Uttarakhand High Court
Unknown vs Kuldeep And Others on 26 July, 2024
Author: Alok Kumar Verma
Bench: Ravindra Maithani, Alok Kumar Verma
Reserved on: 12.07.2024
Delivered on: 26.07.2024
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Reference No. 2 of 2022
State of Uttarakhand
......Appellant
Vs.
Kuldeep and others ......Respondents
Present :
Mr. J.S. Virk, Deputy Advocate General with Mr. Pankaj Joshi, Brief Holder
for the State.
Mr. R.P. Nautiyal, Senior Advocate, learned amicus curiae assisted by Ms.
Garima Thapa, Advocate.
Criminal Appeal No. 189 of 2022
Rahul ......Appellant
Vs.
State of Uttarakhand ......Respondent
Present :
Ms. Pushpa Joshi, Senior Advocate assisted by Ms. Nipush Mola Joshi,
Advocate for the appellant.
Mr. J.S. Virk, Deputy Advocate General with Mr. Pankaj Joshi, Brief Holder
for the State.
Criminal Appeal No. 196 of 2022
Arun ......Appellant
Vs.
State of Uttarakhand ......Respondent
Present :
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Hemant Singh
Mehra, Advocate for the appellant.
Mr. J.S. Virk, Deputy Advocate General with Mr. Pankaj Joshi, Brief Holder
for the State.
2
Criminal Appeal No. 229 of 2022
Kuldeep ......Appellant
Vs.
State of Uttarakhand ......Respondent
Present :
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Hemant Singh
Mehra, Advocate for the appellant.
Mr. J.S. Virk, Deputy Advocate General with Mr. Pankaj Joshi, Brief Holder
for the State.
JUDGMENT
Coram: Hon'ble Ravindra Maithani, J.
Hon'ble Alok Kumar Verma, J.
Per: Hon'ble Ravindra Maithani, J.
Since common questions of law and facts are involved in all these appeals and reference, same are heard together and being decided by this common judgment.
2. In Sessions Trial No. 199 of 2018, State Vs. Kuldeep and others, by the impugned judgment and order dated 20.05.2022, passed by the court of Additional Sessions Judge, Laksar, District Haridwar, the appellants Kuldeep, Arun and Rahul have been convicted under Sections 302, 120B, 506 IPC and sentenced as hereunder:-
(i) Under Section 302 IPC- Death sentence with a fine of Rs.50,000/- and in default of payment of fine four years additional rigorous imprisonment.
(ii) Under Section 120B IPC- Death sentence with a fine of Rs.25,000/- and in default of payment of fine four years additional rigorous imprisonment.3
(iii) Under Section 506 IPC- Rigorous imprisonment for a period of seven years with a fine of Rs.25,000/-
and in default of payment of fine one year additional rigorous imprisonment.
3. Criminal Reference No. 2 of 2022 has been instituted under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") for confirmation of death sentence as awarded to the appellants Kuldeep, Arun and Rahul.
4. Criminal Appeal No. 189 of 2022 has been preferred by the appellant Rahul against his conviction and sentence.
5. Criminal Appeal No. 196 of 2022 has been preferred by the appellant Arun against his conviction and sentence.
6. Criminal Appeal No. 229 of 2022 has been preferred by the appellant Kuldeep against his conviction and sentence.
FACTS
7. Prosecution story, briefly stated is as follows:-
(i) PW1 Brij Mohan, the informant of the case and the deceased Preeti were in romantic relationship. In the month of December, 2014, they both married against the wishes of the parental family of the deceased. The family members of the deceased Preeti were not happy with the said marriage. It was a court marriage also. After the marriage, deceased Preeti had no connections with her parental family. Both PW1 Brij Mohan and the deceased never visited the father of the deceased Preeti.4
(ii) On 04.05.2021, the brother of the maternal aunt (PW3 Jayawanti, W/o Santarpal) of deceased Preeti had died in an accident;
(iii) On 17.05.2018, the deceased was requested to visit her maternal aunt by PW11 Smt. Saroj [another aunt (mother's younger sister)] and others. On 17.05.2015, at 05:00 in the evening, the deceased visited her maternal uncle (Santarpal's house). She stayed there.
(iv) According to the FIR, on 18.05.2018, at 01:30 p.m., the appellants Kuldeep, Arun, Rahul and others killed the deceased Preeti with shovel, axe, balkati and other sharp edged weapons. They telephonically called PW1 Brij Mohan also so that he may also be eliminated.
(v) When the appellants and others were attacking the deceased Preeti, she cried for help. Meanwhile, Ompal, Mannu Singh and PW2 Bablu reached at the spot and thereafter, the appellants and others left the place of incident saying that they would kill PW1 Brij Mohan also.
(vi) PW1 Brij Mohan was telephonically informed about the incident by PW3 Jayawanti. He reached at the spot and lodged FIR, Ex. A1, based on which, Chik FIR in Case Crime No. 102 of 2018, under Sections 147, 148, 149, 302, 120B, 506 IPC was lodged at Police Station Khanpur, Tehsil 5 Laksar, District Haridwar against the appellants and others.
(vii) Police had otherwise also received the information of killing of the deceased at 01:45 p.m. An inquest was immediately prepared. At the time of inquest, the dead body of the deceased was identified by PW3 Jayawanti and PW11 Smt. Saroj. The post-
mortem of the deceased was also conducted. PW 12 Dr. Mahesh Kumar Khaitan noted the following injuries on the person of the deceased:-
"(1) incised wound at upper part of back of neck including occipital area of head size 6 cm x 4 cm x Bone deep with clotted blood on and around occipital bone fractured.
(2) incised would at right lateral side of neck 2.5 cm below right ear pinna size 4 cm x 3 cm x Muscle deep with on and around clotted blood present and underlying vessels are torn.
(3) incised wound at lower part of neck and upper part of thorax back size 7 cm x 3 cm x Muscle deep with clotted blood on and around.
(4) incised wound at mid of upper part thorax back size 6 cm x 2 cm x Muscle deep and clotted blood on and around and 3 cm medial to injury No. 3.
(5) multiple incised wound no. 10 at upper and mid part of thorax back size 6 cm x 4 cm to 5 cm to 3 cm and Muscle deep and dried blood present on and around.
(6) incised wound at left parietal area of scalp size 5 cm x 2 cm x Bone deep with clotted blood on and around left parietal bone is fractured.
(7) incised wound at mid frontal bone upper part size 3 cm x 2 cm x Bone deep.6
(8) incised wound at left temporal area medially size 3 cm x 2 cm x Bone deep with dried blood on and around present, and (9) incised wound at left occipital bone size 4 cm x 2 cm x Bone deep.
(10) L/W at right upper arm lateral surface medially sized 3 cm x 2 cm x 0.5 cm with dried blood present."
(viii) According to the doctor, who conducted post-
mortem, the cause of death was shock and hemorrhage due to ante-mortem injuries.
(ix) According to the prosecution, on 19.05.2018, the appellants Kuldeep and Arun were arrested. Police also took blood stained and plain soil from the place of incident. It is further the prosecution case that at the instance of the appellants Kuldeep and Arun, the weapons of offence and the shirts worn by them at the time of incident were recovered on 19.05.2018 from an open place. The appellant Kuldeep got recovered an axe, whereas, the appellant Arun got recovered a shovel. They also got recovered their shirts, which they had worn at the time of incident. A recovery memo was prepared of it.
(x) The Investigating Officer ("IO") also got examined PW3 Jayawanti and PW5 Ruby under Section 164 of the Code.
(xi) The IO prepared site plan of the place of incident as well as the place from where allegedly the weapons of offence and shirts worn by the 7 appellants Kuldeep and Arun were recovered by the Police. Articles were also sent for forensic examination. The Forensic examination report was also received. After investigation, charge sheet was submitted against the appellants Kuldeep, Arun and Rahul for the offences punishable under Sections 302, 120B, 506 IPC.
8. On 10.12.2018, charges under Sections 302, 120B, 506 IPC were framed against the appellants Kuldeep, Arun and Rahul, to which they denied and claimed trial.
9. In order to prove its case, prosecution examined, 15 witnesses, namely, PW 1 Brij Mohan, PW 2 Bablu, PW 3 Jayawanti, PW 4 Omprakash, PW 5 Ruby, PW 6 Khushalpal Singh @ Pappu, PW 7 Charan Singh, PW 8 SI Ashish Negi, PW 9 Sukkhad Singh, PW 10 Constable 476 Sushil Kumar, PW 11 Smt. Saroj, PW 12 Dr. Mahesh Kumar Khaitan, PW 13 SI Rakam Singh, PW 14 SI Dilmohan Singh Bisht and PW 15 SI Bhagwan Mahar.
10. The appellants were examined under Section 313 of the Code. According to them, the witnesses have given false evidence; they have not committed any offence. The appellant Kuldeep in his examination under Section 313 of the Code has stated that PW1 Brij Mohan and the deceased Preeti had married against their wishes, but subsequently, their relations were normal.
11. Appellant Arun has stated in answer to Question No. 45 in his examination under Section 313 of the Code that PW1 Brij Mohan has killed the deceased because she was not delivering a child, and has falsely implicated the appellants. 8
12. On behalf of the appellants, three witnesses were examined in defence, namely, DW1 Adesh, DW2 Sonu Kumar and DW3 the appellant Kuldeep himself.
13. After hearing the parties, by the impugned judgment and order, the appellants have been convicted and sentenced, as stated hereinbefore. Aggrieved, the appellants have preferred the instant criminal appeals. and the criminal reference has been received for confirmation of the death sentence.
14. During the course of hearing of these matters, on 23.08.2022, substantial question was raised regarding the manner of acceptance of Forensic Science Laboratory ("FSL") report containing DNA profile and not putting the same to the appellants in their examination under Section 313 of the Code. On this aspect the matter was heard. Thereafter, on 30.08.2022, the Court passed the following orders:
"10. Thus, keeping in view the totality of the facts and circumstances of the case, we consider it proper to summon the condemned prisoners - appellants for further examination under Section 313 of the Code on next date fixed.
11. List this case on 13.09.2022 for further examination of accused - appellants under Section 313 of the Code. The registry is directed to secure their presence by informing the police authorities for providing escort party. Let a free certified copy of this order be supplied to the learned counsel for the parties for compliance."
15. Thereafter on 13.09.2022, the appellants were further examined under Section 313 of the Code. On that date, the court passed the following order:-
"All the three condemned prisoners-appellants are produced before this Court through escort party, i.e. ASI Prem 9 Singh Negi, Reserve Police Line Roshnabad, Haridwar, Const. 923 CP Brijmohan Rawat, Const. 20 AS Vipin Chauhan and Const. 191 AS Amjad.
Additional statements of accused under Section 313 of the Code of Criminal Procedure were recorded. The original be kept in the criminal appeal records; two copies be kept in two paper books for the Bench; One set of the statement of each accused be supplied to the learned Dy. Advocate General, learned Senior Advocates appearing for the three accused persons and one copy be kept in the trial court's record just below the original statement recorded by the trial court.
Since, the condemned prisoner want to examine further witness in defence of their case, issue summon to Veer Singh, S/o Yashpal Singh, R/o Shahpur, P.S. Khanpur, District Haridwar, as a defence witness in this Court for recording its statement on 27.09.2022. Till then, the condemned prisoner be remanded to the custody.
A free copy of this order be handed over to the ASI, Prem Singh Negi by the P.S."
16. The statement of defence witness Bir Singh was recorded by this Court on 11.10.2022.
ARGUMENTS
17. Heard learned counsel for the parties and perused the record.
Learned Amicus Curiae
18. Learned Amicus Curiae would argue that it is not a case of honour killing. He would submit that the marriage of PW1 Brij Mohan and the deceased had taken place in the year 2014, whereas, the incident took place in the year 2018. It is argued that all the appellants are much young; the court below has not given any reasoning as to why extreme penalty of death is being imposed on 10 them; mitigating and aggravating circumstances have not been balanced. Learned Amicus Curiae would argue that it has not been recorded that there are no chances of reform; the appellants have no criminal antecedents. It is argued that there are chances of reform of the appellants, therefore, it is not a case of death penalty. For the appellant Rahul
19. Learned Senior Counsel appearing for the appellant Rahul would submit that the appellant Rahul has nothing to do with the affairs of PW1 Brij Mohan and his wife Preeti, the deceased. Learned Senior Counsel raised the following points in her submissions:-
(i) There is no evidence against the appellant Rahul, to uphold his conviction.
(ii) PW3 Jayawanti and PW5 Ruby have not named the appellant Rahul as the person, who attacked the deceased; they have named other appellants Kuldeep and Arun.
(iii) PW1 Brij Mohan has also stated that after the incident, he was called telephonically by PW5 Ruby and was told that the appellants Kuldeep and Arun had assaulted the deceased with shovel and axe. The appellants Kuldeep and Arun were brought at the place of incident on motorcycle by one Rantej. It is argued that PW1 Brij Mohan has also not named the appellant Rahul as the person, who killed the deceased.
(iv) PW1 Brij Mohan has, at one stage (page 2, bottom), stated that PW5 Ruby told it to him that 11 the appellant Rahul had called the appellant Kuldeep and others and it is he, who provided the weapons of offence. It is argued that there is no evidence to substantiate it.
(v) PW2 Bablu has stated against the appellant Rahul as the person, who, exhorted the appellants Kuldeep and Arun to kill the deceased inside the room, but, the statement of PW2 Bablu is most unreliable; he is a chance witness.
(vi) With regard to the role of the appellant Rahul, the
statement of PW 2 Bablu has not been
corroborated by the eyewitnesses PW3 Jayawanti and PW5 Ruby. PW2 Bablu was examined by the IO after 2-21/2 months.
In support of her contention, learned Senior Counsel has placed reliance upon the principles of law, as laid down in the case of Ravi Mandal Vs. State of Uttarakhand 1.
In the case of Ravi Mandal (supra), Hon'ble Supreme Court observed that "the evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence. Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded." (Para 26) 1 2023 SCC OnLine SC 651 12
20. Learned Senior Counsel for the appellant Rahul would submit that the conviction of the appellant Rahul is based on the statement of PW2 Bablu, who is most unreliable, therefore, the conviction and sentence is liable to be set aside insofar as, the appellant Rahul is concerned.
For the appellants Kuldeep and Arun
21. Learned Senior Counsel for the appellants Kuldeep and Arun would submit that it is not a case of honour killing; PW1 Brij Mohan does not state that there was any animosity or bad blood between him and family members of the deceased; he has stated that he was talking to the appellant Kuldeep; the marriage was within community; there was no question of honour killing. Learned Senior Counsel also raised the following points in his submissions:-
(i) The presence of PW2 Bablu at the place of incident is highly doubtful; his statement reveals as if he was present at every stage or every time, which is significant in this case, such as, in the low affair marriage of PW1 Brij Mohan with the deceased Preeti; when the deceased Preeti visited the house of Santarpal on 17.05.2018, and also on 18.05.2018, when the incident took place. It is argued that he is a chance witness and most unreliable. Learned Senior Counsel would also submit that had PW2 Bablu been at the place of incident, he would have narrated the incident to PW1 Brij Mohan, when he reached at the spot.
But, it was not done.
13
In support of his contention, learned Senior Counsel has placed reliance upon the principles of law, as laid down by the Hon'ble Supreme Court in the case of Baby alias Sibastian and another Vs. Circle Inspector of Police, Adimaly 2.
In case of Baby (supra), the Hon'ble Supreme Court, inter alia, held that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be satisfactorily explained. In para 29 and 30, the Court observed as hereunder:-
"29. ............................................................... .................................................. From the testimony of PW 6 one thing is clear that he is a chance witness who happened to have witnessed the incident by chance. It is a well-settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus, reliable.
30. This Court in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] has elaborately explained the reliability of a chance witness as under: (SCC p. 725, paras 21-22) "21. In Sachchey Lal Tiwari v. State of U.P. [Sachchey Lal Tiwari v. State of U.P., (2004) 11 SCC 410 : 2004 SCC (Cri) Supp 105] this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and passer-by had deposed that he had witnessed the incident, observed as under: (SCC p. 414, para 7) If the offence is committed in a street only a passer-by will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the 2 (2016) 13 SCC 333 14 ground that he was a mere chance witness. However, there must be an explanation for his presence there.
The Court further explained that the
expression "chance witness" is borrowed from
countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.
22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh Satbir v. Surat Singh, (1997) 4 SCC 192 : 1997 SCC (Cri) 538] , Harjinder Singh v. State of Punjab Harjinder Singh v. State of Punjab, (2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28 , Acharaparambath Pradeepan v. State of Kerala Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643 :
(2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188 ). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 : 2005 SCC (Cri) 579 )."
22. Learned Senior Counsel for the appellants Kuldeep and Arun has also raised the following points in his submissions:-
(i) PW3 Jayawanti and PW5 Ruby's statements were recorded under Section 164 of the Code; the incident took place in the house of PW3 Jayawanti; the statements of these witnesses were recorded so as to pin them down. PW6 Khushalpal Singh @ Pappu has stated that he was in the fields when he heard the news of the incident and PW3 15 Jayawanti was also in the field alongwith her husband and they all came together; PW5 Ruby says that she was in the latrine, when she heard noise. But, it is argued that in the site plan, no latrine, as such, has been shown.
(ii) The statements of the witnesses, whose statements were recorded under Section 164 of the Code need to be carefully and cautiously examined.
In support of his contention, learned counsel has placed reliance upon the principles of law, as laid down in the cases of Ram Charan and other Vs. State of U.P. 3, Parmanand Ganga Prasad Vs. Emperor 4, Balak Ram Vs. State of UP 5 and Krishan Kumar Malik Vs. State of Haryana 6.
In the case of Ram Charan (supra), the Hon'ble Supreme Court discussed the law on the authenticity of the statements of the witnesses, whose statements were earlier recorded under Section 164 of the Code and in paras 9 and 10 observed as hereunder:-
"9. The learned counsel further relies on the following passage from the judgment of Dhavle, J., in Emperor v. Manu Chik, AIR 1938 Pat 290-295 "There is yet another circumstance which calls for remark, and that is the examination of Ladhu and Rebi among other witnesses under Section 164, CrPC. It was pointed out by Prinsep, J., in the well-known case in 27 Cal 296 [27 Cal 295 -- Queen Empress v. Jadub Das] that a statement of a witness obtained under this section always raises a 3 1968 SCC OnLine SC 226 4 1940 SCC OnLine MP 106 5 (1975) 3 SCC 219 6 (2011) 7 SCC 130 16 suspicion that it has not been voluntarily made, and that the section was not intended to enable the police to obtain a statement from some person (in that case it was an incriminating statement) and as it were to put a seal on that statement by sending in that person to a Magistrate practically under custody, to be examined before the judicial inquiry or trial, and therefore compromised in his evidence when judicial proceedings are regularly taken."
10. These observations were dissented from by the Andhra Pradesh High Court in In re, Gopisetti Chinna Venkata Subbiah ILR 1955 AP 633-38 and Subba Rao, C.J., preferred the following observations of the Nagpur High Court in Parmanand v. Emperor, AIR 1940 Nag 340 .
"We are of the opinion that if a statement of a witness is previously recorded under Section 164 of the Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under Section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon."
In the case of Parmanand Ganga Prasad (supra), similar principles were followed by the Hon'ble Supreme Court, as laid down in the case of Ram Charan (supra).
In the case of Balak Ram (supra), the Hon'ble Supreme Court while following the principles of law, as laid down in the case of Ram Charan (supra), observed that "but the High Court overlooked that the evidence of witnesses whose statements are recorded under Section 164 must be approached with caution. Such witnesses feel tied to their previous statements given on oath and have but a theoretical freedom to 17 depart from the earlier version. A prosecution for perjury could be the price of that freedom. It is, of course, open to the court to accept the evidence of a witness whose statement was recorded under Section 164, but the salient rule of caution must always be borne in mind. That is all the more necessary when almost all the eyewitnesses are subjected to this tying-up process. (para 49) In the case of Krishna Kumar Malik (supra), where the statement under Section 164 of the Code was recorded first and thereafter, statement under Section 161 of the Code was recorded, the Hon'ble Court observed as follows:-
"39. The prosecution also adopted a peculiar mode in the case as the first statement of the prosecutrix was recorded under Section 164 CrPC on 27-6-1994 before the Judicial Magistrate, First Class, Kurukshetra. Only thereafter on 28-6-2004, her further statement under Section 161 CrPC was recorded. In fact, the procedure should have been otherwise. This further shows that right from the beginning the prosecution was doubtful of the trustworthiness of the prosecutrix herself. Precisely that was the reason that she was first bound down by her statement under Section 164 CrPC."
(iii) The statement of PW3 Jayawanti cannot be relied upon, in view of the statement of PW6 Khushalpal Singh @ Pappu; although PW3 Jayawanti is eyewitness account of the incident, but in view of the statement of PW6 Khushalpal Singh @ Pappu, her presence at the place of incident becomes much doubtful. It is 18 argued that PW6 Khushalpal Singh @ Pappu, in his cross examination, has stated that at the time of incident, he was in his fields, when he received telephone call from his brother that about 5-7 persons are fighting in the house of Santarpal; he had earlier stated that at about 11:00 - 11:30 p.m., PW3 Jayawanti had got meals for Santarpal and his sons, who were working in the fields. It is argued that according to PW6 Khushalpal Singh @ Pappu, he alongwith Santarpal and PW3 Jayawanti reached at the place of incident and found the deceased dead. It is argued that the statement of PW6 Khushal Pal Singh @ Pappu does not support the prosecution case insofar as it relates to the presence of PW3 Jayawanti at the place of incident. PW6 Khushal Pal Singh @ Pappu has stated that at the time of incident, PW3 Jayawanti was in her fields alongwith her husband Santarpal. It is argued that PW6 Khushalpal Singh @ Pappu was not declared hostile by the prosecution; therefore, the prosecution cannot wriggle out from its evidence and defence can take benefit of it.
(iv) If a prosecution witness speaks something against prosecution and he is not declared hostile and on this point, he is not cross examined by the prosecution, the evidence of such witness has to be accepted by the prosecution and it makes the prosecution case doubtful.
19
In support of his contention, learned counsel has placed reliance upon the principles of law, as laid down in the cases of Jagan M. Seshadri Vs. State of T.N. 7, Javed Massod and another Vs. State of Rajasthan 8, Raja Ram Vs. State of Rajasthan 9, Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat 10, State of Bihar Vs. Laloo Prasad alias Laloo Prasad Yadav11, Rankhu Dutta Vs. State of Assam 12, Ratan Lal Vs. State of Jammu and Kashmir 13, Assoo Vs. State of M.P.14, Mohd. Ali Haider and others Vs. State of Assam 15, K. Anbazhagan Vs. Superintendent of Police and others 16, Satyavir Singh Rathi, Assistant Commissioner of Police and others Vs. State through Central Bureau of Investigation17, B. Raghuvir Acharya, Vs. Central Bureau of Investigation18 and Jabir and others Vs. State of Uttarakhand 19.
In the case of Jagan M. Seshadri (supra), the Hon'ble Supreme Court, inter alia, observed that "we are unable to appreciate the submission of learned counsel for the State, that PW 31, being the mother- in-law of the appellant who had supported the explanation offered by the appellant regarding receipt of Rs 50,000 and Rs 40,000 by him from her 7 (2002) 9 SCC 639 8 (2010) 3 SCC 538 9 (2005) 5 SCC 272 10 AIR 1964 SC 1563 11 (2002) 9 SCC 626 12 (2011) 6 SCC 358 13 (2007) 13 SCC 18 14 (2011) 14 SCC 448 15 (2010) 15 SCC 307 16 (2004) 3 SCC 767 17 (2011) 6 SCC 1 18 (2014) 14 SCC 693 19 2023, SCC OnLine SC 32 20 should not be believed. She is a prosecution witness. She was never declared hostile. The prosecution cannot wriggle out of her statement." (Para 9) In the case of Javed Masood (supra), in paras 20 and 21, the Hon'ble Supreme Court observed as follows:-
"20. In the present case the prosecution never declared PWs 6, 18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence.
21. This Court in Mukhtiar Ahmed Ansari v. State (NCT of Delhi) [(2005) 5 SCC 258 : 2005 SCC (Cri) 1037] observed: (SCC pp. 270-71, paras 30-
31) "30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan [(2005) 5 SCC 272 : 2005 SCC (Cri) 1050] . In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared 'hostile'.
The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution............................................................ ............................................................................" This principle has been followed in the case of Satyavir Singh Rathi (supra).
In the case of Raja Ram (supra), the Hon'ble Supreme Court observed that if a witness who does not support the prosecution case, if not cross examined, it becomes binding on the prosecution, unless there are reasons to sideline his testimony. In para 9, the Hon'ble Supreme Court observed as follows:-
21
"9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW 5 making the deceased believe that unless she puts the blame on the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to heard (sic declare) PW 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8's testimony can be sidelined."
In the case of Dahyabhai Chhaganbhai Thakka (supra), the Hon'ble Supreme Court discussed the scope of Section of 154 of the Evidence Act, 1872 and held that "the court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief". (Para 8) In the case of Laloo Prasad (supra), the Hon'ble Supreme Court observed as follows:-
"6.....................................it would have been a different position if the witness stuck to his version he was expected to say by the party who called the witness, in the examination-in-chief, but he showed propensity to favour the adverse party only in cross- examination. In such case the party who called him has a legitimate right to put cross-questions to the witness. But if he resiled from his expected stand even 22 in the chief examination the permission to put cross- questions should have been sought then."
The Hon'ble Supreme Court further held as follows:-
"7...................................It is again open to the Public Prosecutor to tell the court during final consideration that he is not inclined to own the evidence of any particular witness in spite of the fact the said witness was examined on his side. When such options are available to a Public Prosecutor, it is not a useful exercise for this Court to consider whether the witness shall again be called back for the purpose of putting cross-questions to him."
In the case of Ranhku Dutt (supra) also, a question was raised with regard to obtaining verbal approval from the Superintendent of Police. The IO has categorically stated that he did not obtain approval. He was not declared hostile. The Hon'ble Court held that such circumstance establishes that the prosecution failed to bring on record that verbal approval was obtained.
In the case of Ratan Lal (supra), the Hon'ble Supreme Court, in para 21, observed as follows:-
"21. According to the said witness, it was Kaku Ram who inflicted the drat-blow on the deceased and not the appellant. He has, thus, changed the name of the assailant as also the weapon of offence. The findings of the High Court are without any reason. There is no discussion as to why the defence would not be entitled to take the benefit of his statement, who was not even declared hostile."
In the case of Assoo (supra), the statement of a witness, who was a neighbour was found lending 23 credence as he had dislodged the statement of other witnesses, but he was not declared hostile. In para 10 of the judgment, the Hon'ble Supreme Court observed as follows:-
"10. We have also perused the evidence of PW 3 None Lal, a neighbour, and one of the first to arrive at the spot. He gave a story which completely dislodges the statements of PWs 1 and 2. He deposed in his cross-examination that Shri Bai, a neighbour of the appellant, had made allegations against the deceased in the presence of Ghaffoor and Ishaq that she was involved in illicit activities while her husband was away and that she would reveal all to her husband when he returned home and that immediately after these remarks the appellant had returned home on which the deceased had gone inside and set herself ablaze. We take it, therefore, as if the prosecution had accepted the statement of PW 3 as true, as the witness had not been declared hostile."
In the case of Mohd. Ali Haider (supra), on the same aspect, the Hon'ble Supreme Court, in para 13, observed as follows:-
"13. The defence has also relied on the evidence of PW 7, Md. Sofiul Haque, the neighbour of both the parties. As a matter of fact this witness, though cited by the prosecution, had virtually destroyed the prosecution story but was not declared hostile. He categorically stated that PW 1 did not disclose the names of the assailants either before him or to the others. This glaring contradiction further strengthens Mr Laskar's submission that the prosecution was groping around and on suspicion had involved the appellants. In view of the above observations we are of the opinion that the statements of PWs 1 and 3 cannot be relied upon."24
In the case of K. Anbazhagan (supra), the Hon'ble Supreme Court, in fact, discussed the procedure in such situations and observed that if the witness resile from his earlier testimony, in such a situation, the subsequent testimony remains uncontroverted. The Hon'ble Court observed as follows:-
"31............................On a combined reading of the aforesaid decisions of this Court, it emerges clearly that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The decisions by this Court in the above-referred cases are rendered in cases where the Public Prosecutor sought permission to question his own witnesses by resorting to Section 154 of the Evidence Act and the court allowed the Public Prosecutor to cross-examine his own witnesses. In such cases the trial Judge has discretionary power to examine the entire testimony and accept that part of testimony which he finds to be creditworthy and act upon it. But in the present case, the Public Prosecutor has not sought permission from the Court by resorting to Section 154 of the Evidence Act even though the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his earlier evidence was given under pressure and no attempt is 25 made to cross-examine such a witness, the court may find it difficult if not impossible to accept the earlier statement. The trial Judge may find it difficult not to accept the subsequent testimony of the witness, which has remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice."
In the case of B. Raghuvir Acharya (supra), on the effect of non declaring a witness hostile, who speaks against other prosecution witness, the Hon'ble Supreme Court observed as follows:-
"37. PW 4, Rajesh Chandrakant Pawar was transferred in June 1991 from Cangrowth to Cancigo. He was aware of the scheme and worked under Accused 2. In his deposition PW 4 stated that the endorsement [Ext. 17(i)] was in the handwriting Mr Anil Narichania, AGM. For the reason best known to the prosecution, they have not cited Mr Anil Narichania as one of the witnesses. Though PW 4, in his examination- in-chief specifically stated that the endorsement [Ext. 17(i)] was in the handwriting of Mr Anil Narichania, he was not declared hostile. We find a blatant contradiction and discrepancy in the evidence of PW 5 who attributes the endorsement to Accused 1 and, therefore, it will not be desirable to rely on his evidence."
Similar principles have been laid down in the case of Jabir (supra) with regard to non declaring a witness hostile by the prosecution.
(v) The alleged recovery at the instance of the appellants cannot be an evidence under Section 27 of the Indian Evidence Act, 1872 ("the 26 Evidence Act"). There is no disclosure statement of the appellants.
(vi) The FSL report was never tendered in evidence; it cannot be read into evidence.
(vii) Even otherwise, the FSL report is much doubtful, it has no value. It cannot be read into evidence.
(viii) The appellants were never given an opportunity to adduce evidence on sentence.
(ix) While awarding death penalty, the court has not considered the mitigating and aggravating circumstances.
(x) Death penalty cannot be awarded without assessing the mitigating and aggravating circumstances.
Learned State Counsel
23. Learned State counsel would submit that the testimony of the chance witness cannot be discarded. In the instant case, it is argued that PW2 Bablu has explained the occasion to be present at the place of incident. Learned State counsel would also raise the following submissions:-
(i) The defence has taken contradictory stands; on the one hand, presence of PW2 Bablu and PW3 Jayawanti is doubted, whereas, on the other hand, they have been given suggestions which impliedly suggest that they were present at the place of incident.
(ii) It is argued that suggestions have been given a strong importance at a trial and if suggestions 27 suggest presence of a witness, it supports the prosecution case that such witness was present at the time of incident.
(iii) It is argued that PW2 Bablu has been given a suggestion in the last paragraph of his cross examination that PW1 Brij Mohan had sent him to kill the deceased Preeti, as she was not delivering a child. Reference has been made to the suggestion given to PW3 Jayawanti in page 5, 3rd paragraph, when she was suggested that she did not try to save the deceased Preeti. She had denied this suggestion and has further explained that how could she save the deceased Preeti when she was pushed by the appellants and they proceeded towards the deceased Preeti.
(iv) Based on these two suggestions, learned State counsel would submit that these suggestions given by the defence confirms that the appellants admit the presence of PW2 Bablu and PW3 Jayawanti at the place of incident.
In support of his contention, learned counsel has placed reliance upon the principles of law, as laid down in the case of Balu Sudam Khalde and another Vs. State of Maharashtra 20. In para 37 of it, the Hon'ble Supreme Court observed as follows:-
"37. In Rakesh Kumar alias Babli v. State of Haryana reported in (1987) 2 SCC 34, this Court was dealing with an appeal against the judgment of the High Court affirming the order 20 2023 SCC OnLine SC 355 28 of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34 of the IPC. While re-appreciating the evidence on record, this Court noticed that in the cross-examination of the PW 4, Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court taking into consideration the nature of the suggestion put by the defence and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. We quote the following observations made by this Court in paragraphs 8 and 9 respectively as under:
"8. PW 3, Bhagat Singh, stated in his examination-in-chief that he had identified the accused at the time of occurrence. But curiously enough, he was not cross-examined as to how and in what manner he could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4, Sube Singh, stated that the accused Dharam Vir, was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, PW 4 said: "It is not correct that Dharam Vir accused was wearing a shirt of cream colour and not a white colour at that time." The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir, on the spot at the time of occurrence.
38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would 29 definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner.
40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the 30 form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case."
(v) If opportunity to lead evidence is not given before awarding death penalty, it per se does not vitiate the sentence.
In support of his contention, learned counsel has placed reliance upon the principles of law, as laid down in the case of In Re: Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered while Imposing Death Sentences 21. In this case, the Hon'ble Supreme Court discussed the law on the point and in para 27 observed as follows:-
"27. The common thread that runs through all these decisions is the express acknowledgment that meaningful, real and effective hearing must be afforded to the accused, with the opportunity to adduce material relevant for the question of sentencing. What is conspicuously absent, is consideration and contemplation about the time this may require. In cases where it was felt that real and effective hearing may not have been given (on account of the same day sentencing), this court was satisfied that the flaw had been remedied at the appellate (or review stage), by affording the accused a chance to adduce material, and thus fulfilling the mandate of Section 235(2)."21
2022 SCC OnLine SC 1246 31
(vi) Recording statements of the witnesses during investigation under Section 164 of the Code is a prerogative of the IO. In death penalty cases, even otherwise, evidence of each witness should be cautiously scrutinized.
(vii) There is of course no disclosure statement, which would have led the police party to make recovery. Therefore, although the recovery is not admissible under Section 27 of the Evidence Act, but, it is argued that such recovery is relevant under Section 8 of the Evidence Act.
In support of his submissions, learned counsel has placed reliance in the case of Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra 22.
In the case of Shahaja @ Shahajan Ismail Mohd. Shaikh (supra), the Hon'ble Supreme Court observed as follows:-
"48. Even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Act. The evidence of discovery would be admissible as conduct under Section 8 of the Act quite apart from the admissibility of the disclosure statement under Section 27, as this Court observed in A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714,:
"By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, 22 2022 SCC OnLine SC 883 32 simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) (1979) 3 SCC 90. Even if we hold that the disclosure statement made by the accused appellants (Ex. P14 and P15) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8."
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50. Further, in the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Act, cannot form the basis of conviction."
THE EVIDENCE
24. Before, the arguments are appreciated, it would be appropriate to examine the evidence that is available on record. 33
25. Four witnesses, namely, PW2 Bablu, PW3 Jayawanti, PW5 Ruby and PW11 Smt. Saroj have stated that they had witnessed the incident.
26. PW1 Brij Mohan is the informant. PW4 Omrakash, PW7 Charan Singh, PW9 Sukkhad Singh and PW11 Smt. Saroj have been declared hostile by the prosecution (It would be pertinent to note here that although PW11 Smt. Saroj had stated about the incident, but she has stated that the assailants had masked their faces, therefore, she could not identify them.).
27. PW6 Khushalpal Singh @ Pappu is the witness of inquest. PW8 SI Ashish Negi had prepared inquest. He is the person, who arrested the accused and made recovery also. PW10 Sushil Kumar has prepared Chik FIR and made entry in the General Diary of the police station. PW12 Dr. Mahesh Kumar Khaitan conducted post-mortem of the deceased. PW13 SI Rakam Singh Negi has also stated about inquest, arrest and recovery as well as the samples of soil from the spot. PW15 SI Bhagwan Mahar initially took after the investigation and after him, PW14 SI Dilmohan Singh Bisht completed the investigation.
28. The incident took place in the house of Santarpal. He is not a witness. PW3 Jayawanti is wife of Santarpal. According to her, on 18.05.2018 at about 01:30 in the afternoon, the appellants Kuldeep and Arun came in her house. The appellant Arun was armed with shovel and the appellant Kuldeep was armed with axe. The deceased Preeti was in the house. PW11 Smt. Saroj and the deceased Preeti were doing some sewing work. Both the appellants Kuldeep and Arun came abusing them. When this witness and PW11 Smt. Saroj tried to close the door, they opened it by hitting on 34 it with the axe and shovel. Thereafter, they, while pushing this witness, reached to Preeti. Appellant Arun hit Preeti with a shovel and the appellant Kuldeep hit her with an axe. She fell down and died. Thereafter, both the appellants left the place saying that they have done what they wanted to do. According to PW3 Jayawanti, thereafter, from the telephone of the deceased Preeti, she called PW1 Brij Mohan and narrated the incident to him. Meanwhile, many villagers gathered at the spot and within half an hour, Police also reached there. PW3 Jayawanti has also proved her statement recorded under Section 164 of the Code, as Ex. A2. A perusal of her statement under Section 164 of the Code shows that it is in line with what she has stated in the court.
29. PW5 Ruby is daughter of PW3 Jayawanti and Santarpal. The incident took place in her house. According to her, on the date of incident, at 01:30 p.m., she was in latrine, when she heard noise. As soon as, she came out, she saw the appellants Kuldeep and Arun coming out from her house after killing the deceased Preeti. The appellant Kuldeep was armed with an axe while the appellant Arun was armed with a shovel. Thereafter, when this witness entered inside, she found Preeti dead on the ground. She searched the phone of Preeti and thereafter, her husband i.e. PW1 Brij Mohan was told about the incident. This witness has also proved her statement recorded under Section 164 of the Code, as Ex. A3.
30. PW2 Bablu was not a resident of the same village, where the incident took place. According to him, the deceased Preeti and PW1 Brij Mohan had a love marriage, due to which, the family members of the deceased Preeti were inimical towards them and had 35 threatened that they would kill them. According to him, the appellant Kuldeep has stated the same. This witness also tells that on 17.05.2018, at 07:00 in the evening, the deceased had come to the house of the PW3 Jayawanti.
31. According to PW2 Bablu, on 18.05.2018, he had gone to his fields. While returning at 01:30 P.M., he heard noise from the house of Santarpal. Ompal and Munnu were with him. They all alighted from his tractor and went inside the house of Santarpal. They saw that all the three appellants, namely, Kuldeep, Arun and Rahul were standing there. The appellant Rahul was exhorting the other appellants to kill deceased Preeti. The appellant Kuldeep was armed with an axe and the appellant Arun was armed with a shovel. They were attacking the deceased. When this witness tried to save the deceased, according to him, the appellants tried to beat him also. Thereafter, the appellants ran away.
32. PW11 Smt. Saroj was also present at the time of incident. She has stated about the incident. According to her, on the date of incident, at about 10:00 in the morning, they had meals. Thereafter, PW3 Jayawanti took meals for her husband and children, who were working in the fields. At about 1:00 - 1:30 p.m., four persons, who had masked their faces, entered in the house armed with shovel, balkati and axe. She and the deceased Preeti were talking to each other at that time and PW5 Ruby was in the latrine. According to her, those four persons immediately attacked Preeti. This witness tried to intervene; she also sustained injuries. Hearing the noise, the neighbours and PW5 Ruby reached at the spot. Thereafter, those assailants left their weapons and moved away. According to PW11 Smt. Saroj, after half an hour of the 36 incident, PW2 Jayawanti, Santarpal and their children as well as PW6 Khushalpal Singh @ Pappu came at the spot and thereafter, police also came. As stated, this witness has been declared hostile and has been cross examined.
33. PW1 Brij Mohan is the informant. He has stated that after marriage of the deceased with PW 1 Brij Mohan, the family members of the deceased were not happy because it was a court marriage. They had no connections with the family members of the deceased Preeti. According to this witness, on 18.05.2018, at 01:30 p.m., the appellant Kuldeep and Arun killed his wife. He was telephonically told about it by PW5 Ruby. He telephoned the appellant Kuldeep also and asked as to why did they kill Preeti. But according this witness, he was also threatened to life by the appellant Kuldeep. When this witness reached at the spot, in the village, he met Omprakash, Bablu and Munnu, who told it to this witness that the appellants Arun and Kuldeep after killing the deceased Preeti with shovel and axe had come out from the house. When they tried to caught hold of them, they ran away on a motorcycle. This witness gave a report, Ex. A1. He is not an eyewitness.
34. PW4 Omprakash, PW7 Charan Singh, PW9 Sukkhad Singh have not supported the prosecution case and they have been declared hostile. In their cross examination by the prosecution, all these witnesses have stated that the assailants had left weapons of offence at the place of incident. In fact, PW9 Sukkhad Singh, in his cross examination by the appellants, has stated that the weapons of offence i.e. shovel and axe were taken by the Police from the place of incident.
37
35. PW8 SI Ashish Negi was posted as Sub Inspector at the concerned Police Station at the relevant time. After having received the information of killing, he reached in the village, where according to him, PW3 Jayawanti and PW11 Smt. Saroj had identified the dead body of the deceased Preeti. Thereafter, he prepared the inquest report. PW6 Khushalpal Singh @ Pappu is another witness of inquest.
36. According to PW8 SI Ashish Negi, on 19.05.2018, upon information having been received, they arrested the appellants Kuldeep and Arun and prepared all the arrest memos, etc. On the same date, according to him, they took the appellants Kuldeep and Arun from the lockup and proceeded at their village and on the way to Abdipur, near two dried tree, the appellants Kuldeep and Arun made them to stop the vehicle, whereafter the appellant Kuldeep got recovered an axe and his shirt and the appellant Arun also got recovered a shovel and his shirt. They had admitted that they had killed their sister with those weapons and at the time of incident, those shirts were worn by them. This witness has proved the recovery memos and other articles also.
37. PW13 SI Rakam Singh Negi has also stated about the samples of soil that were taken from the place of incident. He is also a witness of arrest and recovery. He has stated so in his evidence.
38. PW12 is Dr. Mahesh Kumar Khaitan, who conducted post mortem. The injuries, which were found on the person of the deceased have already been narrated hereinbefore. According to him, the death occurred due to shock and hemorrhage, as a result of ante-mortem injuries.
38
39. PW15 SI Bhagwan Mahar initially took up the investigation. He prepared the site plan. He arrested the appellants Kuldeep and Arun and prepared arrest memo. According to him, the appellants Kuldeep and Arun were interrogated. They revealed that they could get recovered the weapons of offence as well as the shirts, which they had worn at the time of incident. Thereafter, this witness speaks as to how the recovery of shovel, axe and two shirts were made at the instance of the appellants. PW15 SI Bhagwan Mahar states that on 30.05.2011, the appellant Rahul was arrested. Thereafter, the investigation was transferred to PW14 SI Dilmohan Singh Bisht. He prepared the site plan of the place of recovery and after investigation, submitted charge sheet, Ex. A18. This is all the prosecution evidence.
40. On behalf of the defence, DW1 Aadesh Kumar has stated that on 18.05.2018, He had heard noise from the house of PW3 Jayawanti. When he reached there, he saw that four persons, who had masked their faces were attacking Preeti with shovel and axe. PW11 Smt. Saroj also sustained injuries while trying to save Preeti. According to this witness, as soon as this witness could reach at the place of incident, all those four persons left the weapons of offence and ran towards forest. Thereafter, PW5 Ruby came at the spot from latrine/ bathroom and other persons also reached there.
41. DW2 Sonu Kumar has also stated that on the date of incident, on hearing the noise, when he visited the house of Santarpal, he saw four persons, who had masked their faces, running out from the house of Santarpal. This witness had seen shovel and axe lying outside the house and when he went inside, he found Preeti dead. According to him, PW11 Smt. Saroj also had 39 injury on her hand. Later on, PW3 Jayawanti, her children and husband and PW6 Khushalpal Singh @ Pappu returned from their fields. DW2 Sonu Kumar states that PW5 Ruby had come after the incident.
42. DW3 Kuldeep is one of the appellants. He tells that PW1 Brij Mohan had married his sister Preeti against the wishes of his family members. Therefore, they were not happy with PW1 Brij Mohan and Preeti for about a year and a half. Thereafter, they started talking to each other over telephone and there was no animosity between them. He tells that the deceased Preeti would tell her that her husband PW1 Brij Mohan would harass her as she was unable to deliver a child and the deceased had also expressed an apprehension that PW1 Brij Mohan may kill her because he had given a telephone to PW5 Ruby, who had stayed in her house for 7 - 10 days. This witness tells that on the date of incident at about 01:30 p.m., PW1 Brij Mohan had telephoned him that someone has killed Preeti. Thereafter, he told PW1 Brij Mohan to reach at the spot and he also reached at the spot. But, there the people started abusing him. Thereafter, they left the place.
43. In the instant matter, the appellants were further examined under Section 313 of the Code by this Court and thereafter, one more defence witness Bir Singh's statement was recorded by this Court. He has stated that on the date of incident, he was in his fields, where the appellant Kuldeep was cultivating his land with him. At that time, the appellant Kuldeep told him that his sister has some problem, therefore, he borrowed motorcycle of this witness, which he gave to the appellant Kuldeep. 40
DISCUSSION
44. It is golden principle of criminal justice system of this country that the prosecution has to prove its case beyond reasonable doubt so as to bring home the guilt of the accused. In the case of Shivaji Sahabrao Bobade and another Vs. State of Maharashtra 23, the Hon'ble Supreme Court, inter alia, observed that "the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community." (Para 6)
45. What is proved and how the court may presume existence of certain facts, have been elaborated by the Hon'ble Supreme Court in the case of K. Ponnuswamy Vs. State of T.N. By Inspector of Police, Directorate of Vigilance and Anti-Corruption 23 (1973) 2 SCC 793 41 South Range, Trichy 24. In this case, the Hon'ble Supreme Court observed as follows:-
"27........................................................................... ................................................................................
There can be no dispute with the legal proposition. However, let us see what is meant by "proved". Section 3 of the Evidence Act defines "proved" as follows:
"3. 'Proved'.--A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
Further, Section 114 of the Evidence Act reads as follows:
"114. Court may presume existence of certain facts.--The court may presume the existence of any 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 relation to the facts of the particular case."
Thus the fact is said to be proved when after considering the matters before it, the court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case."
46. In the case of Iqbal Moosa Patel Vs. State of Gujarat 25, the Hon'ble Supreme Court discussed the concept of "proof beyond reasonable doubt" and observed as follows:- 24
(2001) 6 SCC 674 25 (2011) 2 SCC 198 42 "23. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions [(1947) 2 All ER 372] : (All ER p. 373 H) "... That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence 'of course it is possible, but not in the least probable,' the case is proved beyond reasonable doubt...."
"88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land." Ed.: As observed in Lal Singh v. State of Gujarat, (2001) 3 SCC 221, p. 273, para 88."
47. What is residue doubt? What are lingering doubts? And what is proof beyond reasonable doubt? While referring the law in different jurisdictions, in the case of Ashok Debbarma alias Achak Debbarma Vs. State of Tripura 26, the Hon'ble Supreme Court observed as follows:-
"30. An accused has a profound right not to be convicted of an offence which is not established by the evidential standard of proof "beyond reasonable doubt".
This Court in Krishnan v. State (2003) 7 SCC 56 : 2003 SCC (Cri) 1577 , held that the 26 (2014) 4 SCC 747 43 "doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case". (SCC p. 63, para 23) In Ramakant Rai v. Madan Rai (2003) 12 SCC 395 : 2004 SCC (Cri) Supp 445, the above principle has been reiterated.
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32. "Residual doubt" is a mitigating circumstance, sometimes used and urged before the jury in the United States and, generally, not found favour by the various courts in the United States. In Franklin v. Lynaugh [101 L Ed 2d 155 : 487 US 164 (1988)] , while dealing with the death sentence, the Court held as follows:
"The petitioner also contends that the sentencing procedures followed in his case prevented the jury from considering, in mitigation of sentence, any 'residual doubts' it might have had about his guilt. The petitioner uses the phrase 'residual doubts' to refer to doubts that may have lingered in the minds of jurors who were convinced of his guilt beyond a reasonable doubt, but who were not absolutely certain of his guilt. Brief for Petitioner 14. The plurality and dissent reject the petitioner's 'residual doubt' claim because they conclude that the special verdict questions did not prevent the jury from giving mitigating effect to its 'residual doubt[s]' about the petitioner's guilt. See ante at Franklin [101 L Ed 2d 155 : 487 US 164 (1988)] , US p. 175; post at Franklin [101 L Ed 2d 155 : 487 US 164 (1988)] , US p. 189. This conclusion is open to question, however. Although the jury was permitted to consider evidence presented at the guilt phase in the course of 44 answering the special verdict questions, the jury was specifically instructed to decide whether the evidence supported affirmative answers to the special questions 'beyond a reasonable doubt'. App. 15 (emphasis added). Because of this instruction, the jury might not have thought that, in sentencing the petitioner, it was free to demand proof of his guilt beyond all doubt."
33. In California v. Brown [93 L Ed 2d 934 : 479 US 538 (1987)] and other cases, the US courts took the view, "residual doubt" is not a fact about the defendant or the circumstances of the crime, but a lingering uncertainty about facts, a state of mind that exists somewhere between "beyond a reasonable doubt" and "absolute certainty". The petitioner's "residual doubt"
claim is that the States must permit capital sentencing bodies to demand proof of guilt to "an absolute certainty" before imposing the death sentence. Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing.
34. We also, in this country, as already indicated, expect the prosecution to prove its case beyond reasonable doubt, but not with "absolute certainty". But, in between "reasonable doubt" and "absolute certainty", a decision-maker's mind may wander, possibly in a given case he may go for "absolute certainty" so as to award death sentence, short of that he may go for "beyond reasonable doubt". Suffice it to say, so far as the present case is concerned, we entertained a lingering doubt as to whether the appellant alone could have executed the crime single-handedly, especially when the prosecution itself says that it was the handiwork of a large group of people. If that be so, in our view, the crime perpetrated by a group of people in an extremely brutal, grotesque and dastardly manner, could not have been thrown upon the appellant alone without charge-sheeting other group of persons numbering around 35. All the element test as well as the residual doubt test, in a given case, may favour the accused, as a mitigating factor." 45
48. On behalf of the appellants, it is argued that the testimony of the chance witness should be cautiously accepted. Reference has been made to the judgments in the cases of Baby (supra) and Ravi Mandal (supra).
49. It is true that in the case of testimony of a chance witness, the Court must seek explanation from such witness for his presence at the place of incident. Undoubtedly, the deposition of the chance witness, whose presence at the place of incident remains doubtful may not be accepted. Such witness should explain adequately as to under what circumstance, he could witness the incident. What made him to be present at the place of incident, by chance?
50. It is also argued that if the witnesses are pinned down under Section 164 of the Code, their testimony should also be not easily accepted. The law, as discussed, hereinbefore, is well settled that inference may not be drawn that the testimony of a witness is not reliable because earlier his statement has been recorded under Section 164 of the Code. Of course, if the statements of witnesses are recorded under Section 164 of the Code, an inference may be drawn that there was a time when the police thought that the witness may change. But, if the witness sticks to the statement made by him throughout, his statement may not be discarded merely on the ground that his statement was previously recorded under Section 164 of the Code. But the testimony has to be accepted with caution.
46PW2 Bablu
51. On behalf of the appellants, testimony of the PW2 Bablu has been assailed on multiple counts. It is argued that he is a chance witness. He has not explained his presence at the place of incident. His testimony is not supported with other witnesses. He tells in the court that he was very close to PW1 Brij Mohan, but after the incident, he did not meet PW1 Brij Mohan; he also did not inform PW1 Brij Mohan telephonically or otherwise about the incident. Therefore, it is argued that he is the most unreliable witness.
52. This Court had already narrated as to what was stated by PW2 Bablu in his evidence. The testimony of this witness reveals as if he was much close to PW1 Brij Mohan. According to him, PW1 Brij Mohan had love marriage with the deceased, which took place in Tehsil Laksar, where he was present. He also states about his presence as follows:-
(i) On 17.05.2018, when PW11 Smt. Saroj and Ankit, son of the PW3 Jayawanti had visited their village Dharampur to take the deceased Preeti with them, according to him, he had spoken to PW11 Smt. Saroj at that time.
(ii) On 17.05.2018 at 07:00 p.m., according to him, Ankit had taken the deceased Preeti with him to Abdipur and this witness had seen them going, as he was standing outside his house.
(v) On 18.05.2018, at 10:00 in the morning, when this witness was going towards his fields, he had 47 seen the deceased Preeti sewing the suit at the door of his maternal uncle's house, where PW3 Jayawanti and PW11 Smt. Saroj were also sitting.
(vi) On 18.05.2018, at 01:30 p.m., this witness was returning on his tractor, when he heard shrieks from the house of PW3 Jayawanti. Thereafter, he went inside the house and according to him, he had seen all the appellants assaulting the deceased Preeti.
53. PW2 Bablu has stated that when he entered into the house of PW3 Jayawanti, he saw the appellant Rahul exhorting that the deceased Preeti may be killed and thereafter, the appellant Kuldeep armed with an axe and the appellant Arun armed with a shovel attacked the deceased Preeti. When this witness tried to save the deceased Preeti, the appellants also tried to beat him. Thereafter, they ran away. If the statement of this witness is seen, he states as if he was present at every important place relating to the killing of deceased Preeti. Where was PW1 Brij Mohan on the date of incident? It is interesting to note that according to PW2 Bablu, PW1 Brij Mohan was at Aethal on that date and in the morning, he had told it to this witness and left at 07:00 a.m. (statement of PW2 Bablu, page 7 para 5). Does it mean that PW2 Bablu was much close to PW1 Brij Mohan that PW1 Brij Mohan was involving this witness in each and every affair of his life? Even when he was going on 18.05.2018, he, according to PW2 Bablu, revealed it to PW2 Bablu that he was going to Aethal at 07:00 in the morning. 48
54. After the incident, what is interesting to note is that according to PW2 Bablu, he did not meet PW1 Brij Mohan. He did not tell it to him as to how his wife died. He admits that he had mobile phone on that date, but he did not make telephone call to PW1 that his wife had been killed. In fact, in page 6, para 2 of his statement, PW2 Bablu says that on the date of incident, he had no conversation with PW1 Brij Mohan. This is much unusual for PW2 Bablu. A man so close to PW1 Brij Mohan did not talk to him as to who killed his wife.
55. According to PW 2 Bablu, his statement was recorded after 2 - 21/2 months of the incident (Page 6, last para). Why? If this witness had witnessed the incident, why his statement was recorded so late?
56. PW2 Bablu tells (Page 3, last 3 lines) that in the incident, nobody got injuries while saving the deceased Preeti. According to the prosecution, at the time of incident, PW11 Smt. Saroj tried to save the deceased Preeti and she sustained injuries. PW11 Smt. Saroj has stated so and PW3 Jayawanti and PW5 Ruby have also corroborated her statement.
57. PW2 Bablu is not a resident of village Abdipur, where the incident took place. He is a resident of Village Dharampur. He has admitted that his fields lie between Village Abdipur and Village Dharampur (Page 3, line 4), which means that if a person starts from Dharampur, which is the village of PW2 Bablu, he would reach the fields of PW2 Bablu first and thereafter, one can reach Village Abdipur, where the incident took place. This witness PW2 Bablu also tells that there are two ways to reach his fields from his village. 49 One through Village Abdipur, which is a longer route and another is through Kaccha, but it is a shorter route. He has stated that he has gone via Abdipur on the date of incident. Why? If according to this witness, his fields were before the village Abdipur, what was the occasion for him to go to Abdipur? He has not explained it. It doubts his presence.
58. PW3 Jayawanti, PW5 Ruby and PW11 Smt. Saroj have stated that the appellants Kuldeep and Arun killed the deceased Preeti. They have not named the appellant Rahul. PW2 Bablu speaks against the appellant Rahul also.
59. The presence of PW2 Bablu at the place of incident is much doubtful for another reason. According to him, while returning from his fields, he alongwith two more persons were on the tractor; when they heard shrieks from the house of PW3 Jayawanti, they reached in the house of PW3 Jayawanti, where they witnessed the incident. According to PW2 Bablu, the house of PW3 Jayawanti is at a distance of 30 meters from the pathway. The evidence is to be appreciated in the context of all the attending circumstances.
60. According to PW3 Jayawanti and PW5 Ruby, the appellants Kuldeep and Arun suddenly barged into the room and attacked Preeti and ran away. They did not take much time. If this is read alongwith the statement of PW2 Bablu, when he says that while passing through the pathway of the Village Abdipur, they heard shrieks from the house of PW3 Jayawanti, they stopped their tractor, walked 30 meters and thereafter, heard the appellant Rahul exhorting to kill Preeti and according to PW2 Bablu, thereafter, the 50 appellants Kuldeep and Arun killed Preeti. This is much doubtful. Were the appellants waiting for PW2 Bablu to come and witness the incident? Even otherwise, while driving a tractor, which in its own generates a lot of noise, stopping it on the shrieks, walking 30 meters and thereafter, witnessing the incident is not a reliable statement of PW2 Bablu.
61. PW5 Ruby is daughter of PW3 Jayawanti. In her house, the incident took place. In her statement, PW5 Ruby has stated that PW2 Bablu, Munnu and Ompal did reach at the place of incident after half an hour of the incident (statement at Page 2, para 6). PW3 Jayawanti has not stated that any person from the village had come to save Preeti at the time of incident. PW1 Brij Mohan has told it to the IO that "Now I come to know that Munnu Singh, Ompal and PW2 Bablu reached at the place of incident after some time of the incident." Although, PW1 Brij Mohan has denied of giving such statement, but PW14 SI Dilmohan Singh Bisht has confirmed that this statement was given by PW1 Brij Mohan (statement of PW14 SI Dilmohan Singh Bisht at para 15).
62. In view of the foregoing discussion, based on multiple reasons, this Court has no doubt that PW2 Bablu could not explain his presence at the place of incident. His presence at the place of incident is much doubtful. He is not a reliable witness. In Re: Appellant Rahul
63. Before proceeding further, this Court thinks it appropriate to examine the prosecution case qua the appellant Rahul. PW1 Brij Mohan is not an eyewitness. He has named various 51 persons as an accused in his FIR, including the appellant Rahul. But, in his examination in the court, he has stated that he did receive a telephone call from PW5 Ruby that the appellants Kuldeep and Arun killed the deceased Preeti and one person Rantej was waiting outside on a motorcycle. PW1 Brij Mohan has not stated that the appellant Rahul attacked the deceased Preeti. Although, this witness has stated that PW5 Ruby had told it to him that the appellant Rahul had called the appellant Kuldeep and others and he had supplied then the weapons of offence. He has also stated against other persons, including PW11 Smt. Saroj as a person involved in the case as they were not happy with his love marriage. PW5 Ruby has not stated anything against the appellant Rahul. She has not stated that the appellant Rahul had called the appellants Kuldeep and Arun and others and had in any manner supplied the weapons of offence. Therefore, on this aspect, the statement of PW1 Brij Mohan is not corroborated by the statement of PW5 Ruby.
64. PW3 Jayawanti and PW5 Ruby are eyewitnesses of incident. They have not named Rahul as the person, who killed the deceased. According to both of them, the appellants Kuldeep and Arun did kill the deceased Preeti. PW11 Smt. Saroj has stated about the incident, but she has not identified or named any assailant. According to her, the assailants had masked their faces. PW2 Bablu has stated that it is the appellant Rahul, who was exhorting other appellants to kill the deceased, but this Court has already held that the statement of PW2 Bablu is much doubtful. His statement is not reliable.
65. Therefore, in view of the foregoing discussion, this Court is of the view that insofar as, the appellant Rahul is concerned, 52 the prosecution has not been able to prove its case beyond reasonable doubt against the appellant Rahul. Accordingly, the appellant Rahul deserves to be acquitted of the charge. In Re: Kuldeep and others
66. The prosecution case with regard to the incident is much established. The deceased Preeti was killed on 18.05.2018 at about 01:30 p.m. in the house of PW3 Jayawanti. Prosecution has examined three eyewitnesses of the incident, namely, PW3 Jayawanti, PW5 Ruby and PW11 Smt. Saroj (though she has been declared hostile because she did not name the assailants).
67. On behalf of the appellants, the testimony of PW3 Jayawanti has been assailed. It is argued that she was not present at the place of incident and this has been argued based on the statement of PW6 Khushalpal Singh @ Pappu. PW6 Khushalpal Singh @ Pappu is otherwise the witness of inquest. But, when cross examined by the defence, he told that on the date of incident at about 11:00-11:30, PW3 Jayawanti had taken meals for her husband and children in the fields where she was working till 02:00-02:30 p.m. According to this witness PW6 Khushalpal Singh @ Pappu, when he received an information of the incident, he called the husband of PW3 Jayawanti that there is a fight in his house and thereafter, he alongwith PW3 Jayawanti and Santarpal, the husband of PW3 Jayawanti came back. It is argued on behalf of the defence that this part of the statement of PW6 Khushalpal Singh @ Pappu does not support the prosecution case. According to this statement, PW3 Jayawanti was not present at the place of incident, when this incident took place. It is argued that on this point, the 53 prosecution has not cross examined PW6 Khushalpal Singh @ Pappu. Therefore, prosecution has to accept his evidence. A large number of case laws are cited on this point, which have already been referred to. The principles of law do not need any reiteration. It has been held that the prosecution cannot wriggle out from the statements of such witnesses; the prosecution has to accept it.
68. In the case of Raja Ram (supra), the Hon'ble Supreme Court has held that the evidence of such witnesses are binding on the prosecution and in para 9 of the judgment, the Hon'ble Supreme Court further observed that "absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8's testimony can be sidelined."
69. It is true that PW6 Khushalpal Singh @ Pappu has not been cross examined by the prosecution on this very crucial aspect. But, can it per se demolish the entire prosecution case? After all, appreciation of evidence is something which has to be done collectively. The Court cannot read a line here or a line there. It is also settled principle of law that if a part of statement is not true and it can be separated from other part of the statement of the witness, such separation can be done and that part of the evidence may be accepted, which is reliable.
70. This Court has multiple evidences with regard to presence of PW3 Jayawanti at the place of incident but at one place, PW6 Khushalpal Singh @ Pappu has stated that PW3 Jayawanti was not present at the place of incident. So has been stated by PW11 Smt. Saroj also. Can that part of the evidence of PW6 Khushalpal Singh @ Pappu or PW11 Smt. Saroj be sidelined? Can they be disbelieved to the extent that PW3 Jayawanti was not in the fields at 54 the relevant time or whether the testimonies of PW3 Jayawanti, PW5 Ruby may be accepted that PW3 Jayawanti was present at the spot when the incident took place? Evidence has to be evaluated and appreciated.
71. First and foremost document is the inquest report. It is Annexure A4 on the record. According to it, at 01:45 p.m., a report was received at the Police Station from SI Naresh Kumar and PW6 Khushalpal Singh @ Pappu. Does it mean that PW6 Khushalpal Singh @ Pappu had informed the police about the incident at 01:45 p.m.? If it is so, his testimony is not reliable, when he says that they were in fields up till 02:00 - 02:30 p.m., when he returned alongwith PW3 Jayawanti and Santarpal. The inquest began at 02:20 p.m. and it records that the deceased was identified by PW3 Jayawanti and PW11 Smt. Saroj.
72. Who informed PW1 Brij Mohan about killing of his wife Preeti? The fact regarding presence of PW 3 Jayawanti at the place of incident is also relevant to be ascertained. According to PW1 Brij Mohan, after the incident on 18.05.2018 at 01:30 p.m., PW5 Ruby had telephoned him that the appellants Kuldeep and Arun had assaulted the deceased Preeti with axe and shovel (statement at page 2, 4th line). PW3 Jayawanti has stated that when the appellants left the place of incident, she telephoned PW1 Brij Mohan and told him that the appellants Kuldeep and Arun had come and killed the deceased Preeti. It is the prosecution case that after the incident, the cell phone of deceased Preeti was at the place of incident. PW5 Ruby located it and contacted PW1 Brij Mohan and thereafter, PW3 Jayawanti spoke to him (PW3 Jayawanti, page 6, 5th para). 55
73. PW5 Ruby has also stated that after the incident, she located the phone of the deceased Preeti and called PW1 Brij Mohan and thereafter, the mother of the this witness, i.e. PW3 Jayawanti informed PW1 Brij Mohan about the incident. This telephone call of PW3 Jayawanti to PW1 Brij Mohan soon after the incident belies the statement of PW6 Khushalpal Singh @ Pappu that PW3 Jayawanti was not at the place of incident at the time of incident. In fact, PW3 Jayawanti was very much present in her house when the incident took place. It is she who telephoned PW1 Brij Mohan immediately after the incident, about the incident. The statement of PW1 Brij Mohan, PW3 Jayawanti and PW5 Ruby are corroborating to each other on this aspect. Therefore, that part of the statement of PW6 Khushalpal Singh @ Pappu is not reliable when he says that PW3 Jayawanti was in the fields at the time of incident. Even otherwise, PW3 Jayawanti was not given a single suggestion by the defence that she was in the fields when the incident took place.
74. On the other hand, on behalf of the defence, correctively a suggestion was given to PW3 Jayawanti that she did not save the deceased Preeti. To which she replied as follows:
"It is wrong to say that I did not save Preeti. How could I save her, when they have pushed me and went towards her."
75. Although general suggestions were given that PW3 Jayawanti had not witnessed the incident. But, as stated, it was not suggested to her that she was in the fields at the relevant time. The suggestion that PW3 Jayawanti did not go to save Preeti itself suggests that the defence has accepted and admitted the presence of PW3 Jayawanti at the place of incident.
56
76. In view of the foregoing discussion, this Court is of the view that PW3 Jayawanti was very much present at the place of incident.
77. PW3 Jayawanti has categorically stated that on 18.05.2018, when she was in her house, the appellants Kuldeep and Arun barged into the room, abused, pushed her and attacked deceased Preeti. The appellant Arun attacked with shovel and the appellant Kuldeep attacked with an axe, due to which she fell down and died. PW5 Ruby reached at the place of incident soon after the incident. She was in the latrine at the relevant time. When she heard noise, she returned and saw both the appellants coming out from her house. The appellant Kuldeep was armed with an axe and the appellant Arun was armed with a shovel. When this witness went inside, she found Preeti dead. Both these witnesses have proved their statements recorded under Section 164 of the Code.
78. PW3 Jayawanti and PW5 Ruby are quite natural witnesses. The incident took place in their house. The deceased as well as the appellants Kuldeep and Arun, all are their relatives.
79. PW11 Smt. Saroj also supports the prosecution case. She tells that on the date of incident, deceased Preeti was killed in her presence inside the room of PW3 Jayawanti. She also tells that at the relevant time, PW5 Ruby had gone to latrine and she had returned soon, which means, the PW5 Ruby had occasion to identify the assailants. PW11 Smt. Saroj and the appellants Kuldeep and Arun are near relatives. Even if some near relative had masked the face, one could identify him. But, PW11 Smt. Saroj has not supported the prosecution case on that aspect. But, she has supported the prosecution case in material particulars. She has also 57 proved the presence of PW5 Ruby at the place of incident soon after the incident. Her statement to the extent that PW3 Jayawanti was not at the place of incident is not reliable, as this Court has already held that PW3 Jayawanti was very much present at the place of incident. The statement of PW5 Ruby is also natural and reliable.
80. In view of the foregoing discussion, this Court is of the view that the prosecution has been able to prove beyond reasonable doubt that on 18.05.2018, at about 01:30 p.m., the appellants Kuldeep and Arun entered into the house of PW3 Jayawanti and killed the deceased Preeti. The appellant Arun attacked her with shovel, whereas the appellant Kuldeep attacked her with an axe. As stated, the statements of PW3 Jayawanti and PW5 ruby find support from the statement of PW11 Smt. Saroj.
RECOVERY
81. According to the prosecution case, after their arrest, the appellants Kuldeep and Arun also got recovered the weapons of offence and shirts worn by them at the time of incident. PW8 SI Ashish Negi and PW13 SI Rakam Singh Negi have stated about it. On behalf of the appellants, it is argued that the recovery cannot be read under Section 27 of the Evidence Act, because there was no disclosure statement. PW8 SI Ashish Negi has stated that they had left the station by GD report No. 25 at 03:25 p.m., on 19.05.2018 for recovery, but disclosure statement has not been proved. PW13 SI Rakam Singh has also not proved the disclosure statement, as to what was told by the appellants Kuldeep and Arun about the incident or the weapons of offence before they proceeded to recover the articles.
58
82. Learned State counsel has admitted during the course of argument that there is no disclosure statement. In view of it, as per settled law, the alleged recovery may not be read under Section 27 of the Evidence Act. As held in the case of Shahaja @ Shahajan Ismail Mohd. Shaikh (supra), the conduct of the appellants may be relevant fact under Section 8 of the Evidence Act.
83. It is the prosecution case that the recovered articles were sent for forensic examination and the FSL report supports the prosecution case.
84. Learned Senior counsel for the appellants would submit that the FSL report cannot be read into evidence because it was never tendered in evidence and it is doubtful also. In support of his contention, learned counsel has placed reliance upon the principles of law, as laid down in the cases of Wali Muhammad Vs. King Emperor 27, Karan Singh Vs. State of Chhattisgarh 28, Sant Lal Vs. State 29, State of Bihar Vs. Durgawati Devi and another 30, Dharampal and another Vs. State 31, and Anish Ahmed Vs. The State (NCT) Delhi 32.
85. In the case of Wali Muhammad (supra), the Hon'ble Court observed as follows:-
"5. I am of opinion that this additional evidence ought not to have been perused in appeal unless the provisions of section 428 of the Cr PC ware complied with. No reasons were recorded, and no formal order admitting it was passed. It was treated as if it were a piece of evidence already on the record. Under section 510 of the Cr PC any document 27 1923 SCC OnLine All. 73 28 2006 SCC OnLine Chh. 104 29 2016 SCC OnLine Del. 2723 30 2021 SCC OnLine Patna 2009 31 2011 SCC OnLine Del 3123 32 2011 SCC OnLine Del. 3110 59 purporting to be a report under the hand of a Chemical Examiner upon any matter duly submitted to him for examination and report may be used as evidence in any enquiry, trial or other proceeding. This however does not imply that without tendering it in evidence it can be made use of for the first time in appeal. It is a piece of evidence that does not require any formal proof, but at the same time it must be tendered as-evidence and used as such, so that the accused may have a chance of questioning the identity of the packets. I am satisfied that this was not done in the present case. In failure of the report having been formally brought on the record, there is really no satisfactory evidence to show that the powder contained in these packets was cocaine."
86. In the case of Karan Singh (supra), the Hon'ble Court observed that "the record does not show that at any time during trial, the evidence of the Forensic Science Laboratory was tendered by the prosecution and was exhibited as evidence as required under Section 293 of Cr. P.C. There is also absolutely nothing in the testimony of A.S.I. Shri Ashok Dwivedi P.W. 3 which would show that he had any reason to believe that the substance seized from the appellant was Ganja. The prosecution has, therefore, failed to establish that the substance alleged to have been seized from the appellant was Ganja." (Para 6)
87. In the case of Sant Lal (supra), the Hon'ble Court, in para 18 observed as follows:-
"18. Chapter 5 of the Indian Evidence Act deals with proof of documentary evidence. Author of a document is the person competent to prove the document and in his absence the document may be proved by a person who has seen and is familiar with the signature and handwriting of the author of the document except a public document. Section 293 Cr.P.C. permits reports of a category of Government scientific experts to be used in evidence in any enquiry, trial or other proceedings without the witness appearing in the witness box 60 himself. However, the party who uses the document is not exonerated from tendering the same in evidence. Documents admissible under Section 293 Cr.P.C. can be tendered in evidence by any person who is connected with the document in the sense he has brought the document or sought for the document in the absence of expert himself unless the Court deems it fit to summon the expert.
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88. In the case of Durgawati Devi (supra), Dharampal (supra) and Anish Ahmed (supra), similar principles of law have been laid down.
89. This is not for the first time that this argument is being raised at this stage. During the course of hearing, on 23.08.2022, a substantial question was raised regarding manner of acceptance of FSL report containing DNA profile and not putting the same to the appellants. It is thereafter, on 30.08.2022, the Court heard the parties and passed the detailed order. In para 7 of it, the Court observed as follows:-
"7. Thus, this Court is of the opinion that non examination of the Scientific Officer of the State Forensic Science Laboratory, Dehradun and not exhibiting the forensic report but acting upon the same, has not caused prejudice to the condemned prisoners but this Court is not inclined to set aside the judgment and remand the entire case for de novo trial on this account. This Court is also of the opinion that remand of the case to the trial court for de novo trial is required in rarest of rare case and not in all cases. There is a procedural mistake in admitting the evidence by the trial Judge and in the opinion of this Court, this is not the rarest of rare case where the trial court's judgment should be set aside and de novo trial should be ordered."61
90. Thereafter, the directions were given that the appellants may be produced so that they may be examined under Section 313 of the Code. The appellants were so produced and they were examined under Section 313 of the Code and one defence witness was also examined at this stage. But, the fact remains that in para 7 of this Court's order dated 30.08.2022, this Court had already concluded that "non examination of the Scientific Officer of the State Forensic Science Laboratory, Dehradun and not exhibiting the forensic report but acting upon the same, has not caused prejudice to the condemned prisoners". Therefore, the same points cannot be agitated again.
91. In view of the foregoing discussion, this Court is of the view that the prosecution has been able to prove its case beyond reasonable doubt against the appellants Kuldeep and Arun.
SENTENCE
92. On behalf of the appellants, it is argued that they were never given any opportunity to adduce evidence on sentence. It is also argued that before a decision is taken to award death penalty, the Court needs to consider the mitigating and aggravating circumstances of the case and without assessing those circumstances, death penalty may not be awarded.
93. If an opportunity to adduce evidence is not given at the time of sentence, particularly, where death sentence is awarded, what would be its consequences have been discussed by the Hon'ble Supreme Court in the case of In Re: Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered while Imposing Death Sentences (supra). The Hon'ble Supreme Court has observed that " In cases, where it was felt that real and effective hearing 62 may not have been given (on account of the same day sentencing), this court was satisfied that the flaw had been remedied at the appellate (or review stage), by affording the accused a chance to adduce material, and thus fulfilling the mandate of Section 235(2)." (Para 27)
94. In the instant case, it is true that while awarding the death penalty, the court has not considered the mitigating and aggravating circumstances. The death penalty is not a rule, the rule is life imprisonment.
95. It is argued on behalf of the prosecution that it is a case of honour killing. Although, learned amicus curiae would submit that it is not a case of honour killing because PW1 Brij Mohan and the deceased Preeti had married in the year 2014 and the incident took place in the year 2018. Learned Senior Counsel for the appellants would also submit that it is not a case of honour killing. The appellants were having talking terms to PW1 Brij Mohan. There was no animosity between them. Initially, the family members of the deceased Preeti were not agreeable to her marriage with PW1 Brij Mohan, but subsequently, the relations were cordial and normal.
96. The words "honour killing", as such, are not defined anywhere. In the case of Shakti Vahini Vs. Union of India and others 33, the Hon'ble Supreme Court discussed this aspect. In para 1 of the judgment, the Hon'ble Supreme Court observed that "The question that poignantly emanates for consideration is whether the elders of the family or clan can ever be allowed to proclaim a verdict guided by some notion of passion and eliminate the life 33 (2018) 7 SCC 192 63 of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of the clan. The answer has to be an emphatic "No".
97. In para 6 of the judgment, the Hon'ble Supreme Court discussed the concept of honour in such matters as follows:-
"6. It is set forth in the petition that the actions which are found to be linked with honour based crimes are : (i) loss of virginity outside marriage; (ii) pre- marital pregnancy; (iii) infidelity; (iv) having unapproved relationships; (v) refusing an arranged marriage; (vi) asking for divorce; (vii) demanding custody of children after divorce; (viii) leaving the family or marital home without permission; (ix) causing scandal or gossip in the community, and (x) falling victim to rape. Expanding the aforesaid aspect, it is stated that some of the facets relate to inappropriate relationship by a woman some of which lead to refusal of arranged marriages. Certain instances have been cited with regard to honour crimes and how the said crimes reflect the gruesome phenomena of such incidents. Murder in daylight and brutal treatment in full public gaze of the members of the society reflect that the victims are treated as inanimate objects totally oblivious of the law of the land and absolutely unconcerned with the feelings of the victims who face such cruelty and eventually succumb to them. The expression of intention by the couples to get married even if they are adults is sans sense to the members who constitute the assembly, for according to them, it is the projected honour that rules supreme and the lives of others become subservient to their desires and decisions. Instances that have been depicted in the writ petition pertain to beating of people, shaving of heads and sometimes putting the victims on fire as if they are "flies to the wanton boys". Various news items have been referred to express anguish with regard to the abominable and horrifying incidents that the human 64 eyes cannot see and sensitive minds can never countenance."
98. In the same judgment, in para 23, the Hon'ble Supreme Court discussed the Law Commissions 242nd Report on "Prevention of Interference with the Freedom of Matrimonial Alliances (in the Name of Honour and Tradition) : A Suggested Legal Framework". Para 1.2 of the report is as follows:-
"1.2. At the outset, it may be stated that the words "honour killings" and "honour crimes" are being used loosely as convenient expressions to describe the incidents of violence and harassment caused to the young couple intending to marry or having married against the wishes of the community or family members. They are used more as catch phrases and not as apt and accurate expressions."
99. It is admitted fact that PW1 Brij Mohan and the deceased Preeti both had romantic relationship before they entered into the marriage. They married in the court. PW1 Brij Mohan has stated that the family members of the deceased Preeti were unhappy with the marriage. Therefore, they had to perform the marriage in the Court. He never visited his in-law's house. The deceased Preeti had no connections with her parental family. Although, according to him, he was threatened on multiple occasions telephonically. He also tells that twice he had talked to the appellant Kuldeep prior to the incident. PW3 Jayawanti has stated that PW1 Brij Mohan and the deceased Preeti belonged to the same caste. Their marriage was a court marriage. PW11 Smt. Saroj, tells that after the marriage of PW1 Brij Mohan and the deceased Preeti, there was some animosity initially, but later on, the relations were normal. She would submit 65 that the appellants Kuldeep and Arun would visit the deceased in her house and they would talk to PW1 Brij Mohan also.
100. In the instant case, the appellant Kuldeep also moved an application for examining himself as a witness, which was allowed by the trial court on 04.12.2021. Thereafter, the appellant Kuldeep was examined as DW3. He has also admitted that their family members were not agreeable to the marriage of PW1 Brij Mohan with the deceased, therefore, they were not talking to them for about one and a half years. But subsequently, they started talking to each other and their animosity has been removed.
101. This Court has held that the prosecution has been able to prove that the appellant Kuldeep and Arun killed deceased Preeti with shovel and axe. Why did they kill her? PW1 Brij Mohan and the deceased Preeti had married against the wishes of the family members of the deceased Preeti. There was initial animosity. PW1 Brij Mohan has stated that he never visited his in-law's house. Even his wife deceased Preeti did not ever visit her parental house. Merely calling once or twice in the four years after marriage, till the deceased died, shows that the animosity between them was not resolved. It is nothing, but a case of honour killing. Appellants Kuldeep and Arun, both brothers, have killed their real sister because she married against their wishes to the PW1 Brij Mohan.
102. Now there remains the question of sentence. The trial court has awarded death penalty, which is to be awarded in rarest of the rare cases. In the case of Bachan Singh Vs. State of Punjab 34, the Hon'ble Supreme Court observed that Judges should never be 34 (1980) 2 SCC 684 66 bloodthirsty while interpreting the law on this subject. The Hon'ble Supreme Court observed as follows:-
"209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency -- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
103. Subsequent to it, in the case of Machhi Singh and others Vs. State of Punjab 35, while following the principles of law, as laid down in the case of Bachan Singh (supra), the principles have been 35 (1983) 3 SCC 470 67 summed up by the Hon'ble Supreme Court in paras 38 and 39 as follows:-
"38. In this background the guidelines indicated in Bachan Singh case (1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636 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 [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] :
"(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.
39. In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to 68 the mitigating circumstances which speak in favour of the offender?"
104. What would be mitigating and aggravating circumstances? In the case of Ramnaresh and others Vs. State of Chhattisgarh 36, the Hon'ble Supreme Court discussed the law, as laid down in the case of Bachhan Singh (supra) and Machhi Singh (supra), and in para 76 enumerated the circumstances, which may be termed as aggravating and mitigating circumstances and the principles. It reads as follows:-
"76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh (1980) 2 SCC 684 : 1980 SCC (Cri) 580 and thereafter, in Machhi Singh (1983) 3 SCC 470 : 1983 SCC (Cri) 681 . The aforesaid judgments, primarily dissect these principles into two different compartments--one being the "aggravating circumstances" while the other being the "mitigating circumstances". The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC.
Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.36
(2012) 4 SCC 257 69 (2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving
inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.70
Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.
77. While determining the questions relatable to sentencing policy, the court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.71
Principles (1) The court has to apply the test to determine, if it was the "rarest of rare" case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime."
105. In the instant case, what is aggravating is that the appellants Kuldeep and Arun did kill their sister because she had married against their wishes to PW1 Brij Mohan. Another aggravating circumstance is that it is honour killing, which weakens the social fabric. But, there are multiple mitigating circumstances as follows:-
(i) On 17.05.2018, the deceased had gone to the house of PW3 Jayawanti for condolence. So it cannot be said a cold blooded murder.
(ii) It is an instant killing.
(iii) The deceased was not in the helplessness
condition. She was in her maternal aunt's house comfortably waiting to return to her house.
(iv) The appellants Kuldeep and Arun had no criminal antecedents. They are unfortunate brothers, who under the false impression of honour, under some ruthless emotions, did kill their own sister.72
(v) The appellants Kuldeep and Arun both are young.
(vi) It has not been shown by the prosecution that there are no chances of their reformation.
(vii) It is not shown that the appellants Kuldeep and Arun are any danger to society.
(viii) The appellants Kuldeep and Arun are not habitual offenders so that they may indulge in commission of similar crime in future.
106. Having given a thoughtful consideration to all the aggravating and mitigating factors, this Court is of the view that imposition of death sentence would be unwarranted in the present case. It would be appropriate and in the overall interest of justice to commute the death sentence of the appellants Kuldeep and Arun to life imprisonment.
CONCLUSION
107. (i) Appellant Rahul is acquitted of the charge under Sections 302, 120B and 506 IPC. He is in custody. Let he be released forthwith, if not wanted in any other case.
(ii) The conviction of the appellants Kuldeep and Arun under Sections 302, 120B and 506 IPC is upheld and confirmed.
(iii) The sentence imposed on the appellants Kuldeep and Arun under Section 506 IPC is upheld.
(iv) The sentence of death awarded to the appellants Kuldeep and Arun under Sections 302 and 120B IPC is commuted to the imprisonment for life. 73
(v) The impugned judgment and order is modified to the extent of acquittal of the appellant Rahul under Sections 302, 120B and 506 IPC and also to the extent of commuting the sentence of death awarded to the appellants Kuldeep and Arun under Sections 302 and 120B IPC to the imprisonment for life.
(vi) Criminal Reference No. 02 of 2017 is answered, as above.
(vii) Criminal Appeal Nos. 189 of 2022, 196 of 2022 and 229 of 2022 are decided in terms of the orders, as above.
108. Let a copy of this judgment alongwith lower court record be forwarded to the court below for compliance. (Alok Kumar Verma, J.) (Ravindra Maithani, J.) 26.07.2024 Jitendra