Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.693 OF 2007

Sushil Sharma …Appellant

Versus

The State of N.C.T. of Delhi …Respondent

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1.In this appeal, by special leave, appellant - Sushil

Sharma (“the appellant”) has challenged judgment and

order dated 19/02/2007 passed by the Delhi High Court in

Criminal Appeal No.827 of 2003 confirming the death

sentence awarded to him in Sessions Case No.88 of 1996.

He was tried in the said case along with A2-Keshav Kumar

(“A2-Keshav”), A3-Jai Prakash, A4-Rishi Raj and A5-Ram

Prakash.

Page 2 2.The appellant was tried for offences punishable under

Section 302, Section 120-B read with Sections 302 and 201

of the Indian Penal Code (“the IPC”). A2-Keshav was tried

under Section 120-B read with Sections 302 and 201 of the

IPC. A3-Jai Prakash, A4-Rishi Raj and A5-Ram Prakash were

tried under Section 212 of the IPC. Learned Additional

Sessions Judge by judgment and order dated 3/11/2003

convicted the appellant under Section 302 of the IPC. He

convicted the appellant and A2-Keshav under Section 120-B

read with Section 201 of the IPC. Since the charge under

Section 302 read with Section 120-B of the IPC was held not

proved against A2-Keshav, he was acquitted of the said

charge. Charge under Section 212 of the IPC was held not

proved against A3-Jai Prakash, A4-Rishi Raj and A5-Ram

Prakash and they were acquitted. Learned Additional

Sessions Judge forwarded the death reference to the Delhi

High Court, as required under Section 366 of the Code of

Criminal Procedure, 1973 (‘the Cr.P.C.’). A2-Keshav did not

file any appeal. As stated above, by the impugned

2

Page 3 judgment, the Delhi High Court confirmed the death

sentence awarded to the appellant.

PROSECUTION CASE:

3.The appellant was the President of Delhi Youth

Congress (I), at the relevant time. Naina Sahni ( ‘the

deceased’) was the General Secretary of the Delhi Youth

Congress (I) Girls Wing. The appellant and the deceased

were working for Delhi Youth Congress. The office of the

Delhi Youth Congress was earlier situated at 4, Bhai Veer

Singh Marg, Gole Market, New Delhi. Later on, it was shifted

to 2, Talkatora Road, New Delhi. The deceased used to visit

the appellant at the office of Youth Congress at the above-

mentioned places. In the year 1992, the appellant obtained

Flat No.8/2A situated at Mandir Marg, New Delhi (“ Flat

No.8/2A” or “the said flat”) from it’s allottee - Jagdish

Prasad. The deceased used to visit the appellant at the said

flat also. At times, she used to stay there in the night. The

appellant and the deceased got married secretly. The

3

Page 4 deceased, therefore, continued to live in the said flat as the

wife of the appellant till she was murdered.

4. The India Tourism Development Corporation ( ‘the

ITDC’) which was running its unit called Ashok Yatri Niwas at

Ashoka Road entered into a licence agreement on

10/11/1994 with Lalit Kishore Sachdeva, Virendra Kumar

Nagpal, Manoj Malik, R.P. Sachdeva and the appellant -

partners of M/s. Excel Hotel & Restaurant Inc., situated at

159, Kamla Market, Delhi. The licence granted by the ITDC

permitted the user of park in front of main gate of Ashok

Yatri Niwas towards Ashoka Road by the said partners of M/s.

Excel Hotel & Restaurant Inc. for running a ‘Bar-be-Que’. As

per the licence, Bar-be-Que was continuously run by the

appellant at the said park. It was called ‘Bagia Bar-be-Que’.

There was a tandoor in the said park. The park had fencing

of bamboos called Jafri.

5.On the night of 2-3/07/1995, PW-3 HC Kunju, who was

posted at the P.S. Connaught Place and PW-4 Home Guard

4

Page 5 Chander Pal of Delhi Home Guard were patrolling in the

Ashoka Road, Western Court Area. At about 11.00 p.m.,

when they reached near Ashok Yatri Niwas they heard the

cry of PW-7 Anaroo Devi saying ‘hotel main aag lag gayi’

(hotel is on fire). Having heard the cry, PW-3 HC Kunju and

PW-4 Home Guard Chander Pal rushed towards Janpath lane

where Ashok Yatri Niwas is situated. They noticed smoke

spiralling and flames leaping out of Bagia Bar-be-Que from

the side of the kitchen. PW-3 HC Kunju rushed to the nearby

telephone booth to inform the control room. However, the

telephone booth was closed. He, then, left PW-4 Home

Guard Chander Pal at the site and rushed to the police post

Western Court situated nearby to inform the police station,

on wireless, about the fire. On return, PW-3 HC Kunju noticed

that the smoke and fire had increased. PW-3 HC Kunju and

PW-4 Home Guard Chander Pal, in order to find out the cause

of the same, entered the Bar-be-Que from its back. They

found A2-Keshav standing near the tandoor. They also

noticed him putting wooden logs and small fire wood in the

fire so as to increase it with the aid of a bamboo. PW-3 HC

5

Page 6 Kunju told A2-Keshav that by this, the fire would spread and

the entire hotel would be burnt. A2-Keshav then represented

to PW-3 HC Kunju that he was a worker of the Congress Party

and he was burning old banners, posters and waste papers of

the party.

6.Patrolling Officer SI Rajesh Kumar along with CW-5 HC

Majid Khan of Police Control Room, PW-62 PC Ranbir Singh

and security staff of hotel PW-35 Mahesh Prasad reached the

Bar-be-Que from the main gate of Ashok Yatri Niwas towards

Ashoka Road. The appellant was noticed by them standing

by the side of the kanat at the gate of the Bar-be-Que. Foul

and pungent smell was emitting from the tandoor. A2-

Keshav was detained out of suspicion by SI Rajesh Kumar

and PW-3 HC Kunju. SI Rajesh Kumar along with security

staff of the hotel and A2-Keshav then went upstairs to find

out whether the fire had spread there. They noticed that the

flames in the tandoor had flared-up again. SI Rajesh Kumar

and others rushed downstairs. By that time the appellant

had run away from there.

6

Page 7 7.The fire was doused. When they went near the tandoor

they saw a part of human body inside it. Closer look revealed

that it was a charred body of a female whose limbs had

burnt. Intestines had come out of the body. Burnt bones

were lying in the tandoor. They also noticed near the

tandoor a black polythene sheet. Investigating Officer PW-81

IO Niranjan Singh and senior officer of the hotel PW-5 K.K.

Tuli also reached there. Then, A2-Keshav was handed over

to PW-81 IO Niranjan Singh. PW-81 IO Niranjan Singh

inspected the site. He found that the burnt body was of a

woman. He recorded the statement of PW-3 HC Kunju which

was treated as FIR.

8. There were blood stains on the clothes of A2-Keshav.

He was arrested. His blood stained clothes were seized. PW-

81 IO Niranjan Singh seized the polythene sheet, besides

other articles, from the place of offence. After holding the

inquest proceedings, PW-81 IO Niranjan Singh sent the dead

body to RML Hospital, where PW-85 Dr. Joginder Singh

7

Page 8 prepared the Medico Legal Report (Ex.PW-85/A). PW-85 Dr.

Joginder Singh noticed the following condition of the charred

body.

“Whole body burnt exposing underlying bones and

tissues, gastro intestinal contents are protruding

outside. The left lower limb is amputated above

the knee joint, right limb is amputated below knee

joint. Brought dead.”

9.The prosecution had made an application to the

hospital authorities to preserve the dead body as it was not

identified. In view of the disclosure made by A2-Keshav, the

search for the appellant and the Maruti Car in which he had

come to the restaurant was started. Since both could not be

traced out, the police obtained arrest warrant for the

appellant.

10.On 04/07/1995 the police got information from

Chanakya Puri Police Station that Maruti Car No.DL-2CA-1872

had been found abandoned at Malcha Marg near Gujarat

Bhawan where the appellant had gone and spent the night of

8

Page 9 2-3/07/1985 with PW-31 D.K. Rao after fleeing from his Bagia

Restaurant. The police team reached the said place and

found the Maruti Car abandoned there. On inspection of the

car, they found dried blood in the dicky and some hair stuck

on the back of the left front seat. On 4/7/1995 the police

also searched Flat No.8/2A where the appellant was residing.

Certain articles were seized. During the search, some

cartridges, a lead bullet and a ply having a hole and an air

pistol were seen in the said flat but they were not seized as

Ballistic Expert was not present. They were seized in the

presence of Ballistic Expert on 5/7/1995 under a panchnama.

On enquiries made from the neighbourhood, the police came

to know that the deceased used to live in the said flat of the

appellant as his wife. One Maruti Car No.DAC 3283 was

parked below the flat, which was found to be in the name of

the deceased. It was seized by the police.

11.Parents of the deceased were contacted for

identification of the corpse. On seeing the charred body

kept in the mortuary, they simply wept but they could not

9

Page 10 identify the dead body. On 05/07/1995 the dead body was

identified by PW-12 Matloob Karim, who was also a worker

of the Congress Party and was stated to be very close to

the deceased. Thereafter, on 05/07/1995, the post-mortem

examination was conducted by CW-6 Dr. Murari Prasad

Sarangi. The condition of the burnt body as noticed by CW-

6 Dr. Sarangi, in his Report, was as under:

“(Eyes, Ears, Nose, Mouth, Teeth and Tongue etc.)

Both eye lids with face charred, eye balls

destroyed, ears, nose and lips were also charred,

teeth were exposed and studded with soot, other

natural orifices were studded with soot particles.

EXTERNAL EXAMINATION:-

Revealed extensive charring of a female dead

body beyond identification, having attained a

Pugilistic attitude owing to coagulation of the

muscle proteins.

Skull bone exposed, partly burnt, blackened,

showed multiple post mortem cracks with a few

strands of partially burnt hair and metallic hair

clip.

...intestines exposed to outside with portions of

other internal organs in the abdomen, more on the

left side.

Thoracic cage, intercostals muscles and

diaphragm were burnt more on the lt side.

10

Page 11 Lt. thigh was chopped off, 28 cms. below left. And

super iliac spine, underlying thigh bone cut from

the back showing beveling from above downwards

vide overleaf. No evidence of firearm discharge

from internal examination of the organs.

HEAD and NECK

Scalp tissue almost burnt except over a very

insignificant (2.5 x 0.8 cm) area on the occipital

region with a few strands of burnt hair. Skull

showed multiple post mortem heat cracks partly

charred and blackened.

BRAIN, MENINGES and CEREBRAL BLOOD

VESSELS:

Reddish white thick heat haematoma present

more on the left cerebral hemisphere above the

dura adhered to the endoevanium on the same

side.Meninges intact and pale. Brain shrunken and

substance looked pale, no injury or haemorrhage

anywhere.

LARYNX, PHARYNX and OTHER NECK STRUCTURES

Pharynx, Larynx and Tracheal rings intact lipoid

bone intact. Mucous membranes of Pharynx,

Larynx and Trachea showed adhered soot

particles. Blood vessels were destroyed and

collapsed due to burns.

THORAX

Burnt as mentioned above. Leg was chopped off

23 cm. below the knee. Both the bones of the leg

exposed being cut from the front showing beveling

below and inwards.

Patella (knee cap) bone was missing on the Rt.side

Distal phalanges in the hand missing (chopped off)

Upper limb was chopped off just below the elbow.

11

Page 12 Trachea and Bronchi: Intact, mucosa of Tracheal

rings smeared with black soot particles.

Pleural Cavity and Lungs: Pleural studded with

carbon particles did not show any inflammatory

sign to the naked eyes. Both lungs shrunken,

desiccated and pale WT 200 gms. (Lt) 210 gms

(Rt.)

Abdominal wall, peritoneum: Abdominal and pelvic

walls burnt, peritoneum- partly burnt.

Stomach and contents: Contained about 500 ml of

brownish-semi liquid material, smelt alcoholic,

walls looked pale

Pancreas, small and large intestines: Shrunken,

desiccated, protruded out, no injury/abnormality

was noticed.”

12.CW-6 Dr. Sarangi opined provisionally that the cause

of death was “hemorrhagic shock consequent to various

ante-mortem injuries found on the dead body”. According

to CW-6 Dr. Sarangi the burns noticed on the dead body

appeared to have been inflicted after death. Final opinion

about the cause of death was kept pending by him till the

receipt of the Report about histopathological examination

as well as the Report of examination of viscera and blood

sample. Although PW-81 IO Niranjan Singh had also asked

12

Page 13 for X-ray of the dead body to find out if there was any

firearm injury, it could not be conducted at that time

because the X-ray machine was stated to be out of order.

13.The appellant, in order to avoid his arrest, spent the

night of 2/7/1995 at Gujarat Bhawan, New Delhi with PW-31

D.K. Rao and from there he kept on going from one city to

another. He called up PW-31 D.K. Rao on 4/7/1995 from

Bombay and told him that he had killed his wife i.e. the

deceased. It may be mentioned here that the High Court

has not relied upon this piece of evidence and, in our

opinion, rightly so. The appellant obtained anticipatory bail

from the Sessions Court at Madras upon coming to know

that the police were looking for him. The anticipatory bail

granted by Sessions Court, Madras was later on cancelled

by the Madras High Court at the instance of the Delhi

Police. He was arrested on 10/07/1995 at Bangalore by the

Bangalore Police under Section 41A of the Cr.P.C. when he

was moving around in a suspicious manner with his

advocate Mr. Anantanarain. Delhi Police upon coming to

13

Page 14 know about his apprehension went to Bangalore and took

over the custody of the appellant on 11/7/1995 with the

permission of the concerned court. During the

interrogation, it transpired that the appellant was staying in

one hotel called Pai Vihar along with advocate Mr.

Anantanarain. The appellant led the police to Room No.110

of the said hotel. From the room he produced a briefcase

which was found to contain one .32 bore revolver

No.1277725 (make Arminius) with its license in his name,

four live cartridges and some other documents. All these

articles were seized by PW-81 IO Niranjan Singh.

14.The appellant was then brought to Delhi. Pursuant to

disclosure statements made by him one blood stained

kurta-pajama was recovered from the bushes near Gujarat

Bhawan at Malcha Marg. At his instance, another blood

stained kurta was also recovered from Rangpuri area.

15.The investigating agency decided to get another post-

mortem examination conducted from a Board of Autopsy

14

Page 15 Surgeons. Accordingly, second post-mortem examination

was done on 12/07/1995 by a team of three doctors headed

by PW-44 Dr. Bharat Singh. During the course of the

second post-mortem examination the dead body was

subjected to X-ray examination and the X-ray Reports

showed the presence of one metallic piece in the skull and

one in the neck region of the dead body. Those metallic

pieces were then extracted out and were found to be lead

bullets. The Board of Doctors opined that the cause of

death was due to “coma consequent upon firearm injury on

the head which was sufficient to cause death in the

ordinary course of nature”.

16. The bullets recovered from the body, fired cartridge

cases, one lead bullet which were recovered from the said

flat, the live cartridges and Arminius revolver recovered

from the possession of the appellant at Bangalore were

sent to the Central Forensic Science Laboratory (“ the

CFSL”) for examination by a Ballistic Expert. The Ballistic

Expert - PW-70 Roop Singh gave Report (Ex. PW-70/A)

15

Page 16 confirming that the .32 Arminius revolver was a firearm in

working condition and had been fired through. He further

opined that the five .32 cartridge cases and one lead bullet,

which were recovered from the said flat and the two lead

bullets which were extracted from the skull and neck of the

deceased had been fired from the said .32 Arminius

revolver. The piece of plywood seized from the said flat on

which a bullet hole was noticed, was also forwarded to the

CFSL. The bullet hole was found to have been caused by

the aforesaid .32 lead bullet recovered from the said flat.

Blood stained articles seized from the Bagia Restaurant and

those recovered from the said flat were sent to the CFSL

where, on examination, it was found that human blood

found on these articles was of ‘B' group, which was the

blood group of the deceased.

17.DNA test was also got conducted from the Centre for

Cellular and Molecular Biology, Hyderabad for confirming

the identity of the corpse by forwarding to it the blood

samples of the parents of the deceased and the tissues

16

Page 17 (muscle) from the thigh, radius and ulna bones and two ribs

of the deceased. The DNA Report (Ex.PW-87/A) confirmed

that the dead body which was burnt at the Bagia Bar-be-

Que tandoor was that of the deceased, who was the

biological offspring of CW-1 Smt. Jaswant Kaur and CW-2

Harbhajan Singh.

18. After completion of investigation, the prosecution

came to the conclusion that the deceased was killed by the

appellant since he was suspecting that she was having

some relationship with PW-12 Matloob Karim. The

appellant also did not want to make his marriage with the

deceased public and the deceased was insisting on that.

After killing her, the appellant with the help of A2-Keshav

burnt her dead body in the tandoor of Bagia Bar-be-Que.

The appellant was harboured to save him from punishment

from the crime by three persons, namely, A3-Jai Prakash,

A4-Rishi Raj and A5-Ram Prakash. After the case was

committed to the Sessions Court, learned Additional

17

Page 18 Sessions Judge framed charges as aforesaid against the

accused.

THE TRIAL:

19.In support of its case, the prosecution examined 85

witnesses. Seven Court Witnesses were also examined. We

shall refer to the important witnesses as we proceed further.

All the accused pleaded not guilty to the charges and

claimed to be tried. During the trial, A2-Keshav moved an

application confessing his guilt so far as the charges

against him under Section 201 read with Section 120-B of

the IPC are concerned. He requested the court to dispose of

his case in view of the confession. He, inter alia, stated that

he had not conspired to murder the deceased. He was

serving in Bagia Restaurant of the appellant and, at his

command, he put the dead body of the deceased in the

tandoor. At the trial, A2-Keshav admitted the correctness of

the contents of his confessional application. However, he

added that it was moved because the Special Public

18

Page 19 Prosecutor told him that he would be released at the final

stage of the trial.

20.The appellant in his statement recorded under Section

313 of the Cr.P.C., inter alia, stated that from the evening

of 1/7/1995 to 6/7/1995 he was at Tirupati Balaji and then

he went to Madras on 7/7/1995. From Madras, he gave a

telephone call at his residence in Maurya Enclave in Delhi

when he came to know that one ACP Alok Kumar had

visited his residence on 3/7/1995 and had removed from

there his vehicle, licensed revolver, license of the revolver

and bullets. He, further, stated that the ACP had given his

telephone number and had left a message for him to

contact him on phone and when the appellant contacted

the ACP, he told him to get anticipatory bail otherwise he

would be arrested. He, then, obtained anticipatory bail from

the Sessions Court at Madras. On 8/7/1995, he was called

for enquiry at a police station at Madras and that day in the

evening some police officers from Delhi reached there and

brought him to Bangalore and showed his arrest there on

19

Page 20 10/7/1995. He admitted that Car No.DL-2CA-1872

belonged to him. He stated that it was removed from his

residence at MP-27, Maurya Enclave, Delhi where it was

parked by his driver. At one stage, he admitted that he

was living with the deceased at Mandir Marg. However, as

far as his relationship with the deceased is concerned he

stated as under:

“I knew Naina since 1985. She contested election

of Shyama Parsad Mukherjee college. She lost. I

was president of N.S.U.I. Delhi. She came in

contact with me then. Her attendance was short in

the college. She was not allowed to sit in the

examination. Next year I got admitted her in the

correspondence course. She was career oriented

woman. She learned the course of Pilot. I helped

her in that. She went to London for CPL

(Commercial pilot license). From 1994 to January

1995 she lived in a flat Opp. Birla Mandir as paying

guest. That flat belonged to a lady working in

Doordarshan. I have shown that flat to police.

Police did not cite her as witness. I used to be

called at various functions organized at her

residence along with other lady friends associated

with her business and pilot course. She started

living separately from her parents after there was

a dispute between her and her father. She then

lived at Gole Market. In the functions which were

organized at the residence at Gole Market her

parents visited and I also visited. She had a

servant Ramu @ Bilas. She was not allowing

anyone else to stay there including her parents. I

had no contact with her after January, 1995. She

20

Page 21 remained busy in her career and I remained

involved in politics”.

21. None of the accused persons adduced any evidence in

defense.

22. After considering the evidence, learned Additional

Sessions Judge convicted the appellant as aforesaid. The

Reference made by the learned Sessions Judge under

Section 366 of the Cr.P.C. was heard by the High Court

along with the appeal filed by the appellant challenging his

conviction and sentence. The High Court dismissed the

appellant’s appeal and confirmed the death sentence

awarded to him. Hence, this appeal by special leave.

23.We have heard Mr. Jaspal Singh, learned Senior

Advocate for the appellant and Mr. Amarjit Singh Chandhiok,

learned Additional Solicitor General for the State of NCT of

Delhi. We have carefully perused the written submissions

filed by them. Since death sentence is awarded to the

21

Page 22 appellant, we have independently considered the evidence.

We shall now give the gist of the submissions of the counsel.

24. WRITTEN SUBMISSIONS ON BEHALF OF THE

APPELLANT ON THE MERITS OF THE CASE:

a)This is a case which rests on circumstantial

evidence and, therefore, motive assumes

great significance. The prosecution case is

that the deceased wanted to make public her

marriage with the appellant and the appellant

did not want to do that because that would

have affected his political career. To

substantiate this case, PW-12 Matloob Karim

has been examined, but, his conduct makes

him a totally unreliable witness. He is a

married man. Despite the appellant’s

marriage with the deceased, he kept alive his

relationship with the deceased. He continued

to assist the deceased in her attempt to go to

Bombay or migrate to Australia. All this

22

Page 23 indicates that he was inimically disposed

towards the appellant. In any case, marriage

can hardly spoil anyone’s political prospects.

Besides, there is ample evidence on record to

establish that the marriage was already

known to everybody. PW-12 Matloob Karim

knew about it. Marriage was with the consent

of the parents of the deceased. They used to

visit the said flat where the deceased was

allegedly living with the appellant as his wife.

Thus, the alleged motive for the murder viz.

that the deceased wanted to make the

marriage between her and the appellant

public is not proved. Even otherwise, the

prosecution evidence shows that the

appellant was deeply in love with the

deceased. Despite knowing her intimate

relations with PW-12 Matloob Karim, he did

not turn her out of the house. He only

restricted her movements as he wanted to

23

Page 24 stop her from her wayward ways. There is no

evidence on record to show that there were

any constant quarrels between the appellant

and the deceased. The story that the

appellant suspected the fidelity of the

deceased and, hence, he killed her is also not

borne out by the evidence. Therefore, the

prosecution has failed to prove motive.

b)It is the prosecution case that empty

cartridges were recovered from the

matrimonial house of the deceased on 4

th

and 5

th

of July, 1995. According to PW-81 IO

Niranjan Singh, on 4/7/1995, he inspected the

said flat in the presence of PW-14 Inspector

Suraj Prakash and PW-13 Dhara Singh. He

found two bowls on the cupboard containing

empty cartridges and one .32 bore empty

cartridge under a stool and one lead bullet

under the bed. He further stated that he did

24

Page 25 not take them into possession as the Ballistic

Experts were not present. According to him,

he left the said flat under surveillance of PW-

14 Inspector Suraj Prakash. This story is

concocted because PW-13 Dhara Singh, the

panch witness has nowhere stated that

empty cartridges and lead bullet were found

in the house on 4/7/1995. He visited the said

flat on 5/7/1995 along with PW-70 Roop

Singh, the Ballistic Expert and took those

cartridges and lead bullet into possession in

his presence. The lead bullet was stained

with the blood of the blood group of the

deceased. PW-14 Inspector Suraj Prakash

admitted that in his statement recorded

under Section 161 of the Cr.P.C. there is no

mention of those recoveries. No memo was

prepared that though empty cartridges and

lead bullet had been found, they had not

been taken into possession on account of the

25

Page 26 advise of persons from the CFSL. The Ballistic

Expert - PW-70 Roop Singh does not say

anything about the recoveries allegedly

effected on 5/7/1995. There is a recovery

memo of 4/7/1995. It does not speak of

recovery of empty cartridges or lead bullet.

Thus, the version of PW-81 IO Niranjan Singh

about the recovery of empty cartridges and

lead bullet is falsified.

c)It is the case of the prosecution that the

deceased had received two bullet injuries in

the skull. This is confirmed by the Report of

the Board of Doctors. Any other firearm

injury is, therefore, ruled out. Therefore, the

prosecution must explain the presence of a

lead bullet having blood group of the

deceased in the room. This suggests that

there was some other person also in the

house having the same blood group as that of

26

Page 27 the deceased as the appellant has a different

blood group from that of the deceased. Had

the prosecution taken the finger prints from

the vodka bottle which was lying there, it

would have provided answer to this as

someone was consuming vodka in the room.

The deceased was a teetotaler and so is the

appellant. Besides, the alleged recovery of

empty cartridges, lead bullet and bullet hole

in the plywood show that at least 10 rounds

were fired (5 empty cartridges in the bowls,

two recovered from the floor, one causing

hole in the ply and two found from the skull).

Surprisingly, the next door neighbours did not

notice such firing. Moreover, the police found

no trail of blood in the drawing room, on the

stairs or on the road. This casts a shadow of

doubt on the prosecution story.

27

Page 28 d)It is also doubtful whether the death was

caused due to firearm injuries. PW-85 Dr.

Joginder Pal, the Casualty Medical Officer at

RML Hospital, who was on duty on 3/7/1995,

stated that he did not find any firearm injuries

in the neck or in the head or in the nape of

the deceased. CW-6 Dr. Sarangi, who had

conducted the post-mortem of the deceased

on 5/7/1995 at 3.30 p.m. at Lady Hardinge

Medical College stated that he had opened

the skull and had not noticed any bullet mark

or any bullet and that the brain matter was

intact. CW-6 Dr. Sarangi is MBBS and MD in

forensic medicine and toxicology, having

experience in the field and, therefore, his

evidence cannot be lightly brushed aside.

The Board of Doctors allegedly extracted two

bullets and opined that those two bullets

caused the death. Report dated 13/7/1995 of

the Board headed by PW-44 Dr. Bharat Singh

28

Page 29 needs to be rejected because as per PW-44

Dr. Bharat Singh, the Board first conducted

post-mortem on 12/7/1995 at 12.00 noon at

Lady Hardinge Medical College which lasted

upto 2.00 or 3.00 p.m. and it was only after

2.00 or 3.00 p.m. that the body was shifted to

the Civil Hospital. However, as per PW-57 SI

Ombir Singh, on instructions of PW-81 IO

Niranjan Singh, he reached the mortuary of

Lady Hardinge Medical College at 9.00 a.m.

on 12/7/1995, took the body from there at

9.30 a.m. and reached the Civil Hospital at

11.30 a.m., where he entrusted the body to

PW-44 Dr. Bharat Singh. According to him,

post-mortem started at Civil Hospital at 12.30

p.m. However, as per the Report of the

Board, the post-mortem started at Lady

Hardinge Medical College at 12.00 noon and,

thereafter, the body was shifted to the Civil

Hospital. PW-57 SI Ombir Singh has not been

29

Page 30 declared hostile and, if his statement is

accepted, the evidence of PW-44 Dr. Bharat

Singh about the post-mortem becomes

suspect.

e)There is no evidence on record that the body

and the skull subjected to post-mortem by

the Board were of the deceased. PW-44 Dr.

Bharat Singh stated that the body and the

skull had been identified by PW-57 SI Ombir

Singh. However, PW-57 SI Ombir Singh has

nowhere stated that he had identified the

body. There is no evidence produced from the

mortuary of Lady Hardinge Medical College

that on 12/7/1995 the body and the skull of

the deceased were in its mortuary and no

record has been produced to show that they

were removed from there on 12/7/1995. Lady

Hardinge Hospital & Medical College is one of

the top-most hospitals in Delhi. It is

30

Page 31 unbelievable that it had no X-ray facility.

Therefore, the reason given for removal of the

dead body and skull from Lady Hardinge

mortuary to Civil Hospital that because X-ray

facility was not available there, it was so

removed, is not acceptable.

f)The entire evidence relating to the Board of

Doctors deserves to be rejected because (a)

there is no evidence that the skull sent for X-

ray was that of the deceased; (b) assuming

that the skull was that of the deceased, the

prosecution has not led any evidence to

assure that before 12/7/1995, it had not been

tampered with; (c) the members of the Board

have not proved the sky grams which

allegedly they had examined on 12/7/1995;

(d) although PW-44 Dr. Bharat Singh has

stated that the sky grams and the Report of

the Radiologist were received from the

31

Page 32 Radiologist on 12/7/1995 at 2.00 p.m. or 3.00

p.m., the Report of the Radiologist shows that

X-rays were taken on 13/7/1995 and the

Report was also prepared on 13/7/1995 and

(e) as the X-ray films were developed and the

Report was prepared on 13/7/1995, recovery

of bullets from the skull on 12/7/1995

allegedly on the basis of X-rays and the

Report of CW-7 Dr. P.S. Kiran makes the

entire version regarding recovery of bullets

unworthy of reliance. There is no evidence

on record to establish that the members of

the Board were experts in conducting post-

mortems. The answer given by CW-6 Dr.

Sarangi to a court question, which contains

six reasons for rejecting the Report of the

Board have not been answered by the

prosecution. CW-6 Dr. Sarangi stated that

after the post-mortem was conducted on

5/7/1995 on the request of PW-81 IO Niranjan

32

Page 33 Singh, he had handed over the skull bone,

after separating the same from the body, to

PW-81 IO Niranjan Singh. This is supported

by endorsement dated 5/7/1995 made by PW-

81 IO Niranjan Singh on a letter addressed by

SHO, P.S. Connaught Place to the Autopsy

Surgeon, Lady Hardinge Medical College. If

the skull was handed over to PW-81 IO

Niranjan Singh on 5/7/1995, then there is no

evidence to show where the skull was kept till

12/7/1995 when it was produced before the

Board headed by PW-44 Dr. Bharat Singh for

post-mortem. PW-44 Dr. Bharat Singh has

stated that “a burnt dead body with skull

separated” was received by him and that the

skull was kept in a separate cardboard box.

Therefore, there is no evidence to establish

that the skull was that of the deceased and

assuming it to be the skull of the deceased,

there is no guarantee that between 5/7/1995

33

Page 34 and 12/7/1995, it was not tampered with.

From the evidence on record, it can be said

that only one unidentified skull of a lady

containing two bullets was handed over to the

Board on 12/7/1995. When asked whether a

bullet can be put inside the body after death

at a place where it had been noticed by the

Board, CW-6 Dr. Sarangi stated that such a

possibility could not be absolutely ruled out

especially in the presence of multiple post-

mortem cracks and separation of the skull

bone from the neck for the purpose of

superimposition.

g)Assuming that the skull produced before the

Board was that of the deceased and that two

bullets were recovered from the skull, the

prosecution has failed to prove that the

bullets were fired from the revolver of the

appellant. It is the prosecution case that two

34

Page 35 bullets were put in two separate parcels and

both bore the seal of Civil Hospital and, they

were handed over to PW-81 IO Niranjan Singh

by PW-57 SI Ombir Singh. However, PW-81 IO

Niranjan Singh has nowhere stated that he

had deposited the two parcels with the seal of

Civil Hospital with the Mohrar Malkhana. He

has not stated that he had himself sent those

two parcels with the seal of the Civil Hospital

to the CFSL. PW-67 HC Raj Kumar, who was

in-charge of Mohrar Malkhana has stated that

no parcel was deposited with him on

12/7/1995, 13/7/1995 and 14/07/1995. It was

only on 15/7/1995 that two parcels were

deposited but they bore the seal of N.S. Thus,

from his evidence, it cannot be concluded

that the parcels with the seal of Civil Hospital

were ever sent to the CFSL. If these parcels

were never sent to the CFSL, it cannot be said

that the two bullets which killed the deceased

35

Page 36 were fired from the revolver of the appellant.

Moreover, the two bullets which were

allegedly extracted by the Board from the

skull have not been identified by anyone.

h)The case that a revolver, a licence and four

live cartridges were recovered from Pai Vihar

Hotel, Bangalore where the appellant was

staying is false because on 10/7/1995 at

11.30 p.m., the appellant was brought to

Delhi. On 12/7/1995, a remand application

was made before the Metropolitan

Magistrate’s Court. In that application, it is

stated that the weapon used in the crime is to

be ascertained and recovered. If the weapon

was already recovered, such averment would

not have been made in the application.

Moreover, the appellant was brought on the

strength of a production warrant issued by a

Delhi Court and, therefore, he was in judicial

36

Page 37 custody. Section 27 of the Evidence Act

would not be, therefore, attracted. In any

case, no statement under Section 27 of the

Evidence Act was recorded. The alleged

recoveries are, therefore, not admissible.

[Bahadul v. State of Orissa .

1

] Mr.

Anantnarayan, the appellant’s advocate was

present in the hotel room when the alleged

recoveries were made. However, he has not

been examined. Similarly, PW-48 Srinivas

Rao, the Manager of the hotel and PW-50

Kancha, the waiter of the hotel were given-up

after having entered the witness box.

Recoveries were made by PW-81 IO Niranjan

Singh of P.S. Connaught Place, New Delhi in

Bangalore i.e. outside his territorial

jurisdiction. Therefore, provisions of sub-

sections (4) and (5) of Section 165 of the

Cr.P.C. ought to have been followed. The

1

AIR 1979 SC 1262

37

Page 38 licence which was allegedly recovered from

Pai Vihar Hotel, Bangalore had expired on

18/1/1994 and its validity was extended only

on 15/10/1995. Therefore, at the time of

alleged recovery of revolver on 11/7/1995,

there was no valid licence. Yet, no action was

taken by the police. To cover up this, the

validity of the license was extended later on.

If the licence was deposited with Mohrar

Malkhana with the seal of N.S., it is not

understood how the entry of extension was

made on it on 15/10/1995. This suggests

tampering of evidence.

i)Recovery of the appellant’s car from Malcha

Marg is suspect because no record of wireless

message has been produced; no one from

P.S., Malcha Marg was examined; no record of

P.S., Malcha Marg has been produced, no

information was given to the nearest

38

Page 39 Magistrate; no record showing presence of

PW-72 PC Mukesh Kumar was produced.

According to the prosecution, the CFSL team

was called and blood sample was taken from

the blood stains in the dicky of the car.

However, no witness from the CFSL has been

examined; no photographs have been

produced and no independent witness has

been examined. PW-72 PC Mukesh Kumar

stated that PW-81 IO Niranjan Singh remained

at the site for six hours. PW-81 IO Niranjan

Singh stated that he had received wireless

message about the car on 4/7/1995 at 9/10

a.m. Even if he had reached the site at 10.00

a.m. he should have remained there till 4.00

p.m. He, however, stated in his evidence

that he reached the said flat at 11.30 a.m. or

12.00 noon on 4/7/1995. The seizure memo

dated 4/7/1995 states that in the dicky of the

car, very little blood was detected. The

39

Page 40 memo also states that the long hairs were

found at the back of the front seat next to the

driver’s seat. If the prosecution case is true

then the dicky ought to have a pool of blood

and not very little blood and the long hairs

should have been found in the dicky and not

on the back of the front seat next to the

driver’s seat.

j)To prove the presence of the appellant at the

tandoor in the night of 2/7/1995, the

prosecution has examined PW-1 Philips and

PW-2 Mrs. Nisha. They stated that they had

last seen the appellant at around 9.45 p.m. at

the gate of Ashok Yatri Niwas in his Maruti

car. However, PW-3 HC Kunju stated that he

noticed the fire at 11.20 p.m. Therefore, the

presence of the appellant at around 10.00

p.m. at the tandoor is not of much

importance. To prove his presence at the

40

Page 41 tandoor at 11.30 p.m. the prosecution has

also examined PW-4 Home Guard Chander Pal

and CW-5 HC Majid Khan. It is apparent from

the evidence of PW-3 HC Kunju that at the

relevant time, the light at the Bagia

Restaurant was switched off. The appellant

was not known to any of the witnesses. He

was identified because PW-35 Mahesh Prasad

had allegedly told the witnesses about him.

However, PW-35 Mahesh Prasad has stated

that he had never met the appellant. It is

doubtful whether PW-3 HC Kunju, PW-4 Home

Guard Chander Pal and CW-5 HC Majid Khan

were actually present. They are from P.S.,

Connaught Place. No record of P.S.,

Connaught Place, has been produced to show

that they were on duty at the relevant time.

No record has been produced to show that

PW-3 HC Kunju had sent wireless message

about the incident. In fact, PW-59 ASI Sher

41

Page 42 Singh stated that the message was actually

received from Constable Rattan Singh. CW-5

HC Majid Khan of the PCR was directed by the

court to bring Log Book of the vehicle - Victor

20 in which he claimed to have gone to the

restaurant. However, the record is stated to

have been destroyed. Thus, most vital

contemporaneous record was kept back

intentionally. CW-5 HC Majid Khan also

stated that PCR Van did not enter the hotel

and remained parked outside. However, the

register showing entry and exit of vehicles

indicates that the PCR Van entered the hotel.

PW-35 Mahesh Prasad stated that all entries

were made in the register by him as directed

by the police at the police station. Thus, the

prosecution story is shrouded in suspicion.

The prosecution has not been able to prove

its case beyond reasonable doubt. The

appellant, therefore, be acquitted.

42

Page 43 25. SUBMISSIONS ON BEHALF OF THE RESPONDENT

ON THE MERITS OF THE CASE.

a)Unnecessary doubt is sought to be created as

regards location of skull from 5/7/1995 till

12/7/1995. During trial no questions were

asked and no suggestions were put to the

witnesses in this regard. Had that been done,

the witnesses would have offered

explanation. In any case, there is reliable

and cogent evidence on record that the skull

was properly preserved and it was the skull of

the deceased.

b)At one stage, the stand of the appellant was

that there was a possibility of implanting

bullets on 12/7/1995 itself when the body was

being taken to the Civil Hospital for X-ray. A

contrary stand is taken in this Court that two

bullets might have been put in the skull

43

Page 44 during the period 5/7/1995 to 12/7/1995. This

submission of the defence deserves to be

rejected. There is no reason to disbelieve

independent evidence of the doctors who

were part of the Board of Doctors.

c)A revolver was recovered from the custody of

the appellant from Bangalore on 11/7/1995.

It was brought to New Delhi along with the

appellant on 12/7/1995. The Report of the

CFSL shows that the bullets found in the skull

were from the revolver of the appellant.

There was no cross-examination on the

veracity of the said Report. The defence has

not stated what could be the motive for PW-

81 IO Niranjan Singh or anyone else to falsely

involve the appellant. There was no enmity

between them and the appellant.

44

Page 45 d)The contention that the bullets recovered

were not deposited in the Malkhana must be

rejected. One lead bullet was deposited in

the Malkahna on 5/7/1995 by PW-81 IO

Niranjan Singh. Two bullets (Ex-36 and Ex-

37) removed from the skull of the deceased

were duly sealed and handed over to the

police by PW-44 Dr. Bharat Singh immediately

after the post-mortem examination. As per

the Register of the Malkhana, the two bullets

recovered from the skull of the deceased

were deposited in the Malkhana by PW-81 IO

Niranjan Singh on 12/7/1995. They were

received in the CFSL on 17/7/1995 in sealed

condition, as is evident from Ex-PW70/A1-A9.

The said bullets were also examined by Dr.

G.D. Gupta, Serologist, who confirmed that

the blood on the bullets was B+ve.

45

Page 46 e)Only one lead bullet, five empty cartridges,

one piece of ply having one hole of bullet and

one air pistol were collected on 5/7/1995 after

the site was inspected by PW-70 Roop Singh,

the Ballistic Expert and also the Director of

the CFSL - PW-16 Dr. V.N. Sehgal. From

memo (Ex-PW-16/A) which bears the

signature of PW-16 Dr. V.N. Sehgal and

Inspector Ramesh, it is clear that only one

lead bullet (Ex-24) and five cartridges (Ex-25)

were found at the said flat. It is not the case

of the prosecution that bullet recovered from

the said flat was stained with human blood.

f)It is true that CW-6 Dr. Sarangi, who

conducted the post-mortem did not find any

bullet injury but due to the condition of the

dead body the bullet injuries might not have

been detected by naked eyes at the time of

first post-mortem. The second post-mortem

46

Page 47 Report clearly states that the firearm injuries

were ante-mortem. The evidence on record

thus clearly establishes that firearm injuries

were found on the skull of the deceased. It is

true that the Security Regulations prohibit the

carriage of weapons in the passenger cabin

but it was not impossible for the appellant to

have flown from Jaipur-Mumbai-Chennai

carrying a revolver. There is no prohibition in

carrying the revolver in checked-in luggage.

This plea is also raised during arguments.

The witnesses were not confronted with it at

the trial.

g)The appellant has not established the plea of

alibi. Since the appellant pleaded alibi the

burden was on him to prove it. Since he has

failed to prove alibi an adverse inference is

drawn against him. The appellant was

noticed at or around 10.00 p.m. or 11.00 p.m.

47

Page 48 in the night intervening 2

nd

and 3

rd

at Bagia

Restaurant with Car bearing No.DL-2CA-1872.

This is established by leading evidence of

reliable witnesses. That the deceased and

the appellant were last seen together on

2/7/1995 at the said Flat No.8/2A is

established by the evidence of the neighbour

of the appellant. PW-11 Mrs. R.K. Chaudhary.

PW-12 Matloob Karim and PW-82 R.N. Dubey,

the servant of the appellant have established

that the relations between the appellant and

the deceased were strained. PW-81 IO

Niranjan Singh who deposed about the

condition of the said flat and the recoveries

made from the said flat. He stated that

recoveries were effected on 4/7/1995 in the

presence of PW-13 Dhara Singh and PW-14

Inspector Suraj Prakash and, thereafter, the

said flat was locked and left under

surveillance of SHO, Mandir Marg and on

48

Page 49 5/7/1995 the recovery of one lead bullet, five

cartridges, one ply with a hole, one air pistol

was made in the presence of the Ballistic

Expert - PW-70 Roop Singh and PW-16 Dr.

V.N. Sehgal, the Director of the CFSL. The

testimony of PW-13 Dhara Singh is supported

by the photos taken by PW-84 PC Balwan

Singh. The contention that photos taken

during investigation were not placed on

record is contrary to the facts. Photographs

of the burnt body are exhibited at Ex-PW-

74/9-16 and their negatives are at Ex-PW-

74/1-9, skull photographs are at Ex-PW-

76/A15-A28 and their negatives are at Ex-PW-

76/A1-A31 and photographs of the said flat,

female clothes etc. were placed on record at

Ex-PW-76/A1-A14.

h)The appellant absconded from Bagia

Restaurant on the night intervening 2/7/1995

49

Page 50 and 3/7/1995 and stayed at Gujarat Bhawan.

He absconded from Delhi to Jaipur by taxi on

3/7/1995. On 4/7/1995 he travelled by air

from Jaipur-Bombay and from Bombay-

Madras and, in the end, he went to Bangalore

from where he was apprehended by the

Bangalore Police on 10/7/1995. In the

presence of the DCP of Bangalore Police,

search of the briefcase and shoulder bag

produced by the appellant was done and the

revolver was recovered from his possession.

The Report of the CFSL states that the

damaged fired lead bullets recovered from

the head and the neck of the deceased and

the damaged fired lead bullet recovered from

the carpet in the said flat were fired from the

said revolver. The hole in the ply was also

caused by the shot fired from the said

revolver. Though the incident in question

was widely published the appellant never

50

Page 51 sought to contact any one. Abscondence of

the appellant is an important circumstance

and lends support to the case of the

prosecution. His conduct is relevant under

Section 8 of the Indian Evidence Act. [Swamy

Shraddananda alias Murali Manohar

Mishra v. State of Karnataka

2

]

i)The car of the appellant bearing No.DL-2CA-

1872 was found abandoned at Malcha Marg

on 4/7/1995. On information received by PW-

81 IO Niranjan Singh, the same was seized.

Dry human blood was found in the dicky of

the said car. The key of this car was

recovered at the Pai Vihar Hotel at Bangalore

in the presence of the appellant and his

advocate. The testimony of PW-81 IO

Niranjan Singh about the recovery of the car

at Malcha Marg has not been questioned in

2

(2007) 12 SCC 288

51

Page 52 cross-examination. Thus, all the

circumstances clearly establish the

prosecution case. The conviction of the

appellant deserves to be confirmed.

ANALYSIS OF EVIDENCE IN LIGHT OF SUBMISSIONS OF

THE COUNSEL.

26.We shall now consider the submissions of the counsel in

light of evidence on record. Since this is a case based on

circumstantial evidence, we must see whether chain of

circumstances is complete and points unerringly to the guilt

of the appellant. It is first necessary to see the background

of the case. The fact that the appellant and the deceased

were staying at the said flat as husband and wife can hardly

be disputed. PW-12 Matloob Karim, who was known to the

appellant and the deceased stated that in the year 1989, he

was the Organizing Secretary of Youth Congress. At that

time, the appellant was its President and the deceased was

General Secretary of its Girls Wing. He stated that he knew

the deceased from 1984 when they were in the Students

52

Page 53 Union of Delhi University and because of their close

association, they had fallen in love with each other.

However, they could not marry because they belonged to

different religions. He stated that he got married in

December, 1988. The deceased got married to the appellant

in the year 1992 and informed him about it. He further

stated that after her marriage, she was staying with the

appellant at the said flat. CW-1 Mrs. Jaswant Kaur, the

mother of the deceased, CW-2 Sardar Harbhajan Singh, the

father of the deceased and PW-82 Ram Niwas Dubey, who

was the personal servant of the appellant also confirmed this

fact. Pertinently, no suggestion was put to them in the cross-

examination that what they were saying was false. In this

connection, it is important to note that the DNA Report [Ex-

PW-87/A] confirms that the dead body which was burnt at

Bagia Restaurant was that of the deceased, who was the

biological offspring of CW-1 Mrs. Jaswant Kaur and CW-2

Sardar Harbhajan Singh. PW-11 Mrs. Chaudhary, a retired

Government servant, was staying along with her husband in

Flat No.8/2-B, which was in front of the appellant’s Flat

53

Page 54 No.8/2-A. She stated that the appellant was living with his

wife i.e. the deceased in the said flat. Her husband PW-9

M.L. Chaudhary corroborated her evidence. According to PW-

11 Mrs. Chaudhary, the deceased was last seen with the

appellant in the evening of 2/7/1995 in the said flat. Though

his statement recorded under Section 313 of the Cr.P.C., in

answer to one of the questions, the appellant stated that he

was the President of NSU(I); that he knew the deceased since

1985; that the deceased was living with his parents at Gole

Market and that he had no contact with her after 1985, while

answering another question, he admitted that he was living

with the deceased in the said flat. PW-15 HC Amba Das was

the beat constable of Mandir Marg Area at the relevant time.

According to him, once he had gone to the house of the

appellant for verification of the quarters. At that time, the

appellant told him that he should take care of the Car

bearing No.DAC 3285 belonging to his wife and his Car

bearing No.DL-2CA-1872 as the vehicles were increasingly

being stolen. According to him, the appellant also told him

that since during the day time they were out, he should take

54

Page 55 care of their house. Admittedly, Car bearing No.DAC 3285

belonged to the deceased. It may be noted here that on

5/7/1995, this car was seized by PW-81 IO Niranjan Singh

when it was parked below the said flat. We are, therefore, of

the opinion that the prosecution has successfully proved that

the appellant and the deceased were married and they were

staying in the said flat as husband and wife and that the

deceased was last seen in the company of the appellant in

the said flat on the evening of 2/7/1995 by PW-11 Mrs.

Chaudhary.

27.The appellant’s connection with the Bagia Restaurant is

very crucial to the prosecution because the infamous

tandoor was situated there. The appellant has not disputed

that the Bagia Restaurant is run as per the agreement with

the ITDC. In his statement recorded under Section 313 of the

Cr.P.C., he stated that his Manager at Bagia Restaurant was

one Mr. Handa and his Accountant was one Mr. Karan. He

admitted that A2-Keshav was employed in Bagia Restaurant.

A2-Keshav has also admitted this fact. Thus, the prosecution

55

Page 56 has successfully proved that the appellant was the owner of

Bagia Restaurant.

28.From the evidence on record, it is clear that all was not

well between the appellant and the deceased. PW-12

Matloob Karim has admitted that the deceased and he were

in love with each other but they could not marry because

they belonged to different religions. His evidence indicates

that he got married to a Muslim girl in December, 1988.

According to him, the deceased told him that she had

married the appellant in the year 1992. He stated that even

after his marriage, he and the deceased used to meet and

talk. According to him, in August, 1989, the deceased told

him to enquire about the antecedents of the appellant. She

told him that the appellant had proposed to her. According

to this witness, he had told her that the appellant was not a

good person. The deceased phoned him sometimes in the

year 1992 and stated that she had got married with the

appellant and that prior to the marriage, she had disclosed

their friendship to the appellant. Six months thereafter, he

56

Page 57 received a call from the deceased stating that she was

trapped; that the appellant was not a good man and that he

used to abuse and thrash her on trivial matters. The

deceased again phoned him and told him that the appellant

had thrown her out of their house. On 2/7/1995 between

3.00 p.m. to 4.00 p.m., the deceased telephoned him and

told him to help her to migrate to Australia. The evidence of

this witness is criticized on the ground that he is not a person

of good character because he admitted that even after

marriage, he continued to have relationship with the

deceased. It is contended that he was inimically disposed

towards the appellant and, therefore, he had falsely

implicated him. We find no substance in this submission.

Assuming this witness loved the deceased and he continued

to meet her after her marriage with the appellant that, in our

opinion, has no relevance. His evidence has a ring of truth.

By falsely implicating the appellant, he would not have

gained anything. In our opinion, this witness is worthy of

credence. PW-82 Ram Niwas Dubey’s testimony also throws

light on this aspect. His association with the appellant began

57

Page 58 in the year 1989 when the appellant was the President of

Youth Congress (I). He was working as a peon with him till

April, 1995. He stated that the appellant obtained the said

flat in 1992. The appellant lived with his wife i.e. the

deceased in the said flat. He knew the deceased since 1992

as she was the General Secretary of Youth Congress and

used to visit the appellant at his office at Talkatora. After

the appellant’s marriage with the deceased, he was working

with the appellant and was living in the said flat. He stated

that the appellant and the deceased used to quarrel on the

topic of marriage. The deceased used to ask the appellant

as to when he would make their marriage public. The

appellant used to tell her that he will disclose their marriage

to the people at the appropriate time. According to him,

there used to be frequent quarrels between the two and the

appellant used to beat the deceased with legs, fists and

dandaa. He further deposed that as directed by the

appellant, he used to accompany the deceased to keep a

watch on her movements because the appellant suspected

her fidelity. The defence has not elicited anything in the

58

Page 59 cross-examination of this witness, which can persuade us to

discard his testimony. PW-11 Mrs. R.K. Chaudhary, the

neighbour of the appellant and the deceased, stated that

once when they were watching T.V. in their house, they

heard a noise coming from outside. They opened the door of

the drawing room and saw that scuffle was going on between

the appellant and the deceased. The deceased wanted to go

out of the house but the appellant was pulling her back

inside the house. This witness has no reason to concoct a

story. She appears to us to be a reliable witness. Though

the father and the mother of the deceased, the neighbours of

the appellant and the deceased and their servant knew that

the appellant and the deceased were staying together and

the parents of the deceased stated in the court that the

appellant and the deceased were married to each other, the

marriage was not made public. The deceased wanted the

marriage to be made public. The appellant was reluctant to

do so and was suspecting her fidelity. On account of this

suspicion, he used to quarrel with her and beat her. He had

asked PW-82 Ram Niwas Dubey to keep watch over her

59

Page 60 movements and had also put restrictions on her movements.

On account of this, the deceased was making efforts to leave

him. It appears that perhaps the appellant did not want to

make the marriage public because the deceased was

continuing her relationship with PW-12 Matloob Karim even

after marriage. These circumstances established by evidence

adduced by the prosecution lead us to conclude that there

was a strong motive for the appellant to do away with the

deceased. It was urged that the appellant was deeply in love

with the deceased and despite knowing her relationship with

PW-12 Matloob Karim, he did not drive her out. He only

restricted her movements because he wanted to stop her

from her wayward ways. He would have, therefore, never

killed her. In our opinion, the appellant’s love for the

deceased does not dilute the prosecution case on motive. In

fact, it strengthens it.

29.That there was fire in the Bagia Restaurant around

10.30 p.m. on 2/7/1995 and that, at that time, the appellant

was present near the Bagia Restaurant is established by the

60

Page 61 prosecution by leading reliable evidence. PW-7 Mrs. Anaro

Devi who was running a vegetable shop near Ashok Yatri

Niwas stated that two years back at about 11.30 p.m. on

2/7/1995 when she was present at her shop, a fire broke out

in Bagia Restaurant. One constable and home guard came

there. She informed them about the fire. PW-3 HC Kunju

stated that on 2/7/1995 he was posted as Constable at P.S.,

Connaught Place. PW-4 Home Guard Chander Pal was with

him. When they reached near Ashok Yatri Niwas at about

11.20 p.m., they found that fire had broken out in the Bagia

Restaurant. He rushed to the Police Post, Western Court and

gave information to the police through wireless. On reaching

the spot, he saw flames coming up from the Bagia

Restaurant. He entered the restaurant along with PW-4

Home Guard Chander Pal and saw A2-Keshav standing near

the tandoor. He was putting pieces of wood into the tandoor

and was shuffling the same with a long wooden stick. On

enquiry, A2-Keshav told him that he was a Congress Party

worker and he was burning the old banners, posters and

waste papers, etc. of the Congress Party. In the meantime,

61

Page 62 the patrolling officer SI Rajesh Kumar, the staff of PCR and

security officials Rajiv Thakur and PW-35 Mahesh Prasad also

came there. According to him, he saw the appellant near the

gate of the Bagia Restaurant. PW-35 Mahesh Prasad told him

that the appellant was the owner of the Bagia Restaurant.

PW-3 HC Kunju identified the appellant at the police station

as the same person whom he had seen at the gate of the

Bagia Restaurant. PW-4 Home Guard Chander Pal stated

that on 2/7/1995, when he was on patrolling duty along with

PW-3 HC Kunju, they reached Ashok Yatri Niwas at about

11.30 p.m. They saw fire at the Bagia Restaurant. PW-3 HC

Kunju went and phoned the police station and came back.

Both of them scaled the wall and entered the Bagia

Restaurant for extinguishing the fire. They saw A2-Kesahv

trying to stoke the fire with the help of a wooden stick. When

asked, A2-Keshav told them that he was burning the old

banners and posters of the Congress Party. He further

stated that the appellant was standing there wearing white

coloured kurta pyjama. He was so informed by PW-35

Mahesh Prasad. He further stated that the appellant came

62

Page 63 near the tandoor and shuffled the fire with wooden stick and,

thereafter, he left from there. He stated that he identified

the appellant at the police station. CW-5 HC Majid Khan

deposed that in the night of 2/7/1995, he was on duty on PCR

vehicle driven by Ranbir Singh. They went to Ashok Yatri

Niwas for drinking water and there they noticed the fire in

Bagia Restaurant. They went towards the gate of Bagia

Restaurant. There was a kanat fixed at the gate and one

man was standing there. The man told them that they were

burning the old banners and waste papers and flags of

Congress Party and that he was the leader of Youth

Congress. PW-35 Mahesh Prasad then told them that that

man was the owner of Bagia Restaurant and his name was

‘Sushil Sharma’. According to him, A2-Keshav was stoking

the fire. He stated that A2-Keshav was apprehended at the

spot. PW-1 Philips’s evidence is also important. He was

working as a Stage Programmer in Bagia Restaurant. This

fact is confirmed by PW-5 K.K. Tuli, the General Manager of

Bagia Restaurant. According to PW-1 Philips, on 2/7/1995, he

was on duty from 8.00 p.m. to 12.00 midnight. He stated

63

Page 64 that he and his wife PW-2 Mrs. Nisha were to stage a

performance on that day. One guest had come to see him.

He had gone to see off that guest at 9.30 p.m. or 9.45 p.m.

When he came back, he saw the appellant coming there in

Maruti Car No.1872. After 5-7 minutes, A2-Keshav asked him

to stop the programme and go back to his house as his duty

was over. He obeyed and left for his house along with his

wife PW-2 Mrs. Nisha. While going, he saw the appellant

sitting in his Maruti car which was standing at the gate. PW-

2 Mrs. Nisha corroborated PW-1 Philips. She stated that she

had seen the appellant at about 10.15 p.m. at the gate of

Bagia Restaurant in Maruti Car No.1872. PW-5 K.K. Tuli,

General Manager of Bagia Restaurant stated that around the

time when the incident occurred, the appellant used to visit

the Bagia Restaurant every day. All these witnesses have

stood firm in the cross-examination.

30.PW-3 HC Kunju stated that since foul smell was

emanating from the tandoor, he and SI Rajesh Kumar went

near the tandoor out of suspicion. They saw a human body

64

Page 65 whose hands and feet were completely burnt and whose

intestines were protruding out from the stomach in the

tandoor. On a close look, they found that the dead body was

of a female. PW-4 Home Guard Chander Pal corroborated

PW-3 HC Kunju on this aspect. He stated that a body of a

woman was found lying in the tandoor. It’s bones were cut

and intestines were protruding. PW-5 K.K. Tuli, the General

Manager of Ashok Yatri Niwas stated that on receiving

telephonic information from the security staff, he went to the

Bagia Restaurant and found a dead body of a woman in burnt

condition lying amongst the wood pieces in tandoor. There is

no challenge to these statements of the witnesses in the

cross-examination. On receiving information, senior police

officers including PW-81 IO Niranjan Singh reached the spot.

Photographs of the dead body were taken by PW-74 HC Hari

Chand. He produced the photographs of the dead body (Ex-

PW-74/9 to 16) and negatives thereof (Ex-PW-74/1 to 8). PW-

75 Inspector Jagat Singh and PW-81 IO Niranjan Singh have

also deposed about it. A2-Keshav was handed over to PW-81

IO Niranjan Singh. PW-81 IO Niranjan Singh recorded the

65

Page 66 statement of PW-3 HC Kunju, which was treated as FIR. In

the FIR, PW-3 HC Kunju narrated all the events which took

place after he reached the Bagia Restaurant till his

statement was recorded. It is necessary to note here that he

specifically mentioned about the presence of the appellant.

He made it clear that he was informed about the appellant’s

presence by the Security Guard PW-35 Mahesh Prasad. He

stated that the Security Guard PW-35 Mahesh Prasad told

him that the appellant, who is the owner of the Bagia

Restaurant was standing there. He noted the presence of the

appellant and A2-Keshav. He stated that A2-Keshav was

detained, however, the appellant had run away. He also

stated about the finding of burnt body of an unknown lady in

the tandoor.

31.It must be mentioned here that PW-35 Mahesh Prasad

has not supported the prosecution on this aspect. He stated

that he had not seen the appellant on that day at the Bagia

Restaurant. It appears that he was won over by the defence.

Tenor of his evidence suggests that he was hiding the truth

66

Page 67 and favouring the appellant. The trial court has rightly

commented on his demeanor and stated that his demeanor

indicates that he was won over by the appellant. In the

circumstances, we see no reason to disbelieve PW-1 Philips,

PW-2 Mrs. Nisha, PW-3 HC Kunju, PW-4 Home Guard Chander

Pal and CW-5 HC Majid Khan. In any case, even if we leave

the evidence of PW-3 HC Kunju, PW-4 Home Guard Chander

Pal and CW-5 HC Majid Khan out of consideration on this

aspect, the evidence of PW-1 Philips and PW-2 Mrs. Nisha

establishes the presence of the appellant at the Bagia

Restaurant at the relevant time in the night of 2/7/1995 at

around 10.15 p.m. Some controversy is sought to be created

as to whether PCR Vehicle entered the Bagia Restaurant or

not because the log book of the PCR Vehicle was not

produced. We have no manner of doubt that this discrepancy

is created by PW-35 Mahesh Prasad, who was won over by

the appellant. It needs to be ignored. In our opinion,

whether the PCR vehicle entered the Bagia Restaurant or

was parked outside is not a material circumstance. The

presence of the witnesses is well established. It is, therefore,

67

Page 68 not necessary to dwell on this point. On the basis of the

evidence discussed above, we are satisfied that the

prosecution has established the presence of the appellant at

the Bagia Restaurant at around 10.30 p.m. on 2/7/1995. It

has also established that a dead body of a woman in burnt

condition was found lying in the tandoor.

32.PW-81 IO Niranjan Singh started investigation and after

holding inquest, sent the dead body to RML Hospital. We

have already referred to PW-85 Dr. Joginder Pal, who stated

that on 3/7/1995 an unknown female body was brought to

the RML Hospital at 6.20 a.m. He examined the dead body.

In his Report (Ex-PW-85/A) he noted the condition of the

charred body. PW-12 Matloob Karim identified the dead body

as that of the deceased on 5/7/1995 at RML Hospital. DNA

Report established that the dead body was of deceased

Naina Sahni, who was the daughter of CW-1 Mrs. Jaswant

Kaur and CW-2 Sardar Harbhajan Singh. Thus, the

prosecution has successfully established that the dead body

was of Naina Sahini, wife of the appellant.

68

Page 69 33.Post-mortem of the dead body was conducted by CW-6

Dr. Sarangi on 5/7/1995. We have reproduced the

observations noted by CW-6 Dr. Sarangi in his post-mortem

report, hereinabove. That the death was homicidal is

established and is not disputed. In this case, the medical

evidence assumes great importance. We shall discuss it, in

detail, a little later.

34.We shall now go to the search of the said flat. PW-81 IO

Niranjan Singh stated that on 3/7/1995 at about 3.00 p.m.,

he went to the said flat along with A2-Keshav, but it was

found locked. On 4/7/1995 at about 11.30 a.m. / 12.00 noon,

he reached the said flat. The said flat was under the

surveillance of PW-14 Inspector Suraj Prakash. It was forced

open under a panchanama. Certain bloodstained articles like

cloth pieces, chatai and piece of carpet were seized from the

said flat under a panchnama. He found five empty

cartridges, a lead bullet, an air pistol and a ply in which there

was a hole caused by the bullet. According to him, he did not

69

Page 70 take possession of these articles because the Ballistic

Experts were not present. On 5/7/1995, he visited the said

flat along with PW-70 Roop Singh, the Ballistic Expert, and

PW-16 Dr. V.N. Sehgal, Director of the CFSL and in their

presence five empty cartridges, one lead bullet, an air pistol

and a ply having bullet hole were seized and panchnama (Ex-

PW-16/A) was drawn. It was signed by PW-16 Dr. V.N. Sehgal

and Inspector Ramesh Chander. PW-16 Dr. V.N. Sehgal has

confirmed that on 5/7/1995 at about 12.00 noon, on a

request made by the police, he visited the said flat along

with PW-70 Roop Singh. He stated that he entered the said

flat along with PW-70 Roop Singh and PW-81 IO Niranjan

Singh. PW-70 Roop Singh collected five empty cartridges,

one lead bullet, one piece of ply having a hole in it and one

air pistol. He further stated that the seized articles were

sealed and the memo was prepared, which is at Ex-PW-16/A.

PW-81 IO Niranjan Singh has also spoken about the seizure

memo [Ex-PW-16/A] on which he obtained signatures of PW-

16 Dr. V.N. Sehgal and Inspector Ramesh Chander. PW-67

HC Raj Kumar, in-charge of Malkhana has deposed about the

70

Page 71 parcels of the seized articles received by him on 5/7/1995.

He stated that on 17/7/1995, SI Rakesh Ahuja took all the

parcels to the CFSL. Thus, seizure of five empty cartridges,

one lead bullet, a ply with a hole on it from the said flat on

5/7/1995 is proved. It is also proved that the said seized

articles were deposited in Malkhana on 5/7/1995 and were

sent to the CFSL on 17/7/1995.

35.PW-70 Roop Singh, the Ballistic Expert has stated about

receipt of the seized articles from SHO, P.S., Connaught Place

on 17/7/1995. He has spoken about the examination of the

said articles sent to his laboratory and the result thereof. It

is true that in his evidence, he has not stated anything about

his visit to the said flat on 5/7/1995 or the finding of

cartridges, lead bullet and ply with a hole in the said flat,

which has been stated by PW-16 Dr. V.N. Sehgal and PW-81

IO Niranjan Singh. From this, it cannot be concluded that he

was not present in the said flat on 5/7/1995. Obviously,

being a Ballistic Expert, he has only concentrated on the

result of examination conducted in his laboratory. No

71

Page 72 adverse inference can be drawn from his not mentioning

finding of cartridges, lead bullet, etc. from the said flat on

5/7/1995. It is true that PW-14 Inspector Suraj Prakash has

admitted that in his statement recorded under Section 161 of

the Cr.P.C., he has not referred to the seizure of cartridges,

bullets, etc. However, his evidence makes it clear that his

statement was recorded at the spot when the recoveries of

other articles were made i.e. on 4/7/1995. He stated that his

supplementary statement was not recorded. Since, the

seizure of the said articles was made on 5/7/1995 that too in

his absence, there was no question of his mentioning about

the recoveries of cartridges, etc. in his statement recorded

on 4/7/1995. He stated in his evidence that the said articles

were there in the said flat but they were not seized because

the Ballistic Expert was not there. The fact that statement of

this witness was recorded on 4/7/1995 is also stated by PW-

81 IO Niranjan Singh. Therefore, this circumstance cannot be

taken against the prosecution.

72

Page 73 36.It is argued that in the recovery memo dated 4/7/1995,

there is no mention of recovery of empty cartridges, lead

bullet, etc. and, therefore, PW-81 IO Niranjan Singh’s version

regarding recovery of empty cartridges and lead bullet is

falsified. This submission deserves to be rejected without

hesitation because the recovery was effected on 5/7/1995

under panchnama (Ex-PW-16/A). These articles were not

seized on 4/7/1995. Therefore, they cannot find mention in

the panchnama dated 4/7/1995. Recovery Memo dated

5/7/1995 clearly talks about recovery of cartridges, lead

bullet, a piece of ply having a hole of a bullet and an air

pistol. It is true that PW-13 Dhara Singh has not stated that

on 4/7/1995 any cartridges or lead bullet were found in the

said flat. However, PW-14 Inspector Suraj Prakash who had

accompanied him and PW-81 IO Niranjan Singh have stated

so. Therefore, non-mentioning of this fact by PW-13 Dhara

Singh is of no consequence. Both PW-14 Inspector Suraj

Prakash and PW-81 IO Niranjan Singh have stated that the

said cartridges, etc. were not seized on 4/7/1995 because the

Ballistic Expert was not present. Therefore, we feel that

73

Page 74 absence of any memo in this regard does not affect the

prosecution case adversely. It is stated in the written

submissions that two lead bullets were recovered from the

said flat. This statement is factually incorrect. All the

witnesses have stated that only one lead bullet was

recovered from the said flat and that is confirmed by the

panchnama (Ex-PW-16/A). We are also not impressed by the

submission of the appellant’s counsel that at least ten rounds

must have been fired in the said room and the neighbours

should have therefore spoken about it. That, ten rounds

must have been fired is a speculation of the counsel. But,

assuming that to be so, it is common knowledge that

neighbours generally would not want to get involved in such

cases. There is always an effort to disassociate oneself from

such incidents for fear of getting entangled in court cases.

Not much can be made out of this conduct of the neighbours.

It is pertinent to note that PW-81 IO Niranjan Singh stated

that when he asked the neighbours to become witnesses in

the proceedings of the house search, they refused and stated

that it is not proper to give evidence in a murder case. It

74

Page 75 appears that somehow two neighbours agreed to depose in

the court, but considering the general apathy of the people

towards associating themselves with such incidents, their not

referring to any sound of firing cannot be taken against the

prosecution. Moreover, it is quite possible that since the flats

were closed, sound did not travel from one flat to the

neighbours’ flat. We, therefore, reject this submission.

37. It was argued that the lead bullet which was found in

the said flat was blood stained. This is not correct. Seizure

Memo [Ex-PW-16/A] regarding the seizure of articles from the

said flat on 5/7/1995 states that one lead bullet was seized.

It does not say that the said lead bullet was stained with

blood. PW-81 IO Niranjan Singh stated that on 5/7/1995 he

seized one lead bullet from the said flat. He makes no

reference to any blood being found on it. PW-16 Dr. V.N.

Sehgal, Director, CFSL who was present when the articles

were seized on 5/7/1995 stated that one lead bullet was

recovered from the said flat. He nowhere stated that it was

blood stained. PW-70 Roop Singh, Ballistic Expert stated

75

Page 76 that he received one lead bullet among others for

examination on 17/7/1995. He stated that the lead bullet

recovered from the said flat was fired through .32 revolver

[W-2]. It is pertinent to note that this is the same revolver

which was seized from the room of the appellant at Pai Vihar

Hotel, Bangalore. He further stated that the hole on the ply

was found to have been caused by the said lead bullet

recovered from the said flat. He however did not state that it

was blood stained. CFSL Report dated 27/7/1995 also does

not state that the said bullet was blood stained. Therefore, it

is clear that it is not the case of the prosecution that the lead

bullet seized from the said flat on 5/7/1995 was stained with

blood. Therefore, all the submissions based on the

assumption that bullet found in the said flat was blood

stained are rejected.

38.PW-81 IO Niranjan Singh has stated that on 4/7/1995 at

about 9.10 a.m., a wireless message was received by him

that Car bearing No.DL-2CA-1872 was parked at Malcha

Marg. He along with the staff reached near Malcha Marg

76

Page 77 Market. The said car was parked on the road. The CFSL

team was called for inspection of the car. Car was then

inspected. The dry blood lying in the dicky of the car was

scratched, kept in a polythene packet, converted into a

parcel and sealed. Many long hair were lifted from the back

of the front left seat of the car, kept in a parcel and sealed. A

memo being Ex-PW-60/B was prepared which bears this out.

The recovery of the appellant’s car is attacked on the ground

that no record of wireless message has been produced; no

one from P.S. Malcha Marg was examined; no record of P.S.

Malcha Marg has been produced; no information was given to

the nearest Magistrate and no record showing presence of

PW-72 PC Mukesh of P.S. Chanakyapuri was produced. It is

also stated that no witness from the CFSL has been

examined; no photographs have been produced and no

independent witnesses have been examined. In our opinion,

it was not necessary to produce the record showing presence

of PW-72 PC Mukesh. We find him to be a truthful witness. In

his evidence, PW-72 PC Mukesh clearly stated that on

4/7/1995, the said car was found abandoned near Gujarat

77

Page 78 Bhavan. He also deposed that before leaving the police

station for patrolling duty, he was given number of the said

car by SHO saying that it was involved in the murder case of

P.S. Connaught Place and he should look for the said car. In

view of the clear testimony of PW-72 PC Mukesh, it was not

necessary to produce other record to support seizure of the

car. There is no reason to disbelieve him. PW-81 IO Niranjan

Singh has stated that the blood stains found in the dicky

were scratched and sample thereof was taken. Therefore,

even if no witness from the CFSL has been examined to

depose about this or no photographs have been produced,

that has no adverse effect on the prosecution case. Some

advantage is sought to be drawn from the discrepancies in

the time as regards receipt of wireless message from PW-81

IO Niranjan Singh and the estimate of time given by PW-72

PC Mukesh regarding PW-81 IO Niranjan Singh’s presence at

the site and the time given by PW-81 IO Niranjan Singh as to

when he reached the said flat after taking samples from the

appellant’s car. The estimate of time given by the witnesses

differ and may, at times, conflict. When there are telltale

78

Page 79 circumstances on record clearly supporting the prosecution

case, assuming there are some discrepancies in the evidence

of witnesses as regards time, it would not make any dent in

the prosecution story. The argument that in the dicky there

ought to have been a pool of blood, will also have to be

rejected. PW-75 Inspector Jagat Singh in his evidence stated

that from the spot, a polythene sheet/tarpaulin bearing

stains of blood on one side and scratch marks on the lower

side was taken in possession under seizure memo [Ex-PW-

75/1]. The body must, therefore, have been well covered in

polythene sheet to hide it and, hence, there was no pool of

blood in the dicky. This also explains why there was no trail

of blood on the staircase or on the road. Blood was, however,

found in the said flat.

39.The CFSL Report dated 27/7/1995 states that the hair

recovered from the back of the left front seat of the said car

were identified to be of human origin. However, no opinion

could be given as to whether they were of the deceased.

From the dicky, no human hair were recovered possibly

79

Page 80 because the dead body was properly covered. This

circumstance appears to us to be totally innocuous and no

advantage can be drawn from it by the defence. So far as

the sample of blood found in the dicky of the said car is

concerned, the CFSL Report while confirming that it was

blood, stated that the blood group could not be analysed.

There is no positive finding that the blood detected was not

found to be ‘human’ blood. The submission that the blood

detected in the dicky was found not to be ‘human’ blood is

contrary to facts. Seizure of the appellant’s car which was

found abandoned at Malcha Marg with dry blood in the

dicky establishes the prosecution case that the said car was

used by the appellant to carry the dead body to the Bagia

Restaurant. It is further established that after leaving

Bagia Restaurant on arrival of police, he came to Malcha

Marg and parked the car there.

40.The evidence on record establishes that after

committing the murder, the appellant spent the night at

Gujarat Bhawan situated at Malcha Marg. Thereafter, the

80

Page 81 appellant was on the run. PW-81 IO Niranjan Singh’s

evidence throws light on it. It appears that while in Madras,

the appellant having come to know that the police were

looking for him, obtained anticipatory bail. On an application

filed by the prosecution, the anticipatory bail was cancelled.

According to PW-81 IO Niranjan Singh, he learnt that on

10/7/1995, the appellant was arrested by PW-46 Inspector

Gangadhar of the Bangalore Police. PW-81 IO Niranjan Singh

got the production warrant issued from the concerned

Magistrate by filing Application [Ex-PW-81/X-6]. On

11/7/1995, he along with his colleague reached Bangalore

and took custody of the appellant. The appellant led them to

Room No.110 of Hotel Pai Vihar where he was staying along

with his advocate Mr. Anantanarayan. From Room No.110, a

briefcase was recovered. In the briefcase, there was a

revolver of Arminius make of .32 bore. There were four live

cartridges, arms licence, passport and other documents. A

key of a Maruti Car was also found from the briefcase and the

same was also taken charge of and marked Ex-PW-81/X-10.

All the articles were seized and seizure memo [Ex-PW-47/A]

81

Page 82 was drawn. The appellant was then brought to New Delhi.

PW-81 IO Niranjan Singh has clearly stated that he informed

the security personnel at the airport about the recovered

revolver and the cartridges, while bringing the appellant to

New Delhi by air.

41.No advantage can be drawn by the appellant from the

fact that in the remand application dated 12/7/1995, it was

stated that the weapon used in the crime had to be

ascertained and recovered, though a revolver had been

recovered on 10/7/1995. It must be borne in mind that the

said remand application was made at an early stage of

investigation. When the remand application was made, the

police had not ascertained from the CFSL whether the

revolver recovered at Bangalore was used by the appellant.

Therefore, the said averment does not affect the veracity of

recovery evidence. As regards the criticism that there is no

statement of the appellant recorded under Section 27 of the

Evidence Act and, therefore, recoveries made at Bangalore

become inadmissible is concerned, it must be stated that it

82

Page 83 is not the prosecution case that any statement of the

appellant was recorded under Section 27 of the Evidence Act.

The revolver was recovered during investigation. Pertinently,

the CFSL Report has established the link between the

revolver recovered from the hotel room at Bangalore and the

bullets found in the skull of the deceased. Evidence of police

witnesses on this aspect is cogent and reliable. We find no

reason to discard it. We may add here that in his statement

recorded under Section 313 of the Cr.P.C. the appellant

admitted that he possessed .32 bore Arminius revolver. But

he stated that police recovered it from his residence at

Maurya Enclave when he was at Tirupati. The appellant has

not led any evidence to prove that he was staying at Maurya

Enclave. His parents did not step in the witness box. This

story is rightly disbelieved by the High Court. Thus, the

appellant’s admission that he possessed .32 bore Arminius

revolver goes a long way amongst other circumstances in

establishing his guilt.

83

Page 84 42.Alleged non-compliance with procedural requirements

laid down in Cr.P.C. by PW-81 IO Niranjan Singh who was

conducting investigation outside his jurisdiction assuming to

be true, is an instance of irregularity in investigation which

has no adverse impact on the prosecution case. It is true

that Mr. Anantanarayan, the advocate was not examined. It

is also true that PW-48 Srinivas Rao, the Manager of Pai Vihar

Hotel and PW-50 Kancha, the waiter of the said hotel were

given up by the prosecution. Mr. Anantanarayan being

advocate of the appellant was not expected to support the

prosecution. It appears that, therefore, he was not

examined. So far as PW-48 Srinivas Rao is concerned, he

was not examined by the prosecution because he was won

over by the appellant. PW-50 Kancha was not examined by

the prosecution because he had difficulty in understanding

Hindi and English. These witnesses are therefore, of no use

to the prosecution. However, the prosecution case is

substantiated by the evidence of PW-81 IO Niranjan Singh,

PW-55 ACP Raj Mahinder Singh of Delhi Crime Branch and

PW-47 CI Gowda of Hauze Kote Police Station, Bangalore. We

84

Page 85 find them to be truthful. There is no presumption that

evidence of police witnesses is always tainted. No evidence

has been brought on record to suggest that they bore any

grudge against the appellant and, hence, wanted to falsely

involve him. In our opinion, recoveries made at Bangalore

are proved beyond reasonable doubt.

43.So far as recoveries of bloodstained clothes at the

instance of the appellant from bushes near Gujarat Bhawan

and from Rangpuri area are concerned, the trial court has

not relied upon the recovery made from the area near Gujrat

Bhawan. The High Court has found no reason to discard the

recovery made from Rangpuri area. In our opinion, even if

these recoveries are kept out of consideration, there is

enough other evidence on record which establishes the guilt

of the appellant. It is therefore, not necessary to dwell on

the said recoveries.

44.Counsel for the appellant has stated that according to

the prosecution on 11/7/1995, a revolver and arms licence

85

Page 86 were recovered from the hotel room of the appellant at Pai

Vihar, Bangalore. The same were put in a parcel sealed with

the seal of N.S. It is submitted that on 15/10/1995, the

licence period was extended to cover up the lacunae and an

entry was made on the seized licence to that effect and this

suggests tampering. We find no substance in this allegation.

It appears from the evidence that the appellant had made an

application for extension of licence on 18/1/1994 which was

granted on 15/10/1995 by PW-55A ACP Ram Narain. The

evidence on record indicates that what was recovered on

11/7/1995 is licence (Ex-PW-47/E) and according to PW-55A,

ACP Ram Narain, he made the entry of extension dated

15/10/1995 on the licence (Ex-PW-55/A). There is, therefore,

no question of tampering with the seized licence. Besides,

no question was put to any of the officers about the co-

relation between the said two exhibits. In any case, expiry of

arms licence has nothing to do with the core of the

prosecution case. We reject this submission.

86

Page 87 45.We shall now go to the medical evidence. We have

already reproduced the observations made by PW-85 Dr.

Joginder Pal in his Medico Legal Report after he received the

dead body. We have also reproduced the relevant portions of

the post-mortem notes and the cause of death given by CW-

6 Dr. Sarangi. According to CW-6 Dr. Sarangi, the cause of

death was hemorrhagic shock consequent to various ante-

mortem injuries found on the dead body. He has opined that

the burns present on the said body must be probably

inflicted after the death. It was argued that it is doubtful

whether the death was caused due to firearm injuries. It was

pointed out that PW-85 Dr. Joginder Pal, the Casualty Medical

Officer at RML Hospital has stated that he did not find any

firearm injuries in the neck or in the head or in the nape of

the deceased. Moreover, CW-6 Dr. Sarangi also did not

notice any bullet mark or bullet present in the dead body. In

fact, he stated that the brain matter was intact. Doubt was

cast on the opinion of the Board of Doctors, who extracted

the two bullets and opined that those two bullets caused

death. It was argued that the skull from which bullets were

87

Page 88 recovered was not the skull of the deceased. We have no

hesitation in rejecting all these submissions which are aimed

at creating doubt about the Report of the Board of Doctors.

46.So far as PW-85 Dr. Joginder Pal is concerned,

admittedly, he did not conduct the post-mortem. He

conducted superficial examination of the dead body.

Obviously, therefore, he did not notice any firearm injury in

the neck or in the head or in the nape of the deceased. It is

true that CW-6 Dr. Sarangi did not notice any evident bullet

marks or the bullets embedded in the skull. Possibly the

bullets were so embedded that they were not visible to the

naked eye. In this connection, it is necessary to turn to PW-

81 IO Niranjan Singh’s evidence. He stated that as he found

empty cartridges, a lead bullet and a bullet hole on a ply in

the said flat, he suspected that a firearm must have been

used in this incident. Therefore, he requested CW-6 Dr.

Sarangi to conduct X-ray examination of the dead body.

However, X-ray examination was not conducted. These facts

were mentioned by him in letter (Ex-PW-81/X-11). Since no

88

Page 89 X-ray examination was done on 9/7/1995, he discussed the

need of having a second post-mortem with the DCP, New

Delhi and ACP, Connaught Place. He wrote a letter

containing queries about re-post-mortem and handed it over

to PW-57 SI Ombir Singh and directed him to hand over the

same to the Board of Doctors. According to him, on

9/7/1995, he had requested Dr. Aditya Arya, DCP for

constitution of Board of Doctors. Copy of the letter to Dr.

Arya is at Ex-PW-81/X-11. The Commissioner requested the

Lt. Governor and by the order of Lt. Governor of New Delhi,

the Board of Doctors was constituted. PW-44 Dr. Bharat

Singh, PW-68 Dr. T.D. Dogra and Dr. S.K. Khanna were

selected as members of the Board. On 12/7/1995, at about

10.30 a.m., the members of the Board of Doctors reached

the Lady Hardinge Mortuary to conduct second post-mortem.

CW-6 Dr. Sarangi was also there and he had a conversation

with them. Second post-mortem report (Ex-PW-44/A)

indicates that it was partly conducted at Lady Hardinge

Mortuary and thereafter the body was shifted to the Civil

89

Page 90 Hospital for X-ray. Skull was X-rayed. X-ray revealed two

bullets embedded in the skull.

47.In our opinion, when PW-81 IO Niranjan Singh had

requested CW-6 Dr. Sarangi to get the dead body X-rayed, he

should have got the X-ray examination done. He gave an

excuse that the X-ray examination was not done because the

portable X-ray machine available at Lady Hardinge Medical

College was not functioning. Assuming this to be true, in a

serious crime like this, he should have immediately taken the

dead body to the Civil Hospital for X-ray examination. It is

pertinent to note that to a court question, he has stated that

he was making sincere efforts to get X-ray of the dead body

done in the X-ray department in consultation with the

Medical Superintendent of the hospital. However, before he

could complete any such endeavour, the body was taken

away by PW-81 IO Niranjan Singh for further examination by

some other doctors at some other hospital. There is nothing

on record to show that CW-6 Dr. Sarangi made any grievance

about this fact. In fact, he admitted that in the post-mortem

90

Page 91 report, he did not mention these facts nor did he take any

action against PW-81 IO Niranjan Singh. When asked

whether he had taken any action, CW-6 Dr. Sarangi changed

his stand and stated that he thought that what PW-81 IO

Niranjan Singh was doing was in the furtherance of “good

justice”. He has indeed contradicted himself. If he thought

that the dead body was suddenly withdrawn and he was

keen on X-raying it, then he ought to have written a letter to

that effect to the Commissioner of Police and to the hospital

authorities and he ought to have made complaint against

PW-81 IO Niranjan Singh. He did nothing. In fact, at one

stage he stated that the necessity of X-ray examination was

not realized by him because he did not notice any bullet

marks and at another stage he suggested that he wanted to

get the dead body X-rayed. When he was asked as to

whether a bullet can be put inside the body after death at

the place where it has been noticed by the Board, he stated

that the possibility could not be absolutely ruled out

especially in the presence of multiple post-mortem cracks

and separation of the skull bone from the neck for the

91

Page 92 purpose of superimposition. Thus, CW-6 Dr. Sarangi in his

evidence has tried to cast a doubt on the entire investigation

and the Board of Doctors. The trial court severely

commented on the conduct of CW-6 Dr. Sarangi. The High

Court, however, expunged those remarks. Since the High

Court has expunged those remarks, we would not like to

reopen the issue. But we find it extremely difficult to reject

the opinion of the Board of Doctors on the basis of his

evidence. Eminent doctors were members of the Board of

Doctors. They had no reason to falsely implicate the

appellant.

48.We would also like to make it clear that there is

absolutely no reason to doubt the prosecution case that the

skull of which X-ray was taken was that of the deceased.

CW-6 Dr. Sarangi stated that on the request of PW-81 IO

Niranjan Singh, the skull bone was separated for

superimposition. PW-81 IO Niranjan Singh stated that he

received the skull on 5/7/1995. He stated that at the time of

post-mortem, he gave application dated 5/7/1995 to the

92

Page 93 Autopsy Surgeon for preserving the skull for superimposition.

Thus, the skull was merely separated for the purpose of

superimposition but remained in the mortuary along with the

dead body. The first post-mortem report dated 5/7/1995

records that the skull was preserved for superimposition.

The skull along with the body remained in the mortuary of

Lady Hardinge Medical College after the first post-mortem

and was not sent for superimposition. On application dated

9/7/1995 submitted by PW-81 IO Niranjan Singh, an order

was passed for the second post-mortem. This application

shows that though a request was made for skull

superimposition test, the dead body with its head was still

preserved in the Lady Hardinge Medical College mortuary

and process of superimposition had not started till then. The

second post-mortem report records that the body was kept in

the mortuary of Lady Hardinge Medical College in a plastic

bag and was taken out from the same. It was a dead body

with the skull separated. The evidence clearly shows that

the separated skull remained along with the body in the

mortuary of the Lady Hardinge Medical College from

93

Page 94 5/7/1995 till 12/7/1995. The second post-mortem was

conducted on 12/7/1995. During the second post-mortem,

the dead body was taken to Civil Hospital for X-ray and,

thereafter, it was brought back to the Lady Hardinge

Mortuary. The body along with the skull was later taken to

AIIMS for conducting superimposition. The defence has not

been able to create any doubt in our minds that the skull was

not that of the deceased. Minor discrepancies, if any, in the

evidence of witnesses are natural in a case of this type. They

will not have any adverse impact on the basic case of the

prosecution which is borne out by cogent and reliable

evidence.

49.The second post-mortem report states that the body

was kept in the mortuary of Lady Hardinge Medical College in

a plastic bag and was taken out from the same in the

presence Board of Doctors. On external examination, the

body is described as “ a burnt dead body, with skull

separated at upper cervical level (kept in a separate

cardboard box)”. After describing the state of upper limbs,

94

Page 95 lower limbs, left lower limb, thoracic cavity, abdominal

cavity, kidneys, back of trunk, spinal column, head, skull

vault, cranial cavity, it is stated that at that stage it was

decided to take X-rays of the body to detect any firearm

projectiles. The Report further notes that due to non-

availability of the facility of X-ray for the dead bodies at Lady

Hardinge Medical College, it was decided to shift the body to

the Civil Hospital for X-ray. The body was shifted to the Civil

Hospital in a police vehicle and X-ray was taken in the Civil

Hospital. From the evidence of CW-7 Dr. (Ms.) P.S. Kiran, the

Radiologist, Civil Hospital, New Delhi, it appears that she took

the necessary X-rays of the dead body. X-ray plates were

shown to the Board of Doctors. The doctors noted their

observations in their report after viewing the X-ray plates. It

is stated that the X-ray plates showed the presence of two

metal pieces, (i) in back of right ear (mastoid region) and (ii)

left side of neck, near the spine in soft tissues of cervical

stumps. The report then indicates that thereafter the neck

was dissected and a deformed bullet was located.

Thereafter, the right mastoid area was also dissected to

95

Page 96 locate the bullet. The outer table of the skull above mastoid

process was bulging outwards through which a metal piece

was seen. On further dissection, a deformed bullet was

found embedded in the bone with its nose portion pointing

outwards and base towards medial side. Both the bullets

were removed. The final opinion of the Board reads as

under:

“The burns are post-mortem in nature and are

caused by fire. The firearm injuries are ante-

mortem in nature, caused by a firearm such as a

revolver or pistol. In view of the extensive burns,

it is not possible to give exact location of the entry

wounds. However on the basis of the track and

location of bullet, the entry wound on the head

could be in the left temporal region and that in the

neck could be in the right upper part of the neck.

It is also not possible to comment upon the range

of fire, because of extensive burns on probable site

of entry. The firearm injury on the head is

sufficient to cause death in ordinary course of

nature. The death in this case was due to coma,

consequent upon firearm injury to the head.

It is not possible to comment whether the distal

portions of the limbs were chopped off or were

separated due to burns, in view of the burnt distal

ends of the bones.”

96

Page 97 50.Thus, the second post-mortem report makes it clear

that the burns were post-mortem and firearm injuries were

ante-mortem and the death was due to coma, consequent

upon firearm injury to head. It was, however, not possible to

say whether the distal portions of the limbs were chopped off

or were separated due to burns in view of the burnt distal

ends of the bones. The report also shows how the body

travelled from Lady Hardinge Medical College to the Civil

Hospital. The body was lying in the mortuary of Lady

Hardinge Medical College in a plastic bag and it was taken

out from there in the presence of the Board of Doctors and

the second post-mortem was conducted. When need for X-

ray was realized, it was shifted in police vehicle to the Civil

Hospital and the X-rays were taken at the Civil Hospital. We

have no hesitation in placing implicit reliance on the opinion

expressed by the Board of Doctors after the second post-

mortem.

51.It is also necessary to deal with the submission of the

counsel for the appellant that the two parcels containing

97

Page 98 bullets which were extracted from the skull of the

deceased, bearing the seal of Civil Hospital were never sent

to the CFSL. This submission deserves to be rejected,

because PW-44 Dr. Bharat Singh stated that after the

second post-mortem, he handed over the two bullets

recovered from the skull of the deceased to PW-57 SI Ombir

Singh in a sealed cover with the seal of Civil Hospital. PW-

57 SI Ombir Singh has confirmed this fact. He stated that

he took possession of the same vide Memo [Ex-PW57/A]

and after depositing the dead body at Lady Hardinge

Medical College, he came to the police station and handed

over the said parcels to PW-81 IO Niranjan Singh along with

Memo [Ex-PW-57/A]. It was urged that PW-67 HC Raj

Kumar, who is in-charge of Malkhana has stated that no

parcel was deposited with him on 12/7/1995, 13/7/1995

and 14/7/1995. This argument is misleading. In his

evidence PW-67 HC Raj Kumar has nowhere stated that he

had not received any parcel on 12/7/1995, 13/7/1995 and

14/7/1995. According to the prosecution, Entry No.2146 of

the Malkhana Register shows that the two bullets

98

Page 99 [Ex.Nos.36 and 37] recovered from the skull of the

deceased were deposited in Malkhana. PW-81 IO Niranjan

Singh has stated that on 17/7/1995 he had sent the parcels

to the CFSL through SI Rakesh Ahuja. PW-67 HC Raj

Kumar has confirmed this fact. PW-70 Roop Singh has

stated that he received two parcels with the seal of Civil

Hospital, Delhi from the Malkhana on 17/7/1995. We have,

therefore, no doubt that the two bullets recovered from the

skull of the deceased were sent to the CFSL. There is,

therefore, no substance in this argument.

52.We may add here that the CFSL Report dated

27/7/1995 states that the two bullets recovered from the

skull of the deceased were stained with blood of ‘B’ group.

This establishes that the blood group of the deceased was

‘B’. It is pertinent to note that the CFSL Report dated

17/7/1995 states that the various articles such as cloth

piece, carpet piece, chatai, etc. recovered on 4/7/1995 from

the said flat were stained with the blood of ‘B’ group.

Similarly, it states that the polythene sheet which was

99

Page 100 recovered from the Bagia Restaurant was also stained with

the blood of ‘B’ group. It is pertinent to note that the CFSL

Report dated 27/7/1995 also shows that in the dicky of Car

No.DL-2CA-1872, blood was detected. Therefore, the

prosecution case that the deceased was murdered in the

said flat by shooting her in the head by the appellant; that

the body of the deceased was wrapped in the polythene

sheet and carried by the appellant in his car bearing No.DL-

2CA-1872 to the Bagia Restaurant and that it was burnt

there in the tandoor, is proved.

53.Attempt has been made to create confusion and caste a

doubt on the entire procedure of second post-mortem by

pointing out some discrepancies in the evidence of PW-44 Dr.

Bharat Singh and PW-57 SI Ombir Singh as regards the time

when the second post-mortem was conducted. We repeat

that the evidence of the doctors who were concerned with

the second post-mortem and their report inspires confidence.

It is reliable. Hence, we reject this submission. At the cost of

repetition, we must note that minor discrepancies in the

100

Page 101 evidence of witnesses as regards dates and time cannot

have any adverse impact on the prosecution case because in

this case, it’s substratum is firmly established by cogent and

reliable evidence.

54.Certain minor procedural irregularities have also been

highlighted. But it must be borne in mind that the

investigation of this case was not restricted to New Delhi.

The appellant travelled from one city to another. He reached

Madras. From there he went to Bangalore where he was

arrested. In a case of this type there is likelihood of some

lapses on the part of the investigating agency. It is well

settled that such lapses, if they are minor, cannot be allowed

to defeat the cause of justice. We have not noticed any

major lacuna in the investigation from which adverse

inference can be drawn against the prosecution. Attempt

has been made to suggest that all witnesses including

doctors, expert witnesses, and police officers have conspired

against the appellant and he has been falsely implicated.

We see no reason to draw such conclusion. It is impossible to

101

Page 102 believe that everyone would want to implicate the appellant

in a false murder case and in that attempt, go to the extent

of implanting bullets in the skull. We reject all such

submissions.

55.The evidence on record clearly establishes that the

appellant has not been able to prove the defence of alibi.

Adverse inference needs to be drawn from this fact. False

defence of alibi indeed forms a vital link in the chain of

circumstances. It is also established by the prosecution that

after the murder, the appellant made himself scarce. He

stayed in the night of 2/7/1995 and 3/7/1995 at Gujarat

Bhavan. He was on the run. He travelled from Delhi to

Jaipur, from Jaipur to Bombay, from Bombay to Madras and

from Madras to Bangalore where he was arrested on

10/7/1995. These facts are successfully established by oral

and documentary evidence. Thus, the fact that the appellant

was absconding is established beyond doubt.

102

Page 103 56.In the ultimate analysis, therefore, we are of the opinion

that the prosecution has successfully proved beyond

reasonable doubt the following circumstances:

(a)the appellant and the deceased were married and they

were staying together in the said flat being Flat No.8/2A

situated at Mandir Marg;

(b)the relations between the appellant and the deceased

were strained. The appellant was suspecting the fidelity

of the deceased. The deceased wanted to make their

marriage public which the appellant was not willing to

do. There was, thus, a strong motive to murder;

(c)the appellant and the deceased were last seen together

in the evening of 2/7/1995 in the said flat;

(d) on 2/7/1995, at about 11.00 p.m. there was a fire in

Bagia Restaurant and the appellant was seen at around

103

Page 104 10.15 p.m. at the Bagia Restaurant in his Maruti Car

bearing No.DL-2CA-1872;

(e)A2-Keshav, who was an employee of the Bagia

Restaurant owned by the appellant, was seen shuffling

the wood in the tandoor with a wooden stick and he was

apprehended at the spot in the night intervening

2/7/1995 and 3/7/1995;

(f)charred corpse found in the tandoor was identified to be

that of the deceased;

(g) on 4/7/1995, certain blood stained articles were

recovered from the said flat where the appellant and

the deceased were staying together;

(h) on 4/7/1995, Car No.DL-2CA-1872 was found abandoned

at Malcha Marg and the dicky of the car was found to

contain dry blood.

104

Page 105 (i) on 5/7/1995, five empty cartridges, one lead bullet, a

ply with bullet hole and an air pistol were recovered

from the said flat where the appellant and the deceased

were staying together;

(j)from the evening of 2-3/7/1995, the appellant was on

the run till he was arrested by the Bangalore Police at

Bangalore on 10/07/1995. On 11/07/1995, the

appellant was handed over to the Delhi Police

and, inter alia, a .32 Arminius revolver owned by

him was recovered by the police from his room at Pai

Vihar Hotel at Bangalore;

(k)the second post-mortem report prepared after studying

the X-ray plates of the skull of the deceased revealed

that there were two bullets embedded in it;

(l)the CFSL report stated that the said two bullets

recovered from the skull of the deceased and the one

lead bullet recovered from the said flat were fired from

105

Page 106 the .32 Arminius revolver recovered by the police from

Pai Vihar Hotel at Bangalore;

(m)the death of the deceased was homicidal and was

consequent upon firearm injuries to the head of the

deceased caused by the appellant alone with his .32

bore Arminius revolver;

(n)as per the CFSL Report, blood found on various articles

seized from the said flat and from Bagia Restaurant

and the blood found on the bullets recovered from

the skull tallied. It was of the blood group of the

deceased.

(o)the defence of alibi pleaded by the appellant was found

to be false; and

(p)the appellant and A2-Keshav conspired to cause

disappearance of the evidence of murder by burning

106

Page 107 the dead body of the deceased in tandoor of Bagia

Restaurant.

57.We have no doubt that the chain of the above

circumstances is complete and unerringly points to the guilt

of the appellant. The established circumstances are capable

of giving rise to inference which is inconsistent with any

other hypothesis except the guilt of the appellant. The

prosecution has, therefore, proved that the appellant alone

has committed the murder of the deceased in the said flat on

2/7/1995. The appellant conspired with A2-Keshav to do

away with the dead body of the deceased so as to cause

disappearance of the evidence of murder and, at the

instance of the appellant, A2-Keshav burnt the dead body in

the tandoor. The appellant has, therefore, rightly been

convicted under Section 302 of the IPC and also for offence

under Section 201 read with Section 120-B of the IPC. A2-

Keshav has been acquitted of offence punishable under

Section 302 read with Section 120-B of the IPC. However, he

has been rightly convicted for offence punishable under

107

Page 108 Section 201 read with Section 120-B of the IPC. As already

stated, he has not appealed against the said order of

conviction. In view of the above, we confirm the conviction of

the appellant for offence punishable under Section 302 of the

IPC and also for offence punishable under Section 201 read

with Section 120-B of the IPC. Having confirmed the

conviction, we must now consider as to whether the death

sentence awarded by the trial court and confirmed by the

High Court should be confirmed.

SUBMISSIONS ON SENTENCE:

58. On the question of sentence, we have heard Mr. Jaspal

Singh at great length. He first took us to the judgment of the

Constitution Bench of this Court in Bachan Singh, etc. v.

State of Punjab, etc.

3

, where the Constitution Bench has

noted the aggravating circumstances and mitigating

circumstances and observed that while considering the

question of sentence relative weight must be given to them.

Counsel laid stress on the observation of the Constitution

3

(1980) 2 SCC 684

108

Page 109 Bench that apart from the mitigating circumstances noted by

it there are numerous other circumstances justifying the

passing of the lighter sentence; that the mitigating factors in

the area of death penalty must receive a liberal and

expansive construction by the court and that judges should

never be bloodthirsty.

59.Counsel relied on the judgments of this Court in

Santosh Kumar Satishbhushan Bariyar, etc. v. State of

Maharashtra, etc.

4

; Ramdeo Chauhan alias Raj Nath v.

State of Assam

5

; Swamy Shraddananda (2) alias

Murali Manohar Mishra v. State of Karnataka

6

; Aloke

Nath Dutta & Ors. v. State of West Bengal

7

; Haresh

Mohandas Rajput v. State of Maharashtra

8

and State

of Punjab v. Manjit Singh and Ors.

9

and submitted that

public perception is extraneous to conviction as also

sentencing. Age of the accused would be a relevant

consideration. In a case of circumstantial evidence the

4

(2009) 6 SCC 498

5

(2001) 5 SCC 714

6

(2008) 13 SCC 767

7

(2007) 12 SCC 230

8

(2011) 12 SCC 56

9

(2009) 14 SCC 31

109

Page 110 courts should lean towards life imprisonment. Every murder

is brutal. Brutality alone would not be a ground for judging

whether the case is one of the rarest of rare cases. The court

must consider whether the accused has a criminal history;

whether he is a criminal or a professional killer and whether

he will be an ardent criminal and a menace to the society.

Counsel pointed out that despite the fact that the offences

committed by the accused were heinous in Mohd. Chaman

v. State (NCT of Delhi)

10

; Dilip Premnarayan Tiwari &

Anr., etc. v. State of Maharashtra

11

; Sebastian alias

Chevithayan v. State of Kerala

12

; Rajesh Kumar v.

State through Government of NCT of Delhi

13

and Amit

v. State of Uttar Pradesh

14

, the court converted the

death sentence into life sentence. Counsel submitted that

probability of reformation and rehabilitation of the accused

has to be considered and burden is on the State to lead

evidence to prove that there is no probability of reformation

or rehabilitation of the accused. Counsel submitted that

10

(2001) 2 SCC 28

11

(2010) 1 SCC 775

12

(2010) 1 SCC 58

13

(2011) 13 SCC 706

14

(2012) 4 SCC 107

110

Page 111 Machhi Singh & Ors. v. State of Punjab

15

advocates

principle of proportionality which is old and archaic and,

hence, we must fall back on Bachan Singh. Counsel further

submitted that there is a long lapse of time since the

imposition of capital sentence and consideration of sentence

by this Court. The offence was committed on 2/7/1995. The

trial court convicted and sentenced the appellant on

3/11/2003. The High Court confirmed the death sentence on

19/2/2007. The appeal has been pending in this Court for

the last six years. He submitted that the appellant has

already undergone more than 18 years imprisonment in the

jail. This delay also provides a valid ground for commuting

death sentence to life imprisonment. In this connection he

relied on Piare Dusadh v. King Emperor

16

; Neti

Sreeramulu v. State of Andhra Pradesh

17

; Ediga

Anamma v. State of Andhra Pradesh

18

; Ramesh and

Ors. v. State of Rajasthan

19

; Mohd. Farooq Abdul

Gafur & Anr. etc. v. State of Maharashtra, etc.

20

and

15

(1983) 3 SCC 470

16

AIR 1944 FC 1

17

(1974) 3 SCC 314

18

(1974) 4 SCC 443

19

(2011) 3 SCC 685

20

(2010) 14 SCC 641

111

Page 112 State of Uttar Pradesh v. Munesh

21

. Counsel

submitted that the instant case does not fall in the category

of rarest of rare cases. The appellant has no criminal history.

He is not a professional criminal. Death was caused by bullet

injuries. It was not savage or brutal. The State has not laid

any evidence to establish that the accused would commit

criminal acts of violence as would constitute continuing

threat to the society. Therefore, the principle that life

imprisonment is the rule and death sentence is an exception

must be applied to this case. Counsel submitted that body

was burnt to destroy evidence. That would not bring this

case in the category of rarest of rare cases (Santosh

Kumar Bariyar ). Counsel submitted that evidence on

record establishes that the appellant loved the deceased. He

married her despite the fact that she had an affair with PW-

12 Matloob Karim. She continued to have relations with PW-

12 Matloob Karim despite his objection after marriage. The

deceased was not a hapless woman. She was an

independent woman. Since crime is committed in such

21

(2012) 9 SCC 742

112

Page 113 circumstances, death sentence should not be awarded to the

appellant.

60.On the other hand, relying on the judgments of this

Court in Ediga Anamma

22

; Mahesh s/o. Ram Narain, &

Ors. v. State of Madhya Pradesh

23

; Machhi Singh;

Molai & Anr. v. State of Madhya Pradesh

24

; State of

Rajasthan v. Kheraj Ram

25

and D hananjoy Chatterjee

alias Dhana v. State of West Bengal

26

Mr. Chandhiok,

learned Additional Solicitor General, submitted that the

appellant deserves no sympathy. The crime committed by

the appellant is horrendous and warrants death penalty.

Counsel submitted that the deceased was a hapless lady;

qua her, the appellant was in a dominating position; the

appellant always ill-treated her and refused to acknowledge

her as his wife though she was residing with him; his plea

was held to be false; he showed no remorse after the murder

and he tried to destroy the evidence in a most barbaric

22

(1974) 4 SCC 443

23

(1987) 3 SCC 80

24

(1999) 9 SCC 581

25

(2003) 8 SCC 224

26

(1994) 2 SCC 220

113

Page 114 manner. Thus, there are no mitigating circumstances, in

this case. A sentence other than the death sentence will not

operate as a deterrent and may send a wrong signal to the

society. Counsel submitted that the object of sentencing is

to see that the crime does not go unpunished and the victim

of crime as also the society has the satisfaction that justice

has been done. Drawing our attention to paragraphs 19, 22,

87 and 88 of the impugned judgment, counsel submitted

that the High Court has given strong, convincing and legally

sound reasons for awarding death penalty, which do not

deserve to be disturbed. On the aspect of delay, relying on

the judgment of this Court in Smt. Triveniben, etc. v.

State of Gujarat, etc.

27

, counsel submitted that in this case

the Constitution Bench has held that while considering

whether the death sentence should be awarded or not, the

time utilized in judicial proceedings upto final verdict cannot

be taken into account. This is not a case of delay in

disposing of mercy petition. Counsel submitted that while

awarding death sentence, perception of the Society is one of

27

(1989) 1 SCC 678

114

Page 115 the considerations. Counsel submitted that this case is one

of the most widely published and infamous murder case. It is

a case where this Court must, by confirming the death

sentence, send a strong signal to the society which will

operate as an effective deterrent in future.

ANALYSIS OF SUBMISSIONS ON SENTENCE AND

CONCLUSION:

61.Learned counsel have drawn our attention to the

decisions of the Constitution Bench of this Court in Bachan

Singh and Machhi Singh. We must begin with them. In

Bachan Singh, after referring to Ediga Anamma, which

had, in turn, referred to Neti Sreeramulu, constitutional

validity of death penalty for murder provided in Section 302

of the IPC and the sentencing procedure embodied in sub-

section (3) of Section 354 of the Code was considered. The

Constitution Bench observed that the death penalty should

be imposed in rarest of rare/gravest cases. It was observed

that while considering the question of sentence relative

weight must be given to the aggravating and mitigating

115

Page 116 circumstances. The Constitution Bench noted the

aggravating circumstances as under:

“(a) if the murder has been committed after

previous planning and involves extreme brutality;

or

(b) if the murder involves exceptional depravity;

or

(c) if the murder is of a member of any of the

armed forces of the Union or of a member of any

police force or of any public servant and was

committed—

(i) while such member or public servant

was on duty; or

(ii)in consequence of anything done or

attempted to be done by such member or public

servant in the lawful discharge of his duty as

such member or public servant whether at the

time of murder he was such member or public

servant, as the case may be, or had ceased to

be such member or public servant; or

(d) if the murder is of a person who had acted in

the lawful discharge of his duty under Section 43 of

the Code of Criminal Procedure, 1973, or who had

rendered assistance to a Magistrate or a police

officer demanding his aid or requiring his

assistance under Section 37 and Section 129 of the

said Code.”

The mitigating circumstances were noted as under:

116

Page 117 “(1)That the offence was committed under the

influence of extreme mental or emotional

disturbance.

(2) The age of the accused. If the accused is

young or old, he shall not be sentenced to death.

(3) The probability that the accused would not

commit criminal acts of violence as would

constitute a continuing threat to society.

(4) The probability that the accused can be

reformed and rehabilitated. The State shall by

evidence prove that the accused does not satisfy

the conditions (3) and (4) above.

(5) That in the facts and circumstances of the

case the accused believed that he was morally

justified in committing the offence.

(6) That the accused acted under the duress or

domination of another person.

(7) That the condition of the accused showed

that he was mentally defective and that the said

defect impaired his capacity to appreciate the

criminality of his conduct.”

62.The Constitution Bench noted that there are numerous

other circumstances justifying the passing of the lighter

sentence as there are countervailing circumstances of

aggravation. It was further observed that the court cannot

117

Page 118 obviously feed into a judicial computer all such situations

since they are astrological imponderables in an imperfect

and undulating society. Nonetheless, it cannot be over-

emphasized that the scope and concept of mitigating factors

in the area of death penalty must receive a liberal and

expansive construction by the courts in accord with the

sentencing policy. It was further observed that Judges should

never be bloodthirsty. Relevant observations of the

Constitution Bench read as under:

“Judges should never be bloodthirsty. Hanging of

murderers has never been too good for them.

Facts and figures, albeit incomplete, furnished by

the Union of India, show that in the past, courts

have inflicted the extreme penalty with extreme

infrequency — a fact which attests to the caution

and compassion which they have always brought

to bear on the exercise of their sentencing

discretion in so grave a matter. It is, therefore,

imperative to voice the concern that courts, aided

by the broad illustrative guidelines indicated by us,

will discharge the onerous function with evermore

scrupulous care and humane concern, directed

along the highroad of legislative policy outlined in

Section 354(3) viz. that for persons convicted of

murder, life imprisonment is the rule and death

sentence an exception. A real and abiding concern

for the dignity of human life postulates resistance

to taking a life through law’s instrumentality. That

ought not to be done save in the rarest of rare

118

Page 119 cases when the alternative option is

unquestionably foreclosed.”

63.In Machhi Singh, a three Judge Bench of this Court

considered whether death sentence awarded to the

appellants should be confirmed. In that case as a result of a

family feud the appellants with a motive of reprisal,

committed 17 murders in five incidents occurring in the

same night in quick succession in the five neighbouring

villages. Some of the accused were sentenced to death.

This Court referred to the judgment of the Constitution Bench

in Bachan Singh and culled out the following propositions as

emerging from Bachan Singh’s case:

“(i) The extreme penalty of death need not be

inflicted except in gravest cases of extreme

culpability.

(ii) Before opting for the death penalty the

circumstances of the ‘offender’ also require to be

taken into consideration along with the

circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death

sentence is an exception. In other words death

sentence must be imposed only when life

imprisonment appears to be an altogether

inadequate punishment having regard to the

119

Page 120 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.”

It was further observed that to apply these guidelines

court must ask and answer the following questions:

“(a) Is there something uncommon about the

crime which renders sentence of imprisonment for

life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that

there is no alternative but to impose death

sentence even after according maximum

weightage to the mitigating circumstances which

speak in favour of the offender?”

In the facts of the case, death sentence awarded to

some of the accused was confirmed.

120

Page 121 64.We shall now go to some of the other judgments on

which reliance is placed by the appellant and the

respondent. It is not necessary to refer to all the judgments

because they reiterate the same principles.

JUDGMENTS RELIED ON BY THE APPELLANT :

65.In Mohd. Chaman , the appellant had raped a 1½ year-

old girl. In the process of committing rape, injuries were

inflicted on liver which resulted in death of the child. The

trial court sentenced him to death. The High Court

confirmed the death penalty. This Court observed that the

crime was undoubtedly serious and heinous and the conduct

of the appellant was reprehensible. It revealed a dirty and

perverted mind of a human being who has no control over his

carnal desires. However, after treating the case on the

touchstone of the guidelines laid down in Bachan Singh and

Machhi Singh, this Court was of the view that the appellant

was not such a dangerous person that to spare his life will

endanger the community. It was further observed that the

circumstances of the crime were not such that there was no

121

Page 122 alternative but to impose death sentence even after

according maximum weightage to the mitigating

circumstances in favour of the offender. It was observed that

the case is one in which a humanist approach should be

taken while awarding punishment. The capital punishment

imposed against the appellant was set aside and the

appellant was sentenced to life imprisonment.

66.In Aloke Nath Dutta , the appellant, who had many

vices, was in need of money. Out of greed for money, he

killed his brother. The trial court sentenced the appellant to

death. The High Court confirmed the death sentence. This

Court held that though the offence was gruesome, the case

was not one of the rarest of rare cases. This Court observed

that though the deceased was killed while he was in deep

slumber, the method applied cannot be said to be cruel. This

Court noted that both the brothers i.e. the deceased and the

appellant were living in the same premises for a long time;

they were looking after their parents and the other brothers

had filed a suit against them and their mother apprehending

122

Page 123 that their mother would bequeath the property in favour of

the appellant and the deceased. This Court held that the

prosecution had failed to prove the case of conspiracy and, in

the circumstances, the case did not fall in the category of

rarest of rare cases. The appellant’s death penalty was

commuted to life imprisonment.

67.In Manjit Singh, the case of the prosecution was that

Bhinder Kaur, the wife of the deceased-Sewa Singh was

having illicit relationship with the accused, who were working

as Sewadars in the Gurdwara where the deceased used to

recite Kirtan. Having come to know this, deceased-Sewa

Singh and his son used to beat Bhinder Kaur. Enraged by

this, the accused came to the house of deceased-Sewa Singh

and murdered him by assaulting him with Kirpan and

Khanda. The son of deceased-Sewa Singh and two others

were killed in the Gurdwara by them. The accused were

sentenced to death by the trial court. The High Court,

however, commuted the death sentence to life

imprisonment. The State of Punjab appealed to this Court. It

123

Page 124 was argued that the High Court was not right in converting

the death sentence into life imprisonment. This Court

observed that whether the case is one of the rarest of rare

cases is a question which has to be determined on the facts

of each case. Only where culpability of the accused has

assumed depravity or where the accused is found to be an

ardent criminal and menace to the society; where the crime

is committed in an organized manner and is gruesome, cold-

blooded, heinous and atrocious; where innocent and

unarmed persons are attacked and murdered without any

provocation, death sentence should be awarded. In the facts

of the case before it, this Court held that being driven more

by infatuation and also being devoid of their senses on

coming to know about the ill-treatment meted out to Bhinder

Kaur, the accused committed the murders. It was observed

that though the act of the accused was gruesome it was a

result of human mind going astray. In the circumstances,

the High Court’s order commuting death sentence to life

imprisonment was confirmed.

124

Page 125 68.In Santosh Kumar Bariyar, all the accused including

the appellant were unemployed young men in search of job.

In execution of a plan proposed by the appellant and

accepted by them, they kidnapped a friend of theirs with the

motive of procuring ransom from his family but later

murdered him and after cutting his body into pieces disposed

of the same at different places. One of the accused turned

approver. The prosecution case was based exclusively on his

evidence. The trial court awarded death sentence to the

appellant. The High Court confirmed the death sentence. In

appeal, this Court held that doctrine of proportionality

provides for justifiable reasoning for awarding death penalty.

However, while imposing any sentence on the accused the

court must also keep in mind the doctrine of rehabilitation.

The court cannot, therefore, determine punishment on

grounds of proportionality alone. This Court observed that

there was nothing to show that the appellant could not be

reformed and rehabilitated. It was further observed that the

manner and method of disposal of the dead body of the

deceased made the case a most foul and despicable case of

125

Page 126 murder. However, mere mode of disposal of the dead body

may not by itself be made the ground for inclusion of a case

in the rarest of care category for the purpose of imposition of

death sentence. It may have to be considered along with

several other factors. This Court was of the view that the fact

that the prosecution case rested on the evidence of the

approver, will have to be kept in mind. It was further

observed that where the death sentence is to be imposed on

the basis of circumstantial evidence, the circumstantial

evidence must be such which leads to an exceptional case.

It was further observed that the discretion given to the court

in such cases assumes onerous importance and its exercise

becomes extremely difficult because of the irrevocable

character of death penalty. Where two views ordinarily could

be taken, imposition of death sentence would not be

appropriate, but where there is no other option and it is

shown that reformation is not possible, death sentence may

be imposed. In the circumstances, the death sentence was

converted to life imprisonment.

126

Page 127 69.In Sebastian, the appellant had trespassed into the

complainant’s house and kidnapped his two year-old

daughter. He then raped and killed her. The trial court

sentenced him to death. The death sentence was confirmed

by the High Court. This Court considered the fact that the

appellant was a young man of 24 years of age at the time of

incident and that the case rested on circumstantial evidence,

and substituted the death sentence by life sentence. It was,

however, directed that the appellant shall not be released

from prison for the rest of his life.

70.In Rajesh Kumar , the appellant was convicted for

killing two children aged four-and-a-half years, and eight

months in a brutal and diabolical manner. He had held the

legs of the infant and hit the child on the floor, and had slit

the throat of the elder son with a piece of glass which he had

obtained by breaking the dressing table glass. The motive

for crime was said to be the refusal by the father of the

children to lend money to him. The trial court imposed death

sentence on the appellant. The High Court confirmed the

127

Page 128 death sentence. On appeal, this Court held that the State

had failed to show that the appellant was a continuing threat

to the society or that he was beyond reform and

rehabilitation. It was observed that the High Court has taken

a very narrow and a myopic view of the mitigating

circumstances about the appellant. It was observed that the

brutality of murder alone cannot justify infliction of death

penalty. The death sentence was, in the circumstances, set

aside and the appellant was sentenced to life imprisonment.

71.In Ramesh, Ramlal, who was doing business of money

lending and his wife Shanti Devi were found lying dead in a

pool of blood in their house-cum-shop. Pursuant to the FIR

registered under Sections 302 and 457 of the IPC, the

appellant was arrested along with others. The case of the

prosecution was that the appellant and other accused had

decided to commit robbery at the house-cum-shop of Ramlal.

They trespassed into it; looted the house-cum-shop and

decamped with the ornaments of silver, gold and cash. The

murder weapon was recovered from the appellant. The trial

128

Page 129 court convicted the appellant, inter alia, under Sections 120-

B and 302 of the IPC. He was sentenced to death. The High

Court confirmed the death sentence. On appeal, this Court

observed that though the case was of double murder, it

cannot be said to be a crime of enormous proportion. The

appellant could not be said to be a person in a dominating

position as it was not a murder of an innocent child or a

helpless woman or old or infirm person. Though it was the

case of the prosecution that the appellant was having

criminal record, this Court noticed that it did not find any

previous conviction having been proved against him. The

original intention was theft and on account of the deceased

having been awakened, the accused took the extreme step

of eliminating both of them for fear of being detected. This

Court further observed that it cannot be said that the

appellant alone had committed the murder because he

discovered the murder weapon. It was not clear as to who

was the actual author of the injuries. This Court noted that

the appellant was languishing in death cell for more than six

years. That would also be one of the mitigating

129

Page 130 circumstances. In the circumstances, death sentence

awarded to the appellant was converted into life

imprisonment.

72.In Amit, the complainant lodged FIR alleging that while

his mother and wife were present in the house, the appellant

came there, took away his 3 year-old daughter on the

pretext that he would give her biscuits. However, neither the

appellant nor the complainant’s daughter returned.

Investigation disclosed that the appellant had kidnapped the

girl. She was subjected to unnatural offence and rape. She

was hit on the head and was strangulated. The trial court

convicted the appellant, inter alia, under Section 302 of the

IPC and sentenced him to death. The High Court confirmed

the death sentence. On appeal, this Court set aside the

death sentence. This Court observed that the appellant was

a young person aged about 28 years. There was no evidence

to show that he had committed such offences earlier. There

was nothing on record to show that he was likely to repeat

similar crimes in future. This Court expressed that given a

130

Page 131 chance, the appellant may reform over a period of years.

This Court sentenced the appellant to life imprisonment and

observed that life imprisonment shall extend to the full life of

the appellant, but subject to any remission or commutation

at the instance of the Government for good and substantial

reasons.

73.We may also refer to Mohinder Singh v. State of

Punjab

28

, where the appellant, who was serving 12 years’

rigorous imprisonment for having raped his own daughter

was released on parole. While on parole, he murdered his

wife and the daughter, whom he had raped earlier, by giving

repeated axe-blows on their heads. His other daughter

saved herself by hiding in a room and bolting the same from

inside. The trial court convicted him under Section 302 of

the IPC and sentenced him to death. The High Court

confirmed the death sentence. This Court observed that the

appellant was a poor man and was unable to earn his

livelihood since he was driven out of his house by the

28

(2013) 3 SCC 294

131

Page 132 deceased-wife. It was his grievance that the deceased-wife

was adamant that he should live outside and that was the

reason why the relations were strained. The appellant was

feeling frustrated because of the attitude of his wife and

children. This Court also took into consideration the fact that

the appellant did not harm his other daughter who was there

even though he had a good chance to harm her. This Court

observed that after balancing the aggravating and mitigating

circumstances emerging from the evidence on record, it was

not persuaded to accept that the case can appropriately be

called the rarest of rare case warranting death penalty. This

Court also expressed that it was difficult to hold that the

appellant was such a dangerous person that he will endanger

the community if his life is spared. The possibility of

reformation of the appellant could not be ruled out. In the

circumstances, this Court converted the death sentence into

life imprisonment. However, after referring to its judgment in

Sangeet & Anr. v. State of Haryana,

29

this Court

observed that there is a misconception that a prisoner

29

(2013) 2 SCC 452

132

Page 133 serving life sentence has an indefeasible right to release on

completion of either 14 years’ or 20 years’ imprisonment. A

convict undergoing life imprisonment is expected to remain

in custody till the end of his life, subject to any remission

granted by the appropriate Government under Section 432 of

the Cr.P.C. which in turn is subject to the procedural checks

mentioned in the said provision and further substantive

checks in Section 433-A of the Cr.P.C. This Court, therefore,

sentenced the appellant to undergo rigorous imprisonment

for life, meaning thereby imprisonment till the end of his life

but subject to any remission granted by the appropriate

Government satisfying the conditions prescribed in Section

432 of the Cr.P.C. and further substantive checks under

Section 433-A of the Cr.P.C. by passing appropriate speaking

order.

JUDGMENTS RELIED ON BY THE RESPONDENT-STATE .

74.In Mahesh, five persons were murdered because of

marriage of a lady of a higher caste with a Harijan boy. They

were axed to death in an extremely brutal manner. After the

133

Page 134 murders, the accused tried to break open the door of the

room where two of the prosecution witnesses were hiding to

save themselves and they left the place only when the door

could not be opened. The accused were convicted under

Section 302 of the IPC and sentenced to death by the trial

court. While confirming the death sentence, this Court

observed as under:

“It will be a mockery of justice to permit these

appellants to escape the extreme penalty of law

when faced with such evidence and such cruel

acts. To give the lesser punishment for the

appellants would be to render the justicing system

of this country suspect. The common man will lose

faith in courts. In such cases, he understands and

appreciates the language of deterrence more than

the reformative jargon. But this does not mean

that the Court ignore the need for a reformative

approach in the sentencing process. But here,

there is no alternative but to confirm the death

sentence.”

75.In Dhananjoy Chatterjee , the appellant had raped

and murdered a young 18 year-old girl in her flat in a society

where he was working as a security guard. The trial court

found him guilty, inter alia, under Sections 302 and 376 of

the IPC. The High Court confirmed the sentence of death.

134

Page 135 This Court also confirmed the death sentence by observing

that the case falls in the category of rarest of rare cases.

This Court observed as under:

“The faith of the society by such a barbaric

act of the guard, gets totally shaken and its

cry for justice becomes loud and clear. The

offence was not only inhuman and barbaric

but it was a totally ruthless crime of rape

followed by cold blooded murder and an

affront to the human dignity of the society.

The savage nature of the crime has shocked

our judicial conscience. There are no

extenuating or mitigating circumstances

whatsoever in the case. We agree that a real

and abiding concern for the dignity of human

life is required to be kept in mind by the

courts while considering the confirmation of

the sentence of death but a cold blooded

preplanned brutal murder, without any

provocation, after committing rape on an

innocent and defenceless young girl of 18

years, by the security guard certainly makes

this case a “rarest of the rare” cases which

calls for no punishment other than the capital

punishment and we accordingly confirm the

sentence of death imposed upon the

appellant for the offence under Section 302

IPC.”

76.In Molai, a 16 year-old girl was preparing for her class

10

th

examination at her house. Both the accused took

advantage of her being alone in the house and committed

135

Page 136 rape on her. Thereafter, they strangulated her by using her

undergarment and took her to the septic tank along with the

cycle and caused injuries with a sharp-edged weapon. Then,

they threw the dead body into a septic tank. The trial court

awarded death sentence to the accused which was

confirmed by the High Court. This Court confirmed the death

sentence observing that there was no mitigating

circumstance, which could justify the reduction of sentence

of death penalty to life imprisonment.

77.In Kheraj Ram, suspecting infidelity on the part of his

wife, the accused-Kheraj Ram killed her, his two children and

brother-in-law. The trial court convicted him under Section

302 of the IPC and sentenced him to death. The High Court

noted that the case rested on circumstantial evidence. The

circumstances were not proved and, therefore, the accused

was entitled to acquittal. On appeal, this Court held that the

prosecution had established its case; that the murder was

committed in a cruel and diabolic manner; the accused did

not act on any spur-of-the-moment provocation; the murder

136

Page 137 was deliberately planned and meticulously executed and

after the incident, the accused smoke chilam with calmness,

which indicated that he had no remorse and he was satisfied

with what he had done. This Court observed that the victims

were two innocent children and a helpless woman. They were

done to death in an extremely gruesome and grotesque

manner. In the circumstances, this Court set aside the order

of acquittal and confirmed the death sentence awarded by

the trial court.

78.In light of the above judgments, we would now ascertain

what factors which we need to take into consideration while

deciding the question of sentence. Undoubtedly, we must

locate the aggravating and mitigating circumstances in this

case and strike the right balance. We must also consider

whether there is anything uncommon in this case which

renders the sentence to life imprisonment inadequate and

calls for death sentence. It is also necessary to see whether

the circumstances of the crime are such that there is no

alternative but to impose death sentence even after

137

Page 138 according maximum weightage to the mitigating

circumstances which speak in favour of the offender.

79.We notice from the above judgments that mere

brutality of the murder or the number of persons killed or the

manner in which the body is disposed of has not always

persuaded this Court to impose death penalty. Similarly, at

times, in the peculiar factual matrix, this Court has not

thought it fit to award death penalty in cases, which rested

on circumstantial evidence or solely on approver’s evidence.

Where murder, though brutal, is committed driven by

extreme emotional disturbance and it does not have

enormous proportion, the option of life imprisonment has

been exercised in certain cases. Extreme poverty and social

status has also been taken into account amongst other

circumstances for not awarding death sentence. In few

cases, time spent by the accused in death cell has been

taken into consideration along with other circumstances, to

commute death sentence into life imprisonment. Where the

accused had no criminal antecedents; where the State had

138

Page 139 not led any evidence to show that the accused is beyond

reformation and rehabilitation or that he would revert to

similar crimes in future, this Court has leaned in favour of life

imprisonment. In such cases, doctrine of proportionality and

the theory of deterrence have taken a back seat. The theory

of reformation and rehabilitation has prevailed over the idea

of retribution.

80.On the other hand, rape followed by a cold-blooded

murder of a minor girl and further followed by disrespect to

the body of the victim has been often held to be an offence

attracting death penalty. At times, cases exhibiting

premeditation and meticulous execution of the plan to

murder by levelling a calculated attack on the victim to

annihilate him, have been held to be fit cases for imposing

death penalty. Where innocent minor children, unarmed

persons, hapless women and old and infirm persons have

been killed in a brutal manner by persons in dominating

position, and where after ghastly murder displaying

depraved mentality, the accused have shown no remorse,

139

Page 140 death penalty has been imposed. Where it is established

that the accused is a confirmed criminal and has committed

murder in a diabolic manner and where it is felt that

reformation and rehabilitation of such a person is impossible

and if let free, he would be a menace to the society, this

Court has not hesitated to confirm death sentence. Many a

time, in cases of brutal murder, exhibiting depravity and sick

mind, this Court has acknowledged the need to send a

deterrent message to those who may embark on such crimes

in future. In some cases involving brutal murders, society’s

cry for justice has been taken note of by this court, amongst

other relevant factors. But, one thing is certain that while

deciding whether death penalty should be awarded or not,

this Court has in each case realizing the irreversible nature of

the sentence, pondered over the issue many times over.

This Court has always kept in mind the caution sounded by

the Constitution Bench in Bachan Singh that judges should

never be bloodthirsty but has wherever necessary in the

interest of society located the rarest of rare case and

exercised the tougher option of death penalty.

140

Page 141 81.In the nature of things, there can be no hard and fast

rules which the court can follow while considering whether an

accused should be awarded death sentence or not. The core

of a criminal case is its facts and, the facts differ from case to

case. Therefore, the various factors like the age of the

criminal, his social status, his background, whether he is a

confirmed criminal or not, whether he had any antecedents,

whether there is any possibility of his reformation and

rehabilitation or whether it is a case where the reformation is

impossible and the accused is likely to revert to such crimes

in future and become a threat to the society are factors

which the criminal court will have to examine independently

in each case. Decision whether to impose death penalty or

not must be taken in light of guiding principles laid down in

several authoritative pronouncements of this Court in the

facts and attendant circumstances of each case.

82.We must also bear in mind that though, the judicial

proceedings do take a long time in attaining finality, that

would not be a ground for commuting the death sentence to

141

Page 142 life imprisonment. Law in this behalf has been well settled in

Triveniben. The time taken by the courts till the final

verdict is pronounced cannot come to the aid of the accused

in canvassing commutation of death sentence to life

imprisonment. In Triveniben, the Constitution Bench made

it clear that though ordinarily, it is expected that even in this

Court, the matters where the capital punishment is involved,

will be given top priority and shall be heard and disposed of

as expeditiously as possible but it could not be doubted that

so long as the matter is pending in any court, before final

adjudication, even the person who has been condemned or

who has been sentenced to death has a ray of hope. It,

therefore, could not be contended that he suffers that mental

torture which a person suffers when he knows that he is to

be hanged but waits for the doomsday. Therefore, the

appellant cannot draw any support from the fact that from

the day of the crime till the final verdict, a long time has

elapsed. It must be remembered that fair trial is the right of

an accused. Fair trial involves following the correct

procedure and giving opportunity to the accused to

142

Page 143 probabalize his defence. In a matter such as this, hurried

decision may not be in the interest of the appellant.

83.We must now examine the present case in light of our

observations in the preceding paragraphs. The appellant

was the State President of the Youth Congress in Delhi. The

deceased was a qualified pilot and she was also the State

General Secretary of Youth Congress (Girls Wing), Delhi. She

was an independent lady, who was capable of taking her own

decisions. From the evidence on record, it cannot be said

that she was not in touch with people residing outside the

four walls of her house. Evidence discloses that even on the

date of incident at around 4.00 p.m. she had contacted PW-

12 Matloob Karim. She was not a poor illiterate hapless

woman. Considering the social status of the deceased, it

would be difficult to come to the conclusion that the

appellant was in a dominant position qua her. The appellant

was deeply in love with the deceased and knowing full well

that the deceased was very close to PW-12 Matloob Karim,

he married her hoping that the deceased would settle down

143

Page 144 with him and lead a happy life. The evidence on record

establishes that they were living together and were married

but unfortunately, it appears that the deceased was still in

touch with PW-12 Matloob Karim. It appears that the

appellant was extremely possessive of the deceased. The

evidence on record shows that the appellant suspected her

fidelity and the murder was the result of this possessiveness.

We have noted that when the appellant was taken to Lady

Hardinge Mortuary and when the dead body was shown to

him, he started weeping. It would be difficult, therefore, to

say that he was remorseless. The fact that he absconded is

undoubtedly a circumstance which will have to be taken

against him, but the same, in our considered view, would be

more relevant to the issue of culpability of the accused which

we have already decided against him rather than the

question of what would be the appropriate sentence to be

awarded which is presently under consideration. The medical

evidence does not establish that the dead body of the

deceased was cut. The second post-mortem report states

that no opinion could be given as to whether the dead body

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Page 145 was cut as dislocation could be due to burning of the dead

body. There is no recovery of any weapon like chopper which

could suggest that the appellant had cut the dead body. It is

pertinent to note that no member of the family of the

deceased came forward to depose against the appellant. In

fact, in his evidence, PW-81 IO Niranjan Singh stated that the

brother and sister-in-law of the deceased stated that they

were under the obligation of the appellant and they would

not like to depose against him. Murder was the outcome of

strained personal relationship. It was not an offence against

the Society. The appellant has no criminal antecedents. He

is not a confirmed criminal and no evidence is led by the

State to indicate that he is likely to revert to such crimes in

future. It is, therefore, not possible in the facts of the case to

say that there is no chance of the appellant being reformed

and rehabilitated. We do not think that that option is closed.

Though it may not be strictly relevant, we may mention that

the appellant is the only son of his parents, who are old and

infirm. As of today, the appellant has spent more than 10

years in death cell. Undoubtedly, the offence is brutal but

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Page 146 the brutality alone would not justify death sentence in this

case. The above mitigating circumstances persuade us to

commute the death sentence to life imprisonment. In

several judgments, some of which, we have referred to

hereinabove, this Court has made it clear that life sentence is

for the whole of remaining life subject to the remission

granted by the appropriate Government under Section 432 of

the Cr.P.C., which, in turn, is subject to the procedural checks

mentioned in the said provision and further substantive

checks in Section 433-A of the Cr.P.C. We are inclined to

issue the same direction.

84.We have already confirmed the conviction of the

appellant for offence punishable under Section 302 of the IPC

and for offence punishable under Section 120-B read with

Section 201 of the IPC. In view of the above discussion, we

commute the death sentence awarded to appellant – Sushil

Sharma to life sentence. We make it clear that life sentence

is for the whole of remaining life of the appellant subject to

the remission granted by the appropriate Government under

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Page 147 Section 432 of the Cr.P.C., which, in turn, is subject to the

procedural checks mentioned in the said provision and

further substantive checks in Section 433-A of the Cr.P.C.

85.Appeal is disposed of in the aforestated terms.

………………………………………… ..CJI

(P. SATHASIVAM )

…………………………………………… ..J.

(RANJANA PRAKASH DESAI )

…………………………………………… ..J.

(RANJAN GOGOI )

NEW DELHI,

OCTOBER 8, 2013.

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