Rajasthan High Court - Jaipur
State Of Rajasthan vs Vinod Malhotra on 12 April, 1996
Equivalent citations: 1997CRILJ1488, 1996(1)WLN669
Author: Gyan Sudha Misra
Bench: Gyan Sudha Misra
JUDGMENT N.L. Tibrewal, J.
1. The sole appellant was tried, convicted and sentenced to death under Section 302 of the Indian Penal Code (for short 'IPC') by the learned Additional Sessions Judge (Special Judge), Alwar in Sessions Case No. 128/93 (Old No. 42/92). The proceedings of the case has been submitted before this Court for confirmation of death sentence as required under Section 366 of the Code of Criminal Procedure. Thus, we have before us the appeals of the appellant and the reference for confirmation of capital punishment.
2. At this stage, it would be appropriate to take stock of the prosecution case as unfolded by it for seeking conviction of the appellant. The story of the case relates to brutal murder of four persons closely related to the appellant. The deceased are appellant's wife Smt. Kiran, his two months old daughter, father-in-law Shri Ram Prakash Verma and uncle-in-law Banarsi Das. The appellant was married to Smt. Kiran on March 11, 1988 and from their wed-lock they had two months' old daughter only. At the relevant time, the appellant was working as Telephone Inspector in Tele Communication Department and lived in Quarter No. 9 of P & T Colony, Alwar with his wife and the minor daughter. From various letters and other materials on record, it appears that the husband and wife had cordial and happy relations in the early 2-3 years of their marriage, but subsequently their relations became highly strained and tense. It is alleged that the wife Smt. Kiran was being subjected to harassment and cruelty by the appellant, his mother and younger brothers with a view to meet their unlawful demand of dowry. Before her death, Smt. Kiran wrote letters to her parents stating therein that she was highly perturbed for being harassed to bring a colour television and one lac rupees and that the demand was being made particularly by her mother-in-law and brother-in-law (Devar) for the marriage of her brother-in-law which was fixed on 1st February.
The story further goes that Smt. Kiran sent a telegram to her father at Muzaffar Nagar, asking him to come at Alwar immediately. On receipt of the telegram, her father Ram Prakash and uncle Banarsi Das reached Alwar in the morning of 2nd January, 1992 and the incident took place on the same day in night, wherein four persons aforesaid were murdered in a brutal manner in the appellant's Quarter. According to the prosecution, the appellant and the deceased persons and none else were in the Quarter at the time of incident.
3. The story is further unfolded that at 12.40 a.m. in the night of incident an anonymous telephonic message was received at Police Station, Kotwali, Alwar informing that some quarrel took place in Quarter No. 9 of P & T Colony and police be sent there immediately. The informant did not disclose his name. The telephone was attended by the Officer on duty Shri Rajendra Singh A.S.I., and the information was entered in 'Rojnamcha' by Literate Constable Dinesh Kumar. After 10 minutes, at 12.50 a.m. another telephonic message was received by A.S.I. Rajendra Singh whereby information of four murders in Quarter No. 9 was conveyed to him. He was also informed that the murderer was in the Quarter and he should reach at the site immediately to arrest him and that it was a golden opportunity for him to get promotion. This information was also entered in the 'Rojnamcha' maintained at the Police Station. Thereupon, the ASI Shyamlal and Constables Manoj Kumar and Chandan Singh started for the place of incident and communication was also made at Police Station Arawali Vihar to send the S.H.O. with police force at the site of occurrence. At 12.52 a.m. in the same night, the SHO Shri Virendra Singh also received a telephonic call at Police Station Aravali Vihar asking him to reach at Quarter No. 9 of P & T Colony if he wanted to get promotion. On enquiry the informant gave his name as Vinod Kumar Malhotra, who asked him to reach at the site immediately as some serious incident had taken place there. This information was also recorded in the Rojnamcha. Thereafter, the SHO-Virendra Singh started with police force to the place of occurrence. Thus, on . respective informations, the SHO-Virendra Singh and ASI-Shyamlal simultaneously reached at Quarter No. 9 with police force. They found the door of the house closed. On knocking the door, the appellant opened the gate and disclosed his name as Vinod Kumar Malhotra. At that time he was smeared with blood extensively. The police officers found four dead bodies which were lying in the room in a pool of blood. Then, the appellant was taken to Police Station, Kotwali by the ASI Shyamlal and the house was put under supervision of a Constable after locking it from outside.
4. After reaching at the Police Station, ASI Shyamlal made a written Report (Ex. P-36) at 1.45 a.m. stating factual aspects therein. On this report Crime No. 2/1992 was registered under Section 302, IPC and a formal F.I.R. (Ex. P-37) was chalked out by the SHO Gopal Singh. After registration of the case, investigation commenced and the SHO Gopal Singh immediately visited site of the occurrence along with ASI Shyamlal and other police personnels. However, he did not think it proper to inspect the site in night, as photographs of the site were to be taken and chance prints were to be obtained from there. The SHO Gopal Singh, then came back to the Police Station after giving necessary instructions to Shri Vinod Kumar SHO to preserve site conditions. He, thereafter, recorded statements of police persons who had visited the site of occurrence after receiving information on phone. The appellant was arrested vide arrest Memo Ex. P-34 and bloodstained clothes and dry blood were seized from his body vide Memo Ex.P-35. The articles were sealed in 4 packets. After Sunrise, the SHO again came at the site of occurrence and minutely inspected it. He found deadbody of appellant's wife Smt. Kiran lying near main gate of the house in a pool of blood. The deadbody of appellant's father-in-law was lying on the cot and it was also smeared with blood. The deadbody of appellant's uncle-in-law Banarsi Das was found in a sitting-pose near a wall, while deadbody of the Baby was lying in the inner Verandah. On the Dinning Table, which was in the room,, two papers written in redink, one pen, one screw driver and one knife were found lying. The entire room was in a pool of blood. Pieces of a broken chair, one wooden rod (Danda) meant for washing clothes and a 'Imam dasta' were also lying in the room and were smeared in blood. He prepared site-plan Ex. P-8 and seized the above articles vide Memo P. 18. Photographs of the site were arranged to be taken by the photographers. Chance prints were obtained from the site by Pratap Singh and Shri Anil Sinha, a photographer of Finger Print Bureau, who happened to be in the city on that day in connection with some other criminal case. Inquest Reports of the dead bodies were prepared. On search of the clothes of Ram Prakash deceased, a purse, an Identity Card, a letter of reference written by General Secretary of All India Swarnkar Vikas Parishad a telegram dated 1-1-92, 4 letters in red-ink written by the deceased Smt. Kiran and one letter of Dr. Suresh Kumar Singhal adressed to General Secretary/Local M.L.A. of Alwar were recovered. from a pocket of his shirt. Post-mortem of dead-bodies was conducted, by a Medical Board consisting of Dr. M. K. Gupta, Dr. K. K. Agrawal and Dr. S. S. Yadav. As per postmortem reports deceased persons had severe injuries with several multiple fractures of frontal parietal and occipital bones. Smt. Kiran had also a cut-wound on her body. The Baby was done to death by strangulation.
5. The two papers, written in red-ink (Ex. P-38 and P-39), seized from the Dining Table were sent for examination to determine their authorship and as per Report of the Assistant Director (Documents) it was in writing of the appellant. Other articles were also sent to Forensic Science Laboratory for their examination. Further investigation of the case was conducted by C.I.D. (C.B.), Jaipur.
6. After completion of investigation, Charge-sheet under Section 302, I.P.C. was filed against the appellant before the concerned Magistrate. The appellant was ultimately tried by the Court of Additional Sessions Judge, Alwar and was convicted and sentenced as aforesaid.
7. During trial, Prosecution examined 22 witnesses to bring home guilt of the accused, one witness was examined in defence. The plea of the accused was of denial and alibi.
8. At the out-set, it may be stated that there is no direct evidence to connect the appellant with the crime and prosecution case rests purely on circumstantial evidence. In matters of circumstantial evidence, law is well settled by Now. In order to sustain the conviction, it must satisfy the following three conditions:
(i) "The circumstances from which an inference of guilt is sought to be drawn/must be proved by cogent and reliable evidence;
(ii) The circumstances should be of definite tendency un-erringly pointing towards the guilt of the accused;
(iii) The circumstances taken jointly should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else and it should also be incapable of explanation of any other hypothesis than that of the guilt of the accused.
9. The basis and fundamental decision of the Apex Court of the country on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone is in Hanumant v. State of Madhya Pradesh, 1953 Cri LJ 129 : 1952 SCR 1091 : AIR 1952 SC 343. It would be useful to extract what has been laid down in this case at Page 345; of AIR :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far Complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show within all human probability the act must have been done by the accused."
This view has been uniformly and consistently followed in all the later decisions of the Supreme Court without any exception (see Lufail alias Simmi v. State of U.P., (1969) 3 SCC 398; Ram Gopal v. State of Rajasthan, AIR 1982 SC 656 (sic); Joharlal Das v. State of Orissa, 1991 (3) SCC 27; Gautam Maroli Unale v. State of Maharasthra, (1994) Suppl 3 SCC 326.
10. In Sharad Birdhi Chand Sharda v. State of Maharashtra, 1984 (4) SCC 116 : 1984 Cri LJ 1738. It was reiterated that the following conditions must be fulfilled before a case against accused can be said to be fully established:
(i) the circumstances from which the conclusion of guilt is to be drawn, should be fully established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused i.e. to say that they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
The above principles were described as five golden principles for the proof of a case based on circumstantial evidence.
11. Having said so, we now proceed to examine the evidence and materials on record to find out if guilt of the accused is proved beyond reasonable doubt or not applying the law enunciated by the Apex Court of the country on circumstantial evidence. In the present case, the prosecution mainly relies upon the following circumstances to seek conviction of the appellant:
(i) The appellant and his wife Smt. Kiran were having strained relations and there was a motive to commit the offence;
(ii) In the night and at the time of occurrence, the appellant and four deceased persons and none else were present in the house i.e. Quarter No. 9 in P. & T. Colony, Alwar;
(iii) Immediately after incident, the appellant made telephonic calls to Police Station, Kotwali and Arawali Vihar, Alwar, which were indicative of his abnormal mental condition and conduct;
(iv) Appellant's body and his clothes were found soaked in blood which tallied with the blood group of the deceased persons;
Seizure of two papers in red ink from the place of occurrence which were written by the appellant containing his confession for the guilt;
(vi) Unusual conduct of the appellant at the time of occurrence and immediately thereafter;
(vii) False explanation/ plea taken by him that he had gone to a Cinema-hall to see a movie at the time of occurrence; and
(viii) Non-explanation of the telling circumstances which could be explained by none except the appellant.
CIRCUMSTANCE No. (I):
12. To prove this circumstance, prosecution examined P.W. 9 Pradeep Kumar, P.W. 13 Rakesh Kumar and P.W. 14 Vinod Verma and placed reliance on letters Ex. P. 87, P. 88 and P. 89 written by the deceased-Kiran to her parents prior to her death, P.W. 9 Pradeep Kumar and P. W. 13 Rakesh Kumar are sons of the deceased Banarsi Das, real uncle of Smt. Kiran. Pradeep Kumar has deposed that whenever Smt. Kiran used to come from her in-laws, she always made complaints of being harassed for the demand of dowry and her parents also went to Alwar twice to settle the dispute. P.W. 14 Vinod Verma, real brother of Smt. Kiran, has given the same evidence, Letters Exs. P. 87, P. 88 and P. 89 have been proved by him to be in the hand-writing of Smt. Kiran. The trial Judge held these letters to be in the hand-writing of the deceased Smt. Kiran and this finding, in our view, is well founded. The SHO Gopal Singh (P.W. 22) has proved recovery of these letters from a pocket of the shirt of deceased-Ram Prakash when it was searched by him. Learned counsel for the appellant could not point out any infirmity in the statement of Vinod Kumar proving the letters to have been written by her sister Smt. Kiran. Letter Ex. P. 87 is dated 11-11-1991 and it was written from Alwar. It is addressed to her parents, wherein she made complaint of being harased by her in-laws to meet unlawful demand of a colour television and one lac rupees. She also wrote in the letter that the demand was being made consistently, but she did not disclose this fact as she did not want to disturb them. The contents of the letter firmly establish that the deceased Smt. Kiran was being harassed by her mother-in-law and brother-in-law and the appellant also sided them for the demand. The demand of money was being made for marriage of her brother in law (Devar) which was fixed on 1st February, Letters Ex. P. 88 and Ex. P. 89 are dated 25-12-1991 and 26-12-1991 in which she again made complaints of harassing her by her mother-in-law, two brother-in-laws and the appellant, Letter Ex. P. 88 further shows that Smt. Kiran was under grave mental agony and tension due to harassment meted out to her. In the letter she also stated that the appellant has started taking liquor daily and in case their demands were not accepted, he would die. From these letters it stands firmly established that unlawful demand of a colour television and Rupees One lac was being made by the mother-in-law, brother-in-law and the husband of the deceased-Kiran and the demand was persistent. It also establishes that relations between the husband and wife were strained and both were under great mental tension. The learned trial Judge, in our view, rightly held this circumstance to be proved and we confirm this finding.
CIRCUMSTANCES NO. (II), (III) AND (IV):
13. Circumstance No. (ii), (iii), and (iv) may be conveniently considered together as prosecution evidence is common, rather overlapping with regard to them.
As stated earlier, from a pocket of the shirt of deceased Ram Prakash Verma, the Investigating Officer had recovered and seized one Identity Card (Ex. P. 84), a telegram (Ex. P. 85) sent by Smt. Kiran to her father, letter of reference dated 15-11-1989 (Ex. P. 86) by one Suresh Kumar Sangal to the President/ General Secretary/ M.L. A. of B.J.P. of Alwar and three letters (Ex. P. 87, P. 88 and P. 89) written by Smt. Kiran to her parents. P.W. 9 - Pradeep Kumar, P.W. 13 - Rakesh Kumar sons of Banarasidas-deceased and P.W. 14 - Vinod Verma, real brother of Smt. Kiran, have stated that on receiving a telegram Banarasidas and Ram Prakash went to Alwar on 2nd January, 1992, P.W. 1-Virendra Singh S.H.O. of Police Station, Aravali-Vihar and P.W. 18-Shyam Lal of Police Station, Kotwali, accompanied with Constables Dinesh Kumar, Manoj Kumar and Chandan Singh came to the place of occurrence i.e. Quarter No. 9 in P. & T. Colony-immediately after getting telephonic calls and on getting there they found the door of the house closed from inside. The door was opened by the appellant on knocking it. In the light they saw that four dead bodies were lying in the room and varandah and there was a pool of blood. No effective cross examination was made to these witnesses to elucidate that some one else was also there in the room at the time of occurrence. The consistent evidence of the witnesses that the appellant opened the door of the house which was bolted from inside is not shaken at all in cross examination and we find no reason to disbelieve it.
14. From the evidence of the S.H.O.-Virendra Singh (P.W. 1), A.S.I.-Rajendra Singh(P.W. 3),L. C.-Dinesh Kumar (P.W. 2) and A. S. I.-Shyam Lal (P.W. 18) it also stands proved that telephonic calls were received at Police Stations Kotwali and Aravali-Vihar, conveying information of four murders in Quarter No. 9 of P. & T. Colony, Alwar. A Kotwali Police Station, A.S.I. Rajendra Singh, who was duty officer, attended telephonic calls at 12-40 and 12-50 a.m. in the night of 2nd January, 1992. The messages received on telephone were entered in daily 'Rojnamcha' by L.C.-Dinesh Kumar which are Exs. P. 6 and P. 7 on record. At 12.40 there was an anonymous call intimating that some quarrel took place in Quarter No. 9 and Police force be sent there. The informant did not disclose his name. This information was entered in the 'Rojnamcha' and the same has been proved as Ex. P. 6. The second telephone received at 12-50 a.m. conveyed intimation of four murders in the quarter and the fact of the murderer being there. The Police Officer was also asked to reach there immediately to arrest the murderer and by doing so get his promotion. This information was entered as Ex. P. 7 in the 'Roj-namcha'. The S.H.O. Virendra Singh also received a telephonic call at 12.52 a.m. in the same night whereby he was asked to reach at Quarter No. 9 if he wanted to get promotion. On a query, the informant disclosed his name as Vinod Kumar Malhotra and asked the S.H.O. to reach at the site immediately as some serious incident took place there. This information was entered in the daily 'Rojnamcha' as Ex. P. 1 by the S.H.O.-Virendra Singh himself. The S.H.O.-Virendra Singh, thereafter, went to Quarter No. 9 with L. C Ram Niwas and returned from there at 4.00 a.m. After returning at the police station, he entered in the 'Rojnamcha' all the facts noticed by him at the place of incident. This entry is Ex. P. 4 on the record. From the statements of the police persons, which are corroborated by documentary evidence, it is firmly established that telephonic calls were received at Police Stations-Kotwali and Aravali-Vihar and after getting informations the police officers reached at the site of occurrence. These facts are also proved by the A.S.I.-Shyam Lal (P.W. 18) and his statement gets corroboration from the Report Ex. P. 26 made by him at the Police Station, Kotwali at 1.45 a.m. in the same night and the F.I.R. Ex. P. 27.
15. A.S.I.-Shyam Lal has also proved that face, both hands, heels, palms and toes of the appellant were extensively smeared with blood when he had opened the door of the house.
16. The Investigating Officer P.W. 26-Gopal Singh arrested the appellant in the same night, vide arrest memo Ex. P. 34 and dry blood and clothes smeared with blood were seized from his person vide Ex. P. 35. Motbir witnesses-P.W. 17-Hakummudin and P.W. 21-Deen Mohmeed have also proved seizure of the blood smeared clothes and dry blood from the person of the appellant. The dry blood and clothes were sealed in four packets and sent to Forensic Science Laboratory (F.S.L.) for examination and as per the report of F.S.L. (Ex. P. 30), human blood of 'A-B' blood-group was detected which tallied with blood-group of the deceased Ram Prakash and Smt. Kiran.
17. Mr. A. K. Gupra, learned counsel appearing for the appellant, strongly assailed the above evidence on the ground of the witnesses being police personnels and the absence of independent evidence. This criticism, in our view, is without any substance. Merely because the witnesses are police pesonnels, is hardly a ground to disbelieve their evidence. There is no general rule that evidence of police persons cannot be relied upon unless corroborated by independent witnesses. More so when no material is on the record or even any suggestion to the effect that any of the police persons was having any bias or grudge against, the appellant to falsely implicate him in such a gruesome crime. It is also borne out from the record that, police persons could be the only witnesses at the time and in the situation. Telephonic calls were received at the police stations in mid-night and they could be attended by police persons and none-else. On getting information about four murders in Quarter No. 9, A.S.I.-Shyam Lal and S.H.O.-Virendra Singh performed their duties by rushing to the site of occurrence and, as such, they could be the only witnesses to depose about the happenings and factual aspects noticed by them at the site. Then, their evidence stands fully corroborated by documentry evidence prepared in official duty in the ordinary course of nature. Learned counsel could not point out anything on record to dis-credit documentary evidence or to show that the documents were prepared or could be prepared later on. We, therefore, reject the above contention made by Shri Gupta.
18. Mr. Gupta, then contended that the appellant was not in the house at the time of occurrence as he had gone to see a movie in some Cinema Hall. This argument has no leg to stand. Firstly, there is consistent prosecution evidence as discussed earlier that door of the house was closed and bolted from inside when police persons reached at the site and it was the appellant who opened the door on knocking it. The evidence of the police persons is not shaken in cross examination and no suggestion worth the name was made to the witnesses that the appellant did not open the door or he was not present in the house and had gone to see a movie in some cinema hall. The appellant has taken this defence first time in his statement under Section 313, Cr.P.C, and that too, in a quite vague manner without disclosing the name of the movie or cinema hall and the timings of his going and coming back to the house. Further, no evidence was produced to prove or support the above plea. In our views, the bald and vague plea of the appellant, taken first time in his statement under Section 313, Cr.P.C. cannot be accepted in presence of overwhelming reliable oral and documentary evidence. Then in case the appellant had gone to see a movie in a cinema hall and noticed murder of his four close relatives after returning from there, he would have acted in a different manner. He would have cried for help from the neighbours and rushed to his immediate officer Shri Roshan Lal Verma (P.W. 4), S.D.O. Telephones, who was living in the same locality in Quarter No. 23. It was also expected of him to have taken steps to inform his other near relatives, who resided in the town. Police would have been informed also giving all such details. The un-usual and abnormal conduct of the appellant belies his plea that he was not in the house at the time of occurrence and had gone out to see a movie on the fateful night. It would also be un-usual for him to go out to see a movie leaving his father-in-law and uncle-in-law, who had come on the same day to discuss some problems with him. Then, the presence of extensive dry blood all over his body and on his clothes is incompatible is incompatible to the plea of alibi taken by him. If the plea of alibi set-up by the appellant breaks down, it would support the prosecution case that the appellant in all probability was in the house at the time of the incident. On careful examination of entire evidence and material on record, we are satisfied that the prosecution has succeeded in proving firmly that four deceased persons and the appellant were the only persons present in Quarter No. 9 at the time of incident.
19. Mr. Gupta then, on the basis of the decisions in Okha Khole v. State of Maharashtra, AIR 1963 SC 53 (sic); State v. Moti, 1953 RLW 640; Ratan Lal v. State, 1966 RLW 451 and State of Rajasthan v. Babu Singh, 1979 WLN 501; contended that prosecution has failed to prove that the seals put on the articles remained in-tact from the time the articles were seized by the police till they reached to the hands of the Chemical Examiner. The above authorities, no-doubt, lay down that whenever it is desired by the prosecution to prove that the articles seized during investigation contained human blood in order to implicate the accused, it is necessary that the officer recovering the articles should immediately take steps to seal them and evidence should be produced that the seals remained in tact through-out till they reached to the Chemical Examiner/F.S.L. and in absence of such precautions, it would always be open to the accused to say that the police later on put human blood on the articles in order to implicate the accused. There is no dispute so far the proposition of law is concerned, but, in the instant case, there is cogent and reliable evidence that the articles and the packets of blood etc. were immediately sealed at the time of seizure and their seals remained intact till they reached to F.S.L. The recovering police officer and motbir witnesses have proved the factum of sealing the articles at the time of their seizure. P.W. 19 Bhagwan Singh, has proved that seals on the articles remained in tact in Malkhana where they were deposited immediately after their seizure and that they were sent to F.S.L. through constable Daya Shankar in the sealed condition. P.W. 20-Daya Shankar is the messenger, who handed over the articles/ packets to F.S.L. in sealed condition. In the report of F.S.L. (Ex. P. 30), there is endorsement that all packets were properly sealed having impression of seal which tallied with the specimen seal impression forwarded to them. Thus, in presence of over-whelming evidence on record the argument of Mr. Gupta does not carry any force and it may be rejected conveniently.
20. Mr. Gupta also contended that there is no legal evidence worth the name to prove that the appellant made telephone calls to police station-Kotwali or Aravali-Vihar and the facts disclosed or conveyed on telephone' amount admission/confession of the guilt to the police officer and, as such, they are inadmissible as being hit by Section 25 of the Evidence Act. According to Mr. Gupta, no part of the information conveyed on telephone, assuming to have been made by the appellant, is admissible in evidence. This legal aspect urged by Mr. Gupta requires serious consideration by us.
21. The expression "confession" is not defined in the Indian Evidence Act. Before the decision by the Judicial Committee in Pakala Naraina Swamy v. Emperor, AIR 1939 PC 47 : (1939) 40 Cri LJ 364 the Courts in India adopted the definition of "confession" as given in Article 22 of Stephens Digest of the law of evidence. According to that definition 'confession' is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded in Pakala Naraina Swamy's case (supra), wherein Lord Atkin observed:
"... No statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession."
The above observations received approval of the Apex Court of the country in Palvinder Kaur v. State of Punjab, AIR 1952 SC 354 : 1953 Cri LJ 154 and State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125 : 1960 Cri LJ 1504. In Aghno Nagesia v. State of Bihar, AIR 1966 SC 119 : 1966 Cri LJ 100 the expression 'confession' was defined by the Apex Court of the country and also the manner of its use by the prosecution as under at Page 123, of AIR:
"Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self exculupatory matter cannot amount to a confession, if the exculpatory statements is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. (See Hanumant Govind v. State of M.P., 1952 SCR 1091 at P. 1111; AIR 1952 SC 343 : 1953 Cri LJ 129 at P. 350 and 1953 SCR 94; AIR 1952 SC 354. The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But, this principle is of no assistance to the accused where no part of his statement is self exculpatory and the prosecution intends to use the whole of the statement against the accused."
23. Section 24 of the Evidence Act excludes proof of confession made by an accused if it appears to the Court to have been caused by an inducement, threat or promise from a person in authority. Then, Section 25 says that no confession made to a Police Officer shall be proved as against a person accused of an offence. Section 25 also excludes confession by accused while in custody of police unless it be made in the immediate presence of a Magistrate. On behalf of the appellant, therefore, it is contended that the entire disclosure made on telephone is a confession to a Police Officer and is not provable against the appellant. It is true that a confession made to a Police Officer under any circumstances is not admissible in evidence against him. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession (See A. Nagesia's case (supra). However, if any information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant, but a confessional information to a police officer cannot be used against the accused in view of Section 25 of the Evidence Act.
24. In A. Nagesia's case (supra) Bachhawat, J. (as he then was), has lucidly discussed the law relating to confession to a police officer whether in the course of investigation or otherwise and the admissibility part of it. While dealing with the statement of an accused consisting in several parts it was observed in para 13 as under:
"Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e. some fact which by itself or alongwith other admitted or proved facts suggested the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also, every other admission of an incriminating fact contained in the statement is part of the confession."
25. Section 27 of the Evidence Act is an exception of the above rule and it provides "when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody to officer, so much of such information, whether it amounts to a confession or not, and relates distinctly to the fact thereby discovered, may be proved. The law is now well settled that even before his arrest if any information is given by the accused leading to the discovery, it shall be presumed that the accused was constructively in police costody and therefore, that part of information leading to the discovery becomes admissible in evidence.
26. Applying the aforesaid tests we proceed to examine if any part of the informations conveyed to the police on telephone was admissible in evidence or not. It may be stated here that while discussing this aspect we assume that telephonic calls received at the Police Stations Kotwali and Aravali-Vihar , were given by the appellant. Assuming this fact we are examining whether any part of the information is admissible in evidence or not. The information received at the Police Station Kotwali is recorded in daily 'Rojnamcha' of the police station and it reads as under: (English translation):
"Some unknown person informed on telephone from Kala Kuwa Housing Board that in P. & T. Quarter No. 9, one person has murdered four persons, hence, reach at the site immediately and a good chance to get promotion and if he was not believed the murderer would be out of reach."
In our view, the whole of the above statement/information is non confessional and no part of it is suggesting that the informant committed the crime. Therefore, we are of the opinion that even if the above information was conveyed by the appellant, it is admissible in evidence. Similarly, information conveyed at Police Station, Aravali Vihar at 12.52 a.m. was entered in 'Rojnamcha' which reads as under: (English translation):-
"Information has been received on telephone that if you want your promotion, reach at P & T Quarter No. 9. On this, I, the S.H.O. asked the name of the informant. He gave his name as Vinod Kumar Malhotra and asked to reach at the site immediately as some serious incident has taken place there."
In this information also the informant nowhere admitted to have committed the murders, nor it is suggestive that he could be the murderer. It only contains information of four murders in Quarter No. 9 in P. & T. Colony. Applying the principles laid down by their Lordships of the Supreme Court, we hold that whole of the two informations are admissible in evidence. Otherwise also, on the basis of above information, the S.H.O. Virendra Singh and A.S.I.-Shyam Lal reached to the place of occurrence and found four dead bodies lying in a pool of blood. The information leading to discovery of the dead bodies is admissible in evidence as per Section 27 of the Evidence Act.
27. Now the question is, whether the above information were conveyed by the appellants. None of the Police Officers receiving information was conversant with the voice of the appellant and as such, there is no evidence on record to prove that appellant gave the above informations. While discussing circumstances No. (ii) we have held that the appellant and deceased persons were the only persons present in house at the time of occurrence and as such, the appellant alone was having knowledge of the murders. If these informations are read with the findings arrived at by us on circumstance No. (ii) it can be held that in all possibility the appellant gave above informations to the police on telephone.
28. We, therefore hold that circumstances No. (ii) and (iv) Stand proved. For circumstance No. (iii) we hold that the whole of the two informations conveyed to police on phone are admissible in evidence and in all probability they were conveyed by the appellant.
CIRCUMSTANCE NO. (v):
29. This circumstance is very much vital and relevant to connect the appellant with t he crime as confession of guilt is contained in the papers Exs. P. 38 and P. 39, which are stated to be in hand-writing of the appellant. If it is proved that the appellant wrote these documents voluntarily, without any inducement, threat or promise, then this circumstance alone is sufficient to prove the guilt of murder against him. Exs. P. 38 and P. 39 are written in red-ink and as per prosecution, they were recovered/seized from a room of the house/ Quarter of the appellant where dead bodies were also lying in a pool of blood. English translation of Exs. P. 38 and P. 39 is as under:
"2-1-92 Time 11.50 My father-in-law have come from Mujaffar Nagar to give threatening to me that they would see if I did not get myself transferred from this place and break all connections with my mother and brothers. That their girl would be remarried. That I and my family members would be no where and would be sent to Jail.
Vinod Malhotra"
"12.25 That is why I have done so. They and my wife wanted to have relations with me only and further wanted that I should keep away myself from my family members. Whenever I went to meet them (family members), she (wife) threatened me to commit suicide or jump from the roof of the house. Once she had jumped from the roof. At last, being perplexed, I had to do this work. I had to do this work."
Vinod Malhotra "12.40 To be silent, I had to take wine, but my silence was not liked by her. She assaulted me with a "Chappal", not today, but on 26-12-1991 and also abused my family members and brothers.
Vinod Malhotra"
12.45 Today, still now I have not taken wine, but I am taking wine now."
Vinod Malhotra"
12.55 Now I feel that I have become mad perhaps"
30. Exs. P. 38 and P. 39 were sent for examination and comparison of hand-writing with specimen hand-writing of the appellant. The Assistant Director (Documents), State Forensic Science Laboratory, vide report Ex. P. 107 opined that the disputed hand writings marked Q. 1 to Q. 7 are in hand writing of the person who wrote admitted writings. The appellant in his statement under Section 313, Cr.P.C, in reply to question No. 28, has admitted Ex.P.38 and P.39 to be in his hand writing, but pleaded, inter alia, that he wrote them on dictation given by the S.H.O. - Gopal Singh who threatened him to implicate his mother and brothers for the murders, in case he did not make a confessional statement. Mr. Gupta, learned counsel for the appellant also did not dispute the fact that Exs. P. 38 and P.39 are in hand writing of the appellant. However, he strongly assailed this evidence contending that the documents were prepared later-on by the Investigating Officer and as such, they should be excluded from consideration.
31. Being aware that Exs. P. 38 and P.39 containing confession of the guilt, if held to have been written by the appellant voluntarily may lead him for capital punishment, we carefully and minutely examined the entire material and our conclusion is that Exs.P.38 and P. 39 were taken to be written by the appellant voluntarily even prior to reaching of the police at the site of occurrence and registration of the crime.
32. A perusal of Exs. P. 38 and P. 39 shows that they express the mental turmoil and agitation which was going on in the mind of the writer. He was in emotional feelings at the time of writing. We are of the considered view that they could not be the result of a force writing on a dictation by the Investigating Officer or any other person. The contents and the manner in which these writngs are written, rule out the probability of being got prepared on the dictation by a Police Officer, The contents of Exs. P. 38 and P.39 cannot be the result of the an imagination of a police officer. Otherwise also there is nothing on the record even to suggest that the Investigating Officer Gopal Singh was having any cause against the appellant so as to prepare a false evidence in order to implicate him in such a serious case.
33. On deep examination of the prosecution evidence we find over-whelming and convincing evidence on record to prove that the letters Exs. P. 38 and P. 39 were in existence even prior to registration of the case and they were found lying on the Dining Table in the room of appellant's Quarter where the occurrence took place. After getting telephonic calls, the A.S.I. Shyam Lal and Virendra Singh S.H.O., reached at the site of occurrence with police force and they were the first persons to reach there immediately after the occurrence. A.S.I. Shyam Lal has deposed that when he reached at the quarter of the appellant, the door of the house was closed and the appellant opened the same on knocking to it. He thereafter, went inside the room, He, then, described the factual conditions noticed by him in the room. The dead bodies were lying in a pool of blood. He narrated the condition and the manner in which the dead bodies were lying. He also deposed that on the Dining Table, which was lying in the room, he saw one pen, one screw driver, one knife and the papers written in red ink and these articles were stained with blood. He identified the letters Exs. P. 38 and P. 39 in the Court. This witness has been cross examined at length and after going through entire cross examination minutely, we find that his statement is not shattered in any manner. No question was put to the witness in cross examination suggesting that the papers Exs. P.38 and P.39 were not there or that they were prepared lateron during investigation on the case. The above statement of the A.S.I. Shyam Lal gets corroboration from the written Report Ex.P. 36 made by him at the police station immediately after inspecting the site of occurrence. In the Report, there is specific recital about the letters Exs.P.38 and P.39 which were noticed by the witnesses on the Dining Table in the room where dead bodies were lying. Thus, the existence of Exs.P.38 and P.39 is disclosed in the Report and F.I.R. (Exs. P. 36 and P.37) when the S.H.O. Gopal Singh was not in picture even. The S.H.O. Gopal Singh after registration of the case inspected the site of the occurrence and prepared site plan Ex.P.8 which contains description of factual conditions as noticed at that time.
34. The site plan Ex.P.8 was prepared in the morning of 3rd January, 1992. In it, mark "I" has been shown as the Dining Table which was lying in room of the appellant's house. It contains that from this table one ball-pen of red ink, two letters notes written by the appellant on a letter pad of Tele Communication Department, one scrue driver and one knife were recovered. Details of all these articles are mentioned in Ex. P.8. The site plan was prepared in presence of the witnesses Roshan Lal and Nand Kishore. Roshan Lal was examined as P.W. 4 while Nand Kishore as P.W. 5. Both these witnesses have proved preparation of the site plan Ex.P.8 These witnesses were cross examined on behalf of the appellant but no suggestion was made to them that the letters Ex.P.38 and P.39 were not seen while preparing the Site Plan.
Then, Seizure Memo of the articles Ex.P. 18 was prepared by the Investigating Officer in presence of the witnesses Megha Ram and Nand Kishore. Ex.P.18 contains full description and details of the articles' seized/recovered from the place of incident. Seizure of the letters Ex. P. 38 and P. 39 has been mentioned in Ex.P.18. The full contents of the letters have also been described in Ex.P.18, which was prepared in the morning of 3rd January 1992. The witnesses Nand Kishore has not been cross examined in connection with Seizure-Memo Ex.P.18. Even S.H.O. Gopal Singh was not cross-examined effectively to challenge the seizure-recovery of the articles. The defence which was put to the I.O. - Gopal Singh is that letters Ex.P.38 and P.39 were prepared in between 12.15 p.m. to 5.15 p.m. on 4th January, 1992. But this plea stands falsified by the written Report Ex.P.36, F.I.R. Ex.P.37, Site Plan Ex.P.8 and Seizure Memo Ex.P.18, Thus, in our opinion the trial court committed no error in holding that the letters Ex.P.38 and P.39 were seized from the place of incident and they were written by the appellant. We have observed earlier that letters Ex.P.38 and P.39 reveal extreme mental and emotional disturbances of the writer and its contents could no* be a imagination of a police officer. This circumstance, therefore, stands fully proved against the appellant.
CIRCUMSTANCE NO. (VI):
35. While dealing with circumstance No. (ii), after analysing evidence and material on record we have observed that conduct of the appellant at the time of incident and immediately thereafter was abnormal and unnatural* The prosecution evidence in this connection, need not be discussed again to avoid repetition. We have held earlier that in case murder of four close relatives of the appellant was committed by some one else, the appellant would have acted in a different way. In both the situations, whether the murders were committed in his presence or he came to know about it immediately after the occurrence, it was expected of him to make a hue and cry and seek, assistance from the neighbours. He would have also informed his immediate superior officer P.W. 4 Shri Roshan Lal Verma, who resided in the same locality. Not only this, the parents of the appellant also resided in Alwar but no intimation was sent to them about the ghastly murder of four close relatives. No report to the police was made giving details of the occurrence. The appellant, thus, has acted in a most abnormal and unnatural manner and this conduct of his, is a strong connecting link with the crime.
CIRCUMSTANCES NO. (VII) AND (VIII):
36. While deciding circumstance No. (ii) we also considered the defence plea of alibi, taken by the appellant, that he had gone to a Cinema-Hall to see a movie at the time of occurrence and we have arrived at a categorical finding that this plea/explanation was false. Then, no explanation has been given by the appellant about the circumstances which stand proved against him and for which he alone could have given the explanation. The question, therefore, requires consideration as to what is their effect for completing the chain of guilt.
It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. In Deo Nandan Mishra v. State of Bihar, 1955 Cri LJ 1647 : AIR 1955 SC 801; (1955) 2 SCR 570 it has been held as under:
"But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation such absence of explanation or false explanation would itself be an additional link which completes the chain."
37. Thus, a false explanation of the accused can be used as additional link if the following conditions are satisfied:
(i) various links in the chain of evidence led by the prosecution have been satisfactorily proved;
(ii) the circumstance points to the guilt of the accused with reasonable definiteness and;
(iii) circumstance is a proximity to the time and situation.
In the instant case, if these conditions are fulfilled, we can use false explanation or false defence and non explanation of the proved circumstances as an additional link to lend assurance of guilt of the appellant.
38. From the above discussion of the evidence, the proved facts and incriminating circumstances against the appellant may be summarised as under:
1. The relations between the appellant and deceased Smt. Kiran (wife) were strained and she was being persistently subjected to harassment for unlawful demand of colour television and one lac rupees by the appellant's mother and brothers and the appellant also sided them in the demand;
2. The appellant's wife Smt. Kiran sent a telegram to his father asking him to immediately come at Alwar. On getting telegram, her father Ram Prakash and uncle Banarsidas reached Alwar in the morning on 2nd January, 1992 itself.
3. The incident took place in appellant's quarter in P. & T. Colony in the night intervening 2nd and 3rd January, 1992 and at the time of occurrence, the appellant and the four deceased and none else were present there.
4. Letters Ex.P. 38 and P.39 show that the appellant was under influence of extreme mental, and emotional disturbance from the talks between his wife, her father and uncle.
5. In the same night, telephonic calls were received at Police Stations, Kotwali and Aravali Vihar, whereby the police was informed about four murders and to reach the place of occurrence i.e. Quarter No. 9 in P.& T. Colony. These phones were made most probably by the appellant.
6. Two police parties headed by the A.S.I. Shyam Lal of Police Station, Kotwali and the S.H.O. Virendra Singh of Police Station Aravali Vihar simultaneously reached at the place of occurrence i.e. the Quarter No. 9 of the appellant, immediately after getting telephonic message. The Police party found the door of the house closed from inside.
7. On knocking the door of the house, the appellant opened* the gate. At that time his body and clothes were extensively smeared with blood. The four dead bodies were lying in the quarter and no one else was present there at that time.
8. The dry blood taken from the body of the appellant and blood on appellant's clothes seized by the police, tallied with blood group of the deceased Ram Prakash and Smt. Kiran Devi.
9. Two papers written by the appellant in red ink were seized recovered from the Dining Table lying in the room of the house. They contain confessional statement of the guilt.
10. The conduct of appellant at the time of occurrence and immediately thereafter was un-usual and abnormal pointing towards his guilt.
11. The plea/ defence put by the appellant that at the time of occurrence he had gone to a Cinema Hall to see a movie was found to be false and it can also be considered as an additional link against the appellant.
12. Non explanation of the above telling circumstances, which could be explained by none except the appellant can be considered as a circumstance to lend assurance of guilt of the appellant.
39. The above proved facts and circumstances, in our considered opinion definitely prove that it was the appellant and the appellant alone who committed the four murders. The guilt of the accused is proved beyond any manner of doubt and he was rightly convicted under Section 302, I.P.C, by the trial Court.
40. Having come to the conclusion that the appellant is guilty under Section 302, I.P.C, for committing murder of all the four deceased persons, the next question, which, in our opinion, is a hard and difficult task, requires consideration: "Whether death penalty awarded to the appellant should be confirmed or it should be altered into life imprisonment"?
41. The question of sentencing, specially sentence of death, has been a subject matter of long debates and thinking for enlightened persons of the society. Undoubtedly, sentence of death is inhuman and extreme penalty of law, still most of the countries in the world have retained this penalty. The Law Commission of India in its 35th report on capital punishment, after considering all issues and aspects, has recommended to retain Capital Punishment. The Constitutional validity of death penalty for murders provided in Section 302, I.P.C, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the Code of Criminal Procedure, 1973 was considered by a five Judge Constitution Bench of the Supreme Court in Bachan Singh v. State of Punjab, 1980 Cri LJ 636: AIR 1980 SC 898. After considering various legal and other aspects, it was held by the Bench that provision of death penalty as an alternative punishment for murder is not unreasonable and it is in the public interest and, as such, the impugned provision in Section 302, I.P.C. violates neither the letter or the ethos of Article 19 nor it violated Article 21 of the Constitution.
42. Before the new Code of Criminal Procedure, both alternative sentences provided, in Section 302 of the Indian Penal Code were normal sentence, but position is now modified by Section 354(3) of the Code of Criminal Procedure which mandates the Courts, convicting a person for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are "special reasons" to be recorded by the Court for such sentence. The expression "special reasons", in the context of the provision, is held in Bachan Singh's case to mean "exceptional reasons" founded on exceptional grave circumstances of the crime as well as, the criminal. The legislative policy now is that capital punishment should be awarded only in extreme cases i.e. 'rarest of the rare cases.'.
43. The choice of sentence is an act of highly sensitiveness and on the question whether the Court can lay down standards or norms restricting the area of the imposition of death penalty to a narrow category of murders, all the Judges of the Indian Courts are unanimous that exhaustive standards for sentencing is not possible. No two cases are alike on facts and each case presents its own distinctive features, its peculiar combination of events and facts. Hence, no strait jacket formula or cast iron rule can be laid down in the matter of sentencing and it has been left on judicial discretion by the legislation. No doubt, this discretion is. to be exercised judicially and on well recognised principles after balancing all the aggravating and mitigating circumstances of the crime. It would be useful and relevant to refer the following paragraph from the judgment in Bachan Singh's case (SCC p 748-49 para 201).
"...As we read Section 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so interwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water tight compartments. In a sense, to kill is to be cruel and therefore, all murders are cruel. But such cruelty may vary in its degree of culpability. And. it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist."
(Emphasis supplied)
44. The Supreme Court was also of the view that any attempt to make an exhaustive enumeration' of such aggravating circumstances for awarding Capital Punishment would be to fetter judicial discretion, but, in principle, the following aggravating circumstances suggested by Dr. Chitale, during the course of his arguments, were broadly accepted:
"Aggravating circumstances:- A Court may, however, in the following cases impose the penalty of death in its discretion:
(a) If the murder has been committed after previous planning and involves extreme brutality; or
(b) If the murder involves exceptional depravity; or
(c) If the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed:-
(i) While such member of public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) If the murder of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
45. Similarly, the following mitigating factors, as suggested, by Dr. Chitale were accepted to be relevant circumstances and to be given due weight in the determination of sentences: (para 204 of SCC Judgment) "Mitigating circumstances : In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:-
(1) That the offence was committed under the influence of the extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuning threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
46. The principle laid down on Capital Punishment expressed in Bachan Singh's case were reiterated in Machhi Singh v. State of Punjab, 1983 Cri LJ 1457 : (1983) 3 SCC 470. Capital Punishment was held to be justified in 'rarest of rare cases' and it was observed that the death sentence can be awarded when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.
The following circumstances were stated in the judgment where the community may entertain such sentiments: (See para 32, 34, 35, 36 and 37 of the Judgment) (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolving or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assaisin for money or reward or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust or murder is committed in the course for betrayal of the motherland.
(3) When murder of member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of 'bride' burning or 'dowry death' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons, of a particularly caste, community or locality are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
47. In Allauddin Main v. State of Bihar, 1989 Cri LJ 1466 : (1989) 3 SCC 5 agreeing with the views expressed in Bachan Singh's case, it was observed that maximum sentence prescribed by law should be reserved for 'rarest of rare cases' and unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the death sentence. Only in those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community, it would be permissible to award the death sentence - Where incidents of certain crimes are rapidly growing and assuming menacing proportions for example, acid pouring or bride burning, it may be necessary for the Courts to award exemplary punishments to protect the community and to deter others from committing such crimes.
48. It was also held that the choice of sentence has to be made after following the procedure set out in sub-section (2) of Section 235, Cr.P.C. which reads as under.
"Section 235(2)-If the accused is convicted, the Judge shall, unless he proceeds in accordance with provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law."
The Bench held thus:- (Head note at page 8 of SCC) "The choice of sentence has to be made after following the procedure set out in sub-section (2) of Section 235, Cr.P.C. That sub-section satisfies a dual purpose, it satisfies the rule of natural justice by affording to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to" be, awarded. The provision is mandatory and should not be treated as a mere formality. The choice has to be made after giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc. before the court, otherwise the court's decision would be vulnerable. In many cases a sentencing decision has far more serious consequences on the offender and his family members than in the case of a purely administrative decision a fortiori, therefore, the principle of fair play must apply with greater vigour in the case of the former than the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. Likewise, a sentencing decision taken without following the requirements of subs-section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. As a general rule the trial courts should after recording the conviction adjourn the matter to future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender."
(Emphasis supplied)
49. In Allauddin Mian's case, the accused Allauddin Mian and Keyamuddin Mian were sentenced to death for causing murder of two helpless girls of the age of 7 years and 7 months respectively. Their death sentence was confirmed by the High Court. The Supreme Court however, converted the extreme punishment of death to imprisonment for life while observing as under (See page 23 of SCC):
"For example, the circumstances of this case show that the offenders had killed the two girls not because of any hatred for them or to accomplish their objective but out of frustration and ange at having lost their target. Unfortunately, as the trial Judge did not give time to the convicts to reflect on the question of sentence, the chance, however remote of the true motive for the crime surfacing was lost. The antecedents of the accused, their socio economic conditions, the impact of their crime on the community etc. have not come on record. The absence of these particulars makes the choice of punishment difficult. In view of what we have observed earlier and having regard to the circumstances in which the murders took place, we think the extreme punishment of death is not warranted."
50. In Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430 : AIR 1995 SC 1748, 11 persons had died and some others were injured including a Police Constable, in a rioting of grave nature where accused persons opened indiscriminate firing. Out of the convicted persons, six were sentenced to death and the rest to imprisonment for life. The High Court confirmed death sentence of one person only. The Apex Court of the country observed that the large number of deaths on one side cannot ipso facto be a ground to bring the case into the category of "rarest of rare cases." The mitigating circumstance that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, was again approved for lesser punishment and the following paragraph from the Judgment in Francis v. State of Kerala, 1974 Cri LJ 1310 : (1975)3 SCC 825 was quoted with approval while deciding the question of sentence:
"Nevertheless, in deciding whether the case merits the less severe of the two penalties prescribed for murder a history of relations between the parties concerned, the background, the context, or the factual setting of the crime, and the strength and nature of the; motive operating on the mind of the offender, are relevant considerations. The state of feelings and mind produced by these while insufficient to bring in an exception, may suffice to make the less severe sentence more appropriate."
(Emphasis supplied)
51. Bearing the above guidelines laid down by the Apex Court of the country in the matter of sentencing, we shall now examine the circumstances in the instant case for the purpose of awarding sentence. At the outset, we may state that the procedure set out in sub-section (2) of Section 235 of the Code has not been strictly followed by the trial Judge before awarding capital punishment. The appellant was not given an effective and real opportunity to place material and evidence on record about the mitigating circumstances for lesser punishment. A perusal of the record shows that final arguments in the case were heard on January 24, 1994 and judgment was pronounced on 31st January, 1994, holding the appellant guilty for the offence under Section 302, I.P.C. On the same day, the learned Judge awarded punishment of death sentence. The order sheet of January 31 of the trial Court, though states that the appellant was questioned about the circumstances and factors for lesser punishment and a brief record of the questions and answers was prepared, but on thorough search, we could not trace-out such material on the record. Assuming that the appellant was examined on. the question of sentence on the day he was sentenced, it could be said to be an effective and real hearing as required by sub-section (2) of Section 235 of the Code, which is a mandatory provision. The Apex Court has repeatedly expressed that the provision to hear the accused on the question of sentence should not be treated as a mere formality, but it should be made an effective and real opportunity to place his antecedents, socio-economic background, mitigating and extenuating circumstances before the Court. In Allauddin Mian's case (supra) it was warned in express words that if an effective and real opportunity to place before the Court, the aforesaid relevant, facts and circumstances is not given, the court's decision on the question of sentence would be vulnerable. It is also laid down that as a general rule, the trial court should after recording the conviction, adjourn the matter to a future date and call upon both the prosecution as well-as the defence to place the relevant, material bearing on the question of sentence before it and there after pronouncing the sentence to be imposed on the offender. Admittedly, this procedure has not been followed in the instant case.
52. Be that as it may, still we deeply examined the propriety and adequacy of death sentence in the facts and circumstances in the instant case. The trial Court has dealt with the question of sentence separately running in several typed pages and the reasons which mainly weighed with the trial Court in awarding death sentence are that the murders were committed by the appellant without provocation in an extremely cruel and beastly manner in his own house and the victims included his own wife and a two months' daughter. The victims were in helpless state and no evidence was brought on record by the appellant that he was mentally defective at the time of incident or he would not be a menace to the society on his release. It was also observed that it is the solemn duty of the Court to deal with such cases in a most severe and strict manner and award the maximum penalty.
53. We appreciate the labour and pains taken by the trial Judge in dealing with the question of sentence, but we find ourselves unable to agree with the view taken by him in awarding death sentence to the appellant.
The circumstances taken into consideration by the Court for awarding death sentence are undoubtedly very much relevant but it is only one aspect of the matter about the crime. As stated earlier, the circumstances of the offender which compelled him to commit the gruesome and cold-blooded murders also need to be given due regard and weight while making choice of the sentence. This aspect was not properly taken into consideration by the learned trial Judge while choosing death sentence to be awarded.
54. If we take a note of aggravating and mitigating circumstances to prepare a balance-sheet for awarding sentence, no doubt, we find that the appellant has committed cold-blooded murder of his four close innocent and defenceless relatives, which included his own wife and infant daughter of two months. The victims might be asleep at the time of incident and it is also true that murders were committed in an extremely cruel and gruesome manner, so abhorrent so as to shake the conscience of the Court. If this had been the only situation without any mitigating factors, the extreme penalty would; have been the only appropriate sentence in the case, for which we preserve no doubt or reservation.
The mitigating factors existing on the record, which are also relevant and material on the question of sentence, have not been properly considered and given due weight by the trial Court while awarding the sentence of death penalty. It is our duty to take into consideration the mitigating factors and the circumstances which compelled the appellant to commit the murders in such a desperate manner.
55. There is enough material and evidence on the record to show that the appellant was in extreme mental and emotional disturbance at the time of incident and that the murders were committed by him out of sheer frustration or for having lost his mental equilibrium. The circumstances also suggest that the appellant was passing through grave mental tension for the happenings and turmoil going on in the family and he was desperately trying to maintain relations both with his mother and brothers on the one hand and his wife on the other hand. In spite of great pressure from his wife and her relatives to sever connections with his mother and brothers, the appellant was not prepared for the same. The letters Exs.P.87, P.88 and P.89, written by the appellant's wife Smt. Kiran to her parents making complaint of unlawful dowry demands, show that a demand of Rs. one lac and a Colour Television was being persistently made by the appellant's mother and his brother and the appellant was also siding them, either for his weakness or his love and affection towards his relatives. However, the appellant was not happy from the happenings going on in the family and in order to ease himself from the tension he had started taking wine. The appellant's wife seeing unusual condition of the appellant had- also expressed her apprehension in the above letters that if such state of affairs continued he might not live long. Then, the writings Exs.-P.38 and P.39, written by the appellant at the time or immediately after the incident, demonstrate that he was in extreme mental and emotional disturbance at the time of the incident. It appears that on the day of incident the father and uncle of his wife Smt. Kiran had put pressure on him to get his transfer and to sever all connections with his mother and brothers and was warned for dire consequences if he did not agree to their suggestion. They also expressed at that time to re-marry his wife Smt. Kiran with some-one else. The appellant was also mentally up-set from his wife's behaviour who, too wanted him to sever all connections with his relatives.
56. Then, the evidence of P.W.4 Shri R. L. Verma, S.D.O. Telephones, Alwar shows that the appellant is a man of good conduct and nature. Shri Verma had sufficient opportunity to assess his conduct as the appellant worked with him for a considerable period. It is also noteworthy that no evidence has been brought on record by the prosecution to prove that the appellant is a menace to the society or unlikely to be cured or that he would tend to murder others even within the prison or in the society on his release, if left alive.
57. As stated earlier, the unfortunate part in the present case is that the learned trial Judge did not provide any opportunity either to the State or the appellant to lead evidence for and against of awarding capital punishment. However, the material and evidence available on record clearly establish and demonstrate that ghastly murders were committed by the appellant under the influence of extreme mental and emotional disturbances put of sheer frustration without any preplanning. Simply because the appellant committed murder of his four close relatives and the victim included his wife and an infant baby of two months, in our view, is not Sufficient to bring the case within the meaning of 'rarest of rare case'.
58. On a consideration of the totality of the facts and circumstances in the case, specially the circumstances, which compelled the appellant to commit murders, we are of the confirmed view that the extreme penalty, of death is not warranted in the present case.
59. In the result, the appeals filed by the appellant are partly allowed. His conviction under Section 302, I.P.C. is confirmed but the sentence of death awarded by the trial Judge is converted to imprisonment for life. The reference, therefore, made by the trial Judge for confirmation of death sentence is declined.