Gaurav vs State Of U.P.
2013 Latest Caselaw 1637 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
Reserved
 
Court No. 46
 
								
 
Capital Appeal No. 3261 of 2007
 

 
Gaurav...........................................................Appellant
 
					Versus
 
State of UP.....................................................Respondent
 
					And
 

 
Reference No. 16 of 2007
 
                                  ************* 
 

 
Hon'ble Amar Saran, J. 

Hon'ble Bachchoo Lal, J.

( Delivered by Hon'ble Amar Saran, J. )

This capital criminal appeal along with the connected death reference arises from the judgment and order dated 03.05.2007 passed by the Additional District and Sessions Judge, Court No. 9 Agra whereby death sentence has been awarded to the appellant Gaurav under section 302 IPC.

We have heard Shri Dilip Kumar, learned counsel for the appellant and learned Government Advocate assisted by Sri Anand Tiwari, AGA for the State and have perused the trial court judgment and record. We have also perused the written submissions filed by the parties.

The prosecution case described in the FIR lodged by the informant, PW 1 Ajay Kumar Garg, was that in the evening of 16.09.2005, his aunt Meera Agrawal, the divorced wife of Vinod Agrawal and her daughter Bheeni Agrawal came to his flat in Pushpanjali Apartments, Agra. Meera Agrawal disclosed that a dispute regarding their Sadabad property, which stood in her name, was to be settled with her son Gaurav, who was to come to their house on the same evening. At about 6.30 PM Gaurav arrived at their residence and asked Meera Agrawal and his sister Bheeni Agrawal to transfer the property in his name. Gaurav asked the informant's wife Smt. Jyoti Agrawal to warm some tea in the kitchen and asked the informant's father Shri Bhagwan, PW 6 to leave the room as he wanted to talk with Meera Agrawal and Bheeni privately. On leaving the room cries were heard by Smt. Jyoti Agrawal and Shri Bhagwan. When they rushed back on the cries they saw Gaurav assaulting Meera Agrawal and Bheeni indiscriminately with a knife and declaring that he was permanently resolving the dispute of the case and property. On the alarm of Smt. Jyoti, the Chaukidars of Pushpanjali Apartments, Sampat and Kalicharan arrived, who witnessed the incident and caught hold of Gaurav red handed on the spot. Smt. Meera and Bheeni were admitted to Pushpanjali Hospital in a critical condition. Smt. Jyoti telephoned the informant at his shop, who reached his house and obtained information of the incident and then he proceeded to the hospital where he found Bheeni Agrawal and Meera Agrawal in a very serious condition. The informant lodged the report of this incident (Ext. Ka 1) at 8.15 PM on 16.09.2005 at case crime No. 456 of 2005 at PS Hariparwat, district Agra.

PW 9, S.I. Ramesh Chandra Yadav commenced the investigation of the case on the basis of the report. He recorded the statements of the informant Ajay Kumar Garg and his father Shri Bhagwan. On their pointing out, he also prepared the site plan (Ext. Ka 6). On the same day two bloodstained knives were recovered from near the wall of the central lobby of the flat in the presence of Sanjeev Kumar and Raj Narain. He also collected plain earth and bloodstained earth after breaking the flooring of the room. On 18.9.2005, the investigating officer recorded the statement of Smt. Jyoti Garg and she handed over a bag containing files which had been brought by the accused regarding a compromise deed and other papers to the investigating officer. One knife was also recovered along with those documents.

After completion of the investigation, PW 8, SI Raghuraj Singh, the second investigating officer submitted the charge sheet (Ext. Ka 19).

The post-mortem on the corpse of Meera Agrawal was conducted at 3.00 P.M. on 17.9.2005 by PW 3 Dr. S.P. Jindal. The same doctor also conducted autopsy on the body of Bheeni Agrawal at 3.30 PM on 17.9.2013.

The post-mortem of Meera Agrawal revealed the following ante mortem injuries:

1.Incised wound 3 cm x 1 cm right side chest 12.00 cm lateral to right nipple at about 8.30 O' clock position.

2.Incised wound 1.5 cm x 0.5 cm on right side chest 6.00 cm below right nipple at 5 o'clock position.

3.Incised wound 2.5 cm x 1.0 cm on right side chest below medial end of right chest 2.00 cm in the interior part of collar bone.

4.Incised wound 1.00 cm x 0.5 cm on right side of chest 1 cm below the collar bone.

5.Incised wound 1.00 cm x 0.5 cm left side chest 8.00 cm below the nipple.

6.Incised wound 2 cm x 1 cm on right side nipple 2.5 cm below right ear

7.Linear abrasion 3.00 cm long left side chest, 6.00 cm medial to left nipple.

8.Linear abrasion5.00 cm long on abdomen, 7.00 cm above umbilicus

9.Linear abrasion7.00 long left side chest lower part, horizontally placed.

10. Incised wound 0.5 cm x 0.3 cm in front of right index finger, on proximal part.

11.Incised wound 1.0 cm 0.5 cm on back of right thumb, proximal part.

12.Incised wound 1.00 cm x 0.5 cm on right hand in the grove between between thumb and index finger.

13. Incised wound 1.0 cm x 0.2 cm on front and lateral aspect of right middle finger distal phalynx.

14.Incised wound 1.2 cm x 0.5 cm on back of left forearm, mid part.

15.Abrasion 1.o cm x 0.5 cm on back of left forearm lower part.

The post-mortem of Bheeni Agrawal revealed the following ante mortem injuries:

1.Incised Wound 1.5 cm x 0.8 cm on right side abdomen x cavity deep 5.00 cm lateral umbilicus.

2.Incised wound 1.5 cm x 0.4 cm on left side chest 5.00 cm below left clavicle.

3.Incised Wound 1.00 cm x 0.5 cm muscle deep on left side chest 1.0 cm below injury No. 2.

4.Incised Wound 1.0 cm x 0.5 cm x cavity deep besides left nipple.

5.Incised Wound 3.00 cm x 0.5 cm cavity deep on left side chest 9.00 cm below left nipple.

6.Incised Wound 1.0 cm x 0.4 cm x cavity deep on left side abdomen.

7.Incised Wound 1.5 cm x 0.5 cm on left palm at the base of left thumb.

8.Incised Wound 1.5 cm x 0.5 cm in front of left thumb proximal part.

9.Incised Wound 2.5 cm x 1.0 cm on posterior medial aspect of left forearm, lower part.

10.Incised Wound 1.0 cm x 0.5 cm in front of left arm, lower part.

11.Incised Wound 1.0 cm x 0.5 cm on left side back of abdomen middle part,laterally. Abrasion 1.0 cm x 1.0 cm on left side abdomen lower part, laterally .

The prosecution examined the informant PW 1, Ajay Kumar Garg, PW 2, Smt. Jyoti Garg, wife of the informant and PW6 Shri Bhagwan Garg, the father of the informant as witnesses of fact, out of whom PWs 2 and 3 were alleged to have witnessed the incident. P.W. 3, Dr. S.P. Jindal, who conducted the post-mortem examinations. PW 4, Vijay Agrawal, who was a witness of the inquests of Bheeni Agrawal and Meera Agrawal.

P.W. 5, Sampat Singh, Chaukidar, who arrived at the spot immediately after the incident and who is said to have apprehended the appellant Gaurav, when he was standing adjacent to a wall. He deposed that some person brought two knives which were said to have been recovered from Gaurav. He gave those knives to the police. PW 10, Chauki in-charge Jitendra Singh Dixit, who conducted the inquest on the dead body of Bheeni Agrawal on the direction of SI Ramesh Chandra Yadav and subsequently he carried out the inquest on the body of Meera Agrawal on the same day. He then sent the body for post mortem through PW 7, Constable Om Prakash.

CW 1, Sudhish Kumar, brother-in-law of Meera Agrawal has been produced as a court witness for proving the will made by Meera Agrawal (Ext. Ka 10). She had given a copy of this will to Smt. Rama, her sister and wife of Sudhish Kumar.

In his statement under section 313 Cr.P.C. Gaurav denied the prosecution case and stated that the police has lodged a false report. His defence was that the informant and his companions murdered his mother and sister for grabbing their money and also caused injuries to the appellant after falsely lodging the report in collusion with the police.

Two defence witnesses namely H.C. R.K. Pandey and Dr. Hansraj Singh were examined by the defence as DWs 1 and 2.

DW 1, Raj Kishore Pandey, deposed that he was the Head Constable of PS Hari Parwat on the date of incident. On that date the appellant Gaurav was brought to the police lock up. This witness was given Mazroobi Chitthi signed by the in-charge of the police station for taking Gaurav for medical examination. In the night of 16.9.2005 he took Gaurav to district hospital and after mid-night his injuries were examined. After medical examination he was given back the medical report (Ext. Kha 1) which he brought to the police station along with the appellant.

DW 2, Hanshraj Singh examined Gaurav on 16.9.2005 at about 12.00 mid-night. He was 26 years in age and had the following injuries:

" 1. lacerated wound 2 cm x 0.5 cm right side head and forehead 3 cm above right eyebrow middle part along with abraded swelling an area of 6 cm x 5 cm around the wound. X-ray advised.

2. Blackish eye right.

3. Lacerated wound 1 cm x 0.5 cm x membrane deep left side lower lip medical part.

4. Lacerated would 1.5 cm x 0.5 cm x skin deep lateral aspect left index finger proximal phalynx.

5. Red abrasion 1 cm x 1 cm dorsal of left thumb upper part.

6. Multiple red abrasion in an area 8 cm x 7 cm left side back on neck middle and lower part.

7. Multiple red contusions in an area 10 cm x 8 cm left should back part.

8. Multiple red abraded contusions in an area 22 cm x 18 cm top of right shoulder scapular region and upper part of right side back on chest.

9. Multiple red abraded contusions in an area 13 cm x 8 cm left side back of chest lower and middle part.

10. Multiple red abrasions in an area 6 cm x 3 cm lateral aspect of left knee.

11. Multiple red abrasions 10 cm x 2 cm. Lateral aspect right thigh middle part.

12. Multiple red abrasions 4 cm x 2 cm. Lateral aspect of right knee.

13. Multiple red abrasions 9 cm x 3 cm back on left forearms middle and upper part."

The informant, PW 1, Ajay Garg deposed that at about 6.45 PM on 16.09.2005 when he was in his shop, he received a phone call from his wife Jyoti Garg that Gaurav had come to their house and was assaulting his aunt Meera Agrawal and her daughter Bheeni Agrawal (sister of Gaurav). This witness then reached his home where he found that Meera Agrawal and Bheeni Agrawal had been taken to Pushpanjali Hospital. The crowd had caught hold of Gaurav and he was detained there in the house. His wife told him that Meera Agrawal and Bheeni Agrawal had come to their house at 6.30 PM and they were saying that Gaurav would be coming for settling the dispute with them. About half an hour later, Gaurav had come. He had asked Jyoti Agrawal to warm the tea. He asked Bhagwan Garg to leave the room as he wanted to talk privately to Meera Agrawal. When Bhagwan Garg left the room, they had heard cries. On rushing back into the room, Jyoti and Bhagwan Garg saw Meera Agrawal and Bheeni Agrawal bleeding badly and Gaurav was carrying a knife. Jyoti started shouting and screaming, then Chaukidar Sampat Singh and other residents of the flats arrived there, who apprehended Gaurav. When this witness reached Pushpanjali Hospital, it was learnt that Bheeni Agrawal had already died and that Meera Agrawal was counting her last breaths. He thereafter lodged the FIR at police station Hari Parwat, district Agra and gave a statement to the investigating officer. When he returned to the hospital, he learnt that his aunt Meera Agrawal had also succumbed to her injuries.

PW 2, Smt. Jyoti stated that on 16.9.2005 at about 6.30 PM her husband's aunt Meera Agrawal and her daughter Bheeni Agrawal had come to their house. At that time her father-in-law, mother-in-law and grand-mother-in-law were also present in the house. At about 7.00 PM Gaurav arrived there. They were talking about some property matter. She went to the kitchen to get some tea. After some time Gaurav approached her to get the tea warmed. Soon thereafter she heard the cries of Meera Agrawal. She rushed to the room where she saw that the door was barred. She pushed open the door and found Gaurav assaulting Meera Agrawal and Bheeni Agrawal. When they tried to save Meera Agrawal and Bheeni Agrawal, then Gaurav brandished his knife towards them. Then she started screaming "save, save" and started calling for the Chaukidar. On the cries many of the residents of the society and the Chaukidar arrived there, who apprehended Gaurav. Even then Gaurav was constantly waving his knife. Meera Agrawal and Bheeni Agrawal were taken to the Pushpanjali Hospital. She phoned her husband, who came back from his shop and went to lodge the report.

PW 6, Bhagwan Das deposed that on 16.9.2005 between 5.00-5.30 PM his sister Meera Agrawal and her daughter Bheeni Agrawal came to his flat at 203-A Pushpanjali Extension. Meera Agrawal and Bheeni Agrawal informed him that there was a dispute with Gaurav over the Sadabad property and for that purpose Gaurav would be coming to talk to them. At about 6.00-6.15 Gaurav arrived at his house. Gaurav asked him to go to another room and asked Jyoti to prepare tea. Jyoti went to the kitchen to make tea. Gaurav followed her and picked up a knife from the kitchen. He asked Meera Agrawal to sign on some papers otherwise he would finish off the dispute on the same day and he then began to assault the two deceased with two knives in both hands. His sister called out "Bhaiya, Isne mara, Bachao." Then he rushed into the room. Jyoti had also rushed there. He and Jyoti ran out of the room raising an alarm. On their cries the Chaukidars Sampat Singh and Kalicharan arrived there. These people caught hold of Gaurav along with his knives. By then, a lot of people had assembled there. Gaurav was taken downstairs and Meera Agrawal and Bheeni Agrawal were taken to the hospital in an injured condition. Ajay lodged the report of this incident after he was called from his shop at Sanjay Palace by his wife on the telephone.

Learned counsel for the appellant argued that the prosecution has failed to prove the motive against the appelant as the property which belonged to the grand-father of the appellant had already been partitioned between the deceased and the appellant and the arbitration award had become the Rule of the Court. It is submitted that the alleged refusal of the deceased to sign the compromise proposal brought by Gaurav could not have provided any motive to kill his mother and sister. The story that Jyoti handed over the bag containing papers in which a knife was lying to the investigating officer on 18.9.2005 was cooked up. Gaurav is not said to have used that knife, which he had allegedly brought for killing the deceased persons, who did not agree to sign the papers and he instead picked up two vegetable cutting knives from the kitchen with which he assaulted Meera Agrawal and Bheeni Agrawal. This version could not be believed. The eye-witnesseros Jyoti and Bhagwan are partisan witnesses and they had tried to conceal the actual incident to save Ajay Garg, who in all probability committed the murder of Meera Agrawal and Bheeni Agrawal. No blood stains were found on the floor of the bedroom where the incident took place. Even though when PW 2, Jyoti opened the door, she claims to have seen injuries on the neck of Bheeni and blood stains on the wall, she does not recollect whether she showed the blood stains on the floor or the wall to the police on their arrival. PW 6, Bhagwan Garg also did not see any blood on the floor. The investigating officer also did not found any blood on the room, but the blood was found on the floor of the central lobby which is shown as point "X" on the site plan. Hence the deceased was not assaulted in the room whose dimension were only 10'x14' dimensions. Moreover, no blood was found on the bed or bedsheets etc.

It is also contended that the assault on the two victims and their being saved by Jyoti, Bhagwan, Mohini and Radha Devi was not believable as none of these persons have received any injury in attempting to save the two deceased, even though PW 6, Bhagwan Garg specifically stated that he stopped Gaurav from assaulting his sister and niece. He further stated that Gaurav did not assault him when he caught hold of him and dragged him to the Verandah.

PW 2, Jyoti had also stated that she tried to save Buaji and Bheeni, but Gaurav threatened them with a knife, but in order to save Buaji and Bheeni she caught hold of Gaurav. Her father-in-law caught hold of Gaurav and dragged him to the lobby, but no one has received any injury nor were their clothes found bloodstained.

It is further argued that there was no explanation of the injuries found on the body of the appellant Gaurav by the two witnesses PWs 2 and 6. PW 2 Jyoti had stated that the Chaukidar dragged the appellant out who was assaulting Bheeni, but she could not see whether the Chaukidar assaulted Gaurav or not, but both the Chaukidars had caught hold of Gaurav. She has seen the appellant in an injured condition and he had fainted due to his injuries. PW 2 on her own stated that the society persons had assaulted the appellant Gaurav causing him to faint. She could not recall whether Gaurav fainted on the floor where the flat was located or downstairs, but she has not mentioned this fact to her husband. PW 6, Bhagwan Garg had not stated a word about any persons of the society or the Chaukidar causing any injury to the appellant. He had even denied seeing the appellant in an injured condition.

PW 5 Sampat Singh has stated that on his arrival with Kalicharan at Flat No. 203, Gaurav was found lying by the side of the kitchen wall in an injured condition, whereas the deceased was lying on the floor of the room.

It was further argued that the lacerated wounds on the head of the appellant and contused swellings around the eyes and other injuries were not explained by the prosecution, but the accused's versions stands corroborated by the medical evidence that on entering in the flat he was assaulted by unknown persons because of which he became unconscious. The accused was ignorant as to how his sister and mother were killed. However, he nurtured a suspicion that Ajay might have been instrumental in killing them.

It is further contended that the investigation was not fair as there was overwriting in the timing of registration of the FIR. The said overwriting was apparent in the inquest. This fact was admitted by PW 7, Constable Om Prakash, PW 9, SI Ramesh Chandra Yadav, PW 10, Jitendra Dixit and PW 11, Ramveer Sharma. Therefore, it was argued that the FIR was not registered at the time alleged.

It is also contended the one Durgvijay Singh, advocate, a close friend of the complainant was present at the spot. He also accompanied the complainant when he lodged the report. His son Chaitanya was the business partner of the complainant Ajay and it was, therefore, argued that the report has been lodged after obtaining legal advice.

It is argued that the medico legal record of Pushpanjali Hospital has deliberately been concealed and it was not clear as to which persons brought the two lady victims to the hospital.

The trial court had wrongly placed reliance on a letter allegedly written by the appellant Gaurav from the district jail, Agra addressed to Sudhish Kumar (Gaurav's Mausa) in which Gaurav had complained to Sudhish Kumar that he had not used his good offices for settling the dispute with his mother and he expressed regret for this mistake. The trial court had perversely considered this letter to be a written confession of Gaurag by recording a finding that the letter "G" in the so-called letter appeared to be similar to "G" in the signature of Gaurav made in the trial proceedings. This finding was recorded without obtaining any handwriting expert opinion. It is contended that the Court has wrongly placed reliance on the testimony of CW 1, Sudish Kumar, who is a highly interested and partisan witness being a close relative of Ajai Garg. It is argued that Ajay Garg has deliberately concealed his presence on the spot and falsely claimed to have reached the spot subsequently.

Learned counsel for the appellant further contended that PW 8, SI Raghuraj Singh recorded the statements of Ajay Garg's parents namely Smt. Mohini and Sri Bhagwan, who admitted the presence of Ajai on the spot by stating that Gaurav was involved in discussing the dispute with his mother in the presence of Ajai Garg, but due to the mistake of the counsel, the factum of presence of Ajai Garg could not be suggested to Shri Bhagwan by inviting his attention of his previous statement recorded under section 161 Cr.P.C. by Pw 8 Raghuraj Singh, the second investigating officer. Hence, an application under section 391 Cr.P.C. had been moved for re-examining Bhagwan Garg and Smt. Mohini for establishing the presence of Ajai Garg at his house on the date and time of incident.

Learned Government Advocate, on the other hand filed written submissions, in which it is mentioned that the presence of witnesses PW 2 and PW 6 are duly proved by the prosecution and has not been questioned by the defence. Being a housewife, the presence of PW 2, Smt. Jyoti in the house was natural and the presence of PW 6, Shri Bhagwan in the house was also natural. The minor contradictions in the testimony of PWs 2 and 6 are natural and on the basis of such minor contradictions the entire case cannot be doubted. The statements of witnesses are corroborated by other ocular and documentary evidence on record. The eyewitnesses have no reasons to falsely implicate their relative for the murder of other relatives.

It is contended that the motive for committing the offence was specifically mentioned in the FIR and in the statements of the witnesses as well as in the documentary evidence and the same was duly proved. Except the appellant Gaurav, no one had any motive to commit the murder of Gaurav's real mother and sister. After their deaths, he was to be the only beneficiary of their property. The litigations between the parties were admitted by the appellant in his examination under section 313 Cr.P.C. It is further submitted that a hand written compromise deed was also recovered along with a plastic bag which was carried by the appellant on the date of incident.

It is further submitted that the injuries received by the accused were simple in nature except injury No. 1, which is a lacerated wound. The accused was brought by the police to the hospital for his examination after his arrest on the spot. Although the injuries of the accused were not narrated in the FIR, but the same have been duly explained by the informant and also by PW 2 Jyoti. The contention that the informant was present at the spot at the time of incident and did not reach there after receiving the call, was not challenged, or disputed in any suggestion by the defence. No witnesses were cross-examined to this effect. At this stage, the defence wanted to set up a new case which was not put to the witnesses.

It is further submitted that the nature of injuries of the deceased persons fully corroborate the case of the prosecution as well as the statements of PWs 2 and 6. PW 5, Sampat, the Chaukidar has not fully supported the prosecution case, but he admitted the time of incident, the two injured (deceased) were lying on the spot, the accused was also present on the spot, the injured (deceased) persons were admitted in Pushpanjali Hospital by the society members of the flat and that the accused was arrested by the police on the spot on the same day. It was open to the Court to utilize the dependable part of that evidence, which is found to be acceptable and duly corroborated by some other evidence on record.

It is submitted that so far as the application under section 391 Cr.P.C. is concerned, the Hon'ble Apex Court by its order dated 13.4.2009 passed in Criminal Appeal No. 719 of 2009 has observed that the object of section 391 Cr.P.C. is not to fill up lacuna, but to sub-serve the ends of justice and the power for seeking additional evidence should not operate in a manner prejudicial to the prosecution or the defence. Witnesses PWs 1, 2 and 6 have positively stated that the informant was not present in the house at the time of incident and the witnesses and were not challenged on this point in their cross-examinations.

It is also stated that PWs 2, 5 and 6 have also stated that the injured (deceased) were admitted in the Pushpanjali Hospital by the members of the society. This fact was not disputed by the defence, hence allowing the application under section 391 Cr.P.C. at this stage was not proper.

So far as the absence of blood marks inside the room was concerned, it is pointed out that the blood stains were collected by PW 9 from the central lobby of the house which was adjacent to the room where the incident had started. Initially the assault was made in the room, but subsequently the deceased persons were further assaulted in the central lobby of the house. In fact, the central lobby as well as room were not different places and both were closely interconnected and adjacent to each other. Therefore, the absence of blood in the room has no serious repercussions. In any case, minor defects in the investigation, provide no ground for discarding the prosecution version.

The prosecution version was that two knives were used by the appellant for committing the murders. PW 9 has also prepared a recovery memo of two bloodstained knives from the place of incident on the date of incident. Under what mental conditions and circumstances the two so called kitchen knives were used by the appellant for committing the murder and why the one knife carried by the appellant was not used, were facts in the special knowledge of the appellant which could only be explained by him.

It is also submitted by the learned GA that the informant and his family members had no prior information regarding the meeting of the deceased with the accused. This fact was not disputed by the defence, as such, the case set up by the defence that the informant and his family members have killed the deceased persons and injured the accused-appellant in a pre-planned manner, is without any basis. It is also admitted by the defence that after the incident, the deceased persons were taken to Pushpanjali Hospital by the members of the society and as such the submission of the defence regarding suppression of the record of Pushpanjali Hospital was without any basis.

No suggestion was given to the informant or his family members regarding any hindrance to the attempted compromise between the deceased and the accused and as such the submission that the crime was committed because of the proposed compromise between the parties at the instance of the informant Ajay Garg has no basis.

After the incident the accused has neither made any complaint nor lodged any first information report in respect of the murder of his own mother and sister. The conduct of the accused subsequent to the crime, is relevant under section 8 of the Evidence Act coupled with other circumstances proved by the prosecution. After the incident the accused was arrested on the spot and two bloodstained knives were also recovered from the place of incident on the date of incident. The accused has not received any fatal injury on any part of his body. As per the case setup by the defence, if the assault has been made by some other persons, then the assailants would have no occasion to leave the accused-appellant who would ordinarily have inherited the property after the murders of his mother and sister.

It was further submitted that on the facts of this case, the death sentence was the only proper sentence for the appellant.

So far as the submissions of the learned counsel for the appellant that the appellant could have no motive to commit the murder because the property had already been partitioned between the deceased and the appellant and the arbitration award had become the rule of the Court, it may be observed that simply because an agreement is said to have become a rule of the Court on the basis of an award, provides no reason for presuming that both the parties have consented to the agreement as one or the other party could easily nurse a grievance or resentment against the settlement.

Here in the present case where the appellant is said to have brought a written compromise agreement, which was present in his bag along with a knife which he may have planned to use to compel the two deceased, his mother and sister to agree to his version of the settlement, but their having rejected the proposal, in a fit of rage the appellant might have committed the two murders. After the deaths of the appellant's mother and sister only the appellant Gaurav would normally have inherited their properties, as he was the only beneficiary remaining. This was also a good reason for discarding the belated version of the accused appellant that Ajay Garg might have been instrumental in the murder of his aunt and cousin sister. If Ajay had chosen to directly murder or to get the two deceased murdered, then he would have no reason to spare Gaurav, who would have been an injured eye witness to the murder. Gaurav would also then have lodged a report against Ajay or the unknown assailants at some stage. It was also intrinsically unnatural that Ajay would have invited the two deceased and Gaurav to his house for the purpose of the crime. Hired assailants of Ajay would never have used the two kitchen knives for the crime. The knife and the bag containing the transcribed agreement would not have been handed over by Jyoti to the police the next day. It would be too much to expect that the said material was also created for fabricating this case against the appellant. We think therefore that this version that Ajay had got this crime committed is clearly an imaginary plea raised belatedly by the appellant to buttress his weak and implausible defence.

For the same reason his attempt to suggest in this Court that Ajay was present at the time of incident and he has falsely concealed his presence at the time of incident is again a false and belated plea with no substance as is his prayer to get the I.O. summoned at this stage.

Significantly, CW 1, Sudish Kumar, who is the brother-in-law of the deceased Meera Agrawal, has even proved the will made by Meera Agrawal (Ext. Ka 10). According to this will the two properties (shops) which fell to the share of the testator the deceased Meera Agrawal, at the time of her divorce with her husband she was leaving behind to her daughter, the other deceased Bheeni Agrawal. The will also mentions that the appellant did not follow her wishes and his conduct was not proper and he was not even allowed to participate in her funeral ceremony etc. which was to be carried out by Meera's daughter Bheeni Agrawal. This does indicate the background of the animosity between the appellant and the deceased. Therefore, the learned Government Advocate is right in his submission that none else could have a motive for committing the murders of the two ladies.

In any case, the law is clear that when the eyewitness account and other evidence against an accused is clear and cogent, then the issue of motive looses importance.

We also think that mere non-user of the knife, which was lying in the bag of Gaurav and instead the user of two vegetable cutting kitchen knife, provides no ground for discarding the evidence of two witnesses, who were the residents of the house. How an accused person reacts and what course of action he chooses to adopt at the moment of the crime is known only to him. At the time when the quarrel started between the deceased and the appellant and when the appellant assaulted the two deceased, the witnesses PWs 2 and 6 were not present in the room. It could not be ruled out that in the course of the heated discussion the appellant may have rushed to the kitchen and brought those kitchen knives with which he assaulted both the deceased persons swaying both his arms, when the witnesses, i.e. PW 2 Smt. Jyogi and PW 6, Bhagwan Garg arrived and tried to catch hold of him to save the two ladies.

We also think that undue importance has been given by the learned counsel for the appellant as to why these two persons did not received any injury. If the appellant was targeting his attack on the two deceased persons, his entire focus was on the two deceased persons his mother and sister with whom he had the property dispute and he may not have been interested in assaulting these intervening witnesses, who were trying to separate him from his targeted victims.

It was rightly pointed out by the learned Additional Government Advocate that absence of blood inside the bed room where the quarrel started, which was again an argument vehemently raised by the learned counsel for the appellant, and its presence in the central lobby was not fatal for the prosecution. If the quarrel has erupted between the parties in which the appellant was trying to assault the two deceased there was bound to be some motion and if in the course of quarrel, the assault which may have started in the bedroom, but which may have continued in the adjacent central lobby, the mere absence of blood in the bedroom and its presence in the central lobby was not very material as both the places were interconnected and adjacent to each other. In any case it was even possible that the investigating officer may have failed to notice some drops of blood in the room as the same may have been rubbed off by the feet of the members of the society and the Chaukidars, who rushed to that place after the alarm, and at best it could only be described as a minor defect in the investigation, which provided no ground for discarding the prosecution case in its entirety.

There is no substance in the argument of the learned counsel for the appellant that there is no explanation of the injuries on the body of the appellant as it has come in the evidence of PW 2, Smt. Jyogi that the society persons had in fact assaulted Gaurav causing him to faint. It is not material whether she had volunteered this information herself or had been asked questions about this issue. She has simply stated that she did not see whether the Chaukidars had assaulted Gaurav but she only mentioned that both the Chaukidars had caught hold of Gaurav. She was also not clear whether Gaurav became unconscious on the upper floor or when he was taken down. When an incident of this kind against two lady visitors of a flat resident takes place, where the accused is immediately apprehended, in such a situation assault on the accused by the persons present of the flat society present is very natural. Here we have noted that Smt. Jyoti mentioned in her testimony that Gaurav had been assaulted by the society members. Also we find only simple injuries other than only one lacerated injury on the appellant. It was not very material if PW 6, Bhagwan Garg had not noticed the injuries on Gaurav because of the manner in which he could have received the injuries.

Again not much would turn on the fact that Gaurav was lying in an injured condition by the side of the kitchen wall or on the floor, such minor contradictions and discrepancies on the manner in which the incident has taken place are very natural. Rather the absence of such minor contradictions and discrepancies would have suggested that the evidence was tutored, because if the entire evidence was exactly of the same kind, then the Court could have some reason to presume that the witnesses were tutored to depose what they were stating.

The contention that Ajay was present in the house and he was in the shop and that he has falsely concealed his presence and he might have been instrumental in getting his mother and sister killed seems to be an unnatural suggestion. No suggestion was even given to any of the witnesses that Ajay was present in the house when the incident took place. It would be wholly improper to permit the learned counsel for the appellant to take such a plea at this stage and even seek to re-examine PW 8, SI Raghuraj Singh and also to examine Smt. Mohini and to re-examine Bhagwan Garg as they are said to have admitted the presence of Ajay on the spot for drawing their attention to some stray lines in their previous statements given to the investigating officer, in the case diary, which cannot be read, wherein they are supposed to have stated that Gaurav was involved in discussing the dispute with her mother in the presence of Ajay. In this connection learned Government Advocate has rightly pointed out that an order dated 21.8.2008 which was passed by an earlier Bench for summoning Kalicharan who was one of the chaukidars who had apprehended Gaurav and calling for the records of Pushapanjali hospital in exercise of powers under section 391 Cr.P.C was set aside by the Supreme Court in Criminal Appeal No. 719 of 2009, (arising out of SLP (Crl.) No. 7576/2008 by its order dated 13.4.2009 observing that cogent reasons were absent for requiring the production of additional evidence and normally evidence is required to be adduced in the trial court, and that the power under section 391 Cr.P.C for producing additional evidence is to be exercised exceptionally with circumspection to meet the ends of justice and not in normal course for filling up lacunae and that "Admission of additional evidence should not operate in a manner prejudicial to the prosecution or the defence." The High Court's order was considered to be suffering from the vice of non-application of mind.

Having given our serious consideration to the issue we are not satisfied that any reasonable ground exist or that the accused have laid any foundation either for examining Kalicharan who appeared to already having been won over by the defence as he had filed an affidavit in favour of the convict stating that he had not seen the evidence and was not an eye witness. Likewise, no useful purpose would have been served by producing the record of the private Pushpanjali hospital attached to the society, where the society members had taken the two deceased who were then injured. Judicial notice may be taken of the fact that such private hospitals do not make entries or preserve records in the same manner as government hospitals, but mainly they are concerned with trying to save the life of the patient who is brought to the hospital. It would therefore not have been of much significance to enquire as to who had admitted the two deceased in the society's hospital, whether his/ her name was noted or whether no names were noted in the admission register. Similarly we think that trying to re-examine the I.O. PW 8 SI Raghurjaj Singh or PW 6 Bhagwan Garg or examining Smt. Mohini at this stage for cross examining them with respect to some unproved stray lines regarding the presence of Ajay, would be an exercise in futility as Ajay Garg's presence was not even suggested up to this stage of arguments in the High Court and in any case it would definitely amount to trying to fill up a lacuna which may have been prejudicial for the prosecution, had there even been any substance in this plea, which we find absent in this case.

Learned counsel for the appellant has tried to make some capital of the fact that there was overwriting on the time of registration of the FIR and in the GD and the relevant columns in the inquest and also some overwriting in the time of the FIR. This fact has been admitted by some of police prosecution witnesses including the first investigating officer Ramesh Chandra Yadav. It was also mentioned that a district court lawyer Shri Durga Vijay Singh, who was a close fried of the complainant was also present at the time of lodging of the first information report as his name is present in the relevant GD. Durga Vijay Singh's son Chaitanya was the business partner of the complainant.

We do not think that because of these minor discrepancies on which nothing turns, any inference could be drawn that the FIR was ante-timed or that the version contained in the FIR was a product of legal advice. At best these discrepancies could be treated as minor defects in the investigation and nothing significant would turn on the prosecution case on the basis of these minor discrepancies.

We are of the opinion that the evidence of the witnesses PW 2 Jyoti Garg and PW 6 Bhagwan Garg, the wife and father of the informant respectively is intact and it is sufficient for establishing the complicity of the appellant in this offence.

However, one submission of the learned counsel for the appellant that the trial court ought not to have taken the letter written by Gaurav to Sudhish Kumar, CW 1 from jail, wherein he has indirectly confessed to having committed the offence, into account. The accused has denied his writing on the letter and merely because the court considered the letter "G" in the script to be similar to the letter "G" in the signature of Gaurag made in the court proceedings, the trial Court ought not to have reached to the conclusion that it was the appellant's handwriting particularly as no handwriting expert report has been examined for proving that the letter was written by Gaurav. However, even if the contents of the said letter are ignored from consideration, we are of the view that there was sufficient evidence for connecting the appellant with this crime.

We are in agreement with the submissions of learned Government Advocate in his written submissions that the presence of the witnesses PW 2 Jyoti Garg and PW 6 Bhagwan Garg in their house is very natural and for minor contradictions in the testimonies of these two witnesses, the entire prosecution case cannot be discarded. The testimonies of the witnesses is corroborated by the other ocular and documentary evidence on record. The eye-witnesses have no occasion to falsely implicate their own relative for the murder of other relatives. Even if PW 5 Sampat has not fully supported the prosecution case, but he has admitted the time of incident, the fact that the two deceased persons were lying on the spot and the accused appellant was also present on the spot, the injured persons were admitted to Pushpanjali Hospital by the members of the Society and that the accused was arrested by the police on the same day. This evidence is admissible and we are placing reliance on this dependable part of the witnesses and which has been corroborated by the other relevant evidence on record.

In view of the above, we find that the prosecution has been successful in establishing the guilt of the accused for the commission of the murder of his own mother and sister beyond any reasonable doubt.

One last question, however, remains as to what would be the proper sentence in this case. No doubt the learned counsel for the appellant has neither in his oral argument nor in his written argument made any submission that the death sentence ought not be awarded to the appellant if the prosecution allegations stand established, and the learned Government Advocate on the other hand in his written submission has contended that the motive for committing the crime was lust for property and for this purpose the appellant has violated the holy relationship between a son and his mother or of a brother with his sister and hence his case would fall within the purview of the rarest of rare cases. For this proposition he has relied on the decisions of the Apex Court in Bachan Singh v State of Punjab, AIR 1980 SC 898 and Machhi Singh v State of Punjab, AIR 1983 SC 957.

The aggravating circumstances are mentioned in paragraph 200 in Bachan Singh which reads as follows:

"200. Drawing upon the penal statutes of the States in U. S. A. framed after Furman v. Georgia, in general, and clauses 2 (a), (b), (c), and (d) of the Indian penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances" :

"Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion :

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -

(i) while such member 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

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 are mentioned in paragraph 204 of Bachan Singh as follows:

204. Dr. Chitaley has suggested these mitigating factors :

"Mitigating circumstances :- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances :-

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. It 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."

Machhi Singh further clarifies the aggravating and mitigating circumstances in paragraphs 32 to 34 of the law report

"32........It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance :

I Manner of Commission of Murder

When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance.

(i) When the house of the victim is set aflame with the end in view to roast him alive in the house,

(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II Motive for commission of murder

When the murder is committed for a motive which evinces total depravity and meanness. for instance when (a) a hired assassin commits murder for the sake of money or reward; (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust; (c) a murder is committed in the course for betrayal of the motherland.

III Anti-social or socially abhorrent nature of the crime.

(a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of 'bride burning' and what are known as 'dowry-deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV Magnitude of crime

When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V Personality of victim of murder

When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age or infirmity. (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust, (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

33. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge 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 he imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

34. In order to apply these guidelines inter alia the following questions may be asked and answered:

(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?"

On an analysis of the two judgments in Bachan Singh and Machhi Singh, we find that although the crime of murdering his own mother and sister in a brutal manner with the aid of two knives was an aggravating circumstance, but we entertain a doubt as to whether this case could be brought in the category of the rarest of rare cases where on a consideration of the balance sheet of the mitigating and aggravating circumstances, the special reasons within the meaning of section 354(3) Cr.P.C exist for awarding only the death sentence of death, and where the other option of awarding the lesser penalty of imprisonment for life stand foreclosed.

The reasons for the view are that the nature of the crime, shows that the appellant appears to have wildly swung the two knives that he had picked up from the kitchen with which he gave several blows to the two deceased in the course of his quarrel with them. Significantly he did not use the knife which he was carrying in his bag along with the papers he had brought to get signed. But he does not seem to have acted in a cold calculated act for gain so as to bring the case within the aggravating circumstance of the murder showing exceptional brutality or depravity described in sub paras (a) and (b) of paragraph 200 in Bachan Singh or depicting the fiendish brutality, culpability, revolting and dastardly character described under Heading I on the "Manner of Commission of the Crime" mentioned in paragraph 32 in Machhi Singh. Likewise the act also does not display the total meanness and depravity of the "Motive for commission of murder" (vide para 32 II, Machhi Singh) when (a) a hired assassin commits murder for the sake of money or (b) where a deliberate cold blooded murder is committed for inheriting or gaining control over property of a ward or someone whom the accused is in a position to dominate. The mother and sister of the appellant who were living separately from the appellant were not under his thumb or domination in any manner. The case also does not fall under heading III, in para 32 of Machhi Singh, "Anti-social or socially abhorrent nature of the crime," as it was not a murder of person belonging to the Scheduled castes or tribes, or minority communities arousing social wrath for making them surrender to property or other benefits that may have accrued to them. Nor was the case covered by heading "IV Magnitude of Crime," because it could not be regarded as a multiple murder of all members of a family or a large number of persons of a caste or community. Likewise the sister and mother of the appellant were not the helpless women who were attacked by the appellant, mentioned in heading V under 'Personality of victim of murder' in Machhi Singh.

The mitigating circumstances described in paragraphs 206, (1) and (5) of Bachan Singh that the offender was under the influence of extreme mental or emotional disturbance, or that he believed (though wrongly) that he was morally justified in committing the offence as he may have considered himself an a legitimate inheritor of the property, from which he had been cut off by his mother by her will executed 15 days earlier, and he was trying to exert some pressure on her to recant from the disposition in the will. This intolerant expectation, though it does not reduce the culpability of the appellant for committing the crime, maybe considered as a mitigating circumstance for awarding the lesser sentence, because this belief that the appellant was entitled to his mother's share of the property has itself been fostered by our faulty social system which instils an understanding in male heirs that they are the only legitimate inheritors of the ancestral or self-acquired property of their parents, irrespective of their conduct towards their parents. The venue and manner of assault on the deceased at his cousin brother's house in the presence of witnesses, and the fact that the assault must have been preceded by heated discussions with his mother and sister, and then his being quickly apprehended in the flat itself after being belaboured by the society residents, would indicate his mental and emotional imbalance and absence of cold calculated planning when he committed the crimes. We also feel that the animosity of the appellant was directed only against his mother and sister, whom he might have wrongheadedly thought were depriving him of his due share in the property, so that when he was sought to be caught hold of by his uncle, and his cousin brother's wife in order to separate him from his intended victims, he did not attack them or anyone who tried to apprehend him after the crime. This suggests that he might not have repeated such crimes in future and it could not be affirmatively held that he was likely to engage in future violence or to be incapable of reform, for fulfilling the requirements under paragraph 206, (3) and (4) in Bachan Singh.

The facts of this case are reminiscent of Lehna v. State of Haryana, 2002(3) SCC 76 where consequent to a quarrel of the accused with other members of his family, namely, his father, his brother and sister-in-law, over a piece of land, following the quarrel the accused killed his mother, brother and sister-in-law. While upholding the conviction of the accused under Section 302 IPC, the Apex Court held that the mental condition of the accused, which led to the assault, could not be lost sight of. Although the mental condition of the accused may not be relevant for judging his culpability, but it was important for considering the question of sentence. The Court further held that the scenario of the crime suggested that the assault was an impulsive and unplanned act of the accused committed without premeditation, and in that background came to the conclusion that a life sentence would suffice and the award of the death sentence would not be proper.

On the overall consideration of the totality of facts and circumstances of this case, we are of the opinion that this is not the rarest of rare cases, where we can depart from the principle that in cases of murder a sentence of imprisonment for life is the norm, and that award a death penalty is an exception which can be given only for 'special reasons' as mentioned in section 354(3) Cr.P.C where the other option of awarding a sentence of life imprisonment stands unquestionably foreclosed. We accordingly hold that the ends of justice would be met if the sentence of death awarded to the appellant under section 302 IPC by the trial Court is set aside and in its place a sentence of imprisonment of life is substituted. The appellant is also directed to pay a fine of Rs. 100,000/- (rupees one lac) and in default of payment of fine, he shall further undergo five years rigorous imprisonment.

The reference for confirming the death sentence is rejected.

With these observations this appeal is dismissed.

Dated: 3.5.2013

Ishrat