State vs Rajit Ram
1991 Latest Caselaw 755 Del

JUDGMENT

Dalveer Bhandari, J.

(1) This murder reference has been preferred from the Judgment dated 27/28th February, 1991, passed by Shri Padam Singh, Additional Sessions Judge, New Delhi.

(2) The learned Additional Sessions Judge has convicted the respondent under Section 302/201 Indian Penal Code . and awarded death sentence and imposed a fine of Rs. 2000.00 under Section 302 of the Indian Penal Code, and in default of payment of fine, R.I. for one year. The court also convicted the accused under Section 201, Indian Penal Code . and awarded him R.I. for 5 years and a fine of RS.1,000.00 and in default of payment of fine, R.I. for six months. Both the sentences shall run concurrently. The murder reference has been placed before us for confirmation of death sentence and the accused filed appeal against his conviction. Both the murder reference and appeal of the accused are being disposed by this common judgment. Brief facts which are necessary to decide the Murder reference are set out as under:- ACCORDING to the prosecution version, on 4th April, 1988, Hari Ram, Public Witness .2, and Hirday Ram, Public Witness .I were taking their meals at Hari Ram's Jhuggi around 9.30 P.M. P.W.2 Hari Ram, was residing behind Jhuggi E-71, Mayapuri, New Delhi. In that Jhuggi, Hari Ram was staying with Hirday Ram, who was his cousin. On 4.4.1991, they cooked the food and were about to have dinner. At that time, the accused, Raj it Ram Along with deceased Ram Palat came there. The accused asked Hari Ram to play cards to which Public Witness s.1 and 2 agreed and said that they would play cards after taking their meals. Thereafter, all these four persons Hari Ram, Hirday Ram, accused and the deceased played cards in Public Witness .2 Hari Ram's Jhuggi until Ii P.M.

(3) Hari Ram, and Hirday Ram, slept together outside Jhuggi of Hari Ram while the accused and the deceased went to sleep in the shop No. E-68. Public Witness .2 Hari Ram, has stated in his statement that he has seen the accused putting down the shutter of the shop where he had gone to sleep with the deceased. He further stated that around 2 or 3 A.M. he heard some sounds/noise. He thought it might be a ghost. So he again went to bed. Again, around 3.30 A.M. he got up and saw the accused opening the shutter of the shop. On Hari Ram's enquiry, as to what had happened, the accused replied that nothing had happened. On this, he again went to sleep. Around 4 a.m. he woke up as his mosquito-net had fallen down. At that time, he saw the accused, Rajit Ram carrying the dead body of deceased Ram Palat towards gali adjacent to his Jhuggi. When the accused was returning after throwing the dead body of Ram Palat, Public Witness .2 Hari Ram, enquired from him as to what had happened. At that, point of time, the accused told him that he had committed the murder of Ram Palat and requested him with folded hands that since he has seen the murder, he should not tell about the same to anyone. Hari Ram has further stated in his statement that the accused was having blood on his person and he was wearing at that time only an underwear and no other clothes. Though Hari Ram told the accused that he would not tell anybody about the incident but he became very nervous. He has further stated that he went inside the shop no.E-68 and locked it from inside. He informed two chowkidars that accused, Rajit Ram had committed a murder and they should see that the accused does not run away since Public Witness .2 Hari Ram, was going to Police Station. Both the chowkidars assured Hari Ram that they would take care of the accused and he should go to the Police Station. Hari Ram has stated that he woke his nephew Hirday Ram, who was sleeping at that time and took him to the Police Station. Hari Ram, narrated the incident to the Police.

(4) The Police immediately came to the spot and got the shop in question opened. The Police found that blood was lying inside the shop and the accused at that time was taking a bath. Hirday Ram, remained outside and did not enter the shop. The police took into possession from the spot the quilt's cover (razai), one shoe, and the blood, over which black ink had been spread over. The police had taken the blood from the spot after scratching the ground. The police had sealed all these articles on the spot, and the accused was apprehended. The matter was investigated by the Police and after completing the investigation, the accused was challaned for trial.

(5) The accused, Rajit Ram was charged under Section 302/201 of the Indian Penal Code for which he pleaded not guilty and claimed trial. The entire prosecution story is based on circumstantial evidence. The prosecution has examined 22 witnesses in support of its case. Hirday Ram, is the nephew of the complainant Hari Ram, who has stated that he was living on the back side of E-68, Mayapuri, New Delhi, in a Jhuggi and was doing a job of selling chhole bhature. Hari Ram, is his maternal uncle and he also lives adjacent to his Jhuggi. He has further mentioned that on 4.4.1988 around 9 P.M. he and Hari Ram were about to take their meals. At that time, the accused accompanied by Ram Palat came to their Jhuggi and asked them to play cards with them. They played cards till Ii P.M. and when they felt sleepy, Hari Ram Along with Hirday Ram slept outside the Jhuggi of Hari Ram and the accused had gone to the shop no.E-68, Along with Ram Palat to sleep.

(6) Around 3 or 4 a.m. Hirday Ram was awakened by Hari Ram. and on his requesting, he had gone Along with him to the Police Station to lodge a report in Police Station Mayapuri. After lodging of the report, the Police accompanied them to the shop of the accused, E-68, and saw blood in the shop and [he dead body of Ram Palat was lying in the gali towards their Jhuggi. At that time, he found that blood spots were washed away with water. The accused was arrested from the shop. In his cross-examination, Rajit Ram has stated that they have one or two Jhuggis in the neighborhood but occupants of those Jhuggis do not sleep there during the night. Hari Ram, Public Witness .2 lodged the First Information Report and his version is the main prosecution version which has already been set out in preceding paragraphs.

(7) Dal Singh, Public Witness .3, who is a chowkidar, was on duty on 4.4.88 in the E-Block market of Mayapuri, New Delhi. In his statement, he has mentioned that Hari Ram met him around 3 A.M. on 4.4.88. He had told him that he had seen accused throwing the dead body in the gali. Hari Ram, told him to keep a watch over shop no.68 in E Block, the shutter of which was closed, lest the accused should run away. Hari Ram told him that he was going to the Police Station for lodging the report and thereafter the Police came and opened the shutter of the said shop and found the accused present there. In other words, he also supports the entire prosecution version.

(8) P.W.4 is Ram Kewal. He has not supported the prosecution version and wants to remain out of the entire controversy. Therefore, no discussion is required about his testimony.

(9) Constable Ram Niwas is Public Witness .5 who Along with Constable Dilbagh Singh had taken the dead body of deceased Ram Palat from the spot at Mayapuri and had deposited the same in the Mortuary of Safdarjung Hospital. On 8.4.88, the post mortem on the body of the deceased was conducted in the hospital.

(10) P.W.6 Mohan Singh is the owner of the shop no.E-68, Mayapuri, New Delhi He in his statement stated that the accused was his employee at the said shop and was working for the last 4 years. He used to sleep in the shop and the key of the shop used to remain with him. He has further stated in his statement that on 4.4.88, he had left the shop at 4.30 P.M. leaving behind the accused at the shop, because all of a sudden, his ailing father's condition had deteriorated. On the next day around Ii a.m. when he came to the shop, he came to know that a murder had been committed in his shop. He had further mentioned that the accused used to prepare his meals in his Jhuggi but he used to stay at the said shop at night.

(11) P.W.7 is Head Constable Ramesh Kumar who is a photographer.

(12) P.W.8 is Vijay Kumar Pubbi, who has stated that he was requested by the Police to accompany them while he was going towards Delhi Cantt. around 5-6 P.M. Police took him Along with the Police party to a shop where old motor parts were lying. On reaching there, the accused took out 2 or 3 bloodstained articles, from beneath the heap of old motor parts. These articles which the accused had taken out and produced before the police were hammer, one chheni and an iron cutting blade. These articles were separately sealed in different parcels. He had identified the said article. The seals of those articles bore his signatures.

(13) P.W.9 is the Head Constable Mahendra Singh who went Along with the Investigating Officer on 5.4.88 at the place of occurrence E-68, Mayapuri, New Delhi. At that time, the complainant was also with them. He is a formal witness and proved that the articles which were taken into possession at the spot were, one quilt cover Ex.P-l, one black shoe Ex.P-2 and scattered black colour material which was lying on the floor Ex.P-3. The above articles were taken into possession vide Ex.PW-2/B. Hari Ram also signed this memo Ex.PW-2/B. He has also proved Dari Ex.P-4, one underwear Ex.P-14. one broom, Ex.P-5, one cardboard box Ex.P-8, one burnt gunny bag Ex.P-6. The gunny bag, Ex.P-6 was smelling of kerosene oil. One 5 litre can which contained some kerosene oil is Ex.P-7. All these articles were taken into possession vide seizure memo Ex.PW-2/C which also bear his signature Thereafter, they went to a place in front of E-76, Mayapuri, Phase Ii, New Delhi, where the dead body was found lying which was covered with a peace of gunny taat. The accused was also with them. The Investigating Officer took blood from the tin on which the dead body was lying in a gali and the same is Ex.P-1O. The Police took into possession the said tin with some leaves of Neem tree and the same is Ex.P-11. These articles were taken into possession vide Ex.PW-2/D which bear his signatures. All the articles, including the article's referred to above were sealed with the seal of NKS. The seal after use was handed over to Hari Ram, complainant. Thereafter, the accused made a disclosure statement and agreed to recover one hammer, hacksaw blade and one chheni. The said disclosure statement is Ex.PW-9/A which also bears his signature at point 'A' and signed by the accused at point 'B' PWs-10, 11 and 12 are formal witnesses. PW-12 Zila Jit did not support the prosecution version and was declared hostile.

(14) P.W.13 is Jagan Nath who has stated that there was a dispute between the father of the deceased and father of the accused over agricultural land and the dispute was referred to Panchayat and it was decided by the Panchayat and was also agreed by the father of the accused that he would give one bigha of land to the grand father of the deceased. This decision of the panchayat was reduced into writing, which is Ex.PW-11/C.

(15) P.W.14 is S.I. Jagdish Chander, who has proved Cfsl Report Ex.PA to Ex.PD. P.W.15 is Attar Singh, Asi who was posted as Duly Officer on 5.4.88 at Police Station Mayapuri and who registered the Fir of the case no-55/88. P.W.16 is Ram Bali Singh who has stated about the dispute over the land which was compromised by the Panchayat. P.W.17 is the Head Constable Sagar Mal, who has entered all parcels of the articles deposited with him by the Investigating Officer ofthe case, in his register. He is also a formal witness. P.W.18 is Head Constable Sarju Singh, who handed over the Special report of this case to the concerned Metropolitan Magaistrate, Addl. D.C.P., A.C.P. of District South.

(16) Dr. S.K. Verma, Public Witness .19 who was working as a Lecturer at University College of Medical Science and Guru Teg Bahadur Hospital, Shahdara, Delhi, had conducted the post-mortem examination and found the following ante mortem injuries. We deem it necessary to reproduce all the injuries in order to evaluate the cause of death and if the accused is found guilty, in the light of those injuries, what should be the proper sentence. 1. Abrasion of size 1.2 x 0.5 c.ms. on the right foot 1.5 cms above sole and 6.5 cms anterior and downward from lateral malleolus. 2. Abrasion of size 1 x 0.5 cms present over sin on left leganteriously lying 6 cms below patella and 29 cms above the left ankle joint. 3. Lacerated wound of size 1x0.2x0.2 cms present over the palm of left hand 3.5 cms distal to wrist joint and 1.5 cms proximal to proximal planer crease. 4. Lacerated wound of size 0.5 x 0.2 x 0.2 cms present over the inter digital gap between left thumb and index fingers. 5. Abrasion of size 3 x I cms present over superior surface of right shoulder lying 1.5 cms medial to acromian and 16 cms above the right stemoclavicular joint. 6. Abrasion of size 5.x I cms present in the 1st intercostal space 2 cms lateral to left stemoclavicular joint touching the inferior border of left clavicle. 7. Oval bruise of size 6 x 3 cms present on the right side of neck anteriorly lying 3.5 cms above stemal notch and 1.5 cms lateral to mid line. 8. Superficial incised wound of size 3.2 x 0.5 x 0.3 cms present on the right anterior surface of neck lying 9 cms above stemal notch and 3 cms lateral to midline. 9. Incised superficial wound of size 3 x 0.2 x 0.2 cms present on the right anterior surface of neck 1.5 cms above injury no.8 and 3.5 cms lateral to midline. 10. Incised superficial wound of size 3x0.6x0.5 cms on the anterior surface of left side neck 5 cms below the chin and 11 cms above the stemal notch. 11. Superficial incised wound of size 2.5 x 0.4 x 0.2 cms present on the left anterior aspect of neck I cm lateral to midline and 10 cms above the stemal notch. 12. Abraded area of size 17 x 1.5 cms present in front of neck over the thyroid cartilage 8 cms above the stemal notch and 7 cms below the chin. 13. Lacerated wound of size 2.5x1x2.5 cms present over sub mandibular region lying 3.0 cms below the lower lip in the middle with underneath fracture of mandible. 14. Lacerated wound of size 2x1x2 cms present over right side chin and lip cutting (tearing) the lower lip 1.5 cms from right angle of mouth with underneath fracture of mandible 4 teeth. 15. Lacerated wound of size 1.5x0.5x2.5 cms present over left chin adjacent to lower lip and 3 cms from angle of mouth with underneath fracture of mandible and teeth. 16. Rectangular lacerated wound over right upper lip of size 2 x 0.8 x 1.5 cms with underneath fracture of maxilla 1 cms bellow right nostril and 2 cms above, right angle of mouth. 17. Lacerated wound of size 4x1x1.5 cms present over right maxillary region with depressed comminuted fracture of under neath maxilla lying 2 cms lateral to bridge of nose and I cms below lower eyelid of right eye. 18. Lacerated wound of size 1x1x0.5 present over bridge of nose 3 cms above the tip of nose. 19. Oral abrasion over left check of size 2x1.5 cms lying 5 cms lateral to left angle of mouth and 3 cms below the lateral angle of left eye. 20. Lacerated wound of size 3.5 x 0.8 x bone deep present over right temporal region lying 10 cms above the right mastoid process and 7 cms lateral to mid line. 21. Contusion with swelling over left temporal region of size 6 x 6 cms placed 3 cms above tragus of left ear and 4 cms posterior to frontal prominance. 22. Lacerated wound of size 1.5 x 0.5 x bone deep present over right temporal region 3 cms above mastoid process and 5.5 cms below injury no.20. 23. Lacerated wound on right occipital region of size 3 x 0.8 x bone deep placed 6 cms posterior to the right mastoid process and 8.5 Cms above the hair line.

(17) The doctor had stated that the approximate time of death in this case was about three and a half days and the cause of death is Asphyxia due to strangulation. All the injuries were ante mortem in nature. Injury no. 12, and 20 to 23 are sufficient to cause death in ordinary course of nature and are produced by blunt weapon. Injury No.12 could be produced with weapon no.2 and injuries no.20 to 23 are possible with weapon nos. 2 and 3. In his cross-examination, he has stated that Ex.P-18, Ex.P-19 and Ex.P-20 bear his initials. P.W.20 is Inspector Davinder Singh who is a formal witness as he prepared the scale plan of the spot.

(18) P.W.21 is Constable Krishan Kumar Mishra who is a formal witness. He has proved the FIR.

(19) P.W.22 Si Neel Kant is the Investigating Officer and has proved the material documents as well as articles recovered at the instance of the accused from the spot.

(20) The statement of accused under Section 313 Code of Criminal Procedure was recorded wherein the accused stated that he has been falsely implicated in this case. Nothing was recovered at his instance nor his clothes were taken into possession by the Police.

(21) After examining the entire evidence and documents on record, we can say without any difficulty that this is one of the very few carefully investigated cases which has come up for our consideration. There is complete consistency in the evidence of all the prosecution witnesses. The prosecution witnesses supported the entire prosecution version on all material particulars. We do not find anxiety of witnesses either to overstate the case or suppress some important features of the case for any ulterior motives. Though the entire case is based on circumstantial evidence, yet this is one of those few cases where it is not difficult to arrive at the conclusion primarily because the entire investigation has been conducted in an honest manner.

(22) The counsel for the appellant, Ms. Geeta Mittal has made a serious endeavor to shake the credibility of the prosecution version and has pointed out some infirmities in the prosecution version.

(23) It was urged on behalf of the appellant that according to the post mortem report, the death was caused because of asphyxia due to strangulation but no ligature marks have been found on the neck of the deceased. Therefore, the prosecution version as far as this aspect is concerned is inconsistent with the post mortem report. In the instant case, 23 injuries have been found on the body of the deceased and according to the report, all the injuries were ante mortem in nature. Injury no. 12, and 20 to 23 are sufficient to cause death in the ordinary course of nature and are caused by blunt weapon. Injury no. 12 could be caused with weapon no.2 and injury no.20 to 23 are possible with weapon nos. 2 and 3. In the instant case, the deceased severely beaten by the accused. According to the statement of the doctor, injuries No.12, 20 to 23 arc sufficient to cause death in the ordinary course of nature. In the light of the doctor's statement, the submission of the counsel for the appellant is totally devoid of any merit and deserves to be rejected. Counsel for the appellant has also argued that the last seen evidence is also not free from doubt because it is difficult for the accused to carry the dead body. The dead body remains flexible up to 3-4 hours and within 3-4 hours, it can be folded, wrapped in a cloth or jute and it is not impossible to lift or carry a normal body by another person and, on that ground, the prosecution version cannot be rejected. The learned counsel also pointed out some minor contradictions in the testimony of the prosecution witnesses. We have examined those contradictions carefully and we do not find any merit in the submission of the learned counsel. The learned counsel for the appellant has mainly argued that this is a case based on circumstantial evidence and looking to the facts and circumstances of the case, the learned Additional Sessions Judge was not justified in awarding the extreme penalty of death sentence u/s 302 of the Indian Penal Code. We find merit in the submission of the counsel for the appellant and would like to examine whether the death sentence can be awarded in a case based on circumstantial evidence, and secondly, whether the instant case can be placed in the category of "rarest of rare cases" where in the interest of justice only death sentence should be awarded.

(24) This case is based entirely on circumstantial evidence. The Supreme Court has laid down guidelines in large number of cases and has consistently held that when a case rests upon circumstantial evidence, such case must satisfy the following tests laid down in Gambhir v. State of Maharashtra, . The Supreme Court has mentioned the following tests which are essential before a conviction can be recorded on the basis of circumstances evidence. 1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and Firmly established; 2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ' 3. The circumstance's, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The same tests have been consistently followed in all other cases, including the case of Ashok Kumar vs. State of Madhya Pradesh, .

(25) If the said tests are made applicable on the facts of this case, we can safely reach at the conclusion that in the instant case also the circumstances cumulatively form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.

(26) The extra-judicial confession is not ordinarily considered to be a strong piece of evidence. But in this case, it is of an extraordinary character. Here, Public Witness .2 Hari Ram, had seen the accused, Rajit Ram, carrying the dead body of the deceased Ram Palat towards the gali adjacent to his Jhuggi in early hours of 5th April, 1988. Public Witness .2 Hari Ram, asked him as to what he had done. The accused told him that he had committed the murder and requested him with folded hands that as he had seen the murder he should not tell anybody. At that time, the accused was having blood on his person. This evidence is corroborated by the other prosecution witnesses on record. Thereafter the accused was apprehended at the spot. Bloodstained clothes, weapons and other articles have been recovered at his instance. Admittedly, there was dispute over the piece of agricultural land between the accused and the deceased so even the motive to commit the crime can be inferred from the evidence.

(27) Complainant Hari Ram, had no grudge against the accused, Rajit Ram. Therefore, possibility of false implication in the case is totally ruled out. The blood group on the weapons was same as that of the blood group of the deceased. The entire incident has taken place in the shop and the blood was found in the shop. The investigation carried out in the entire case seems to be extremely honest. There has been no attempt on behalf of any of the prosecution witnesses either to overstate the case or suppress any material facts and circumstances in order to fix the accused. The prosecution version seems to be natural and at the same time on all broad particulars, prosecution version is quite consistent. All the circumstances cumulatively lead to only one hypothesis that is the guilt of the accused. As we have mentioned earlier that consistently the Supreme Court has taken the view that conviction can be safely recorded in a case of circumstantial evidence and in extreme cases even the death sentence can be awarded.

(28) Now, we would like to examine whether in the instant case, the learned Additional Sessions Judge was justified in awarding the death sentence to the accused or not. The courts all over the world and particularly in democratic set-ups have been extremely cautious in awarding the extreme penalty of death sentence. The constitutionality of death sentence has been repeatedly examined by the various benches of the Supreme Court including constitutional benches. In Jagmohan Vs. State of U.P., , though constitutionality of death sentence was upheld, but the court has laid down certain guidelines and has come to the conclusion that the death sentence must be awarded in "rarest of rare cases". In Rajendra Prasad vs. State of Uttar Pradesh, , the Supreme Court has also given guidelines that death sentence must be awarded in the "rarest of rare cases". Again in Bachan Singh vs. State of Punjab, , the Constitution Bench of the Supreme Court by a majority judgment has upheld the constitutionality of death sentence. The court also provided the broad guidelines which would be relevant in awarding the sentence. In the case of Bachan Singh (supra), the Supreme Court has reproduced the "aggravating" and mitigating circumstances" as suggested by counsel for the appellant, who argued the matter. The consistent view of the court has been that the death sentence ought to be awarded in the "rarest of rare cases", where there is no hope of any reformation or rehabilitation of the accused and the accused's existence will pose a threat to the society.

(29) Though in the instant case, the crime seems to be quite shocking, injuries are numerous .and quite serious in nature and the murder is preplanned, the main mitigating factor in this case is the age of the accused. According to the statement under Section 313 Code of Criminal Procedure, the age of the accused is 28 years. This statement was recorded on 22.2.91. Therefore on this calculation, the accused was 25 years old when he committed the crime. The Supreme Court in Rajendra Prasad (supra) has mentioned "the crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking than other murders and yet the callous criminal e.g. a lethal economic offender, may be jeopardizing societal existence by his act of murder. Likewise, a hardened murderer or dacoit or armed robber who kills and relishes killing, raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psychotherapy or curative techniques may deserve the terminal sentence. Society survives by security for ordinary life. If we take this ratio of this case and apply to the facts and circumstances of the instant case, particularly in view of the age of the accused, in our opinion, ends of justice would meet by converting the death sentence into life imprisonment.

(30) We must record our deep appreciation for the able assistance provided by Ms. Geeta Mittal as an amices curiae in this case.

(31) The appeal filed by the appellant is partly allowed. While maintaining his conviction u/s 302 of the Indian Penal Code, we convert the death sentence to one of life imprisonment.