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commuting the death sentence= considering the age of the accused, the possibility of reforming him cannot be ruled out. He cannot be termed as social menace. Further, the case does not fall under the “rarest of rare” category. We, therefore, are unable to uphold the death sentence. 48. For the reasons aforesaid we are commuting the death sentence of accused-Lalit Kumar Yadav alias Kuri to that of life imprisonment but affirm the rest part of the conviction and sentence = This Court in Ramnaresh and others v. State of Chhattisgarh, (2012) 4 SCC 257, applying the various principles to the facts of the said case and taking into consideration the age of the accused, possibility of the death of the deceased occurring accidently and the possibility of the accused reforming themselves held that the accused cannot be termed as social menace and commuted the sentence of death to that of life imprisonment (21 years). 42. In the present case, on the question of quantum of sentence the argument raised on behalf of the appellant is that the accused was young at the time of commission of offence i.e. 21 years of age, that he had no intention to kill the deceased and there is no past criminal antecedent. 43. On the other hand, learned counsel for the state contended that it was a heinous crime and the case of the appellant is similar like the case of Dhananjoy Chatterjee (supra). 44. We have noticed the case of Dhananjoy Chatterjee (supra). In the said case accused was a security guard and was responsible for providing security to the residents of the flats. Instead of that he used to tease a young girl child of one of the lady residents. On the complaint of the lady resident, he was transferred. To avenge the same he went up to the flat of the lady and committed rape on her daughter and then murdered her brutally. That was a case where the protector of residents becomes the offender. 45. The case of the appellant is not similar. The Trial Court and the High Court wrongly held that the case of the appellant is similar to that of Dhananjoy Chatterjee. 46. In the present case, the circumstantial evidence comes to only one conclusion that appellant attempted to commit rape and because of resistance he committed the murder of the deceased. The appellant was aged about 21 years at the time of offence. Initially when the matter for confirmation of death sentence was heard by the two learned Judges of the High Court there was a divided opinion, one Judge confirmed the death sentence while the other acquitted the appellant. It is the other Bench which affirmed the death sentence. It is not the case of the Prosecution that the appellant cannot be reformed. In fact the possibility of his reformation cannot be ruled out. There is no criminal antecedent of the appellant. The Court has to consider different parameters as laid down in Bachan Singh (supra) followed by Machhi Singh (supra) and balance the mitigating circumstances against the need for imposition of capital punishment. 47. While we apply the various principles to the facts of the present case, we are of the opinion that considering the age of the accused, the possibility of reforming him cannot be ruled out. He cannot be termed as social menace. Further, the case does not fall under the “rarest of rare” category. We, therefore, are unable to uphold the death sentence. 48. For the reasons aforesaid we are commuting the death sentence of accused-Lalit Kumar Yadav alias Kuri to that of life imprisonment but affirm the rest part of the conviction and sentence. The appeal is partly allowed only with regard to the quantum of sentence.= LALIT KUMAR YADAV @ KURI … APPELLANT Versus STATE OF UTTAR PRADESH … RESPONDENTS = 2014 (April. Part)http://judis.nic.in/supremecourt/filename=41472

commuting  the  death  sentence=  considering the age  of  the  accused,  the

possibility of reforming him cannot be ruled out.  He cannot  be  termed  as

social menace. Further, the case does not fall under the  “rarest  of  rare”

category.  We, therefore, are unable to uphold the death sentence.

48.     For the reasons aforesaid we are commuting  the  death  sentence  of

accused-Lalit Kumar Yadav alias  Kuri  to  that  of  life  imprisonment  but

affirm the rest part of the conviction and sentence  =

 

This Court in Ramnaresh and others v. State of Chhattisgarh,  (2012)

4 SCC 257, applying the various principles to the facts  of  the  said  case

and taking into consideration the age of the  accused,  possibility  of  the

death of the deceased  occurring  accidently  and  the  possibility  of  the

accused reforming themselves held that  the  accused  cannot  be  termed  as

social  menace  and  commuted  the  sentence  of  death  to  that  of   life

imprisonment (21 years).

42.     In the present case, on the question  of  quantum  of  sentence  the

argument raised on behalf of the appellant is that the accused was young  at

the time of commission of offence i.e. 21 years  of  age,  that  he  had  no

intention to kill the deceased and there is no past criminal antecedent.

43.     On the other hand, learned counsel for the state contended  that  it

was a heinous crime and the case of the appellant is similar like  the  case

of Dhananjoy Chatterjee (supra).

44.     We have noticed the case of Dhananjoy Chatterjee  (supra).   In  the

said case accused was a security guard and  was  responsible  for  providing

security to the residents of the flats.  Instead of that he used to tease  a

young girl child of one of the lady residents.   On  the  complaint  of  the

lady resident, he was transferred.  To avenge the same he  went  up  to  the

flat of the lady and committed rape on her daughter and  then  murdered  her

brutally. That was a case where  the  protector  of  residents  becomes  the

offender.

45.     The case of the appellant is not similar.  The Trial Court  and  the

High Court wrongly held that the case of the appellant is  similar  to  that

of Dhananjoy Chatterjee.

46.     In the present case, the circumstantial evidence comes to  only  one

conclusion  that  appellant  attempted  to  commit  rape  and   because   of

resistance he committed the murder of the deceased.  The appellant was  aged

about 21 years at the time  of  offence.   Initially  when  the  matter  for

confirmation of death sentence was heard by the two learned  Judges  of  the

High Court there was a  divided  opinion,  one  Judge  confirmed  the  death

sentence while the other acquitted the appellant.  It  is  the  other  Bench

which affirmed the death sentence.  It is not the case  of  the  Prosecution

that the appellant cannot be reformed.   In  fact  the  possibility  of  his

reformation cannot be ruled out.  There is no  criminal  antecedent  of  the

appellant.  The Court has to consider different parameters as laid  down  in

Bachan Singh (supra) followed  by  Machhi  Singh  (supra)  and  balance  the

mitigating  circumstances  against  the  need  for  imposition  of   capital

punishment.

47.     While we apply the various principles to the facts  of  the  present

case, we are of the opinion that considering the age  of  the  accused,  the

possibility of reforming him cannot be ruled out.  He cannot  be  termed  as

social menace. Further, the case does not fall under the  “rarest  of  rare”

category.  We, therefore, are unable to uphold the death sentence.

48.     For the reasons aforesaid we are commuting  the  death  sentence  of

accused-Lalit Kumar Yadav alias  Kuri  to  that  of  life  imprisonment  but

affirm the rest part of the conviction and sentence.  The appeal  is  partly

allowed only with regard to the quantum of sentence.

2014 (April. Part)http://judis.nic.in/supremecourt/filename=41472      

A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1022 OF 2006

 
LALIT KUMAR YADAV @ KURI … APPELLANT
Versus
STATE OF UTTAR PRADESH …
RESPONDENTS

 
J U D G M E N T

 
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against the impugned common judgment dated
11th August, 2006 passed by the High Court of Judicature at Allahabad,
Lucknow Bench in Capital Sentence Reference No.1 of 2005 with Criminal
Appeal No.252 of 2005 from Jail and Criminal Appeal No. 384 of 2005.
By the impugned common judgment the High Court while dismissed the
appeal preferred by the appellant, answered the reference affirming the
death sentence imposed by the Trial Court for the offence committed
under Section 302 IPC for having committed murder of Km. ‘x’ (victim:
original name not disclosed). The High Court also affirmed the
conviction and sentence passed against the appellant under Section 376
read with Section 511 of Indian Penal Code for having made an attempt
to commit rape on Km. ‘x’ aged about 18 years and sentenced him to
undergo five years rigorous imprisonment thereunder.
2. Initially the appeal was heard by the Division Bench of the
Allahabad High Court, Lucknow Bench and after conclusion of the
arguments the Hon’ble Judges pronounced their judgments but had a
divided opinion; one Hon’ble Judge affirmed the order of conviction and
sentence recorded by the Trial Court and the other Hon’ble Judge
reversed the whole judgment and the order of the Trial Court and out
rightly acquitted the accused-appellant on both the counts. Therefore,
the case was referred under Section 392 Cr.PC to a third Judge who
after hearing the parties and on appreciation of evidence by the
impugned judgment dated 11th August, 2006 dismissed the appeals
preferred by the appellant and another on his behalf. The judgment
rendered by the Trial Court has been upheld and the reference was
answered confirming the penalty of death sentence.
3. Learned counsel appearing for the appellant, inter alia, made
following submissions in assailing the judgment under appeal:
(i) `The prosecution has failed to produce any witness
to prove the very factum of the registration of the FIR. Irrespective
of the same it is ante-timed.
(ii) Ram Chandra Chauarasiya (PW-1) is a highly
interested witness and has entered into the witness box only for the
purpose of achieving the conviction of the appellant. The statement of
PW-1 is not corroborated by any one even though witnesses were
available for the same.
(iii) Sriram(PW-9), who was produced to prove recovery memo is
not an independent but an interested witness who is the son-in-law of
brother of PW-1.
(iv) The ‘polythene’ bag in which the ‘sickle’ was wrapped was
taken by the Investigating Officer without any seal from the site of
recovery.
(v) The alleged recovery of clothes ‘Baniyan and towel’ do not
satisfy the mandate of Section 27 of the Indian Evidence Act.
Therefore, the result of chemical examiner is of no value to prove the
charge.
(vi) Identification by sniffer dog cannot be taken as evidence
for the purpose of establishing guilt of the appellant.
4. Before we proceed to discuss the merits of the above contentions,
it is desirable to notice the case of the prosecution and evidence on
record as recapitulated below:
5. On 23.2.2004, Ram Chandra Chaurasiya (PW-1) and his wife Vidyawati
residents of village Gogulpur, Police Station Satrikh, District
Barabanki had gone to their agricultural field. When they returned to
their house at 2.30 p.m., they were informed by their daughter Guddi
that their another daughter Km.‘x’ had gone to beckon them at 1.30
p.m., as on that day, Govind, the son of Ram Chandra Chaurasiya’s sala
(brother-in-law) had come to their house, his two daughters thought it
proper to inform their parents and it was in this background that Km.
‘x’ had gone to inform and summon her parents. All the family members
had a long wait for Km.‘x’ to return but when she did not come back up
to 4.00p.m., Ram Chandra Chaurasiya (PW-1) and Vidyawati both being
worried left in search of their daughter. When they were going through
the agricultural fields, they were shocked to see their daughter Km.‘x’
lying dead in pool of blood in the plot of one Vishwanath. Ram Chandra
Chaurasiya (PW-1) lodged a written report (Ext. Ka.1) at Satrikh Police
Station where upon a case was registered and the then Station House
Officer Shri Ashok Kumar Yadav assumed the charge of investigation and
immediately swung into action. He visited the site of occurrence and
soon sent for the dog squad. An Inspector of the Crime Investigation
Department, who was In-charge of a sniffer dog, named ‘Raja’ arrived at
the place of occurrence late in the evening. He instructed ‘Raja’ to
pick up the smell of culprit from the site of occurrence and then find
out some clue of the crime and the criminal. ‘Raja’ who was a very
well trained dog of German Shepherd species and who had earlier helped
to uncover many crimes, smelt all the important spots around the dead
body at the site of occurrence and chasing the trail of the same smell,
it walked along with police personnel and villagers behind, and
straightaway reached at the house of the accused-appellant. The
appellant and his brother wrapped with blankets were sleeping inside
their house. ‘Raja’ barked at the blanket of the accused-appellant,
who was immediately grabbed over by the police. On the next day i.e. on
24th February, 2004, the Investigating Officer recovered at the
instance of accused-appellant the bloodstained Baniyan (vest) and a
Gamchha (towel) of the accused-appellant and also Hansiya (scythe) used
in the commission of crime. The chemical examiner on examination of
the three recovered articles noticed that there was blood on all the
said incriminating articles. The inquest report was also prepared on
24th February, 2004 by the Investigating Officer. As recited in the
said report, the throat of the victim of occurrence was found chopped
off. Her neck was barely connected with the trunk. The dupatta of the
deceased was found embedded in the large wound and all the five fingers
of her left hand had cut wounds. Her dead body was packed and sealed
in a bundle and sent for post-mortem. Although the scene at the site
of occurrence revealed that the Salwar (trouser) of the girl had been
untied and taken off down and she was found in the naked state and also
there were the signs of violence all around which indicated that a
ferocious attempt to commit rape on her was made, yet the Doctor found
that the girl had not been ravished.
6. The Investigating Officer prepared the site plan of the
occurrence. He collected ordinary and bloodstained earth from there
and packed them in separate boxes. The trampled wheat plants around
the dead body revealed a tale of violence. Both the chappals of the
deceased were also lying at a distance. After interrogating all the
relevant witnesses, collecting the relevant reports including the post-
mortem, the Investigating Officer accomplished the investigation and
submitted a charge-sheet against the accused appellant.
7. Lalit Kumar Yadav pleaded not guilty before the Trial Court and
denied all the incriminating allegations levelled against him. He,
however, admitted that he had been arrested by the police at 11.00 p.m.
on 23rd February, 2004, i.e. the date of occurrence.
8. The prosecution examined as many as ten witnesses in support of the
prosecution story. Ram Chandra Chaurasiya (PW-1) is the father of the
deceased. He proved his report and also testified that the accused-
appellant had teased the deceased girl a few days before the occurrence
and when Km.‘x’ complained about the incident of teasing to her cousin
Ashok Kumar, the latter had scolded the appellant. Unfortunately, Ashok
Kumar died subsequent to the occurrence. He also proved that the
police called a dog who after smelling the site of occurrence tracked
down to the house of the accused and caught him.
9. Ram Prakash Yadav (PW-2) was the witness to whom the appellant had
allegedly confessed about the commission of crime. He was, however,
declared hostile and it was suggested that he being a ‘Yadav’ had
helped the accused by retracting his earlier statement. He, however,
confirmed the fact of a sniffer dog being brought to the village by the
police.
10. Similarly, Ram Prakash (PW-3), S/o Jagannath turned hostile by
rejecting the suggestion of the prosecution that the accused-appellant
conveyed and confessed to him that he had killed the girl as she was a
girl of easy virtue.
11. Abdul Lais Khan (PW-4) is the handler of the German Shepherd Dog
known as ‘Raja’. The said dog was taken to the village in the late
evening on the date of occurrence. Shri Khan was then the Sub-
Inspector in the Crime Research Branch (Dog Squad), District Lucknow.
He testified that at about 8 p.m. on February 23, 2004, he was directed
by the Senior of Superintendent of Police, Lucknow to go to the site of
occurrence. Accordingly, he arrived there at 8.30 p.m. alongwith the
German shepherd dog named as ‘Raja’. He started the search work at 9
p.m., it being a night with dark all around, a patromax lantern was
lightened up near the dead body of the victim. He asked for
arrangement of more light which was provided by the Investigating
Officer and then he instructed the dog to smell the footprints of the
culprit around the dead body and then set the dog scot-free and asked
it to move. He alongwith the police personnel and other villagers
walked behind the dog. After walking about 1 k.m. the dog reached in
the village Gokulpur Aseni. It then traversed through the Khadanja
street. After tracking the street in front of 10-12 houses, the dog
entered into a thatched house, where two boys were resting on a wooden
cot. The dog barked at the accused Lalit Kumar who was identified by
Abdul Lais Khan in the Court as the same person, who was smelled by the
dog and whom it had attempted to pounce and catch hold. However, in the
meantime, the Station House Officer of Police Station Satrikh
apprehended Lalit Kumar. In nutshell, according to the evidence of this
witness, the accused was the offender whose footprints were there
around the dead body.
12. Head Constable Ram Prakash Shailesh (PW-5) had prepared the chik
report Ex.Ka.5 on the basis of Ram Chandra Chaurasiya’s written report
(Ext.Ka.1). He registered the case in the General Case Diary at
Sl.No.33 on 23rd February, 2004 and submitted its copy Ext.Ka.6.
13. Dr. Arun Chandra Dwivedi (PW-6) is the Doctor, who conducted the
post mortem of the victim’s corpse and prepared the autopsy report
(Ext.Ka.7). He proved the said report before the Trial Court and
testified that the neck of the deceased was almost severed from the
trunk with a namesake junction of the skin. He confirmed that it was
possible for the neck of the victim being severed by the sickle having
small teeth.
14. It is significant to note that Dr. Arun Chandra Dwivedi was
summoned by the High Court under Sections 367(1) and 391 of the Code of
Criminal Procedure with a view to ascertain as to whether the major
injury by which there was almost a severance of the neck from the trunk
could possibly be caused with the sickle (Mat.-Ex.8). High Court while
passing an order on July 13, 2005 expressed that something lacking so
far as the use of sickle was concerned. The doctor deposed in the
Court that the major incised wound found on the neck could have been
caused by the sharp edged ‘hansia’ (sickle) but it could not be asked
in the Trial Court as to whether this kind of injury could possibly be
caused by the aforesaid ‘hansia’ Mat.-Ext.8, which had teeth on its
blade. In common parlance such a ‘hansia’ curved in design is known as
‘Aaridar’ – means blade with teeth. Dr. Dwivedi appeared before the
High Court. The sealed bundle of the sickle was opened in the Court and
shown to Dr. Arun Chandra Dwivedi, who was then posted as Medical
Officer, District Hospital, Barabanki. He testified before the High
Court that the injuries shown in the post mortem report Ext.Ka.7 could
possibly be caused by the sickle Mat.-Ext.8. It was also stated by him
that the injuries in the fingers of the deceased could have been
sustained by the victim while defending herself.
15. Head-Constable Devtadeen (PW-7) took out on March 16, 2004 the two
sealed bundles of this case from ‘malkhana’ of the Police Station
Satrikh at 2.30 p.m. and after making an entry in the G.D. went to the
Court of Chief Judicial Magistrate, Barabanki and obtained a letter, a
copy addressed to the Chemical Examiner for examination of the
incriminating articles. Then on 17th March, 2004, he went to the
laboratory and deposited both bundles alognwith the letter in the
laboratory.
16. Constable Awadhesh Kumar (PW-8) proved that he carried the dead
body of the victim to the mortuary for autopsy.
17. Sriram (PW-9) is a relative of the informant Ram Chandra
Chaurasiya. He came to participate in the cremation of the latter’s
daughter. In the evening, the Investigating Officer met him and asked
him to accompany him to the accused-appellant’s house. He went there
along with other village men. The accused had taken all of them
including the Investigating Officer inside the house and took out the
sickle wrapped in a ‘polythene’ and his clothes namely Baniyan and
Gamchha. To depic this discovery, memo Ex.K.12 was prepared by the
Investigating Officer. This witness identified his signature on it.
18. Sub-Inspector Ashok Kumar Yadav (PW 10) is the Investigating
Officer of this case. According to his evidence, this case was
registered in his presence at the Satrikh Police Station. He then
reached at the site of occurrence at about 6.30 p.m., inspected the
site of occurrence, saw the dead body lying in the agricultural field
of Vishwanath, prepared the site-plan Ext.Ka.13 and then contacted his
higher authorities and asked for a Dog Squad. He sent his own police
jeep for bringing the dog. The Deputy Superintendent of Police Deena
Nath Dubey was also present at the site of occurrence. Abdul Lais
Khan, Sub-Inspector, incharge of the Dog arrived at the site of
occurrence long after the sunset and examined the site in the light of
patromax. Shri Khan instructed the dog to smell the entire site of
occurrence as also the dead body and then the said dog with the help of
the trail of the smell reached at the house of the accused, who was
lying on a ‘takhat’, i.e., the wooden cot. The dog barked at him. He
then interrogated the accused about his relationship with the deceased.
At 7 p.m. on the other day, he prepared the inquest report (Ext.Ka.4)
and interrogated other witnesses. The accused was then formally
arrested and he led to the recovery of the sickle (Mat.-Ext.8), his
Gamchha (Mat.-Ext.9) and Baniyan (Mat.-Ext.10). After completing other
formalities of interrogating the witnesses and collecting other
material exhibits, the Investigating Officer brought the accused and
the sealed bundles and boxes of the incriminating articles to the
police station. On having completed the task of investigation, this
witness submitted charge-sheet Ext.Ka.28 against the accused.
19. The defence of the appellant was that of denial. The appellant in
his statement under Section 313 Cr.P.C. stated the charges had been
wrongly framed and also denied all the incriminating allegations
levelled against him.
20. The prosecution relied upon four pieces of circumstantial evidence
first, Sniffer Dog- tracking evidence, the other is recovery of
sickle i.e. the weapon which was used by the appellant to cut the
neck of the girl, the third is the recovery of clothes of the
appellant and past conduct of the appellant pertaining to eve teasing
of the deceased girl.
21. Relying upon the prosecution case and the evidence led in support
thereof, the learned trial court held the accused-appellant guilty
under Sections 302 and 376 read with Section 511 of the I.P.C. and then
sentenced him to death for the offence under Section 302 I.P.C. and 5
years rigorous imprisonment for the offence under Section 376 read with
Section 511 of the IPC. The High Court on reference affirmed the death
sentence.
22. There is a suspicion on the veracity of the First Information
Report (Ext. Ka-1) with reference to its entry in the G.D. Report
(Ext.Ka-6). According to recital of the G.D. report (Ex.Ka.6) Ram
Chandra Chaurasiya himself submitted his written report at the police
station. The reference was made it to the testimony of Ram Chandra
Chaurasiya (PW-1), father of the victim who testified that he dictated
the report and got it sent to the police station. He however, could not
recollect the name of the villager who carried the said report. This
was the ground taken by the counsel for the appellant to raise
suspicion on the veracity of the first information report. As a
matter of fact, there is nothing inconsistent between the testimony of
the PW-1 and G.D. Report. The FIR (Ext.Ka.1) takes few facts.
Neither any accused was named in it nor there is any infirmity. A
perusal of the said report would reveal that the informant (PW-1)
mainly disclosed in it that his daughter Km.‘x’ aged about 18 years
had gone in search of her parents, was found dead in the agricultural
field of Vishwanath on 23rd February, 2004. It was also added that
some person incised her neck. A prayer for necessary action was
pressed into service. The occurrence came to the notice of informant
PW-1 after 4.00 p.m. and the written report was submitted at 6.10
p.m. on the same day at Satrikh Police Station, about 7 kms. from the
village. Looking to the gravity of the offence and shock of the
family members of the deceased, it cannot be said that there is delay
in reporting the matter to the police.
We, therefore, find that there is no inconsistency on the point
to act.
23. The second submission of the appellant is that Ram Chandra
Chaursiya (PW-1) is highly interested witness and his statement is not
corroborated by any other witness though available.
Ram Chandra Chaursiya (PW-1) disclosed that a few days before
the date of occurrence, accused teased his daughter and also
threatened her. Her daughter Km.‘x’ explained about the accused
misconduct to her cousin Ashok Kumar. Later, on having received the
complaint about the indecent behaviour of the accused, he scolded
him. Unfortunately, Ashok Kumar died subsequently but the evidence of
the victim’s father is quite convincing and worth to believe. In
fact in FIR he has not named the accused. Merely because PW-1 is the
father of the deceased victim girl, his evidence cannot be doubted on
that count in absence of any suspicion.
24. The next argument assails the testimony of Sriram (PW-9) on the
ground that he is related to the deceased. He fairly stated that he is
son-in-law of Ram Chandra’s cousin. He has come from Ibrahimpur village
of district Barabanki. He was the person who accompanied the police
party to the house of the accused. He has fully corroborated the
testimony of the Investigating Officer and testified that the accused
leading the police party and a few citizens including himself opened
the door of his house and had taken out the sickle lying below the cot.
He rejected the defence suggestion that the Investigating Officer had
pointed out towards the sickle; rather asserted that it was the accused
himself who had picked up the sickle and handed over to the
Investigating Officer. The accused unwrapped the sickle from the
‘polythene’ sheet. The Investigating Officer retained the sickle
alongwith polythene. There is slight variance on the point of time of
it being prepared. Whereas it is recited in the recovery memo that the
police party being led by the accused arrived at the accused house at
6.00 p.m., Sriram (PW-9) disclosed that it was about 7.00-7.30 p.m.
when the memo was prepared. It is the common experience that the
daylight continues even after sunset upto 20-25 minutes. The villagers
give approximate timing generally based on the position of the sun.
So, the possibility of the recovery memo being prepared in the daylight
at the time of the day meeting with night popularly called as ‘Dusk’ is
absolutely credible. The variance besides being insignificant is
justified, as after recovery, it would have taken some time for the
Investigating Officer to finish the job after completing all the
relevant formalities including examination of the weapon. The whole
recovery memo is found written in the handwriting of the Investigating
Officer. Therefore, in the time of its preparation has no adverse
bearing. Only because Sriram (PW-9) is being related to the deceased
there can be no reason to doubt the veracity of his testimony as his
presence in the village on 24.02.2004 is justified. On having heard
about Ram Chandra’s daughter death, in ordinary course being a relative
he came to express his condolence and participated in the cremation of
the girl. He cannot be stated to be chance witness. In fact nothing
could be extracted from his cross-examination, which might be given
indication of his being not a probable witness of the recovery of
sickle and recovery memo (Ext. Ka-12). We, therefore, find that his
presence in the village being most natural and probable, his evidence
is full of credit and acceptable.
25. The next contention made on behalf of the appellant was that
polythene in the Sickle wrapped and taken by Investigating Officer was
without any seal at the time of recovery. This contention is untenable
on the face of recovery memo itself. In the latter part of this memo
(Ext.Ka-12), description of the Sickle is given and then it is
recited in clear terms that it was sealed then and there in a packet
and recovery memo prepared.
The Investigating Officer (PW-10) has also stated that on
the statement of the accused, the sickle was recovered from his house
in presence of witness Sriram (PW-9) and also got recovered Gamchha
(Towel) and Baniyan of the accused. The recovery of the sickle which
was kept in the clothes under the Cot was made from the house of the
accused. The Investigating Officer has also stated that the sickle was
having bloodstains and after taking the sickle and bloodstained Gamchha
and Baniyan in custody he sealed the same.
26. The validity of recovery proceeding has been questioned by the
learned counsel for the appellant and submitted that the confessional
statement is not admissible under Sections 25 and 26 of the Indian
Evidence Act. However, Section 27 of the Indian Evidence Act,
provides as follows:
“27. How much of information received from accused may be
proved.- Provided that, when any fact is deposed to as
discovered in consequence of information received from a person
accused of any offence, in the custody of a police officer, so
much of such information, whether it amounts to a confession or
not as it relates distinctly to the fact thereby discovered, may
be proved.”

 
Therefore, in the light of aforesaid provisions, the statement of
accused so far as it relates to giving of information regarding the
hiding of the sickle and recovery of the same can be taken into account
to prove the truth of the incident and to prove the statements of other
witnesses which corroborated the same.
27. In Anter Singh v. State of Rajasthan, (2004) 10 SCC 657, this Court
noticed the scope and ambit of Section 27 of the Indian Evidence Act
and observed:
“16. The various requirements of the section can be summed up as
follows:
(1) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the
provision has nothing to do with the question of relevancy. The
relevancy of the fact discovered must be established according
to the prescriptions relating to relevancy of other evidence
connecting it with the crime in order to make the fact
discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some
information received from the accused and not by the accused’s
own act.
(4) The person giving the information must be accused of any
offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates
distinctly or strictly to the fact discovered can be proved. The
rest is inadmissible.”
28. In Pandurang Kalu Patil v. State of Maharashtra, (2002) 2 SCC 490,
this Court observed:
“5. Even the recent decision in State of Maharashtra v. Damu
(2000) 6 SCC 269 this Court followed Pulukuri Kottaya AIR 1947
PC 67 with approval. The fallacy committed by the Division
Bench as per the impugned judgment is possibly on account of
truncating the word “fact” in Section 27 of the Evidence Act
from the adjoining word “discovered”. The essence of Section 27
is that it was enacted as a proviso to the two preceding
sections (see Sections 25 and 26) which imposed a complete ban
on the admissibility of any confession made by an accused either
to the police or to anyone while the accused is in police
custody. The object of making a provision in Section 27 was to
permit a certain portion of the statement made by an accused to
a police officer admissible in evidence whether or not such
statement is confessional or non-confessional. Nonetheless, the
ban against admissibility would stand lifted if the statement
distinctly related to a discovery of fact. A fact can be
discovered by the police (investigating officer) pursuant to an
information elicited from the accused if such disclosure was
followed by one or more of a variety of causes. Recovery of an
object is only one such cause. Recovery, or even production of
object by itself need not necessarily result in discovery of a
fact. That is why Sir John Beaumont said in Pulukuri Kottaya AIR
1947 PC 67 (p. 70, para 10) that “it is fallacious to treat the
‘fact discovered’ within the section as equivalent to the object
produced”. The following sentence of the learned Law Lord in the
said decision, though terse, is eloquent in conveying the
message highlighting the pith of the ratio: (AIR p. 70, para 10)
“Information supplied by a person in custody that ‘I will
produce a knife concealed in the roof of my house’ does not lead
to the discovery of a knife; knives were discovered many years
ago. It leads to the discovery of the fact that a knife is
concealed in the house of the informant to his knowledge, and if
the knife is proved to have been used in the commission of the
offence, the fact discovered is very relevant.”
29. In Bodh Raj alias Bodha and others v. State of Jammu and Kashmir,
AIR 2002 SC 3164, it was held that a statement even by way of
confession made in police custody which distinctly relates to the facts
discovered is admissible in evidence against the accused. The
statement which is admissible under Section 27 is the one which is the
information leading to discovery. Thus what is admissible being the
information, same has to be proved and not the opinion formed on it by
the police officer. The exact information given by the accused while
in custody which led to the recovery of the article has to be proved;
the exact information must be adduced through evidence.
30. In the present case the recovery of ‘Gamchha’ and ‘Baniyan’ at the
instance of the accused from the underneath the Takhat (Cot) is an
important factor that connects the accused with the crime. According
to the report of the chemical examiner and serologist, blood was also
found on the said ‘Gamchha’ and ‘Baniyan’ belonging to the accused.
This leads to the conclusion that at the time of committing murder the
accused was wearing the ‘Gamchha’ and ‘Baniyan’ and thereafter he
concealed them underneath the Takhat.
Therefore, the aforesaid contention raised on behalf of the
appellant that the alleged recovery of clothes i.e. Gamchha and Baniyan
do not satisfy the mandate of Section 27 of the Indian Evidence Act
cannot be sustained.
31. It was lastly urged on behalf of the appellant that identification
of accused by sniffer dog cannot be relied upon as it is not admissible
in order to prove the guilt of the appellant.
Similar contention was raised in Abdul Rajak Murtaja
Dafedar v. State of Maharashtra, (1969) 2 SCC 234, wherein this Court
opined “that in the present state of scientific knowledge evidence of
dog tracking, even if admissible, is not ordinarily of much weight.”
32. In Gade Lakshmi Mangaraju alias Ramesh v. State of A.P., (2001) 6
SCC 205, this Court noticed the criticism advanced against the
reception of evidence pertaining to sniffer dog. The objection was
that the life and liberty of human being should not be made to depend
on animals sensibilities and that the possibility of a dog misjudging
the smell or mistaking the track cannot be ruled out, for many a time
such mistakes have happened. In the said case, this Court relying
decision in Abdul Rajak Murtaja Dafedar (supra) case held:
“17. We are of the view that criminal courts need not bother
much about the evidence based on sniffer dogs due to the
inherent frailties adumbrated above, although we cannot
disapprove the investigating agency employing such sniffer dogs
for helping the investigation to track down criminals.”
33. In Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697, while the
same question was considered, referring to Gade Lakshmi Mangaraju
(supra) case this Court held “the law in this behalf, therefore, is
settled that while the services of a sniffer dog may be taken for the
purpose of investigation, its faculties cannot be taken as evidence for
the purpose of establishing the guilt of an accused.”
34. In the present case, the services of a sniffer dog was taken for
investigation. The said dog traced the accused and he was formally
arrested in the evening of the next day. The Investigating Officer,
Ashok Kumar Yadav (PW-10) corroborated the evidence of Abdul Lais Khan
(PW-4) to the effect that ‘Raja’ sniffer dog after picking up scent
from the place of occurrence tracked down the house of the accused.
What is relevant to note is that the accused has not been convicted on
the ground that the sniffer dog tracked down the house of the accused
and barked at him. The evidence of dog tracking only shows how the
accused was arrested. The Trial Court and the Appellate Court noticed
the motive of the accused. Ram Chandra Chaurasiya (PW-1) disclosed in
his evidence that a few days before the date of occurrence, the accused
has teased his daughter and also threatened her. Her daughter Km.‘x’
complained about the misconduct of the accused to her cousin Ashok
Kumar and the latter admonished the accused for the same. Ashok Kumar
died subsequently but the evidence of the girl’s father is quite
convincing and worthy of credit. The aforesaid incident clearly
reflects upon the motive of the accused.
The prosecution has brought on record evidence as to string of her
trouser was found untied and the trouser had been taken down. She was
lying naked when found dead. The scene at the site of occurrence
indicates that the trouser of the deceased had been taken down with a
view to outrage her modesty. A portion of her dupatta were found
thrust in her mouth so as to gag her. The other part of the dupatta
was found in the incised wound on the neck so as to soak blood. The
pair of the chappals of the deceased was lying at a distance. The
wheat plants were noticed to be trampled which indicates violence and a
scuffle between the victim and the assailant. The episode of eve
teasing of the girl indicates that the accused wanted sex with her and
it was in this background that he made a forcible attempt to rape her.
It appears that the girl was bold and brave and she resisted the
accused forceful attempt which enraged and provoked the accused to
eventually commit the heinous act.
Since there is no direct evidence to prove the guilt of the
accused the Trial Court and the Appellate Court considered the
circumstances which led towards the accused. Admittedly, nobody was
named in the FIR but referring to the incident that Km.‘x’ was murdered
the FIR was lodged. Since nobody was named in the FIR the
Investigating Officer took the help of the dog squad and the dog
handler Abdul Lais Khan (PW-4) came with the dog. Dog tracking
proceeding was done and the dog tracked the accused. The said fact is
not disputed. The accused who was then taken into custody gave
statement regarding commission of crime. Though the statement is not
admissible, at his instance the sickle as well as blood stained cloths
were recovered. The report proved that the sickle was blood stained.
The Doctor has given statement that the injury caused upon the victim
could have been caused by the weapon so recovered which establish that
the said weapon was used in committing the murder. Ram Chandra
Chaurasiya (PW-1) father of the victim had given statement that earlier
also the accused eve-teased his daughter Km.‘x’ for which his nephew
Ashok Kumar scolded accused. Ram Prakash (PW-3) although turned
hostile had made statement that accused had confessed to him that since
the girl has refused sexual relationship with him he had murdered her.
Though such statement cannot be relied upon independently to hold the
accused guilty, other chain of evidence reaches to only one conclusion
i.e. against the accused. Recovery of handkerchief from the place of
murder, with the mark of “Heart” and inscription of the words “I Love
You”, establishes that some person were closed to her. The position
of her cloth of the lower body “salwar” establish that the person tried
to have sex with the girl and the injuries on the fingers of the girl
also established that she protested somehow. These circumstances also
lead to the conclusion that the person who could not succeed in outrage
the modesty of the girl, murdered her. There is no other evidence
contrary to it. Further, there is no evidence to suggest that the
father of the deceased had any enmity or grudge with anyone who may be
suspected to have committed the murder. All these circumstances proved
that it is nobody else but the accused who attempted to commit rape and
murdered the deceased Km.‘x’.
35. On the point of awarding death sentence, a Constitution Bench of
this Court in Bachan Singh v. State of Punjab (1980), 2 SCC 684 observed:
“206. Dr Chitale has suggested these mitigating factors:
“Mitigating circumstances.—In the exercise of its discretion in
the above cases, the court shall take into account the following
circumstances:
(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 w
ould 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.
207. We will do no more than to say that these are undoubtedly
relevant circumstances and must be given great weight in the
determination of sentence………”
36. In Machhi Singh v. State of Punjab, (1983) 3 SCC 470, this Court
discussed the circumstances in which the death sentence can be awarded
and summarised the guidelines indicated in Bachan Singh(Supra) as under
“38. In this background the guidelines indicated in Bachan Singh
case will have to be culled out and applied to the facts of each
individual case where the question of imposing of death sentence
arises. The following propositions emerge from Bachan Singh
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.”
37. The nature, motive, impact of a crime, culpability, quality of
evidence, socio-economic circumstances, impossibility of rehabilitation are
the factors which the court may take into consideration while dealing with
such cases as was spelt out in Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra, (2009) 6 SCC 498.
38. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 4 SCC 220,
while affirming award of death sentence by the High Court, this Court
noticed the rising crime rate in recent years particularly violent crime
against women. In the said case, this Court reiterated the principle that
it is not possible to lay down any cut and dry formula relating to
imposition of sentence but the object of sentencing should be to see that
crime does not go unpunished and the victim of the crime, as also the
society, has the satisfaction that justice has been done. The said case
concerned with the rape and murder of an 18 year old girl by a security
guard of the flat where she lived. The Court found it to be a fit case
for imposition of capital punishment.
39. This Court in many cases such as Atbir v. Govt. of NCT of Delhi,
(2010) 9 SCC 1, case confirmed the death sentence awarded by the trial
Court as affirmed by the High Court for different reasons after applying
the principles enunciated in the judgments referred to above.
40. In Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC
546, this Court noticed aggravating circumstances (crime test) – mitigating
circumstances- (criminal test) and rarest of rare case – (R-R test) and
observed:
“52. Aggravating circumstances as pointed out above, of course,
are not exhaustive so also the mitigating circumstances. In my
considered view, the tests that we have to apply, while awarding
death sentence are “crime test”, “criminal test” and the “R-R
test” and not the “balancing test”. To award death sentence, the
“crime test” has to be fully satisfied, that is, 100% and
“criminal test” 0%, that is, no mitigating circumstance
favouring the accused. If there is any circumstance favouring
the accused, like lack of intention to commit the crime,
possibility of reformation, young age of the accused, not a
menace to the society, no previous track record, etc. the
“criminal test” may favour the accused to avoid the capital
punishment. Even if both the tests are satisfied, that is, the
aggravating circumstances to the fullest extent and no
mitigating circumstances favouring the accused, still we have to
apply finally the rarest of the rare case test (R-R test). R-R
test depends upon the perception of the society that is “society-
centric” and not “Judge-centric”, that is, whether the society
will approve the awarding of death sentence to certain types of
crimes or not. While applying that test, the court has to look
into variety of factors like society’s abhorrence, extreme
indignation and antipathy to certain types of crimes like sexual
assault and murder of intellectually challenged minor girls,
suffering from physical disability, old and infirm women with
those disabilities, etc. Examples are only illustrative and not
exhaustive. The courts award death sentence since situation
demands so, due to constitutional compulsion, reflected by the
will of the people and not the will of the Judges.”
41. This Court in Ramnaresh and others v. State of Chhattisgarh, (2012)
4 SCC 257, applying the various principles to the facts of the said case
and taking into consideration the age of the accused, possibility of the
death of the deceased occurring accidently and the possibility of the
accused reforming themselves held that the accused cannot be termed as
social menace and commuted the sentence of death to that of life
imprisonment (21 years).
42. In the present case, on the question of quantum of sentence the
argument raised on behalf of the appellant is that the accused was young at
the time of commission of offence i.e. 21 years of age, that he had no
intention to kill the deceased and there is no past criminal antecedent.
43. On the other hand, learned counsel for the state contended that it
was a heinous crime and the case of the appellant is similar like the case
of Dhananjoy Chatterjee (supra).
44. We have noticed the case of Dhananjoy Chatterjee (supra). In the
said case accused was a security guard and was responsible for providing
security to the residents of the flats. Instead of that he used to tease a
young girl child of one of the lady residents. On the complaint of the
lady resident, he was transferred. To avenge the same he went up to the
flat of the lady and committed rape on her daughter and then murdered her
brutally. That was a case where the protector of residents becomes the
offender.
45. The case of the appellant is not similar. The Trial Court and the
High Court wrongly held that the case of the appellant is similar to that
of Dhananjoy Chatterjee.
46. In the present case, the circumstantial evidence comes to only one
conclusion that appellant attempted to commit rape and because of
resistance he committed the murder of the deceased. The appellant was aged
about 21 years at the time of offence. Initially when the matter for
confirmation of death sentence was heard by the two learned Judges of the
High Court there was a divided opinion, one Judge confirmed the death
sentence while the other acquitted the appellant. It is the other Bench
which affirmed the death sentence. It is not the case of the Prosecution
that the appellant cannot be reformed. In fact the possibility of his
reformation cannot be ruled out. There is no criminal antecedent of the
appellant. The Court has to consider different parameters as laid down in
Bachan Singh (supra) followed by Machhi Singh (supra) and balance the
mitigating circumstances against the need for imposition of capital
punishment.
47. While we apply the various principles to the facts of the present
case, we are of the opinion that considering the age of the accused, the
possibility of reforming him cannot be ruled out. He cannot be termed as
social menace. Further, the case does not fall under the “rarest of rare”
category. We, therefore, are unable to uphold the death sentence.
48. For the reasons aforesaid we are commuting the death sentence of
accused-Lalit Kumar Yadav alias Kuri to that of life imprisonment but
affirm the rest part of the conviction and sentence. The appeal is partly
allowed only with regard to the quantum of sentence.
……………………………………………….J.
(A.K. PATNAIK )

 
……………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
APRIL 25, 2014.
ITEM NO.1A COURT NO.10 SECTION II
(For Judgment)

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 1022 OF 2006
LALIT KUMAR YADAV @ KURI Appellant (s)

VERSUS

STATE OF U.P. Respondent(s)

Date: 25/04/2014 These Appeals were called on for pronouncement of
judgment today.

CORAM :
HON’BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA
HON’BLE MR. JUSTICE R.K. AGRAWAL
For Appellant(s) Mr. Pranesh,Adv.
For Respondent(s) Mr. Gaurav Dhingra,Adv.

 

Hon’ble Mr. Justice Sudhansu Jyoti Mukhopadhaya pronounced the
reportable judgment of the Bench comprising Hon’ble Mr. Justice A.K.
Patnaik and His Lordship.
The appeal ____ in terms of the signed reportable judgment
[RAJNI MUKHI] [USHA SHARMA]
SR. P.A. COURT MASTER

(Signed reportable judgment is placed on the file)

 

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