Delhi High Court
State vs Raj Kumar Khandelwal on 8 May, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
% Judgment reserved on : 29.04.2009
Judgment delivered on: 08.05.2009
DEATH SENTENCE REF. NO.1/2008
STATE ...Appellant
Through : Mr.Pawan Sharma, Advocate.
versus
RAJ KUMAR KHANDELWAL ...Respondent
Through : Mr.Rajesh Mahajan, Advocate.
CRL. APPEAL NO.294/2008
RAJ KUMAR KHANDELWAL ...Appellant
Through : Mr.Rajesh Mahajan, Advocate.
versus
STATE ...Respondent
Through : Mr.Pawan Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
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. Vide judgment and order dated 14.2.2008, Raj
Kumar Khandelwal, hereinafter referred to as the accused, has
been convicted for the offence of murdering his wife Anita and
his three minor daughters; Kumari Alisha aged about ten
years, Kumari Chamma aged about eight years and Kumari
Jyoti aged about four years. Vide order of sentence dated
16.2.2008, the learned Trial Judge has imposed the sentence
of death upon the accused and has accordingly made a
reference to this Court for confirmation of the sentence.
2. Section 366 of the Code of Criminal Procedure 1973
requires confirmation by the High Court before execution of a
sentence of death passed by the Court of Session. In the
reference proceeding under Section 367, the High Court, if it
thinks fit, is empowered to make further inquiry and receive
additional evidence upon any point bearing upon the guilt or
innocence of the convicted person. Under Section 368, the
High Court may confirm the sentence, annul it or pass any
other sentence, or convict the accused of any offence of which
the Court of Session might have convicted him or may order a
new trial on the same or an amended charge. The scope of
these three Sections has been interpreted by the Supreme
Court as casting a duty on the High Court to satisfy itself, by a
reappraisal of the judgment of the Court of Session, about the
guilt or innocence of the accused person. Reference be made
to the decision reported as AIR 1957 SC 469 Jumman & Ors.
vs. State of Punjab wherein it was observed :-
"12. In fact the proceedings before the High Court are
a reappraisal and the reassessment of the entire facts
and law in order that the High Court should be
satisfied on the materials about the guilt or innocence
of the accused persons. Such being the case, it is the
duty of the High Court to consider the proceedings in
all their aspects and come to an independent
conclusion on the materials apart from the view
expressed by the Sessions Judge. In so doing, the
High Court will be assisted by the opinion expressed
by the Sessions Judge, but under the provisions of the
law above-mentioned it is for the High Court to come
to an independent conclusion of its own."
3. Accordingly, with the able assistance of learned
counsel for the State and the accused, we perused the entire
evidence against the accused while hearing the reference and
the connected appeal, needless to state, in which appeal, the
accused has challenged the impugned decision convicting him.
4. Certain admitted facts may be noted at the outset
so that the evidence relatable thereto is noted very briefly and
the burden of a lengthy decision is avoided.
5. It is not in dispute that the wife and the minor
daughters of the accused were found dead in room No.6,
Gautam Hotel, Church Mission Road, Fatehpuri and that the
viscera of the wife of the accused as also his daughters
Kumari Alisha and Kumari Chamma, tested positive for the
presence of aluminium phosphide and the viscera of the two
daughters additionally tested positive for the presence of
dihydroergotamine. The viscera of Kumari Jyoti tested positive
for the presence of dihydroergotamine. The same is
evidenced from the FSL report Ex.PW-38/M.
6. It is also not in dispute that a white coloured top
with light red coloured stripes as also a navy blue coloured
flowered designed skirt worn by Kumari Jyoti, which were
removed from her dead body at the mortuary, also tested
positive for the presence of aluminium, a fact recorded in the
FSL report Ex.PW-38/M. Similarly, the gown and the bra
recovered from the dead body of the wife of the accused
tested positive for the presence of aluminium phosphide. It is
also not in dispute that vide same report, aluminium
phosphide was detected on two bed-sheets recovered from the
beds inside the room where the four dead bodies were found.
Similarly, a gamcha and a handkerchief found inside a
polythene bag which was recovered from the ledge of the
window of room No.6, Gautam Hotel on 18.7.2005 also tested
positive for the presence of aluminium phosphide.
7. It is also not in dispute that the cause of the death
of the wife of the accused and the three daughters, as per
post-mortem reports Ex.PW-6/A, Ex.PW-4/A, Ex.PW-4/B and
Ex.PW-4/C pertaining to Anita, Jyoti, Alisha and Chamma
respectively, opined as under:-
A. Anita : Death due to asphyxia and cardiac anoxia as
a result of phosphide poisoning.
B. Jyoti : Cause of death is asphyxia as a result of
manual strangulation.
C. Alisha : Cause of death is asphyxia as a result of
manual strangulation.
D. Chamma : Cause of death is asphyxia as a result of
manual strangulation.
It is also an admitted fact that contusion and
crescentric abrasions were noted on the neck of the three
daughters, at the middle of the neck, and the said injuries
establish that the three daughters were throttled by sufficient
force resulting in their death occasioned by asphyxia i.e. to put
in simple words, the three daughters were manually
strangulated.
8. It may also be noted at the outset, that at the trial,
the accused simply projected a defence of innocence, save
and except a suggestion to PW-5 during cross-examination,
that it was a case of suicide by the wife, who had poisoned her
children. The said line of defence can be found with reference
to the answers given by PW-5 at the tail end of his cross-
examination, where the witness has deposed as under:-
"It is correct that deceased Anita was suffering from
some disease like diarrhea. Voltd. She was suffering
with this disease after one day of their arrival in my
hotel. She was looking depressed because of her
illness. It is incorrect to suggest that the lady and the
kids have committed suicide in the room. I cannot
say, whether deceased Anita was looking depressed
because of her financial loss. I had not seen the
accused administering the pills or any other substance
to his wife or children when they were in the room. It
is incorrect to suggest that I am deposing falsely at
the behest of police officials and that the accused
have been falsely implicated in this case."
9. Since emphasis was laid during arguments in
appeal that the evidence on record does not rule out the
possibility of Anita murdering her children and committing
suicide herself, we shall be specifically focusing on the conduct
of the accused, for the reason, whenever a housewife is found
dead as a result of poison and the husband was in the house
and there is no suicide note found, the conduct and the mental
condition of the wife as also the conduct and the mental
condition of the husband are relevant; probably the only
source wherefrom an inference can be drawn by the Court,
whether it is a case of suicide or of murder.
10. The accused admitted being married to Anita and
being the father of Alisha, Chamma and Jyoti. In response to
question No.1, when examined under Section 313 Cr.P.C. he
also admitted that he was residing as a tenant in Mohalla
Lakhibagh Mannpur, Pulpaar, Gaya, Bihar and was running a
small scale manufacturing unit under the name and style
M/s.Jyoti Industries. In response to question No.6, the accused
admitted that he and his family, comprising his wife and three
daughters, had checked in at 7:45 PM on 25.6.2005 at Gautam
Hotel and were staying in room No.6 till 5.7.2005.
11. Pertaining to the events which took place at
Gautam Hotel on 5.7.2005, the hotel staff noted that the
accused left the hotel at around 9:30 AM on 5.7.2005 and till
early evening there was no movement of his wife and the
children. Amrit Lal PW-9, an employee of the hotel was filling
water in the tank of the water coolers installed in the various
rooms of the hotel and proceeded to fill the tank of the water-
cooler in room No.6 and received no response when he
knocked at the door. He applied a gentle pressure on the
door, which not being locked from within, opened. To his
horror, Amrit Lal saw four dead bodies on the bed. His instinct,
naturally so, was to rush to the owner of the hotel. Deepak
Mehta PW-5 son of Prithvi Raj Mehta PW-7 was present at the
reception of the hotel, which belonged to his father Prithvi Raj
Mehta. He i.e. Deepak Mehta immediately ran to the police
post nearby i.e. Police Post Church Mission Road under
jurisdiction of PS Lahori Gate, where Const. Sanjay was on
duty, who recorded DD No.31, Ex.PW-26/A, noting therein the
statement of Deepak Mehta to the effect that the accused, his
wife and three daughters had checked in Hotel Gautam at 7:45
PM on 25.6.2005 and that at 9:30 AM the accused had left the
hotel informing him i.e. Deepak Mehta, that he was going to
collect money from an acquaintance to clear the hotel bill and
that at 6:15 PM, Amrit Lal, a waiter in the hotel, had gone to
room No.6, where the accused and his family were staying,
and saw the wife and the three daughters of the accused lying
dead on the bed.
12. SI Brij Mohan PW-27 was in charge of the police
post at Church Mission Road. A copy of DD No.31 was
transmitted to him through Const. Sant Raj PW-26, and
accordingly SI Brij Mohan and Const. Sant Raj accompanied by
Deepak Mehta reached the hotel.
13. Inspector Raja Ram Yadav PW-37, then posted as
SHO PS Lahori Gate, received telephonic information at 6:35
PM of four dead bodies being found in a room in Gautam Hotel.
He immediately reached the hotel and joined SI Brij Mohan and
Const. Sant Raj.
14. An FIR had to be got registered to proceed with the
investigation. SI Brij Mohan penned a statement of facts
(rukka) Ex.PW-27/B, recording therein the recovery of four
dead bodies; that of a lady named Anita and her three
daughters. It was noted that froth and blood had oozed out
from the mouth and nose of the deceased. Two glass and a
steel tumbler were seen on the table as also a small plastic
cup; which facts were noted in the statement. It was recorded
that the conduct of the accused was suspect and that an FIR
be registered under Section 302 IPC. Const. Sant Raj took the
rukka to the police station, where the FIR Ex.PW-31/B was
registered at around 8:00 PM.
15. At the spot, Inspector Raja Ram Yadav PW-37,
prepared the rough site plan Ex.PW-37/A, indicating therein
the spots within the room where the four dead bodies were
found lying. A photographer, Const. Sunder Lal PW-12, was
summoned, who took ten photographs of the spots viz. Ex.PW-
12/1 to Ex.PW12/10; negatives whereof are Ex.PW-12/11
(collectively). The mobile crime team was summoned. SI
Ajay Kumar PW-13, the head of the mobile team lifted chance
prints from various objects and articles in the room; from
which chance prints, Const. Rajbir successfully developed six
chance prints from the two glass tumblers, the steel tumbler
and the inner cup of the Mayur water jug in the room. Later
on, after the accused was arrested and his specimen finger
prints were obtained and sent to the FSL laboratory, vide
report Ex.PW-20/A, it was opined that the chance finger prints
Q-2 lifted from the steel tumbler and the change finger prints
Q-4 and Q-5 lifted from the inner cup of the Mayur water jug
matched those of the accused.
16. Two bed-sheets having vomit stains thereon were
seized from the room by the police personnel present, vide
seizure memo Ex.PW-5/C drawn up by Inspector Raja Ram
Yadav. The glass tumblers, the steel tumbler and the inner
cap of the Mayur jug were also seized vide seizure memo
Ex.PW-5/D drawn up by Inspector Raja Ram Yadav. Various
other articles were seized vide various other seizure memos,
all of which need not be noted save and except the fact that
vide seizure memo Ex.PW-5/A various personal belongings of
the family were seized, which included a black coloured rexine
bag of make „REEBOK S.A.H.Q.‟ in which clothes were kept and
as noted at serial No.3 of the recovery memo, a dupatta was
amongst the clothes. Additionally, it may be noted that as
recorded in another seizure memo Ex.PW-5/E prepared by
Inspector Raja Ram Yadav an exercise book Ex.P-14 bearing
the name of Alisha Kumari was also seized from the room.
17. The bodies of the three young girls were sent to
Subzi Mandi mortuary where Dr.Aakash Jhanji PW-4 conducted
the post-mortem and submitted his reports Ex.PW-4/A, Ex.PW-
4/B and Ex.PW-4/C pertaining to Jyoti, Alisha and Chamma as
noted in para 7 above. The body of Anita was sent to the
mortuary of Aruna Asaf Ali Hospital where Dr.K.Goyal PW-6
conducted the post-mortem and submitted his report Ex.PW-
6/A as noted in para 7 above.
18. Messages were flashed all over Delhi to keep a look
out for the accused. At 10:40 PM on 7.7.2005, the accused
was spotted by HC Davinder Kumar PW-23 and Const.
Karamvir PW-24 at platform No.7, Railway Station Hazrat
Nizamuddin, New Delhi. As recorded in the kalandra under
Section 41 Cr.P.C., on being questioned about his identity by
HC Davinder Kumar, the accused kept on disclosing different
names and different addresses pertaining to himself. He
ultimately broke down and confessed that his name was Raj
Kumar Khandelwal. The accused was kept in the police lock-
up overnight and produced in the court of the area
Metropolitan Magistrate viz. Shri Harish Dudani, M.M., Delhi
having jurisdiction over PS Hazrat Nizamuddin.
Simultaneously, the kalandra Ex.PW-23/A under Section 41
Cr.P.C. was filed in the Court of Shri Harish Dudani on
8.7.2005. It stands recorded in the kalandra that the accused
was produced in the Court with his face muffled. Since it was
disclosed in the kalandra that the accused had admitted to
have murdered his wife and children, and even otherwise since
the accused was a suspect, he was remanded to judicial
custody. The accused was formally arrested on 16.7.2005
when the application Ex.PW-38/A moved in the Court of the
learned Metropolitan Magistrate having jurisdiction over PS
Lahori Gate, demanding police custody was allowed, and the
accused was handed over in police custody for a period of two
days.
19. The investigating officer had changed by said date.
Inspector Rai Singh Khatri PW-38, posted as the Addl. SHO of
PS Lahori Gate took over custody of the accused and
interrogated him. He recorded the statement Ex.PW-28/A
made by the accused, which we note is by and large a
confessional statement; confessional parts being inadmissible
in evidence, we eschew reference to the same. Relevant and
material for adjudicating the fate of the accused, it may be
noted, that the accused disclosed to Inspector Rai Singh Khatri
that he purchased sulphas tablets from Rajesh Mehta PW-14
who has a shop at the by-pass road, Gugri Taand, Gaya City,
Bihar. The accused also disclosed that his youngest daughter
Jyoti vomited the sulphas tablet which he had administered to
her and that he had cleaned the vomit with a handkerchief
Ex.P-19 and a gamcha Ex.P-18 which he had put inside a
yellow coloured polythene bag and had thrown the same
outside the room from the window towards Church Mission
Road. He stated that he suspected that his youngest daughter
would not die as she had thrown up the sulphas tablet and
therefore he used a dupatta Ex.P-22 belonging to his wife to
strangulate Jyoti. The accused also disclosed that he had sold
a gold finger ring of his wife to a jeweler at Dariba Kalan,
Chandni Chowk, Delhi on 26.6.2005.
20. At the police station, from the black coloured rexine
bag of make „REEBOK S.A.H.Q.‟ which was seized by the police
on 5.7.2005 from the room where the dead bodies were
recovered, (as recorded in the seizure memo Ex.PW-5/A), the
accused pointed out the dupatta Ex.P-22 in the bag, which was
seized separately, vide seizure memo Ex.PW-27/C. On
18.7.2005, the accused led Inspector Inder Singh Khatri PW-38
to the place of occurrence and pointed out the ledge of room
No.6 of Hotel Gautam from where a polythene bag containing
a gamcha Ex.P-18 and a handkerchief Ex.P-19 were recovered
which were seized vide memo Ex.PW-7/A. Thereafter, he led
Inspector Inder Singh Khatri to Dariba Kalan Chandni Chowk
and pointed out a shop (No.1654) which happened to be the
shop of Rajesh Babbar PW-6 as recorded in the pointing out
memo Ex.PW-11/A. This was the shop, where as per the
disclosure statement made by the accused, he had sold the
gold ring of his wife on 26.6.2005 to Rajesh Babbar. The ring
could not be recovered but Inspector Raj Singh Khatri recorded
the statement of Rajesh Babbar that indeed, on 26.6.2005, the
accused along with one Shiv Kumar, who was known to him i.e.
Rajesh Babbar, had come to his shop and sold a ladies gold
ring weighing two grams and had received Rs.900/- as sale
price thereof. The accused was taken to Gaya on 19.7.2005
and pointed out the shop of Rajesh Kumar Mehta PW-14 at By-
pass Road, Dogri Taand, Gaya City, Bihar from which shop, he
informed having purchased sulphas tablets. Inspector Rai
Singh Khatri recorded the statement of Rajesh Kumar Mehta
affirming that in May 2005 the accused had purchased seven
tablets of sulphas from him. Inspector Rai Singh Khatri
purchased ten tablets of sulphas from Rajesh Kumar Mehta
vide receipt Ex.PW-14/C. The tablets were sealed by him as
recorded in the possession memo Ex.PW-14/B. Photocopy of
the licence Ex.PW-14/A authorizing Rajesh Kumar Mehta to sell
sulphas was also taken by him. The accused thereafter led
Inspector Rai Singh Khatri to his factory-cum-residence from
where a ledge book Ex.P-22 was seized vide seizure memo
Ex.PW-15/A. The accused and Inspector Rai Singh Khatri
proceeded to Canara Bank, G.B.Road, Gaya and the Manager
of the Branch Shri Vidhu Bhushan Thakur handed over a
statement of account Ex.PW-18/A in the name of Jyoti
Industries. He i.e. Shri Vidhu Bhushan Thakur also handed
over two letters on the letter head of the firm of the accused,
addressed to the bank manager, in the handwriting and under
the signatures of the accused viz. the letters Ex.PW-18/D and
Ex.PW-18/E, both of which were seized vide seizure memo
Ex.PW-18/C. The investigation officer seized two registers
Ex.P-16 and Ex.P-21, the former being the statutory register
maintained by Gautam Hotel and the second maintained by
Vaishno Hotel containing entries of the guests who had
checked in the hotel. Needless to state the said registers
contained entries stated to be in the handwriting of the
accused when he filled up the relevant columns of the
registers, as and when he and his family checked into said
hotels. It may be noted that the entries in the register Ex.P-16
being Q-7, Q-8 and Q-9 as also the entries Q-10 and Q-11 in
the register Ex.P-21 were alleged to be in the handwriting of
the accused.
21. A charge-sheet was filed against the accused
alleging that due to business losses he could not maintain his
family and hence decided to murder his wife and his children
and in furtherance thereof purchased sulphas tablets and
brought the entire family to Delhi and checked in Hotel
Gautam where room No.6 was allotted to the family and that in
the intervening night of 4th and 5th July 2005 he administered
sulphas tablets to his wife and his daughters. Before poison
could take effect on the daughters he strangulated them to
death. His wife died due to poisoning and the accused fled
from the hotel till he was apprehended by the police at Railway
Station Hazrat Nizamuddin. The charge-sheet heavily relied
upon the disclosure statement of the accused pursuant
whereto the dupatta used by him to strangulate his youngest
daughter Jyoti was recovered at the instance of the accused as
also the recovery of the polythene bag containing a gumcha
and a handkerchief from the ledge beneath the window of the
room towards Church Mission Road, which gumcha and
handkerchief were found with traces of aluminium phosphide.
The conduct of the accused i.e. the pointing out memos
pertaining to the shop from where he purchased the sulphas
tablets and the shop of Rajesh Babbar where he sold the gold
finger ring of his wife were also relied upon as evidence
against the accused. The report Ex.PW-20/A of the finger print
expert which opined that chance finger prints Q-2, Q-4 and Q-5
lifted from the steel tumbler and the inner cup of the Mayur
jug seized from the room where the dead bodies were found as
also the report Ex.PW-38/L of the handwriting expert which
opined that the writing Q-1, Q-2, Q-2/1, Q-3, Q-3/1, Q-4 and Q-
4/1 in the exercise book Ex.P-14 of Kumari Alisha; the writings
Q-7 to Q-11 in the two registers Ex.P-16 and Ex.P-21; the
writings Ex.PW-18/D and Ex.PW-18/E, the entries in the ledger
Ex.P-22 and the specimen handwriting of the accused taken by
the investigating officer when the accused was in police
custody were in the hand of the accused were relied upon.
22. At the trial, Rajesh Babbar PW-1 deposed that the
accused accompanied by Shiv Kumar had visited his shop on
26.6.2005 and had sold a lady‟s gold ring to him for which he
had paid Rs.900/- to the accused. Shiv Kumar PW-11 deposed
that he had accompanied the accused to the shop of PW-1 on
26.6.2005 and that in his presence the accused had sold the
ring of his wife and had received Rs.900/-. It may be noted
that in response to Question No.8 where said circumstance i.e.
the accused‟s financial crisis and his selling the gold ring of his
wife for which he received Rs.900/- was put to him, he
admitted the same to be correct.
23. PW-10 Dilip Kumar Sharma deposed that he was
the owner of Vaishno Hotel at 23, Fatehpuri and that on
2.6.2005 the accused along with his wife and children had
stayed at his hotel and while checking in had disclosed his
name to be Rajiv Kumar son of Madan Babu and had given his
residential address of Gadolia Chowk, Varanasi, U.P. and had
left the hotel along with his family on 3.6.2005. The relevance
of said evidence is that the accused attempted to conceal his
identity as also his residential address. The said fact is an
admitted fact inasmuch as this evidence was put to the
accused as question No.5, which evidence has been affirmed
as correct by the accused.
24. Deepak Mehta PW-5 deposed that his father
P.R.Mehta owned Gautam Hotel at 185, Church Mission Road,
Fatehpuri, Delhi and that he used to help his father in
managing the day-to-day business of the hotel. That on
3.6.2005, disclosing his name as Rajiv Kumar and his being a
resident of Varanasi, U.P., the accused checked in his hotel
with his wife and family and left the next day on 4.6.2005.
That the accused checked in the hotel once again on
25.6.2005 at 7:45 PM and that his wife and three daughters
were still with him. On 5.7.2005 he was present at the
reception of the hotel at 9:30 AM and the accused came to him
and told him that he was going to collect money from a person
who had come from Bihar and that he would clear the pending
bills by evening. That intending to fill the tank of the water
cooler at 6:15 PM, Amrit Lal, a waiter, knocked at the door of
room No.6 on the second floor which was allotted to the
accused and on pushing the door saw the dead body of a lady
and three daughters on the bed and immediately informed him
at which he reported the matter at the police post Church
Mission Road. SI Brij Mohan and Const. Sant Raj came with
him and after some time Inspector Raja Ram, the SHO also
came to the spot. A photographer was summoned who took
photographs. Crime team lifted finger prints. The
investigating officer seized various items from the room and
he signed the recovery memos. That Anita Devi, wife of the
accused, was unwell as she was suffering from loose motions
and was vomiting. That the accused had sold the gold ring of
his wife on 26.6.2005. That on 4.7.2005 the accused was in
his room at about 10:00 PM and remained in the room all
night. That when he had gone to the police post to inform of
the incident, his statement was recorded.
25. We note that the witness identified the various
articles which were seized from the room and as recorded in
the various seizure memos. We eschew a lengthy
reproduction of said testimony of the witness as the said
recoveries are not in doubt and no issue was raised pertaining
thereto save and except to note the fact that the witness
deposed that an exercise book Ex.P-14 bearing the name of
Alisha Kumari was seized from the room as recorded in the
seizure memo Ex.PW-5/E but did not depose that the said
register was sealed in his presence.
26. Prithvi Raj Mehta, father of PW-5 deposed that he
was the owner of Gautam Hotel and that on 17.7.2005 the
accused was brought to his hotel by Inspector Khatri and a
constable. He went with the said police officers and the
accused to room No.6 on the second floor which was earlier
occupied by the accused. The accused opened a window and
pointed out a bag on the ledge which was picked up by
Raghunath, a servant in the hotel from within which a gamcha
and a handerchief Ex.P-18 was recovered which were seized
vide seizure memo Ex.PW-7/A bearing his signatures at point
„A‟. (We may note that the gamcha recovered was not got
identified from the witness. Obviously, the learned Public
Prosecutor was not vigilant.)
27. PW-7 was cross-examined but nothing has been
brought out to discredit his testimony pertaining to the
recovery effected from the ledge beneath the window of room
No.6.
28. Raghunath PW-8 corroborated whatever was
deposed to by PW-7 and affirmed having picked up the
polythene bag lying on the ledge of the window at room No.6
after the same was pointed out by the accused from within
which bag the handkerchief Ex.P-18 and the gamcha Ex.P-19
were recovered. The witness was cross-examined but nothing
has been brought out to discredit his testimony.
29. Amrit Lal PW-9, the waiter who had first found the
dead bodies of the wife and the daughters of the accused
deposed that he had seen the accused leave the hotel at
around 9:30 AM on 5.7.2005 and that in the evening when he
went to fill the water in the tank of the cooler in room No.6 and
getting no response when he knocked at the door, he pushed
the same and found the wife and the daughters of the accused
dead. He immediately came down and informed Deepak
Mehta who in turn informed the police. That on 17.7.2005, in
his presence the accused came to the hotel and pointed out a
bag on the ledge beneath the window of the room from within
which the handkerchief Ex.P-18 and the gamcha Ex.P-19 were
recovered. The witness was cross-examined, but nothing of
substance has been brought out during cross-examination.
30. Raj Kumar Mehta PW-14 deposed that he was
selling fertilizers and insecticides from a shop at Maran Pur,
Bypass Road, Doogri Tad, Distrcit Gaya, Bihar under the name
and style „Mehta Krishi Kendra‟ and that the licence Ex.PW-
14/A was issued to him for selling fertilizers and insecticides.
That he knew the accused who had been visiting his shop and
that in May 2005 had bought seven tablets of sulphas for
which no receipt was issued. That on 19.7.2005 the accused
came to his shop along with police officers and he sold ten
tablets of sulphas to the police.
31. Arun Kumar Khandelwal PW-15, the brother of the
accused deposed that in his presence the police from Delhi
searched the residence of the accused and seized the ledger
book Ex.P-22 as recorded in the seizure memo Ex.PW-15/A and
that the entries in the ledge were in the handwriting of his
brother.
32. Vidhu Bhushan Thakur PW-18 deposed that on
19.7.2005 he was posted as Senior Manager, Canara Bank,
G.B.Road, Gaya and that an inspector from Delhi Police
enquired about the account of M/s.Jyoti Industries whose
proprietor was Raj Kumar Khandelwal i.e. the accused. He
handed over the bank statement Ex.PW-18/B and handed over
two letters addressed to the bank by the accused on
17.11.2004 and 9.2.2005 i.e. Ex.PW-18/D and Ex.PW-18/E.
33. HC Devinder Kumar PW-23 and Const. Karamvir PW-
24 deposed that the accused was apprehended at platform
No.6, Hazrat Nizamuddin Railway Station. HC Devinder Kumar
deposed that he had prepared the kalandra Ex.PW-23/A under
Section 41 Cr.P.C.
34. Since the accused has not denied that he was living
in the room No.6 of Gautam Hotel with his wife and children
and that he was present in the room in the night of 4.7.2005
and had left at around 9:30 AM on 5.7.2005, we ignore the
deposition of the various witnesses pertaining to lifting of
chance finger prints; taking specimen finger prints of the
accused and the report of the finger print expert for the reason
said evidence would be neutral evidence inasmuch as it is not
a case of forced entry into a room by a stranger. That on the
glasses and the inner cup of the Mayur jug finger prints of the
accused were lifted can easily be explained away by the
accused by simply stating that it was natural for his finger
prints to be found thereon.
35. PW-37 Inspector Raja Ram Yadav and PW-38
Inspector Rai Singh Khatri deposed the facts pertaining to the
investigation conducted by them; the various statements
recorded by them; the various recoveries effected by them
and the various recovery memos drawn by them. Inspector
Rai Singh Khatri PW-38 deposed that he recorded the
disclosure statement Ex.PW-38/A of the accused. He deposed
facts in harmony with the deposition of PW-7 and PW-8
pertaining to the recovery of the handkerchief and gamcha
from the ledge of the window of room No.6. He also deposed
that he took sample writings of the accused when he was in
police custody and that he obtained the report Ex.PW-38/L of
the handwriting expert on the questioned writing in the
notebook Ex.P-14 with reference to the letters Ex.PW-18/D,
Ex.PW-18/E and the ledger Ex.P-22 as also the registers Ex.P-
16 and Ex.P-21 maintained by Gautam Hotel and Vaishno Hotel
as also the specimen writings obtained from the accused while
he was in police custody. He also deposed that the FSL reports
pertaining to the viscera of the deceased were obtained by
him.
36. It would be evident to a reader of the foregoing
narration of the facts and the evidence that the conviction of
the accused has been sustained with reference to:-
(a) The accused had a motive to kill his wife and
daughters due to financial hardship.
(b) The accused was in the room with his wife and
children throughout the intervening night of 4th and 5th
July 2005 and he left the hotel at 9:30 AM on 5th July,
2005 and nobody was seen going to the room till the
dead bodies of his wife and children were found in the
evening at around 6:15 PM. To put it in a nutshell, the
evidence pertaining to the accused and the deceased
being seen together soon before the dead bodies were
recovered has been held to be incriminating.
(c) The writings Q-1, Q-2, Q-2/1, Q-3, Q-3/1, Q-4 and Q-4/1
in the exercise book Ex.P-14, as per the report Ex.PW-
38/L of the handwriting expert, with reference to the
admitted writings of the accused i.e. the ledger Ex.P-
22, the letters Ex.PW-18/D and Ex.PW-18/E, the
writings in the registers Ex.P-16 and Ex.P-21 as also
the sample writings of the accused were in the hand of
the accused. The suspected writing in Ex.P-14 is a
continued narration of facts and events, recording that
the accused is responsible for the death of his wife
and children due to financial crisis.
(d) The disclosure statement made by the accused
pursuant whereto the gamcha and the handkerchief
were recovered from a bag at the ledge of the room
on which aluminium phosphide was detected.
(e) Aluminium phosphide being detected in the viscera of
Anita the wife of the accused as also the viscera of his
daughters Kumari Alisha and Kumari Chamma and the
fact that the accused had purchased sulphas tablets.
Aluminium phosphide was found on the top and the
skirt worn by Kumari Jyoti which was stained with
vomit.
(f) The previous conduct of the accused in faking his
identity and giving a wrong address.
(g) The conduct of the accused in absconding and
continuing to attempt to hide his identity when he was
apprehended at the railway station Hazrat
Nizamuddin.
(h) Finger prints of the accused being lifted from the
glasses and the inner cup of Mayur jug in the room in
which the dead bodies were found.
(i) The identification of the dupatta by the accused with
which he strangulated Jyoti.
37. At the hearing of the appeal and the reference,
Sh.Rajesh Mahajan, learned counsel for the accused urged:-
A. That the accused was admittedly staying in the
same room in which the dead body of his wife and daughters
were found and hence finger prints of the accused lifted from
the glasses in the room is not an incriminating evidence. That
the specimen finger prints of the accused were obtained
without permission of the Court and hence the report of the
finger print expert was inadmissible in evidence.
B. The notebook Ex.P-14 of Alisha Kumari was not
sealed at the time of the recovery and thus the possibility of
the suspected writing at pages 9 to 12 thereof, opined to be in
the handwriting of the accused, being dictated by the police to
the accused when he was in custody cannot be ruled out. The
said writing which amounts to a confession of the guilt has also
been questioned with reference to the opinion of the expert
being Ex.PW-38/L by urging that the report gives no reasons as
to what distinctive characteristics in the writing was noted by
the expert and what are the parameters on which the opinion
has been given that the said writing is by the same person
who has written Ex.PW-18/D, Ex.PW-18/E, Ex.P-22, Ex.P-16,
Ex.P-21 and the sample writings of the accused obtained when
he was in police custody.
C. Questioning the conduct of the investigating officer,
it was urged that the entire investigation was conducted to
prove that the accused was the offender, ignoring that all
possible leads had to be investigated and then opinion formed
as to who could be the culprit. Justifying this argument,
learned counsel drew our attention to the fact that there is no
entry in the Malkhana register showing that after the accused
was apprehended and interrogated at the police station on
16.7.2005, the black coloured raxine bag of make „REEBOK
S.A.H.Q.‟ which was seized on 5.7.2005 as recorded in the
seizure memo Ex.P-5/A, was taken out from the Malkhana. It
was urged that the evidence that the appellant pointed out the
dupatta Ex.P-22 which was lying in the bag, as the one used by
him to strangulate Jyoti, shows the desire of the investigating
officer to create planted evidence.
D. Questioning the recovery effected of the polythene
bag from the ledge of the room No.6 of the hotel, from which a
handkerchief and a gamcha i.e. Ex.P-19 and Ex.P-18 were
recovered, learned counsel pointed out the discrepancy in the
testimony of PW-38 Inspector Rai Singh Khatri who deposed
that the accused lifted the articles recovered from the ledge
vis-à-vis the claim, as per the testimony of Prithvi Raj Mehta
and Raghunath who stated that Raghunath had picked up the
same from the ledge.
E. With reference to the testimony of PW-5, learned
counsel urged that it evidenced that Anita was suffering from
loose motions and was unwell. Counsel urged that
undisputably the family was going through hard times and
there was a financial crisis in the family. Counsel urged that
there is every possibility of Anita having poisoned her children
and having strangulated them when they were semi-
conscious, followed by Anita herself consuming sulphas.
Taking the point a little further, learned counsel pointed out
that the FSL Report Ex.PW-38/M showed the presence of
dihydroergotamine in the viscera of all the three daughters.
Counsel urged that the prosecution has not explained the
presence of said substance, which learned counsel urged is
found in medicines called ergot alkaloids and is normally used
to treat migraine headaches.
F. Learned counsel for the accused urged that the
testimony of Raj Kumar Mehta PW-14, the person from whom
the accused allegedly purchased sulphas, does not inspire any
confidence for the reason, it was unbelievable that Raj Kumar
Mehta could have remembered having sold 7 tablets of
sulphas to the accused in May 2005 when questioned on the
subject on 19.7.2005. Counsel pointed out that admittedly,
Raj Kumar Mehta did not show any bill book evidencing sale as
claimed by him. Alternatively, counsel urged that merely on
the fact that the accused purchased sulphas would not mean
that an inference has to be drawn that the accused
administered sulphas to his wife and daughters. Citing the
decision reported as AIR 1977 SC 1164 Ram Dass Vs. State of
Maharashtra, learned counsel urged that the ratio of said
decision squarely applies on the facts of the instant case.
G. Lastly, learned counsel urged that it was not a fit
case for imposing the penalty of death.
38. Before dealing with the submissions urged by
learned counsel for the accused and re-appreciating the
evidence in light thereof, we note once again that it is not in
dispute that the accused was under severe economic distress,
so much so, that he had to even sell the gold ring of his wife.
It is also not in dispute, in fact admitted by the accused, when
incriminating circumstances were put to him, that on 2.6.2005
the appellant had stayed for a day at Vaishno Hotel and his
family was with him and that he had incorrectly disclosed his
name to be Rajiv Kumar and he declared a false address.
Further, when he checked in at Gautam Hotel on 3.6.2005, he
disclosed his name to be Rajiv Kumar and once again declared
a false address. The accused has further admitted that he, his
wife and his daughters were staying in room No.6 of Gautam
Hotel where he had checked in for the second time on
25.6.2005 and that he was present in the room the entire night
of 4th July, 2005 and 5th July, 2005 and had left the hotel at
9:30 AM, telling Deepak Mehta PW-5 that he would return in
the evening and that he was going to collect money from a
person who had come from Bihar.
39. In response to question No.25 where the
incriminating evidence and circumstance of the accused being
arrested at 10:40 PM on 7.7.2005 at Railway Station Hazrat
Nizammudin and the kalandra Ex.PW-23/A was drawn up
against him, were put to him, the accused responded by
answering: it is a matter of record. Thus, the accused has not
denied his apprehension at 10:40 PM on 7.7.2005 at Railway
Station Hazrat Nizammudin as deposed to by HC Devinder
Kumar PW-23 and Const.Karamvir PW-24. We further note
that the incriminating evidence pertaining to the exercise
book, Ex.P-14, being recovered from room No.6 was put to the
accused vide question No.20, which was responded to by a
simple plea of denial. Similarly, the evidence of Sh.Vidhu
Bhushan Thakur PW-18, in relation to the letters dated
17.11.2004 and 9.2.2005, Ex.PW-18/D and Ex.PW-18/E
respectively, was put to the accused at question No.34 which
was responded to by a plea of denial. The incriminating
evidence pertaining to the report Ex.PW-38/L containing the
opinion that the writing suspected to be in the hand of the
accused in the exercise book Ex.P-14, was the writing of the
accused, was put to the accused in question No.44, to which
the response was: I do not know.
40. With the backdrop aforesaid, there is no use to
discuss the evidence pertaining to the factum of death of the
wife and daughters of the deceased and the cause thereof as
also the place where they died; as the same are admitted
facts.
41. Since it is not disputed by the accused and even
independent of said dispute not being raised, finding that
there is no evidence that any third person accessed the room
where the wife and the daughters of the accused were found
dead, it is obvious that the wife and the daughters of the
accused died either on account of the wife of the accused
administering sulphas to her daughters and strangulating
them when the poison took some effect and thereafter
consumed sulphas herself or that the accused poisoned his
wife and daughters and before the poison could take effect on
his daughters, strangulate them to death.
42. Undisputedly the wife of the accused would be
expected to be aware of the financial crisis faced by her
husband. Obviously, she would be distressed. Thus, there is
scope for an argument that there is a possibility that the wife
of the accused poisoned her daughters and strangulated them
to bring their misery to an end and thereafter even brought
her miseries to an end by consuming sulphas. But, the
possibility of said fact being a reality has to be justified not on
some ipse dixit but on a sound hypothesis emerging from the
evidence on record and surrounding circumstances. Similarly,
the guilt of the accused, if any, has to be inferred with
reference to the evidence on record and the surrounding
circumstances.
43. We ignore, as already recorded by us hereinabove,
the evidence pertaining to the finger prints of the accused on
the glasses in the room where the offence took place. We do
so for the reason said finger prints being present on the
glasses is explainable as the accused could be using the same
for self or to offer water or any other liquid to his wife or
daughters before the sulphas was administered. But, the
conduct of the accused is certainly relevant and needs to be
considered. Before we do so, we would like to refer to Ex.P-14,
the notebook, in the name of Alisha Kumari, the daughter of
the deceased, at page No. 9 to 12 whereof is a continuous
note spanning 7 sides of 4 sheets, opined by the handwriting
expert, to be in the handwriting of the accused. The same
records the reasons for the death of the wife and the children
of the accused. The writing is in Devnagri script and the
translated version thereof commences as under:-
"My Well Wisher
With deep sorrow I am writing that at 9:30in the
night my wife Anita has died. I have also
poisoned all my children. This is the will of the
God......"
44. If the writing aforesaid is accepted by us as the
handwriting of the accused, being an admission of guilt, we
may not be required to discuss the conduct of the accused.
45. It is no doubt true that Ex.P-14 was not sealed by
the Investigating Officer when the same was recovered in the
room on 5.7.2005 but the said fact alone does not justify an
inference as was suggested by learned counsel for the accused
of the possibility of the Investigating Officer compelling the
accused to pen the writing in question.
46. As noted above, all relatable evidence qua the said
writing was put to the accused as noted in para 39 above vide
question No.20 and 34. The answers were a denial or
ignorance. The accused did not state that he was compelled by
the Investigating Officer to write in his own hand the disputed
writing.
47. It is no doubt true that the report Ex.PW-38/L of the
handwriting expert, is bereft of any reasoning, but we note at
the same time that the accused nowhere challenged the said
report. In fact no application was filed even to summon the
author of the report and cross examine him. Thus, ignoring the
report, pertaining to the comparison of the questioned writing
with reference to the specimen writings of the accused
obtained by the police when the accused was in custody, the
report, in so far, it is founded on the other admitted writings of
the accused i.e. the writings contained in Ex.P-16, Ex.P-21,
Ex.P-22, Ex.PW-18/D and Ex.PW-18/E can be relied upon.
48. A report of an expert pertaining to a handwriting is
no more than a piece of evidence and does not absolve the
Court from the primary liability to satisfy its judicial conscious
by independently, with its own eyes, and in the light of
surrounding circumstances, form its own opinion, pertaining to
the writing brought before the Court and alleged to be of a
particular person.
49. The testimony of the brother of the accused, namely
Arun Kumar Khandelwal PW-15 establishes that the ledger Ex.P-
22 is in the handwriting of the accused. The writings on the
registers Ex.P-16 and Ex.P-21 have not been denied by the
accused as his. The writings on the letters Ex.PW-18/D and
Ex.PW-18/E have been proved to be in the handwriting of the
accused through the testimony of Sh. Vidhu Bhushan Thakur
PW-18.
50. At this stage a confusion pertaining to two exhbitis
being assigned Ex.P-22 may be noted by us, lest there be any
confusion. The ledger referred to by us in para 49 and the
preceding paragraphs, has been exhibited as Ex.P-22. A
dupatta pointed out by the accused in police custody from the
raxine bag has also been exhibited as Ex.P-22.
51. Thus, we have five admitted writings of the accused
namely the ledger Ex.P-22, the registers Ex.P-16 and Ex.P-21,
and the letters Ex.PW-18/D and Ex.PW-18/E. Ignoring the
sample writing of the accused which was taken when he was in
police custody, we have troubled ourselves by visually
comparing the suspect handwriting and the admitted
handwriting of the accused as contained in Ex.P-22, Ex.P-16,
Ex.P-21, Ex.PW-18/D and Ex.PW-18/E. We are satisfied that all
writings are in the hand of the same person.
52. Thus, the writing of the accused in the exercise book
Ex.P-14 is conclusive proof of the guilt of the accused.
53. What is the conduct of the accused? He had been
staying under assumed names and have been giving a false
address. He did not come back to the hotel on 5.7.2005. He
never returned even the next day or the day after. He was
apprehended at Railway Station Hazrat Nizammudin. He gave
a false identity to the police even at the Railway Station. It is
apparent that the accused was an absconder.
54. Why was he absconding? Obviously he was aware
that his wife and children had died.
55. We would like to draw a distinction between two
circumstances of absconding. One may not be very
incriminating conduct, but the other may be. A crime has been
committed and in relation thereto the police goes to the house
of „A‟ for some inquiry and when „A‟ comes home learns that
the police came to the house enquiring about him. „A‟
absconds. It is possible to argue that he did so out of fear and
if there is no other evidence against „A‟, the act of his
absconding is explainable being the result of fear, and hence
said act of absconding would not be incriminating. But in a
case, as is the present case, „A‟ has checked into a hotel room
and his wife and children are hale and hearty when all are in
the room and „A‟ leaves the room in the morning and the dead
bodies of the family members are found in the evening at 6:15
PM and the police reaches the place at 6:30 PM and does not
leave the hotel till even late night, on account of investigation
being conducted at the spot and there is no evidence that the
police went searching for „A‟. The conduct of „A‟ in not coming
back to the hotel room and absconding is highly relevant, for
the reason, the only inference possible is that he did not come
back to the hotel room on account of being aware that the
police would apprehend him as they suspect that he is the
offender. Except for the fact that „A‟ was aware that his wife
and children are dead and he is guilty, there is no other
hypothesis to explain the act of absconding.
56. As recorded in the tehrir Ex.PW-27/B, the same was
dispatched from the hotel at 7:45 PM. From the testimony of
PW-37 and 38 it is apparent that the investigation at the spot
continued till late night. Nobody was searching for the
accused. Under these circumstances, the fact that the accused
never came back to the hotel room and absconded is a highly
suspicious conduct and is certainly incriminating against the
accused.
57. The previous conduct of the accused of taking rooms
in hotels under an assumed name and giving a false address is
also relevant conduct wherefrom an inference of a guilty mind
can be inferred. It can be inferred that the accused wanted to
hide his identity and his address because this could have
possibly resulted in vital leads being not available to the police.
58. The testimony of PW-5 and PW-10 establishes that
the accused gave a false name and a false address on 2.6.2005
and 3.6.2005.
59. That the investigation officer has conducted certain
lapses in respect whereof contentions have been urged as
noted in sub para (C) of para 37 above, is no ground to drawn
an inference that the same evidenced the determination of the
investigation officer to somehow or the other implicate the
accused in the crime. The fact that the investigating officer
was told by PW-5 and PW-9 that the accused had left the hotel
at 9:30 AM and was in the company of his wife and children
since night and that there was no evidence of any outsider
visiting the family members; rightly created a strong suspicion
in the mind of the investigating officer that the accused was a
likely suspect, more so for the reason he never came back to
the hotel till the investigation officer remained in the hotel
room and conducted the spot investigation.
60. Raj Kumar Mehta PW-14 has sold the sulphas tablets
to the accused as deposed to by him. We find nothing
unnatural in said witness remembering having sold sulphas to
the accused when the police went to him on 19.7.2005. As
claimed by him, the sulphas was sold by him in May 2005. The
exact date has not been spoken to by the witness. Assuming
he did so in the beginning of May 2005, it is not unnatural for
him to have remembered the accused, for the reason, he has
deposed that the accused used to visit his shop since about two
years prior to the incident. It is not a case of a single visit to
the shop of the witness by the accused. It is not out of place to
note that the letter head of the sole proprietory firm of the
accused viz. „Jyoti Industries‟, evidenced by Ex.PW-18/D and
Ex.PW-18/E, shows that the accused was a supplier of
hardware, bucket, iron, agriculture implements etc. Raj Kumar
Mehta was in the business of selling fertilizer, insecticides and
pesticides. The two, interacting with each other, in relation to
the sale of agricultural implements by the accused and sale of
fertilizers etc. by Raj Kumar Mehta is in the realm of reality.
61. The prosecution is not required to explain each and
every facet of a case. A fact or a circumstance which is
inconsistent with the case of the prosecution requires to be
explained. The prosecution was not required to explain the
presence of dihydroergotamine in the viscera of the daughters
of the accused as the said chemical was not the cause of their
death. As noted above, dihydroergotamine is a chemical used
in the preparation of medicines to treat migraine. It relieves
pain by inducing sleep.
62. The presence of dihydroergotamine in the viscera of
the three daughters is explainable. To relieve the pain of death
by poisoning, dihydroergotamine being administered to the
young girls is an explainable fact. After all, the person who
administered the poison was the father of the unfortunate girls
and the motive for the act was not anger or hatred or ill-will
towards the daughters. A helpless father who could not take
care of the daughters was giving them deliverance from their
misery and hence wanted to make their death as painless as he
could.
63. Strictly speaking, there can be no precedents at a
criminal trial, because each case has its own story which
unfolds at the trial. Notwithstanding said accepted legal
position, we venture to distinguish the decision cited by learned
counsel for the accused in Ram Das‟s case (supra). In said
case, the wife of the accused had died due to poisoning and the
motive was that the appellant suspected the fidelity of his wife.
The poison administered was parathion: rat poison. PW-11
Narayan Rao had deposed that the colony in which the house of
the accused was situate was troubled with rats. Thus, the
accused purchasing parathion was explainable, as a need of
the accused i.e. there could be a legitimate use of parathion by
the accused. Further, the evidence on record was that the
accused had rushed his wife to the hospital when he saw her
vomiting. The reasoning of the Trial Court and the High Court
that the act of rushing the wife to the hospital was „merely to
cloak his guilt‟ was held to be „a perverse view of the matter‟.
It is apparent that Ram Das had an explanation of legitimate
use when he purchased parathion and his conduct of rushing
his wife to the hospital when he saw her vomiting were held to
be exculpatory of his guilt and not inculpatory of the guilt. The
sole evidence of motive was insufficient to convict the accused.
64. In the instant case, the accused has not explained
any legitimate use of sulphas tablets being purchased by him.
Far from rushing his wife and children to the hospital, the
accused has absconded. The decision in Ram Das‟s case
(supra) is of no use to the accused.
65. The recovery of the gamcha and the handkerchief
i.e. Ex.P-19 and Ex.P-18, from the ledge beneath the window of
room No.6 which were found to be contaminated with
aluminium phosphide is also an incriminating evidence against
the accused because the police had no knowledge that the two
articles were thrown on the ledge and that both were used to
clean the vomit of Kumari Jyoti, who vomited when she was
administered sulphas, a fact disclosed to the police by the
accused. That PW-38 has stated that the accused had picked
up the two articles from the ledge but Raghunath PW-8 and
Prithviraj PW-7 deposed that Raghunath picked up the
polythene bag containing the two articles is not a contradiction
of a kind which discredits the recovery of the said two articles
pursuant to the disclosure statement made by the accused.
The said evidence is also a chain in the link pointing towards
the fact that the accused was aware of the fact that his
daughters had been fed sulphas and that his daughter Jyoti had
vomited and that the vomit was cleaned with a handkerchief
and a gamcha which were thrown outside from the window of
the room. It is obvious that he had witnessed said events.
66. In a case fairly similar to the facts of the instant
case, not citing the same as a precedent, but re-assuring
ourselves that we have appreciated the evidence on correct
legal principles, we note the decision of the Supreme Court
reported as 2006 (12) SCC 254 State of Rajasthan vs. Kanshi
Ram. The accused Kanshi Ram was having a matrimonial
discord with his wife Kalawati. He was married for seven years
and was blessed with two daughters Suman and Guddi. On the
intervening night of 3rd February 1998 and 4th February 1998 he
was in his house with his family and Mamraj PW-2 who used to
supply milk to the family of Kanshi Ram noted the house being
locked in the morning of 4th February 1998. The dead bodies of
Kalawati and her children were discovered in the house in the
evening of 6th February 1998 and nobody had seen any
movement in the house on 5th February 1998. Kanshi Ram was
absconding. The cause of death of the wife and daughters was
asphyxia due to strangulation. Kanshi Ram offered no
explanation as to when he parted company with his wife and
his children. In para 29 and 30 of the report, the Supreme
Court opined as under:-
"29. The following incriminating circumstances are
clearly established against the respondent:
(a) That he was not on cordial terms with his
wife Kalawati.
(b) On the evening of 3.2.1998 he was seen in
his house with his wife Kalawati (the deceased).
(c) The house of the respondent was found
locked on 4.2.1998, 5.2.1998 and 6.2.1998.
(d) On 6.2.1998 when his house was opened
the dead bodies of his wife and daughters were
found, and the medical evidence established that
they had been strangulated to death, the cause
of death being asphyxia.
(e) Since the respondent was not traceable the
mother of the deceased, PW-5 Jai Kauri become
anxious to know about their whereabouts and
requested PWs 1 and 6 to search for them.
(f) In the course of investigation the
respondent never appeared at any stage, and for
the first time he appeared in the scene when he
was arrested on 17.2.1998.
(g) Even after his arrest he did not offer any
explanation as to when he parted company with
his wife nor did he offer any exculpatory
explanation to discharge the burden under
Section 106 of the Evidence Act.
30. These incriminating circumstances in our view
form a complete chain and are consistent with no
other hypothesis except the guilt of the accused-
respondent. If he was with his wife on the evening of
3.2.1998 he should have explained how and when he
parted company and/or offered some plausible
explanation exculpating him. The respondent has not
pleaded alibi, nor has he given an explanation which
may support his innocence."
67. Of all the incriminating circumstances, in para 31 of
the report, the Supreme Court opined that the most
incriminating circumstance was of Kanshi Ram being seen with
his wife and his children on 3.2.1998 and disappearing
thereafter and his failure to explain when he parted company
with his wife and his children. Indeed, the said incriminating
circumstances are present in the instant case.
68. To sum up, the most incriminating circumstance is
the admission of guilt of the accused in his writing penned in
Ex.P-14, the notebook of his daughter Kumari Alisha. In fact,
the same concludes the issue against the accused leaving no
scope for any doubt. By itself and on its own strength the
same is sufficient wherefrom an inference of guilt can be drawn
against the accused and his innocence ruled out. Independent
thereof we have the following additional incriminating
circumstances:-
(i) Motive. The extreme financial hardship of the
accused, compelling him to give deliverance to his family
whose miseries could no longer be borne by the accused.
(ii) Purchase of sulphas tablets by the accused for
which no satisfactory explanation of any legitimate use has
been given by the accused and the fact that the viscera of his
wife and two daughters tested positive for aluminium
phosphide, an ingredient of sulphas.
(iii) The knowledge of the accused that his daughter
Jyoti had vomited when she was fed sulphas and the vomit was
cleaned with a handkerchief and a gamcha which were thrown
outside from the window, meaning thereby, that the accused
was present when his daughter vomited and was a witness to
the vomit being cleaned with the use of the handkerchief and
the gamcha or was the person who cleaned the vomit himself.
In either case, he had knowledge of his daughters‟ condition
and yet in spite thereof he gave no medical aid to her.
(iv) The fact that the accused was seen in the company
of his family the previous evening and remained in the room
with his family during the night and was seen leaving the hotel
at 9:30 AM the next day and none accessing the room where
the dead body of his wife and his daughters were found.
(v) The conduct of the accused absconding.
69. Having independently considered the evidence on
record, we concur with the view taken by the learned Trial
Judge that the evidence on record conclusively establishes the
guilt of the accused and rules out his innocence.
70. The issue of sentence in the instant case and for
that matter imposition of a sentence in many cases has
troubled us. We find no sentencing policy in India. Much of the
debate on the sentencing policy has centered around the issue
as to when the extreme penalty of death has to be imposed,
wherever permitted by law vis-à-vis the lesser sentence of
imprisonment for life. But what about most offences
punishable under the Penal Code, where the legislature has
either prescribed a maximum sentence, with no lower limit
prescribed, or where the legislature has provide a range
between a minimum and a maximum sentence. We find no
uniformity in sentences imposed by Courts in India.
71. Nigel Walker tartly said:-
"If the criminal law as a whole is the Cinderella of
jurisprudence, then the law of sentencing is
Cinderella‟s illegitimate baby."
72. Sentencing is a crucial strategy of Criminal Law in
achieving social defence and re-socialization of the offender.
Sentencing is a facet of social justice. None can dispute the
need to humanize sentencing as a tool of reformation. If the
social pressure compels a Court to take cognizance of the
society‟s cry for retribution where the offence is committed in
a diabolic and a brutal manner of a magnitude where the
conscience of the society is revolted, the same social sanction
has a catalyst - to respect the worth of personhood and the
right of a human being in its residual human essence.
73. Unfortunately, the votaries of the extreme penalty
have started raising their voice in support of imposition of
higher sentences, citing the rising graph of crime and are
churning out theories that the scare of law is no deterrent to
the criminal, unless sanctioned with a liberal imposition of hard
sentences. The mafia taking over the system and thumbing
the nose at the judicial system, is cited by them, in support of
the need to impose higher sentences.
74. But, what is happening at the ground level is that,
in a para violent society and a scared community, where the
mafia savages at large, the poor desperate as scapegoats.
The cynics say that the capital gets no punishment.
75. If we look at the penal code, we find, it provides for
four kinds of punishments: firstly - death; secondly -
imprisonment for life; thirdly - imprisonment for various terms
which may be either simple or rigorous and; fourthly - fine.
We further find that for certain offences a minimum sentence
is prescribed with a cap qua the maximum. For some
offences, an upper limit of sentence is prescribed, leaving the
minimum, at the discretion of the Court, which may be a single
day.
76. Writings and opinions on crime and its causes and
cure are legion. But, most of the writings are of not much use
to Judges because of the requirement of law of a Judge being
concerned with the immediate intent (mens rea) of the
offender and rarely concerned with what is beyond the intent.
This skin deep pursuit, obviously misses the real roots.
Unsolved stress, sometimes sudden and sometimes soared up,
results in an act which is criminal in law and unfortunately for
the offender, the immediate intent i.e. mens rea is gathered
from the act. Any serious student on the subject easily
realizes that many social disorders and disturbances are the
product of an overheated system with tensions blowing up.
Indeed, society as a whole may become criminal, as in mass
violence situations. Strikes erupting into violent
demonstrations are common. Indeed, at the bottom of most
crimes, one would find a distraught psyche or a warped
consciousness. Oscar Wilde‟s Poignant Poetry about prison life
holds good even today:-
"This too I know - and wise it were
If each could know the same -
That every prison that men build
I built with bricks of shame,
And bound with bars lest Christ should see
How men their brothers maim.
The vilest deeds like poison weeks
Bloom well in prison-air;
It is only what is good in Man
That wastes and withers there;
Pale Anguish keeps the heavy gate,
And the Warder is Despair."
77. To somewhat mitigate the problem of sentencing,
the principle of proportion between crime and punishment,
requiring the Judge to prepare a balance sheet of mitigating
and aggravating circumstances and after balancing the two,
awarding an appropriate sentence have been evolved over the
period of time. We note various decisions on the point, each
bringing out a circumstance or two; listing out the same to be
aggravating or mitigating.
78. Since no decision has attempted to exhaustively list
out what could be classified as aggravating circumstances or
mitigating circumstances, we feel it our duty to list out
aggravating and circumstances, so held to be, in various
judicial pronouncements; but with a caveat. The same are not
exhaustive, as indeed the dimensions of human behavior
cannot be strait jacketed nor can the circumstances under
which crimes are committed. Thus, the same are illustrative
and by way of guidance.
79. The circumstances can be listed under six different
heads:-
(i) Circumstances personal to the offender.
(ii) Pre-offence conduct of the offender and in
particular the motive.
(iii) Contemporaneous conduct of the offender while
committing the offence.
(iv) Post offence conduct of the offender.
(v) Role of the victim in commission of the crime.
(vi) Nature of evidence.
80. Put in a tabular form, a bird‟s eye view of various
judicial decisions, reveal as under:-
1. CIRCUMSTANCES PERSONAL TO THE OFFENDER-
Sr. MITIGATING FACTORS AGGRAVATING FACTORS
No.
1. Lack of prior criminal record. Previous convictions.
Re Butters‟ [2006] EWHC 1555 Re Miller, [2008] EWHC 719 (QB),
(QB), [2006] All ER (D) 128 (Jul) [2008] All ER (D) 357 (Apr)
Williams v. Ozmint, 494 F.3d 478,
2007 U.S. App. LEXIS 17934
2. Character of the offender as Future danger/threat of
perceived in the society by accused, menace to the
men of social standing. society considering aspects
Reyes V. The Queen, [2002] UKPC like criminal tendencies,
11, [2002] 2 AC 235
drug abuse, lifestyle, etc.
Bachan Singh v State of Punjab
Renuka Bai @ Rinku @ Ratan and
(1982) 3 SCC 24
Anr. v. State of Maharashtra;
AIR2006SC3056
Re Miller, [2008] EWHC 719 (QB),
[2008] All ER (D) 357 (Apr)
3. The age of the offender i.e. Abuse of a position of trust;
too young or old. offender in a dominating
Ediga Anamma v. State of Andhra position to the victim.
Pradesh AIR1974SC799 Machhi singh vs. State of Punjab
Roper v. Simmons 543 U.S. 551 [1983] 3 SCC 470
4. Mental condition of accused: Anti-social or socially
Anxiety, depressive state, abhorrent nature of the
emotional disturbance which crime; When offence is
lower the degree of committed in
culpability. circumstances which arouse
Ediga Anamma v. State of Andhra social wrath. Offence is of
Pradesh AIR1974SC799
such a nature so as to
R v Chambers, 5 Cr App R (S) 190,
shake the confidence of
[1983] Crim LR 688,
Atkins v. Virginia 536 U.S. 304
people.
(2002) Bheru Singh S/o Kalyan Singh Vs.
State of Rajasthan; (1994) 2 SCC
467, [1994] 1 SCR 559
Machhi singh vs. State of Punjab
[1983] 3 SCC 470
5. Probability of the offender‟s
rehabilitation, reformation
and readaptation in society.
Re Miller, [2008] EWHC 719 (QB),
[2008] All ER (D) 357 (Apr)
2. PRE-OFFENCE CONDUCT OF THE OFFENDER- IN PARTICULAR
THE MOTIVE OF THE OFFENCE
Sr. MITIGATING FACTORS AGGRAVATING FACTORS
No.
1. A belief by the offender that When the murder is
the murder was an act of committed for a motive
mercy. which evince total depravity
Janki Dass v. State (Delhi and meanness for instance
Administration) 1994 Supp, (3)
Motive of the crime being
SCC 143
financial gain.
Machhi singh vs. State of Punjab
[1983] 3 SCC 470
Williams v. Ozmint, 494 F.3d 478,
; 2007 U.S. App. LEXIS 17934
2. That the accused believed Significant degree of
that he was morally justified planning or premeditation.
in committing the offence. Holiram Bordoloi v. State of Assam
Bachan Singh v State of Punjab AIR2005SC2059
(1982) 3 SCC 24 In Re Rock, [2008] EWHC 92 (QB),
[2008] All ER (D) 290 (Feb)
3. Offence at the spur of the
moment/ lack of
premeditation.
A. Devendran v. State of Tamil
Nadu AIR 1998 SC 2821
Re Rahman, [2008] EWHC 36
(QB), [2008] All ER (D) 50 (Jan)
4. The offender was provoked
(for example by prolonged
stress) in a way not
amounting to a defence of
provocation.
Re Rahman, [2008] EWHC 36
(QB), [2008] All ER (D) 50 (Jan)
5. That the accused acted
under the duress of
domination of another
person.
3. CONTEMPORANEOUS CONDUCT OF THE OFFENDER WHILE
COMMITTING THE OFFENCE
Sr. MITIGATING FACTORS AGGRAVATING FACTORS
No.
1. Intention to cause serious Magnitude of the crime-
bodily harm rather than to number of victims.
kill. Machhi singh vs. State of Punjab
[1983] 3 SCC 470
Williams v. Ozmint, 494 F.3d 478,
; 2007 U.S. App. LEXIS 17934
2. The fact that the offender Brutal Manner of killing- in
acted to any extent in self- an extremely brutal,
defence. grotesque, diabolical,
revolting, or dastardly
manner so as to arouse
intense and extreme
indignation of the
community.
Holiram Bordoloi v. State of Assam
AIR2005SC2059
Bheru Singh S/o Kalyan Singh Vs.
State of Rajasthan; (1994) 2 SCC
467,
State of Maharashtra Vs. Haresh
Mohandas Rajput; (2008) 110
BOMLR 373
Machhi singh vs. State of Punjab
[1983] 3 SCC 470
Re Miller, [2008] EWHC 719 (QB),
[2008] All ER (D) 357 (Apr)
3. Mental or physical suffering
inflicted on the victim before
death.
In Re Rock, [2008] EWHC 92 (QB),
[2008] All ER (D) 290 (Feb)
4. The use of duress or threats
against another person to
facilitate the commission of
the offence.
4. POST OFFENCE CONDUCT OF THE OFFENDER
CONDUCT OF OFFENDER CONDUCT OF OFFENDER
1. Guilty Plea/ Voluntary Concealment, destruction or
surrender. dismemberment of the body.
In Re Rock, [2008] EWHC 92 (QB), State of Maharashtra Vs. Haresh
[2008] All ER (D) 290 (Feb) Mohandas Rajput; (2008) 110
BOMLR 373
2. Genuinely remorseful. Lack of any actual remorse.
In Re Butters‟ [2006] EWHC 1555 Holiram Bordoloi v. State of
(QB), [2006] All ER (D) 128 (Jul) Assam AIR2005SC2059
In Re Rock, [2008] EWHC 92 (QB),
[2008] All ER (D) 290 (Feb)
5. ROLE OF THE VICTIM IN COMMISSION OF THE CRIME
Sr. MITIGATING FACTORS AGGRAVATING FACTORS
No.
1. That the victim provoked or That the victim was
contributed to the crime. particularly vulnerable
Kumudi Lal v. State of U.P., because of age or disability
AIR1999SC1699
(victim is an innocent child,
helpless woman or old or
infirm person).
Bheru Singh Vs. State of Rajasthan;
(1994) 2 SCC 467, [1994] 1 SCR
State of Maharashtra Vs. Haresh
Mohandas Rajput;
(2008)110BOMLR373
Machhi singh vs. State of Punjab
[1983] 3 SCC 470
2. Victim was a peace officer/
The fact that the victim was
providing a public service or
performing a public duty.
Roberts v Louisiana (1977) 431 US
3. The attacking and
overpowering a sovereign
democratic institution by
using powerful arms and
explosives and imperiling the
safety of a multitude of
peoples' representatives,
constitutional functionaries
and officials of Government
of India and engaging into a
combat with security forces
is a terrorist act of gravest
severity.
Navjot Sandhu @ Afsan Guru v.
State (2003) 6 SCC 641
6. NATURE OF THE EVIDENCE
Sr. MITIGATING FACTORS AGGRAVATING FACTORS
no.
1. In cases of circumstantial In cases of direct evidence
evidence the guilt, not being the guilt being established
established beyond beyond reasonable doubt.
reasonable doubts, a lenient
view should be taken;
Conviction solely resting on
circumstantial evidence,
which contributes to the
uncertainty in the culpability
calculus, must attract
negative attention while
deciding maximum penalty
for murder.
Swamy Sharaddananda @ Murali
Manohar Mishra Vs. State of
Karnataka; AIR 2007 SC 2531
Shivu & Anr. Vs. R.G. High Court of
Karnataka & Anr.; 2007 CriLJ 1806
81. While imposing the sentence of death, the learned
Trial Judge has noted that the accused has betrayed the trust
and confidence of his wife and his children and has abused the
position of trust. That the accused was in a dominating
position to the victims has also been noted as an aggravating
circumstance. The learned Trial Judge has also found that the
crime committed by the appellant is socially abhorrent. The
Judge has also noted the multiple numbers of deaths caused.
The learned Judge has found that the motive for the crime was
to get rid of the wife and the three daughters, to lessen the
financial burden on the accused i.e. a motive to get rid of a
burden of the family.
82. What has been missed by the learned Trial Judge is
the fact that the accused did not murder his wife and
daughters for any personal gain. He killed them as he thought
that by doing so he was giving them deliverance from misery.
The learned Judge missed out the point that the accused had
purchased sulphas in May 2005 and did not commit the crime
till 4th July 2005 in spite of the fact that each day gave him an
opportunity to feed sulphas to his wife and his daughters.
That he came to Delhi time and again and each time brought
his family with him, in spite of his financial hardship, and in the
past stayed under an assumed name and declaring a false
address evidences his desire in the past to do away with his
wife and his children. He did not do so. May be his conscious
did not permit him to do so. This is indicative of the
turbulences faced by the accused and the internal turmoil
within his conscious. It is indicative of the prolonged stress
undergone by the accused. He did not want to inflict any pain
on his children and his wife is evidenced by the fact that he fed
them with dihydroergotamine, obviously to induce a slumber
and lessen the pain.
83. We note that in the decision reported as 2007
Cri.L.J. 1160 Bablu vs. State of Maharashtra, for causing the
death of his wife and three daughters and a son, Bablu was
inflicted the extreme penalty of death; but on the aggravating
circumstance that the crime was motivated with ill-will towards
the family as Bablu was convinced that his children were
bastards, and that the manner in which the family was brutally
done to death was diabolic and the extreme cruelty in the
execution of the crime showed inhumanness and no remorse.
On the other hand, in the decision in Kanshi Ram‟s case
(supra), finding no such aggravating circumstances, for the
offence of murdering his wife and two minor daughters by
strangulating to death all of them, the sentence imposed was
of imprisonment for life.
84. Accordingly, we answer the reference and dispose
of the appeal by affirming the judgment and order dated
14.2.2008 by which the accused has been convicted for the
offence of murdering his wife and three daughters. We do not
confirm the sentence of death imposed vide order dated
16.2.2008. For the offence committed by the accused we
sentence him to undergo imprisonment for life and pay a fine
in sum of Rs.20,000/-; in default of payment of fine to undergo
rigorous imprisonment for one year.
(PRADEEP NANDRAJOG)
JUDGE
(ARUNA SURESH)
JUDGE
May 08, 2009
Dharmender
