Allahabad High Court
Anil (In Jail) vs State Of U.P. on 22 February, 2002
Equivalent citations: 2002CRILJ2694
Author: J.C. Gupta
Bench: J.C. Gupta, Imtiyaz Murtaza
JUDGMENT J.C. Gupta, J.
1. On being found guilty under Section 302 read with Section 34 I.P.C., the appellant Anil alias Teetu has been sentenced to death by the judgment dated 21-10-2000 passed by Sri J.S.P. Singh, Additional Sessions Judge, Bulandshahr in Sessions Trial No. 927/ 1993, Appellant has been further convicted and sentenced to imprisonment for life under Section 364 I.P.C. and also to two years R.I. under Section 201 I.P.C. All the sentences have been ordered to run concurrently.
2. Learned Sessions Judge has also made a reference to this Court for confirmation of death sentence awarded on the appellant.
3. Deceased of this case, Nirvikar aged about 18 years, was the son of complainant P.W. 1 Bhopal Singh. He was related to accused Anil alias Teetu in as much as maternal grand mother of the appellant and mother of complainant Bhopal Singh were real sisters. Anil alias Teetu was running a merchandise shop in front of the house of Bhopal Singh. As per the prosecution case that anti-social elements used to gather at the shop of accused Anil and they used to tease girls causing displeasure and annoyance to the inhabitants of the locality. They complained of this to Bhopal Singh and his son Nirvikar, who was thick and close to appellant. Nirvikar tried to persuade Anil not to permit eve-teasers to sit on his shop but the appellant did not pay any heed. About fifteen days before the incident in question even a quarrel took place between appellant and deceased on this issue and abuses were also exchanged Nirvikar deceased however succeeded in getting the shop of the accused closed. Accused Anil is then alleged to have given threat to Nirvikar saying that he would open the shop only when he succeeded in taking revenge of his insult. The exact words which he uttered were "Aab dukan tabhi kholunga Jab tujh ko bhugat loonga." It is further alleged by the prosecution that with some ulterior designs appellant developed psuedo-friendship with the deceased and started visiting him again.
4. On 3-7-93 Bhopal Singh P.W. 1, his wife Smt. Virmi, son Vivek P.W. 2 and Nirvikar deceased were watching Television inside their house when at about 8.30 p.m. accused Anil came there and asked the deceased to accompany him to see a movie in the Udai Palace theatre Nirvikar left the house and went with the accused-appellant. When he did not return till 1.30 in the night, Bhopal Singh got worried. He went to the house of maternal grand mother of accused but neither his son Nirvikar was found there nor the accused-appellant. Bhopal Singh suspected some foul play at the hands of appellant. He himself wrote the report Ex.Ka. 1 and lodged the same at the police station Kotwali Nagar in the same night at 2.30 a.m. Inspector Jai Chand Singh P.W. 7 was posted at Police Station Kotwali. He was present at the police station when case on the written report of Bhopal Singh was registered under Section 364 I.P.C. He took up the investigation and recorded statements of Bhopal Singh, Satya Pal Singh, Surajbhan Singh, Head Moharrir Sahdeo Sharma, Udai Bhan Singh, Smt. Birmi, Km. Monika and Vivek. He also made inspection of the house of the deceased and prepared site plan Ex. Ka-8. While the investigating officer was busy with the investigation and was present near the 'All Saints School' he got information that accused-appellant Anil alias Teetu was standing near the railway crossing, Sikandrabad, waiting to board some vehicle. On this information he alongwith the informer and police force came near the railway crossing and arrested accused Anil at about 11.30 a.m. Accused under arrest was brought to police station and lodged in the lock up through G.D. No. 29 at 12.05 noon. It is alleged that appellant was the interrogated and during interrogation complicity of accused came to be known. Accused-appellant admitted to have himself concealed the severed head and beheaded body of deceased Nirvikar and assured to get them recovered. Accused was then taken out of the lock up and was asked to lead the police to that place where chopped head and headless body were lying concealed. Entry of departure was made in the General Diary at serial No. 31 at 12.30 p.m. whose copy has been proved as Ex. Ka-10. A gist of the statement made by the accused during his interrogation by the investigating officer was recorded in this general diary entry and case was converted under Section 302/201 I.P.C. from Section 364 I.P.C. Anil took the police party to Sihana Road and when they reached near the grove of Bhagwan Singh, the accused got the police Jeep stopped. Witnesses were collected and then the accused proceeded on foot and led the police party and witnesses to the grove of Haji Farooq, resident of Imalia. Inside the said grove, the accused stopped near a mango tree and told that the chopped head of deceased Nirvikar has been concealed by him under that tree. The investigating officer arranged for a 'spade'. Accused-appellant then dug out earth with the heip of spade and took out a chopped head which was identified by Bhopal Singh as that of his son Nirvikar, who in the mean time on coming to know of the arrest of appellant had reached the police station and had accompanied the police party up to the place of recovery. Memo of recovered chopped head Ext. Ka 2 was prepared on the spot. This recovery was made at about 2 P.M. Thereafter accused-appellant took the police party and witnesses to another mango tree in the same grove and pointed out the place by saying that he had concealed the headless body of deceased Nirvikar there. He then took out the beheaded body after removing earth with the help of spade. This recovery was made at about 2.30 p.m. in the presence of Bhopal Singh and other witnesses. Its memo is Ex. Ka.3. The investigating officer collected samples of blood- stained and plain earth from both the places from where chopped head and headless body of deceased. Nirvikar respectively were got recovered by accused-appellant. On the direction of the investigating officer, Sub-inspector Raj Kumar Dwivedi held inquest and then both the head and headless body were dispatched under seal to the Chief Medical Officer, Bulands-hahr for post mortem examination. The investigating officer also prepared site plan Ex. Ka-13 of the places from where the aforesaid recoveries were made.
5. It is alleged that while accused was still in police custody, he also promised to get recovered handkerchief of deceased, pouch of country-made-liquor etc. from the kothri of tubewell of co-accused Brijpal. He further disclosed to the investigating officer that the wearing apparels etc. of the deceased were taken away by co-accused Brijpal. The accused-appellant took the police party to the tubewell of Brijpal which was locked from outside. Accused himself took out keys from a concealed place and after opening the lock, he got recovered one towel type handkerchief of the deceased. The investigating officer also collected four pouches of liquor and took into possession blood- stained piece of string of dot through memo Ex. Ka-4. The investigating officer prepared site-plan Ex. Ka-14. and then brought the accused back to police station and lodged him there at 11.45 p.m. along with the recovered articles through G.D. No. 52. The investigating officer then made a search of accused Brijpal but he was not found later he came to know that accused Brijpal has surrendered in the Court of 1st A.C.J.M. On 26-7-93 he recorded the statement of co-accused Brijpal in the district Jail, Bulandshahr. On interrogation the accused Brijpal made a disclosure statement that he would get the cloths etc. of deceased recovered. Thereafter on 4-8-93 accused Brijpal was taken on police remand for 24 hours. Accused Brijpal and the police party along with witnesses reached Mausamgarh police station Kotwali Dehat. Bulandshahr where Brijpal got recovered one wrist watch H.M.T., one undershirt, one shirt, one pant and a pair of Chappals from the heap of Straw kept in the south of his tubewell. All these articles were of deceased Nirvikar. Recovery memo Ex. Ka-26 was prepared and then accused Brijpal was taken back to Jail. The identification parade of the articles recovered on the pointing out of Brijpal was conducted by P.W. 5 Sri R.C. Jatav, the then Special Executive Magistrate, Bulandshahr wherein Bhopal Singh, Smt. Virmi, Km. Monika and Vivek correctly identified the articles as those of deceased whereas witness Satya Pal identified all the articles except the undershirt, on completion of investigation, the investigating officer submitted charge sheet Ex. Ka-28 against both the accused.
6. The post mortem examination of the head and headless body were conducted by P.W.4 Dr. R.C. Saxena on 4-7-93. According to him the deceased was aged about 18 years and about one day had elapsed between the death of the deceased and the postmortem examination Rigor Mortas was found absent. Following ante-mortem injuries were found on the chopped head of deceased:
1. Lacerated wound 2 cm x 1 cm x bone deep on the left side of head 8 cm above the ear.
2. Lacerated wound 1 cm x 1 cm x bone deep on the left side of head. 5 cm above the left ear.
3. Lacerated wound 1.5 cm x 1/2 cm through and through on the upper half part of pinna of left ear.
4. Incised wound 8 cm x 3 cm x brain deep on back of right side of head. 3 cm away from right ear obliquely placed running down of head.
5. Incised wound 17 cm x 11 cm through and through at the level of cervical three vertebra in the upper part.
7. On internal examination the parietal and occipital bones were found fractured. Membranes were lacerated and cut in the opinion of the doctor death of deceased was caused due to shock and haemorrhage as a result of ante-mortem injuries.
8. The same doctor also examined the headless body of Nirvikar and he was of the opinion that the age of deceased was about 18 years and about one day had elapsed between the death and time of post mortem examination. The doctor found following ante-mortern injuries on the body of the deceased.
1. Incised wound 14 cm x 12 cm x through and through on the reck at the level of cervical three vertebra.
2. Incised wound 8 cm x 2 cm x bone deep on the neck. 2 cm below injury No. l.
3. Abrasion 3 cm x 2 cm on the right side scabular region.
9. In the internal examination a cut was found at the level of C-3 vertebra. All the big blood vessels were also found cut. One ounce of fluid material in the stomach was found. The doctor opined that death of deceased was caused as a result of ante-mortem injuries. in has deposition before the trial Court. Dr. R.C. Saxena P.W. 4 was very specific in saying that the chopped head and headless body were bisected parts of one and the same person.
10. Before the trial Court prosecution produced eight witnesses in all, namely. P.W. 1 Bhopal Singh P.W. 2 Vivek P.W.3 Mahesh, P.W.4 Dr. R.C. Saxena, P.W.5 Sri R.C. Jatav Special Magistrate, P.W.6 Constable Chandra Shekhar, P.W.7 Inspector Jai Chand Singh, the investigation officer and P.W.8 Constable Om Prakash.
11. Out of the witnesses examined, P.W. 1 Bhopal Singh is the first informant. He is a witness of motive, the evidence of last seen and of recovery of head, headless body, and handkerchief of the deceased which are alleged to have been got recovered by the accused-appellant.
12. P.W.2 Vivek is Bhopal Singh's son. He is a witness of motive and last seen. P.W. 3 Mahesh was a witness of recovery of articles which according to the prosecution case were got recovered by co-accused Brijpal. P.W.4 Dr. R.C.Saxena conducted post mortem examination of the head and headless body of deceased and has proved Post Mortem reports as Ex. Ka. 5 and Ka 6 P.W. 5 Sri R.C. Jatav, Special Executive Magistrate had conducted identification parade of articles alleged to have been recovered on the pointing out of accused Brijpal P.W.6 Constable Chandra Shekhar is a formal witness as he carried the sealed bundles to the identification parade P.W. 7 Jai Chand Singh is the investigating officer. While narrating the prosecution case we have already mentioned the relevant facts as were deposed by this witness; P.W.8 Constable Om Prakash is also a formal witness who proved the check F.I.R. and the various entries made in the General Diary.
13. Accused Anil alias Teetu in his statement recorded under Section 313 Cr.P.C. admitted that his maternal grand-mother and the mother of first informant Bhopal Singh were real sisters. He however denied other prosecution allegations. According to him he was arrested by Police from his house on 4-7-93 at about 4 p.m. and he has been challaned falsely. He further stated that Bhopal Singh and Vivek have cooked up this case as they intended to usurp the property of his maternal grand mother. He further stated that Bhopal Singh has two brothers Brahmpal and Satya Pal. Brahmpal was murdered due to a property dispute and Bhopal Singh disowned him as his brother. Km. Monika was not liked by Bhopal Singh on account of her habits and she was also murdered but none of her family members was ready to give false evidence. Vivek being the only son of complainant has given false evidence with a view to claim the property of complainant and on 9-12-93 he fired on Bhopal Singh. He further denied to be familiar with accused Brijpal. in defence accused examined Constable Balvir Singh as D.W.I and D.W.2 Constable Bhopal whose evidence has no relevance.
14. On examination of evidence on record the learned Sessions Judge has found that the prosecution case against the appellant has been proved beyond reasonable doubt and treating the case to be rarest of rare cases, the trial judge has awarded on the appellant extreme penalty of death, but co-accused Brijpal has been acquitted as case against him has been found to be not free from doubt.
15. We have heard Sri A.D.Giri, Senior Advocate for the appellant and Sri R.K.Singh learned A.G.A. for the State.
16. Learned counsel for the appellant submitted before us that the circumstances from which conclusion of guilt of accused-appellant was sought to be drawn by prosecution have not been established beyond reasonable doubt and further that the circumstances on which reliance has been placed are not conclusive in nature and the chain of evidence has remained incomplete in as much as every hypothesis consistent with the innocence of accused-appellant has not been excluded. It was further argued that factum of arrest of appellant at 11.30 a.m. is highly doubtful and on account of non-production of public witnesses who are alleged to be present at the time of alleged recovery, the evidence of recovery of head and headless body should not be accepted as reliable. It was further argued that the evidence of recovery cannot be treated as incriminating against the accused-appellant because of the absence of conclusive evidence of the authorship of concealment and could utmost justify the conclusion that the accused had the knowledge of the places where the beheaded dead body had been buried and bot that he himself concealed the two parts of the dead body. As such that circumstance being consistent with many hypothesis cannot lead to the only conclusion that the accused committed the murder.
17. Per contra, the learned A.G.A. supported the judgment of the trial Court and argued that the proved circumstances which have emerged out in this case are so clinching that no other reasonable view is possible excepting to hold the appellant guilty.
18. Undisputedly there is no direct evidence of the commission of murder of deceased Nirvikar at the hands of appellant and the prosecution case entirely rested upon circumstantial evidence. It will be appropriate to summarize the circumstances relied upon by the prosecution so that examination thereof becomes pertinent, Pin pointed and confined within narrow limits. The circumstances are as follows:
(1) Motive;
(2) Evidence of last seen;
(3) Absence of accused-appellant from his house in the midnight when first informant went in search of his deceased son;
(4) Evidence of recovery of head and beheaded body of deceased Nirvikar in pursuance of disclosure statement made by the accused under Section 27 of the Evidence Act;
(5) Recovery of incriminating articles such as Chappals and handkerchief of deceased in pursuance of disclosure statement made by accused-appellant under Section 27 of the Evidence Act;
19. Finding the above circumstances established, the learned Sessions Judge was of the opinion that no other view was possible except that the appellant was guilty of committing the murder of deceased Nirvikar.
20. As the prosecution case entirely rests on circumstantial evidence, the principles governing the appreciation of evidence in such cases have to be kept in mind.
21. The Apex Court in the case of S.G. Dixit v. State of Maharashtra 1981 Cri App R. (SC) 51 (54): AIR 1981 SC 765 at 767 held that first of all it is necessary to find out whether the circumstances on which the prosecution relies are established by satisfactory evidence, often described as "clear and cogent" and secondly, whether the circumstances are of such a nature as to exclude every other hypothesis save the one that the accused is guilty of the offence of which he is charged. in other words, the circumstances have to be of such a nature as to be consistent with the sole hypothesis that the accused is guilty of the crime imputed to him.
22. In the celebrated case of Sharad Birdhi Chand Sarda v. State of Maharashtra AIR 1984 SC 1622, the Hon'ble Supreme Court has pointed out five golden principles constituting of the proof of a case based on circumstantial evidence. They are:
(1) the circumstances from which conclusion of guilt is to be drawn should be fully established, i.e. the circumstances concerned 'must' or 'should' and not 'may be' established. There is not only a grammatical but a legal distinction between.'may be proved' and 'must be or should be proved' as was held in Shiviji Sahatrao Bobade v. State of Maharashtra, (1973)1 SCC 793: AIR 1973 SC 2622;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explanable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused;
23. In G.V.Raju v. State of Andhra Pradesh 1994 JIC 16(21):1993 AIR SCW 3308 at 3316 a note of caution was given by the Apex Court that while dealing with the cases resting upon circumstantial evidence alone, there is always a danger that conjecture or suspicion may take the place of proof. Gravity of offence cannot by itself over weigh so far as legal proof is concerned. When the main link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts, It is at this juncture, the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainly, and legal proof,
24. In a, recent decision in V.C. Rao v. Ponna Satyanarayana 2000(41) All Cri 210 C (211): AIR 2000 SC 2138, it was held that the cumulative effect of the proved circumstances must be such as to negate the innocence of the accused and to bring home the offender beyond any reasonable doubt.
25. In another decision in Gade Lakshmi Mangraju alias Ramesh v. State of Andhra Pradesh (2001) 5 JT (SC) 340: AIR 2001 SC 2677, the Apex Court has laid down that one circumstance by itself may not unerringly point to the guilt of the accused. To acquit the accused on that basis is not a safe method for appreciating a case based on circumstantial evidence. It is cumulative result of all the circumstances alleged and proved, which matters. It is not open to cull out one circumstance from the rest for the purpose of giving a different meaning to it.
26. Bearing all these in mind, we now proceed to examine the evidence on record to find out whether the circumstances relied upon by the prosecution have been established by cogent, succinct and reliable evidence and secondly whether the circumstances so established are such as cannot be explained on any hypothesis except the guilt of the accused and whether the proved circumstances provide a complete chain and unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence.
Motive
27. Accused appellant was closely related to deceased Nirvikar as the mother of P. W. 1 Bhopal Singh (father of deceased Nirvikar) was real sister of grand-mother of the appellant. This relationship is not disputed. There is also no dispute that appellant was running a mercandise shop in front of the house of Bhopal Singh P.W. 1 in Mohalia Bhud of Bulandshahr town. As per prosecution case anti-social elements and eve-teasers used to assemble at the shop of appellant Anil which was to the disliking and displeasure of inhabitants of the locality. Deceased Nirvikar tried to persuade the appellant to stop gathering of eve-teasers at his shop but appellant did not listen. On this issue, about fifteen days before the occurrence in question there had occurred quarrel between deceased Nirvikar and appellant Anil and abuses were also exchanged between them. However appellant had to succumb to the pressure exerted by the deceased and his family members and he had to close his shop. Since the deceased had taken a leading part in getting his shop closed, appellant examined that he would take revenge of his insult and would open the shop only when he succeeded. About 4-5 days before the present occurrence the appellant with ulterior designs again developed pseudo-friendly relations with the deceased and started visiting him so as to regain his confidence.
28. In order to prove the motive, prosecution examined P.W. 1 Bhopal Singh and P.W. 2 Vivek. They are father and brother of the deceased respectively. Bhopal Singh in his statement before the trial Court gave out that Anil alias Teetu was running a general merchant shop in front of his house. Hoolings and persons of bad character used to assemble at the shop and tease girls of the locality frequently. He and his sons scolded the appellant and asked him not to allow such persons to sit at his shop. On this issue some altercation had also taken place between them. Nirvikar-deceased succeeded in getting the shop of the accused-appellant closed. Appellant thereafter threatened Nirvikar deceased, before this witness, P.W. 2 Vivek and other residents of the locality saying, "Aab dukan tabhi kholunga jab tumko bhogat loonga". P.W.2 Vivek also stated similar facts. He further added that inhabitants of the locality complained against the unsavoury behaviour of accused and his friends. He also stated of the threat extended to the deceased by the appellant. There is nothing in their cross examination to discredit them. This motive also finds mention in the first information report lodged by P.W. 1 Bhopal Singh in the night of occurrence itself. The motive as alleged by the prosecution thus stands proved.
29. It was contended by the appellant's counsel that the motive as alleged by the prosecution was not so strong as to have prompted or excited the appellant to liquidate Nirvikar, his own close relative. According to his submission the alleged motive is wholly insufficient and inadequate and in a case based upon circumstantial evidence it was the duty of the prosecution to have established by clear and cogent evidence that the appellant had a strong motive and animus against the deceased to commit his murder. Failure to do so will have a telling effect on the credibility of the prosecution case.
30. No doubt it is true that every criminal act is done with a motive but its corollary is not that no criminal offence could be said to have been committed if the prosecution fails to prove the exact and precise motive of the accused to commit the offence, for the simple reason that one cannot normally see into the mind of another. Motive for doing a criminal act is generally a difficult area for the prosecution and it is not possible for the prosecution in each and every case to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. Motive is the emotion which impels man to do a particular act. While appreciating the evidence Courts must keep in mind the realities of life. The Courts-cannot ignore the erosion in the values of human life which have become a common feature of the present time people are not afraid now in committing heinous crimes like murder, even on small and trivial matters. Lord Chief Justice Campbell struck a note of caution in R. v. Palmer, (Shorthand report) at page 308 SCC May 1858 in following words:--
But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal Courts that atrocious crimes of this sort have been committed from very stint motives, not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.
31. In the case of Subedar Tiwari v. State of U.P. 1989 SCC (Cri) 218: AIR 1989 SC 733 it was held that the evidence regarding existence of motive which operates in the mind of an assassin is very often not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin only and to no one else.
32. The absence of motive or inadequacy of motive Cannot always adversely affect the prosecution case as various persons react differently in similar circumstances.
33. Thus it is clear that though every criminal act is done with a motive but it is unsound to suggest that no such criminal act can be presumed unless motive is proved. Motive is a psychological phenomenon, The mere fact that the prosecution is not able to translate that mental, disposition of the accused into evidence will not mean that no such mental condition existed in the mind of the accused at the time of commission of offence, where prosecution succeeds in pointing out possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the accused to such a degree as to impel him to commit the offence cannot be construed as fatal to the prosecution.
34. In the instant case both P.W. 1 and P.W.2 have categorically stated in clear words that bad elements used to sit at appellant's shop and used to tease girls of the locality which caused discomfort, anger and annoyance amongst the inhabitants. Complaints were made by them to Bhopal Singh and his sons Nirvikar and Vivek, may be for the reason that Bhopal Singh is closely related to the appellant who was running shop in front of house of Bhopal Singh. It has also come in evidence that Nirvikar first tried to persuade appellant and when no heed was paid by the accused, he even had a quarrel with the appellant and too leading role in getting appellant's shop closed. The appellant who like Nirvikar was in his full youth, openly extended a threat to the deceased and exclaimed that he would open his shop only when he succeeded in taking revenge. The prosecution has thus succeeded in showing that there was some ire or ill will for the accused towards Nirvikar deceased.
35. Therefore, the first circumstance relied upon by the prosecution in our opinion has been established beyond any reasonable doubt.
Evidence of last seen
36. As per prosecution case the appellant and deceased were closely related with each other. This relationship is admitted to the accused. It is alleged that though relations betwen the appellant and deceased became strained on account of the latter taking an active part in getting the appellant's shop closed, but in order to regain confidence of deceasedin him, the appellant with ulterior designs again developed intimacy and, friendly relationship with Nirvikar about 4-5 days before the present occurrence and they started visiting each other. It is further, alleged that on July 3, 1993 appellant came to the house of deceased at about 8.30 p.m. At that hour Bhopal Singh P. W. 1, his wife Smt. Birmi, sons Vivek P.W.2 and Nirvikar were present in the house watching television. Appellant asked deceased Nirvikar to accompany him to see a movie in Udai palace theatre. Nirvikar acceded to this request and went with the appellant. They both left the house at about 8.30 p.m. Thereafter decease Nirvikar was not seen alive. Again to prove this circumstance, we have before us testimony of P.W. 1 Bhopal Singh and P.W.2 Vivek. They both have stated the above facts. Vivek P.W.2 has further stated that although Nirvikar was initially relunctant to go with the accused but on appellant's insistence he went with the accused and did not return thereafter. Presence of these witnesses in their own house at that hour of night was most natural and probable and there was nothing unusual if all the family members were watching television together in the same room. Learned counsel for the appellant tried to assail the claim of these witnesses of watching television on the fateful night by pointing out certain omissions and contradictions regarding the place where each member of the family was sitting in the room but such insignificant omissions and contradictions would not in any way effect the testimony of these witnessess and on the basis of these minor discrepancies it would not be sound to hold that these witnesses were not watching television in their house. At 8.30 p.m. the witnesses were normally expected to be present in their home and therefore there was nothing unnatural if these witnesses were present in the house and were watching television when the appellant reached there and took deceased Nirvikar with him on the pretext of going to see a movie.
37. It was submitted by the appellant's counsel that even as per the prosecution case the relations between the appellant and deceased had become strained in as much as about 15 days before the occurrence they had quarrelled with each other and abuses had been also exchanged and further that appellant had threatened the deceased with dire consequences. Therefore, in this state of affairs it was highly unnatural and improbable that deceased would have gone in the company of appellant to see a movie in the last night show nor could he be permitted by his parents to do so, who according to the prosecution case were present in the house when the appellant took the deceased with him. Though this argument may on the . face look to be somewhat fanciful but if we go in deep, no force would be found therein. Undisputedly both appellant and deceased were closely related to each other. Deceased was about 18 years old. Appellant himself was a young boy of about 20-21 years of age. It also appears from the circumstances appearing in the case that both appellant and deceased were not only close relatives but were quite intimate and friendly with each other, that is why deceased took an active part in persuading the appellant in not allowing bad elements and eve-teasers to sit on his shop. It is true that as per the prosecution case there had been exchange of abuses between appellant and the deceased about a fortnight ago but it has also come in evidence that relations between them once again became cordial and friendly and appellant started visiting him about 4-5 days before the present occurrence. Since both were closely related with each other and were of same age-group, there was nothing unnatural if they had again become friendly. The fact that their relations had became cordial and friendly finds mention in the First Information Report which was lodged at the police station even before body of deceased Nirvikar was found. in these circumstances, if the deceased had accompanied the appellant to see a movie there was nothing unusual. Once their cordial and friendly relations had been restored and they had been visiting each other for the last 4-5 days, the deceased could not have a ghost of an idea of the ill designs of the appellant.
38. On careful scrutiny of the evidence, we find that circumstance No. 2 as narrated above has also been established by cogent and clear evidence.
Absence of accused-appellant from his house when the father of deceased visited his house at 1.30 in the night.
39. It has been stated by P.W.I Bhopal Singh that when his son Nirvikar did not come back till 1.30 a.m., he went to the house of grand-mother of appellant where he used to reside but neither the appellant nor Nirvikar were found there. When this circumstance was put to the appellant he simply denied the same but it has not been stated by him that he was present at his house nor it has been disclosed as to where he had gone during that night. There is nothing on record to disbelieve P.W.I Bhopal Singh. This circumstance thus also stands established.
Recovery of head and beheaded body of the deceased Nirvikar in pursuance of disclosure statement made by the accused.
40. After the case under Section 364, I.P.C. was registered on the basis of written report lodged by Bhopal Singh P.W. 1 S.I. Jai Chand Singh, P.W.7, Station Officer started investigation. After recording statements of first informant and other witnesses, during the course of investigation, on 4-7-93 he arrested appellant Anil alias Teetu from near the railway crossing. Accused was brought at the police station and lodged in the lock up at 12.05 p.m., a reference of which was made in the General Diary at serial No. 28 whose copy has been proved as Ex. Ka-9 When accused was interrogated by Sri Jai Chand Singh. He allegedly confessed his guilt, which confession we have excluded from consideration, being inadmissible in evidence. During interrogation accused also himself volunteered to get recovered the chopped head and headless body of deceased Nirvikar from the place where the same had been concealed by him. The essence of this disclosure statement was recorded in the general diary, copy of which has been proved as Ex. Ka. 10. Bhopal Singh P.W. 1 is also said to have arrived at the police station when the aforesaid disclosure statement was made by the appellant. It is further claimed that in pursuance of the said disclosure statement accused led the police party to the mango grove of Haji Farooq and then took out chopped head and headless body of Nirvikar from near the two mango trees by digging out earth with the help of spade. The chopped head and beheaded body were identified by Bhopal Singh as that of his deceased son Nirvikar.
41. It may also be relevant to mention here that as per the medical officer who conducted autopsy on the head and headless body, the chopped head and the trunk were bisected parts of one and the same person. Though before the trial Court a faint attempt was made to show that the head and the headless body were not of Nirvikar but before us learned counsel for the appellant did not assail or dispute this fact. Even otherwise also there is nothing to doubt the testimony of P.W. 1 Bhopal Singh wherein he has categorically stated that the recovered severed head and headless body were of his deceased son Nirvikar. A perusal of the post mortem report further indicates that excepting that the head was having mud at some places, face was clearly visible and therefore, there could not have been any difficulty for P.W.I in identifying the chopped head as of his deceased son.
42. The evidence of recovery of severed head and headless body of Nirvikar deceased in pursuance of disclosure statement made by accused has been assailed by the learned counsel for the appellant on three grounds, namely;
(i) that factually neither any disclosure statement was made by the appellant nor . the two disected portions of dead body of Nirvikar were got recovered by the appellant;
(ii) that the authorship of concealment cannot be attributed to the appellant alone; and
(iii) that the places from where recoveries were made, were open and accessible to others;
43. Let us first examine the first submission of the learned counsel for the appellant as to whether it has been proved beyond doubt that any disclosure statement was made by the accused-appellant and whether pursuant to that disclosure statement chopped head and headless body of deceased Nirvikar were got recovered by the appellant himself as alleged by the prosecution?
44. To prove the above circumstance the prosecution produced two witnesses namely; P.W. 1 Bhopal Singh and P.W.7 S.I. Jai Chand Singh, the investigating officer.
45. P.W. 1 Bhopal Singh in his statement before the trial Court has deposed that on 4-7-93 at about 12 noon he along with his younger brother Satyapal, Pradeep and Kishore Kumar went to police station to inquire about the whereabouts of his son and there he was told by the investigating officer that accused Anil alias Teetu has been arrested. Accused was taken out of the lockup and was interrogated in his presence by the I.O. Appellant disclosed that he would get recovered the severed head and headless body of deceased Nirvikar from the places where they have been concealed by him. Accused Anil along with police force then proceeded in the police Jeep towards Mausamgarh. This witness with his brother Satypal, Pradeep and Kishore Kumar in their own car followed the police Jeep. Appellant's jeep stopped near the grove of Bhagwan Singh. They also stopped their own car. Anil then proceeded on foot and led the police party to the mango grove of Haji Farooq, resident of Imalia. Inside the grove accused stopped near a mango tree and told that he has concealed there the severed head of Nirvikar deceased. The investigating officer then arranged for a spade from the field of Ansar Ahmad. With the help of spade, Anil alias Teetu removed earth from near the mango tree and took out severed head of Nirvikar. The witness identified the head to be of his son Nirvikar Recovery memo Ex. Ka-2 was prepared in his presence by the investigating officer and the same was signed by him. He proved his signatures thereon. After this recovery the accused told that he would new unarth the remaining portion of dead body of Nirvikar. After covering a distance of about 50-52 paces he stopped in the same grove near another mango tree and stated that he has concealed the trunk of dead body of Nirvikar under the said tree. He then removed earth from there with the spade and took out headless body which was identified by this witness and other witnesses present there as of Nirvikar deceased. Recovery memo Ex. Ka.3 was prepared on the spot by the investigating officer and the same was signed by him also. He identified his signatures thereon. It has also been stated by him that the recovered head and headless body of deceased Nirvikar were sealed on the spot.
46. P.W. 7 Sri Jai Chand Singh, the investigating officer is the other witness who has stated about the recoveries of the aforesaid objects in pursuance of the disclosure statement made by accused in custody when he was interrogated at the police station. He stated that during interrogation the accused confessed to have killed deceased Nirvikar (which portion being inadmissible in evidence is excluded from consideration). He further promised to get recovered head and trunk of the deceased. Sri Jai Chand Singh in his deposition before the Court categorically stated that a reference of this disclosure statement was made by him in the General Diary at Sl.No. 31 at 12.30 p.m. copy of which has been proved as Ex. Ka. 10 A perusal of Ex. Ka. 10 indicates that the accused admitted to have himself concealed head and headless body of deceased Nirvikar at two different places and to get them recovered from those places S.I. Jai Chand Singh in his statement before the Court has also narrated the entire facts which led to the discovery of head and headless body of deceased Nirvikar in pursuance of the disclosure statement of the accused. His statement gets corroboration from the statement of P.W. 1 Bhopal Singh and the two recoveries memos Ex. Ka.2 and Ex. Ka. 3 as well as Ex. Ka. 10 general diary entry wherein disclosure statement given by the accused during interrogation was recorded. From the evidence on record it is proved that it was the appellant who himself took out the chopped head and headless body of deceased Nirvikar after receiving earth from near the two mango trees and handed them over to police in pursuance of the disclosure statement made by him during interrogation in police custody. We thus find no force in the submission of the learned counsel and hold that the accused had made the aforesaid disclosure statement and pursuant thereto he himself got recovered the chopped head and beheaded body of deceased Nirvikar.
47. While assailing the evidence of recovery pursuant to the disclosure statement made by the accused in custody, it was argued by learned counsel for the appellant that recovery of two portions of dead body of deceased Nirvikar cannot be construed incriminating against the appellant, as the element of criminality tending to connect the appellant with the crime lies in the authorship of concealment namely that the accused who gave information leading to the discoveries was the person who himself concealed them.
48. It was vehemently argued by the learned counsel for the appellant that in the present case it is doubtful that the appellant was the author of concealment of severed head and headless body of deceased Nirvikar. Attention of the Court was drawn to the recitals of the recovery memos Ex. Ka.2 and Ka.3 and it was argued that from them it cannot be inferred conclusively that the two portions of dead body were concealed by the appellant himself and their recovery could utmost justify an inference that accused had only the knowledge of the places where pieces of dead body were lying buried. It was also argued that the language used in the recovery memos was not free from doubt. Therefore, authorship of concealment could not be attributed to the appellant.
49. In support of his submission learned counsel for the appellant relied upon the decision in Pohalya Motya Valvi v. State of Maharashtra (1980) 1 SCC 530,: AIR 1979 SC 1949 wherein it was held that if the authorship of concealment is not clearly borne out by cogent and incontrovertible evidence but is left to be inferred by implication it is not safe to rely upon the same. The recovery of blood-Stained spear becomes incriminating not only because it was made at the instance of accused and the element of criminality lies in the authorship of concealment. To make such circumstance incriminating it must be shown that the accused had himself concealed the articles recovered and on this point the language used in the recovery memo should be free from doubt and when two constructions are possible in a criminal trial, the one beneficial to the accused will have to be adopted.
50. Before we come to the factual aspect of the present case, we may examine the scope and import of Section 27 of the Evidence Act.
51. Section 27 of the Evidence Act is in the nature of proviso to Sections 25 and 26. Such statements which have been made admissible under Section 27 are generally termed as disclosure statements leading to the recovery of facts which are presumably in the exclusive knowledge of the marker. This provision appears to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and therefore, it can be safely allowed to be given in evidence.
52. The position of law in relation to Section 27 of the Act was elaborately made clear by the Privy Council in the famous case of Pulukuri Kottaya v. Emperor, AIR 1947 PC 67, wherein it was held:
Section 27, which is not artistically recorded, provides an exception to the prohibition imposed by the preceding Section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the Section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The Section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the Section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead-body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown has argued that in such case the fact discovered' is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding Sections on confessions made to the police, or by persons in police custody, That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure, But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the Section. in their Lordship's view it is fallacious to treat the "fact discovered' within the Section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. 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, an if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A' these words are admissible since they do not relate to the discovery of the knife in the house of the informant.
53. In Mohmed Inayatullah v. State of Maharashtra, AIR 1976 SC 483, the Apex Court held that the expression 'fact discovered' includes not only the Physical object produced but also place from which it is produced and the knowledge of the accused as to that. Interpreting the words of Section "so much of the information" as relates distinctly to the fact thereby discovered. The Court held that the word "distinctly" means "directly", "indubitably" "strictly" "unmistakably". The word has been advisedly used to limit and define the scope of provable information. The phrase "distinctly" relates "to the fact thereby discovered". The phrase refers to that part of information supplied by the accused which is the direct cause of discovery of a fact. The rest of the information has to be excluded.
54. The Apex Court in Earabhadrappa alias Krishnappa v. State of Karnataka, (1983) 2 SCR 552,: AIR 1983 SC 446 held that for the applicability of Section 27 of the Evidence Act two conditions are prerequisite, viz., (i) information must be such as has caused discovery of the fact, and (ii) the information must 'relate distinctly' to the fact discovered. Under Section 27 only so much of the information as distinctly relates to the fact really thereby discovered, is admissible. While deciding the applicability of Section 27 of the Evidence Act, the Court has also keep in mind that nature of presumption under Illustrations (a) to (s) of Section 114 of the Evidence Act. The Court can, therefore, presume the existence of a fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relations to the facts of the particular case. in that case one of the circumstances relied upon by the prosecution against the accused was that on being arrested after a year of the incident, the accused made a statement before the police leading to the recovery of some of the gold ornaments of the deceased and her six silk sarees, from different places which were identified by the witness as belonging to the deceased. in that context the Court observed:
There is no controversy that the statement made by the appellant Ext. P. 35 is admissible under Section 27 of the Evidence Act. Under Section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word 'fact' means some concrete or material fact to which the information directly relates.
55. The Apex Court in a recent decision in State of Maharashtra v. Domu, S/o Gopinath Shinde (2000) 5 J.T. (SC) 575:AIR 2000 SC 1691 has held that the basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the Legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor, AIR 1947 PC 67, is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
56. In the latest decision in Pandurang Kalu Patel v. State of Maharashtra (2002) 1 (JT) SC 220: AIR 2002 AC 733 it was held that 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. The fact can be discovered by the 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 fact. Discovery of a fact cannot be equated with recovery of the object though the latter may help in the final shape of what exactly was the fact discovered pursuant to the information elicited from the accused.
57. Keeping all these principles in view, we have examined the evidence relating to the recovery of severed head and headless body of deceased Nirvikar pursuant to the disclosure statement made by appellant and we have no doubt in our mind that from the evidence on record it has been fully established beyond any reasonable doubt that it was appellant alone who had himself concealed those objects.
58. We have also closely examined the recovery memos but we find ourselves unable to construe them in the manner as suggested by the learned counsel for the appellant. If these two recovery memo along with the disclosure statement contained in G.D. entry Ex. Ka. 10 are read together in the light of substantive evidence of the two witnesses namely; P.W. 1 Bhopal Singh and P.W.7 Jai Chand Singh, no other reasonable inference is possible than that it was the appellant who had himself concealed the head and headless body of deceased Nirvikar at two different places in the mango grove of Haji Farooq. It is needless to point out again that P.W.I Bhopal Singh and P.W. 7 S.I. Jai Chand Singh in their statements on oath recorded before the trial Court have stated in clear words that the appellant during his interrogation while admitting commission of murder of Nirvikar (which portion is excluded as inadmissible), had further admitted to have concealed the severed head and headless body of deceased Nirvikar at two different places and promised to get them recovered if taken to those places. Attention of none of these witnesses was invited to the recovery memos Ex. Ka 2 and Ex. Ka 3. It is well known that recovery memo is not a substantive piece of evidence. It is a document to refresh memory. When attention of the maker of the recovery memo i.e. P.W. 7 Jai Chand Singh was not invited nor he was cross-examined with that point of view, it is not possible for us to accept the submission of the learned counsel for the appellant that authorship of concealment cannot be attributed to the appellant. We may again point out that the fact that the accused-appellant during his interrogation in police custody had admitted to have himself concealed the head and headless body of deceased Nirvikar and had promised to get them recovered was clearly mentioned in the general diary entry Ex. Ka. 10 which had come into existence much before the preparation of recovery memos.
59. From the evidence of the two witnesses coupled with the recitals made in Ex. Ka 10 and the recovery memo Ex. Ka 2 and Ex. Ka 3, no doubt is left in our mind that the severed head and beheaded body of deceased Nirvikar were concealed by the appellant at two different places underneath two mango trees in the grove of Hazi Farooq and he himself got them recovered while he was in police custody. Therefore, we have no hesitation in holding that this portion of the information supplied by the accused that he has himself concealed the severed head and headless body of deceased Nirvikar at two different places under mango trees distinctly related to the discovery of two portions of dead body of deceased Nirvikar.
60. Lastly the evidence of recovery was assailed on the ground that as per the prosecution evidence the two portions of dead body of Nirvikar were recovered from mango grove of Haji Farooq which was opened and accessible to others. Simply for the reason that the places from where recoveries were made situated in a mango grove belonging to another person that by itself would not take the evidence of recovery out of the purview of Section 27 of the Evidence Act. in this connection we may refer to the Apex Court decision in State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370:AIR 1999 SC 1293 wherein it was held that there is nothing under Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. It is a fallacious notion that whenever recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main road-side or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others, if it is not, then it is immaterial that the concealed place is accessible to others. The two portions of the dead body were so concealed under the earth that they were not visible to others. The accused himself removed the earth with the help of spade and took them out. Therefore, the mere fact that the mango grove belonged to another person would not take the evidence of recovery out of the purview of Section 27 of the Evidence Act. We, therefore, reject this submission of the learned counsel for the appellant also. Recovery of towel type handkerchief of the deceased, blood stained string of cot and empty pouches of country-made liquor in pursuance of the disclosure statement made by the appellant:
61. Again to prove this circumstance the prosecution has relied upon the evidence of P.W.I Bhopal Singh and P.W. 7 S.I. Jai Chand Singh. It has come in evidence of these witnesses that after the chopped head and headless body of Nirvikar were recovered at about 2.30 p.m. on 4-7-93 accused Anil alias Teetu took the police party and witnesses to the tube-well of Brijpal which was situated in the jungle of Mausamgarh. On reaching there accused himself took out the key, which was kept concealed underneath a brick near the door of the tubewell. With the said key accused opened the lock of the door of the room of the tubewell. Thereafter accused entered into the tubewell room and got recovered one towel type yellow coloured handkerchief which was stained with blood and was kept on the cot lying in the room. Some other articles were also handed over but here we are confining ourselves only to the recovery of towel type handkerchief, P.W. 1 Bhopal Singh has further stated in his statement before the Court that the towel type handkerchief was of deceased Nirvikar which he had carried with him when he had left in the company of accused in the preceding night. The witness also identified his signatures on the recovery memo Ex. Ka. 4 P.W. 7 Sri Jai Chand Singh, Sub-Inspector has also stated like facts and has corroborated the statement of P.W. 1 Bhopal Singh. Nothing material could come in their cross-examination so as to create any doubt in their testimony. Their evidence gets support from the recitals made in the recovery memo Ex. Ka. 4 and from the recovery of yellow coloured towel type handkerchief. Accused has not claimed the handkerchief as his own. There is nothing to doubt the testimony of P.W. 1 Bhopal Singh that the recovered handkerchief belonged to the deceased which he had carried with him while leaving home in the company of accused-appellant in the preceding night.
62. Thus from the evidence on record it is fully established that the towel type yellow coloured handkerchief was got recovered by the appellant from the tubewell of Brijpal which the deceased had carried with him while leaving in the company of accused-appellant in the preceding night.
63. On a careful scrutiny of the evidence on record, we thus find that following circumstances have been established against the appellant beyond any reasonable doubt:
(1) that the appellant and deceased were closely related to each other and were almost of same age group:
(2) that the appellant had a motive in as much as he was having some ire and ill will towards the deceased;
(3) that on account of close relationship, the appellant succeeded in regaining confidence of the deceased in him and their friendly relations were once again restored and they started visiting each other about 3-4 days before the murder in question;
(4) that on the day of occurrence i.e. 3-7-93 appellant came to the house of deceased at about 8.30 p.m. and asked deceased Nirvikar to accompany him to see a movie in Udai Palace theatre and though deceased was initially reluctant to go but the appellant succeeded in getting him agreed to accompany him and both of them left home together. The deceased Nirvikar was not seen alive thereafter;
(5) that when deceased did not come back home till 1.30 in the night, his father Bhopal Singh got worried and he went in search of him at the house where appellant was living, but he neither found the appellant there nor his son Nirvikar;
(6) that appellant Anil was arrested by police on 4-7-93 and was brought at the police station where during interrogation he admitted to have concealed the chopped head and beheaded body of Nirvikar at hidden places and promised to recover them if taken to those places;
(7) that the appellant in police custody then led the police party and witnesses to the grove of Haji Farooq of Imalia, dug out earth from near a mango tree and took out a human chopped head which was identified by Bhopal Singh as of his own son Nirvikar;
(8) that soon after the aforesaid recovery, the accused led the party to another mango tree situated in the same grove, dug out earth from there and took out beheaded body of deceased Nirvikar; and (9) that the accused-appellant took the police to the tubewell of Brijpal which was locked from outside and accused then himself opened the lock from the key which the accused himself took out from a concealed place and then got recovered some articles including one yellow coloured handkerchief (towel type) belonging to the deceased. This handkerchief was the same which the deceased had carried with him when he had left his home in the company of appellant in the preceding night.
64. in view of the above clinching circumstances appearing against the appellant, the only inescapable inference, one is bound to take is that they unerringly point to the guilt of the accused and exclude every hypothesis consistent with his innocence and it can be safely held that the appellant is guilty of committing the murder of deceased Nirvikar. His conviction under Sections 302, 364 and 201, I.P.C. as recorded by the trial Court are thus maintained.
65. The learned Sessions Judge has sentenced the appellant to the extreme penalty of death under Section 302, I.P.C. treating the case to be rarest of rare cases. At the outset, we may point out that the learned trial Judge has not made due compliance of the provisions of Section 235(2) Cr.P.C. which inter alia confers on the accused a right of hearing on the question of sentence. It has been repeatedly held by the Apex Court and this Court that provisions of Section 235(2), Cr.P.C. are mandatory and they have to be followed strictly and not in a routine and casual manner because they confer a valuable right on the accused to place before the Court facts and material relating to the various factors bearing on the question of sentence.
66. In the case Santa Singh v. State of Punjab, AIR 1976 SC 2386, the Apex Court has clearly laid down that hearing as contemplated in Section 235(2), Cr.P.C. is not confined merely to hearing of oral submissions, but would extend to giving and materials relating to the various factors bearing on the question of sentence. After an order of conviction is recorded the accused has to be specifically apprised of this right and given an opportunity to place before the Court all relevant material relating to mitigating circumstances, if any. in the case of Allauddin Mian v. State 1989 All WC 911: AIR 1989 SC 1456 it was held by the Apex Court that Section 235(2), Cr.P.C. satisfies a dual purpose, it satisfies the rule of natural justice by affording to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Opportunity must be real and effective an opportunity to the accused to place before the Court his antecedents, social and economic background, mitigating and extenuating circumstances, etc.
67. This exercise becomes all the more important and vital where the Court awards extreme penalty of death. in the present case order of conviction was recorded on 16-10-2000. A perusal of the judgment and record of the trial Court indicates that at no point of time accused was given any opportunity to place before the Court relevant material having a bearing on the question of sentence as contemplated under Sections 235(2), Cr.P.C. It appears that the trial Judge simply orally heard the State counsel and the learned counsel for the accused on the question of sentence. This was hardly a sufficient compliance of the mandatory provisions of Sections 235(2), Cr.P.C.
68. Apart from the fact that the accused was highly prejudiced on account of non-compliance of these mandatory provisions, we further find that the reasonings advanced by the learned Sessions Judge for awarding extreme penalty of death are hardly sufficient and justified. The learned Sessions Judge has observed that the deceased was related to the appellant reposed confidence in him but the accused betrayed that confidence and committed murder of the deceased in a preplanned, brutal and inhuman manner. He has further taken into consideration that during the pendency of trial an F.I.R. was lodged by the complainant against the accused on 21-9-1996 whereupon a case under Section 506, I.P.C. was registered against him but the accused was acquitted in that case. It has also been observed that thereafter on 9-12-1999 at 9.30 a.m. the accused came to the house of complainant in Maruti Car along with three others and caused injuries to the complainant by opening fire upon him. Regarding this incident an F.I.R. was lodged on 9-12-1999 at 10.30 a.m. and a case under Section 307 was registered against the accused that case was still pending. Learned Judge further pointed out that the accused was sentenced to two years R.I. under Section 3(1) of U.P. Gangester Anti Social Activities (Prevention) Act, 1986 by the judgment and order dated 25-8-2000 and further that accused is involved in crime No. 161 of 1994 under Sections 147, 148, 149, 307, IPC Police station Dadri District Ghaziabad and the same is still pending. However, it is noteworthy that none of these circumstances, which have been weighed against the appellant, were put to the accused in his statement recorded under Section 313, Cr.P.C. The instant case totally rested upon circumstantial evidence and on the date of commission of offence which occurred in the night of 3/4-7-1993, the accused was a young boy of about 21-22 years of age. It is the own case of the prosecution that the deceased was instrumental in getting the appellant's shop closed about a fortnight before the occurrence in question. Upon consideration of circumstances, both aggravating as well as mitigating and having regard to the young age of the accused, we are of the opinion that the present case is not one of those exceptional cases which may fall within the category of rearest of rare cases. It is well settled that for the persons convicted of the offence of murder, life imprisonment is the rule and death sentence is an exception. in other words, death sentence could be imposed only when the alternative option of lesser sentence is unquestionably foreclosed. in the instant case we find it difficult to hold that the appellant is such a dangerous person that to spare his life will endanger the com' munity. We are also not satisfied that the circumstances brought on record are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the offender. Judging the case with humanist approach, we find that ends of justice will sufficiently be met if death sentence awarded on the appellant is converted to life imprisonment.
69. For the reasons stated above while maintaining the conviction of appellant under Section 302, 364 and 201, I.P.C. we modify the sentence of death to imprisonment for life under Section 302, I.P.C. and maintain the other sentences. All the sentences shall run concurrently. Reference made by the learned Sessions Judge for confirmation of death sentence is rejected.
70. Appeal is decided accordingly.
71. Appellant is in jail. He shall serve out the sentences as modified by this Court.