Khushal Singh vs State Of U.P.
2013 Latest Caselaw 1639 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									Reserved 
 
Criminal Capital Appeal No. 3992 of 2011
 
Khushal Singh ..........................................Appellant
 
					Versus
 
State of U.P......................................Opposite party
 
					Connected with
 
Reference No. 11 of 2011
 
Hon'ble Amar Saran, J
 
Hon'ble Bachchoo Lal, J
 
		(Delivered by Hon'ble Amar Saran, J)
 
	This capital criminal appeal from Jail has been preferred against the judgment of the Sessions Judge, Pilibhit dated 12.5.2011 sentencing the appellant to death under section 302 I.P.C.
 
	 A reference No. 11 of 2011 was also sent by the learned Sessions Judge for confirmation of the sentence. 
 
	The appellant has been acquitted by the trial judge for the offence punishable under section 4/25 of the Arms Act because the number of the notification issued by the U.P. Government for possession of a knife in district Pilibhit, was not mentioned in the charge sheet submitted against the appellant. 
 
	The prosecution case as disclosed in the First Information Report lodged by Rajendra Singh, PW 1, the son of the deceased Kewal and husband of deceased Smt. Devendra Kaur was that on 12.6.2009 at about 4.00 A.M, the deceased Kewal was sleeping on a separate cot and the deceased Devendra Kaur was sleeping on another cot along with her son, the child witness Tirath Singh, PW 2 and Sarjeet Kaur, the  daughter of her "Saali. " The informant had gone to the field for easing himself. At that time the appellant who was a cousin brother of the informant, and then a resident of village Singhpur arrived at the informant's house and began to assault Kewal Singh with a knife. On his cries, the infomant's wife Devendra Kaur rushed to save him, whereupon the appellant also assaulted her. He then picked up Devendra Kaur and threw her in a water tank and sat on top of her. When the informant returned and tried to save his wife, then the appellant ran away in the direction of the jungle. His father succumbed to his injuries and his wife died when she was being taken to the hospital. The appellant was seen running away by the co-villagers Jagdish, Paramjeet Singh and others.
 
	The informant lodged the report of this incident at police station Hariya, 6 kms. away on 12.6.2009 at 6.20 A.M. A check FIR and the necessary G.D entry was made by PW-4 Constable clerk Narpat Singh. The report was lodged in the presence of PW-6 SI Ombir Singh who started investigation of this case. After recording the statement of the informant, he inspected the place of incident, and prepared the site plan on the direction of the informant. He assisted PW-8 P.S. Yadav, who conducted the inquests on the two corpses. He thereafter prepared photo lash, challan lash, letter of post-mortem and completed other formalities. Thereafter the dead bodies were sent for post-mortem.
 
	PW-8 Dr. C.B. Chauasia conducted the post-mortem on the deceased Kewal Singh on 12.6.2009 at 3.00 P.M and on the deceased Devendra Kaur on the same day at 3.20 P.M. The deceased Kewal Singh who was 70 years in age had the following ante-mortem injuries:
 
	1. Stab wound 2.5 cm x 1 cm over left chest 6 cm below left nipple underlying soft tissue muscle punctured and underlying liver and spleen ruptured and abdominal cavity contained about 1 litre of blood.
 
	2. Stab wound 2 cm x 1 cm over left side of abdomen 5 cm below and 3 cm medial to injury no.1. Underlying liver ruptured.
 
	3. Stab wound 2.5 cm x 0.8 cm over left side abdomen just below costal margin 2 cm left to mid line. Underlying liver ruptured.
 
4.Stab wound 2.5 cm x 0.8 cm over left chest over anterior axillary line 6 cm below axila left lung below it punctured. Left chest cavity contained about 1 litre of blood.
 
5.Stab wound 1.5 cm x 0.5 cm over lateral aspect of left shoulder bone deep.
 
6.Stab wound 2.5 cm x 0.8 cm over upper back in mid line 5 cm below lower hair line x vertebra deep.
 
	The cause of death was due to ante-mortem injuries.
 
	The deceased Smt. Devendra Kaur aged about 35 years had the following ante-mortem injuries. The cause of her death was due to shock and haemorrhage .
 
1.

Stab wound 2.5 cm x 1.0 cm over left back on left side 9 cm below lower half line and 3 cm left to mid line. On deep dissection left ventricle is ruptured and chest cavity left contained about 1.5 liters of blood.

PW-6 SI Ombir Singh received information that the accused was sitting by the side of Delapeer Mazar. He thereafter rushed to the spot along with force and arrested the accused- appellant at a distance of 20 paces from the 'Mazar' on 12.6.2009 itself at 1.45 pm. He took the appellant Khushal Singh to the police station, where an entry was made in the G.D at 2.20 P.M. The appellant was examined as noted in the G.D at 2.30 P.M and the appellant confessed his guilt and offered to get the weapon of assault recovered. Hence PW-6 Ombir Singh recorded his confessional statement at 2.30 P.M and took out the appellant from police lock-up. They proceeded to Katmati, to the house of the informant. The appellant went ahead and at about 3.50 P.M. at the Apsara river below the siphon bridge, the appellant removed some sand and produced the knife.

The Serologist report dated 25.11.2009 shows that the recovered knife contained human blood.

PW 6, Omvir Singh also collected the bloodstained clothes worn by the two deceased and some plain and bloodstained earth from the spot and also the mattress on which the deceased Kewal was lying.

PW 7, SI Putan Singh, SO, P.S. Amriya, who was on leave on the date of incident, started the investigation in this case on 14.6.2009. He reached the spot and again examined the complainant PW 1, Rajendra Singh, PW 2 Tirath Singh, Km. Simranjit, PW 3, Paramjit Singh, the witness of the FIR, and Jagdev Singh and other witnesses, who were not produced in Court. He also examined the inquest witness and scribe Constable Radhey Shyam. He also visited the spot under the Siphon bridge on the Apsara river from where a bloodstained knife was got recovered by the appellant. He also learnt that the appellant had stabbed his wife Surendra Kaur on 10.6.2009 and kept the report in the case diary. Eventually he submitted the charge sheet (Ext. Ka 24 ) against the appellant.

Apart from these formal witnesses, the prosecution has examined three eyewitness, PW 1, Rajendra Singh, PW 2, Tirath Singh and PW 3, Paramjit Singh.

PW 1, Rajendra Singh has deposed that the appellant Khushal Singh was his elder uncle's son. He used to live in village Katmati earlier, but he had sold off his house and property and settled in his Sasural in village Singhpur and was living there with his wife. He has thereafter reiterated the FIR version. He stated that he had gone to toilet at the back of his house. At that time his cousin brother Khushal Singh arrived and started assaulting his father with a knife. On his father's cry, his wife Devendra Kaur tried to save him. She was also assaulted with a knife. When his wife tried to run, then the appellant threw her into the pond (Haudi). When he returned he saw Khushal Singh was sitting on his wife and when he tried to save his wife, then the appellant showed him his knife and ran away in the direction of the Jungle. PW 3, Paramjeet Singh and other villagers saw the appellant running away. When he tried to shake his father, he found him dead. His wife who was then alive, told him that Khushal Singh had come from the side of the Kharanja, and stabbed his father. When his wife rushed to save his father, then the appellant had also stabbed her on the stomach. Then he arranged for a transport to take his wife to the hospital, but she died on the way. Then he brought her body back and got the FIR scribed by Daljeet Singh. An bulb run by an inverter was burning at the spot. He then proceeded to the police station to lodge the report. He first handed over the report to the constable who registered the FIR. The appellant was addicted to drinking and he made a sale deed in favour of Paramjit Singh son of Jagdev and when his father, the (deceased ) learnt about this, then he gave his own money and transferred half of the land in favour of the appellant's wife and put half of the property in his own name.

PW 2, Tirath Singh was the 12 year old son of Rajendra Singh and grandson of Kewal Singh, the deceased. He deposed that the appellant had stabbed his grandfather Kewal Singh with a knife. On his cry, his mother had woken up and rushed to save his grandfather, then the appellant started assaulting his mother in the tank. When his father arrived, the appellant ran away. An inverter bulb was burning at the time of incident. The appellant was his uncle. This witness was sleeping when the incident started.

PW 3, Paramjit Singh has deposed that Khushal Singh earlier used to reside at Karmati and he was a resident of the same village. The informant, Rajendra Singh is his real maternal uncle. The deceased Kewal Singh was his Nana (maternal grand-father) and deceased Devendra Kaur was his Mami (maternal aunt). On 12.06.2009 at about 4.00 AM when he was lying on the roof, his Nana was lying on the courtyard. He woke up on hearing a noise, then he found his Nana lying in a pool of blood and saw that the appellant Khushal Singh had thrown his Mami into the water tank and was sitting on her. There was light of bulb. One bulb was burning in the courtyard and one near the tank. The other witnesses had arrived and on their cries the appellant showed his knife and ran away. Then he saw that his Nana Kewal and Mami Devendra Kaur had died at the spot.

In his 313 Cr.P.C. statement the appellant has denied the prosecution version. He admitted his relationship with PW 1 Rajendra Singh, but denied the rest of the allegations, and claimed that he had been falsely implicated because the informant wanted to grab his property.

It was argued by the learned Amicus Curiae that the incident had taken place in the dark hours of the night and no one has seen the incident. The informant was not present at the spot and had arrived later on. No source of light was mentioned in the FIR. Even if the appellant was arrested on the same day at 1.45 PM, no blood was found on his clothes. It was highly unlikely that there would have been blood on the knife, which was said to have been recovered from under the sand on the bank of the river Apsara. The witness Paramjit Singh is a related witness being the maternal nephew (Bhanja) of the informant and grandson of the deceased Keval. No independent witness has supported the prosecution case. The witness PW 2, Tirath Singh was a child witness, who was probably sleeping at the time of incident and he has been tutored to give false evidence against the appellant. The appellant has been falsely implicated in order to divest him of his property on which the informant had an eye. In his examination-in-chief the informant has stated that the deceased Devendra Kaur had told him that the appellant had stabbed him on her stomach, but actually she had an injury on her back. As her ventricle had been ruptured by the knife blow given by the appellant, she would not have been in a position to make any disclosure to the informant. In any case as the informant and the deceased Kewal Singh unlawfully and wrongfully deprived the appellant of his property, hence it was not unreasonable for the appellant to have nursed a grouse against the informant and the deceased and this was the mitigating circumstances for awarding a sentence of life imprisonment for committing the said crime. Hence, it was not the rarest of rare case where death penalty was the only option and and the other option of sentencing the appellant to imprisonment for life was not foreclosed.

Learned Government Advocate and learned counsel for the complainant on the other hand argued that the incident had taken place in the house of the deceased. PW 1 Rajendra Singh and PW 2, Tirath Singh were the natural witnesses of the incident. Even the arrival of Paramjit Singh at the spot on hearing the cries was not unnatural; presence of light had been mentioned in the evidence of the witnesses and the medical evidence corroborates the prosecution case. The absence of blood on the clothes of the appellant was not fatal as he was not arrested at the time of incident, but is said to have been arrested at 1.45 PM when he could easily change his clothes. The knife which was recovered from the appellant from under the sand on the bank of river Apsara contained human blood. The appellant had animosity against the deceased to commit this crime.

So far as the merits of this case is concerned, we find that the prosecution has led sufficient evidence for showing the involvement of the appellant in this offence. Even if some minor discrepancies are shown in the evidence of PW 1, Rajendra Singh as to whether he had gone to ease himself in the field as was mentioned in the FIR or if he had gone to ease himself in one of the two bathrooms at the back of the house, his presence at the spot could not be doubted as the report has been lodged as early as at 6.25 AM at PS Amriya, which was 6 kms. away with respect to the incident, which took place at 4.00 AM on 12.06.2009.

PW 2, Tirath Singh, the twelve year old son of the informant, was a natural witness in the house where the two deceased were sleeping. In fact PW 2, Tirath Singh was shown to be sleeping on the same bed on which Devendra Kaur, one of the deceased was sleeping. He would be expected to wake up with all the noises that would have been raised when the deceased Kewal Singh was repeatedly stabbing him, and when his mother rushed to save the deceased Keval Singh, she was also picked up and thrown into the tank, with the appellant having climbed over her, and also stabbing her. Even though the trial Court had failed to ask the preliminary questions for assessing this child witness' ability to depose, but from a reading of his evidence, and the satisfactory answers given to the questions put to him, and the fact that he was studying in Class V in a public school, we are of the view that the trial Court has committed no error in law in acting on his testimony after circumspectly satisfying itself about his reliability.

In all likelihood Paramjit Singh, who was studying in Sitarganj was residing in his maternal uncle and maternal grandfather's house. His statement has been recorded by the police after two days of the incident, perhaps because of his young age and not because he was absent from his house.

However, so far as the presence of PW 2, Tirath Singh in the house along with the deceased is concerned, no shadow of doubt could be raised about his presence at the spot. We also find no reason why these witnesses would have falsely implicated the appellant if someone else had committed the crime.

The suggestion of the appellant given to PW 1, Rajendra Singh and PW 3, Paramjit Singh that the informant had committed the murder of his father and wife and had falsely implicated the appellant to grab his property was too far fetched and improbable. The presence of light had been mentioned in the testimonies of witnesses even if it was not mentioned in the FIR.

Not finding blood on the clothes of the appellant, who was arrested at 1.45 PM on 12.6.2009 was of no significance because the appellant was not arrested at the spot and he had been arrested after 8-9 hours after the incident.

The knife, which was recovered at the instance of the appellant from under the sand at the bank of the river Apsara was actually found containing human blood as per the Serologist's report and, therefore, there is no substance in the doubt raised by the learned Amicus Curiae as to how the knife could have human blood on it because it was taken out from under the sand.

The crucial question, however, in this case is whether the sentence of death awarded by the trial court is appropriate and the other option of awarding imprisonment for life under section 302 IPC was inadequate.

The Learned Trial Judge after citing the case laws on this question and also after setting down the mitigating and aggravating circumstances as mentioned in the case of Bachan Singh Vs. State of Punjab, 1980 (2) SCC 684 and Machhi Singh Vs. State of Punjab, 1983 (3) SCC 470 has tried to set out the aggravating and mitigating circumstances in a chart. However, we find, there is imbalance in the trial court's comparison of the aggravating with the mitigating circumstances.

Bachan Singh relying on Chitaley's enumeration mentions the aggravating circumstances in paragraph 200 and mitigating circumstances in paragraph 204.

"200....."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

(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."

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."

Whereas the case against the appellant is clearly established for the murder of his uncle (Tau) and his cousin brother's wife, but a careful examination of the evidence will show that the act was not as cruel and diabolical as it has been painted to be by the trial judge. This was not a murder of a helpless and innocent old uncle, who had looked after the property of the appellant and also the appellant during his childhood. It needs to be examined as to how unchallengeable is the prosecution version against the appellant that being a drunkard he had tried to sell off his property which was prevented by the old uncle and his son, the informant and half share of the sale was voluntarily given to the appellant's wife. But as the appellant wanted that the share which was handed over to his wife should not be handed over to her, but given to the appellant himself, hence he had committed the murders.

PW 1, Rajendra Singh in his examination-in-chief stated that the appellant had sold off his house and property to Paramjit Singh and was staying in his Sasural in Singhpur with his wife. The deceased Kewal Singh had bought that land from Paramjit and transferred half of the land to the appellant's wife and half in his own name. In his cross-examination the informant Rajendra Singh admitted that his grand-father, who was also the appellant's grand-father had 20 acres of land. Half of the land was inherited by the informant's father, the deceased Kewal Singh and half was inherited by the appellant's father. However, the appellant had sold off his entire land in favour of the informant. Four acres of land which the appellant had sold to Paramjit, the informant had got transferred to his own name. At one point in the cross-examination, PW 1, Rajendra Singh states that he had paid Rs. 18 lakhs to the appellant, but at another point he states that he had given the money to Paramjit and still at another point he states that he had given money to the appellant's wife when she had come to Pilibhit. A suggestion was given to this witness that he has not given any money to Paramjit Singh, but he had exercised his influence and pressure for getting the land transferred in his own name. Although in his examination-in-chief it was mentioned that the informant and his father had voluntarily given half of the share of the land to Smt. Surendra, wife of the appellant, but in his cross-examination, it is admitted by PW 1, Rajendra Singh that half the land had been transferred in the name of appellant's wife for her survival on the intervention of other relatives. It has further been admitted in the cross-examination that the terms of the informant with the appellant's wife was not cordial and that she had started living in her Maika only after the house was sold off. This house as this witness has earlier stated, which belonged to the appellant was also got transferred to his own name. There is no reliable evidence on whether any money was paid to the appellant for transferring the house to the informant. A suggestion was given that the informant and his father were interested in grabbing the entire share of the appellant and hence they have falsely implicated him. It is further admitted in the cross-examination that even when the appellant used to study, his entire land was being cultivated by the informant and presently was in the name of the appellant and hence he was cultivating it. PW 1, Rajendra Singh also stated in his cross-examination that he had taken the property from Paramjit. He also admits in another point in his cross-examination that he was not aware whether the appellant had sold the property to Paramjit or not. This witness had not told the investigating officer that the house and property had been transferred in the name of the deceased Kewal Singh and the informant. Another suggestion has been given by the appellant that the informant and his father had an evil eye on his wife.

In this background, we are of the view that the learned trial judge has too readily recorded a finding without closely scrutinizing the evidence that the appellant in view of his drinking habits had voluntarily sold off his entire property and had been a treacherous nephew, who has killed his uncle (Tau) who was always attending to his welfare.

On a close scrutiny of the evidence it appears that there is more in the evidence than is apparent on a superficial reading of the same. It does, therefore, appear that the appellant has not been treated in a fair manner and he may have been deprived of both his agricultural and residential property by the wiles and trickery of the informant and his father, the deceased. At least it could be said that he had reasonable grounds for entertaining such a notion. Two important mitigating circumstances mentioned in Bachan Singh do not find any mention in the judgment of the trial court. These are Mitigating circumstance 1, "(1) That the offence was committed under the influence of extreme mental or emotional disturbance" and circumstance 5, "(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence". Deprived of his property by the wiles and guiles of his uncle (the deceased Keval Singh) and his first cousin, the informant Rajendra, he was forced to live in his sasural in village Singhpur. There may have been some quarrels with his wife as well and in this situation he may have taken to drinking on seeing how powerless he had become for preventing his divestiture of his property. This could have embittered him and made him nurse a grouse for being wronged by his uncle and cousin which may have mentally and emotionally disturbed him and also made him feel morally justified in acting in the manner that he did. Even if adopting such a course of action may not have been a legal defence for the crime, considering that he not only assaulted his uncle, but also assaulted his sister in law, Devendra Kaur, who may have rushed to save her father-in-law. But if the appellant felt that he had been unfairly divested of his ancestral property, which had been entirely usurped by the informant and the deceased, and that he was morally justified in committing the offence it was certainly a mitigating circumstance for reducing the penalty from a sentence of death to a sentence of life imprisonment.

The trial judge has referred to the fact that two days prior to the incident the appellant had inflicted knife blows on his wife. Though that evidence not having been properly proved was not legally admissible, and in any case could not be taken into account for either showing the complicity of the accused in the present case or as an aggravating circumstance for awarding the higher penalty, but this allegation does certainly reflect on the mentally disturbed condition of this appellant at the time of the present offence.

We also find in this case that no evidence has been led to show that the appellant could not be reformed or that he would repeat such a crime, which are Chitaley's mitigating circumstances No. 3 and 4 (supra) quoted in Bachan Singh and regarding which the State has given no affirmative evidence.

It would be appropriate to conclude this judgment with this apt passage from Bachan Singh (paragraph 209) calling the Courts to be cautious and humane and not blood thirsty when balancing the totality of aggravating and mitigating circumstances:

"209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot 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-emphasised 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 writ large in Section 354(3). 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 guide-lines 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 cases when the alternative option is unquestionably foreclosed.

On an overall consideration of the totality of facts and circumstances of this case, whereas we are of the view that no valid ground exists for differing from the view taken by the trial Court in holding the appellant guilty for the crime, but on a consideration of the the balance sheet of aggravating and mitigating circumstances set out above and in the judgment of the trial court, we are of the view, that this is not the rarest of rare case where the special reasons within the meaning of section 354(3) Cr.P.C exist only for choosing the exceptional sentence of death and the other option of awarding a sentence of imprisonment for life is not unquestionably foreclosed.

We are, therefore, of the view that the conviction of the appellant under section 302 IPC awarded by the trial court be upheld. However, the sentence of death awarded to the appellant is replaced with a sentence of imprisonment for life.

Subject to the aforesaid modification the appeal is dismissed. The reference under section 366 of the Code of Criminal Procedure is rejected.

Dated: 3.5.2013

Ishrat