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CASE NO.:

Appeal (crl.) 242 of 2000

PETITIONER:

SHRI BHAGWAN

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT: 10/05/2001

BENCH:

M B Shah & K.G. Balakrishnan

JUDGMENT:

K.G. BALAKRISHNAN, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

The facts in this criminal appeal disclose acts of

unparalleled evil and barbarity as five persons of a family

were battered to death without mercy by a young culprit aged

about 20 years.

PW-17 Shiv Pratap, his wife, three daughters and aged

parents were residing in a house at Bidasar. The marriage

of the eldest daughter of Shiv Pratap was fixed to be held

on 20.2.1994. In order to purchase some articles for the

marriage, Shiv Pratap and his wife Bhanwari had left for

Jaipur on 14th December, 1993. They came back to Bidasar

from Jaipur on 17th December, 1993 at about 9.30 PM. On

reaching the house, they found the outer door of the house

open and the inside room was found bolted from within.

PW-17 knocked at the door in vain and after sometime he

scaled over the wall and gained entry into the room. He

found his parents lying dead with multiple injuries. PW-17

and his wife then went to the room of their daughters. That

room was found locked from outside. PW-17 broke open the

lock and found dead bodies of his three daughters. Various

blood-stained articles were found strewn in the room. PW-17

used to peg the bag containing gold and silver jewellery of

the shop. That bag was also found missing. Shocked at the

incident, they made a hue and cry. The brother of PW-17 who

was staying nearby came to the house. Some neighbours also

came there in the meanwhile and saw the ghastly incident.

By about 9.45 P.M., PW-17 gave the P-8 statement before the

Station House Officer of Police Station Chhapar ( PW-23).

PW-23 registered a case and immediately visited the place of

occurrence. He recorded the statement of Bhanwari (PW-1);

Murlidhar (PW-2) and also the further statement of Shiv

Pratap (PW-17). On the next day, he took various

photographs and conducted inquest of the dead bodies of all

the five deceased persons. The various articles, including

clothes found lying in the house, were recovered. Many of

these articles were found blood-stained.

In his statement, PW-2, Murlidhar mentioned that on the

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evening of 14th December, 1993, he had seen the deceased

Jora Ram, the father of Shiv Pratap, at about 6.00 PM going

to his house after closing the shop and the appellant, Shri

Bhagwan was also accompanying him. PW-2 further stated that

Shri Bhagwan was known to him previously as he had worked in

the shop of Shiv Pratap for about 8 to 10 months. He also

stated that he saw the appellant and Jora Ram entering the

house of Shiv Pratap. Based on this information, appellant

Shri Bhagwan was arrested on the night of 18th December,

1993 and the investigation of the case was taken over by

PW-24 . He too visited the place of occurrence and

collected various articles from there. A broken iron

'Kunta', a wooden Pestle and an iron scissors were also

recovered from the scene of occurrence and all these

articles were stained with blood. The appellant was

interrogated and based on his statement, an axe was

recovered from the water tank located on the terrace of the

house of Shiv Pratap. During the course of further

investigation, the appellant gave a statement regarding the

place of concealment of golden jewellery and other articles

taken away from the house of Shiv Pratap. Appellant's

brother-in-law (Bahnoi) Ramu Ram was a resident of Sardar

Shahar. The appellant led the police party to the house of

Ramu Ram and from his house a bag containing jewellery and

other articles were seized under Ex. P-83. These articles

included one gold finger-ring, gold ear tops and nose tops,

white pearls, etc. All these articles were later identified

by Shiv Pratap as gold ornaments belonging to his mother and

daughters. From the house of Ramu Ram, a small tobacco box

was recovered which contained 12 copper pieces and an

envelope of 'Kumkum Patri' addressed to Shiv Pratap,

Bidasar, and the sender's name was one Manak Chand Soni

(PW-10). Manak Chand was examined and he deposed that this

invitation had been sent by him to Shiv Pratap on the

occasion of the marriage of his daughter which was on 10th

December, 1993.

Appellant, Shri Bhagwan also gave a statement to the

effect that while he was travelling in a bus, he had thrown

away the shirt worn by him at the time of occurrence, near a

place three kilometers away from Sujangarh. The appellant

led the police party to that place and the said shirt was

recovered from the bushes near the place where the appellant

had stated to have thrown the same. This shirt was

blood-stained and it bore the label of 786 J.K. Tailors,

Subzi Mandi, S.R.D.R. On the shirt, number 427 was found

marked. The investigation officer later visited the said

shop of J.K. Tailors and questioned the owner of the shop,

Zafar Hussain (PW-18). PW-18 stated that he had stitched

the shirt for the appellant and he had also recorded the

name of the appellant and the measurements in the register.

Exh. P-48 is the register maintained by him and as against

serial number 427, the name of appellant, Shri Bhagwan Soni

was found written.

The appellant was tried for offences under Section 302

and 392 read with Section 397 IPC and was found guilty. For

the offences under Section 392 and 397 IPC, he was sentenced

to undergo R.I. for seven years and to pay a fine of

Rs.200/-. For the offence under Section 302 IPC, the

appellant was sentenced to death and to pay a fine of

Rs.200/- by the Sessions Judge. This was challenged in

appeal and the Division Bench of the Rajasthan High Court

confirmed the conviction and sentence of the appellant.

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On behalf of the appellant, Dr. Shyamla Pappu, learned

Senior Advocate (A.C.) very ably argued the case. It was

pointed out by her that the evidence adduced by the

prosecution was not sufficient to find the guilt for the

offences he had been charged with. It was contended that

various incriminating circumstances relied on by the court

are not sufficient to draw an inference of guilt of the

appellant and the chain of circumstances was not cogently

and firmly established and these circumstances have no

definite tendency to unerringly point the guilt of the

accused. It was also contended that in a case of

circumstantial evidence, the chain of circumstances should

be so complete that there is no escape from the conclusion

that in all probability the crime was committed by the

accused and none else.

The counsel for the appellant also argued that in the

Exh. P-8 Statement given by PW-17 Shiv Pratap, the name of

the appellant was not mentioned, though he was accompanied

by PW-2 Murlidhar, who is alleged to have seen the appellant

along with one of the deceased prior to the incident. It

may be noted that PW-17 must have been under severe psychic

trauma at the time of giving the Exh.P-8 Statement before

the police and naturally he did not mention the name of the

appellant to PW- 23 who recorded his statement. PW-23

himself recorded the statement of PW-2 immediately

thereafter and in that statement the name of the appellant

was mentioned as the person last seen with one of the

deceased. Another contention urged by appellant's counsel

is that in the instant case series of injuries had been

caused to the deceased persons and sticks, wooden pestle,

broken handle of axe, scissors and 'kunta' were alleged to

have been used and it was argued that from these facts, it

is possibe that there must have been more than one assailant

and therefore, the prosecution suppressed the real facts and

the appellant is entitled to the benefit of doubt. All the

articles allegedly used by appellant as weapons of offence

are things which might have been collected from the house

itself and according to the prosecution, the appellant was

seen with deceased Jora Ram in the evening and in all

probability he must have spent the night in the house of

Shiv Pratap. The incident might have happened in the dead

of the night and that being a winter season, it is quite

possible that attention of the neighbours might not have

been attracted. The fact that household items were used as

weapons of offence rules out the possibility of the presence

of any outsider. Moreover, it is also not possible to infer

anything from the nature of injuries as to how many

assailants were involved. It is quite reasonable and

probable that one assailant alone can cause so much of

injuries especially during the night when the victims might

have been in deep slumber.

The counsel for the appellant also raised serious doubts

regarding the various recoveries effected at the instance of

the appellant, but we do not find any reason to disbelieve

the evidence adduced by the prosecution as there is further

corroborative evidence to support the recoveries. The

articles were recovered from the close relative of the

appellant and they were identified by PW-17. It is also

established beyond doubt that the recovered blood stained

shirt belonged to the appellant.

Having regard to the various facts, we do not find any

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reason to suspect the guilt of the accused as it is proved

that the appellant was seen with one of the deceased Jora

Ram in the evening of 14th November, 1993 and the appellant

had an acquaintance with the family members of the deceased

as he had already worked as an apprentice in the shop of

PW-17 to learn the trade of goldsmithy. PW-17 deposed that

the appellant was sent away from the shop as he had

committed some minor gold thefts.

It is also relevant to note that the appellant had some

injuries at the time of his arrest. These injuries are of

minor nature, but even then the appellant could not give any

satisfactory explanation with regard thereto. The recovery

of various articles at the instance of the appellant, that

too immediately after the incident, goes a long way in

proving the guilt of the appellant.

The possession of the fruits of the crime recently after

it has been committed, affords a strong and reasonable

ground for the presumption that the party in whose

possession they are found was the real offender, unless he

can account for such possession in some way consistent with

his innocence. It is founded on the obvious principle that

if such possession had been lawfully acquired, that party

would be able to give an account of the manner in which it

was obtained. His unwillingness or inability to afford any

reasonable explanation is regarded as amounting to strong,

self inculpatory evidence. If the party gives a reasonable

explanation as to how he obtained it, the courts will be

justified in not drawing the presumption of guilt. The

force of this rule of presumption depends upon the recency

of the possession as related to the crime and that if the

interval of time be considerable, the presumption is

weakened and more especially if the goods are of such kind

as in the ordinary course of such things frequently change

hands. It is not possible to fix any precise period. This

Court has drawn similar presumption of murder and robbery in

series of decisions especially when the accused was found in

possession of these incriminating articles and was not in a

position to give any reasonable explanation. Earabhadrappa

@ Krishnappa vs. State of Karnataka (1983) 2 SCC 330 was a

case where the deceased Bachamma was throttled to death and

the appellant was taken into custody and gold ornaments and

other articles were recovered at his instance. This Court

observed:

This is a case where murder and robbery are proved to

have been integral parts of one and the same transaction and

therefore the presumption arising under Illustration (a) to

Section 114 of the Evidence Act is that not only the

appellant committed the murder of the deceased but also

committed robbery of her gold ornaments which form part of

the same transaction.

In another case reported in (1997) 10 SCC 130 [Mukund

vs. State of M.P.], the prosecution case was that in the

night intervening 17.1.1994 and 18.1.1994, the appellants

trespassed into the residential house of one Anuj Prasad

Dubey, committed murders of his wife and their two children

and looted their ornaments and other valuable articles. On

the next night, the appellants were arrested and

interrogated. Pursuant to the statement made by one of the

accused, gold and silver ornaments and other articles were

recovered. This court, relying on an earlier decision

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reported in Gulab Chand vs. State of M.P. (1995) 3 SCC

574, observed :

"If in a given case --- as the present one --- the

prosecution can successfully prove that the offences of

robbery and murder were committed in one and the same

transaction and soon thereafter the stolen properties were

recovered, a court may legitimately draw a presumption not

only of the fact that the person in whose possession the

stolen articles were found committed the robbery but also

that he committed the murder."

In the instant case, the appellant could not give an

explanation as to how he came into possession of various

gold ornaments and other articles belonging to Shiv Pratap

and the members of his family. The appellant also could not

give any reasonable explanation how he sustained injuries on

his body and how his shirt became blood-stained. In the

facts and circumstances, it is a fit case where the

presumption under Illustration (a) to Section 114 of the

Evidence Act could be drawn that the appellant committed the

murders and the robbery. The courts below have rightly held

the appellant guilty of the offences charged against him.

As regards the question of sentence, the counsel for the

appellant submitted that the appellant was a youngster aged

20 at the time of crime and ever since the imposition of

death penalty on him he has been under devastating and

degrading fear that is imposed on the condemned and that

appellant must have been under intense mental suffering that

is inevitably associated with confinement under sentence of

death. It is submitted that these factors had been taken

note of by this Court as relevant mitigating factors to

commute the sentence of death to life imprisonment.

Of course, the nature of the crime committed by the

appellant was so horrendous and exceptionally cruel and

sadistic. However, we are inclined to take a lenient view

having regard to the various facts and circumstances of the

case. In dealing with criminal matters where death sentence

is prescribed in law as the punishment for the crime, the

courts are required to answer new challenges as the object

has to be not only to protect the society at large, but

impose appropriate sentence lest there should be a tendency

to undermine the public confidence in the criminal justice

delivery system.

In A. Devendran v. State of Tamil Nadu [(1997) 11 SCC

720], while considering the question of imposition of death

penalty, this Court observed:- (in para 26)

Bearing in mind the ratio of the aforesaid cases it may

be seen that since the evidence of an approver has been

taken out of consideration the conviction of the appellant

Devendran under Section 302 has been upheld on the basis of

the evidence of PW2, PW5 and the recovery of the pistol

which was used for the commission of murder from the house

of the said Devendran as well as the recoveries of ornaments

and other jewelleries belonging to the informant recovered

from the house of Devendran on the basis of his statement,

while in custody and those jewelleries being identified by

PW4. The aforesaid evidence by no stretch of imagination

brings the case in hand to be one of the rarest of rare

cases where the extreme penalty of death can be awarded.

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Similar is the position in the present case. The

circumstantial evidence discussed above, even though held to

be reliable for convicting the accused, we do not think it

to be one of the rarest of rare cases warranting death

sentence.

Hence, what would be the appropriate punishment?

Crimes, like the one before us, cannot be looked upon

with equanimity because they tend to destroy ones faith in

all that is good in life. A young man was given opportunity

to learn gold-smithery. He was once sent away for alleged

act of theft. Yet again, on the day of incident, he was

permitted to accompany the deceased old man and as per the

evidence, he accompanied the deceased in his house. The

reward of that kindness is murder of old man and his wife

alongwith three daughters including one whose marriage was

fixed after two months. Hence, even though we reduce the

death penalty, we think that punishment should be sufficient

so as to have deterrent effect as well as no further chance

to the accused for relapsing into the crime and becoming

danger to the Society.

Section 57 IPC provides that in calculating fractions of

terms of punishment, imprisonment for life is to be reckoned

as equivalent to the imprisonment for twenty years. In our

view, considering the heinous barbaric offence committed by

the accused, in no set of circumstances accused should be

released before completion of 20 years of imprisonment.

This Court in Dalbir Singh and others v. State of Punjab

[(1979) 3 SCC 745] considered the question that in case

where sentence of death is reduced to life imprisonment, for

how many years accused should be detained in prison. The

Court in paragraph 14 held thus:- 14. The sentences of

death in the present appeal are liable to be reduced to life

imprisonment. We may add a footnote to the ruling in

Rajendra Prasad case. Taking the cue from the English

legislation on abolition, we may suggest that life

imprisonment which strictly means imprisonment for the whole

of the mans life, but in practice amounts to incarceration

for a period between 10 and 14 years may, at the option of

the convicting court, be subject to the condition that the

sentence of imprisonment shall last as long as life lasts

where there are exceptional indications of murderous

recidivism and the community cannot run the risk of the

convict being at large. This takes care of judicial

apprehensions that unless physically liquidated the culprit

may at some remote time repeat murder.

(Emphasis added)

In case of Subash Chander v. Krishan Lal & Ors. [2001

(3) SCALE 130], the said principle is followed by this Court

and it was ordered that accused shall be incarcerated for

the remainder of his life and that he shall not be let loose

upon the society as he is a potential danger.

Question may arisewhether in view of the provision of

Section 433(b) read with Section 433-A Cr.P.C. accused

should be released on completion of 14 years of

imprisonment? For this purpose, we would make it clear that

under Section 433 (b) enables the appropriate Government to

commute the sentence of imprisonment for life, for

imprisonment of a term not exceeding 14 years or for fine.

Under Section 433-A, there is an embargo on that power by

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providing that where a sentence of imprisonment for life is

imposed on conviction of a person for an offence for which

death is one of the punishments provided under the law, such

person is not to be released from prison unless he had

served at least fourteen years of imprisonment. This

question is considered by various decisions rendered by this

Court and by the Privy Council and it has been reiterated

that a sentence of imprisonment for life imposed prima facie

be treated as imprisonment for the whole of the remaining

period of the convicted persons natural life. It is also

established law that rules framed under the Prisons Act do

not substitute a lesser sentence for a sentence of

transportation for life. This Court in State of Madhya

Pradesh v. Ratan Singh and others [(1976) 3 SCC 470] in

paragraphs 4 and 9 held thus:-

4. As regards the first point, namely, that the

prisoner could be released automatically on the expiry of 20

years under the Punjab Jail Manual or the Rules framed under

the Prisons Act, the matter is no longer res integra and

stands concluded by a decision of this Court in Gopal

Vinayak Godse v. State of Maharashtra [(1961) 3 SCR 440],

where the Court, following a decision of the Privy Council

in Pandit Kishori Lal v. King Emperor [(LR 72 IA 1 : AIR

1945 PC 64] observed as follows:

Under that section, a person transported for life or

any other term before the enactment of the said section

would be treated as a person sentenced to rigorous

imprisonment for life or for the said term.

If so, the next question is whether there is any

provision of law whereunder a sentence for life

imprisonment, without any formal remission by appropriate

Government can be automatically treated as one for a

definite period. No such provision is found in the Indian

Penal Code of Criminal Procedure or the Prisons Act.

* * * * *

A sentence of transportation for life or imprisonment

for life must prima facie be treated as transportation or

imprisonment for the whole of the remaining period of the

convicted persons natural life.

The Court further observed thus:

But the Prisons Act does not confer on any authority a

power to commute or remit sentences; it provides only for

the regulation of prisons and for the treatment of prisoners

confined therein. Section 59 of the Prisons Act confers a

power on the State Government to make rules, inter alia, for

rewards for good conduct. Therefore, the rules made under

the Act should be construed within the scope of the ambit of

the Act. . . . Under the said rules the orders of an

appropriate Government under Section 401, Criminal Procedure

Code, are a pre-requisite for a release. No other rule has

been brought to our notice which confers an indefeasible

right on a prisoner sentenced to transportation for life to

an unconditional release on the expiry of a particular term

including remissions. The rules under the Prisons Act do

not substitute a lesser sentence for a sentence of

transportation for life.

The question of remission is exclusively within the

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province of the appropriate Government; and in this case it

is admitted that, though the appropriate Government made

certain remissions under Section 401 of the Code of Criminal

Procedure, it did not remit the entire sentence. We,

therefore, hold that the petitioner has not yet acquired any

right to release.

It is, therefore, manifest from the decision of this

Court that the Rules framed under the Prisons Act or under

the Jail Manual do not affect the total period which the

prisoner has to suffer but merely amount to administrative

instructions regarding the various remissions to be given to

the prisoner from time to time in accordance with the rules.

This Court further pointed out that the question of

remission of the entire sentence or a part of it lies within

the exclusive domain of the appropriate Government under

Section 401 of the Code of Criminal Procedure and neither

Section 57 of the Indian Penal Code nor any Rules or local

Acts can stultify the effect of the sentence of life

imprisonment given by the court under the Indian Penal Code.

In other words, this Court has clearly held that a sentence

for life would ensure till the lifetime of the accused as it

is not possible to fix a particular period the prisoners

death and remissions given under the Rules could not be

regarded as a substitute for a sentence of transportation

for life.

In Maru Ram v. Union of India [(1981) 1 SCC 107],

Constitutional Bench of this Court reiterated the aforesaid

position and observed that the inevitable conclusion is that

since in Section 433-A we deal only with life sentences,

remissions lead nowhere and cannot entitle a prisoner to

release. Further, in Laxman Naskar (LIFE CONVICT) v. State

of W.B. and another [(2000) 7 SCC 626], after referring to

the decision of the case of Gopal Vinayak Godse v. State of

Maharashtra [(1961) 3 SCR 440], the Court reiterated that

sentence for imprisonment for life ordinarily means

imprisonment for the whole of the remaining period of the

convicted persons natural life; that a convict undergoing

such sentence may earn remissions of his part of sentence

under the Prison Rules but such remissions in the absence of

an order of an appropriate Government remitting the entire

balance of his sentence under this section does not entitle

the convict to be released automatically before the full

life term is served. It was observed that though under the

relevant Rules a sentence for imprisonment for life is

equated with the definite period of 20 years, there is no

indefeasible right of such prisoner to be unconditionally

released on the expiry of such particular term, including

remissions and that is only for the purpose of working out

the remissions that the said sentence is equated with

definite period and not for any other purpose.

Therefore, in the interest of justice, we commute the

death sentence imposed upon the appellant and direct that

the appellant shall undergo the sentence of imprisonment for

life. We further direct that the appellant shall not be

released from the prison unless he had served out at least

20 years of imprisonment including the period already

undergone by the appellant. As regards offences under

Sections 392 & 397 IPC, we confirm the conviction of the

appellant and no separate sentence is awarded.

With the above directions and modification in the

sentence, the appeal is disposed of.

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