Punjab-Haryana High Court
Krishan Kumar @ Palli vs . on 19 May, 2011
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Murder Reference No. 2 of 2011
Date of decision: May 19, 2011
State of Haryana
.. Prosecutor
Vs.
Krishan Kumar @ Palli
.. Accused/respondent
Criminal Appeal No. 414-DB of 2011
Krishan Kumar @ Palli
.. Appellant
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Pardeep Singh Poonia, Addl. A.G. Haryana
for the Prosecutor in Murder Reference No.2 of 2011 and
for respondent in Crl. Appeal No.414-DB of 2011.
Ms. Rupinder Kaur Thind, Advocate and
Mr. J.S. Thind, Advocate for the
accused- respondent in Murder Reference No. 2 of 2011 and
for the appellant in Crl. Appeal No.414-DB of 2011.
***
A.N. Jindal, J This judgment shall dispose of Murder Reference No.2 of 2011 sent by the trial court for confirmation of the death sentence awarded to the accused, as well as Criminal Appeal NO. 414-DB of 2011, filed by the accused Krishan Kumar alias Palli (herein referred as, 'the accused').
The accused was prosecuted for intentionally causing death of Mamta wife of Bhushan Jain and Trishla Devi wife of Vijay Kumar, with kappa, a sharp cutting instrument, during the night intervening 28.2.2009 and 1.3.2009. Consequently, vide judgment dated 24/26.2.2011, passed by the Sessions Judge, Sirsa, he was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of `20,000/- under Section 392 read with Section 397 IPC and further sentenced to be hanged by the neck Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -2- till he is dead for the offence under Section 302 IPC.
Paras Ram Jain was having two brothers namely Gian Chand and Vijay Kumar. Vijay Kumar had a son namely Bhushan Jain and one daughter Shifali. The complainant is the son of Paras Ram. Shifali had become a Nun. Bhushan Jain was married to Mamta deceased hailing from Dubwali. Trishla Devi was his mother, He has two sons namely Deepanshu aged about three years and the younger to him aged about three months.
Bhushan Jain along with his mother Trishla Devi and his wife Mamta and his two sons were residing together at village Rori. Bhushan Jain was running a general store and his house is behind the shop and both form part of the same premises.
On 26.2.2009, Bhushan Jain along with his servant Amrit Pal @ Sethi had gone to attend the marriage of his brother-in-law (wife's brother) at Dubwali. After attending the marriage, they had returned to the house on 27.2.2009. On 28.2.2009, at about 11.00 a.m. Bhushan Jain along with his servant Amrit Pal alias Sethi had gone to Delhi in connection with Jain initiation (Dikhsha). On the same day at about 5.00 p.m. the complainant visited Trishla Devi and after conversation with her for about 10-15 minute, returned to his home.
On 1.3.2009, at about 7/7.15 a.m. Brij Lal Jain, his mother's sister's husband met him in the street and told him that Mamta and Trishla Devi are lying dead in their house in a pool of blood and the articles are lying scattered.
On hearing this, he along with his mother Darshna Devi and his uncle Brij Lal Jain immediately went to the house of Bhushan Jain and saw Mamta lying dead on the Northern side of the bed, whereas, Trishla Devi was lying dead on the Southern side, between bed and the cot. They were in the pool of blood and were having injuries on their persons. However, both sons of Bhushan Jain were found alive and almirah was lying open and the articles were lying scattered. They further witnessed that a bucket was lying full of water mixed with blood under the tap in the compound. The colour of the water was red due to mixing of blood from where it appeared that the accused after committing the murder had washed their hands. The blood was lying split inside the gallery. While recording the aforesaid Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -3- statement Ex.P2 before the police on 1.3.2009, the complainant further disclosed that the details regarding stolen articles could be disclosed on arrival of Bhushan Jain.
On the aforesaid statement, which was completed at 9.15 a.m., FIR Ex.P21 was recorded in the police station on 1.3.2009 at 10.30 a.m. Inspector/SHO Shish Ram handled the investigation. While reaching the spot he requisitioned the Dog Squad. The crime team was also called for to take the finger prints. He prepared the inquest in respect of the deceased Mamta Jain and Trishla Devi. C. Parhlad Singh No.427, Finger Prints Technician, EHC Jaivir Singh photographer and Dr. Joginder Singh along with FSL Team and Dog Squad reached the spot and inspected the scene of crime and took chance prints from different places. Blood stained clothes and hair scattered there, were lifted. Dr. Joginder Singh prepared 15 sealed parcels at the spot and handed over the same to Inspector Shish Ram. C. Parhlad Singh prepared a parcel of mold which was having chance prints and handed over the same to Inspector Shish Ram. After completion of the proceedings, he dispatched the dead bodies for autopsy. On 4.3.2009, Bhushan Jain while giving the details of the gold ornaments stolen from his house while disclosing that the accused had stolen 550- ½ grams of gold ornaments and cash of `5000/-. On 24.3.2009, a secret information was received that call details of the different mobile phones during the night of 28.2.2009 could lead to tracking and tracing of the culprits. There upon, Inspector Shish Ram moved an application Ex.P145 for collecting call details of those six mobile phones. On 2.4.2009 Raja Ram gave call details of the mobile phones Ex.P146, ID Ex.P-148 and details of the dispatchers from tower Ex.P147. On report, it came to light that mobile phone No.94167 86410 owned by the accused a resident of Rania was used in the area of village Rori (the village of the deceased) around 8.00 p.m. To 8.30 p.m. Consequently, a raid was conducted but the accused was found missing.
On 3.4.2009, Gobind Ram, a relative of the accused and the resident of Sardulgarh disclosed to the police that the accused had made an extra judicial confession having committed the murder of Mamta and Trishla Devi and stolen the jewellery out of the almirah. He also produced Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -4- the accused before the Investigating Officer. On 4.4.2009, the accused made a disclosure statement Ex.P138 under Section 27 of the Evidence Act and pursuant to that he got recovered motor cycle bearing registration No. HR-44C-2662 having been used in the commission of the crime, recovery of the jewellery, kappa i.e. weapon of offence and mobile phone. The accused also got recovered his shirt Ex.P15, pant Ex.P16 which he was wearing at the time of occurrence and the purse Ex.P17 which were taken into possession vide recovery memo Ex.P14. Investigating Officer also took the sample of the hair of the accused for comparison of the same with the hair which were recovered by him at the spot. After collecting report of the Forensic Science Laboratory Ex.P1 and completing other formalities, presented the challan in the court.
On commitment, the accused was charged for the offence under Sections 302, 392 read with Section 397 and 412 of IPC, to which he pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined as many as 26 witnesses in all. Brij Lal (PW1) is the first informant of the occurrence to the complainant Deepak Kumar at about 7/7.15 a.m. when he was accompanied by Ashwani Kumar. On this information, Deepak Kumar and his mother Darshna Devi went to the scene of occurrence and found dead bodies of Mamta and Trishla Devi in the pool of blood and two boys aged about three years and three months were found there. Custody of these two boys was handed over to Darshana Devi.
Deepak Kumar (PW2) complainant has reiterated the facts as mentioned in the FIR Ex.P21.
Bhushan Jain (PW3) is the husband of Mamta. He has re- iterated the facts that one day prior to the occurrence, they had returned after attending the marriage. Mamta was laden with the golden ornaments. The accused had come in his absence and he being related to him stayed at their house on the night of 28.2.2009 and on 1.3.2009 he received telephonic message that Mamta and Trishla Devi were murdered. He joined the investigation on 4.3.2009 and disclosed about the details of the golden ornaments robbed from their house. On 7.4.2009, after the accused was arrested, he had joined the investigation. The accused got recovered one Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -5- green colour bag over which names of Bhushan Kumar and Mamta were scribed. On opening of the bag, the accused got recovered the ornaments Ex.P3 to P12 which were taken into possession by the police vide memo Ex.P13. The accused also got recovered his own clothes, Nokia mobile phone, purse of Bhushan Jain containing photograph of Devender Muni and some documents relating to his shop. He also got recovered the purse of his wife which were taken into possession vide memo Ex.P14.
Puran Chand (PW4) Clerk Municipal Committee Rania in order to prove that the House No. 189, Ward No.6 situated at Rania was owned by Om Parkash son of Rana Ram.
Sita Devi (PW5) widow of Om Parkash has proved that the accused was residing in her house for the last three years on rent @ 1000/- per month.
Naresh Kumar (PW6) is the owner of the motor cycle bearing registration No. HR-44C-2662. He disclosed that the accused had come to him and took his motor cycle on 28.2.2009 and returned the same on 1.3.2009.
Gobind Ram (PW7) is the witness to the extra judicial confession. He has testified the facts as narrated by the accused which led to the double murder and robbery at the house of Bhushan Jain. He disclosed that on the night of 28.2.2009 he stayed at the house of Bhushan Jain being his relative. Mamta had removed her ornaments and placed the same in her almirah in the presence of the accused but she could not lock it. Both the deceased had slept over the double bed, whereas, he had slept on a cot in the same room. During mid night he got up and went to take water out side from where he brought an iron rod with which he caused injuries to Mamta and Trishla Devi and stealthily removed the golden ornaments from the almirah. He has further testified that the accused had disclosed about his fear and of torture by the police, therefore, on his request, witness produced him before the police. He had further stated that the sister of his wife was married to the accused.
HC Balwan Singh (PW8) is a formal witness.
Dr. Naresh Kumar Saharan (PW9) had conducted the autopsy on the dead body of Mamta and found the following injuries on her Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -6- person :-
"1. A lacerated wound 2 cms x 0.5 cm in size on mid of upper half of forehead. A subcutical infiltration of blood was present on dissection.
2. A lacerated wound 5.5. cms x 0.5 cm in size on the mid of frontal bone region just above injury No.1. On dissection, subcutical infiltration of blood was present.
3. An incised wound 4 cms x 0.2 cm in size on the frontal bone region just right to the injury No. 2. On dissection subcutical infiltration of blood was present.
4. A lacerated wound 3 cms x 0.25 cm in size on the frontal bone region just right to injury No.3. On dissection subcutical infiltration of blood was present.
5. A lacerated wound 2.5 cms x 0.5 cm in size on the right side of frontal bone region. On dissection subcutical infiltration of blood was present.
6. A lacerated wound 4 cms x 0.5 cm in size on the right side of frontal bone region just above injury No. 5. On dissection subcutical infiltration of blood was present.
7. An incised wound 2.5 cms x 0.5 cm in size on the frontal bone region just above injury No.3. On dissection subcutical infiltration of blood was present.
8. An incised wound 8 cms x 4 cms in size on the left side of fronto-parietal bone region. On dissection subcutical infiltration of blood was present.
9. An incised wound 3 cms x 0.5 cm in size on the left parietal bone region. On dissection subcutical infiltration of blood was present.
10. An incised wound 8 cms x 2.3 cms in size on the parietal bone region just left to injury No. 9, irregular in shape. On dissection subcutical infiltration of blood was present.
11. A lacerated wound 7 cms x 3 cms in size on the occipital bone region of left side just back to pinna. On dissection Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -7- subcutical blood infiltration was present.
12. A lacerated wound 2.5 cms x 0.5 cm in size on the vertex, hameatoma present below the wound and fracture of underlying bone was present. On opening the skull, the meninges were torn and brain matter had come out from meninges. On dissection subcutical infiltration of blood was present."
This witness was the member of the team comprising of him and Dr. (Mrs.) Archna Aggarwal (PW10). The cause of death, as per opinion of Dr. Naresh Kumar (PW9) and Dr. (Mrs.) Archna Aggarwal (PW10) was multiple injuries and their complications which were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. He proved postmortem report of Mamta Jain as Ex.P23 and diagram as Ex.P23/A showing the seats of the injuries.
Dr. (Mrs.) Archna Aggarwal (PW10) had deposed about the autopsy on the dead body of Trishla Devi and disclosed the following injuries on her body :-
"1. A lacerated wound 10 cms x 1.5 cms in size semi lunar shaped over right side of parieto occipital area of skull. On dissection subcutaneous infiltration of blood was present and underlying bone was fractured. Subdural haematoma was present.
2. A lacerated wound 5 cms x 1.5 cms in size irregular in obliquely placed over right side parieto occipital area of skull. On dissection subdural haematoma was present.
3. An incised wound 3.5 cms x 0.2 cm in size over right side parietal area of skull obliquely placed. On dissection subcutaneous infiltration of blood was present.
4. A lacerated wound 3.5 cms x 3 cms in size over mid line parietal area of skull. On dissection subcutaneous infiltration of blood was present. Underlying brain matter lacerated. Subdural haematoma was present. Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -8-
5. A lacerated wound 4.5 cms x 2.5 cms in size over left side of parieto occipital area of skull. On dissection subcutaneous infiltration of blood was present.
Underlying brain matter lacerated. Subdural
haematoma was present.
6. A lacerated wound 3.5 cms x 2 cms in size over left side frontal area of skull, bone deep. On dissection subcutaneous infiltration of blood was present.
7. A lacerated wound 4.5 cms x 4 cms in size over left side fronto parietal area, bone deep. On dissection subcutaneous infiltration of blood was present.
8. Lacerated wound over both sides ear lobules cutting the lobules through and through. Subcutaneous infiltration of blood was present.
Cause of death, as per opinion of Dr. Naresh Kumar Saharan (PW9) and Dr. (Mrs.) Archna Aggarwal (PW10), members of the Board, was haemorrhage and shock as a result of head injuries which were ante mortem in nature and were sufficient to cause death in the ordinary course of nature.
C. Parhlad Singh (PW11) is a witness to the taking of chance prints of the spot and then got a CD (Ex.P38) prepared with the help of handy-cam, took photographs Ex.P39 to Ex.P117, got locking handle Ex.P36 of the door into possession vide recovery memo Ex.P35.
ASI Rajbir Singh (PW12) is a witness through whom the dead body was dispatched to the hospital for postmortem examination.
Radhey Sham (PW13) had proved the scaled site plan Ex.P131 prepared by him at the spot.
HC Ram Chander (PW14), C. Najam Singh (PW15), C. Jagdish Chander (PW16), C. Chander Pal (PW17) tendered their affidavits Ex.P132 to Ex.P135 respectively.
Dr. Kuldeep Sain (PW18) had taken the hair of the accused from his scalp and converted the same into parcel and prepared the report Ex.P137.
Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -9- SI Randhir Singh (PW19) is a witness in whose presence the accused was produced and Inspector Shish Ram had interrogated him. He is also a witness to the disclosure statement Ex.P138 and the recovery of the motor cycle bearing registration No. HR-44C-2662 got recovered by him.
Rajiv Garg, SDE, BSNL Sirsa (PW20) is a witness to the phone calls. He has also proved the report Ex.P139 indicating about the ownership of the mobile No.94167 86410.
Jagdish Chand (PW21) had partly investigated the case and had also submitted report under Section 173 Cr.P.C.
EASI Tirlok Chand (PW22) has corroborated the testimony of Inspector Shish Ram regarding interrogation of the accused on 5.4.2009, recovery of kapa Ex.P143 and also proved the disclosure statement Ex.P140.
ASI Des Raj (PW23) had also supported Inspector Shish Ram regarding spot visit, interrogation of the accused on 1.3.2009, lifting of sample and taking into possession photographs Ex.P39 to Ex.P117 at the spot.
ASI Raja Ram (PW24) Cyber Crime Cell has proved the application Ex.P145, which was produced by Inspector Shish Ram Investigating Officer to him for supplying call details. He had narrated about all the call details and supported the testimony of Inspector Shish Ram.
Inspector Shish Ram (PW25) is the Investigating Officer of this case.
On closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. in which he explained all the incriminating circumstances appearing against him and pleaded his false implication. He had further disclosed as under :-
"I am innocent. My sister Kiran Jain was married with the cousin of Bhushan Kumar complainant named Ram Chand and previously there was a dispute between Kiran and Ram Chand and I used to support Kiran in that litigation. Ultimately, the divorce decree was granted to Kiran and Ram Chand. Due to Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -10- that dispute I have been falsely implicated in this case by the complainant at the instance of Ram Chand. I did not commit any offence as alleged."
No evidence was led in support of his defence.
The trial resulted into conviction. However, while holding that it was a case falling in the category of rarest of the rare cases, he was awarded death sentence. Hence this reference was made to this court for confirmation of the death sentence, whereas, the accused has also preferred an appeal.
Arguments heard. Record perused.
Ms. Rupinder Kaur Thind, Advocate for the appellant while assailing the findings of conviction has raised multi-fold contentions. It was contended that there is no direct evidence connecting the accused with the commission of the crime. The circumstances are shorn of credibility and truthfulness. The same cannot be said to be sufficient to complete its chain to connect the accused with the crime. The enmity with the accused could be the cause for false implication. The FIR is belated one and the delay in lodging the FIR stands unexplained. The kappa is shown to have been recovered from the accused which was used for the commission of the crime. The medical evidence does not fit in with the ocular version. Since only ladies were in the house, therefore, there was no reason for them to allow the accused to stay for the night. The extra judicial confession cannot be made foundation to base the conviction against the accused. The hair taken from the scalp of the accused could not be found to be tallied with the hair found at the spot and in the hands of the victim.
To the contrary, while indicating the evidence as led by the prosecution to connect the accused with the crime, Mr. Pardeep Singh Poonia, Additional Advocate General, Haryana has come to contend, without keeping the reservations that the direct evidence is missing in this case, however, he has stressed that the circumstantial evidence in order to connect the accused with the crime is so voluminous and complete that the same is quite inconsistent with the innocence of the accused. The accused appears to have been attracted towards the golden ornaments which Mamta Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -11- had placed in the almirah. Apprehending that he may not be caught while stealing the ornaments made the two ladies to sleep forever by causing injuries, removed the ornaments and ran away. The recovery of ornaments; the extra judicial confession; recovery of the motor cycle; mobile phone and the fact that the accused being the resident of Rania had phoned from the tower at village Rori which is the place of occurrence indicate that the accused was present in the village on the day and occurrence and thereafter he absconded with the ornaments and could not be found at the house, goes a long way to reveal that it was none else but it was the accused who had committed the crime.
Having heard the rival contentions, an endeavour to shift the chaff from the grain and reach the truth, the court though has not come across any piece of direct evidence which may prove the complicity of the accused in the commission of crime, but the prosecution has been able to lead sufficient circumstantial evidence which in all human probabilities impels us to conclude that it was the accused and none else who had committed the offence. The Apex Court, in case Hanumant Govind Nagundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343, observed as under :-
"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 be in the first instance be fully established and all the facts so established should 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 that within all human probability the act must have been done by the accused."
The Apex Court, while dealing with the circumstantial evidence, in case Sharad Birdhichand Sarda vs. State of Maharashtra, Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -12- AIR 1984 SC 1622, has held that onus was on the prosecution to prove that the chain is complete and the infirmity lacuna in prosecution cannot be cured by false defence or plea. The condition precedent in the words of this Court before conviction could be based on circumstantial evidence, must be fully established. They are :
"(i) the circumstances from which the conclusion of guilt is to be drawn, should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a 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."
These aspects were recently highlighted in in State of Rajasthan v. Rajaram, 2003 (4) RCR (Criminal) 238 (SC).
Now while putting to test the circumstances as proved by the prosecution in the present case on the parameters as set out by the Apex Court in Sharad Birdhichand Sarda 's case (supra) we set to reiterate the facts and the evidence before us.
The accused was none else but closely related to the deceased. Since the deceased Mamta had the protection of her mother-in- law and the two children, she had no such apprehension of attack on her modesty, accepted the request of the accused, as it happens in the villages to Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -13- stay for the night at their house. Since the deceased along with her husband had gone to attend the marriage of her brother, therefore, obviously she had taken the ornaments with her and was wearing the same on the day which she had put off in the evening of that day before sleeping.
The accused appears to have become greedy of the ornaments and when he saw her removing the same and putting the same in the almirah, which she had forgotten to lock.
The circumstances also reveal that since the two deceased were sleeping where the almirah was lying and he wanted to clear the course for his safe robbery and did not want to leave any evidence behind, therefore, he opted to kill them with the apprehension that they may not wake up, caused injuries to them resulting into their death and then he removed the ornaments and also washed his hands on the tap in the courtyard.
The argument that why the ladies would allow the accused to stay in the house when the male inmate of the house was not in the village, stands explained by the accused himself. Bhushan Jain has admitted that his sister was married to his cousin and there was a matrimonial dispute of his sister with the cousin of Bhushan Kumar, therefore, in view of the relationship involved, the possibility of allowing him to stay in the house at night cannot be ruled out.
The presence of the accused in the village on the night of occurrence stands duly established from the statement of Rajiv Garg SDE, BSNL (PW20) who has stated that the mobile phone No.94167-86410 was owned by the accused and the said mobile was recovered from the accused later on, on the basis of the disclosure statement made by him. He could not explain as to if he was not present at village Rori on the day of occurrence.
Then, we have the evidence of Naresh Kumar (PW6) owner of the motor cycle bearing registration No. HR-44C-2662 who told that the accused had taken away his motor cycle on 28.2.2009 and returned the same on 1.3.2009. He being the co-villager of the accused had no reason to tell a lie. The accused also got recovered the said motor cycle, the same having been used in the commission of the crime. The other evidence to prove the complicity of the accused in the commission of the crime is the recovery of the ornaments, pursuant to the disclosure statement Ex.P140, Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -14- made by him, wherein he had disclosed that he had kept concealed the ornaments, one lady purse and cloth bag at his house at Rania. Pursuant to the said statement he got recovered the said ornaments contained in the said bag which were identified by Bhushan Jain and claimed by him. The accused has not claimed the ornaments to be his ownership. No sane person would throw away such valuable ornaments worth `7 lacs for implicating a person for no cause. The conduct of the accused also goes a long way to prove that he was the person who had committed the crime. He continued making flickering statements with regard to recovery of ornaments so also the recovery of the weapon of offence and ultimately weapon of offence was also got recovered by him.
The argument that since the accused had made contradictory statements with regard to recovery of the ornaments as well as recovery of 'kappa', therefore, no reliance could be placed on such disclosure statement. In this regard, we observe that it was not a petty recovery which could be foisted upon the accused but the recovery of the huge ornaments worth `7 lacs. The police never knew about the place where the accused had concealed the stolen ornaments, whereas, the vested interest of the accused was to put off the police by making divergent statements. However, he could not escape the interrogation and bear the queries put by the police, therefore, he had to tell he police as to where he had concealed the weapon of offence as well as the ornaments robbed by him. The place from where the 'kappa' as well as the golden ornaments were recovered was not the public place accessible to the public at large. The ornaments were of specific nature and could not be placed by the police for foisting the same upon the accused, therefore, there is no reason to discard the statements made by the accused under Section 27 of the Evidence Act for the recovery of golden ornaments Ex.P3 to Ex.P12 and the weapon of offence.
The medical evidence fits in with the ocular version. The injuries could be caused to the deceased with sharp as well as blunt side of the weapon. The report Ex.P1 given by the Forensic Science Laboratory, Madhuban, Karnal, Haryana further corroborates the prosecution version that blood was detected on Dhantar (kappa) Ex.P18. Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -15- The other piece of evidence is that immediately after the occurrence, the accused fled away and was ultimately produced by Gobind Ram (PW7) on 4.4.2009 i.e. after one month and three days.
We have also the evidence of Gobind Ram (PW7) a close relative of the accused. The cousin sister of wife of Gobind Ram was married to the accused. He without any reservations and hesitation has unfolded the story which was disclosed by the accused during his extra judicial confession before him. He has been cross-examined at length but his testimony stands un-shattered and un-impeached.
The last circumstance indicating the complicity of the accused is the motive. The accused was attracted towards the bounty which he desired to have it.
The argument that the hair which were found at the spot could not synchronize with the hair of the scalp of the accused taken during investigation, therefore, the accused deserves benefit of doubt, does not find any substance. First of all, it is not proved whether the hair found at the spot were from the head of the accused. No such hair from beard or body were taken by the police. Secondly, report Ex.P1 being merely an opinion evidence cannot be placed reliance. Thirdly, on perusal of the report placed on the record it transpires that no definite opinion was given by Serologist regarding hair recovered from the hand of the deceased, near the dead body and outside the room and banian of the deceased, on account of insufficient number.
As regards the hair recovered from the hand of the deceased and hair recovered from near the dead body as well as recovered from out side the room, though Serologist has mentioned that there were dis- similarities when compared with the sample hair, but this vague report cannot be relied upon as no specific dis-similarities were recorded. Even similarities were not recorded, therefore, we are not hesitant to ignore the report of Richa Mehta Serologist made on 2.9.2009.
Thus, while probing the aforesaid circumstantial evidence as emanating from the statements made by the witnesses, in support of the prosecution case, we are not reluctant to ignore the arguments raised by the learned counsel for the appellant, rather we hold that the prosecution has Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -16- been able to establish complete chain of circumstances which unerringly point towards the guilt of the accused.
Now coming to the death sentence awarded against the accused.
Having considered the entire material on record, it cannot be held to be a rarest of the rare cases. The principle with regard to awarding of the death penalty have been well settled by the Apex Court in the judgments rendered in cases Bachan Singh v. State of Punjab, AIR 1980 SC 898, Machhi Singh v. State of Punjab, 1984 (2) R.C.R. (Criminal) 412 : (1983) 3 SCC 470 and Kehar Singh v. State (Delhi Administration) (1988) 3 SCC 609 which clearly envisage that on conviction under Section 302 IPC, the normal rule is to award punishment of life imprisonment and the punishment of death should be resorted to only for the rarest of the rare cases. In order to find out if it could fall in the category of rarest of the rare cases, the court has to examine all the facts and circumstances of each case, the entire evidence on record, take note of aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. Similar observations were made in case Rabindra Kumar Pal @ Dara Singh v. Republic of India 2011 (1) R.A.J.
334. The Division Bench of this Court in case State of Punjab vs. Joginder Singh alias Neela 2011 (2) R.C.R. (Criminal) 76 (P&H) while relying upon the various judgments observed that mere number of persons killed is not by itself a circumstance justifying the award of death sentence. The court should also examine if there was no chance of the accused being reformed or rehabilitated and if the accused is threat to the society even if he comes out after a long time of imprisonment. Thus, while examining the aforesaid law laid down by the Apex Court as well as our own High Court we are inclined to hold that the present case does not fall within the category of rarest of the rare cases.
First of all the case is based on circumstantial evidence and not on direct evidence. The Apex Court in case Aloke Nath Dutta and others vs. State of West Bengal, 2007 (1) R.C.R. (Criminal) 468 observed that if Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -17- an offence is proved by circumstantial evidence, the awarding of death penalty should ordinarily be avoided.
We are oblivious of the fact that the aforesaid ratio has led to a conflicting decision in Rameshbhai Chandubhai Rathod vs. The State of Gujrat,2009 (3) R.C.R. (Criminal) 618, as a result of which the matter was referred to the Larger Bench.
The Larger Bench of the Apex Court in case, Rameshbhai Chandubhai Rathod vs. The State of Gujrat, 2011 (1) R.C.R. (Criminal) 728 observed as under :
"...... We notice that there is a very thin line on facts which separates the award of a capital sentence from a life sentence in the case of rape and murder of a young child by a young man and the subjective opinion of individual judges as to the morality efficacy or otherwise of a death sentence cannot entirely be ruled out. It is now well settled that as on today the broad principle is that the death sentence is to be awarded only in exceptional cases. Both Hon'ble Judges have relied extensively on Dhanonjoy Chatterjee's case (supra). In this case the death sentence had been awarded by the trial court on similar facts and confirmed by the Calcutta High Court and the appeal too dismissed by this Court leading to the execution of the accused. Ganguli, J. has, however, drawn a distinction on the facts of that case and the present one and held that as the appellant was a young man, only 27 years of age, it was obligatory on the trial court to have given a finding as to a possible rehabilitation and reformation and the possibility that he could still become a useful member of society in case he was given a chance to do so. We are, therefore, of the opinion that in the light of the findings recorded by Ganguli, J. it would not be proper to maintain the death sentence on the appellant..."
While analyzing the aggravating and mitigating circumstances prevailing over the case, we could well observe that irrespective of the fact Murder Reference No. 2 of 2011 & Crl. Appeal No. 414-DB of 2011 -18- that the accused brutally murdered two ladies, by causing serious injuries and thereafter decamped with the jewellery. But, at the same time, we could also well keep in our mind that the intention of the accused was not to take vengeance or grudge, but to steal the ornaments. He committed the offence when he was quite young his greed overshadowed his act and there were also chances of his being reformed after he returns to the main stream after long period of imprisonment. The fact that the hair were found in the hands of the accused indicates that there must be scuffle and the dying person must have pulled the hair of the assailant and that is how his hair came in the hands of the deceased person. Though, the prosecution has not led sufficient evidence in order to establish that the hair in the hands of the deceased were that of the accused, yet, in view of the other connecting evidence it could be said that the murders were committed when deceased resisted. As such, intention of the accused actually was to commit robbery and not the murders. It may further be observed that except the present case, the accused is not shown to be previous offender, as such, it cannot be said that the accused cannot be reformed. It was neither an organized crime nor the accused was the habitual offender. It may also be considered that the accused has been confined in jail since 4.4.2009.
For the aforesaid reasons, we are reluctant to confirm the death sentence awarded by the trial court and commute the same to that of imprisonment for life without any alteration in the sentence of fine. As such, the murder reference is declined.
Consequently, with the aforesaid modification criminal Appeal No. 414-DB of 2011 is dismissed.
(Hemant Gupta) (A.N. Jindal)
Judge Judge
May 19, 2011
deepak