burnt condition was
found lying in the tandoor.

 

32. PW-81 IO Niranjan Singh started investigation and after holding
inquest, sent the dead body to RML Hospital. We have already referred to
PW-85 Dr. Joginder Pal, who stated that on 3/7/1995 an unknown female body
was brought to the RML Hospital at 6.20 a.m. He examined the dead body.
In his Report (Ex-PW-85/A) he noted the condition of the charred body. PW-
12 Matloob Karim identified the dead body as that of the deceased on
5/7/1995 at RML Hospital. DNA Report established that the dead body was of
deceased Naina Sahni, who was the daughter of CW-1 Mrs. Jaswant Kaur and CW-
2 Sardar Harbhajan Singh. Thus, the prosecution has successfully
established that the dead body was of Naina Sahini, wife of the appellant.

 

33. Post-mortem of the dead body was conducted by CW-6 Dr. Sarangi on
5/7/1995. We have reproduced the observations noted by CW-6 Dr. Sarangi in
his post-mortem report, hereinabove. That the death was homicidal is
established and is not disputed. In this case, the medical evidence
assumes great importance. We shall discuss it, in detail, a little later.

 
34. We shall now go to the search of the said flat. PW-81 IO Niranjan
Singh stated that on 3/7/1995 at about 3.00 p.m., he went to the said flat
along with A2-Keshav, but it was found locked. On 4/7/1995 at about 11.30
a.m. / 12.00 noon, he reached the said flat. The said flat was under the
surveillance of PW-14 Inspector Suraj Prakash. It was forced open under a
panchanama. Certain bloodstained articles like cloth pieces, chatai and
piece of carpet were seized from the said flat under a panchnama. He found
five empty cartridges, a lead bullet, an air pistol and a ply in which
there was a hole caused by the bullet. According to him, he did not take
possession of these articles because the Ballistic Experts were not
present. On 5/7/1995, he visited the said flat along with PW-70 Roop
Singh, the Ballistic Expert, and PW-16 Dr. V.N. Sehgal, Director of the
CFSL and in their presence five empty cartridges, one lead bullet, an air
pistol and a ply having bullet hole were seized and panchnama (Ex-PW-16/A)
was drawn. It was signed by PW-16 Dr. V.N. Sehgal and Inspector Ramesh
Chander. PW-16 Dr. V.N. Sehgal has confirmed that on 5/7/1995 at about
12.00 noon, on a request made by the police, he visited the said flat along
with PW-70 Roop Singh. He stated that he entered the said flat along with
PW-70 Roop Singh and PW-81 IO Niranjan Singh. PW-70 Roop Singh collected
five empty cartridges, one lead bullet, one piece of ply having a hole in
it and one air pistol. He further stated that the seized articles were
sealed and the memo was prepared, which is at Ex-PW-16/A. PW-81 IO
Niranjan Singh has also spoken about the seizure memo [Ex-PW-16/A] on which
he obtained signatures of PW-16 Dr. V.N. Sehgal and Inspector Ramesh
Chander. PW-67 HC Raj Kumar, in-charge of Malkhana has deposed about the
parcels of the seized articles received by him on 5/7/1995. He stated that
on 17/7/1995, SI Rakesh Ahuja took all the parcels to the CFSL. Thus,
seizure of five empty cartridges, one lead bullet, a ply with a hole on it
from the said flat on 5/7/1995 is proved. It is also proved that the said
seized articles were deposited in Malkhana on 5/7/1995 and were sent to the
CFSL on 17/7/1995.

 

35. PW-70 Roop Singh, the Ballistic Expert has stated about receipt of
the seized articles from SHO, P.S., Connaught Place on 17/7/1995. He has
spoken about the examination of the said articles sent to his laboratory
and the result thereof. It is true that in his evidence, he has not stated
anything about his visit to the said flat on 5/7/1995 or the finding of
cartridges, lead bullet and ply with a hole in the said flat, which has
been stated by PW-16 Dr. V.N. Sehgal and PW-81 IO Niranjan Singh. From
this, it cannot be concluded that he was not present in the said flat on
5/7/1995. Obviously, being a Ballistic Expert, he has only concentrated on
the result of examination conducted in his laboratory. No adverse
inference can be drawn from his not mentioning finding of cartridges, lead
bullet, etc. from the said flat on 5/7/1995. It is true that PW-14
Inspector Suraj Prakash has admitted that in his statement recorded under
Section 161 of the Cr.P.C., he has not referred to the seizure of
cartridges, bullets, etc. However, his evidence makes it clear that his
statement was recorded at the spot when the recoveries of other articles
were made i.e. on 4/7/1995. He stated that his supplementary statement was
not recorded. Since, the seizure of the said articles was made on 5/7/1995
that too in his absence, there was no question of his mentioning about the
recoveries of cartridges, etc. in his statement recorded on 4/7/1995. He
stated in his evidence that the said articles were there in the said flat
but they were not seized because the Ballistic Expert was not there. The
fact that statement of this witness was recorded on 4/7/1995 is also stated
by PW-81 IO Niranjan Singh. Therefore, this circumstance cannot be taken
against the prosecution.

 

36. It is argued that in the recovery memo dated 4/7/1995, there is no
mention of recovery of empty cartridges, lead bullet, etc. and, therefore,
PW-81 IO Niranjan Singh’s version regarding recovery of empty cartridges
and lead bullet is falsified. This submission deserves to be rejected
without hesitation because the recovery was effected on 5/7/1995 under
panchnama (Ex-PW-16/A). These articles were not seized on 4/7/1995.
Therefore, they cannot find mention in the panchnama dated 4/7/1995.
Recovery Memo dated 5/7/1995 clearly talks about recovery of cartridges,
lead bullet, a piece of ply having a hole of a bullet and an air pistol.
It is true that PW-13 Dhara Singh has not stated that on 4/7/1995 any
cartridges or lead bullet were found in the said flat. However, PW-14
Inspector Suraj Prakash who had accompanied him and PW-81 IO Niranjan Singh
have stated so. Therefore, non-mentioning of this fact by PW-13 Dhara Singh
is of no consequence. Both PW-14 Inspector Suraj Prakash and PW-81 IO
Niranjan Singh have stated that the said cartridges, etc. were not seized
on 4/7/1995 because the Ballistic Expert was not present. Therefore, we
feel that absence of any memo in this regard does not affect the
prosecution case adversely. It is stated in the written submissions that
two lead bullets were recovered from the said flat. This statement is
factually incorrect. All the witnesses have stated that only one lead
bullet was recovered from the said flat and that is confirmed by the
panchnama (Ex-PW-16/A). We are also not impressed by the submission of the
appellant’s counsel that at least ten rounds must have been fired in the
said room and the neighbours should have therefore spoken about it. That,
ten rounds must have been fired is a speculation of the counsel. But,
assuming that to be so, it is common knowledge that neighbours generally
would not want to get involved in such cases. There is always an effort to
disassociate oneself from such incidents for fear of getting entangled in
court cases. Not much can be made out of this conduct of the neighbours.
It is pertinent to note that PW-81 IO Niranjan Singh stated that when he
asked the neighbours to become witnesses in the proceedings of the house
search, they refused and stated that it is not proper to give evidence in a
murder case. It appears that somehow two neighbours agreed to depose in
the court, but considering the general apathy of the people towards
associating themselves with such incidents, their not referring to any
sound of firing cannot be taken against the prosecution. Moreover, it is
quite possible that since the flats were closed, sound did not travel from
one flat to the neighbours’ flat. We, therefore, reject this submission.

 

37. It was argued that the lead bullet which was found in the said flat
was blood stained. This is not correct. Seizure Memo [Ex-PW-16/A]
regarding the seizure of articles from the said flat on 5/7/1995 states
that one lead bullet was seized. It does not say that the said lead bullet
was stained with blood. PW-81 IO Niranjan Singh stated that on 5/7/1995 he
seized one lead bullet from the said flat. He makes no reference to any
blood being found on it. PW-16 Dr. V.N. Sehgal, Director, CFSL who was
present when the articles were seized on 5/7/1995 stated that one lead
bullet was recovered from the said flat. He nowhere stated that it was
blood stained. PW-70 Roop Singh, Ballistic Expert stated that he
received one lead bullet among others for examination on 17/7/1995. He
stated that the lead bullet recovered from the said flat was fired through
.32 revolver [W-2]. It is pertinent to note that this is the same revolver
which was seized from the room of the appellant at Pai Vihar Hotel,
Bangalore. He further stated that the hole on the ply was found to have
been caused by the said lead bullet recovered from the said flat. He
however did not state that it was blood stained. CFSL Report dated
27/7/1995 also does not state that the said bullet was blood stained.
Therefore, it is clear that it is not the case of the prosecution that the
lead bullet seized from the said flat on 5/7/1995 was stained with blood.
Therefore, all the submissions based on the assumption that bullet found in
the said flat was blood stained are rejected.

 

38. PW-81 IO Niranjan Singh has stated that on 4/7/1995 at about 9.10
a.m., a wireless message was received by him that Car bearing No.DL-2CA-
1872 was parked at Malcha Marg. He along with the staff reached near
Malcha Marg Market. The said car was parked on the road. The CFSL team
was called for inspection of the car. Car was then inspected. The dry
blood lying in the dicky of the car was scratched, kept in a polythene
packet, converted into a parcel and sealed. Many long hair were lifted
from the back of the front left seat of the car, kept in a parcel and
sealed. A memo being Ex-PW-60/B was prepared which bears this out. The
recovery of the appellant’s car is attacked on the ground that no record of
wireless message has been produced; no one from P.S. Malcha Marg was
examined; no record of P.S. Malcha Marg has been produced; no information
was given to the nearest Magistrate and no record showing presence of PW-72
PC Mukesh of P.S. Chanakyapuri was produced. It is also stated that no
witness from the CFSL has been examined; no photographs have been produced
and no independent witnesses have been examined. In our opinion, it was
not necessary to produce the record showing presence of PW-72 PC Mukesh.
We find him to be a truthful witness. In his evidence, PW-72 PC Mukesh
clearly stated that on 4/7/1995, the said car was found abandoned near
Gujarat Bhavan. He also deposed that before leaving the police station for
patrolling duty, he was given number of the said car by SHO saying that it
was involved in the murder case of P.S. Connaught Place and he should look
for the said car. In view of the clear testimony of PW-72 PC Mukesh, it
was not necessary to produce other record to support seizure of the car.
There is no reason to disbelieve him. PW-81 IO Niranjan Singh has stated
that the blood stains found in the dicky were scratched and sample thereof
was taken. Therefore, even if no witness from the CFSL has been examined
to depose about this or no photographs have been produced, that has no
adverse effect on the prosecution case. Some advantage is sought to be
drawn from the discrepancies in the time as regards receipt of wireless
message from PW-81 IO Niranjan Singh and the estimate of time given by PW-
72 PC Mukesh regarding PW-81 IO Niranjan Singh’s presence at the site and
the time given by PW-81 IO Niranjan Singh as to when he reached the said
flat after taking samples from the appellant’s car. The estimate of time
given by the witnesses differ and may, at times, conflict. When there are
telltale circumstances on record clearly supporting the prosecution case,
assuming there are some discrepancies in the evidence of witnesses as
regards time, it would not make any dent in the prosecution story. The
argument that in the dicky there ought to have been a pool of blood, will
also have to be rejected. PW-75 Inspector Jagat Singh in his evidence
stated that from the spot, a polythene sheet/tarpaulin bearing stains of
blood on one side and scratch marks on the lower side was taken in
possession under seizure memo [Ex-PW-75/1]. The body must, therefore, have
been well covered in polythene sheet to hide it and, hence, there was no
pool of blood in the dicky. This also explains why there was no trail of
blood on the staircase or on the road. Blood was, however, found in the
said flat.

 

39. The CFSL Report dated 27/7/1995 states that the hair recovered from
the back of the left front seat of the said car were identified to be of
human origin. However, no opinion could be given as to whether they were of
the deceased. From the dicky, no human hair were recovered possibly
because the dead body was properly covered. This circumstance appears to
us to be totally innocuous and no advantage can be drawn from it by the
defence. So far as the sample of blood found in the dicky of the said car
is concerned, the CFSL Report while confirming that it was blood, stated
that the blood group could not be analysed. There is no positive finding
that the blood detected was not found to be ‘human’ blood. The submission
that the blood detected in the dicky was found not to be ‘human’ blood is
contrary to facts. Seizure of the appellant’s car which was found
abandoned at Malcha Marg with dry blood in the dicky establishes the
prosecution case that the said car was used by the appellant to carry the
dead body to the Bagia Restaurant. It is further established that after
leaving Bagia Restaurant on arrival of police, he came to Malcha Marg and
parked the car there.

 
40. The evidence on record establishes that after committing the murder,
the appellant spent the night at Gujarat Bhawan situated at Malcha Marg.
Thereafter, the appellant was on the run. PW-81 IO Niranjan Singh’s
evidence throws light on it. It appears that while in Madras, the
appellant having come to know that the police were looking for him,
obtained anticipatory bail. On an application filed by the prosecution,
the anticipatory bail was cancelled. According to PW-81 IO Niranjan Singh,
he learnt that on 10/7/1995, the appellant was arrested by PW-46 Inspector
Gangadhar of the Bangalore Police. PW-81 IO Niranjan Singh got the
production warrant issued from the concerned Magistrate by filing
Application [Ex-PW-81/X-6]. On 11/7/1995, he along with his colleague
reached Bangalore and took custody of the appellant. The appellant led
them to Room No.110 of Hotel Pai Vihar where he was staying along with his
advocate Mr. Anantanarayan. From Room No.110, a briefcase was recovered.
In the briefcase, there was a revolver of Arminius make of .32 bore. There
were four live cartridges, arms licence, passport and other documents. A
key of a Maruti Car was also found from the briefcase and the same was also
taken charge of and marked Ex-PW-81/X-10. All the articles were seized and
seizure memo [Ex-PW-47/A] was drawn. The appellant was then brought to New
Delhi. PW-81 IO Niranjan Singh has clearly stated that he informed the
security personnel at the airport about the recovered revolver and the
cartridges, while bringing the appellant to New Delhi by air.

 

41. No advantage can be drawn by the appellant from the fact that in the
remand application dated 12/7/1995, it was stated that the weapon used in
the crime had to be ascertained and recovered, though a revolver had been
recovered on 10/7/1995. It must be borne in mind that the said remand
application was made at an early stage of investigation. When the remand
application was made, the police had not ascertained from the CFSL whether
the revolver recovered at Bangalore was used by the appellant. Therefore,
the said averment does not affect the veracity of recovery evidence. As
regards the criticism that there is no statement of the appellant recorded
under Section 27 of the Evidence Act and, therefore, recoveries made at
Bangalore become inadmissible is concerned, it must be stated that it is
not the prosecution case that any statement of the appellant was recorded
under Section 27 of the Evidence Act. The revolver was recovered during
investigation. Pertinently, the CFSL Report has established the link
between the revolver recovered from the hotel room at Bangalore and the
bullets found in the skull of the deceased. Evidence of police witnesses
on this aspect is cogent and reliable. We find no reason to discard it.
We may add here that in his statement recorded under Section 313 of the
Cr.P.C. the appellant admitted that he possessed .32 bore Arminius
revolver. But he stated that police recovered it from his residence at
Maurya Enclave when he was at Tirupati. The appellant has not led any
evidence to prove that he was staying at Maurya Enclave. His parents did
not step in the witness box. This story is rightly disbelieved by the High
Court. Thus, the appellant’s admission that he possessed .32 bore Arminius
revolver goes a long way amongst other circumstances in establishing his
guilt.

 

42. Alleged non-compliance with procedural requirements laid down in
Cr.P.C. by PW-81 IO Niranjan Singh who was conducting investigation outside
his jurisdiction assuming to be true, is an instance of irregularity in
investigation which has no adverse impact on the prosecution case. It is
true that Mr. Anantanarayan, the advocate was not examined. It is also
true that PW-48 Srinivas Rao, the Manager of Pai Vihar Hotel and PW-50
Kancha, the waiter of the said hotel were given up by the prosecution. Mr.
Anantanarayan being advocate of the appellant was not expected to support
the prosecution. It appears that, therefore, he was not examined. So far
as PW-48 Srinivas Rao is concerned, he was not examined by the prosecution
because he was won over by the appellant. PW-50 Kancha was not examined by
the prosecution because he had difficulty in understanding Hindi and
English. These witnesses are therefore, of no use to the prosecution.
However, the prosecution case is substantiated by the evidence of PW-81 IO
Niranjan Singh, PW-55 ACP Raj Mahinder Singh of Delhi Crime Branch and PW-
47 CI Gowda of Hauze Kote Police Station, Bangalore. We find them to be
truthful. There is no presumption that evidence of police witnesses is
always tainted. No evidence has been brought on record to suggest that
they bore any grudge against the appellant and, hence, wanted to falsely
involve him. In our opinion, recoveries made at Bangalore are proved
beyond reasonable doubt.

 

43. So far as recoveries of bloodstained clothes at the instance of the
appellant from bushes near Gujarat Bhawan and from Rangpuri area are
concerned, the trial court has not relied upon the recovery made from the
area near Gujrat Bhawan. The High Court has found no reason to discard the
recovery made from Rangpuri area. In our opinion, even if these recoveries
are kept out of consideration, there is enough other evidence on record
which establishes the guilt of the appellant. It is therefore, not
necessary to dwell on the said recoveries.

 

44. Counsel for the appellant has stated that according to the
prosecution on 11/7/1995, a revolver and arms licence were recovered from
the hotel room of the appellant at Pai Vihar, Bangalore. The same were put
in a parcel sealed with the seal of N.S. It is submitted that on
15/10/1995, the licence period was extended to cover up the lacunae and an
entry was made on the seized licence to that effect and this suggests
tampering. We find no substance in this allegation. It appears from the
evidence that the appellant had made an application for extension of
licence on 18/1/1994 which was granted on 15/10/1995 by PW-55A ACP Ram
Narain. The evidence on record indicates that what was recovered on
11/7/1995 is licence (Ex-PW-47/E) and according to PW-55A, ACP Ram Narain,
he made the entry of extension dated 15/10/1995 on the licence (Ex-PW-
55/A). There is, therefore, no question of tampering with the seized
licence. Besides, no question was put to any of the officers about the co-
relation between the said two exhibits. In any case, expiry of arms
licence has nothing to do with the core of the prosecution case. We reject
this submission.

 

45. We shall now go to the medical evidence. We have already reproduced
the observations made by PW-85 Dr. Joginder Pal in his Medico Legal Report
after he received the dead body. We have also reproduced the relevant
portions of the post-mortem notes and the cause of death given by CW-6 Dr.
Sarangi. According to CW-6 Dr. Sarangi, the cause of death was hemorrhagic
shock consequent to various ante-mortem injuries found on the dead body.
He has opined that the burns present on the said body must be probably
inflicted after the death. It was argued that it is doubtful whether the
death was caused due to firearm injuries. It was pointed out that PW-85
Dr. Joginder Pal, the Casualty Medical Officer at RML Hospital has stated
that he did not find any firearm injuries in the neck or in the head or in
the nape of the deceased. Moreover, CW-6 Dr. Sarangi also did not notice
any bullet mark or bullet present in the dead body. In fact, he stated that
the brain matter was intact. Doubt was cast on the opinion of the Board of
Doctors, who extracted the two bullets and opined that those two bullets
caused death. It was argued that the skull from which bullets were
recovered was not the skull of the deceased. We have no hesitation in
rejecting all these submissions which are aimed at creating doubt about the
Report of the Board of Doctors.

 

46. So far as PW-85 Dr. Joginder Pal is concerned, admittedly, he did not
conduct the post-mortem. He conducted superficial examination of the dead
body. Obviously, therefore, he did not notice any firearm injury in the
neck or in the head or in the nape of the deceased. It is true that CW-6
Dr. Sarangi did not notice any evident bullet marks or the bullets embedded
in the skull. Possibly the bullets were so embedded that they were not
visible to the naked eye. In this connection, it is necessary to turn to
PW-81 IO Niranjan Singh’s evidence. He stated that as he found empty
cartridges, a lead bullet and a bullet hole on a ply in the said flat, he
suspected that a firearm must have been used in this incident. Therefore,
he requested CW-6 Dr. Sarangi to conduct X-ray examination of the dead
body. However, X-ray examination was not conducted. These facts were
mentioned by him in letter (Ex-PW-81/X-11). Since no X-ray examination was
done on 9/7/1995, he discussed the need of having a second post-mortem with
the DCP, New Delhi and ACP, Connaught Place. He wrote a letter containing
queries about re-post-mortem and handed it over to PW-57 SI Ombir Singh and
directed him to hand over the same to the Board of Doctors. According to
him, on 9/7/1995, he had requested Dr. Aditya Arya, DCP for constitution of
Board of Doctors. Copy of the letter to Dr. Arya is at Ex-PW-81/X-11. The
Commissioner requested the Lt. Governor and by the order of Lt. Governor of
New Delhi, the Board of Doctors was constituted. PW-44 Dr. Bharat Singh,
PW-68 Dr. T.D. Dogra and Dr. S.K. Khanna were selected as members of the
Board. On 12/7/1995, at about 10.30 a.m., the members of the Board of
Doctors reached the Lady Hardinge Mortuary to conduct second post-mortem.
CW-6 Dr. Sarangi was also there and he had a conversation with them.
Second post-mortem report (Ex-PW-44/A) indicates that it was partly
conducted at Lady Hardinge Mortuary and thereafter the body was shifted to
the Civil Hospital for X-ray. Skull was X-rayed. X-ray revealed two
bullets embedded in the skull.

 

47. In our opinion, when PW-81 IO Niranjan Singh had requested CW-6 Dr.
Sarangi to get the dead body X-rayed, he should have got the X-ray
examination done. He gave an excuse that the X-ray examination was not
done because the portable X-ray machine available at Lady Hardinge Medical
College was not functioning. Assuming this to be true, in a serious crime
like this, he should have immediately taken the dead body to the Civil
Hospital for X-ray examination. It is pertinent to note that to a court
question, he has stated that he was making sincere efforts to get X-ray of
the dead body done in the X-ray department in consultation with the Medical
Superintendent of the hospital. However, before he could complete any such
endeavour, the body was taken away by PW-81 IO Niranjan Singh for further
examination by some other doctors at some other hospital. There is nothing
on record to show that CW-6 Dr. Sarangi made any grievance about this fact.
In fact, he admitted that in the post-mortem report, he did not mention
these facts nor did he take any action against PW-81 IO Niranjan Singh.
When asked whether he had taken any action, CW-6 Dr. Sarangi changed his
stand and stated that he thought that what PW-81 IO Niranjan Singh was
doing was in the furtherance of “good justice”. He has indeed contradicted
himself. If he thought that the dead body was suddenly withdrawn and he
was keen on X-raying it, then he ought to have written a letter to that
effect to the Commissioner of Police and to the hospital authorities and he
ought to have made complaint against PW-81 IO Niranjan Singh. He did
nothing. In fact, at one stage he stated that the necessity of X-ray
examination was not realized by him because he did not notice any bullet
marks and at another stage he suggested that he wanted to get the dead body
X-rayed. When he was asked as to whether a bullet can be put inside the
body after death at the place where it has been noticed by the Board, he
stated that the possibility could not be absolutely ruled out especially in
the presence of multiple post-mortem cracks and separation of the skull
bone from the neck for the purpose of superimposition. Thus, CW-6 Dr.
Sarangi in his evidence has tried to cast a doubt on the entire
investigation and the Board of Doctors. The trial court severely commented
on the conduct of CW-6 Dr. Sarangi. The High Court, however, expunged
those remarks. Since the High Court has expunged those remarks, we would
not like to reopen the issue. But we find it extremely difficult to reject
the opinion of the Board of Doctors on the basis of his evidence. Eminent
doctors were members of the Board of Doctors. They had no reason to
falsely implicate the appellant.

 

48. We would also like to make it clear that there is absolutely no
reason to doubt the prosecution case that the skull of which X-ray was
taken was that of the deceased. CW-6 Dr. Sarangi stated that on the
request of PW-81 IO Niranjan Singh, the skull bone was separated for
superimposition. PW-81 IO Niranjan Singh stated that he received the skull
on 5/7/1995. He stated that at the time of post-mortem, he gave
application dated 5/7/1995 to the Autopsy Surgeon for preserving the skull
for superimposition. Thus, the skull was merely separated for the purpose
of superimposition but remained in the mortuary along with the dead body.
The first post-mortem report dated 5/7/1995 records that the skull was
preserved for superimposition. The skull along with the body remained in
the mortuary of Lady Hardinge Medical College after the first post-mortem
and was not sent for superimposition. On application dated 9/7/1995
submitted by PW-81 IO Niranjan Singh, an order was passed for the second
post-mortem. This application shows that though a request was made for
skull superimposition test, the dead body with its head was still preserved
in the Lady Hardinge Medical College mortuary and process of
superimposition had not started till then. The second post-mortem report
records that the body was kept in the mortuary of Lady Hardinge Medical
College in a plastic bag and was taken out from the same. It was a dead
body with the skull separated. The evidence clearly shows that the
separated skull remained along with the body in the mortuary of the Lady
Hardinge Medical College from 5/7/1995 till 12/7/1995. The second post-
mortem was conducted on 12/7/1995. During the second post-mortem, the dead
body was taken to Civil Hospital for X-ray and, thereafter, it was brought
back to the Lady Hardinge Mortuary. The body along with the skull was later
taken to AIIMS for conducting superimposition. The defence has not been
able to create any doubt in our minds that the skull was not that of the
deceased. Minor discrepancies, if any, in the evidence of witnesses are
natural in a case of this type. They will not have any adverse impact on
the basic case of the prosecution which is borne out by cogent and reliable
evidence.

 

49. The second post-mortem report states that the body was kept in the
mortuary of Lady Hardinge Medical College in a plastic bag and was taken
out from the same in the presence Board of Doctors. On external
examination, the body is described as “a burnt dead body, with skull
separated at upper cervical level (kept in a separate cardboard box)”.
After describing the state of upper limbs, lower limbs, left lower limb,
thoracic cavity, abdominal cavity, kidneys, back of trunk, spinal column,
head, skull vault, cranial cavity, it is stated that at that stage it was
decided to take X-rays of the body to detect any firearm projectiles. The
Report further notes that due to non-availability of the facility of X-ray
for the dead bodies at Lady Hardinge Medical College, it was decided to
shift the body to the Civil Hospital for X-ray. The body was shifted to
the Civil Hospital in a police vehicle and X-ray was taken in the Civil
Hospital. From the evidence of CW-7 Dr. (Ms.) P.S. Kiran, the Radiologist,
Civil Hospital, New Delhi, it appears that she took the necessary X-rays of
the dead body. X-ray plates were shown to the Board of Doctors. The
doctors noted their observations in their report after viewing the X-ray
plates. It is stated that the X-ray plates showed the presence of two
metal pieces, (i) in back of right ear (mastoid region) and (ii) left side
of neck, near the spine in soft tissues of cervical stumps. The report
then indicates that thereafter the neck was dissected and a deformed bullet
was located. Thereafter, the right mastoid area was also dissected to
locate the bullet. The outer table of the skull above mastoid process was
bulging outwards through which a metal piece was seen. On further
dissection, a deformed bullet was found embedded in the bone with its nose
portion pointing outwards and base towards medial side. Both the bullets
were removed. The final opinion of the Board reads as under:

 

“The burns are post-mortem in nature and are caused by fire. The
firearm injuries are ante-mortem in nature, caused by a firearm such
as a revolver or pistol. In view of the extensive burns, it is not
possible to give exact location of the entry wounds. However on the
basis of the track and location of bullet, the entry wound on the head
could be in the left temporal region and that in the neck could be in
the right upper part of the neck. It is also not possible to comment
upon the range of fire, because of extensive burns on probable site of
entry. The firearm injury on the head is sufficient to cause death in
ordinary course of nature. The death in this case was due to coma,
consequent upon firearm injury to the head.

 
It is not possible to comment whether the distal portions of the limbs
were chopped off or were separated due to burns, in view of the burnt
distal ends of the bones.”

 

50. Thus, the second post-mortem report makes it clear that the burns
were post-mortem and firearm injuries were ante-mortem and the death was
due to coma, consequent upon firearm injury to head. It was, however, not
possible to say whether the distal portions of the limbs were chopped off
or were separated due to burns in view of the burnt distal ends of the
bones. The report also shows how the body travelled from Lady Hardinge
Medical College to the Civil Hospital. The body was lying in the mortuary
of Lady Hardinge Medical College in a plastic bag and it was taken out from
there in the presence of the Board of Doctors and the second post-mortem
was conducted. When need for X-ray was realized, it was shifted in police
vehicle to the Civil Hospital and the X-rays were taken at the Civil
Hospital. We have no hesitation in placing implicit reliance on the
opinion expressed by the Board of Doctors after the second post-mortem.

 

51. It is also necessary to deal with the submission of the counsel for
the appellant that the two parcels containing bullets which were extracted
from the skull of the deceased, bearing the seal of Civil Hospital were
never sent to the CFSL. This submission deserves to be rejected, because
PW-44 Dr. Bharat Singh stated that after the second post-mortem, he handed
over the two bullets recovered from the skull of the deceased to PW-57 SI
Ombir Singh in a sealed cover with the seal of Civil Hospital. PW-57 SI
Ombir Singh has confirmed this fact. He stated that he took possession of
the same vide Memo [Ex-PW57/A] and after depositing the dead body at Lady
Hardinge Medical College, he came to the police station and handed over the
said parcels to PW-81 IO Niranjan Singh along with Memo [Ex-PW-57/A]. It
was urged that PW-67 HC Raj Kumar, who is in-charge of Malkhana has stated
that no parcel was deposited with him on 12/7/1995, 13/7/1995 and
14/7/1995. This argument is misleading. In his evidence PW-67 HC Raj
Kumar has nowhere stated that he had not received any parcel on 12/7/1995,
13/7/1995 and 14/7/1995. According to the prosecution, Entry No.2146 of
the Malkhana Register shows that the two bullets [Ex.Nos.36 and 37]
recovered from the skull of the deceased were deposited in Malkhana. PW-81
IO Niranjan Singh has stated that on 17/7/1995 he had sent the parcels to
the CFSL through SI Rakesh Ahuja. PW-67 HC Raj Kumar has confirmed this
fact. PW-70 Roop Singh has stated that he received two parcels with the
seal of Civil Hospital, Delhi from the Malkhana on 17/7/1995. We have,
therefore, no doubt that the two bullets recovered from the skull of the
deceased were sent to the CFSL. There is, therefore, no substance in this
argument.

 

 

 

52. We may add here that the CFSL Report dated 27/7/1995 states that the
two bullets recovered from the skull of the deceased were stained with
blood of ‘B’ group. This establishes that the blood group of the deceased
was ‘B’. It is pertinent to note that the CFSL Report dated 17/7/1995
states that the various articles such as cloth piece, carpet piece, chatai,
etc. recovered on 4/7/1995 from the said flat were stained with the blood
of ‘B’ group. Similarly, it states that the polythene sheet which was
recovered from the Bagia Restaurant was also stained with the blood of ‘B’
group. It is pertinent to note that the CFSL Report dated 27/7/1995 also
shows that in the dicky of Car No.DL-2CA-1872, blood was detected.
Therefore, the prosecution case that the deceased was murdered in the said
flat by shooting her in the head by the appellant; that the body of the
deceased was wrapped in the polythene sheet and carried by the appellant in
his car bearing No.DL-2CA-1872 to the Bagia Restaurant and that it was
burnt there in the tandoor, is proved.

 

 

 

53. Attempt has been made to create confusion and caste a doubt on the
entire procedure of second post-mortem by pointing out some discrepancies
in the evidence of PW-44 Dr. Bharat Singh and PW-57 SI Ombir Singh as
regards the time when the second post-mortem was conducted. We repeat that
the evidence of the doctors who were concerned with the second post-mortem
and their report inspires confidence. It is reliable. Hence, we reject
this submission. At the cost of repetition, we must note that minor
discrepancies in the evidence of witnesses as regards dates and time cannot
have any adverse impact on the prosecution case because in this case, it’s
substratum is firmly established by cogent and reliable evidence.

 

54. Certain minor procedural irregularities have also been highlighted.
But it must be borne in mind that the investigation of this case was not
restricted to New Delhi. The appellant travelled from one city to another.
He reached Madras. From there he went to Bangalore where he was arrested.
In a case of this type there is likelihood of some lapses on the part of
the investigating agency. It is well settled that such lapses, if they are
minor, cannot be allowed to defeat the cause of justice. We have not
noticed any major lacuna in the investigation from which adverse inference
can be drawn against the prosecution. Attempt has been made to suggest
that all witnesses including doctors, expert witnesses, and police officers
have conspired against the appellant and he has been falsely implicated.
We see no reason to draw such conclusion. It is impossible to believe that
everyone would want to implicate the appellant in a false murder case and
in that attempt, go to the extent of implanting bullets in the skull. We
reject all such submissions.

 

55. The evidence on record clearly establishes that the appellant has not
been able to prove the defence of alibi. Adverse inference needs to be
drawn from this fact. False defence of alibi indeed forms a vital link in
the chain of circumstances. It is also established by the prosecution
that after the murder, the appellant made himself scarce. He stayed in the
night of 2/7/1995 and 3/7/1995 at Gujarat Bhavan. He was on the run. He
travelled from Delhi to Jaipur, from Jaipur to Bombay, from Bombay to
Madras and from Madras to Bangalore where he was arrested on 10/7/1995.
These facts are successfully established by oral and documentary evidence.
Thus, the fact that the appellant was absconding is established beyond
doubt.

 

56. In the ultimate analysis, therefore, we are of the opinion that the
prosecution has successfully proved beyond reasonable doubt the following
circumstances:

 

(a) the appellant and the deceased were married and they were staying
together in the said flat being Flat No.8/2A situated at Mandir Marg;

 

(b) the relations between the appellant and the deceased were strained.
The appellant was suspecting the fidelity of the deceased. The
deceased wanted to make their marriage public which the appellant was
not willing to do. There was, thus, a strong motive to murder;

 

(c) the appellant and the deceased were last seen together in the evening
of 2/7/1995 in the said flat;

 

(d) on 2/7/1995, at about 11.00 p.m. there was a fire in Bagia Restaurant
and the appellant was seen at around 10.15 p.m. at the Bagia
Restaurant in his Maruti Car bearing No.DL-2CA-1872;

 

(e) A2-Keshav, who was an employee of the Bagia Restaurant owned by the
appellant, was seen shuffling the wood in the tandoor with a wooden
stick and he was apprehended at the spot in the night intervening
2/7/1995 and 3/7/1995;

 

(f) charred corpse found in the tandoor was identified to be that of the
deceased;

 

(g) on 4/7/1995, certain blood stained articles were recovered from the
said flat where the appellant and the deceased were staying together;

 

(h) on 4/7/1995, Car No.DL-2CA-1872 was found abandoned at Malcha Marg
and the dicky of the car was found to contain dry blood.

 

(i) on 5/7/1995, five empty cartridges, one lead bullet, a ply with
bullet hole and an air pistol were recovered from the said flat where
the appellant and the deceased were staying together;

 

(j) from the evening of 2-3/7/1995, the appellant was on the run till
he was arrested by the Bangalore Police at Bangalore on 10/07/1995.
On 11/07/1995, the appellant was handed over to the Delhi
Police and, inter alia, a .32 Arminius revolver owned by
him was recovered by the police from his room at Pai Vihar Hotel at
Bangalore;

 

(k) the second post-mortem report prepared after studying the X-ray
plates of the skull of the deceased revealed that there were two
bullets embedded in it;

 

(l) the CFSL report stated that the said two bullets recovered from the
skull of the deceased and the one lead bullet recovered from the said
flat were fired from the .32 Arminius revolver recovered by the police
from Pai Vihar Hotel at Bangalore;

 

(m) the death of the deceased was homicidal and was consequent upon
firearm injuries to the head of the deceased caused by the appellant
alone with his .32 bore Arminius revolver;

 

(n) as per the CFSL Report, blood found on various articles seized from
the said flat and from Bagia Restaurant and the blood found on
the bullets recovered from the skull tallied. It was of the blood
group of the deceased.

 

(o) the defence of alibi pleaded by the appellant was found to be false;
and

 

(p) the appellant and A2-Keshav conspired to cause disappearance of the
evidence of murder by burning the dead body of the deceased in tandoor
of Bagia Restaurant.

 

57. We have no doubt that the chain of the above circumstances is
complete and unerringly points to the guilt of the appellant. The
established circumstances are capable of giving rise to inference which is
inconsistent with any other hypothesis except the guilt of the appellant.
The prosecution has, therefore, proved that the appellant alone has
committed the murder of the deceased in the said flat on 2/7/1995. The
appellant conspired with A2-Keshav to do away with the dead body of the
deceased so as to cause disappearance of the evidence of murder and, at the
instance of the appellant, A2-Keshav burnt the dead body in the tandoor.
The appellant has, therefore, rightly been convicted under Section 302 of
the IPC and also for offence under Section 201 read with Section 120-B of
the IPC. A2-Keshav has been acquitted of offence punishable under Section
302 read with Section 120-B of the IPC. However, he has been rightly
convicted for offence punishable under Section 201 read with Section 120-B
of the IPC. As already stated, he has not appealed against the said order
of conviction. In view of the above, we confirm the conviction of the
appellant for offence punishable under Section 302 of the IPC and also for
offence punishable under Section 201 read with Section 120-B of the IPC.
Having confirmed the conviction, we must now consider as to whether the
death sentence awarded by the trial court and confirmed by the High Court
should be confirmed.

 

SUBMISSIONS ON SENTENCE:
58. On the question of sentence, we have heard Mr. Jaspal Singh at great
length. He first took us to the judgment of the Constitution Bench of this
Court in Bachan Singh, etc. v. State of Punjab, etc.[3], where the
Constitution Bench has noted the aggravating circumstances and mitigating
circumstances and observed that while considering the question of sentence
relative weight must be given to them. Counsel laid stress on the
observation of the Constitution Bench that apart from the mitigating
circumstances noted by it there are numerous other circumstances justifying
the passing of the lighter sentence; that the mitigating factors in the
area of death penalty must receive a liberal and expansive construction by
the court and that judges should never be bloodthirsty.

 

59. Counsel relied on the judgments of this Court in Santosh Kumar
Satishbhushan Bariyar, etc. v. State of Maharashtra, etc.[4]; Ramdeo
Chauhan alias Raj Nath v. State of Assam[5]; Swamy Shraddananda (2) alias
Murali Manohar Mishra v. State of Karnataka[6]; Aloke Nath Dutta & Ors.
v. State of West Bengal[7]; Haresh Mohandas Rajput v. State of
Maharashtra[8] and State of Punjab v. Manjit Singh and Ors.[9] and
submitted that public perception is extraneous to conviction as also
sentencing. Age of the accused would be a relevant consideration. In a
case of circumstantial evidence the courts should lean towards life
imprisonment. Every murder is brutal. Brutality alone would not be a
ground for judging whether the case is one of the rarest of rare cases.
The court must consider whether the accused has a criminal history; whether
he is a criminal or a professional killer and whether he will be an ardent
criminal and a menace to the society. Counsel pointed out that despite the
fact that the offences committed by the accused were heinous in Mohd.
Chaman v. State (NCT of Delhi)[10]; Dilip Premnarayan Tiwari & Anr.,
etc. v. State of Maharashtra[11]; Sebastian alias Chevithayan v. State
of Kerala[12]; Rajesh Kumar v. State through Government of NCT of Delhi[13]
and Amit v. State of Uttar Pradesh[14], the court converted the death
sentence into life sentence. Counsel submitted that probability of
reformation and rehabilitation of the accused has to be considered and
burden is on the State to lead evidence to prove that there is no
probability of reformation or rehabilitation of the accused. Counsel
submitted that Machhi Singh & Ors. v. State of Punjab[15] advocates
principle of proportionality which is old and archaic and, hence, we must
fall back on Bachan Singh. Counsel further submitted that there is a long
lapse of time since the imposition of capital sentence and consideration of
sentence by this Court. The offence was committed on 2/7/1995. The trial
court convicted and sentenced the appellant on 3/11/2003. The High Court
confirmed the death sentence on 19/2/2007. The appeal has been pending in
this Court for the last six years. He submitted that the appellant has
already undergone more than 18 years imprisonment in the jail. This delay
also provides a valid ground for commuting death sentence to life
imprisonment. In this connection he relied on Piare Dusadh v. King
Emperor[16]; Neti Sreeramulu v. State of Andhra Pradesh[17]; Ediga
Anamma v. State of Andhra Pradesh[18]; Ramesh and Ors. v. State of
Rajasthan[19]; Mohd. Farooq Abdul Gafur & Anr. etc. v. State of
Maharashtra, etc.[20] and State of Uttar Pradesh v. Munesh[21].
Counsel submitted that the instant case does not fall in the category of
rarest of rare cases. The appellant has no criminal history. He is not a
professional criminal. Death was caused by bullet injuries. It was not
savage or brutal. The State has not laid any evidence to establish that
the accused would commit criminal acts of violence as would constitute
continuing threat to the society. Therefore, the principle that life
imprisonment is the rule and death sentence is an exception must be applied
to this case. Counsel submitted that body was burnt to destroy evidence.
That would not bring this case in the category of rarest of rare cases
(Santosh Kumar Bariyar). Counsel submitted that evidence on record
establishes that the appellant loved the deceased. He married her despite
the fact that she had an affair with PW-12 Matloob Karim. She continued to
have relations with PW-12 Matloob Karim despite his objection after
marriage. The deceased was not a hapless woman. She was an independent
woman. Since crime is committed in such circumstances, death sentence
should not be awarded to the appellant.

 

60. On the other hand, relying on the judgments of this Court in Ediga
Anamma[22]; Mahesh s/o. Ram Narain, & Ors. v. State of Madhya
Pradesh[23]; Machhi Singh; Molai & Anr. v. State of Madhya Pradesh[24];
State of Rajasthan v. Kheraj Ram[25] and Dhananjoy Chatterjee alias Dhana
v. State of West Bengal[26] Mr. Chandhiok, learned Additional Solicitor
General, submitted that the appellant deserves no sympathy. The crime
committed by the appellant is horrendous and warrants death penalty.
Counsel submitted that the deceased was a hapless lady; qua her, the
appellant was in a dominating position; the appellant always ill-treated
her and refused to acknowledge her as his wife though she was residing with
him; his plea was held to be false; he showed no remorse after the murder
and he tried to destroy the evidence in a most barbaric manner. Thus,
there are no mitigating circumstances, in this case. A sentence other than
the death sentence will not operate as a deterrent and may send a wrong
signal to the society. Counsel submitted that the object of sentencing is
to see that the crime does not go unpunished and the victim of crime as
also the society has the satisfaction that justice has been done. Drawing
our attention to paragraphs 19, 22, 87 and 88 of the impugned judgment,
counsel submitted that the High Court has given strong, convincing and
legally sound reasons for awarding death penalty, which do not deserve to
be disturbed. On the aspect of delay, relying on the judgment of this
Court in Smt. Triveniben, etc. v. State of Gujarat, etc.[27], counsel
submitted that in this case the Constitution Bench has held that while
considering whether the death sentence should be awarded or not, the time
utilized in judicial proceedings upto final verdict cannot be taken into
account. This is not a case of delay in disposing of mercy petition.
Counsel submitted that while awarding death sentence, perception of the
Society is one of the considerations. Counsel submitted that this case is
one of the most widely published and infamous murder case. It is a case
where this Court must, by confirming the death sentence, send a strong
signal to the society which will operate as an effective deterrent in
future.

 

ANALYSIS OF SUBMISSIONS ON SENTENCE AND CONCLUSION:
61. Learned counsel have drawn our attention to the decisions of the
Constitution Bench of this Court in Bachan Singh and Machhi Singh. We must
begin with them. In Bachan Singh, after referring to Ediga Anamma, which
had, in turn, referred to Neti Sreeramulu, constitutional validity of death
penalty for murder provided in Section 302 of the IPC and the sentencing
procedure embodied in sub-section (3) of Section 354 of the Code was
considered. The Constitution Bench observed that the death penalty should
be imposed in rarest of rare/gravest cases. It was observed that while
considering the question of sentence relative weight must be given to the
aggravating and mitigating circumstances. The Constitution Bench noted the
aggravating circumstances as under:

 

“(a) if the murder has been committed after previous planning and
involves extreme brutality; or

 
(b) if the murder involves exceptional depravity; or

 
(c) if the murder is of a member of any of the armed forces of the
Union or of a member of any police force or of any public servant and
was committed—

 
(i) while such member or public servant was on duty; or

 
(ii) in consequence of anything done or attempted to be done by
such member or public servant in the lawful discharge of his duty
as such member or public servant whether at the time of murder he
was such member or public servant, as the case may be, or had
ceased to be such member or public servant; or

 
(d) if the murder is of a person who had acted in the lawful
discharge of his duty under Section 43 of the Code of Criminal
Procedure, 1973, or who had rendered assistance to a Magistrate or a
police officer demanding his aid or requiring his assistance under
Section 37 and Section 129 of the said Code.”

 
The mitigating circumstances were noted as under:

 
“(1) That the offence was committed under the influence of extreme
mental or emotional disturbance.

 
(2) The age of the accused. If the accused is young or old, he shall
not be sentenced to death.

 
(3) The probability that the accused would not commit criminal acts
of violence as would constitute a continuing threat to society.

 
(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the accused does
not satisfy the conditions (3) and (4) above.

 
(5) That in the facts and circumstances of the case the accused
believed that he was morally justified in committing the offence.

 
(6) That the accused acted under the duress or domination of another
person.

 
(7) That the condition of the accused showed that he was mentally
defective and that the said defect impaired his capacity to appreciate
the criminality of his conduct.”

 

 

 

62. The Constitution Bench noted that there are numerous other
circumstances justifying the passing of the lighter sentence as there are
countervailing circumstances of aggravation. It was further observed that
the court cannot obviously feed into a judicial computer all such
situations since they are astrological imponderables in an imperfect and
undulating society. Nonetheless, it cannot be over-emphasized that the
scope and concept of mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the courts in accord with
the sentencing policy. It was further observed that Judges should never be
bloodthirsty. Relevant observations of the Constitution Bench read as
under:

 

“Judges should never be bloodthirsty. Hanging of murderers has never
been too good for them. Facts and figures, albeit incomplete,
furnished by the Union of India, show that in the past, courts have
inflicted the extreme penalty with extreme infrequency — a fact which
attests to the caution and compassion which they have always brought
to bear on the exercise of their sentencing discretion in so grave a
matter. It is, therefore, imperative to voice the concern that courts,
aided by the broad illustrative guidelines indicated by us, will
discharge the onerous function with evermore scrupulous care and
humane concern, directed along the highroad of legislative policy
outlined in Section 354(3) viz. that for persons convicted of murder,
life imprisonment is the rule and death sentence an exception. A real
and abiding concern for the dignity of human life postulates
resistance to taking a life through law’s instrumentality. That ought
not to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed.”

 

63. In Machhi Singh, a three Judge Bench of this Court considered whether
death sentence awarded to the appellants should be confirmed. In that
case as a result of a family feud the appellants with a motive of reprisal,
committed 17 murders in five incidents occurring in the same night in quick
succession in the five neighbouring villages. Some of the accused were
sentenced to death. This Court referred to the judgment of the
Constitution Bench in Bachan Singh and culled out the following
propositions as emerging from Bachan Singh’s case:

 

“(i) The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability.

 
(ii) Before opting for the death penalty the circumstances of the
‘offender’ also require to be taken into consideration along with the
circumstances of the ‘crime’.

 
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed only when
life imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and
provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime and all the
relevant circumstances.

 
(iv) A balance sheet of aggravating and mitigating circumstances has
to be drawn up and in doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before the option is
exercised.”

 

 

 
It was further observed that to apply these guidelines court must ask
and answer the following questions:

 
“(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence?

 
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according maximum
weightage to the mitigating circumstances which speak in favour of the
offender?”

 

In the facts of the case, death sentence awarded to some of the
accused was confirmed.

 

64. We shall now go to some of the other judgments on which reliance is
placed by the appellant and the respondent. It is not necessary to refer
to all the judgments because they reiterate the same principles.

 

JUDGMENTS RELIED ON BY THE APPELLANT:

 

65. In Mohd. Chaman, the appellant had raped a 1½ year-old girl. In the
process of committing rape, injuries were inflicted on liver which resulted
in death of the child. The trial court sentenced him to death. The High
Court confirmed the death penalty. This Court observed that the crime was
undoubtedly serious and heinous and the conduct of the appellant was
reprehensible. It revealed a dirty and perverted mind of a human being who
has no control over his carnal desires. However, after treating the case
on the touchstone of the guidelines laid down in Bachan Singh and Machhi
Singh, this Court was of the view that the appellant was not such a
dangerous person that to spare his life will endanger the community. It
was further observed that the circumstances of the crime were not such that
there was no alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances in favour of the
offender. It was observed that the case is one in which a humanist
approach should be taken while awarding punishment. The capital punishment
imposed against the appellant was set aside and the appellant was sentenced
to life imprisonment.

 

66. In Aloke Nath Dutta, the appellant, who had many vices, was in need
of money. Out of greed for money, he killed his brother. The trial court
sentenced the appellant to death. The High Court confirmed the death
sentence. This Court held that though the offence was gruesome, the case
was not one of the rarest of rare cases. This Court observed that though
the deceased was killed while he was in deep slumber, the method applied
cannot be said to be cruel. This Court noted that both the brothers i.e.
the deceased and the appellant were living in the same premises for a long
time; they were looking after their parents and the other brothers had
filed a suit against them and their mother apprehending that their mother
would bequeath the property in favour of the appellant and the deceased.
This Court held that the prosecution had failed to prove the case of
conspiracy and, in the circumstances, the case did not fall in the category
of rarest of rare cases. The appellant’s death penalty was commuted to
life imprisonment.

 

67. In Manjit Singh, the case of the prosecution was that Bhinder Kaur,
the wife of the deceased-Sewa Singh was having illicit relationship with
the accused, who were working as Sewadars in the Gurdwara where the
deceased used to recite Kirtan. Having come to know this, deceased-Sewa
Singh and his son used to beat Bhinder Kaur. Enraged by this, the accused
came to the house of deceased-Sewa Singh and murdered him by assaulting him
with Kirpan and Khanda. The son of deceased-Sewa Singh and two others
were killed in the Gurdwara by them. The accused were sentenced to death
by the trial court. The High Court, however, commuted the death sentence
to life imprisonment. The State of Punjab appealed to this Court. It was
argued that the High Court was not right in converting the death sentence
into life imprisonment. This Court observed that whether the case is one
of the rarest of rare cases is a question which has to be determined on the
facts of each case. Only where culpability of the accused has assumed
depravity or where the accused is found to be an ardent criminal and menace
to the society; where the crime is committed in an organized manner and is
gruesome, cold-blooded, heinous and atrocious; where innocent and unarmed
persons are attacked and murdered without any provocation, death sentence
should be awarded. In the facts of the case before it, this Court held
that being driven more by infatuation and also being devoid of their senses
on coming to know about the ill-treatment meted out to Bhinder Kaur, the
accused committed the murders. It was observed that though the act of the
accused was gruesome it was a result of human mind going astray. In the
circumstances, the High Court’s order commuting death sentence to life
imprisonment was confirmed.

 

68. In Santosh Kumar Bariyar, all the accused including the appellant
were unemployed young men in search of job. In execution of a plan
proposed by the appellant and accepted by them, they kidnapped a friend of
theirs with the motive of procuring ransom from his family but later
murdered him and after cutting his body into pieces disposed of the same at
different places. One of the accused turned approver. The prosecution case
was based exclusively on his evidence. The trial court awarded death
sentence to the appellant. The High Court confirmed the death sentence.
In appeal, this Court held that doctrine of proportionality provides for
justifiable reasoning for awarding death penalty. However, while imposing
any sentence on the accused the court must also keep in mind the doctrine
of rehabilitation. The court cannot, therefore, determine punishment on
grounds of proportionality alone. This Court observed that there was
nothing to show that the appellant could not be reformed and
rehabilitated. It was further observed that the manner and method of
disposal of the dead body of the deceased made the case a most foul and
despicable case of murder. However, mere mode of disposal of the dead body
may not by itself be made the ground for inclusion of a case in the rarest
of care category for the purpose of imposition of death sentence. It may
have to be considered along with several other factors. This Court was of
the view that the fact that the prosecution case rested on the evidence of
the approver, will have to be kept in mind. It was further observed that
where the death sentence is to be imposed on the basis of circumstantial
evidence, the circumstantial evidence must be such which leads to an
exceptional case. It was further observed that the discretion given to the
court in such cases assumes onerous importance and its exercise becomes
extremely difficult because of the irrevocable character of death penalty.
Where two views ordinarily could be taken, imposition of death sentence
would not be appropriate, but where there is no other option and it is
shown that reformation is not possible, death sentence may be imposed. In
the circumstances, the death sentence was converted to life imprisonment.

 

69. In Sebastian, the appellant had trespassed into the complainant’s
house and kidnapped his two year-old daughter. He then raped and killed
her. The trial court sentenced him to death. The death sentence was
confirmed by the High Court. This Court considered the fact that the
appellant was a young man of 24 years of age at the time of incident and
that the case rested on circumstantial evidence, and substituted the death
sentence by life sentence. It was, however, directed that the appellant
shall not be released from prison for the rest of his life.

 

70. In Rajesh Kumar, the appellant was convicted for killing two children
aged four-and-a-half years, and eight months in a brutal and diabolical
manner. He had held the legs of the infant and hit the child on the floor,
and had slit the throat of the elder son with a piece of glass which he had
obtained by breaking the dressing table glass. The motive for crime was
said to be the refusal by the father of the children to lend money to him.
The trial court imposed death sentence on the appellant. The High Court
confirmed the death sentence. On appeal, this Court held that the State
had failed to show that the appellant was a continuing threat to the
society or that he was beyond reform and rehabilitation. It was observed
that the High Court has taken a very narrow and a myopic view of the
mitigating circumstances about the appellant. It was observed that the
brutality of murder alone cannot justify infliction of death penalty. The
death sentence was, in the circumstances, set aside and the appellant was
sentenced to life imprisonment.

 

71. In Ramesh, Ramlal, who was doing business of money lending and his
wife Shanti Devi were found lying dead in a pool of blood in their house-
cum-shop. Pursuant to the FIR registered under Sections 302 and 457 of the
IPC, the appellant was arrested along with others. The case of the
prosecution was that the appellant and other accused had decided to commit
robbery at the house-cum-shop of Ramlal. They trespassed into it; looted
the house-cum-shop and decamped with the ornaments of silver, gold and
cash. The murder weapon was recovered from the appellant. The trial court
convicted the appellant, inter alia, under Sections 120-B and 302 of the
IPC. He was sentenced to death. The High Court confirmed the death
sentence. On appeal, this Court observed that though the case was of
double murder, it cannot be said to be a crime of enormous proportion. The
appellant could not be said to be a person in a dominating position as it
was not a murder of an innocent child or a helpless woman or old or infirm
person. Though it was the case of the prosecution that the appellant was
having criminal record, this Court noticed that it did not find any
previous conviction having been proved against him. The original intention
was theft and on account of the deceased having been awakened, the accused
took the extreme step of eliminating both of them for fear of being
detected. This Court further observed that it cannot be said that the
appellant alone had committed the murder because he discovered the murder
weapon. It was not clear as to who was the actual author of the injuries.
This Court noted that the appellant was languishing in death cell for more
than six years. That would also be one of the mitigating circumstances.
In the circumstances, death sentence awarded to the appellant was converted
into life imprisonment.

 

72. In Amit, the complainant lodged FIR alleging that while his mother
and wife were present in the house, the appellant came there, took away his
3 year-old daughter on the pretext that he would give her biscuits.
However, neither the appellant nor the complainant’s daughter returned.
Investigation disclosed that the appellant had kidnapped the girl. She was
subjected to unnatural offence and rape. She was hit on the head and was
strangulated. The trial court convicted the appellant, inter alia, under
Section 302 of the IPC and sentenced him to death. The High Court
confirmed the death sentence. On appeal, this Court set aside the death
sentence. This Court observed that the appellant was a young person aged
about 28 years. There was no evidence to show that he had committed such
offences earlier. There was nothing on record to show that he was likely
to repeat similar crimes in future. This Court expressed that given a
chance, the appellant may reform over a period of years. This Court
sentenced the appellant to life imprisonment and observed that life
imprisonment shall extend to the full life of the appellant, but subject to
any remission or commutation at the instance of the Government for good
and substantial reasons.

 

73. We may also refer to Mohinder Singh v. State of Punjab[28], where
the appellant, who was serving 12 years’ rigorous imprisonment for having
raped his own daughter was released on parole. While on parole, he
murdered his wife and the daughter, whom he had raped earlier, by giving
repeated axe-blows on their heads. His other daughter saved herself by
hiding in a room and bolting the same from inside. The trial court
convicted him under Section 302 of the IPC and sentenced him to death. The
High Court confirmed the death sentence. This Court observed that the
appellant was a poor man and was unable to earn his livelihood since he was
driven out of his house by the deceased-wife. It was his grievance that
the deceased-wife was adamant that he should live outside and that was the
reason why the relations were strained. The appellant was feeling
frustrated because of the attitude of his wife and children. This Court
also took into consideration the fact that the appellant did not harm his
other daughter who was there even though he had a good chance to harm her.
This Court observed that after balancing the aggravating and mitigating
circumstances emerging from the evidence on record, it was not persuaded to
accept that the case can appropriately be called the rarest of rare case
warranting death penalty. This Court also expressed that it was difficult
to hold that the appellant was such a dangerous person that he will
endanger the community if his life is spared. The possibility of
reformation of the appellant could not be ruled out. In the circumstances,
this Court converted the death sentence into life imprisonment. However,
after referring to its judgment in Sangeet & Anr. v. State of
Haryana,[29] this Court observed that there is a misconception that a
prisoner serving life sentence has an indefeasible right to release on
completion of either 14 years’ or 20 years’ imprisonment. A convict
undergoing life imprisonment is expected to remain in custody till the end
of his life, subject to any remission granted by the appropriate Government
under Section 432 of the Cr.P.C. which in turn is subject to the procedural
checks mentioned in the said provision and further substantive checks in
Section 433-A of the Cr.P.C. This Court, therefore, sentenced the
appellant to undergo rigorous imprisonment for life, meaning thereby
imprisonment till the end of his life but subject to any remission granted
by the appropriate Government satisfying the conditions prescribed in
Section 432 of the Cr.P.C. and further substantive checks under Section 433-
A of the Cr.P.C. by passing appropriate speaking order.

 

JUDGMENTS RELIED ON BY THE RESPONDENT-STATE.

 

74. In Mahesh, five persons were murdered because of marriage of a lady
of a higher caste with a Harijan boy. They were axed to death in an
extremely brutal manner. After the murders, the accused tried to break
open the door of the room where two of the prosecution witnesses were
hiding to save themselves and they left the place only when the door could
not be opened. The accused were convicted under Section 302 of the IPC and
sentenced to death by the trial court. While confirming the death
sentence, this Court observed as under:

 

“It will be a mockery of justice to permit these appellants to escape
the extreme penalty of law when faced with such evidence and such
cruel acts. To give the lesser punishment for the appellants would be
to render the justicing system of this country suspect. The common man
will lose faith in courts. In such cases, he understands and
appreciates the language of deterrence more than the reformative
jargon. But this does not mean that the Court ignore the need for a
reformative approach in the sentencing process. But here, there is no
alternative but to confirm the death sentence.”

 

75. In Dhananjoy Chatterjee, the appellant had raped and murdered a young
18 year-old girl in her flat in a society where he was working as a
security guard. The trial court found him guilty, inter alia, under
Sections 302 and 376 of the IPC. The High Court confirmed the sentence of
death. This Court also confirmed the death sentence by observing that the
case falls in the category of rarest of rare cases. This Court observed as
under:

 

“The faith of the society by such a barbaric act of the guard, gets
totally shaken and its cry for justice becomes loud and clear. The
offence was not only inhuman and barbaric but it was a totally
ruthless crime of rape followed by cold blooded murder and an
affront to the human dignity of the society. The savage nature of
the crime has shocked our judicial conscience. There are no
extenuating or mitigating circumstances whatsoever in the case. We
agree that a real and abiding concern for the dignity of human life
is required to be kept in mind by the courts while considering the
confirmation of the sentence of death but a cold blooded preplanned
brutal murder, without any provocation, after committing rape on an
innocent and defenceless young girl of 18 years, by the security
guard certainly makes this case a “rarest of the rare” cases which
calls for no punishment other than the capital punishment and we
accordingly confirm the sentence of death imposed upon the
appellant for the offence under Section 302 IPC.”

 

76. In Molai, a 16 year-old girl was preparing for her class 10th
examination at her house. Both the accused took advantage of her being
alone in the house and committed rape on her. Thereafter, they
strangulated her by using her undergarment and took her to the septic tank
along with the cycle and caused injuries with a sharp-edged weapon. Then,
they threw the dead body into a septic tank. The trial court awarded death
sentence to the accused which was confirmed by the High Court. This Court
confirmed the death sentence observing that there was no mitigating
circumstance, which could justify the reduction of sentence of death
penalty to life imprisonment.

 

77. In Kheraj Ram, suspecting infidelity on the part of his wife, the
accused-Kheraj Ram killed her, his two children and brother-in-law. The
trial court convicted him under Section 302 of the IPC and sentenced him to
death. The High Court noted that the case rested on circumstantial
evidence. The circumstances were not proved and, therefore, the accused
was entitled to acquittal. On appeal, this Court held that the prosecution
had established its case; that the murder was committed in a cruel and
diabolic manner; the accused did not act on any spur-of-the-moment
provocation; the murder was deliberately planned and meticulously executed
and after the incident, the accused smoke chilam with calmness, which
indicated that he had no remorse and he was satisfied with what he had
done. This Court observed that the victims were two innocent children and
a helpless woman. They were done to death in an extremely gruesome and
grotesque manner. In the circumstances, this Court set aside the order of
acquittal and confirmed the death sentence awarded by the trial court.

 

78. In light of the above judgments, we would now ascertain what factors
which we need to take into consideration while deciding the question of
sentence. Undoubtedly, we must locate the aggravating and mitigating
circumstances in this case and strike the right balance. We must also
consider whether there is anything uncommon in this case which renders the
sentence to life imprisonment inadequate and calls for death sentence. It
is also necessary to see whether the circumstances of the crime are such
that there is no alternative but to impose death sentence even after
according maximum weightage to the mitigating circumstances which speak in
favour of the offender.

 

79. We notice from the above judgments that mere brutality of the murder
or the number of persons killed or the manner in which the body is disposed
of has not always persuaded this Court to impose death penalty. Similarly,
at times, in the peculiar factual matrix, this Court has not thought it fit
to award death penalty in cases, which rested on circumstantial evidence or
solely on approver’s evidence. Where murder, though brutal, is committed
driven by extreme emotional disturbance and it does not have enormous
proportion, the option of life imprisonment has been exercised in certain
cases. Extreme poverty and social status has also been taken into account
amongst other circumstances for not awarding death sentence. In few cases,
time spent by the accused in death cell has been taken into consideration
along with other circumstances, to commute death sentence into life
imprisonment. Where the accused had no criminal antecedents; where the
State had not led any evidence to show that the accused is beyond
reformation and rehabilitation or that he would revert to similar crimes in
future, this Court has leaned in favour of life imprisonment. In such
cases, doctrine of proportionality and the theory of deterrence have taken
a back seat. The theory of reformation and rehabilitation has prevailed
over the idea of retribution.

 

80. On the other hand, rape followed by a cold-blooded murder of a minor
girl and further followed by disrespect to the body of the victim has been
often held to be an offence attracting death penalty. At times, cases
exhibiting premeditation and meticulous execution of the plan to murder by
levelling a calculated attack on the victim to annihilate him, have been
held to be fit cases for imposing death penalty. Where innocent minor
children, unarmed persons, hapless women and old and infirm persons have
been killed in a brutal manner by persons in dominating position, and where
after ghastly murder displaying depraved mentality, the accused have shown
no remorse, death penalty has been imposed. Where it is established that
the accused is a confirmed criminal and has committed murder in a diabolic
manner and where it is felt that reformation and rehabilitation of such a
person is impossible and if let free, he would be a menace to the society,
this Court has not hesitated to confirm death sentence. Many a time, in
cases of brutal murder, exhibiting depravity and sick mind, this Court has
acknowledged the need to send a deterrent message to those who may embark
on such crimes in future. In some cases involving brutal murders,
society’s cry for justice has been taken note of by this court, amongst
other relevant factors. But, one thing is certain that while deciding
whether death penalty should be awarded or not, this Court has in each case
realizing the irreversible nature of the sentence, pondered over the issue
many times over. This Court has always kept in mind the caution sounded by
the Constitution Bench in Bachan Singh that judges should never be
bloodthirsty but has wherever necessary in the interest of society located
the rarest of rare case and exercised the tougher option of death penalty.

 

81. In the nature of things, there can be no hard and fast rules which
the court can follow while considering whether an accused should be awarded
death sentence or not. The core of a criminal case is its facts and, the
facts differ from case to case. Therefore, the various factors like the
age of the criminal, his social status, his background, whether he is a
confirmed criminal or not, whether he had any antecedents, whether there is
any possibility of his reformation and rehabilitation or whether it is a
case where the reformation is impossible and the accused is likely to
revert to such crimes in future and become a threat to the society are
factors which the criminal court will have to examine independently in each
case. Decision whether to impose death penalty or not must be taken in
light of guiding principles laid down in several authoritative
pronouncements of this Court in the facts and attendant circumstances of
each case.

 

82. We must also bear in mind that though, the judicial proceedings do
take a long time in attaining finality, that would not be a ground for
commuting the death sentence to life imprisonment. Law in this behalf has
been well settled in Triveniben. The time taken by the courts till the
final verdict is pronounced cannot come to the aid of the accused in
canvassing commutation of death sentence to life imprisonment. In
Triveniben, the Constitution Bench made it clear that though ordinarily,
it is expected that even in this Court, the matters where the capital
punishment is involved, will be given top priority and shall be heard and
disposed of as expeditiously as possible but it could not be doubted that
so long as the matter is pending in any court, before final adjudication,
even the person who has been condemned or who has been sentenced to death
has a ray of hope. It, therefore, could not be contended that he suffers
that mental torture which a person suffers when he knows that he is to be
hanged but waits for the doomsday. Therefore, the appellant cannot draw
any support from the fact that from the day of the crime till the final
verdict, a long time has elapsed. It must be remembered that fair trial is
the right of an accused. Fair trial involves following the correct
procedure and giving opportunity to the accused to probabalize his defence.
In a matter such as this, hurried decision may not be in the interest of
the appellant.

 

83. We must now examine the present case in light of our observations in
the preceding paragraphs. The appellant was the State President of the
Youth Congress in Delhi. The deceased was a qualified pilot and she was
also the State General Secretary of Youth Congress (Girls Wing), Delhi.
She was an independent lady, who was capable of taking her own decisions.
From the evidence on record, it cannot be said that she was not in touch
with people residing outside the four walls of her house. Evidence
discloses that even on the date of incident at around 4.00 p.m. she had
contacted PW-12 Matloob Karim. She was not a poor illiterate hapless
woman. Considering the social status of the deceased, it would be
difficult to come to the conclusion that the appellant was in a dominant
position qua her. The appellant was deeply in love with the deceased and
knowing full well that the deceased was very close to PW-12 Matloob Karim,
he married her hoping that the deceased would settle down with him and lead
a happy life. The evidence on record establishes that they were living
together and were married but unfortunately, it appears that the deceased
was still in touch with PW-12 Matloob Karim. It appears that the appellant
was extremely possessive of the deceased. The evidence on record shows that
the appellant suspected her fidelity and the murder was the result of this
possessiveness. We have noted that when the appellant was taken to Lady
Hardinge Mortuary and when the dead body was shown to him, he started
weeping. It would be difficult, therefore, to say that he was remorseless.
The fact that he absconded is undoubtedly a circumstance which will have
to be taken against him, but the same, in our considered view, would be
more relevant to the issue of culpability of the accused which we have
already decided against him rather than the question of what would be the
appropriate sentence to be awarded which is presently under consideration.
The medical evidence does not establish that the dead body of the deceased
was cut. The second post-mortem report states that no opinion could be
given as to whether the dead body was cut as dislocation could be due to
burning of the dead body. There is no recovery of any weapon like chopper
which could suggest that the appellant had cut the dead body. It is
pertinent to note that no member of the family of the deceased came forward
to depose against the appellant. In fact, in his evidence, PW-81 IO
Niranjan Singh stated that the brother and sister-in-law of the deceased
stated that they were under the obligation of the appellant and they would
not like to depose against him. Murder was the outcome of strained
personal relationship. It was not an offence against the Society. The
appellant has no criminal antecedents. He is not a confirmed criminal and
no evidence is led by the State to indicate that he is likely to revert to
such crimes in future. It is, therefore, not possible in the facts of the
case to say that there is no chance of the appellant being reformed and
rehabilitated. We do not think that that option is closed. Though it may
not be strictly relevant, we may mention that the appellant is the only son
of his parents, who are old and infirm. As of today, the appellant has
spent more than 10 years in death cell. Undoubtedly, the offence is brutal
but the brutality alone would not justify death sentence in this case. The
above mitigating circumstances persuade us to commute the death sentence to
life imprisonment. In several judgments, some of which, we have referred
to hereinabove, this Court has made it clear that life sentence is for the
whole of remaining life subject to the remission granted by the appropriate
Government under Section 432 of the Cr.P.C., which, in turn, is subject to
the procedural checks mentioned in the said provision and further
substantive checks in Section 433-A of the Cr.P.C. We are inclined to
issue the same direction.

 

84. We have already confirmed the conviction of the appellant for offence
punishable under Section 302 of the IPC and for offence punishable under
Section 120-B read with Section 201 of the IPC. In view of the above
discussion, we commute the death sentence awarded to appellant – Sushil
Sharma to life sentence. We make it clear that life sentence is for the
whole of remaining life of the appellant subject to the remission granted
by the appropriate Government under Section 432 of the Cr.P.C., which, in
turn, is subject to the procedural checks mentioned in the said provision
and further substantive checks in Section 433-A of the Cr.P.C.

 

85. Appeal is disposed of in the aforestated terms.

 

…………………………………………..CJI
(P. SATHASIVAM)

 

 

 
……………………………………………..J.
(RANJANA PRAKASH DESAI)

 

 

 
……………………………………………..J.
(RANJAN GOGOI)
NEW DELHI,
OCTOBER 8, 2013.

 

———————–
[1] AIR 1979 SC 1262
[2] (2007) 12 SCC 288
[3] (1980) 2 SCC 684
[4] (2009) 6 SCC 498
[5] (2001) 5 SCC 714
[6] (2008) 13 SCC 767
[7] (2007) 12 SCC 230
[8] (2011) 12 SCC 56
[9] (2009) 14 SCC 31
[10] (2001) 2 SCC 28
[11] (2010) 1 SCC 775
[12] (2010) 1 SCC 58
[13] (2011) 13 SCC 706
[14] (2012) 4 SCC 107
[15] (1983) 3 SCC 470
[16] AIR 1944 FC 1
[17] (1974) 3 SCC 314
[18] (1974) 4 SCC 443
[19] (2011) 3 SCC 685
[20] (2010) 14 SCC 641
[21] (2012) 9 SCC 742
[22] (1974) 4 SCC 443
[23] (1987) 3 SCC 80
[24] (1999) 9 SCC 581
[25] (2003) 8 SCC 224
[26] (1994) 2 SCC 220
[27] (1989) 1 SCC 678
[28] (2013) 3 SCC 294
[29] (2013) 2 SCC 452

 

———————–
143

 

 

 

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