“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1236 OF 2006

Ramesh … Appellant

Versus

State of Rajasthan … Respondent

With

Criminal Appeal No. 1235 of 2006

Bharat Kumar @ Bhatia …Appellant

Versus

State of Rajasthan …Respondent

With

Criminal Appeal No. 1237 of 2006

Gordhan Lal …Appellant

Versus

State of Rajasthan …Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of Criminal Appeal No.

1236 of 2006 filed by Ramesh @ Gaguda (original accused

No. 3), Criminal Appeal No. 1235 of 2006 filed by Bharat

Kumar @ Bhatia (original accused No. 2) and Criminal

Appeal No. 1237 of 2006 filed by Gordhan Lal (original

accused No. 1). We shall refer to the appellants as per

their position before the Trial Court. While Ramesh @

Guguda (A-3) is sentenced to death by Trial and

appellate Courts, the other two accused being Bharat

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Kumar @ Bhatia (A-2) and Gordhan Lal (A-1) are facing

the life imprisonment alongwith fines on different

counts. That is how the matters have come up before us.

2. Human avarice has no limits nor does it know of any

emotions. The present case is the sordid saga of the

crime which emanated purely from human avarice.

3. Phalodi is a quiet Taluk place in the State of

Rajasthan. Ramlal Lunawat alongwith his wife Shanti

Devi was doing business of money lending by pledging

gold and silver ornaments and was selling steel

utensils. On 5.2.2003, Anil (PW-1) telephoned to Police

Station Phalodi that the door of the house-cum-shop of

Ramlal was lying suspiciously open and nobody from the

house was responding to the calls. Kishan Singh (PW-35)

who was the Station House Officer of the Police Station

Phalodi, reached the house alongwith some other police

personnel. They found that Ramlal and his wife Shanti

Devi were lying dead in the pool of blood. The FIR by

Anil (PW-1) was recorded and the investigation was

commenced for offences under Sections 302 and 457 of the

Indian Penal Code (hereinafter called “the IPC” for

short). The necessary spot panchnamas were executed and

the Material Objects found on the scene were seized. It

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was found that both the deceased persons had human hair

in their hands. There was a blood-stained needle and

syringe found near the dead body of Shanti Devi. Some

other materials were collected from the spot to find out

the finger prints. The clothes of the deceased persons

were also seized. On suspicion, the accused persons

were arrested. One other accused Rajesh (original

accused No. 4) was also arrested. He stands acquitted

by the Courts below. The accused persons gave

information under Section 27 of the Indian Evidence Act

and the clothes that they were wearing at the time of

incident and their shoes were recovered. The ornaments

stolen from the house of Ramlal were also recovered.

Their hair were also taken for comparing with the sample

of hairs founded at the scene of occurrence. The

instrument used for melting ornaments was found at the

house of Rajesh (A-4), which was allegedly stolen from

the house of deceased Ramlal. The materials were sent

to the Forensic Science Laboratory (FSL), Jaipur/Jodhpur

and the reports were obtained. On the completion of

investigation, the chargesheet was filed against four

persons.

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4. Case of the prosecution is that Gordhan Lal (A-1)

had some dealings with Ramlal (deceased) which was

evident from the diary found from the pocket of Ramlal.

The prosecution alleged that Gordhan Lal (A-1),

therefore, decided to commit a robbery at the place of

Ramlal, who was a rich person, and conspired with the

other accused persons, namely, Bharat Kumar @ Bhatia (A-

2), Ramesh @ Guguda (A-3) and Rajesh (A-4). They

trespassed into the house of Ramlal by night and looted

the house and decamped with the looted ornaments of

silver and gold, cash and other articles. It is alleged

by the prosecution that certain stolen gold ornaments

were melted at the house of Rajesh (A-4) and converted

into a nugget (Dhalia). Ramesh (A-3) and Bharat Kumar

(A-2) had past criminal background. They were involved

in number of criminal cases for offences such as attempt

to murder, house trespass, looting etc. The murder

weapon ‘Jharbad’ was recovered from Ramesh (A-3). The

chargesheet was filed for offences punishable under

Sections 120-B, 302, 201, 404, 414, 457, 460/34 of the

IPC as also for the offence punishable under Section

4/25 of the Arms Act against Ramesh (A-3). The evidence

was led and as many as 35 witnesses came to be examined

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in support of the charge. Prosecution relied on 132

documents and also produced 105 articles (M.Os.).

5. The defence was that of denial and false

implication. In addition to that, accused Ramesh

claimed that at the time of incident, he was taking part

in a Jagran in Pali. Four defence witnesses came to be

examined by Ramesh (A-3) while Gordhan Lal (A-1)

produced one witness. The accused persons also filed a

few documents. The defence did not prevail in case of

the present appellants as also Rajesh (A-4). Against

Ramesh (A-3), the case was treated to be the rarest of

rare case. Ramesh (A-3) was ordered to be hanged. He

was also convicted for other offences punishable under

Sections120-B, 457, 302, 379, 404, 201 of the IPC. On

the first two counts, he was awarded 5 years’ rigorous

imprisonment and on the others, 1 year’s rigorous

imprisonment consecutively with fine of Rs.500/- on each

count. He was also convicted for the offence punishable

under Section 5/25 of the Arms Act and was sentenced

with 1 year’s rigorous imprisonment with fine of

Rs.500/-. Gordhan Lal (A-1) and Bharat Kumar @ Bhatia

(A-2) were convicted with the aid of Section 34, IPC but

were spared by ordering them to suffer rigorous

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imprisonment for life. On the other counts, the

identical punishment, as was awarded to Ramesh (A-3),

was awarded to them. Rajesh (A-4) was convicted for the

offence punishable under Sections 201, 404 and 414 of

the IPC and was sentenced to undergo 5 years’ rigorous

imprisonment on the first count and 1 year’s rigorous

imprisonment on the other counts with fine of Rs.500/-

on each count. Reference was made to the High Court for

confirmation of the death sentence of Ramesh (A-3) while

the accused persons also filed their appeals. The

appeals filed by the present three appellants and Rajesh

(A-4) were dismissed by the High Court and the sentences

were also confirmed. The present appellants have

challenged the judgment of the High Court; however,

Rajesh (A-4) has not come before us. The reference was

answered in affirmative and the High Court confirmed the

death sentence in case of Ramesh (A-3) and that is how

the matters have come up before us.

6. Shri Sushil Kumar Jain, learned counsel appearing

on behalf of Ramesh (A-3) submitted that, in the first

place, there was no evidence to establish theft at the

house of the deceased persons and, therefore, there was

no question of any motive. The learned counsel also

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urged that there was no evidence to show that the

articles alleged to have been recovered from the

appellant Ramesh were belonging to or otherwise in

possession of the deceased persons before their death.

The learned counsel pointed out that the arrest and

recoveries made from the appellants are doubtful since

there are discrepancies in respect of the date, time and

place of the arrest and recoveries made. The learned

counsel also urged that the prosecution also could not

connect the accused persons with the crime on the basis

of FSL reports regarding the blood. Even in respect of

the weapon, the learned counsel pointed out that the

recovery of the murder weapon itself was doubtful.

Lastly, the learned counsel urged that at any rate, it

was not the rarest of rare case and as such the death

sentence was not justified. Shri M.N. Krishnamani,

learned senior counsel and Shri Anis Ahmed Khan, learned

counsel contended on behalf of Bharat Kumar @ Bhatia (A-

2) that the evidence of recovery of clothes and shoes of

Bharat Kumar @ Bhatia (A-2) was suspicious and

discrepant. They also attacked the alleged recovery of

silver and gold ornaments at the instance of this

accused. They pointed out that the FSL report was of no

consequence against this accused. Similar is the

7

contention raised by Shri M.L. Lahoty, learned counsel

appearing on behalf of Gordhan Lal (A-1). Shri Lahoty

pointed out that there was nothing incriminating found

against this accused and that the so-called recoveries

were farcical and inconsequential. The learned counsel

further pointed out that this accused could not be

booked on the basis of the FSL reports.

7. All the learned counsel pointed out that the

quality of investigation was extremely poor and it was a

pre-determined investigation. All the learned counsel,

therefore, prayed for rebuttal.

8. As against this, learned counsel appearing on

behalf of the State, supported the judgment while

pointing out that though this was a case based on

circumstantial evidence, the prosecution had fully

proved the incriminating circumstances like the recovery

of ornaments stolen from the house of Ramlal, their

identification and the fact that the accused persons

were found in possession of the stolen articles almost

immediately after the crime and, therefore, the

prosecution could use the presumption under Section 114

of the Indian Evidence Act. The learned counsel also

pointed out that the prosecution had proved that Rajesh,

8

the fourth conspirator, was a receiver of stolen

property and had helped in melting of some of the gold

items with the machines removed from the house of Ramlal

(deceased). It was also pointed out that Gordhan Lal

(A-1) was aware of sound financial condition of Ramlal

as he was dealing with Ramlal which was clear from the

diary found from the pocket of Ramlal’s body. The

learned counsel also pointed out that there were some

clinching circumstances in the prosecution evidence

which established that all the four accused persons were

working hand-in-glove and had entered into conspiracy to

commit robbery at Ramlal’s place. The learned counsel,

therefore, urged that the accused would be answerable to

the charge of murder as they not only had conspired, but

had also developed a common intention to commit that

crime and had actually committed the crime of robbery

and in that process had committed murder of two innocent

persons.

9. As regards the sentence, the learned counsel

appearing on behalf of the State urged that this was

undoubtedly the rarest of rare case, where the accused

persons had committed the murder for their avarice with

pre-planned mind and in cold blood. The learned

9

counsel, therefore, justified the death sentence in case

of Ramesh (A-3) and life imprisonment in respect of

other accused persons.

10.Before we proceed with the matter, it has to be

borne in mind that this case depends upon circumstantial

evidence and, as such as, per the settled law, every

circumstance would have to be proved beyond reasonable

doubt and further the chain of circumstances should be

so complete and perfect that the only inference of the

guilt of the accused should emanate therefrom. At the

same time, there should be no possibility whatsoever of

the defence version being true. Both the Courts below

have held that such circumstances are proved by the

prosecution and that the only inference flowing

therefrom would be that of the guilt on the part of the

three accused persons. The scope for interference in

factual findings by this Court is very limited. This

Court would, under such circumstances, examine whether

the findings are pervert or impossible. Again, this is

not a case of a single accused, and, therefore, the

incriminating circumstances would have to be

individually weighed vis-à-vis each accused and it would

have to be seen as to whether such examination justifies

10

the conviction of the accused as ordered by the Trial

Court and the appellate Court.

11.Initially, accused No.4, Rajesh was also tried with

the accused persons. He was charged with the offence

under Sections 201, 404 and 414, Indian Penal Code.

While convicting him, the Trial Court has recorded

certain findings convicting him of all the three

offences stated above. Basically, it was alleged

against Rajesh (A-4) vide Exhibit P-31, that the stolen

property of gold ornament was recovered from him.

Exhibit P-32 is the site plan of the recovery. Rajesh

initially was roped in as the conspirator also.

However, it seems that he has been absolved of the

charge of conspiracy. In that behalf, it has been held

by the Trial Court that he cannot be booked for that

offence since it was not proved that he had joined the

conspiracy to the house-breaking in the house of Ram

Lal. Recording this finding, the Sessions Judge also

acquitted him of the offence under Section 302 and

Section 120B, IPC. Indeed there could be no offence

under Section 302, IPC alleged against him as there was

no evidence against him of his having taken part in the

actual act of house-breaking and the assault on Ram Lal

11

and Shanti Devi. It is only on the basis of the

discovery by him of ornaments and the machinery to melt

gold that he has been booked for the offence under

Sections 201, 404 and 414, IPC. The Trial Court as well

as the appellate Court have accepted that he voluntarily

gave information vide Exhibit P-106 after his arrest on

13.2.2003. Both the Courts below have further held that

in pursuance of that, he took the Panchas and the

Investigating Officer and discovered ornaments

substantial in number. The discovery was supported by

the evidence of PW-5, Chandulal and PW-16, Madho Singh

while recovery of the ornaments was also supported by

the evidence of PW-35, Kishan Singh. The most

significant of the articles discovered by this accused

is a steel tiffin on which the name of Ramlal Lunawat

was engraved. The other ornaments were weighing about

350 gms. of gold. The Courts below have held that the

appellant Rajesh was aware of the incident and the

circumstance as to how the steel tiffin belonging to

Ramlal Lunawat along with ornaments came to his

possession was not explained by him. Besides this, the

High Court also noted that certain jewels coming out

from the ornaments were stuck on the melting apparatus.

Therefore, the Courts came to the conclusion that the

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appellant knew or had reason to know that the offence

had been committed. He not only tried to screen the

offence by melting the ornaments but was found in

possession of the stolen property like the ornaments and

the gold ingots. It was on this basis that Rajesh was

convicted for offences under Sections 201 and 404 as

also Section 414, IPC. The High Court wrote a finding

“on the basis of the same set of evidence, it can also

be safely said that the appellant Rajesh assisted other

accused appellants in disposal of the property”. The

High Court has specifically held that accused had not

given any satisfactory explanation regarding this

recovery. He was an ordinary government employee but

had kept the gold ornaments in his possession knowing

them to be stolen property. The Trial Court,

thereafter, gave a finding that it were accused Ramesh

and Rajesh together who had melted gold ornaments and

prepared dhalias with it, weighing 347 gms. which have

been recovered from Ramesh and Rajesh and three ladis

ingots weighing 151 gms. Thus, Rajesh had received the

ornaments from none-else than Ramesh (A-3) who himself

was found in possession of very substantial number of

ornaments including 10 dhalias, weighing 1347 gms. It

was, therefore, obvious that there was a definite

13

connection between Rajesh (A-4) and the other accused

(A-1) Ramesh. Very surprisingly, the finding regarding

the ornaments received by Rajesh coming from Ramesh and

fellow accused has not been challenged in any of the

appeals. If the ornaments were found to be belonging to

Ramlal as they were kept in the tiffin on which the name

of Ramlal was engraved and further if Rajesh had given

no explanation, it was obvious that the ornaments

proceeded from accused Ramesh and his fellow accused to

Rajesh with the sole objective of melting the ornaments.

Rajesh knew that it was stolen property and had accepted

the same. In such circumstances, it was incumbent upon

the other accused being A-1, A-2 and A-3 to challenge at

least the finding against Rajesh even if Rajesh had not

challenged his conviction. The finding given against

Rajesh regarding the stolen property having been given

to him by accused Ramesh ought to have been challenged.

There was no challenge on this major circumstance with

the result that it is now the factual situation that the

ornaments stolen from Ramlal’s house and the other

connecting materials like tiffin were passed on to

Rajesh.

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12.However, that by itself will not be a clinching

circumstance against the three appellants. The

prosecution had to prove beyond reasonable doubt that

these three accused persons entered the house-cum-shop

of Ramlal and then committed the murder of the two and,

thereafter, decamped with the cash and substantial

amount of ornaments.

13.A very strange argument was raised by Shri Sushil

Kumar Jain. According to him, the prosecution had not

proved that there was any theft at all. This argument

was not made even before the Trial Court or the

appellate Court. However, the argument must fail on the

simple ground that the ornaments found with Rajesh were

kept in a tiffin bearing the name of Ramlal. Rajesh

could not give any explanation of the huge amount of

ornaments melted and other things found in his

possession. Secondly, there was also a Katordan which

was found by the Investigating Officer with Gordhan

(though there is some controversy as to from which

accused the said Katordan bearing the name of Ramlal was

found). Even if there is such a controversy the fact of

the matter is that the Katordan did belong to Ramlal and

there is no explanation whatsoever as to how the

15

Katordan came out of the house of Ramlal. Thirdly, the

huge amount of gold which was found with Ramesh being

1347 gms. (some ornaments being intact and some turned

into gold ingots for which there was virtually no

explanation, as also the ornaments found with accused

Gordhan and accused Bharat without any reasonable

explanation), therefore, would completely destroy the

argument of learned counsel that there was no theft. It

does not stand to reason that the police must have

collected all these ornaments from the house of Ramlal

after the murder and planted the ornaments without any

purpose for the obvious weakness of the argument.

Therefore, the first argument of Shri Jain on behalf of

Ramesh, (A-3) that there was no theft or that the

prosecution had not proved any theft having committed at

Ramlal’s house must fall to the ground.

14.Considering the case of Ramesh (A-3) whose

complicity has been held to be proved, Shri Sushil Kumar

Jain, learned counsel for the said appellant submitted

that there was contradiction with regard to the date,

time and place of the discoveries and recoveries. Some

minor contradictions were shown which are of no

consequence. The learned counsel tried to urge that

16

though the accused was arrested on 9.2.2003 as per

Exhibit P-102A (Rojnamcha of the Police Station

Phalodi), according to Inder Singh (PW-10), he was

arrested on 10.2.2003. We are not impressed by this

argument at all, particularly, in view of the evidence

of Inder Singh (PW-10), Mahendra Pal Singh (PW-19) and

Nagaram (PW-33). There is nothing wrong if the said

accused was arrested somewhere and brought to the Police

Station Kotwali. After all, he was carrying the huge

amount of ornaments and cash on his person. If that was

so, it could not have been weighed in the open market.

For that, he was required to be brought to the Police

Station Kotwali. Therefore, this argument that there

was some contradiction in the versions, does not impress

us. Similarly, the learned counsel tried to argue that

as per the evidence of Inder Singh, SHO (PW-10), after

arresting Ramesh (A-3), they had come straight to

Nagorigate Police Station. We do not find much

substance in this argument as it is sufficiently proved

by the prosecution that when Ramesh (A-3) was arrested,

he was having a black bag containing huge amount of gold

ornaments. It does not really matter as to whether the

proceedings were done at Adharshila or at Nagorigate or

even at Kotwali Police Station so long as it is proved

17

that when apprehended, Ramesh (A-3) was carrying the

black bag full of ornaments and cash which has been

successfully proved by the prosecution. This is all the

more true as there is absolutely no explanation by

Ramesh (A-3) for the possession of the huge haul of

gold. Therefore, the so-called contradictions in the

evidence of Inder Singh (PW-10), Mahendra Pal Singh (PW-

19) and Nagaram (PW-33) does not impress us at all. We

have already observed that it could not be possible for

the police to collect all the gold and to put it against

the three accused persons. The learned counsel tried to

argue that there is no mention in Exhibit P-44 (Memo of

Arrest) of the black bags specifically. That is not

correct. A look at Exhibit P-44 is sufficient to show

that there was a black bag with Ramesh (A-3). After

all, he was not going to carry all these instruments in

his shirt pockets and pant pockets. Even if it is not

mentioned, that is of no consequence. A good

explanation has been given that since the bag was empty,

there was no necessity of its being sealed. We accept

the explanation. Therefore, we hold that the High Court

and the Trial Court were correct in holding that a huge

haul of gold was found weighing as much as 1347 gms.,

which is more than a Kilo of gold. There was also no

18

explanation for the cash. It is also significant that

Ramesh (A-3) did not claim these ornaments as his

ornaments. All that the accused is suggesting is that

the ornaments were not seized from him. It is

impossible to accept this version of the accused.

15.This takes us to a very strong circumstance against

Ramesh (A-3) i.e. the presence of human blood on his

(Ramesh’s) clothes. Recovery Memo (Exhibit P-41) is in

respect of clothes and shoes of Ramesh (A-3). That was

effected on 15.2.2003. Exhibit P-42 is a site plan of

the recovery of clothes and shoes. True it is that

Ramesh’s house was visited by Kishan Singh (PW-35), the

Investigating Officer for recovery of Jharbad. It may

be that at that time the concerned police officer did

not show the presence of mind by searching the house for

recovery of clothes and shoes. However, that by itself

will not demolish the prosecution case. It has to be

borne in mind that it was in pursuance of Exhibit P-108

that the information was given by the accused regarding

the clothes and shoes. While he had given the

information about the weapon of offence ‘Jharbad’ vide

Exhibit P-103 dated 12.2.2003, we do accept that the

police officer on 12.3.2003 itself, when he seized the

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murder weapon i.e. Jharbad, should have taken the search

of the whole house. But, failure on the part of the

police officer to do that would not by itself wipe out

the prosecution case, particularly, in view of the fact

that the articles, namely, Jharbad, pant and the shoes

were found to be stained with human blood, which is

clear from Exhibit P-126. We have minutely seen and

examined Exhibit P-126, where it is seen that shirt and

shoes of Ramesh (A-3) were stained with human blood,

though the blood group could not be detected. However,

some explanation was bound to be offered by Ramesh (A-3)

as to how the human blood came on the shoes and on the

shirt. There is no explanation which is worthy. The

murder weapon, however, has been found stained with

human blood and even its blood group has been shown to

be ‘A’. It is to be seen that the clothes of Ramlal

were stained with his own blood which was of group ‘A’.

This is a very weighty circumstance against Ramesh (A-3)

and there is absolutely no explanation offered by Ramesh

(A-3) of this highly incriminating circumstance. Thus,

it is clear from this evidence that prosecution had

proved its case against Ramesh (A-3) that he was

involved in the robbery which was clear from the human

blood detected on his clothes and the murder weapon

20

which was recovered at his instance. Shri Jain, learned

counsel tried to attack the recoveries and the

discoveries. However, both the Courts below have

accepted the same. In addition to this, Ramesh (A-3)

was found to be in possession of huge amount of gold in

form of ornaments and ingots and cash, for which he had

no explanation. The said articles were seized from his

person. It is not understood as to why the gold would

be in the form of ingots from the recovery of the gold

melting apparatus from Rajesh. It was clear that there

was effort to melt the gold. The necessity of melting

the gold and the fact that the accused persons like

Rajesh made efforts to melt the gold and further accused

Ramesh being found in possession of gold ingots which

could not have been in that form lends support to the

theory that Ramesh was in possession of the stolen

property. There is no explanation by Ramesh even for

the huge cash. He did not accept the cash belonging to

him. He is not shown to be a wealthy person so as to be

in possession of 1347 gms. of gold and a huge cash of

about Rs. 30,000/-. All this and the further evidence

that his clothes and shoes were stained in blood and the

Jharbad (weapon) recovered from him was also blood

stained with A group of blood would clinch the case

21

against Ramesh. Shri Jain also very earnestly suggested

that discoveries and recoveries were farcical and that

in fact, some of the discoveries and recoveries were

disbelieved by the Trial Court also but had been

accepted by the High Court.

16.We are of the clear opinion that the High Court was

absolutely correct in believing the recoveries and

discoveries also, particularly, as against the accused

Ramesh. There may be some irregularities here and there

or some casual investigation by the police, however, we

do not think that the investigation in this case was

tainted. There was absolutely no reason for the police

to falsely implicate Ramesh (A-3) and the other two

accused persons. True it is that Phalodi is a small

place and there was great tension prevailing on account

of the robbery, however, that by itself will not be the

reason for police to falsely implicate Ramesh (A-3) and

the other two accused persons. Nothing has been brought

in the cross-examination of the police officers and,

more particularly, the cross-examination of Kishan Singh

(PW-35), the Investigating Officer. Before going to the

other cited cases, we would consider the case of Gordhan

Lal (A-1).

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17.In so far as accused Gordhan is concerned, Shri

Lahoti, learned counsel appearing for him, led much

stress on the fact that there was no blood found on

Gordhan’s pant and T-shirt. The learned counsel further

says that it is obvious that Gordhan was not the

participant in the crime. That statement is clearly

incorrect. Insofar as his T-shirt is concerned, Exhibit

P-126 clearly speaks that human blood was found on his

shirt. As if this was not sufficient, his shoes were

also found to be stained with human blood. Therefore,

Exhibit P-126 would falsify the claim on behalf of

accused Gordhan that he was not connected with the

crime. It is only his pant which seems to be innocuous

in the sense that no blood was found on the same.

However, there is no explanation by Gordhan as to how

his T-shirt and shoes were found to be stained with

human blood. Shri Lahoti attacked the recovery of

clothes as well as the ornaments on 9.2.2003. The

prosecution has relied on PW-6, Mohan Lal, PW-7, Dev

Kumar and PW-11, Ajit Jain. The recovery of clothes was

on 9.2.2003, while the ornaments were recovered on

13.2.2003 and 19.2.2003. It was only the gold chain

which was recovered on 19.2.2003 from him. Rest of the

ornaments were recovered from him and it was found at

23

the time of recovery that the ornaments were kept in a

Katordan. It is specifically mentioned therein that the

name of Ramlal was engraved on the said Katordan. The

learned counsel very vehemently attacked this so-called

recovery which was made on 13.2.2003. The recovery

appears to have been made on 09.2.2003 vide Exhibit P-

38. It was only on that day that the clothes and the

shoes of Gordhan were seized. On 19.2.2003, Gordhan

produced the chain. It must be remembered that this was

the gold chain which was identified by PW-30 Rajesh in

the identification parade by PW-22, Jitendra Kumar

Pandey Tehsildar, Phalodi.

18.We have gone through the evidence of identification

parade especially of PW-22, Jitendra Kumar Pandey and

both the Courts having accepted the evidence about the

identification of ornaments which were recovered from

Ramesh. We do not find any reason to dis-believe that

evidence. Therefore, it is established that Ramesh was

undoubtedly in possession of the ornaments which

ornaments can be connected with Ramlal. In this behalf,

we must refer to the evidence of Rajesh who claimed in

his evidence that he identified the chain of his

maternal uncle. It is to be seen that Rajesh was the

24

nephew of deceased Ramlal. He surfaced immediately

after it was known that Ramlal and his wife Shanti Devi

were murdered. He claimed that he had seen his maternal

uncle using the chain and two rings and his Mami i.e.

Shanti Devi using four bangles and four rings and ear

rings in her ears. He was the one who performed the

last rites of Ramlal and Shanti Devi. He also referred

to the search taken by police on 8.2.2003 and the Fard

prepared therein vide Exhibit P-22. He described that

the goods in the shop were lying scattered and there

were small Potlies containing Rs.17,000/- in cash and

some change. On 18.4.2003, he was called for

identifying the ornaments. The identification

proceedings are to be seen from Exhibits P-24 and P-25.

He correctly identified the chain of maternal uncle and

also the bangles of his maternal aunt. The learned

counsel assailed this evidence vehemently. The mother

of Rajesh was the first wife of his father and Ramlal

was the brother of his mother who was no more. His

claim that he used to stay with deceased Ramlal whenever

he was in Phalodi, could not be demolished. It was

urged that even Ramlal’s first wife had died and Shanti

Devi was his second wife, for whose marriage he was not

invited. He corrected himself and claimed that though

25

he was invited, since there was a death of a close

relative, he could not come for the marriage from

Madras. Even accepting that this witness was not called

for the marriage, the fact that he used to stay with the

deceased persons whenever he was in Phalodi could not be

demolished. The tenor of his evidence shows that he

indeed was very closely connected with Ramlal. We are

not impressed by the huge and long cross-examination of

this witness. Most of the cross-examination was

irrelevant. In fact, it is in his cross-examination

that it has come that there was a mark of flower and

patia (leaves) on the gold bangles of his maternal aunt.

It cannot be expected that the witness would give a

graphic description of the ornaments. Much cross-

examination was wasted in showing that he did not know

from where the other bangles and chains were brought by

the police for the identification purpose. That was

absolutely irrelevant. The evidence of Jitender Kumar

(PW-22) is extremely important inasmuch as both Ramesh

(A-3) and Bharat Kumar (A-2) are connected because of

that evidence. The four gold bangles which were

identified by Rajesh (A-4) were seized from Bharat Kumar

(A-2) while the chain which was identified by him was

seized from Gordhan Lal (A-1). This witness

26

specifically stated that these ornaments were correctly

identified. There is hardly any cross-examination which

is worthy and can be relied upon and accepted. The

cross-examination only consists of some futile

suggestions. This witness had no interest against the

accused or in favour of the prosecution. He was doing

his duty. His evidence connects Gordhan (A-1) and

Bharat Kumar (A-2) with the crime. We, therefore,

accept the identification. We are also in agreement

with the High Court that the recoveries from Gordhan Lal

(A-1) and Bharat Kumar (A-2) of the ornaments including

the identified bangles and the chain were fully proved.

There is hardly any explanation by these two accused

persons.

19.We are not impressed by the contention raised that

the police have seized the gold chain on 19.2.2003 even

when they had visited the same place on 9.2.2003 for

recovering the cloths on 13.2.2003 for recovering the

other ornaments including the Katordan. It is quite

possible that the police were not able to recover all

the ornaments in one go. The High Court has given good

reasons to set aside the finding of the Trial Court to

the effect that this recovery was not proved. In fact,

27

there is clear cut evidence on record that the ornaments

which were recovered on 13.2.2003 were kept in a

Katordan. We have already commented that in Exhibit P35

itself, it is clearly mentioned that full name of

deceased Ramlal was engraved on the Katordan. The

recovery of Katordan would clinch the issue insofar as

the identification of the ornaments is concerned.

Gordhan had no explanation whatsoever for these

ornaments or for the Katordan. Therefore, it is clear

that Gordhan was also in possession of the stolen

property almost immediately after the theft and was

directly connected with the crime since his shirt and

shoes were stained with human blood for which there was

no explanation. We confirm the finding given by the High

Court regarding the recoveries. We have already pointed

out earlier that the gold chain which was recovered from

accused Gordhan was clearly identified by PW-30, Rajesh.

We have closely seen the evidence of PW-7, Dev Kumar and

PW-35, Kishan Singh. We have also considered the

evidence of DW-5, Chhel Singh. We are, therefore, of

the clear opinion that the prosecution has been able to

prove the guilt of Gordhan who was not only a

participant in the crime but was also found in

possession of the gold ornaments including the gold

28

chain which was clearly identified by witness PW-

30,Rajesh. We, therefore, confirm the finding of the

High Court in that behalf and hold that the High Court

was right in dismissing the appeal of Gordhan. There is

some controversy in respect of the Katordan as to

whether it was seized from Gordhan or from Bharat Kumar.

Considering the oral evidence of PW-6, Mohan Lal as also

PW-35, Kishan Singh and further considering Exhibit P-

35, we are of the clear opinion that Katordan on which

name of deceased Ramlal was engraved was undoubtedly

seized from this accused. We are, therefore, of the

clear opinion that the High Court was right in

dismissing the appeal of this accused.

20.This leaves us with the case of Bharat which is no

better than Gordhan’s case. It must be remembered that

as per Exhibit P-126, Bharat Kumar’s T-shirt as well as

pant as also his shoes were stained with human blood and

further his pant and shirt were found to be stained with

blood group A which was the blood group of Ramlal. This

circumstance alone is sufficient to clinch the issue

against this accused. As if this is not sufficient,

there has been the recovery of gold ornaments from

Bharat Kumar. He was arrested on 7.2.2003 and vide

29

Exhibit P-85, he agreed to produce the ornaments vide

Exhibit P-105. The ornaments were recovered vide

recovery memo being Exhibit P-53. The following

ornaments were found with him:

“Silver Badia weighing 295 gms;

One pair of silver nevra weighing 270 gms;

One pair of silver kadla weighing 430 gms;

Silver ‘dhala’ weighing 076 gms;

Silver ring, bichhudi, 17 pairs of pech, 14 pech

weighing 84 gms;

One silver ingot weighing 205 gms.”

This recovery is supported by the evidence of PW-13,

Jalim Chand. However, the Trial Court rejected this

recovery. The High Court has set aside that finding and

has held that the recovery was fully proved. It cannot

be forgotten that Bharat gave no explanation about the

huge amount of silver ornaments found with him. Again,

we fail to follow as to how the silver ingots weighing

205 gms. could be found unless the silver ornaments were

turned into the shape of ingots. Secondly, four gold

bangles were found vide Exhibit P-114 by way of this

discovery. This discovery was proved by PW-11, Ajit

Jain and in the identification proceedings vide Exhibit

30

25, bangles were correctly identified by PW-30, Rajesh.

We have already commented about Rajesh and PW-22,

Jitender Kumar who held the identification parade. This

in fact clinches the issue. A strong argument was

advanced by the learned counsel Shri Krishnamani that

this was a belated discovery and as such was not liable

to be believed. We have already held that the discovery

made by the accused and the recovery of the ornaments in

pursuance of that are completely credible, seen in the

light of other evidence of his blood stained T-shirt and

shoes. Shri Krishnamani could not explain the finding

of the blood as also the clinching evidence of the

recovery of ornaments in pursuance of the discovery

statement made by the accused. We are, therefore, of

the clear opinion that even this accused would be held

liable and would be held guilty for the offence alleged

against him.

21.We shall now consider the case law relied upon by

the learned counsel for the defence. Shri Jain, learned

counsel appearing on behalf of Ramesh (A-3) then relied

on the decisions in Chandmal & Anr. Vs. State of

Rajasthan [1976 (1) SCC 621], Mohd. Aman & Anr. Vs.

State of Rajasthan etc. etc., [1997 (10) SCC 44],

31

Mahabir Sao alias Mahadeo Sao Vs. The State of Bihar

[1972 (1) SCC 505] and Inspector of Police, Tamil Nadu

Vs. Bala Prasanna [2008 (11) SCC 645]. Even as regards

the detection of human blood, the learned counsel relied

on the decisions in State of Rajasthan Vs. Raja Ram

[2003 (8) SCC 180], Yeshwant & Ors. Vs. The State of

Maharashtra etc. etc. [1972 (3) SCC 639], Raghunath Vs.

State of Haryana & Anr. etc. etc. [2003 (1) SCC 398],

State of M.P. Vs. Nisar [2007 (5) SCC 658] and Hardyal

Prem Vs. State of Rajasthan [1991 Supp. (1) SCC 148] to

suggest that mere presence of human blood would not

constitute an incriminating circumstance. The other two

cases relied upon by the learned counsel are Manish

Dixit & Ors. Vs. State of Rajasthan etc. etc. [2001 (1)

SCC 596] and Subhash Chand Vs. State of Rajasthan [2002

(1) SCC 702].

22.Insofar as the first group of cases is concerned,

they are relating to the identification of the ornaments

recovered from Ramesh. In Chandmal & Anr. v. State of

Rajasthan (cited supra), this Court held that unless the

property in possession of the accused is proved to be a

stolen property the prosecution cannot benefit from mere

possession of such property. That was a case where the

32

property was recovered after two years of the murder and

the alleged theft and, therefore, the Court held that

presumption under Section 114 Illustration (a) of the

Indian Evidence Act could not be applicable. The case

is quite different on facts. In Mohd. Aman & Anr. v.

State of Rajasthan etc.etc. (cited supra) the question

was of the possession of the accused of four silver

rings belonging to the deceased’s wife. On facts, it

was held that the same could not be stolen property as

the prosecution had failed to prove that the rings

belonged to the deceased’s wife. It was further held

that even assuming that the rings belonged to the

deceased wife, it was not established by the prosecution

that the said rings were stolen at the time of

commission of murder and not on earlier occasion. The

Court had found, on appreciation of evidence, that the

recovery of the stolen articles was not established. It

was, therefore, that the Court left the said evidence

out of the consideration. However, that is not the case

here. We have already pointed out that the theft of the

articles, more particularly, the melting apparatus

machine and the ornaments was fully established. The

identification of the property was also established.

Hence the ruling is of no consequence.

33

In Inspector of Police, Tamil Nadu v. Bala Prasannas’

case (cited supra), the Court observed that though the

accused persons were found in possession of the gold

ingots, the Court went on to hold that because of that

it would be hazardous to come to the conclusion that in

fact gold jewellery belonged to the deceased. That was a

case where the earrings of the deceased remained intact

on the body. The case turns on its own facts. In the

present case, it is not only the gold which connects the

accused with the crime but also the articles like

Katordan and tiffin on which the name of the deceased

was engraved. The evidence clearly showed that the

Katordan was seized with the ornaments in it. Further,

some of the ornaments like gold bangles and the chain

were actually identified and we have accepted the

identification evidence. Such was not the case in the

reported decision. That decision would, therefore, be

of no consequence.

The last decision relied upon by the learned counsel

Shri Jain reported as Mahabir Sao @ Mahadeo Sao v. The

State of Bihar (cited supra) was again on different

facts. In this case the description of the stolen

property itself differed.

34

23.The learned counsel then urged, relying on State of

Rajasthan Vs. Raja Ram (cited supra), that merely

because the articles and weapons were found with human

blood, that by itself would not connect the accused. The

contention was raised in respect of the murder weapon

Jharbad. The contention is that mere recovery of weapon

cannot be a foundation of the prosecution case and the

conviction cannot be made merely on the basis of such

recovery. It must be stated at this juncture that in

this case the conviction of Ramesh is not being based

merely on the recovery of weapon. It must be remembered

that not only were the clothes blood stained but the

Jharbad (weapon) was also found to be stained with blood

of the blood group A which was the blood group of

deceased Ramlal. We have nothing to say about the

principles emanating from this ruling. However, the

facts appear to be clearly different. The existence of

blood on the clothes was explained in that case on the

basis of the possibility of blood being that of the

accused himself. Such is not the case here. None of

the accused has pleaded that they were injured in any

manner nor was any injury found on their person. The

ruling is, therefore, of no consequence.

35

In Yashwant’s case, (cited supra) the facts are quite

different. That case turned on account of the

identification parade not having been believed. The

Court proceeded to hold that though a blood stained

dhoti was found at the accused’s residence, the blood

group was not fixed. There was no connection

established. It is on that ground that the Court

proceeded to give the benefit of doubt. The Court has

not held that in all the cases where the blood group is

not fixed, the existence of blood on the wearing apparel

becomes inconclusive. In this case, the existence of

the blood is not the only circumstance on the basis of

which the accused has been convicted. We, therefore,

find no parity of reasoning in this case.

In Raghunath’s case (cited supra) again, the Court was

concerned with the blood stained earth, blood stained

muffler and lathis. Since the blood group was not

proved, the Court came to the conclusion that the mere

fact that the blood was human, was not conclusive

evidence. Insofar as some of the accused persons are

concerned, even the blood group is fixed and, therefore,

this case would be of no consequence.

36

In Hardayal Prem’s case (cited supra), the

prosecution was not able to fix the blood group of blood

found on the weapon. Under those circumstances, the

prosecution case was not accepted. Such is not the case

here. The blood on Jharbad was found to be a blood of

blood group of A which was Ramlal’s blood group.

In Manish Dixit’s case (cited supra) the only

circumstance was that the blood found on the motorcycle

of the accused was found to be of the blood group of the

deceased. Under the circumstances, this Court declined

to convict the accused on that sole circumstance. It is

very significant to note the observations made in para

35 “if there were other circumstances apart from the

recovery of some jewellery belonging to the deceased

from the possession of this accused, perhaps the

aforesaid circumstance (relating to the blood stained

found on the motorcycle) would have lent support to an

inference against him.” In fact the observations are

more helpful to the prosecution than to the defence.

The case of Subhash Chand (cited supra) is completely

different on facts. That was a case where the underwear

which was blood stained and on which the semen stain

was not shown to be belonging to the accused at all no

37

connection was established. It was on that basis that

the matter was decided. Therefore, this case is also of

no consequence.

Some other cases were cited like oft-quoted case of

Pulukari Kottaiah v. King Emperor [AIR 1947 PC 67],

Mohd. Inayatullah v. State of Maharashtra [1976 (1)

828], Pohalya Motya Valvi v. State of Maharashtra [1980

(1) SCC 530] and Mohd. Abdul Hafeez v. State of Andhra

Pradesh [1983 (1) SCC 143]. There is no question of the

principles regarding Section 27, Indian Evidence Act.

However, on facts we have found the discoveries of all

the three accused persons in this case to be reliable in

the peculiar facts of this case. Lastly, the learned

counsel relied on Ram Pal Pithwa Rahidas v. State of

Maharashtra [1994 Suppl. (2) SCC 73] which speaks about

the necessity of a fair investigation. In para 37, the

Court has observed as under:

“37.The quality of a nation’s civilization, it is

said, can be largely measured by the methods it

uses in the enforcement of the criminal law’ and

going by the manner in which the investigating

agency acted in this case causes concern to us.

In every civilized society the police force is

invested with the powers of investigation of the

crime to secure punishment for the criminal and

it is in the interest of the society that the

investigating agency must act honestly and fairly

and not resort to fabricating false evidence or

38

creating false clues only with a view to secure

conviction because such acts shake the confidence

of the common man not only in the investigating

agency but in the ultimate analysis in the system

of dispensation of criminal justice. Let no

guilty man go unpunished but let the end not

justify the means! The courts must remain ever

alive to this truism. Proper results must be

obtained by recourse to proper means- otherwise

it would be an invitation to anarchy.”

24.We have absolutely no reason to differ on the

principle of honesty and fair investigation. However,

we do not find any reason here in this case to hold that

the investigation was in any way unfair. We have

already held that merely because the recoveries were

made from the same place which was already visited by

the police, that would itself not dispel the evidence of

discovery and recovery. This we have held on the basis

of the peculiar evidence led in this case. True it is

that the investigation officer should have thoroughly

searched the premises of Gordhan and Bharat Kumar on

9.2.2003 itself. However, if the accused agreed to

discover different things on different dates and those

things were actually found in pursuance of the

information given by the accused, the discoveries cannot

be faulted for only that reason.

25.In short, we are of the opinion, that the appeals

filed by the accused persons, namely, Gordhan (A-1) and

39

Bharat Kumar (A-2) have to be dismissed and they are

dismissed. Even accused No.3, Ramesh has been

convicted. We confirm the conviction of Ramesh.

However, Ramesh has been awarded death sentence. We

would, at this juncture, consider as to whether the

death sentence is justified in the present case.

26.Both the Courts below have unanimously awarded

death sentence to accused Ramesh, treating this to be a

rarest of the rare case. The Trial Court has held that

it was this accused Ramesh who inflicted injuries on

both the deceased Ramlal and Shanti Devi. The Trial

Court referred to the reported decision in Shri Bhagwan

v. State of Rajasthan [2001 (6) SCC 296] and it is only

on that ground that accused Ramesh alone was condemned

to death. We are not quite satisfied with the reasoning

given by the Trial Court. Before awarding the death

sentence, the Trial Court was expected to give elaborate

reasons. We have gone through the appellate Court’s

judgment. The appellate Court’s judgment relied on the

reported decision in Suhil Murmu v. State of Jharkhand

[AIR 2004 SC 394] which observed that a balance-sheet of

the aggravating and mitigating circumstances has to be

drawn up and further to accord full weightage to the

40

mitigating circumstances and then to strike just balance

between the aggravating and mitigating circumstances

before the option is exercised. The appellate Court has

quoted paragraph 16 of that judgment and has given four

circumstances which may be relevant in awarding the

death sentence. They are as under:

“The following guidelines which emerge from

Bachan Singh case (supra) will have to be applied

to the facts of each individual case where the

question of imposition of death sentence arises: -

(i) The extreme penalty of death need not be

inflicted except in gravest cases of extreme

culpability.

(ii) Before opting for the death penalty the

circumstances of the 'offender' also require to

be taken into consideration along with the

circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death

sentence is an exception. Death sentence must be

imposed only when life imprisonment appears to be

an altogether inadequate punishment having regard

to the relevant circumstances of the crime, and

provided, and only provided, the option to impose

sentence of imprisonment for life cannot be

conscientiously exercised having regard to the

nature and circumstances of the crime and all the

relevant circumstances.

(iv) A balance sheet of aggravating and

mitigating circumstances has to be drawn up and

in doing so the mitigating circumstances have to

be accorded full weightage and a just balance has

to be struck between the aggravating and the

mitigating circumstances before the option is

exercised.

41

27.In our opinion, none of the four circumstances

mentioned is available in the present case. It is no

doubt true that the murder of Ramlal and Shanti Devi

was cruel. However, that cannot be said to be brutal,

grotesque and diabolical nor could it be said that the

murder was committed in a revolting manner so as to

arise intense and extreme indignation. This was not a

case where accused Ramesh was in a dominating position

or in a position of trust nor could it be said to be a

murder for personal reasons. This is also not a case

of bride burning or dowry death which is committed in

order to remarry for extracting dowry once again.

Though this is a double murder, it cannot be said to be

a crime of enormous proportion. Ramesh could not be

said to be a person in a dominating position as this is

not a murder of an innocent child or a helpless woman

or old or infirm person. This was undoubtedly a murder

for gains. The High Court has come out with a case

that appellant Ramesh was having criminal record.

However, we do not find any previous conviction having

been proved against Ramesh by the prosecution. It is

apparent that the original intention was theft and on

account of the deceased having been awakened, the

accused persons took the extreme step of eliminating

42

both the inmates of the house for the fear of being

detected.

28.It cannot be said that it was Ramesh alone who has

committed the murder only because he was the one who

discovered the murder weapon Jharbad. It is not clear

from the evidence as to who was the actual author of

the injuries on Ramlal and Shanti Devi though all the

three were participants of the crime. There is no

definite evidence about the acts on the part of each of

the accused. It will be, therefore, difficult to say

that Ramesh alone was the author of injuries on Ramlal

as well as Shanti Devi.

29.The learned counsel relied on two decision of this

Court, the first being Dilip Premnarayan Tiwari v.

State of Maharashtra [2010 (1) SCC 775]. The other

decisions relied upon is Mulla v. State of U.P. [2010

(3) SCC 508] as also Santosh Kumar Shantibhushan

Beriyar v. State of Maharashtra [2009 (6) SCC 498]. In

Mulla’s case in paragraph 80 and 81, the Court held as

under:

“80.Another factor which unfortunately has

been left out in much judicial decision-making in

sentencing is the social-economic factors leading

to crime. We at no stage suggest that economic

depravity justify moral depravity, but we

43

certainly recognize that in the real world, such

factors may lead a person to crime. The 48

th

Report of the Law Commission also reflected this

concern. Therefore, we believe, socio-economic

factors might not dilute guilt, but they may

amount to mitigating factor i.e. the ability of

the guilty to reform. It may not be misplaced to

note that a criminal who commits crimes due to

his economic backwardness is most likely to

reform. This Court on many previous occasions

has held that his ability to reform amounts to a

mitigating factor in cases of death penalty.

81.In the present case, the convicts belong

to an extremely poor background. With lack of

knowledge, on the background of the appellants,

we may not be certain as to their past, but one

thing which is clear to us is that they have

committed these heinous crimes for want of money.

Though we are shocked by their deeds, we find no

reason why they cannot be reformed over a period

of time.”

The observations are extremely germane to the question

before us.

30.There can be no dispute that this was a case in

which money was the motive. We have already seen that

the accused person do not come from a wealthy

background. On the other hand, it has been held that

they could not justify the possession of ornaments found

with them. It has also been held that they were

unlikely to own the ornaments on account of their

financial position.

44

31.Practically, the whole law on death sentence was

referred to in Santosh Kumar’s case. In paragraph 56,

the Court observed “the court must play a pro-active

role to record all relevant information at this stage.

Some of the information relating to crime can be culled

out from the phase prior to sentencing hearing. This

information would include aspects relating to the

nature, motive and impact of crime, culpability of

convict etc. Quality of evidence is also a relevant

factor. For instance, extent of reliance on

circumstantial evidence or child witness plays an

important role in the sentencing analysis. But what is

sorely lacking, in most capital sentencing cases, is

information relating to characteristics and socio-

economic background of the offenders. This issue was

also raised in 48

th

Report of the Law Commission. The

Court, thus, has in a guided manner referred to the

quality of evidence and has sounded a note of caution

that in a case where the reliance is on circumstantial

evidence, that factor has to be taken into consideration

while awarding the death sentence. This is also a case

purely on the circumstantial evidence. We should not be

understood to say that in all cases of circumstantial

evidence, the death sentence cannot be given. In fact

45

in Shivaji @ Dadya Shankar Alhat v. State of Maharashtra

[2008 (15) SC 269], this Court had awarded death

sentence though the evidence was of circumstantial

nature. All that we say is that the case being

dependent upon circumstantial evidence is one of the

relevant considerations. We have only noted it as one

of the circumstances in formulating the sentencing

policy. Further in that case the Court upheld the

principles emanating from Bachan Singh v. State of

Punjab [1980 (2) SCC 684] where the probability that the

accused can be reformed and rehabilitated was held as

one of the mitigating circumstances and it was observed

that the State should, by evidence prove that the

accused does not satisfy these conditions, meaning

thereby that the accused is not likely to be reformed.

The Court went on to hold that the rarest of rare dictum

imposes a wide ranging embargo on the award of death

punishment which can only be revoked if the facts of the

case successfully satisfy double qualification :

1) that the case belongs to rarest of the rare category

and;

2) alternative option of life imprisonment will not

suffice in the facts of the case.

46

32.The Court then observed that the rarest of the rare

dictum places an extraordinary burden on the Court.

Considering these principles, we do not think that there

was no possibility of reformation of the accused

persons. True it is that the accused were driven by

their avarice for wealth but given a chance there is

every possibility of their being reformed. We are also

of the clear opinion that in this case it is not

established that alternative punishment of life

imprisonment will be futile and would serve no purpose.

In paragraph 66 of Santosh Kumar’s case (cited supra),

the Court observed that life imprisonment can be said to

be completely futile only when the sentencing aim of

reformation can be said to be unachievable. The Court

further went on to say “therefore, being satisfied the

second explanation of rarest of rare doctrine the court

will have to provide clear evidence as to why the

convict is not fit for any kind of reformative and

rehabilitation scheme.

33.In our opinion, there has been no such exercise

taken either by the trial Court or appellate Court nor

do we find any discussion about the life imprisonment

being rendered futile and serving no purpose.

47

34.In Bachan Singh’s case (cited supra) the age of

accused was held to be one of the mitigation

circumstances. Accused Ramesh is a young person. We do

not see any reason as to why he cannot be reformed and

rehabilitated.

35.We must also take into consideration that this was

the first proved offence of accused Ramesh. No other

conviction has been proved against him by the

prosecution. Since this is his maiden conviction, we do

not see as to how accused Ramesh cannot be reformed.

Further we do not see this to be an offence by the

organized criminals so as to affect the society as a

whole.

36.Learned counsel also relied on Dilip Premnarayan

Tiwari v. State of Maharashtra (cited supra) where the

accused, who was guilty of three murders, was let off.

That was also a case of the accused being of young age.

The Court also took into consideration the argument that

the deaths in that case were in reality not intended

deaths but the dead persons became the victims of the

circumstances since the deceased in that case tried to

stop the assailants. The situation is somewhat similar

here though not identical. We have already mentioned

48

that if the deceased Ramlal and his wife had not been

awakened, the ghastly incident might not have occurred.

There are number of other decisions which were relied

upon by the learned counsel. However, since we have

referred to Santosh Kumar’s case (cited supra) which has

considered the whole law on the subject, we find it

unnecessary to repeat the same again.

37.It has come in evidence in this case that the

deceased Ramlal and Shanti Devi had hair in their hands.

The prosecution wanted to point out that it must be

during the scuffle that the two dying persons might have

pulled the hair of the assailants and this is how hair

came in the hands of the deceased persons. It is

significant to note that on scientific examination, it

could not be established that hair in the hands of the

deceased belonged to accused Ramesh. Though there are

other clinching circumstances also to hold that Ramesh

and the two accused were undoubtedly the assailants.

This circumstance would also weigh in our mind in not

confirming the death sentence. We say this particularly

in the light of the principles emanating from Santosh

Kumar’s case.

49

38.Lastly, we must take into consideration that Ramesh

who was convicted and awarded the death sentence by the

learned Sessions Judge in 2004 is languishing in death

cell for more than six years. This also would be one of

the mitigating circumstances.

39.In short, we are of the opinion that the death

sentence awarded to Ramesh would not be justified and

instead we would modify the same to life imprisonment.

However, conviction for the other offences as also

sentences awarded are confirmed. All the three appeals

are accordingly dismissed with the modifications of

sentence in Criminal Appeal No.1236 of 2006 filed by

Ramesh.

………………………….J.

[V.S. Sirpurkar]

………………………….J.

[T.S. Thakur]

New Delhi;

February 22, 2011.

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