Rajesh Kumar vs State
2009 Latest Caselaw 3011 Del

*                      IN THE HIGH COURT OF DELHI


%                               Judgment reserved on: 27.07.2009
                               Judgment delivered on: 06.08.2009


+                        CRL. APPEAL 635/2007

RAJESH KUMAR                                    ...Appellant
                       Through : Ms.Vasudha V.Indurkar, Advocate.

                                      versus

STATE (GOVT. OF NCT OF DELHI) ...Respondent
              Through : Mr.Pawan Sharma, APP.

                   DEATH SENTENCE REF. NO.2/2007

STATE          :       Through : Ms.Richa Kapoor, APP.

                       AND

RAJESH KUMAR : Through : Ms.Vasudha V.Indurkar, Advocate


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?                    Yes

3. Whether judgment should be reported in Digest?                     Yes

: PRADEEP NANDRAJOG, J.

1. This Court has received a Death Reference for

confirmation of the death sentence inflicted upon the accused

Rajesh Kumar. Rajesh Kumar has also filed an appeal

challenging the judgment and order dated 12.3.2007

convicting him for the offence of having murdered Master

Anshul aged 4½ years and Master Harshit aged 9 months. The

unfortunate boys were the children of Mukesh Sethi and

Sangeeta Sethi. We shall refer to Rajesh Kumar as „The

appellant‟. The appellant is the husband of Alka who is the

unfortunate sister of Mukesh Sethi. In other words, the

appellant has been convicted for murdering the nephews of his

wife.

2. The entire evidence against the appellant finds

mention in the statement Ex.PW-1/A of Sangeeta PW-1, which

is the First Information given to the police on the basis of

which the FIR has been registered, as also the endorsement

Ex.PW-32/A made by Inspector Ram Chander PW-32 under the

said statement, which was dispatched from the place of

occurrence at 6:30 PM for the FIR to be registered.

3. The statement Ex.PW-1/A reads as under:-

"I have been residing at 2/129, II floor, Subhash Nagar, New Delhi with my family members for last 7-8 months. Before that I was residing in a flat provided by the corporation at Ashok Nagar. Smt.Alka Dhingra was also residing there in the neighbour hood. Smt Alka Dhingra and her husband Rajesh Dhingra ofter visited us even after our shifting to the present address. Today i.e.28.7.2003, I was present at my house and both my children Anshul aged 4 ½ years and Harshit aged about 9 months had slept around 2.30PM. at about 3:00 PM my brother-in-law(husband of the sister of my husband) Rajesh Kumar s/o Raj Kumar, r/o 53/16 Ashok Nagar came to my house and demanded water from me. I gave him water whereupon he asked for more water and requested me to cook food for him as

he was feeling hungry. When I was about to go to the kitchen for cooking food when my younger son got up and I held him in my arms whereupon Rajesh suggested me to give him the child and asked me again to cook food quickly. Then I went to kitchen but my son kept on crying. Then I came back to bedroom from kitchen and witnessed that Rajesh had lifted my son by securing his feet and hit him against the floor. I took away my child from him. Though he attempted to snatch my son from me but I managed to take him to my neighbour and raised an alarm. My neighbour Pinki who resides in House no.2/130, took my son downstairs. Then, Rajesh bolted the door of the bed room from inside. I could only hear the scream of my elder son to the effect "maa, maa". But, subsequently I could not hear anything. In the meantime, our neighbours Bahadur Singh, Preetam Das Negi and other persons had come up stairs. The police also arrived there. They tried to get the door open but Rajesh did not open. On peeping inside the bed room through the ventilator, Rajesh was found standing in the room whereas my son Anshul was found lying in a pool of blood. Then the police broke open the door and overpowered Rajesh. Rajesh broke the glass of dressing table and slit open the throat of my son with a piece of the glass. My son died on the spot. My younger son has been removed to the hospital for treatment. Rajesh committed the murder of my son in order to teach a lesson to my sister-in-law (husband‟s sister)."

4. The endorsement Ex.PW-32/A reads as under:-

"While on official duty and on getting wireless message, I, inspector Ram Chander alongwith my staff SI Vijay Pal and Ct. Kamal reached house number 2/129, Subhash Nagar, New Delhi i.e. the place of occurrence by an official vehicle and found ASI Jagpal Singh already present there alongwith HC Naresh and Ct. Dinesh. After going upstairs on the second floor of the house, Ct. Dinesh and Ct. Sukhbir Singh produced to me one person namely Rajesh Kumar, son of Raj Kumar, resident of 53/16, Ashok Nagar, Delhi who was already nabbed just on the spot. They also stated that they have broken open the door of the bed room, over powered Rajesh and the dead body of a boy named Anshul is lying there. At this I the inspector moved

ahead and saw inside the room from its door and found the dead body of a boy namely Anshul lying in a pool of blood on the floor near the door. His throat was found slit open and he was wearing a white vest. The glass of the dressing table which was kept near the dead body was also found broken and the pieces thereof were found scattered near the dead body. Some of the pieces were stained with blood. Blood stains were also splattered over the wall. It appears from the scene of crime that the accused having broken the glass of dressing table committed the murder of child Anshul by slitting his throat with a piece of glass. The other child Harshit aged 1 year has already been removed to the hospital. After having left the staff at the spot, I, the inspector alongwith SI Inder Singh reached Chanan Devi hospital, Janak Puri and found a small kid, Harshit son of Mukesh Sethi, resident of 2/129 Subhash Nagar admitted in the hospital vide MLC No. 593 dated 28.7.2003. after obtaining MLC, I the inspector returned to the spot where the complainant Smriti Sangeeta Sethi came across me and got her foregoing statement recorded. The contents of the aforesaid statement, inspection of the dead body, perusal of MLC and the spot reveal the commission of an offence punishable under Section 302/307 IPC. Hence, the writing is being got sent to the police station through Const.Kamal No.1619/W for the purpose of the registration of a case (FIR). After registration of a case, its number may please be communicated. The higher authorities and crime team have already arrived at the spot. The special report may be sent to the concerned officers through special messenger. I, the inspector am busy with the investigation at the spot.

       Date and hour of occurrence :     28.7.2003
                                         At 3:15 PM."

5. We commence our narratives from the beginning.

As recorded in the PCR Form Ex.PW-27/A, the duty officer in

the Police Control Room received a call from a number

20056630 at 15:38 hours on 28.7.2003 informing that a man

has entered a house in Subhash Nagar and had assaulted two

children and had locked the door from inside. Another call was

made to the Police Control Room over mobile No.9810458303

as recorded in the PCR Form Ex.PW-31/A noting that the

informant had informed that a man had murdered two children

inside House No.2/129 Subhash Nagar near Arya Samaj

Temple.

6. Each time, on receipt of afore-noted information,

the duty officer at the police control room relayed the

information to the concerned police station i.e. PS Rajouri

Garden, where the duty constable recorded the said

information by way of entries in the daily diary register, being

DD No.11, Ex.PW-16/A at 3:35 PM and DD No.12, Ex.PW-16/B

at 3:50 PM.

7. ASI Jagpal PW-22 was handed over a copy of both

the DD entries and was deputed to investigate. He took along

with him HC Naresh PW-19 and Const.Sukhbir PW-24. The

three police officers reached House No.2/129 Subhash Nagar.

A crowd had gathered outside the house. Mr.Bahadur Singh

PW-4 a resident of House No.2/130 Subhash Nagar i.e. the

immediate neighbour and one Mr.Negi (not examined as a

witness), were present in the gathering and told the police

officers that the assailant had locked himself in a room on the

second floor of House No.2/129 Subhash Nagar. The officers

climbed up the staircase and reached the second floor and

knocked at the door. The man inside did not oblige. The three

police officers had a peep inside through the ventilator above

the door and were horrified to see the body of a male child,

smeared with blood and the neck badly cut. Blood was

splattered all over the room. They had no option but to break

open the door and apprehend the man inside who was none

else but Rajesh Kumar, the appellant.

8. Inspector Ram Chander PW-32, the SHO of PS

Rajouri Garden, was conveyed the information about a man

killing two children on the second floor of House No.2/129

Subhash Nagar. He reached the house and by that time the

appellant had been apprehended by ASI Jagpal Singh, HC

Naresh and Const.Sukhbir.

9. The scene at the house was chaotic. The lady of

the house Sangeeta Sethi was dumbfounded. She was

hysterical and crying bitterly. She was in no state to be

questioned. Except to grieve over the death of her young son

and be concerned about the life of the other who had been

removed to the hospital, the unfortunate mother could render

no immediate assistance to the police. Of course, she was not

expected to be concerned with the procedures of the law. Her

concern was her younger son Harshit who had already been

removed to the hospital by Sanjeev Narula PW-5, who is the

elder brother-in-law of Mukesh Sethi, the husband of Sangeeta

Sethi.

10. On learning that Harshit had been removed to

Chanan Devi Hospital, Insp.Ram Chander went to the hospital

and learnt that Harshit was in an unconscious state. He

collected the MLC Ex.PW-8/A of Harshit and returned to the

spot.

11. By this time Sangeeta had somewhat regained her

composure. She told as to what had happened. Her

statement Ex.PW-1/A was recorded. If correct, which

evidences that being the husband of her sister-in-law,

Sangeeta welcomed the appellant when he reached her house

and as he demanded water to quench his thirst, she gave him

a glass of water and on his expressing a desire to feed his

hunger, she proceeded to the kitchen to bring food. Her two

sons Master Anshul and Master Harshit were sleeping in the

room. As the mother left, Master Harshit awoke from his sleep

and started crying. Rajesh Kumar told her that he would

comfort the child. Assured that her young son was in the safe,

warm and loving hands of his uncle, unaware of the impeding

danger to her children, Sangeeta proceeded to the kitchen but

returned without the food because the cries of her child

Harshit did not stop and probably she thought that she should

first comfort her son. What she saw when she took the first

step inside her living room was horrific. Rajesh Kumar had her

son Harshit in his hands, but not in the comforting hands of an

uncle but the destructive hands of a demon. Rajesh Kumar

was holding the child from the feet and within a flash smashed

the child, head down, on the floor. The child yelled, howled

and screamed. Sangeeta rushed to snatch her child from the

destructive hands of Rajesh Kumar, who made an attempt to

once again smash the head of the child on the floor. Sangeeta

managed to snatch Master Harshit from the hands of Rajesh

Kumar. Instinctively, she rushed to the door. She yelled and

cried for help. Pinki PW-3 a resident of the second floor of the

neighbouring building was the first person to be seen by

Sangeeta. The child i.e. Master Harshit was handed over by

Sangeeta to Pinki. Events continued. The devil in the

appellant was at work. To the utter disbelief, horror and shock

of Sangeeta and Pinki, the door of the living room was locked

from inside and Sangeeta could hear the frantic and desperate

cries of her second son viz. Anshul who was crying „Ma Ma‟

(mother mother). Suddenly, there was a deafening silence.

The cries of the young child were heard no more. He was

killed inside the room. The weapon was a broken piece of

glass picked up after breaking the dressing table glass inside

the living room.

12. Inspector Ram Chander recorded the statement

Ex.PW-1/A of Sangeeta Sethi and made an endorsement

Ex.PW-32/A on the same. He sent the same through

Const.Kamal at 6.30 PM for registration of an FIR. HC Rajesh

Tyagi PW-17, the duty officer at PS Rajouri Garden, recorded

the FIR Ex.PW-17/A at 6:50 PM on basis of the statement of

Sangeeta Sethi and sent a copy of the FIR back to the spot

with Const.Kamal. Const.Amarender PW-8 was handed over

the FIR to be delivered to the Area Magistrate and he left the

police station at around 7:20 PM and returned at 10:10 PM.

13. At the spot, the crime team, consisting of SI Manoj

Kumar PW-15 (a finger print expert) and Const.Ram Niwas PW-

14, a photographer also reached. SI Manoj Kumar inspected

the site and lifted three chance prints Q-1, Q-2 and Q-3 from a

broken pieces of glass in the room. Const.Ram Niwas took 27

photographs Ex.PW-14/A-1 to Ex.PW-14/A-27 of the spot from

different angles; negatives whereof are Ex.PW-14/B-1 to

Ex.PW-14/B-27.

14. From the room in which the dead body of Anshul

was lying, Inspector Ram Chander seized a broken piece of

glass Ex.P-1 which was lying on the chest of Anshul, as

recorded in Ex.PW-2/A. He further seized glass pieces Ex.P-3

scattered near Anshul, a pair of blood stained chappals Ex.P-2

and the blood lying on the spot on a gauze as recorded in the

seizure memo Ex.PW-2/B. A titan make wrist watch Ex.P-8

lying in the room stated to be belonging to the accused as also

a Bajaj Chetak scooter having registration No.DL-4SL-2434

parked outside the house also stated to be belonging to the

appellant were seized as recorded in Ex.PW-2/C and Ex.PW-

2/D. The rough site plan Ex.PW-32/B was prepared noting the

spots from where pieces of broken glass, the dead body of

Master Anshul were lifted as also the dimensions of the room.

15. Even police officer who had reached for

investigation and were men of steel with strong emotions,

found their composure abandoning them. So horrifying and

diabolic was the manner of the crime that even they thought

that no sane person was capable of acting with such extreme

brutality, cruelty and bestiality. The appellant is the son-in-law

of the family. They could never imagine that sharing such a

close bond with the family, the appellant could act thus if he

was in his senses. In all fairness to the appellant the

investigating officer called for a psychiatrist namely Dr.Rajat

Mishra PW-7, who did not find an abnormality in the behavior

of the appellant wherefrom he could be certified as an insane

person. His report pertaining to the mental condition of the

appellant, Ex.PW-7/A was furnished.

16. The dead body of Master Anshul was seized and

sent to the mortuary of DDU Hospital where Dr.Lalit Kumar

PW-13 conducted the post-mortem and gave his report Ex.PW-

13/D recording therein the following external injuries:

"1. Incised wound (1 x 0.5 cm x chip to bone) Lt. to midline on forehead 2 cm above the medial end of Lt eyebrow and is place vertically and its margin is clear, regular and sharp.

2. Bluish red contusion (4 cm x 2 cm) on Lt side of forehead 1.5 cm above Lt eyebrow.

3. Incised wound linear immature (2.5 cm) placed vertically oblique.

4. Incised wound (4 cm x 1.5 cm x chip to bone) on occipital region of head (occipital protuberance) and is placed horizontally and margins are regular.

5. Incised wound (1 x 0.5 cm x chip to bone) on Lt parietal protuberance and placed vertically and margins are regular and clear.

6. Incised wound (2 cm x 0.5 cm x chip to bone) 2 cm above the injury No.5 in Lt parietal region and margins are regular, sharp and clear.

7. Incised wound (9 cm x 7.5 cm x chip to cervical spine) on Lt side of neck in front and is place obliquely and extending from angle of mandible on Lt side to suprasternal mortem expansion all underlying muscle/vessel/arms.

8. Incised wound (3 cm x 1 cm x chip to bone) on back of Lt elbow joint.

9. Linear incised wound (2 cm in length) on Rt shoulder in front and is placed obliquely.

10. Incised wound (2.5 cm x 1.5 cm x 1 cm) 1.5 cm below the linear border of mandible on Lt side and in front and below the chin nave on Lt side and is placed horizontally. The margin of wound are clear, regular and sharp.

11. Bluish red contusion (6 cm x 6 cm) on Lt side of mear anterior axillary fold on Lt axilla."

17. He opined that Anshul had died due to

haemorrhagic shock occasioned by the cutting of his juggler

vein and blood vessels. He opined that injuries 4 to 7 were

collectively sufficient to cause instant death. After the post-

mortem Dr.Lalit Kumar handed over the white sandoz vest on

the body of Harshit as also his blood sample on a piece of

gauze which were seized as recorded in the memo Ex.PW-

30/A.

18. The investigation being complete; the appellant

being found not to be insane, the police personnel left for the

police station. The appellant was formally arrested as

recorded in the arrest memo Ex.PW-32/F at 10:00 PM. His shirt

Ex.P-5 and his pant Ex.P-4 which were stained with blood were

seized as recorded in the memo Ex.PW-12/A.

19. At the police station the investigating officer

obtained the specimen finger prints Ex.PW-23/C of the

appellant.

20. Unfortunately Master Harshit could not survive and

died the same night. This information being made available to

the investigating officer he proceeded to the hospital where

Harshit died. The dead body was seized and sent for post-

mortem to DDU Hospital where Dr.Lalit Kumar conducted the

post-mortem and prepared the report Ex.PW-13/C recording

therein the following 6 injuries on the body of the young boy:-

"1. Contusion bluish red in colour (4 cm x 3 cm) on Rt side of forehead.

2. Bluish red contusion (3 cm x 2 cm) on Lt side forehead.

3. Bluish red contusion (5 cm x 3 cm) on Rt temporal region.

4. Bluish red contusion (1.5 x 1 cm) in uppermost part of Rt ear pinna.

5. Bluish red contusion (5.5 cm x 3.5 cm) on Lt temporal region.

6. Bluish red contusion (3.5 x 2.5 cm) on Rt side of occipital region."

21. He opined that death was caused due to laceration

of the brain and internal haemorrhage. After the post-mortem

a sandoz vest worn by Anshul and his blood sample on a piece

of gauze was handed over as recorded in the memo Ex.PW-

30/B.

22. The investigating officer recorded the statement of

Pinki PW-3, Bahadur Singh PW-4, Sanjeev Narula PW-5, Mukesh

Sethi PW-2, Charanjeet Singh PW-11 and Sukhvinder Singh PW-

10. Each informed the police officer of the time they reached

the house where the crime took place and the circumstances

under which they reached as also what they saw.

23. The blood stained vests of Harshit and Anshul as

also their blood sample handed over by Dr.Lalit Kumar after

the post-mortem; the blood stained shirt and pant of the

appellant as also the blood stained articles which were lifted

from the room were sent to a serologist at the Forensic

Science Laboratory and the report Ex.PW-34/B was obtained

by the investigating officer as per which blood group of Anshul

was opined to be of group „AB‟. The glass pieces and the swab

containing the blood lifted from the room were detected with

the presence of human blood of group „AB‟. Human blood of

same group was detected on the pant and shirt of the

appellant as also on the vest of Master Anshul. The blood

group of Master Harshit was detected as group „B‟ and blood of

said group was detected on the vest of Master Harshit.

24. The chance fingerprints Q-1, Q-2 and Q-3 as also

the specimen fingerprints Ex.PW-23/C of the appellant taken

by the investigating officer when the appellant was in police

custody were sent to a fingerprint expert, Kalpana Sharma PW-

23, who opined vide report Ex.PW-23/A, that the chance

fingerprint Q-1 matched the specimen fingerprint S-1

pertaining to the right hand middle finger of the accused.

25. The appellant was sent to trial. He was charged

with the offence of murdering Anshul and Harshit.

26. At the trial, Sangeeta PW-1, the unfortunate mother

of the two children, deposed that she was a housewife and was

living on the second floor of house No.2/129, Subhash Nagar at

the time of the occurrence. Her elder son was named Anshul

and the younger was named Harshit. Their age was 4½ years

and 8 months respectively. The incident took place at around

3:00 PM on 28.7.2003 when she was present in her house and

her sons were sleeping in the bed room. Appellant came and

asked for water. She gave him water. Appellant wanted a

meal. She went to the kitchen and heard cries of Harshit. She

returned and picked up Harshit. Appellant told her to give the

child to him and cook meals for him. She gave her child to the

appellant and went to the kitchen. Her son cried continuously

even in the arms of the appellant and suddenly the crying

stopped. She went to the bed room and saw that her son was

being held from his legs by the appellant who was hitting the

child on the floor. Her other son was sleeping on the bed in

the same room. She snatched her son from the appellant and

rushed to Pinki‟s house and handed over her unconscious son

to Pinki and rushed back, by which time the appellant had

bolted the door. She raised an alarm. She heard her son

crying „Ma Ma‟. Suddenly the cries died down. By that time

her neighbour Pritam Singh and Bahadur as also a few other

persons gathered. The police arrived and a police person

climbed a table and through a ventilator saw the dead body of

her son and the appellant standing nearby. They pushed

opened the door. She saw her son with his throat slit. A piece

of glass, stained with blood, was lying on the chest of her son.

The dressing table glass was broken. The walls were stained

with blood. Her statement Ex.PW-1/A was recorded by the

police. The site plan was prepared by the police. Sangeeta

was cross examined and during cross examination firstly

stated that her statement was recorded at around 4:00 PM and

then went on to say that it was around 5:30 PM. She admitted

that there was no quarrel between her husband and the

appellant qua the demand of any money, but volunteered that

the appellant used to demand money from her husband. We

note that many questions have been put to Sangeeta during

cross examination but none are relevant for the purposes of

the inquiry pertaining to the crime and hence we do not note

the same. We hasten to record that learned counsel for the

appellant, during argument of the appeal, had referred to

aforesaid two facts stated by Sangeeta when she was

subjected to cross examination and hence we have noted the

same.

27. Mukesh Sethi PW-2, the husband of PW-1, deposed

that on the day of the incident i.e. 28.7.2003, he was residing

with his wife and children on the 2nd floor of house No.2/219,

Subhash Nagar that the appellant was the husband of his

sister Alka, and was unemployed for the last 2½-3 years and

during this period used to demand money for setting up

business and that he gave him Rs.15,000/- and Rs.20,000/- on

two occasions. 15-20 days prior to the date of the incident the

appellant had demanded more money which he refused

because he did not have money to spare. On 28.7.2003 at

around 4-4:15 PM he was sitting in his house and received a

call from his wife who rang up from a neighbour‟s house at

4:45 PM. He reached his house and saw a crowd and the

police. His wife was crying. His children had been killed. His

younger son had been removed to the hospital and the other

was lying dead inside the house. When he went inside the

house he saw blood stains all over. He saw blood stained palm

prints on an almirah. Crime team came and lifted finger prints

from broken piece of glass as recorded in the memo Ex.PW-2/A

which was signed by him at point A. Pair of chappals and

broken pieces of glass as also blood soaked gauze were lifted

from the room as recorded in the memo Ex.PW-2/B. A wrist

watch was lifted from the dressing room as recorded in the

memo Ex.PW-2/C. Scooter of the appellant was seized as

recorded in the memo Ex.PW-2/D. The dead body of his son

was removed to the mortuary. His son Harshit died at around

8:30 PM. His body was sent to the mortuary. That the shirt

Ex.P-5 and the pant Ex.P-4 worn by the appellant were stained

with blood.

28. PW-2 was cross examined and he admitted that

relations between him and the appellant were normal. He

stated that he saw the appellant for the first time after the

incident in the police station only. He denied that the

appellant was mentally sick. We note that PW-2 has been

subjected to a lengthy cross examination, but as conceded by

learned counsel for the appellant, nothing has been brought

out in the cross examination to discredit him and hence we do

not note the sweep and span of the cross examination of PW-2,

save and except what has been noted in the preceding part of

this paragraph, since learned counsel for the appellant had

urged submissions predicated thereon.

29. Pinki PW-3, deposed that at 3:00 PM on 28.7.2003

she was inside her house No.2/130, 2nd Floor, Subhash Nagar.

Sangeeta, her immediate neighbour, knocked the door of her

house and she saw Harshit in her arms. Sangeeta told her to

save her son and that he is killing them. Handing over Harshit

to her, Sangeeta went back. She crossed from the front of her

house and saw Sangeet shouting at the door of her bed room

which was closed. Harshit was unconscious. She ran down

and rang the bell of the house of Bahadur Singh and narrated

the incident. Sanjeev Narula took Harshit from her arms and

left for the hospital. She went up to the second floor and

learnt that the appellant had killed Anshul. On being cross

examined she admitted that when Sangeeta came to her

house with Harshit she did not tell the name of the person

insider her house.

30. Bahadur Singh PW-4, deposed that on 28.7.2003 at

about 3:30 PM when he was present on the 1st floor of his

house No.2/130, Subhash Nagar his neighbour Pinki came

shouting down yelling that someone is killing/beating the

children of Sangeeta who was living on the 2nd floor of the

house. Pinki had a child in her arms. He rushed to the house

of Mukesh Sethi at the 2nd floor and saw the door closed.

Police arrived. The door was not closed. It was forcibly

opened. Appellant was caught inside. Dead body of the son of

Mukesh with blood splattered all over was seen by him. Glass

of the dressing table was broken. A piece of glass was lying on

the chest of the dead body of the child.

31. Since no submissions were urged during hearing of

the death reference and the appeal pertaining to the cross

examination of PW-4; noting that nothing has been brought

out in the cross examination to discredit the testimony of PW-

4, we do not note the cross examination of PW-4.

32. Sanjeev Narula PW-5, deposed that Mukesh is his

brother-in-law and Sangeeta is the wife of Mukesh. Rekha,

sister of Mukesh, is his wife. Alka, the other sister of Mukesh

was married to the appellant who was unemployed for the last

2-3 years. The appellant was not financially sound and used to

borrow money. Even he had lent Rs.40,000/- to the appellant.

On 28.7.2003, he learnt about the incident in his office at 3:45

PM and reached Mukesh‟s house by 4:15 PM. A lady handed

over Harshit to him. Harshit had a head injury. He took

Harshit to Chanan Devi Hospital where he expired in the

evening.

33. Sanjeev Narula was cross examined very briefly. A

suggestion was given to him that the appellant was not in any

financial distress and that the appellant never took any money

from him. Both suggestions were denied.

34. Sukhvinder Singh PW-10, deposed that Bahadur

Singh is his neighbour. That he i.e. Sukhvinder Singh resides

on the ground floor of house No.2/130, Subhash Nagar. He

learnt that a child had been killed in the house of Mukesh Sethi

who resided on the 2nd floor of house No.2/129, Subhash

Nagar. He informed the police on his mobile phone having

No.9810458303 and the police arrived after sometime. The

appellant was arrested at the spot. No arguments were

advanced pertaining to the cross-examination of this witness

and hence we do not note the same.

35. Charanjit Singh PW-11, deposed that he was a

resident of house No.6/107, Subhash Nagar and he was

present in the house of Bahadur Singh who was his uncle. He

learnt that the children of Mukesh were killed and he informed

said fact to the police through his number 20056630 (a mobile

number provided by MTNL under its Garuda Scheme). That

the appellant was arrested at the spot itself by the police. We

may note that during cross-examination Charanjit Singh PW-11

stated that when he saw Sangeeta who was crying, she did not

name the appellant as the assailant of her children.

36. We are not noting the testimony of the various

police officers who were associated with the investigation as

they simply proved the various memos prepared by them

pertaining to the various seizures effected and the

investigation conducted. We do so for the reason hardly any

investigation needed to be conducted to crack the crime, since

the appellant, as claimed by the police, was apprehended at

the spot.

37. We note that that ASI Jagpal Singh PW-22, HC

Naresh PW-19 and Const.Sukhbir PW-24 have deposed and

proved that they apprehended the appellant after breaking

into the living room of the house of Mukesh Sethi on the 2 nd

floor of house No.2/129, Subhash Nagar. Various other police

officers who had recorded the daily diary entries proved the

same. Const.Amrander PW-28 deposed that he delivered a

copy of the FIR to the learned Metropolitan Magistrate at

Dwarka and returned to the police station by 10:00 PM. HC

Rajesh Tyagi PW-17 deposed that he received the rukka at

6:50 PM and registered the FIR Ex.PW-17/A and made a

corresponding DD Entry vide DD No.16-A recording said fact

and sent Const.Amrander at about 7:20 PM as noted in DD

No.17-A, to deliver copy of the FIR to the Area Magistrate and

that Const.Amrander returned at 10:10 PM and recorded his

return in the daily diary register, vide DD No.19-A. Dr.Rajat

Mitra PW-7 deposed that the report Ex.PW-7/A was given by

him after examining the appellant who was examined by him

at the asking of the police officer of PS Rajouri Garden. SI

Manoj Kumar PW-15 deposed that he lifted chance finger

prints from a piece of glass inside the room and that the glass

pieces were lying around the body of Anshul. Dr.Lalit Kumar

PW-13, proved the post-mortem reports Ex.PW-13/C and

Ex.PW-13/B.

38. The appellant simply denied each and every

incriminating circumstance put to him, save and except gave

an evasive reply of his being present in the house of Mukesh

Sethi. What happened in the house on the day of the incident

was also evasively answered by him. Question No.1 to 18 and

the answers given by the appellant are as under:-

"Q1. It is in evidence against you that you are Jija (brother-in-law) of PW-2 Mukesh Sethi R/o 129/2, Second Floor, Subhash Nagar, Delhi. What you have to say?

A. It is correct.

Q2. It is in evidence against you that on 28.7.03 at about 3.15 PM you came to the house of Mukesh Sethi and committed murder of his two sons Anshul aged about four and a half years and Harshit aged about 8 months. What you have to say?

A. I do not know. It may be that on that day I have gone to the house of Mukesh Sethi but I cannot say if the murder of the two children had been done by him. I was not knowing the nature of my action.

Q3. It is in evidence against you that at that time PW- 1 Smt.Sangeeta Sethi Wife of Mukesh Sethi was present in the house alongwith Anshul and Harshit. What you have to say?

A. As far as I remember on 28.7.2003 I was totally all right upto 8:00 AM in the morning when I drop my wife and children to the office and school. Thereafter from 10:00 AM onwards I found myself uneasy and was not able to judge my actions. So I cannot say if Sangeeta Sethi was present in the house of Mukesh Sethi alongwith Anshul and Harshit in the house at about 3:00 PM on 28.7.2003.

Q4. It is in evidence against you that at the time of your visit both sons of Mukesh Sethi were sleeping in the bed room of the flat. What you have to say?

A. I do not remember if both sons of Mukesh Sethi were sleeping in the bedroom of their flat or not.

Q5. It is in evidence against you that you asked for the water from PW-1 Smt.Sangeeta Sethi and she gave the water to you. What you have to say?

A. I do not remember if I had asked for the water from Sangeeta.

Q6. It is in evidence against you that thereafter you asked Smt.Sangeeta Sethi to cook the meal for you. What you have to say?

A. Due to my mental condition of which I was having my treatment from last about two years I was

not able to know the condition of myself and my acts and even today I do not remember if I had asked Smt.Sangeeta Sethi to cook the meal for me.

Q7. It is in evidence against you that Smt.Sangeeta Sethi went to the kitchen and when she was there she heard the cries of her younger son Harshit. What you have to say?

A. I do not remember.

Q8. It is in evidence against you that Smt.Sangeeta Sethi came back and picked up Harshit. What you have to say?

A. I do not remember.

Q9. It is in evidence against you that at that point of time you were standing outside the bed room. What you have to say?

A. I do not remember.

Q10. It is in evidence against you that you asked Smt.Sangeeta Sethi to give Harshit to you and to cook the meal. What you have to say?

A. I do not remember.

Q11. It is in evidence against you that Smt.Sangeeta Sethi gave Harshit to you and she went in the kitchen. What you have to say?

A. I do not remember.

Q12. It is in evidence against you that Harshit was still continuously crying even in your arms. What you have to say?

A. I do not remember.

Q13. It is in evidence against you that after sometime Harshit stopped crying and when Smt.Sangeeta Sethi came to see him again in the bedroom she found you holding Harshit from the legs and hitting him on the floor. What you have to say?

A. It is wrong. I cannot do this.

Q14. It is in evidence against you that Smt.Sangeeta Sethi snatched away Harshit from you. What you have to say?

A. I do not remember.

Q15. It is in evidence against you that at that time Anshul the second son was sleeping on the bed in the same room. What you have to say?

A. I do not remember.

Q16. It is in evidence against you that when Smt.Sangeeta Sethi along with Harshit went outside the bedroom you pulled Anshul from his legs. What you have to say?

A. It is wrong. It appears to be some other person had done this and this story has been set up to implicate me.

Q17. It is in evidence against you that Smt.Sangeeta Sethi alongwith Harshit immediately ran to the house of Pinki a next door neighbour. What you have to say?

A. I do not remember.

Q18. It is in evidence against you that Smt.Sangeeta Sethi left Harshit with Pinki. What you have to say?

A. I do not remember."

39. To the other incriminating circumstances put to

him, the appellant replied: „ I do not know'.

40. When questioned at the end of his examination,

whether he had anything to say, the appellant responded:-

"I am unwell since childhood. I am on medicine since then. The problem with me is that I fell anywhere while walking. I also start shouting. I become unaware about myself. My treatment was undergoing in jail and of late now I have left my treatment as doctor is not going to change my medicine. The

problem which I was facing in the past has re- surfaced. Even in the past while I use to drive my eyes use to get closed of its own. Mukesh and his relations know about my medical problem.

I do not know how Anshul and Harshit have expired. I am innocent. I have been falsely implicated. My medical documents have been torn apart by my wife and for that reason out of having a sense of guilt she has not come to see me even in jail. I cannot produce these medical papers."

41. The appellant did not lead any evidence in defence.

No attempt was made either by the appellant or his parokar,

who happened to be his mother, to lead any evidence to show

that the appellant was mentally sick and was under treatment

of any psychiatrist.

42. We may note that the jail record of the appellant

shows his undergoing treatment for „mixed anxiety and

depression disorder'. But, the reports submitted to the

learned Trial Judge categorically record that the appellant was

mentally stable and was fully conscious of the nature of

allegation against him; the offence of which he was charged

of.

43. Even during the pendency of the murder reference

and the criminal appeal, full indulgence has been shown to the

appellant in terms of settling at rest the question whether the

appellant is an insane person. Vide order dated 4.5.2009, it

was directed that a medical board be constituted by the

Director, All India Institute of Medical Sciences to ascertain

whether the appellant was of sound mind and mentally fit to

instruct his counsel regarding the appeal and the death

reference. A board comprising Dr.R.K.Chaddha, Professor of

Psychiatrist, Dr.Manju Mehta, Professor of Clinical Psychology,

Dr.Rajesh Sagar, Associate Professor of Psychiatry and

Dr.P.Kumar, Department of Hospital Administration was

constituted under the chairmanship of Dr.R.K.Chaddha. A

report dated 27.5.2009 was submitted to this Court informing

that the appellant was clinically examined on 22.5.2009. A

psychological test was conducted on him on 25.5.2009. The

board members examined him on 27.5.2009. That the

appellant was found to be of sound mind and mentally fit to

give instructions and that was fully aware of the nature of his

offence.

44. The learned Trial Judge has convicted the appellant

for the offence of having murdered Master Anshul and Master

Harshit. The motive for the crime has been held to be revenge

against Mukesh Sethi. The foundation of the motive is that

Mukesh Sethi did not give money to the appellant who was in a

financial stress. It has been held that the testimony of

Sangeeta Sethi PW-1 was without blemish and she was an eye

witness to the assault on Master Harshit. Her evidence

pertaining to the death of her other son, which needles to

state, was committed when the room was locked inside, was

held without any blemish. So was the testimony of the other

witnesses who deposed being neighbours and saw the door of

the living room closed and when opened, the appellant being

inside, with blood on his shirt and pant and Master Anshul lying

dead with his throat slit.

45. Life is precious and therefore everybody desires to

live. Freedom is precious and everybody desires not to be

sent to prison. The appellant also so desires. Hence he

challenges his conviction in Crl.Appeal No.635/2007.

46. During course of consideration of the death

reference and arguments in appeal, we were taken through

the entire record. The only blemishes (so called), in the

testimony of the witnesses of the prosecution and the

evidence led, pointed out to us by learned counsel for the

appellant were as under:-

(i) The PCR call Ex.PW-27/A records the time as 15:38

hours, whereas the daily diary entry Ex.PW-16/A, at the police

station, records the time 3:35 PM. Thus, learned counsel for

the appellant urged that the police has obviously manipulated

the record. Counsel urged that PCR call is received at the

No.100 and entered in a form and only thereafter the duty

constable at the police control room relays the same to the

local police station concerned. Counsel urges that by its very

nature, an entry in the PCR form must precede an entry in the

daily diary at a police station. Counsel submitted that if

Ex.PW-27/A and/or Ex.PW-16/A could be fabricated by the

police, there was every possibility that everything was

fabricated.

(ii) With reference to the testimony of PW-1 and her

cross-examination, learned counsel urged that in cross-

examination, PW-1 admitted that there was no quarrel

between her husband and the appellant. Thus, counsel urged

that there was no motive proved against the appellant to

commit the crime. Another argument addressed pertaining to

the testimony of Sangeeta PW-1 was that she admitted that

her statement Ex.PW-1/A was recorded at 5:30 PM in spite of

the crime being committed at around 3:30 PM, and the police

arriving at the spot soon after. Counsel urges that the delay in

recording the statement of Sangeeta meant that Sangeeta was

thinking of what to say. Counsel submitted that if everything

was so crystal clear, as was thought to be projected by the

prosecution, the first thing Sangeeta would have done was to

immediately tell the police officers that the appellant had

fatally injured her son Harshit and had murdered her son

Anshul. Counsel urged that in that view of the matter no

credence can be given to the testimony of Sangeeta.

(iii) With reference to the FIR Ex.PW-17/A and the

endorsement thereon by the Area Magistrate that the FIR had

been received: 'At midnight', learned counsel urged that two

things automatically flow therefrom. Firstly, that the police

officers had fabricated DD No.16A as also DD No.19A

pertaining to the registration of the FIR and reporting back by

Const.Amrander at 10:10 PM after having delivered the FIR to

the Area Magistrate. Secondly, according to the learned

counsel it shows that the FIR was not registered at 6:50 PM as

claimed by the prosecution, but much thereafter. From said

inference, counsel submitted that a further inference has to be

drawn that in all probability, Sangeeta‟s statement Ex.PW-1/A,

was recorded not around 5:00 PM but much thereafter.

(iv) Raising a further challenge to the credibility of

Sangeeta, learned counsel urged that as deposed by

Sangeeta, a piece of glass stained with blood was seen by her

on the chest of her son Anshul whereas according to SI Manoj

Kumar PW-15 the piece of blood stained glass from which he

lifted the chance finger prints of the appellant was noted by

him next to the body of Anshul. Thus, counsel urged that

Sangeeta stood further discredited.

(v) Picking on the testimony of Mukesh Sethi PW-2,

learned counsel urged that Mukesh Sethi deposed that when

he went inside the room where his children were murdered he

saw a blood stained palm print inside the room. Counsel urged

that no such palm print was lifted from within the room by

Manoj Kumar PW-15. Thus, counsel urged that Mukesh Sethi

was an untruthful witness.

(vi) In his examination-in-chief, Mukesh Sethi stated

that on 28.7.2003 at about 4-4:15 PM, he was sitting at his

house in Rohini where he received a call from his wife. Picking

on said statement, learned counsel for the appellant urged

that it was apparent that Mukesh Sethi was maintaining two

residences; one being the house at Subhash Nagar where his

children were murdered and the other at Rohini. Counsel

submitted that it is apparent that all was not well in the house

of Mukesh Sethi and his relations with Sangeeta were strained.

Counsel submitted that who knows, in a fit, Sangeeta may

have committed the offence.

(vii) With reference to the testimony of Mukesh Sethi

PW-2 who stated that when he returned home he learnt from

his neighbour that his children were murdered and that he

returned home on receiving a telephone call from his wife,

counsel submitted that this shows that PW-1 i.e. Sangeeta, did

not know the offender when she rang up her husband, for had

she known the appellant to be the offender, she would have

told her husband that the appellant had killed their children.

(viii) Learned counsel very forcefully submitted that the

nail in the coffin of the case of the prosecution about appellant

being apprehended at the spot is belied by the fact that the

arrest memo Ex.PW-32/F shows that the appellant was

arrested at 10:00 PM; drawing attention to the cross-

examination of Mukesh Sethi where he stated that after the

incident he saw the accused for the first time at the police

station, learned counsel urged that this was just not possible if

the appellant was present in the house as claimed by the other

witnesses of the prosecution. Counsel urged that the

admission of Mukesh Sethi during cross-examination, as afore-

noted, proved the absence of the appellant in the house.

Counsel urged that it is apparent that the appellant was

subsequently arrested and falsely implicated as an accused.

(ix) With reference to the testimony of Pinki PW-3,

learned counsel urged that on being cross-examined, Pinki

admitted that when Sangeeta PW-1 handed over Harshit to

her, she i.e. Sangeeta, did not name the appellant as the

person who had assaulted Harshit. Counsel submitted that

during cross-examination, even Charajit Singh PW-11,

admitted that Sangeeta did not name the appellant as the

assailant of her children. Thus, counsel urged that the

contemporaneous conduct of Sangeeta shows that she did not

know the offender.

(x) With reference to the testimony of Sanjeev Narula

PW-5, learned counsel urged that he was the first relative to

reach the house and deposed that he received the information

pertaining to Harshit and Anshul being fatally attacked at 3:45

PM. With reference to the testimony of Mukesh Sethi the

husband of Sangeeta, learned counsel urged that Mukesh

Sethi stated that he received information from his wife of his

children being attacked at around 4/4:15 PM. Counsel urged

that it was most unnatural conduct of Sangeeta to first ring up

a relative and then her husband.

(xi) Counsel submitted that the FSL report Ex.PW-34/B

shows the presence of human blood of group „B‟ on the vest of

Harshit. Counsel urged that no external injury of a kind where

blood oozes out has been noted on the body of Harshit in the

post-mortem report Ex.PW-13/C. Counsel urges that the

presence of blood of group „B‟ i.e. the blood group of Harshit

on his vest casts a suspicion as to wherefrom the blood came.

Counsel urged that the only place wherefrom said blood could

spill/fall on the vest of Harshit is from the hand of he who cut

the neck of Anshul with the broken piece of glass which was

retrieved by smashing the mirror of the dressing table in the

living room of the house. Counsel urged that the prosecution

has led no evidence that the blood group of the appellant was

„B‟.

(xii) Summing up her challenge, learned counsel

submitted that no discount needs to be given with reference to

the circumstance of Sangeeta being traumatized because her

statement, as claimed by her, was recorded by the IO at 3:30

or 4:00 PM. Counsel urged that it shows that Sangeeta was

composed enough, to narrate her version soon after her

children were assaulted. Counsel urged that PW-2 and PW-5

are the relatives of PW-1, being her husband, and the brother-

in-law of her husband. Counsel urged that PW-3, PW-4, PW-10

and PW-11 are neighbours of PW-1 and the possibility of they

being motivated, compelled or threatened to depose falsely by

Sangeeta and her husband cannot be ruled out.

47. Learned counsel urged that there is good evidence

that the appellant was an insane person. The said good

evidence relied upon by the learned counsel was the fact that

Dr.Rajat Mitra PW-7 was called at the spot by the investigating

officer to opine about the mental health of the appellant as

also the record of the jail hospital which showed that the

appellant remained under treatment for mixed anxiety and

depression disorder. Thus, counsel urged, being insane, no

mens rea can be attributed to the appellant. Whatever be his

acts, in the absence of a guilty mens rea, the appellant cannot

be held responsible for his acts, urged the counsel.

48. Lastly, learned counsel submitted that the facts of

this case do not put the case in the category of the rarest of

the rare case, attracting the penalty of death. Listing the

mitigating circumstances, learned counsel urged that there are

five in number. The first is that the appellant is a first time

offender. The second is that he has two sons, a wife and a

widowed mother to support. The third is the fact that financial

hardship created stress in the mind compelling the appellant

to commit the crime. The fourth is the young age of the

appellant who was aged 37 years when he committed the

crime. The fifth is the chance of the appellant‟s rehabilitation

in the society being not ruled out.

49. Before dealing with the submissions urged by

learned counsel for the appellant it needs to be noted that the

photographs Ex.PW-14/A-12 to Ex.PW-14/A-14 show that the

two houses bearing No.2/129 and 2/130, Subhash Nagar are

not only adjacent to each other but have a functional unity

inter se the floors making it convenient and possible for the

residents on the second floor of the two buildings to cross over

to the floor on the other building without undertaking the

cumbersome process of going down the stairs of their building

and climbing up the stairs of the other.

50. The first contention urged pertaining to a hiatus

between the time recorded in the first DD Entry Ex.PW-16/A

i.e. 1538 Hours and the time recorded in the daily diary entry

at the police station being Ex.PW-16/A at 3:35 PM, is not of a

kind, wherefrom an inference of manipulation in the record has

to be drawn. Though desirable, people do not synchronize

their watches with the standard national time. Some people

deliberately fix their watches 5 to 10 minutes ahead of time as

they desire to be always punctual. Be that as it may, the

hiatus is explainable on the premise that watches, clocks etc.

are seldom kept synchronized to the national standard time

and thus the time difference recorded by 2 persons receiving

the information. In the instant case the first telephone call to

the PCR has been made by Charanjit Singh PW-11. He has

deposed of having made the call. Ex.PW-27/A notes that the

caller has rung up from the number 20056630. Charanjit

Singh PW-11 has deposed that he was the subscriber of the

number and that it was a Garuda number. Thus, in view of the

fact that the maker of the telephone call has been examined

and has proved having given the information to the police

control room further corroborates that the call was indeed

made and that the time factor in respect whereof the

submission has been made is the result of the watch of the

duty constable at the police control room being not in sync

with the watch of the duty constable at police station Rajouri

Garden.

51. Submission at serial No.(ii), (vii), (ix) and (x) are

inter-related and impinge upon the contemporaneous conduct

of Sangeeta PW-1. Her state of mind and mental condition is

best described in the words of Charanjit Singh PW-11. On

being cross examined whether Sangeeta told the name of the

person who was inside her house and had seriously injured her

children, Charanjit Singh stated:-

"I was told by wife of Mukesh about killing of her two children as she was crying and raising alarm. She was saying that the person who has killed her children is inside the house and thereafter we immediately rang up the police. It is correct that wife of Mukesh while crying and running here and there was not taking name of the accused as the person who killed her children."

52. What normal behaviour would a rational and a

reasonable person expect from a young mother who has seen,

in front of her eyes, the younger son being virtually smashed

on the floor and the assailant locking the room with the other

child inside and the cries of the child calling out to his mother

piercing the ears of the mother? The conduct has to be of a

person dump folded and except for shouting and shrieking and

hoping that somebody would rescue her second child, doing no

more. The appellant is the son-in-law of the family. He is the

husband of the sister of Sangeeta‟s husband. In India there is

a tradition of female members of the family not referring to, by

name, the male members of the family. Wives refusing to call

their husbands by name; the lady members of the family not

calling by name the son-in-law of the family are not unknown

in Indian society. Besides, the scared mind and the trembling

body of the mother would render her fairly speechless. In the

situation in which Sangeeta was, it is but natural that there

was a disconnect between her mind and her tongue. Thus, her

simply uttering that the killer was inside and not naming the

killer does not evidence that Sangeeta fabricated the name of

the appellant as the killer of her children. It assumes

importance to note PW-10 Sukhvinder Singh and PW-11

Charanjit Singh are the two persons who gave information to

the police through their respective mobile telephone and

Garuda telephone. Their presence at the spot cannot be

doubted as they being the informants, with reference to their

telephone number, finds a mention in Ex.PW-27/A and Ex.PW-

31/A. Both of them have deposed that the appellant was

arrested by the police from a room inside the house of

Sangeeta Sethi. The traumatic condition of Sangeeta is good

enough justification for the investigating officer to delay

recording the statement of Sangeeta to await the presence of

her husband so that Sangeeta could regain her composure.

We may note that at one stage, during cross examination,

Sangeeta did say that her statement was recorded at around

3:30 or 4:00 PM but later on she has corrected herself by

saying that her statement was recorded at 5:30 PM. Similarly,

Sangeeta simply telling her husband over the phone to return

back immediately as a tragedy had be fallen without telling

the name of the antagonist is not unnatural. As held

hereinabove, Sangeeta being dump fold and the right words

and expression eluding her, cannot be ruled out. Her

circumstances was such that she spoke inchoate. Her conduct

of simply telling her husband to hurry back home without

divulging anything more is not unnatural. Similarly, Sangeeta

not naming the appellant when she handed over Harshit to

Pinki or to anyone else is not unnatural. Fear had overcome

her and she was dump fold. That Sangeeta rang up Sanjeev

Narula PW-5, the other brother-in-law of her husband and then

her husband is also not unnatural. The first number of a close

relative which flashes the mind of a person in distress is the

one which is contacted. It is possible that in Sangeeta‟s mind

the first number which flashed was of Sanjeev Narula. It may

have happened that she rang up her husband first but could

not connect through. We need not speculate for the reason

Sangeeta has not been cross examined as to why is it that the

first call was made to Sanjeev Narula and the second to her

husband. We also do not know for sure, whether the first call

was made to Sanjeev Narula and the second to her husband.

The argument of learned counsel for the appellant is premised

on the fact that Sanjeev Narula has stated that he received the

information at 3:45 PM and Sangeeta‟s husband, Mukesh

Sethi, has stated that he received a call from his wife at 4/4:15

PM. The incident took place on 28.7.2003. The husband of

Sangeeta deposed on 27.1.2004. Sanjeev Narula deposed in

Court on 27.2.2004. Fringe events or facts at the fringe of an

event tend to blur with the passage of time because memory

fades. When called upon to disclose a particular time of an

event in the past, one usually resorts to a guesstimate. Thus,

Sanjeev Narula and Mukesh Sethi giving inconsistent/wrong

time; unrelated to the actual time when they received the

information cannot be ruled. That Sangeeta has stated that

there was no quarrel in the past between her husband and the

appellant only means that there were no physical or verbal

duels between the two. Therefrom, it cannot be said that

motive for the crime has not been established. A clear motive

of vengeance/revenge has emerged, being retribution against

Mukesh Sethi for not advancing a friendly loan to the appellant

who thought that as the son-in-law of the family he had a right

to have his demand satisfied. We need not refer to volumes

and volumes of literature on human psychology as to how a

mind poisoned with hate starts reacting.

53. This takes care of the (xii)th summing up submission

made by learned counsel pertaining to how should the

testimony of Sangeeta be viewed, weighed and appreciated.

The other limb thereof that PW-2 and PW-5 are the relatives of

PW-1, and PW-3, PW-4, PW-10 and PW-11 being neighbours

could be manipulated by PW-1, has to be noted and thrown in

the dustbin for the reason the appellant is the son-in-law of the

family and nobody would make him into a son-in-outlaw

without a reason. Why should the neighbours be telling a lie?

Why should Sangeeta, her husband and the co-brother of the

appellant contrive to ensnare him by falsely deposing against

him? Besides, the presence of PW-2 and PW-5 at the place of

the incident, soon after the crime, is natural. Pinki, Bahadur

Singh and Sukhvinder Singh reside in the adjoining houses and

their presence at the spot is natural. Charanjit Singh has given

the reason as to why he was present at the spot. Bahadur

Singh is his maternal uncle and Charanjit Singh was visiting his

maternal uncle.

54. We have gone through the testimony of said

witnesses and the same inspires confidence. The learned Trial

Judge has justifiably accepted their testimony.

55. It is no doubt true that the Area Magistrate has

recorded on the FIR Ex.PW-17/A that he has received the same

at midnight. It is also true that DD No.19-A records the return

of Const.Amrander at the police station at 10:10 PM after

having delivered the FIR to the Area Magistrate. What does

this show? In all probability a wrong time noted when DD

No.19-A was recorded; or probably 10:00 PM was treated as

midnight by the learned Area Magistrate. Be that as it may, it

is too trivial a matter wherefrom it has to be inferred that the

FIR was ante-timed. We may look at the matter from another

angle. Why are FIRs ante-timed? Obviously to gain time so

that evidence can be fabricated or statements contrived by the

maker of the FIR or sufficient time being available with the

maker of the FIR to consult others or think about what to tell to

the police. The promptness in lodging complaints lends an

assurance to the truthfulness of the facts stated for the reason

anything said spontaneously by a person is presumably the

truth for the reason to create and spin lies the evil mind has to

be put to work and fed on the malice inside, which needs time.

The manner in which events transpired and the presence of

independent persons and in particular PW-3, PW-4, PW-10 and

PW-11 who have clearly nailed the appellant is a circumstance

which rules out any foul play by the police requiring the

investigating officer to ante-time the FIR.

56. That SI Manoj Kumar PW-15 has deposed that the

piece of blood stained glass wherefrom he lifted the chance

fingerprints was lying next to the body of Anshul and Sangeeta

having deposed that she saw a glass piece on the chest of her

son does not render Sangeeta to be an untruthful witness.

Indeed, the photographs Ex.PW-14/A-17 to Ex.PW-14/A-20

show a broken piece of glass, stained with blood, on the chest

of the dead body of Master Anshul. Besides, we find no factual

foundation for said submission because PW-15 has

categorically deposed that he saw a glass piece on the chest

of Anshul. The fallacy in the argument of learned counsel for

the appellant is that it is based on the assumption that the

chance fingerprints were lifted from the said glass piece. PW-

15 has only deposed that he lifted chance fingerprints from a

piece of glass lying next to the body of Anshul.

57. The (v)th submission urged is also fallacious and is

premised as if whenever a blood stained print is created by a

palm and is seen, it must necessarily lead to the lifting of a

chance fingerprint. A chance fingerprint is lifted when there is

no smudging and there is clarity in the print. It does happen

that a person, with stained hand, touches a surface and with

the hand moving on the surface or shaking, the print gets

smudged. In this situation, if it happens, the fingerprint expert

would obviously not lift a fingerprint. Whereas a layman would

see a fingerprint, the expert would not.

58. The (vi)th submission urged is equally preposterous.

One refers to the house of one‟s parents as one‟s own house.

Mukesh Sethi stating that he was sitting at his house in Rohini

where he received a call from his wife contains a reference to

the house of the parents of Mukesh Sethi, as told to us at the

bar by learned counsel for the State. We note that there is no

evidence to establish the same. But, by not cross examining

Mukesh Sethi on the point, the appellant cannot be permitted

to create a mountain out of a mole. Said statement of Mukesh

Sethi does not lead to any inference that he was maintaining

two separate residences; much less that his relations with his

wife Sangeeta were strained. We find that no suggestion of

any kind of strained relationship between Sangeeta and

Mukesh have been put to the two when they were cross

examined.

59. That the appellant has been shown apprehended at

10:00 PM as per the arrest memo Ex.PW-32/F and that Mukesh

Sethi has deposed that after the incident he saw the appellant

for the first time at the police station is the foundation of the

(x)th submission made. As noted above, the conclusion sought

to be projected is that if Mukesh Sethi is to be believed, it is

obvious that the appellant was not apprehended at the spot

but somewhere else at 10:00 PM.

60. There is always an interval of time between the

apprehension of an accused and his being arrested. An arrest

memo is drawn up as a formal document showing the accused

being apprehended and arrested. Yes, it is expected that the

moment an accused is apprehended his arrest memo should

be drawn up without any time gap. But, in the facts and

circumstances of the instant case where there is overwhelming

evidence against the appellant, the said lapse by the

investigating officer has to be ignored as a procedural lapse,

not affecting the purity of the investigation. It is settled law

that if otherwise proved by good and clinching evidence,

lapses by the investigating officer cannot be allowed to

become an escape route by an accused. As noted above the

arrest of the appellant from the living room of the residence of

Mukesh Sethi and his being found inside the room when the

door was forcibly opened has been proved to the hilt through

the testimony of PW-1, PW-3, PW-4, PW-10 and PW-11 out of

whom, PW-3, PW-4, PW-10 and PW-11 are unrelated to PW-1

and PW-2 and no animus qua the appellant of theirs has been

brought out.

61. It appears to be a case where when he stated that

after the incident the accused was seen by him at the first

time in the police station PW-2 intended to convey that after

everything was over he saw the accused thereafter for the first

time at the police station. Be that as it may, the testimony of

the other witnesses of the prosecution being PW-1, PW-3, PW-

4, PW-10 and PW-11 as also HC Naresh PW-1, Const.Sukhbir

PW-24 and ASI Jagpal PW-22, the three police officers who

reached the house, and have deposed that the door of the

living room had to be pushed/broken open when the person

inside did not respond to the request to open the door and that

the appellant was apprehended from the room inside

concludes the issue decisively against the appellant.

62. The learned Trial Judge has noted that the FSL

Report Ex.PW-23/A evidences that the chanced print Q-1

matched the specimen fingerprint S-1 of the appellant and

that the chanced print Q-1 was blood stained. The learned

Trial Judge has thus concluded that even said fact shows the

presence of the appellant inside the house. We eschew

reference to the FSL Report for the unfortunate reason that the

investigating officer has not complied with the provisions of

Section 5 of the Identification of the Prisoners Act 1980, in

that, the permission of neither the Magistrate nor the Court

concerned was obtained before obtaining the specimen

fingerprints of the appellant and even the prisoner was not

identified as required by law. Unfortunately, a very

incriminating piece of evidence has been rendered sterile.

But, from the answers given by the appellant to questions 1 to

18 and in particular the answer to question No.2, shows the

admission by the appellant of being present in the house of

Mukesh Sethi i.e. the 2nd Floor of House No.2/129, Subhash

Nagar.

63. The submission that blood of group „B‟ being

detected on the Sandoz vest removed from the body of Master

Harshit evidences that blood of said group fell on his vest and

since the injury on Master Harshit did not show external

bleeding required an inference to be drawn that the said blood

stain was the result of the blood of the assailant falling on the

vest of Master Harshit. Learned counsel urged that the neck of

Master Anshul was cut with a piece of glass and in the process

it was but natural that the hand of the assassin would receive

some cut and as a result blood would flow out. Counsel urged

that the prosecution has not established that the blood group

of the appellant was „B‟. The submission is by ignoring the

evidence on record. Firstly, the testimony of PW-1 establishes

that Anshul was injured after PW-1 had removed her son

Harshit from the clutches of the appellant. Thus, blood from

the hand of the assailant soiling the vest of Harshit does not

arise. Further, the report of the serologist i.e. Ex.PW-34/B

clearly shows that the blood group of Master Harshit was „B‟.

The post-mortem report Ex.PW-13/C of Master Harshit shows

contusions over the forehead, temporal region, occipital region

and ear pinna. Internal injuries show laceration of the brain.

Nasal bleeding would certainly have resulted. It is obvious

that the vest of Master Harshit was soiled with his own blood.

Besides, after death of a person, medico-legal jurisprudence

tells us, in case of internal injuries, blood starts oozing out

from the orifices of the body. Harshit had sustained cerebral

injuries and on his death blood oozing out from his eyes,

nostrils and the mouth was natural.

64. The plea of insanity of the appellant has been

raised very half heartedly. Its foundation is the act of the

investigating officer calling a psychiatrist i.e. Dr.Rajat Mitra

PW-7 to the spot to examine the appellant as also the record

of the jail hospital which shows that the appellant was treated

for mixed anxiety depression disorder.

65. The appellant was the son-in-law of the Sethi

family. The relationship is a pious relationship. The depravity,

brutality and cruelty with which Master Harshit and Anshul

were killed and the attendant circumstances would have led

anyone to suspect that only an insane person would do the

act. The investigating officer so thought and to reassure

himself summoned Dr.Rajat Mitra. But, the report Ex.PW-7/A

of Dr.Rajat Mitra does not establish the insanity of the

appellant. Each and every mental disorder cannot be equated

with insanity. A mental imbalance by itself does not mean that

the person is insane. Insanity contemplated by Section 84 of

the Penal Code is such unsoundness of mind which renders the

person of unsound mind incapable of knowing the nature of

the act or that what he is doing is wrong or contrary to law.

Anger or hatred certainly blurs rational thinking. Can this be

equated with insanity? Obviously not. The reason is that

every human being is expected to control his emotions and

remain in his senses, for the contrary view would justify, on

the plea of temporary insanity, the most depraved crimes. As

held in the decision reported as AIR 1972 SC 2443 Seralli Wali

Mohammad Vs. State of Maharashtra, it would be most

dangerous to admit the defence of insanity upon arguments

derived merely from the character of the crime. A plea of

insanity has to be proved by cogent evidence and to succeed it

must be shown that the accused was so bereft of himself and

his faculties that no mens rea could be attributed to him.

Indeed, every person is presumed to be same unless proved to

the contrary.

66. There is no evidence that at the time when the

offence was committed the appellant was under medical

treatment pertaining to his mental health. No medical record

has been produced. No doctor has been examined in defence.

As noted in para 43 above, even during the pendency of the

Death Reference and the Appeal, full indulgence was shown to

the appellant and he was got examined by a Board of Experts

at the All India Institute of Medical Sciences, a premier medical

institute in India; the appellant has been certified as a sane

person.

67. We reject the plea of insanity.

68. Having concurred with the view taken by the

learned Trial Judge that the evidence on record establishes,

beyond a shadow of doubt, that the appellant murdered

Master Anshul and Master Harshit, and that the appellant was

not an insane person when he committed the offence, the

further question which requires consideration is: Whether the

instant case attracts the levy of death penalty.

69. The constitutional validity of Section 302 IPC,

insofar it sanctions levy of a penalty of death for the offence of

murder, has been upheld by a Constitution Bench of the

Supreme Court, in the decision reported as AIR 1980 SC 898

Bachan Singh vs. State of Punjab.

70. Courts have taken a consistent view that

imprisonment for life as the penalty for the offence of murder

is the rule and imposition of death penalty is the exception.

The dictum of rarest of rare has been evolved by the Courts.

As held in the decision reported as JT 2009 (7) SC 248 Santosh

Kumar Satish Bhushan Bariyar & Anr. vs. State of

Maharashtra:-

"63. Rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum. The background analysis leading to the conclusion that the case belongs to rarest of rare category must

conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception.

64. A conclusion as to the rarest of rare aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal."

71. Therefore, in cases, where the imposition of death

penalty is under consideration, it becomes the duty of the

Court to draw up a balance sheet of aggravating and

mitigating circumstances as observed in the decision reported

as 1983 (3) SCC 470 Machhi Singh vs. State of Punjab:-

"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."

72. A bird‟s eye view of various judicial decisions reveal

that Courts have considered the undernoted circumstances, as

mitigating: lack of any prior criminal record as held in the

decision reported as 2006 EWHC 1555 (QB) In Re. Butters'; the

age of the offender being too young or too old as held in the

decision reported as AIR 1974 SC 799 Ediga Anamma vs. State

of Andhra Pradesh; the character of the offender i.e. how the

offender is perceived in the society by men of social standing;

the probability of the offenders‟ rehabilitation, reformation and

re-adaptation in the society; whether the offence was

committed under a belief by the assailant that he was morally

justified in doing so; or that the accused acted under the

duress or domination of another person as held in the decision

reported as 1982 (3) SCC 24 Bachan Singh Vs. State of Punjab;

commission of the offence at the spur of the moment without

any pre-meditation; or the offender being provoked (for

instance by prolonged stress) in a way not amounting to the

defence of provocation, as held in the decisions reported as

2008 EWHC 36 (QB) Re. Rahman and AIR 1998 SC 2821

A.Devendran vs. State of Tamil Nadu; a belief by the offender

that the murder was an act of mercy as held in the decision

reported as 1994 (Supply) 3 SCC 143 Janki Dass Vs. State

(Delhi Administration); a guilty plea by the offender or his

voluntarily surrendering before the authorities and his being

genuinely remorseful as held in the decisions reported as

(2008) EWHC 92 (QB) In Re. Rock and (2006) EWHC 1555 (QB)

In Re. Butters'; that the offender acted to any extent in self

defence; that his intention was merely to cause serious bodily

harm rather than to kill; that the victim provoked or in any way

contributed to the crime, as held in the decision reported as

AIR 1999 SC 1699 Kumudi Lal vs. State of U.P. Lastly, in the

decisions reported as AIR 2007 SC 2531 Swami Shradhanand

@Murali Manohar Mishra vs. State of Karnataka and 2007

Cri.L.J. 1806 Shivu & Anr. vs. High Court of Karnataka & Anr. it

was held that in cases of conviction being based on

circumstantial evidence a lenient view should be taken on the

issue of sentence.

73. Aggravating factors/circumstances have been

opined to be; the accused having undergone previous

convictions and his proving to be a future danger/threat or

menace to the society considering aspects like criminal

tendencies, vagabond lifestyle, drug abuse etc. as per the

decision reported as (2008) EWHC 719 (QB) In Re. Miller;

offender being in a dominating position to the victim or in a

position of trust and has abused the trust; anti social or

socially abhorrent nature of the crime i.e. where the offence

arouses social wroth and shakes the confidence of the people

in any social institution; a crime committed for a motive which

evinces total depravity and meanness for instance, a financial

gain; where the magnitude of the crime is large i.e. there are

more than one victims; where the crime is committed in an

extremely brutal, grotesque, diabolical, revolting or dastardly

manner so as to arouse extreme indignation of the community

as held in the decision reported as 1983 (3) SCC 470 Machhi

Singh Vs. State of Punjab; significant degree of planning or

premeditation and lack of remorse as held in the decision

reported as AIR 2005 SC 2059 Holiram Bordoli Vs. State of

Assam; the victim being vulnerable due to age or physical

infirmity as held in the decision reported as 2008 (110)

Bom.LR. 373 State of Maharashtra Vs. Haresh Mohandass

Rajput; mental or physical suffering inflicted on the victim

before the death; victim being a public service provider or

performing a public duty at the time when the crime was

committed, as held in the decision reported as (1977) 431 US

633 Roberts Vs. Louisiana. Lastly, the offender attacking

sovereign democratic institutions as held in the decision

reported as 2003 (6) SCC 641 Navjyot Sandhu @ Afsan Guru

Vs. State.

74. Having summarized above, the various

circumstances held to be aggravating or mitigating the

culpability of the offender, by the Courts in India as well as

abroad, we proceed to make a balance sheet of the mitigating

and aggravating circumstances which are emerging in the

instant case.

75. The counsel for the appellant had urged five

mitigating circumstances, which have been noted in para 48

above. The third mitigating circumstance urged by the counsel

of the appellant being under stress due to financial hardship,

compelling him to commit the crime is not a mitigating

circumstance. The stress contemplated as a mitigating

circumstance is a prolonged stress of the kind which impairs

rational thinking with reference to the act committed by the

person under stress. If stress caused by financial hardships is

taken as a mitigating circumstance, unrelated to anything

else, then the same would apply in almost all criminal cases as

in the fast developing and competitive world of today,

everyone desires not only to be financially sound but to be

financially better off than those around him and the urge to

satisfy this desire keeps many a person under a mental stress.

A person in the lower income group would be considered under

stress as in comparison to a person in the middle income

group. Similarly, a person in a middle income group may claim

to be under a financial stress while looking up to a person in a

higher income group. In the instant case there is no evidence

that the appellant was in such a pitiable state of penury that

his family was starving and on said account he was under an

extreme mental stress.

76. The appellant was aged 37 years when the crime

was committed. The age is neither too young, or too old. It is

middle age. It is an age where mental faculties are the best

and most stable. The contention that the appellant was too

young and therefore his youth is a mitigating circumstance, is

accordingly repelled.

77. We have no evidence that the appellant is

incapable of being rehabilitated in society. We also have no

evidence that he is capable of being rehabilitated in society.

This circumstance remains a neutral circumstance.

78. Thus, we find only two mitigating circumstances in

favour of the appellant, being, his being a first time offender

and circumstances personal to him i.e. his having a wife, two

sons and a widowed mother to support.

79. The aggravating circumstances may be noted.

What strikes out with repulsion to the mind is the brutal,

grotesque, diabolical, revolting and dastardly nature of the

assault on Master Anshul and Master Harshit. The head of

Master Harshit was smashed in front of the eyes of his mother.

The trauma of the mother would haunt her all her life. We

remember our near and dear ones who have departed

company by the fond memories of their sweet and smiling

faces etched in our memory. On closing our eyes we can

picturise these smiling faces in our minds. Sangeeta, the

unfortunate mother of Harshit would remember him last as

what she saw him in his last i.e. the crying and traumatized

child of hers being battered on the ground. Similarly, the

memory of Master Anshul as a disfigured child would continue

to haunt the mother. The crime has been committed with

utmost cruelty towards the children and even their mother.

The victims are two innocent children. Thus, two more

aggravating circumstances emerge being the magnitude of the

crime i.e. number of victims being two and that the victims

were vulnerable due to their age. Harshit was aged 8 months.

Anshul was aged 4½ years. The 4th aggravating circumstance

which emerges is the breach of trust by the appellant. He

went to the house of his brother-in-law and wanted to satisfy

his hunger requiring Sangeeta PW-1 to cook food for him.

Harshit and Anshul were sleeping in the living room when

Sangeeta went to the kitchen. The appellant was entrusted

with the security of the two children, in that, Sangeeta would

obviously be reassured that no harm would be caused to her

children by the appellant. The trust was breached. The 5th

aggravating circumstance emerges from the close relationship

enjoyed by the appellant and the victims. The appellant was

the uncle of the victims. Family bonds and kinship bonds are

valued and cherished in every civil society. Family is a social

institution. The appellant has breached the same. Those who

gained knowledge of the crime would certainly fear for the

safety of their children from within the family members. Thus,

the offence committed by the appellant would shake the

confidence of the people in a social institution. The nature of

the crime is anti social and socially abhorrent. The 6 th

aggravating circumstance is the motive which evinces total

depravity and meanness i.e. revenge for not being extended a

financial aid by the father of the two unfortunate victims. We

find no remorse on the part of the appellant and this becomes

the 7th aggravating circumstance. The 8th aggravating

circumstance is the fact that the appellant was not provoked

by the two young children to so act. Indeed, as per the

testimony of the mother of the two unfortunate children, they

were sleeping when they were attacked. The 9th aggravating

circumstance is the evidence of the appellant committing the

crime with a prior intention and premeditation. The 10th

aggravating circumstance is the pain inflicted upon the two

unfortunate young boys, one of whom had his skull bashed up

by striking the body of the young boy on the ground and the

other had the throat cut with a piece of glass. The crude

weapon of offence i.e. a piece of glass retrieved by breaking

the mirror of the dressing table would certainly have caused

excruciating pain to Master Anshul aged 4½ years.

80. The instant case certainly falls in the category of

rarest of the rare cases. In a somewhat similar circumstance

where the accused was a close family member and the

number of victims were 3; the crime was committed in a most

diabolical and horrendous manner showing extreme depravity

and monetary gain being the motive, notwithstanding the

circumstances personal to the accused being aged parents

and minor daughters to look after and possibility of his being

rehabilitated, and he was a first time offender, in the decision

reported as 2003 (9) SCC 310 Dayanidhi Bisoi Vs. State of

Orissa, the accused Dayanidhi BIsoi aged 35 years when he

committed the crime, was sentenced to death.

81. Accordingly, we dismiss Crl.A.No.635/2007 and

answer the death reference, in terms of our findings above, by

confirming the sentence of death imposed upon the appellant.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE

August 06, 2009 mm/ dharmender