Delhi High Court
State vs Navin Ahuja on 20 November, 2012
Author: Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 08.12.2011
PRONOUNCED ON: 20.11.2012
+ DEATH SENTENCE NO. 04/2010
STATE ..... Appellant
Through: Mr. Rajesh Mahajan, ASC
Versus
NAVIN AHUJA ..... Respondent
Through: Mr. S.P. Mehta, Advocate
+ CRL.A. 1435/2010
NAVIN AHUJA ..... Appellant
Through: Mr. S.P. Mehta, Advocate
versus
NCT OF DELHI ..... Respondent
Through: Mr. Rajesh Mahajan, ASC
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE PRATIBHA RANI
MS. JUSTICE PRATIBHA RANI
%
1. To comply with the mandate of Section 366, CrPC requiring
confirmation of death sentence by High Court, the impugned judgment
D.S.Ref. No.04/2010 & Crl.A. 1435/2010 Page 1 of 69
dated 22.09.2010 and the order on sentence dated 06.10.2010 awarding
death penalty to the appellant for committing triple murder, was sent to this
Court for confirmation. The Trial Court also convicted the
Appellant/accused for committing the offences under Sections 25 and 27 of
the Arms Act, and imposed a sentence of 3 years rigorous imprisonment,
each in respect of those offences, and directed them to operate concurrently.
Feeling aggrieved from the impugned judgment, the convict/appellant also
preferred appeal No.1435/2010 challenging his conviction and order on
sentence awarding him extreme penalty.
2. While dealing with the death reference and the connected appeal, a
duty is cast upon this Court to reappraise the evidence and judgment of the
Court of Sessions to satisfy itself about the guilt or innocence of the accused
person. In a case reported as Juman & Ors. v. State of Punjab AIR 1957
SC 469, while considering the scope of Sections 366 to 368 CrPC, in para
12 of the judgment, it was observed as under :-
"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, but under the
provisions of the law above-mentioned it is for the High Court to
come to an independent conclusion of its own."
D.S.Ref. No.04/2010 & Crl.A. 1435/2010 Page 2 of 69
3. Sh. S.P. Mehta, Advocate for the appellant and Sh. Rajesh Mahajan,
Addl. Standing Counsel for the State have taken us through the testimony of
the prosecution witnesses and also referred to the documents prepared and
exhibits recovered during the course of investigation and proved during
trial. Since the entire case of the prosecution is based on circumstantial
evidence which unfolded only on the basis of information given by the
appellant to PS Dwarka, first of all, it is necessary to mention in nutshell the
case of the prosecution as made out from the chargesheet.
Facts
4. The criminal law was set into motion by the appellant himself on
18.07.2005. DD no.10A (Ex.PW5/A) recorded at about 6.00 AM, at PS
Dwarka was to the effect that the appellant, a resident of flat No.B-702,
Jagran Apartment, Sector-22, Dwarka had confessed to his committing the
murder of his wife and two children. The copy of the said DD entry was
handed over to SI Rajnish who alongwith Ct. Mahavir left for the spot.
5. While SI Rajnish confirmed the incident, the PCR was informed as
the place of incident was within the jurisdiction of PS Kapashera.
6. DD No.7A (Ex.PW6/A) was recorded at 6.15 AM on 18.07.2005 on
the basis of information received through G-62 Wireless Operator, QST was
produced before the Duty Officer, P.S. Kapashera containing the
information given by the appellant to PS Dwarka. After receiving DD
D.S.Ref. No.04/2010 & Crl.A. 1435/2010 Page 3 of 69
No.7A at 6.15 AM, SI Mohinder Singh along with Ct. Tajender Prakash and
Ct. Prem Prakash left for the spot. SHO Inspector Ramesh Chander was
apprised of the incident/crime and he also left in his official vehicle with
Driver Raghubir Singh.
7. By endorsement Ex.PW21/D on DD Ex.PW6/A, Inspector Ramesh
Chander sent the rukka for registration of the case mentioning therein that
after reaching the spot, he found the dead body of the female child Manavi
Ahuja lying on the eastern side and that of the male child Manav Ahuja on
the western side on ground floor, Jagran Apartment. When he visited flat
No.B-702, on the seventh floor, blood was found in a room, on the corner of
the bedsheet. He also came to know that Meenu Ahuja, wife of the appellant
had been taken by the PCR to DDU Hospital.
8. The crime team was informed and the spot was photographed. The
dead bodies were sent to the Mortuary with a request for their preservation.
Finding no eye witness, Inspector Ram Chander left SI Mohinder Singh and
Ct. Prem Prakash to guard the spot, and went to the DDU Hospital. He
obtained MLC of Meenu Ahuja which stated that she was „unconscious‟
with a gunshot wound; he came to know that she had been taken to Apollo
Hospital. In the circumstances of the case, he directed the Duty Officer to
register a case under Sections 302/307 IPC and 25/27 Arms Act.
9. SI Jagpal Singh was sent to Apollo Hospital who learned that Meenu
Ahuja was „unfit for statement‟. She was declared brain dead on
D.S.Ref. No.04/2010 & Crl.A. 1435/2010 Page 4 of 69
21.07.2005. Postmortem on the bodies of Manav and Manavi was
conducted on 19.07.2005 and of Meenu on 21.07.2005 at DDU Hospital.
10. During the investigation, the appellant was also interrogated and on
the basis of his disclosure statement, a pistol was got recovered by him from
the washing machine placed in balcony of his flat. He was also questioned
about how he had procured the weapon, and thereafter Devender Kumar,
from whom the pistol was purchased, too was arrested. Thereafter, the
exhibits were sent to FSL. After completion of investigation, Navin Ahuja
was sent up for trial for committing the offences punishable under Sec.302
IPC and 25/27 Arms Act and Devender Kumar was arraigned for
committing the offence punishable under Sec. 25 Arms Act.
11. At the stage of charge-framing, Devender Kumar was discharged;
however, the appellant was charged for committing the aforesaid offences.
He pleaded not guilty and claimed trial.
12. Since there was no eye witness and the case is based on
circumstantial evidence, the prosecution examined 27 witnesses to complete
the chain of circumstances for proving that it was the appellant who
committed murder of his wife and two children.
13. First of all, we would narrate the testimony of PW-9 HC Rajpal Singh
who was posted as Duty Officer at PS Dwarka at the relevant time. He
testified that on 18.07.2005 at about 6.00 AM the appellant came to the
D.S.Ref. No.04/2010 & Crl.A. 1435/2010 Page 5 of 69
police station. The information given by him about commission of murder
of his wife and two children was recorded by DD No.10A (Ex.PW5/A),
copy of which was handed over to SI Rajnish. SI Rajnish telephonically
confirmed the information to him and thereafter sent it to the Control Room
through a Wireless Operator. During cross examination, he denied the
suggestion that the appellant informed that his wife had killed his two
children and attempted to kill him and that he had run away from home to
lodge the complaint. He also denied the suggestion that SI Rajnish informed
him that the accused‟s wife had died and no proceedings or interrogation of
the appellant was required and for that reason, he was not interrogated by
any officer of PS Dwarka.
Prosecution Evidence
14. PW-5 SI Rajnish Yadav is the police officer first to visit the spot after
receipt of DD No.10A (Ex.PW5/A). His statement is to the effect that when
he reached the spot, he noticed two dead bodies, one of a boy and another of
a girl aged between 7 to 9 years, lying on the ground floor. On entering flat
No.B-702, Jagran Apartment, he saw a lady lying on the bed with blood
oozing out from her head. He immediately telephoned the Duty Officer
confirming the incident of murder in those premises. As the place of
occurrence was in the jurisdiction of PS Kapashera, on arrival of police
officer from concerned police station, he returned.
15. PW-1 Sh. Pradeep Batra and PW-2 Sh. Anil Batra are brothers of
D.S.Ref. No.04/2010 & Crl.A. 1435/2010 Page 6 of 69
deceased Meenu Ahuja, who identified her dead body and the bodies of
Manav and Manavi Ahuja. PW-1 also identified the salwar-kameez Ex.P1
and P2 of his sister Meenu Ahuja which she was wearing at the time of
incident. During cross examination, PW-1 denied the suggestion that
Meenu Ahuja was depressed and had developed suicidal tendencies or that
because of shifting to a rented accommodation, she was depressed.
16. PW-20 SI Virender Singh (Retd.) was working as Duty Officer on the
night intervening 17/18-07-2005. He recorded DD No.7A (Ex.PW6/A) on
the basis of a message received through a Wireless Operator. This DD was
handed over to PW-6 SI Mohinder Singh, who, along with PW-19 Ct.
Tajender Prakash left for the spot.
17. PW-18 HC Jagdish Prasad, another Duty Officer posted at PS
Kapashera at the relevant time, recorded the FIR Ex.PW18/A on the basis
of rukka Ex.PW18/B sent by SHO Inspector Ramesh Chander through Ct.
Prem Prakash. He also sent the copies of the FIR through Special
Messenger PW-11 Ct. Vijender to senior officers.
18. PW-8 Dr. Sameer Kapoor was posted at DDU Hospital when Meenu
Ahuja was brought to the Casualty by ASI Surjeet Singh with alleged
history of being found unconscious at home. After examining her and
mentioning the injuries on her body i.e. (1) 0.25 cm wound with
surrounding 1 cm, diameter with blackening which was bone deep on face
2-3 cm. (sic. gunshot?) (2) two linear abrasions around front of neck, he
D.S.Ref. No.04/2010 & Crl.A. 1435/2010 Page 7 of 69
prepared the MLC Ex.PW8/A. In cross examination, he admitted that since
he was unsure if injury No.1 was by gunshot, he put a question mark before
it.
19. PW-25 Dr. Pranav Kumar, Sr. Consultant, Neuro Surgeon, Apollo
Hospital deposed that Meenu Ahuja was under his treatment after she was
taken to that hospital on 18.07.2005 at 9.36AM. He proved the death
summary as Ex.PW26/A (it was prepared by him) declaring Meenu Ahuja
„brain dead‟ on 21.07.2005 at 10.45 AM. He stated that the brief clinical
summary Ex.PW26/B was prepared by Dr. Abhishek Jain whose
handwriting and signature were identified by him. In reply to a Court
question, he replied that Meenu Ahuja did not regain consciousness from
the time she was admitted in the hospital on 18.07.2005 till her death on
21.07.2005. In reply to the question put in cross examination, he informed
that as per hospital records Ex.PW26/D1, she had been admitted by her
brother Shri Sushil Batra.
20. PW-3 Dr. L.K. Baruah conducted postmortem on the bodies of
Manavi, Manav and Meenu Ahuja and proved the postmortem reports
prepared by him as Ex.PW3/A to C respectively. The postmortem reports
list the cause of death in respect of all the three as follows :
Manavi :
„Injuries are ante-mortem.
Injury to neck was caused by soft ligature material.
D.S.Ref. No.04/2010 & Crl.A. 1435/2010 Page 8 of 69
Death due to cumulative effect of all injuries.
Time since death about 36 hours‟.
Manav :
„Injuries are ante-mortem.
Possible fall from height/thrown from height.
Death due to cumulative injuries.
Time since death about 36 hours.‟
Meenu Ahuja :
„All injures are ante-mortem.
Injury No.1 & 2 may have been caused due to scuffle.
...........
Death due to craniocerbral damage by the bullet.
Time since death about 6 hours.‟
While denying the suggestion (during cross-examination) that Meenu‟s
injuries were due to suicide, he gave the following reasons for terming it as
homicidal:-
(i) The site of the wound is not a common site of committing suicide.
(ii) The direction of the bullet also do not suggest suicidal in nature.
(iii) The presence of scuffle marks mentioned in the report suggest
homicidal in nature.
Thus, the postmortem report indicates that the cause of death of Manavi,
Manav and Meenu Ahuja was homicidal. The postmortem reports assume
lot of significance in view of the theory of suicide by Meenu Ahuja after
committing murder of Manav and Manavi as propounded by the appellant.
21. Now adverting to the investigation conducted by PW-21 SHO
Inspector Ramesh Chander, PS Kapashera, witnesses associated from that
police station are PW-6 SI Mohinder Singh, PW-7 Ct. Prem Prakash, PW-
10 Ct. Hari Kishan, PW-12 SI Jagpal Singh (Retd.) and PW-19 Ct. Tajender
Prakash. PW-6 SI Mohinder Singh was assigned DD No.7A Ex.PW6/A
who alongwith PW-7 Ct. Prem Prakash and PW-19 Ct. Tajender Prakash
reached the spot and met PW-5 SI Rajnish Yadav from PS Dwarka who was
guarding the spot till arrival of officers of Police Station Kapashera. In the
meantime, since it was a murder case and investigation was required to be
carried out by an officer of Inspector level, PW-21 Inspector Ramesh
Chander, SHO, PS Kapashera also reached the spot in his official vehicle.
He too requisitioned the services of PW-12 SI Jagpal and PW-10 Ct. Hari
Kishan to assist him.
22. PW-19 Ct. Tajender Prakash was sent to DDU Hospital with the dead
bodies of Manav and Manavi with the request to preserve them.
23. PW-12 SI Jagpal Singh and PW-10 Ct. Hari Kishan were sent to PS
Dwarka to keep watch on the appellant as he was not arrested in the case till
then. PW-12 SI Jagpal Singh, deposed that he was telephonically informed
by IO PW-21 Inspector Ramesh Chander to visit Apollo Hospital to seek
opinion about the fitness of Meenu Ahuja. The application Ex.PW12/A was
given to the doctor at Apollo Hospital seeking opinion about her fitness.
She was declared „unfit‟ for statement. Here it is pertinent to note that a
contention was made on the encircled portion on Ex.PW12/A declaring her
unfit, that no doctor with the name Dr. H. Rera was serving in Apollo
Hospital. In view of the statement of PW-26 Dr. Pranav Kumar that she
was brought unconscious and remained unconscious till declared „brain
dead‟ on 21.07.2005 at 10.45 am, this is of no significance especially when
Pw-26 Dr. Pranav Kumar from Apollo Hospital was not questioned about
Dr. H. Rera who declared Meenu Ahuja „unfit‟.
24. PW-14 Inspector Ajeet Singh is from the crime team who reached the
spot on being requisitioned by SHO, PS Kapashera. He got the spot
photographed through Photographer PW-4 Ct. Sunder Lal, inspected the
spot and later on prepared the detailed report Ex.PW14/A. Here is it
necessary to mention that the crime team report has been discarded by the
Trial Court. But photographs were not disputed by the Appellant during
examination under Sec.313 CrPC.
25. PW-16 SI Madan Pal is the Draughtsman who prepared the scaled
site plan Ex.PW16/A of the spot.
26. PW-13 HC Rajinder Singh and PW-24 SI Mahender (Retd.) were
members of the team which apprehended co-accused Devender on
19.07.2005, who has already been discharged.
27. PW-15 HC Ravinder Kumar is the MHC(M) who proved the
photocopy of relevant entries made in register No.19 regarding deposit of
case property in the malkhana as Ex.15/A and B and also copy of the RC
regarding sending of exhibits through PW-17 HC Jaswant Singh to FSL
Kolkata. They stated that the exhibits were not tampered with in their
custody.
28. PW-22 Dr. N.P. Waghmare, Sr. Scientific Officer (Ballistics)
examined the pistol and cartridges and gave his detailed report as
Ex.PW22/A.
29. PW-23 Sh. Pradeep Kumar, Jr. Scientific Officer (Biology) has
examined the exhibits Ex.S1 to S3 i.e. blood, soil, blood gauze; Ex.P1(a) to
P1(c) i.e. full pant, baby frock, panty; Ex.P2(a) to P2(d) i.e. sleeveless
baniyan, (vest) sando baniyan, (vest) pajama, panty; Ex.P3 & Ex.P4 gauze
pieces; Ex.P5(a) and P5(b) i.e. shalwar kameez and Ex.P7 i.e. guaze piece,
serologically and biologically and proved the reports as Ex.P23/A and B
respectively.
30. PW-25 Ms. Shalini Singh, DCP accorded sanction under Section 39
Arms Act for prosecution of the appellant for possessing a pistol. The
sanction order is as Ex.PW25/A.
31. PW-27 Sh. Sukhbir Singh, SDE (Legal), BSNL, Faridabad was
examined to prove the call details record of landline telephone No.0129-
2269870 installed at house No.1273, Sector-9, Faridabad in the name of Mr.
Kharaiti Lal Batra and he proved the copy of the application form
submitted by the Applicant as Ex.PW27/A. The call detail records of
mobile phone of the appellant (No.9891984444) to the landline connection
No. 0129-2269870 on 18.07.2005 were admitted by him (i.e. the appellant)
by statement made by his counsel on 04.06.2010.
32. PW-6 SI Mohinder Singh was the police officer to whom DD No.7A
(Ex.PW6/A) was assigned for necessary action and PW-21 Inspector
Ramesh Chander, the investigating officer also reached the spot. They are
the most material witnesses regarding investigation of this case.
33. PW-6 SI Mohinder Singh not only saw the bodies lying on the
ground floor, but after arrival of the SHO also visited flat No.B-702, Jagran
Apartment. He testified that after reaching the spot with Ct. Prem Prakash
and Ct. Tajender Prakash he saw the bodies of the two children, and came
to know that their names were Manav and Manavi Ahuja. After reaching
the 7th floor at Flat No.B-702, he found SI Rajnish Yadav and Ct. Mahavir
already present there.
34. He deposed to noticing (after entering the scene of occurrence) that
the bedsheet was blood stained and Meenu Ahuja had been taken to the
hospital by PCR. SHO sent the dead bodies of Manav and Manavi to DDU
Hospital Mortuary and requisitioned the crime team. No eye witness was
found at the spot. Then SHO had also gone to DDU Hospital leaving him
and Ct. Prem Prakash at the spot and after returning from DDU Hospital,
SHO sent the rukka through Ct. Prem Prakash.
35. Thereafter he lifted the samples of blood and earth control from the
spot and sealed and seized the same by memos Ex.PW6/B and C
respectively. The bed sheet was seized by memo Ex.PW6/D. From the
spot, he, the IO and other staff reached PS Dwarka where the appellant was
interrogated and arrested by memo Ex.PW6/E. His personal search was
conducted by memo Ex.PW6/F. He made disclosure statement Ex.PW6/G.
Later, they, along with the appellant went to his flat where he pointed out
towards the washing machine lying on the western side of the balcony; he
led to recovery of a pistol hidden under the clothes lying in the washing
machine.
36. The SHO removed the magazine of the pistol which contained two
live cartridges and one cartridge in the chamber (of the pistol). On removing
the chamber in the cartridge, it was found to be used. After taking the
measurements, sketch Ex.PW6/H was prepared and the same was sealed
with the seal MSD and seized by memo Ex.PW6/I.
37. On getting the information on 21.07.2005 regarding the death of
Meenu Ahuja, IO sent PW6 to Apollo Hospital (DD No.28-B). When he
reached the hospital, he was handed over the clothes of the deceased by
PW-1 Sh. Pradeep Batra (to whom the pullanda was given by CMO, Apollo
Hospital) which was seized through memo Ex.PW1/A. He brought the dead
body of Meenu Ahuja to DDU Hospital Mortuary and prepared the inquest
papers Ex.PW6/J (Colly.) and handed them over to the Autopsy Surgeon.
The dead body was also identified byPW-1 Sh. Pradeep Batra and PW-2 Sh.
Anil Batra, brothers of Meenu Ahuja by their statements Ex.PW1/C and
Ex.PW6/K respectively. The Autopsy Surgeon handed over to him one
small bottle containing the bullet taken from the body of Meenu Ahuja
during postmortem along with blood sample of the deceased duly sealed
with the seal of LKB seized by memo Ex.PW6/L. Thereafter, he returned
to the police station and deposited the case property in the Malkhana and
handed over the file to the SHO. He has identified the shalwar-kameez
Ex.P1 and P2, pistol Ex.P3, fired cartridge Ex.P4, two exhausted cartridges
Ex.P5 and P6, bullet-lead Ex.P7 and bed sheet Ex.P8 seized in this case.
38. PW-21 Inspector Ramesh Chander, the investigating officer reached
the spot after receiving information contained in DD No.7A (Ex.PW6/A),
copy of which had been earlier assigned to PW-6. He saw the bodies of the
two children lying on the ground on eastern and western side of the flat. He
summoned SI Jagpal and Ct. Hari Kishan, informed the crime team and
photographer to reach the spot. On reaching the 7 th floor flat No.B-702,
they found SI Rajnish and Ct. Mahavir at the main door. On entering the
flat, in one room, blood was found on the corner of the bedsheet of the
doublebed. The crime team also arrived in the meantime, inspected the site
and took photographs. He sent SI Jagpal and Ct. Hari Kishan to PS Dwarka
to supervise the appellant who was detained there.
39. He sent the bodies of Manav and Manavi Ahuja through PW-19 Ct.
Tajender Prakash to DDU Hospital Mortuary with a request to preserve
them. On receiving DD No.13B Ex.PW21/B regarding admission of Meenu
Ahuja in DDU Hospital, leaving SI Mohinder Singh and Ct. Prem Prakash
at the spot, he visited DDU Hospital where he came to know that she had
been shifted to Apollo Hospital by her relatives. He was handed over two
gold bangles and one gold chain by the Duty Constable which were seized
by memo Ex.PW21/C. He again returned to the spot.
40. On not being able to find any eye witness, he made endorsement
Ex.PW21/D on DD No.7A and sent the rukka through Ct. Prem Prakash for
registration of the case. He prepared the site plan Ex.PW21/D and also
telephonically directed SI Jagpal Singh, who was present in PS Dwarka, to
reach Apollo Hospital leaving the appellant under the care of Ct. Hari
Kishan. After getting the copy of FIR Ex.PW18/A, from the flat of the
appellant, the bed sheet was sealed with the seal of MSD and seized by
memo Ex.PW6/D. Blood and earth control samples were collected from the
ground where body of Manav Ahuja was found lying.
41. After completing spot investigation, the team headed by SHO
reached PS Dwarka and after recording the statement of PW-5 SI Rajnish
and PW-9 HC Rajpal of PS Dwarka, he interrogated the appellant in the
room of Addl. SHO, arrested him through memo Ex.PW6/E and conducted
his personal search through memo Ex.PW6/F.
42. During interrogation, the disclosure statement Ex.PW6/G was made
by the appellant and he led the police party to his flat; this led to recovery of
a pistol from underneath the clothes in the washing machine kept in the
balcony of his flat. The Investigating Officer checked the chamber of the
pistol and found an empty cartridge hinged in the chamber and took it out
by applying some pressure and saw that it was a fired cartridge. On the base
of both the live cartridges and the fired cartridge, 7.65 KF was found
engraved and the pistol, had the inscription "made in England 1748
BR.32". He prepared the sketch Ex.PW6/H and sealed the pullanda
containing the cartridge and pistol with the seal of MSD and seized the
same through memo Ex.PW6/I. He handed over the seal to SI Mohinder
Singh (No.D-2997) and they all returned to PS Kapashera and accused was
put in the lock-up.
43. Further investigation pertaining to date 19.07.2005 leading to the
arrest of co-accused Devender is not discussed as that accused was
discharged.
44. On 19.07.2005 inquest proceedings Ex.PW21/H were completed and
death report Ex.PW21/I was prepared and after getting dead bodies of
Manav and Manavi identified, the witness got the postmortem conducted
and thereafter handed over the dead bodies to their relatives through receipt
Ex.PW19/A. Exhibits preserved by the doctor during autopsy were sealed
with the seal LKB with two sample seals and were seized through memo
Ex.Pw21/K. Thereafter appellant and the co-accused were produced in the
Court and sent to Judicial Custody. The exhibits were deposited in the
malkhana in in-tact condition. Copy of the DD No.10A of PS Dwarka
dated 18.07.2005 was obtained and kept on record.
45. On 21.07.2005, upon getting information of death of Meenu Ahuja,
PW-6 SI Mohinder Singh was deputed to visit Apollo Hospital and get her
postmortem conducted; this was done at DDU Hospital. The witness seized
the exhibits given at the time of postmortem and handed over the file to
him. He also collected crime team report Ex.PW14/A with photographs
Ex.PW4/1 to 4/16. Postmortem reports Ex.PW3/A to C of all the three
deceased were also collected and exhibits were sent to FSL for expert
opinion. He also got the scaled site plan Ex.PW16/A prepared. He
obtained the sanction under Sec.39 Arms Act, also obtained the FSL result
and placed the same in the Court. He has identified the pistol Ex.P3 and
cartridges Ex.P4 to P6, bed sheet Ex.P8, earth control and sample blood
gauze Ex.P9 and P10. One gold chain and two gold bangles Ex.PW21/A to
C were also identified by him.
Statement under Sec.313 CrPC
46. In the statement recorded under Sec.313 CrPC, the appellant denied
the case of prosecution including the fact that he had surrendered before the
Duty Officer, PS Dwarka informing him (police officer) about commission
of his wife‟s murder and two children by him. The defence version put
forward on behalf of appellant is that due to the sale of the ancestral house
and shifting to a rented accommodation, his wife was upset and wanted to
go to her parental home with the children. He stated that on 18.07.2005,
when he woke up at about 5.00 AM, he found his son Manav was not on his
bed and went to other room where his wife Meenu Ahuja was sleeping with
Manavi. On not finding them there, he went towards the balcony of
Meenu‟s room and saw her coming out in anger. On being questioned about
the children, she stated that she had killed both of them and would kill him
too. She hurriedly went inside the room took out the pistol from under her
pillow and pointed towards him.
47. While trying to explain ante-mortem injuries, referred in the
postmortem report, on the neck of Meenu Ahuja, he stated that he pushed
her, came out of the room and locked her inside the bedroom. Thereafter,
he shook his mother, who was sleeping, asking her to be careful. He ran
downstairs and saw the bodies of his children. He rushed towards the main
gate, told security guard to inform his family about the children and himself
reached the Police Station. The Duty Officer was informed that his wife
had killed both the children and also tried to shoot him and as his mother
and sister were present at home, they should go and save them. The Duty
Officer, PS Dwarka sent one police officer to confirm about the incident
and he was asked to sit on one side of the Police Station Dwarka.
48. He admitted that the incident was confirmed telephonically to the
Duty Officer by the officer who was sent to the society. But it was that
Meenu killed the children and committed suicide. He was made to sit at PS
Dwarka till afternoon. From there, he was taken to PS Kapashera and put in
the lock-up. In the evening, when his brother-in-law Pradeep Batra went to
PS Kapashera and talked to him, he also apprised him that Meenu had
thrown the children from balcony but he blamed the appellant for the
incident. His signatures were taken on 3-4 blank papers by the police at PS
Kapashera and thereafter he was produced before the Court and sent to Jail.
49. Certain Court questions were put to the appellant during his
examination under Sec.313 CrPC regarding height and weight of his wife,
children; and his height and weight and how after seeing his children lying
on ground he concluded that they were dead and why he did not try to find
out the truth of the statement of his wife that she had killed the children.
50. After giving height and weight of his wife and children, he explained
that as both children were not responding, he concluded that they were dead
and that he had no time to question his wife as she pointed the pistol at him.
On being further questioned as to, why, after locking Meenu, he did not
raise alarm, he explained that his mother and sister required the security.
He stated that only he and his wife were in the room of the flat at 7 th floor.
So he did not raise any alarm and further that he was in a state of shock so
ran to the police station for help. To the Court‟s question as to why he did
not inform the police from his house or from society or ask the security
officer or other residents of the society to telephonically inform the police,
the explanation given by him was that he had shifted to the said flat only
one day before and no landline was installed. When questioned about his
mobile phone, he answered that it was in his bedroom where his wife was
locked. He was also questioned that after locking Meenu inside the room,
why he did not tell his mother that Meenu had killed both the children and
also attempted to fire at him, the answer given was that his mother was
sleeping and he hurriedly went out of the room to see his children as
entrance door was just close to that room.
51. Initially the appellant wished to lead evidence in defence but
subsequently his counsel made statement on 11.11.2009 to close the
defence evidence as the same was not required.
Appellant's contentions
52. Sh. S.P. Mehta, Advocate submitted that in the present case the
appellant who lost his wife and two children, was not only made an accused
but also convicted and sentenced to death. The appellant had gone to
Dwarka Police Station in his baniyan (vest) and bermudas. If he had any
intention to surrender of his own after committing the offence, he would not
have been so dressed and also would have carried the pistol with him to
surrender the weapon of offence. There was no need for him to conceal the
weapon in the washing machine. The recovery of pistol at his instance is
doubtful as no independent witness was joined by SHO at the time of
alleged recovery of pistol from the washing machine.
53. It has been further contended that the appellant shifted in that house
on 16.07.2005 i.e. just two days before the incident and was unknown to the
neighbours. He could not, therefore, inform any of them about the
occurrence. So, after seeing the dead bodies of his two children lying on
the ground, he informed the security guard to inform his family, and he
himself reached the police station.
54. Ld. Counsel contended that merely because appellant was the
informant and the Duty Officer recorded the DD No.10/A (Ex.PW5/A)
regarding his confession of committing triple murder i.e. murder of his wife
and two children, in view of the law laid down in Aghnoo Nagesia's case,
the same is inadmissible in evidence. A more plausible explanation has
been given by him which is also supported by the postmortem report which
revealed injuries on the neck of Meenu Ahuja. This corroborated that after
committing murder of the children, she attempted to kill the appellant and in
scuffle, when he tried to save himself and pushed her, she suffered those
abraisions and when the appellant had gone to PS Dwarka to seek security,
she committed suicide. Thus, it is a case of murder of two children by
Meenu and thereafter commission of suicide by her.
55. It was further contended that the prosecution failed to prove the
complete chain of circumstances and failed to lead any relevant evidence of
the events dated 18.07.2005 as they would have falsified the case of
prosecution and whatever evidence adduced, is contrary to the documentary
materials brought on record.
56. The judgment of Trial Court is based mainly on the statement under
Sec.313, CrPC which could not have formed basis of conviction.
57. Considerable emphasis was placed on the fact as to in whose
handwriting the documents were prepared as no member of the team had
written those documents. It was argued that if documents Ex.PW6/B to D
were prepared at the spot in the presence of team members PW-6, 7, and 21
from PS Kapashera then none of them had written those documents. These
exhibits were in the handwriting of PW-24 SI Mahender Singh who was not
part of the investigating team on 18.07.2005. The prosecution failed to
prove the recovery of pistol at the behest of appellant as no public witness
was joined at the time of seizure of the pistol from the washing machine and
it was sealed with the seal MSD whereas PW-24 SI Mahender Singh to
whom the seal belonged, was not member of the team dated 18.07.2005 and
these aspects have not been dealt in correct perspective by ld. Trial Court.
58. Sh. S.P. Mehta, ld. Counsel contended that most of the documents
prepared on 18.07.2005 are in the handwriting of PW-24 SI Mahender
Singh who, in fact, joined the investigation only on 19.07.2005 which
further proves the fabrication of the case by the prosecution.
59. It was urged that report of crime team headed by Inspector Ajit Singh
(PW-14) who mentioned about only one cartridge found at the spot and
contradicted the theory of prosecution, has been rejected by the Court
without any basis. The bedsheet Ex.PW6/D containing blood only on one
corner shows that it is not crushed at all as would have been the case if
somebody had slept on it, shows that it was planted just for the sake of
photograph.
60. Challenging the contents of disclosure statement regarding financial
crisis to be the motive for crime for the appellant, it was submitted that
appellant had sold his house in Gautam Nagar in South Delhi just few days
before and in order to deliver the vacant possession, he shifted to B-702,
Jagran Apartment. Even the sale deed was executed by him when in
judicial custody. He had a sweets shop in Satya Niketan and he had
received part of the sale consideration before this occurrence and the
remaining amount was to be received by him at the time of execution of
sale deed on 19.07.2005. Thus, he was under no financial stress as to
commit the murder of his own wife and children. Thus, the prosecution
failed to prove the motive which is very crucial in a case based on
circumstantial evidence.
61. Referring to the discrepancies in the site plan Ex.PW21/D which was
supplied to the appellant in compliance of Sec.207 CrPC and site plan
Ex.PW21/D1, it was submitted that both were not identical and not signed
by the witnesses who had accompanied the IO. In one site plan, point-D
was marked as the place where appellant admitted to killing, to his mother
which shows that this site plan was prepared after arrest of the appellant in
PS Kapashera in accordance with the disclosure statement Ex.PW6/D and
the discrepancy has been ignored by the Trial Court.
62. Referring to the arrest memo and personal search memo Ex.PW6/E
and F, it was contended that according to the IO, the mother of the appellant
was present in the police station but the documents were not witnessed by
her and there is Court‟s observation that the date and time had been filled
later on and the IO also stated that at the time of arrest, appellant was in
baniyan and Bermudas.
63. It was further contended that the MLC of Meenu Ahuja Ex.PW8/A
prepared at DDU Hospital contains an observation that the patient
absconded and PW-21 Inspector Ramesh Chander failed to explain his
source of knowledge about her shifting to Apollo Hospital. He referred to
the memo Ex.PW21/D regarding seizure of gold bangles and chain of
Meenu from DDU Hospital which contained the FIR number which could
not have been there as by that time, FIR was not registered. It was also
highlighted that Ex.PW21/C was not in the handwriting of IO PW-21
Inspector Ramesh Chander. Also, according to PW-21, documents
Ex.PW6/F were prepared in the handwriting of PW-6 and 7 which was not
confirmed by them. Thus, none of the documents referred to by him is in
the handwriting of the team members who were associated with the
investigation of the case on 18.07.2005.
64. It was also contended that DD No.10A (Ex.PW5/A) referred to the
murder of the wife and two children whereas the wife had died on
21.07.2005 and in that circumstance, when the wife was still alive, the
appellant could not have confessed to her murder. This, counsel stated,
strengthens the defence version that after committing murder of two
children, she committed suicide.
65. As per prosecution case, 15 exhibits were sent to the FSL, however as
per report of FSL, only 11 exhibits were received.
66. One contention of ld. Counsel for the appellant is that though the
photographs of the spot taken by the Crime Team show that security guard
and public persons were available at the spot, none of them was joined to
witness the proceedings carried out at the spot.
67. While making submission on the death reference, Sh. S.P. Mehta,
Advocate submitted that the appellant being husband of Meenu Ahuja and
father of Manav Ahuja and Manavi Ahuja having absolutely no motive to
kill them, deserves to be acquitted in a case based on circumstantial
evidence. However, if this Court feels that it is not a case of acquittal, then
definitely this case does not fall under the category of rarest of the rare
cases so as to invite death penalty for him. In support of his contention, he
has relied upon the judgment of Division Bench of this Court in the case
Raj Kumar Khandelwal v. State 164 (2009) DLT 713 wherein, after being
convicted for committing the murder of wife and three daughters in a hotel,
the Trial Court awarded death penalty to the appellant. This Court in death
reference did not confirm the death sentence and commuted the same. He
submitted that present appellant does not deserve any different treatment.
State's submissions
68. On behalf of State, Sh. Rajesh Mahajan, ld. Addl. Standing Counsel
has submitted that the informant is the appellant himself and in view of the
legal position in Aghnoo Nagesia's case, his statement to the extent that it
led to discovery of facts or recoveries, is admissible. It has been submitted
that no doubt the case is based on circumstantial evidence but the chain of
the circumstances proved by the prosecution and considered by ld. Trial
Court conclusively point at the hypothesis that it is only the appellant who
is perpetrator of the crime. Referring to the place of incident as appellant‟s
flat and victims, his wife and two minor children, it has been submitted that
when the appellant admitted to his presence in the flat on the night
intervening 17/18-07-2005, it is for him to explain how his wife and two
children died. Referring to the contention regarding discrepancy in the site
plan and also on the aspect as to in whose handwriting documents
Ex.PW1/A, Ex.PW1/C, Ex.PW6/B to Ex.PW6/L were prepared and it has
been pointed out that the said documents have been proved by the
concerned witnesses and signed by the IO.
69. So far as discrepancy in site plans Ex.PW21/D and D1 is concerned,
it was submitted that the witness was not confronted with it. Further, while
answering questions under Sec. 313 CrPC pertaining to gunshot injury on
Meenu, he failed to mention that he prevented her from committing suicide.
False answers given by him during examination under Sec.313, CrPC serve
additional link.
70. Supporting the death sentence awarded to the appellant, it was
submitted by the Addl. Standing Counsel that murder was committed of
innocent and helpless children in a brutal manner, and of his own wife using
a pistol which must have been arranged by the appellant in advance. This
indicated premeditation before committing the crime and in the given
circumstances, the only penalty called for is death sentence. Ld. Addl.
Standing Counsel has relied upon Ajit Singh Harnam Singh Gujral v. State
of Maharashtra 2011 (4) JCC 2482. Sudam v. State of Maharashtra 2011
(7) SCALE 415; Jagdish v. State of M.P. 2009(4) Crimes 72 (SC);
Babloo @ Mubrik Hussain v. State of Rajasthan (2006) 13 SCC 116;
State of Rajasthan v. Kheraj Ram 2003 SCC (Cri) 1979; Ravji @ Ram
Chandra v. State of Rajasthan 1996 SCC (Cri) 225; Uma Shankar Panda
v. State of M.P. 1996 SCC (Cri) 543; Suresh Chandra Bahri v. State of
Bihar (1995) SCC (Cri) 60; Bheru Singh v. State of Rajasthan (1994) 2
SCC 467; Bachan Singh v. State of Punjab 1980 SCC (Cri) 580; Machhi
Singh & Ors. v. State of Pubjan (1983) 3 SCC 470 in support of his
contentions.
Discussion by Court
71. Before dealing with contentions of the appellant and the reappraisal
of evidence, we would set out certain facts which the prosecution proved
and which are not disputed by the appellant:-
(i) Sale of ancestral house situated at Gautam Nagar, New Delhi by the
appellant; he as well as his family shifting to rented accommodation i.e. B-
702, Jagran Apartment on 16.07.2005 to enable him to handover the vacant
possession at the time of completion of transaction.
(ii) Death of Manav and Manavi Ahuja on 18.07.2005 and recovery of
their dead bodies lying on western and eastern side respectively on the
ground of Jagran Apartment.
(iii) „Brain death‟ of Meenu Ahuja and she being declared „brain dead‟ on
21.07.2005 at 10.45 am at Apollo Hospital.
(iv) Arrival of appellant in PS Dwarka at about 6.00 am and his giving
information to Duty Officer about the incident at B-702, Jagran Apartment
(At this stage we are not touching the contents of DD No.10A) and visit of
SI Rajnish to his flat.
(v) Confirmation of incident by SI Rajnish telephonically to Duty
Officer, PS Dwarka.
(vi) As the place of occurrence was within jurisdiction of PS Kapashera,
Control Room was informed and information recorded at PS Kapashera
through DD No.7A and departure of PW-6 SI Mohinder Singh and SHO
PW-21 Inspector Ramesh Chander for the spot.
(vii) Postmortem conducted on the bodies of Manav, Manavi and Meenu
Ahuja by Dr. L.K. Baruah and cause of death in all the three cases as
„unnatural‟.
(viii) The appellant‟s interrogation by SHO, PS Kapashera and his
signatures on disclosure statement Ex.PW6/G, pointing out and seizure
memo Ex.PW6/I about which at the stage of recording statement under
Sec.313 CrPC, he claimed that his signatures were obtained on 3-4 blank
papers.However, no complaint was made in this regard, immediately on his
production in the Court after his arrest.
(ix) His arrest in this case on 18.07.2005 through arrest memo Ex.PW6/E
and personal search through memo Ex.PW6/F.
(x) Identification of clothes of deceased Manav, Manavi and Meenu as
well as gold chain and gold bangles.
72. After referring to the above referred undisputed facts, it is necessary
to consider the version of appellant. It has to be noted that during trial, the
incriminating evidence adduced by the prosecution was put to him in detail
to enable him to explain each fact. While pleading innocence and giving
reason for his visit to PS Dwarka, he claimed it to be a case of commission
of murder of two children by his wife Meenu, attempt to kill him which he
rendered unsuccessful by locking her in the room with pistol and
commission of suicide by her due to depression and development of suicidal
tendencies. This was also suggested to PW-1 Sh. Pradeep Batra which he
denied.
73. There is force in the contention of ld. counsel for the appellant that the
contents of DD No.10A (Ex.PW5/A) so far it relates to confession, cannot
be looked. However, the portions of DD No.10A i.e. Ex.PW5/A to the
extent it led to the discovery of fact and recovery, can be considered by the
Court by virtue of Section 27 of the Indian Evidence Act. There is no bar
on the Court from looking into the information given by a person who
subsequently turns out to be offender himself. If law is needed on this
point, reliance can be placed on Faddi v. State of M.P. 1964 (6) SCR 312.
74. DD No.10A (Ex.PW5/A) discloses the address of the appellant and
murder of his wife and both the children. SI Rajnish from PS Dwarka who
visited the spot, confirmed to the Duty Officer about the two bodies of the
children lying, on the ground on eastern and western directions of the flat
No.B-702. He also noticed one woman lay on the bed and blood oozing out
from her head which he confirmed to the Duty Officer. It was only when
Meenu was removed to DDU Hospital that some traces of life could be
noticed by the doctor attending and only on 21.07.2005, she was declared
„brain dead‟. The medical evidence proves gunshot injury and post mortem
report proves that the bullet Ex.P7 recovered from the head was fired from
the pistol Ex.P3. These circumstances lead to the conclusion that after she
received gunshot injury from close range on the forehead, Meenu Ahuja
must have been presumed to be dead, leading to the information recorded in
DD No.10A (Ex.PW5/A). Recovery of the two bodies of Manav and
Manavi Ahuja from the ground floor and Meenu lying unconscious with
gunshot injury on the forehead are facts discovered on the basis of
information received by the police through DD No.10A and contents of the
information to that extent are admissible.
75. The appellant also made disclosure statement on 18.07.2005 and the
postmortem report of Manvi proves that she was strangulated with some
soft ligature material whereas cause of death of Manav Ahuja was due to
fall from height/thrown from height. Thus, whatever was recorded in the
disclosure statement made on 18.07.2005 regarding the manner in which
death of Manav and Manavi Ahuja was caused stood confirmed from the
postmortem conducted on 19.07.2005.
76. The weapon of offence i.e. pistol has been recovered from the
washing machine on 18.07.2005 at the behest of appellant as per testimony
of PW-21 Inspector Ramesh Chander, PW-6 SI Mohinder Singh and PW-7
Ct. Prem Prakash. Why the appellant had not taken the pistol alongwith
him at the time of surrender, is a question which the prosecution cannot
answer. Behavior of people under such circumstances cannot be expected to
conform to any set pattern.
77. As far as not joining public witnesses at the time of recovery of pistol
is concerned, the Court recollects that there is really no such legal pre-
requisite. [Ref. State, (Govt. of NCT of Delhi) v. Sunil & Anr. (2001) 1
SCC 652, which held that there is no requirement in law either under
Section 27 of the Indian Evidence Act or under Section 161 CrPC to obtain
signatures of independent respectable persons of the locality on the
statement made by the accused.] We would like to extract relevant
paragraphs of the judgment:-
"20. In this context we may point out that there is no requirement
either under Section 27 of the Evidence Act or under Section 161 of
the CrPC, to obtain signature of independent witnesses on the record
in which statement of an accused in written. The legal obligation to
call independent and respectable inhabitants of the locality to attend
and witness the exercise made by the police is cast on the police
officer when searches are made under Chapter VII of the Code."
78. Taking into consideration that there is no legal requirement to join
independent public witnesses for the recovery effected on the basis of
disclosure statement made by the accused, the recovery of the pistol Ex.P3
at the instance of appellant stands proved through testimony of PW-21
Inspector Ramesh Chander, PW-6 SI Mohinder Singh and PW-5 Ct. Prem
Prakash, which are creditworthy. Recovery of the weapon of offence on the
basis of disclosure statement Ex.PW6/G stands proved by the prosecution.
79. Now, turning to the admissibility of contents of the information Ex.
PW-5/A. The appellant argued that the document was inadmissible; reliance
was placed on the ruling in Aghnoo Nagesia (supra).
80. The earliest judgment on the point is Nissar Ali v. The State of Uttar
Pradesh, AIR 1957 SC 366, where the Supreme Court outlined the position
as follows:
"A First Information Report is not a substantive piece of evidence
and can only be used to corroborate the statement of the maker
under s. 157 of the Evidence Act or to contradict it under s. 145 of
that Act. It cannot be used as evidence against the maker at the trial
if he himself comes an accused, nor to corroborate or contradict
other witnesses. In this case, therefore, it is not evidence."
81. In Nagesia, the court clarified the position as follows:
"If the first information report is given by the accused to a police
officer and amounts to a confessional statement, proof of the
confession is prohibited by s.25. The confession includes not only the
admission of the offence but all other admissions of incriminating
facts related to the offence contained in the confessional statement.
No part of the confessional statement is receivable in evidence except
to the extent that the ban of s. 25 is lifted by s.27."
82. The matter was put to rest, in the judgment reported as Khatri
Hemraj Amulakh v. State of Gujarat, AIR 1972 SC 922, where the
Supreme Court held that:
"...no part of a first information report lodged by the accused with
the police could be admitted into evidence if it was in the nature of a
confessional statement. The statement could, however, be admitted to
identify the accused as the maker of the report. The part of the
information as related distinctly to the fact discovered in
consequence of the information could also be admitted into evidence
under Section 27 of the Indian Evidence Act if the other conditions of
that section were satisfied."
83. It is thus clear that if the first information report, or intimation of the
crime, is by the accused, courts cannot look into portions containing
confessional statements. However, the exception is that if the statement
contains reference to objects, facts or incriminating articles, which can, on
their basis be recovered, those portions are admissible in evidence. In this
case, learned counsel argued that the disclosure statement was recorded
later, and the body was recovered earlier, and that the FIR does not contain
any statement by the Appellant, volunteering to lead the police to any spot
to recover articles or the body. This Court is of opinion that the latter
submission is unfounded. The construction sought to be advanced for
Section 27 of the Evidence Act, is unduly and illogically narrow. All that
the provision requires is the mention of facts, leading to their recovery, or
mention of details, which enable the police during investigation to recover
objects or articles. So far as the first argument is concerned, the Court feels
that it only requires to be rejected, because the DD Ex. PW5/A itself
mentions the place of occurrence i.e. B-702 Jagran Apartment, where
Meenu‟s body was lying on the bed with gunshot wound and the bodies of
Manav and Manavi were lying in different directions on the ground in
Jagran Apartment.
84. As to whether the recovery of a dead body stands on the same footing
as the recovery of any other object, cannot be open to debate. The position
was spelt out clearly in State of Maharashtra v. Suresh (2000) 1 SCC 471
where the Supreme Court observed that:
"Three possibilities are there when an accused points out the place
where dead body or an incriminating material was concealed without
stating that it was concealed by him. One is that he himself would
have concealed it. Second is that he would have seen somebody else
concealing it. And the third is that he would have been told by
another person that it was concealed there. But if the accused
declines to tell the criminal court that his knowledge about the
concealment was on account of one of the last two possibilities the
criminal court can presume that it was concealed by the accused
himself. This is because the accused is the only person who can offer
the explanation as to how else he came to know of such concealment
and if he chooses to refrain from telling the court as to how else he
came to know of it, the presumption is a well-justified course to be
adopted by the criminal court that the concealment was made by him.
Such an interpretation is not inconsistent with the principle embodied
in Section 27 of the Evidence Act."
85. Again, in Hosamani and Ors. Vs. State of Karnataka and Ors:
(2009) 14 SCC 582 where the dead body was recovered pursuant to
disclosure of appellant from the canal, the Supreme Court held as under:-
"9. xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx
As regards accused Nos. 1 and 2, since the dead body of Namadev
was recovered in furtherance of the voluntary information furnished
by them, the natural presumption, in the absence of explanation by
them is that it was those two persons, who had murdered Namadev
and had buried the dead body."
86. On the basis of information contained in DD no.10A Ex.PW5/A and
disclosure statement Ex.PW6/G dead bodies of Manav, Manavi were found,
and Meenu was lying unconscious with gunshot wound. On the basis of
disclosure statement Ex.PW6/G, the pistol was recovered from the washing
machine. On the ratio of Ram Kishan Mithanlal Sharma v. State of
Bombay, AIR 1955 SC 104 and State of Karnataka v. David Rozario
(2002) 7 SCC 728, the information leading to recovery is admissible in
evidence.
87. The conduct of the appellant in going to the police station in a vest
and Bermudas, and not taking the weapon of offence with him is a conduct
which the prosecution was not expected to explain. The appellant had
shifted to the said flat just two days before and offence was not even
committed within the jurisdiction of P.S. Dwarka.
88. The conduct of the appellant in himself going to the police station to
inform about the occurrence was been explained by him stating that he was
unknown to the neighbours who could inform about the occurrence, seeing
the dead bodies of his children and the murderous attack on him by his wife
with pistol, concern for the safety of his mother and sister, compelled him to
visit the police station to seek security, after informing security guards of
the society. This contention is unacceptable because when such a tragedy
strikes a family, the office bearers of RWA of the society would normally
provide necessary support to him if they were informed even through the
security guard. The security guards have not been cited or examined as
prosecution or defence witnesses. The appellant by all accounts simply
walked out of the gate and reached PS Dwarka under the impression that the
place of occurrence fell within the jurisdiction of that police station.
89. The entire case of the prosecution is based on circumstantial
evidence. When the case of the prosecution rests on circumstantial
evidence, all circumstances should in the first place be conclusively proved;
the circumstances so proved must unerringly point to the guilt of the
accused; the circumstances proved must form a complete chain of evidence
not to leave any reasonable ground for conclusion consistent with the
innocence of the accused and the circumstances proved must be such that
within all human probability the act must have been done by the accused.
90. Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952
SC 343, is the basic judgment of the Supreme Court on appreciation of
evidence, when the case depends only on circumstantial evidence, which
has been consistently relied in later judgments. In Sharad Birdhichand
Sarda v. State of Maharashtra‟, AIR 1984 SC 1622, the three Judge
Bench of the Supreme Court relying on Hanumant Govind Nargundkar
(supra) set out the conditions which must be fulfilled before a case against
the accused can be said to be fully established. The conditions are:
"1. The circumstances from which the conclusion of guilt is to be
drawn should in the first instance be fully established,
2. All the facts so established should be consistent only with the
hypothesis of the guilt of the accused.
3. The circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the one
proposed to be proved.
4. In other words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused; and
5. It must be such as to show that within all human probability the
act must have been done by the accused."
91. The occurrence took place in the four walls of the house of the
appellant. The motive, as disclosed in the disclosure statement could not be
confirmed through oral or documentary evidence. We have to deal with the
facts and circumstantial evidence adduced by the prosecution, and consider
whether the version put forward by the appellant that it is not him but his
wife who is the perpetrator of the crime, is probable.
92. The version put forward by the appellant is that when he woke up and
found his son Manav not on the bed, he went to the room where his wife
alongwith his daughter was sleeping. He saw his wife coming from the
balcony in anger and on being questioned about the children, she said that
she had killed them and she would kill all. She took out a pistol from under
the pillow, attempted to fire at him but was pushed inside the room by him
and locked. Thereafter he tried to wake up his mother but then leaving her
sleeping in, ran downstairs. Seeing the bodies of his two children lying on
the ground, he went to the PS to report about the incident.
93. This version of the appellant is falsified as PW-5 SI Rajnish reached
immediately to his flat and saw bodies of Manav and Manavi on ground.
He did not see Meenu being locked in the bedroom as claimed. Instead,
there was a gunshot injury on her forehead and blood was oozing out. He
informed the Duty Officer, PS Dwarka. PCR was also informed and Meenu
was removed to DDU Hospital in unconscious state by ASI Surjeet of PCR
as per MLC Ex.PW8/A. The postmortem report ruled out the case of
suicide. PW-3 Dr. L.K. Baruah was cross examined at length to prove the
gunshot injury to be suicidal. His conclusive opinion is that it is a case of
homicide.
94. The appellant admitted that on the date of incident in the said flat (i.e.
B-702, Jagran Apartment, which had earlier been taken on rent by him), he
along with his wife, two children, mother and sister were residing. No
outsider had accessed that room during the night intervening 17/18 th July,
2005 when Meenu was removed to DDU Hospital and the dead bodies of
Manav and Manavi were seen lying on the ground. Neither the prosecution
nor the appellant examined his mother and sister though they were present
in the flat at that night. PW-21 Inspector Ramesh Chander has given the
reason for their non-examination that for obvious reasons, they would not
go against their own son/brother. Though the Appellant initially wanted to
lead defence evidence but opted not to examine any witness. They were not
claimed to be suspects or eye witness by either side, hence the effect of their
non-examination is neutral.
95. Another improbability in the version of the appellant is his reply to
the question as to where was his mobile phone; that it was locked in the
room of Meenu which is false.
96. It is said that the man may lie but not the circumstances. The call
details in respect of mobile phone No.9891984444 and landline phone No.
0129-2269870 were summoned and admitted by the appellant to be correct.
The itemized call details record shows mobile No.9891984444 was
constantly in use on 18.07.2005 right since morning after 6.00 AM till about
1.00 pm and in the circumstances, it is for the appellant to explain that if his
mobile was locked in the room of Meenu , (as claimed by him), then the
question who was making the calls from that mobile, arises. This is
especially so because by 6.15 AM SI Rajnish visited the spot and found
Meenu unconscious with gunshot wounds. Definitely Meenu was not the
caller from the mobile of appellant. It was also nowhere stated by the
appellant that the phone was used by his sister/mother or by him. There
was no other person present in the house and in these facts, the only
inference that can be drawn is that the appellant himself was making the
calls. Hence, his statement that he had to personally visit the PS as he was
not having the mobile to inform the control room about the incident stands
falsified. In the case of Anthony D'souza Vs. State of Karnataka (supra), it
was held that false statement under Section 313 Cr.P.C. completes the chain
of circumstances. The call details record which has been admitted by the
appellant is sufficient to conclude that a false answer has been given by him
during his examination under Section 313 Cr.P.C.
97. The contention of the appellant that prosecution avoided to lead any
relevant evidence of the events dated 18.07.2005 is unmerited as right from
the stage of recording of DD No.10A (Ex.PW5/A) till adducing scientific
evidence to prove the chain of circumstances connecting the appellant to the
crime, all evidence was collected and proved.
98. The contention of appellant that impugned judgment is based mainly
on the statement under Section 313 CrPC, is unfounded as in his statement
except the simpliciter denial and advancing theory of commission of murder
of two children by his wife and then suicide, by him, no explanation was
given. The Trial Court considered all the circumstantial evidences to base
the conviction of the accused/appellant.
99. Ld. Counsel for the appellant devoted substantial time in arguing that
the handwriting on Ex.PW1/A, Ex.PW1/C, Ex.PW6/B to Ex.PW6/L is not
that of any team member. It proved that they were not prepared at the spot
but subsequently in the police station by some other police officer, may be
PW-24 SI Mahender Singh, who was not part of the team on 18.07.2005 (he
joined investigation on 19.07.2005). It is sufficient in this context, to
mention that the SHO himself was investigating the case with the assistance
of other police officials of different ranks. At that time, his attention was
not on the issue as to who was asked to do the writing work but to see the
contents of the memo prepared on his directions and witnessed by the team
members. We have seen Ex.PW1/A, Ex.PW1/C, Ex.PW6/B to Ex.PW6/L
of the Trial Court record and find them to have been written in different
hands. Therefore, the contention of counsel for the appellant that only PW-
24 SI Mahender Singh has prepared the memos is unfounded. Even
otherwise, for the case, the contents of the various memos prepared during
investigation and their correctness had to be proved by the witnesses. It
cannot be ignored that witnesses appeared in the Court after lapse of
sufficient time and as memory fades with the passage of time, it may not be
humanly possible to remember the name of the police officials asked to
scribe the documents. Investigation in a triple murder case, based on
circumstantial evidence, required concentration, attention and energy on
vital aspects of the case and not on the scribe.
100. So far as rejection of the report of the crime team by Trial Court is
concerned, that would not exonerate the appellant for the simple reason that
the jacketed bullet recovered during postmortem from the body of Meenu
Ahuja on 21st July, 2005 was found to have been fired from the pistol Ex.P3
recovered at the instance of appellant on 18th July, 2005. It is true that if on
account of any lapse doubts are created in prosecution case, the accused
would be entitled to the benefit of that doubt. But, if the prosecution is able
to establish its case beyond reasonable doubt against the accused in spite of
the lapses, the accused cannot be acquitted because of such lapses unless
they are so grave as to prove fatal to the charges.
101. The discrepancy referred to in the site plan Ex.PW21/D and D1 has
been dealt with by the Trial Court in its correct perspective. The case of the
prosecution is not based on eye witness account but on circumstantial
evidence and the relevant portion of the site plan where Menu was lying
unconscious with corner of the bedsheet soaked in blood as well as the
places where bodies of Manav and Manavi were found lying, are
corroborated by the photographs, correctness of which has not been
challenged. The site plan prepared by the IO was not required to be signed
by any witness as it was based on the observations of IO himself.
102. Ld. Counsel for the appellant referred to the photographs of the
bedsheet and submitted that it ruled out its being used for sleeping during
night as it was not crushed and it also has some blood stains on it. The
photographs depict that bedsheet was tightly placed under the mattress and
that one corner of the bedsheet was blood soaked which could be the place
where head of Meenu Ahuja was placed. By the time IO of this case
reached the spot, Meenu Ahuja had already been removed to DDU Hospital
by PCR and the appellant was sitting in the police station. The blood stains
on the bedsheet have been found to be of human origin of blood group „B‟
which is of Meenu. The date of seizure of bedsheet is 18.07.2005. So far
as some other blood stains appearing on the bedsheet are concerned,
(referred during the course of arguments), while being folded for purpose of
seizure, the blood soaked portion was bound to come in touch with other
portion of the bedsheet thus leaving blood stains there also.
103. The arrest memo and personal search memo Ex.PW6/E and F were
prepared at PS Dwarka where the appellant himself had gone to give the
information. No doubt in column „name of the person informed‟ in the
arrest memo, his mother has been referred and her signatures do not appear
on the arrest memo but here the question is whether the appellant is denying
his arrest and personal search in this case, obviously not. It has already
been observed that mother and sister of the appellant were not examined
during the trial. According to the appellant, his sister and mother were
present at home on the fateful day and in natural course of events, the
mother could have been informed about his arrest. If mother is not a
signatory to the document, it cannot be faulted as there was no legal
requirement.
104. The contention made by the appellant counsel was that on the MLC
Ex.PW8/A, the patient was shown as „absconded from ward‟ at about 8.30
am and there was no basis for the IO to infer that she has been removed to
Apollo Hospital. In this regard, the itemized call details are required to be
mentioned which shows that mobile No.9891984444 was constantly in use
on 18.07.2005 right since morning after 6.00 am till about 1.00 pm. Of
course, we do not have the benefit of details of conversations that took
place between the caller from this mobile phone and the person attending
the call. However, the fact that Meenu was taken from DDU Hospital and
admitted in Apollo Hospital by her brother Sh. Sushil Batra who completed
the admission formalities in Apollo Hospital explains it. Instead of going
into the technicalities „patient absconded from ward‟, it can only be
interpreted to mean that patient was removed from the hospital without
getting formal discharge. Obviously, in view of her critical condition, her
brother was more interested in saving her life by providing medical
facilities at one of the best hospitals.
105. From the testimony of PW-8 Dr. Sameer Kapoor and PW-26 Dr.
Pranav Kumar, it is established that right from the time of admission by
PCR in DDU Hospital till she was declared „brain dead‟ in the Apollo
Hospital, she did not gain consciousness. Hence, there was no question of
patient absconding. So, this endorsement on the MLC Ex.PW8/A is of no
benefit to the appellant.
106. The contention of the appellant regarding inadmissibility of DD
No.10A (Ex.PW5/A) which refers to the murder of wife also apart from two
children, though she was alive, is more for the purpose of challenging the
confession made vide above DD. We also hold that the confession by
informant, so far it is inculpatory and does not lead to discovery of fact or
recovery of any object, is inadmissible in view of case law referred to
above. Here the contents of DD No.10A regarding murder of wife though
she was alive, led to the discovery of fact that she was found lying
unconscious with gunshot wound on her forehead which was not found to
be suicidal by PW-3 Dr. L.K. Baruah who conducted postmortem. She also
had two injuries on her neck which were ante-mortem. The condition of
Meenu Ahuja as described in her MLC Ex.PW8/A and death summary
Ex.PW26/A is sufficient to infer that after causing gunshot injury, appellant
presumed her to be dead, thus, leading to mention of murder of his wife,
though it took three days to declare her „brain dead‟.
107. The exhibits in this case are the clothes of the deceased, blood and
earth control, pistol and cartridges recovered. The statement of PW-15 HC
Ravinder Kumar and PW-17 HC Jaswant Singh is sufficient to prove that
exhibits were sent with intact seal and were so mentioned in the FSL report
by the examiner. The contention of ld. Counsel for the appellant that only
11 exhibits were examined though 15 were sent, is without any basis as
remaining were sample seals required for comparison of seals only and not
for examination. Such type of contention seems to have been made just to
distract from the main case.
108. There is always some motive for commission of crime. In a case
based on ocular evidence, motive loses significance; however, in a case
based on circumstantial evidence, motive does become relevant but at the
same time, saying that absence to prove motive would be fatal to
prosecution, would amount to giving undue importance to it. In the latest
report of the Supreme Court in G. Parshwanath v. State of Karnataka,
(2010) 8 SCC 593; it was held that where the proved circumstances
complete the chain of events, it cannot be said that in the absence of motive,
the other circumstances are of no consequence.
109. In the instant case, financial distress and huge liability was described
as motive in the disclosure statement Ex.PW6/G which could not be
corroborated through any oral or documentary evidence. So we have to
take this case where prosecution has not been able to prove the motive for
the appellant to get rid of his own wife and two children but at the same
time we may hasten to add that failure of the prosecution to prove the
motive in no way weakens the chain of circumstances proved by the
prosecution to establish his guilt.
110. Ld. Counsel for the appellant also referred to the discrepancies
appearing in the testimony of various police officials associated with the
investigation especially who informed the PCR. It is relevant to mention
here that proceedings of ld. Trial Court reflect that the PCR record was
destroyed. The mere fact that Meenu Ahuja was removed by ASI Surjeet of
PCR as recorded in the MLC Ex.PW8/A prepared at DDU Hospital,
statement of PW-9 HC Rajpal, Duty Officer, PS Dwarka about giving
information to Control Room, statement of PW-20 SI Virender Singh, Duty
Officer, PS Kapashera about the information received through wireless
operator, remove the suspicion, if any, as to how the control room came to
know about the occurrence, so as to take Meenu Ahuja to DDU Hospital. So
far as other minor discrepancies appearing in the testimony of police
officials are concerned, the same can be attributed to the loss of memory
and relate to matters which are peripheral or trivial. The testimony of
prosecution witnesses cannot be rejected on account of some minor
variations especially when they are not on material aspects.
111. Regarding the contention of ld. Counsel for the appellant that though
the photographs taken by crime team show that public persons were
available at the spot, none of them was joined to witness the proceedings,
suffice it to say that the occurrence was committed in the wee hours so
much so that the residents were not even aware of lying of dead bodies of
two children on the ground till the arrival of police. In that circumstance,
when nobody had witnessed the occurrence, appellant came there to reside
just two days before, even the faces of the children might not be familiar to
the other residents so as to connect them with the appellant. General
attitude of the public to shy away in criminal cases to become witness
especially when they have not witnessed the occurrence, explain the non-
joining of the residents who can be seen in the photograph as mere
spectators.
112. We notice that while DD No.10A (Ex.PW5/A) records time of arrival
of appellant to inform PS Dwarka as 6.00 am, correctness of which is not
disputed by the appellant, at the same time the admitted call detail record
pertaining to mobile No.9891984444 of the appellant reveal that mobile was
constantly in use on 18.07.2005 right since morning after 6.00 am till about
1.00 pm. A natural question arises from the above details that if at 6.00 am,
he was sitting in the Police Station Dwarka and had already given the
information, who was making/receiving calls on his mobile, which he
alleged to have left in the room in which his wife was locked, during the
above period.
113. The appellant has not claimed use of his mobile phone by any of his
family members who were alive during that time i.e. mother and sister. It
has also been established that Meenu Ahuja was lying unconscious on her
bed at the time of recording of DD no.10A (Ex.PW5/A) and was not in fit
condition to use the mobile phone of the appellant. In such circumstances,
the conclusion can only be that the appellant was the person using the
mobile phone.
114. After carefully considering the testimony of all police officials who
were associated with the investigation of this case, as well as medical and
scientific evidence, we find that testimony of prosecution witnesses is
creditworthy and inspiring confidence. The police witnesses associated
with the investigation had not only deposed in a consistent manner about
the investigation being carried out in discharge of their public/official duty,
it was carried out in a fair and unbiased manner. Rather the circumstances
indicate that they were sympathetic towards the appellant who alleged the
financial distress to be the cause.
115. Merely because the prosecution witnesses are police officials in itself
is no disqualification or reason to discard their testimony. The Court may
adopt a circumspect approach in considering their evidence, and scrutinize
it with care; yet, there cannot be stereotypical assumptions about the quality
of such evidence, which has to withstand the same tests, i.e of credibility
and trustworthiness. Nothing was found in the cross examination of these
witnesses which could throw any doubt about the consistency of their
version. The cross examination of PW-21 Inspector Ramesh Chander, (the
investigating officer) runs into 48 pages and despite this lengthy cross
examination, the intrinsic worth of his testimony remained unchallenged
and his testimony inspires full confidence.
Circumstances proved
116. Now we would synchronize the various circumstances we have found
to have been established beyond reasonable doubt and are sufficient enough
to complete the chain of events in such manner that there is no escape from
the conclusion that within all human probabilities, the appellant committed
the crime:
Circumstance No.1
117. Appellant visited PS Dwarka at about 6.00 am and on the basis of
information provided by him, PW-5 SI Rajnish Yadav was sent to Flat
No.B-702, Jagran Apartment, Sector-22, Dwarka to confirm the information
recorded through DD No. 10A (Ex. PW5/A).
Circumstance No.2
118. By 6.15 am confirming the information, the Duty Officer of PS
Dwarka was telephonically informed by PW-5 SI Rajnish Yadav that bodies
of Manav and Manavi were found lying on the ground and Meenu Ahuja
was lying unconscious with gunshot injury on her forehead.
Circumstance No.3
119. Information provided by the appellant through DD no.10A
Ex.PW5/A at PS Dwarka is admissible to the extent that it led to the
recovery of bodies of Manav and Manavi and Meenu Ahuja was found
lying unconscious with gunshot wound (presumed to be dead by the
appellant).
Circumstance No.4
120. Postmortem report of Manav reveals that the postmortem was
conducted on 19.07.2005 from 1.00 pm to 2.00 pm and cause of death is
possible fall from height/thrown from height and death due to cumulative
injuries and time since death is 36 hours, which is around 1 AM to 2 AM on
the night intervening 17/18.07.2005. Similarly, Postmortem report of
Manavi reveals that the postmortem was conducted on 19.07.2005 from
12.00 noon to 1.00 pm and injury to neck was caused by soft ligature
material. Death due to cumulative effect of all injuries and time since death
is 36 hours, which is around 1 AM on the night intervening 17/18.07.2005.
As per postmortem report of Meenu Ahuja, her postmortem was conducted
on 21.07.2005 from 4.00 pm to 5.00 pm and cause of death was
craniocerbral damage by the bullet and time since death is given as 6 hours
and she was declared brain dead at 10.45 am on 21.07.2005. Thus, all the
three deaths were opined to be homicidal by PW-3 Dr. L.K. Baruah.
Circumstance No.5
121. At the time of visit by PW-5 SI Rajnish Yadav or removal of Meenu
Ahuja in unconscious condition by PCR, pistol Ex.P3 was not found lying
either on the bed or nearby in that room, thus, ruling out commission of
suicide. Even otherwise, there was no evidence, in the form of testimony of
medial or ballistic experts, that the bullet injury on the deceased Meenu was
self-inflicted. In fact, PW-3‟s opinion was to the contrary.
Circumstance No.6
122. Recovery of pistol Ex.P3 on the basis of disclosure statement
Ex.PW6/G from the washing machine and the expert opinion (admissible
under Sec. 45 of Indian Evidence Act) that jacketed bullet Ex.P7 recovered
from the skull of Meenu was fired from pistol Ex.P3, connecting the
recovered weapon Ex.P3 with the murder of Meenu. The manner of killing
of Manav and Manavi as mentioned in the disclosure statement recorded on
18.07.2005 was confirmed by the postmortem report. Furthermore, a pistol
is not expected to be hidden in a washing machine; till its recovery,
pursuant to the accused‟s disclosure statement, the police had no knowledge
where it could be found. The disclosure statement was thus admissible to
the extent of the recovery, under Section 27 of the Evidence Act; it pointed
also to the knowledge of the Appellant - both as to existence and the
location of the weapon.
Circumstance No.8
123. The Appellant‟s reply to question (f) and (g) under Sec.313 CrPC, (as
to whether he tried to find out the truth when his wife told him that she had
killed the children and whether he asked how she killed the children) is a
pointer in this regard. His reply to question (f) is that she only told him that
she had killed the children and to question (g), that she gave no time to ask
this question as she pointed out the pistol towards him.
Circumstance No.9
124. The accused‟s knowledge about where the children were, when he
went to see them, is a circumstance which has to be considered by the court.
When neither the manner of killing was asked by him nor did his wife, the
deceased Meenu, disclose it, and there was no communication even as to
the place where bodies (of the children) were lying and the appellant had
not even peeped from the balcony, there was hardly any reason for him to
run downstairs from the 7th floor in search of the bodies of Manav and
Manavi, unless he was author of the crime and knew where the bodies were
thrown by him.
Circumstance No.10
125. This circumstance pertains to the procurement and use of the firearm.
Though the appellant alleged that his wife had told him that she had used
the weapon, (which was recovered subsequently and produced during the
trial), he did not discharge the onus of establishing that fact. The totality of
circumstances proved before the Trial Court pointed to his knowledge about
the weapon. His explanation in this regard, and the responsibility to
establish those allegations (not beyond reasonable doubt, but on reasonable
probabilities) was cast on him, by virtue of Section 106 of the Evidence
Act. The explanation, without any shred of proof, therefore does not appeal
to reason. Meenu Ahuja, who was residing with her mother-in-law, sister-
in-law and other members of the family, was a housewife and could not-
until there was material on record, otherwise, be expected to have any
access to anyone dealing in illegal firearms as to procure them or know how
to operate such weapons. This circumstance was established against the
appellant; there is no infirmity with the Trial Court‟s findings in that regard.
Circumstance No.11
126. Certain photographs were filed by the appellant, - two of marriage
and twelve of other happy moments, with no history of marital discord
alleged. There was no motive for Meenu Ahuja to kill her own children
especially when her death though claimed to be suicidal, has been proved to
be homicidal.
127. Even if the version given by the appellant that his wife was depressed
and after killing two children, committed suicide and also made murderous
attack on him with the pistol is assumed to be correct for the sake of
argument, the following improbabilities are writ large:
(i) Time of death of Manav & Manvi which is around 1 AM to 2 AM on
the night intervening 17/18th July, 2005.
(ii) If he saw his wife in a violent mood armed with pistol claiming
killing both the children, admittedly she was unarmed at that time and
natural question would have been why and how she killed the children and
look for the bodies in the flat itself.
(iii) Even if it is assumed that there was swift movement by Meenu Ahuja
in reaching the bedroom and taking out the pistol from under the pillow, the
appellant was physically strong enough to disarm her, control her emotions
and then take stock of the situation including as to how she came in
possession of pistol.
(iv) The appellant would not have locked her in bedroom along with
pistol so that she could harm herself.
(v) If the threat was to the safety of his mother and sister as claimed in
reply to question (h) of his statement under Sec.313 CrPC, only a call to
PCR from his mobile was required. The appellant‟s mobile phone was in
use when Meenu was lying unconscious in the bedroom and the call detail
record shows calls being made to different numbers including Meenu‟s
brother. These calls would not have been made, had the mobile been locked
in the bedroom in which Meenu was locked.
(vi) The incident happened in the flat of appellant where there was none-
else except he and his family members including his mother and sister. His
deceased children, Manavi and Manav were sleeping at the time they were
killed and a murderous attack with pistol was made on Meenu Ahuja. A
false plea has been taken by him of being attacked with pistol by his wife
and she being locked in the bedroom with mobile and suicide by her which
can be considered as another circumstance against him.
128. Here in the present case, the murder was committed within the four
walls of Flat No.B-702, Jagran Apartments, Dwarka, New Delhi which was
in exclusive possession of the appellant. The plea of murder of both the
children by Meenu Ahuja and suicide by her has been found to be false for
the reasons mentioned above. In the case reported as Trimukh Maroti
Kirkan v. State of Maharashtra (2006) 10 SCC 681, while referring to the
cases where the offence takes place in the privacy of house without any eye
witness available, it was held as under:
"If an offence takes place inside the privacy of a house and in
such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult for
the prosecution to lead evidence to establish the guilt of the
accused if the strict principle of circumstantial evidence, as
noticed above, is insisted upon by the Courts. A Judge does not
preside over a criminal trial merely to see that no innocent
man is punished. A Judge also presides to see that a guilty
man does not escape. Both are public duties. (See Stirland v.
Director of Public Prosecution 1944 AC 315 quoted with
approval by Arijit Pasayat, J. in State of Punjab v Karnail
Singh MANU/SC/0585/2003: 2003CriLJ3892). The law does
not enjoin a duty on the prosecution to lead evidence of such
character which is almost impossible to be led or at any rate
extremely difficult to be led. The duty on the prosecution is to
lead such evidence which it is capable of leading having
regard to the facts and circumstances of the case."
129. It was a well thought and pre-planned murder case. The appellant
had arranged a pistol and cartridges to execute his plans. Ordinarily, no one
keeps illegal weapons at home especially when they are likely to endanger
life of one‟s children, if they fall in their hands.
130. Having independently considered the circumstantial evidence relied
upon by the prosecution, we concur that the view of Trial court that the
evidence on record conclusively established the guilt of the appellant
excluding every hypothesis consistent with his innocence. There is no merit
in the appeal and the same is liable to be dismissed. This court is also
satisfied that all the circumstances alleged were proved beyond reasonable
doubt as also all the links in the chain of circumstances and that every
hypothesis of the accused‟s innocence is ruled out; likewise, there is no
possibility of anyone except the appellant having committed the crime.
Death Sentence
131. While dealing with the Reference for confirming the death sentence,
an onerous task is cast upon this Court to consider the balance sheet
consisting of the aggravating and mitigating circumstances. We have
perused the order on sentence passed by the learned Trial Court, giving
reasons while awarding death penalty to him. The only submission made
before the Trial Court, recorded at page 6 of the order on sentence, is
reproduced as under:-
"On the other hand, Ld. Defence counsel has submitted that the
convict had no motive or enmity to kill the deceased persons who
were his family members. He has prayed that the accused be
awarded the life imprisonment instead of death sentence."
132. Here too, while claiming murder of Manav and Manavi by Meenu
Ahuja, a murderous attack on the appellant which he escaped and thereafter
Meenu‟s suicide by her, the appellant has argued for acquittal. At the same
time, while concluding the arguments and making submission on death
reference, reliance was placed on the judgment of this Court in Raj Kumar
Khandelwal vs. the State (Govt. of NCT of Delhi) Crl.A.No.294/2008,
seeking commutation of sentence.
133. In the above judgment relied upon by counsel for the appellant, for
committing murder of wife and three daughters due to financial crisis,
although the death penalty was awarded by the Trial Court, was not
confirmed by this Court. The court articulated its reasons as follows:
"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 4 th 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.
134. Each case has its own facts and circumstances which unfold during
trial. The prosecution argument in this case is that the reliance placed by the
appellant on the judgment of Raj Kumar Khandelwal (supra) is of no
avail, because, the offence in that case was committed due to financial
distress and to relieve the family to end their misery. Here, no motive has
been brought on record as to why Manav, Manavi and Meenu were killed
by the appellant in a pre-planned and brutal manner. Thus, the reliance
placed by counsel for the appellant on the above judgment, submitted the
prosecution, is of no consequence.
135. It was submitted that the appellant‟s financial condition was
extremely good as just before this occurrence he had sold his South Delhi
property i.e. F-132, Gautam Nagar, New Delhi, received token money and
was to complete the transaction on 19.07.2005 when he would have
received the balance payment. The purpose of shifting to B-702, Jagran
Apartments, Dwarka, New Delhi was to enable him to hand over the vacant
possession and to complete the deal.
136. In this case, for unfathomable reasons, during the night intervening
17/18.07.2005, the Appellant‟s entire family i.e. the wife and two children,
were wiped out in an extremely brutal manner. The seemingly motiveless
crime, and the manner of its execution, is disturbing. Even those with a
propensity to crime and violence, ordinarily do not train their sights at their
families. This motiveless - perhaps mindless crime indicates one grave, and
perhaps aggravating circumstance, which the court has to take into
consideration, i.e. its sheer heartlessness. To compound this, for strange
reasons, the appellant‟s counsel did not argue about any mitigating
circumstance, for the purpose of preparing the balance sheet. Nevertheless,
the Court can perceive the following mitigating circumstances:-
(i) Lack of criminal record as the appellant is first offender.
(ii) Character of the offender as perceived in the society by men of social
standing.
(iii) His age at the time of commission of crime i.e. 31 years
(iv) His mental condition, anxiety, depressive state, emotional disturbance
which lower the degree of culpability.
(v) Probability of the offender‟s rehabilitation, reformation and re-
adaptation in society.
(vi) One significant factor which the Court cannot lose sight of is the
testimony of Meenu‟s brother, PW-2. In Court, he deposed,
voluntarily, that
"Accused Naveen Ahuja came to my office prior to 4/5 days of the
incident. He remained in my office for 2 hours and had tea with me.
He discussed the problem regarding his sister Nidhi Ahuja regarding
her martial discord and his financial problem. At that time I assured
him full support."
137. Inexplicably, the accused did not throw any light on this aspect. As
noticed previously, he did not volunteer any explanation for his conduct,
nor provide any key to what compulsions motivated him to do what he did.
Having regard to these facts, the undeniable circumstance that he went to
the police station soon after the incident and further ,the evidence on record
shows that the accused used his mobile phone to contact his in-laws‟
landline at Faridabad (telephone No.0129-2269870 ). These were placed on
the record as Ex. C-1 and not objected to on behalf of the appellant. The
phone call was apparently made at 06:15 hours on the day of the incident;
it lasted for nearly one minute. These facts point a slightly different picture.
PW-2 had no motive to depose falsely, in favour of the appellant,
considering that he (the accused) was arrayed for killing his sister and her
children. Similarly, though the objective fact of a telephone call appears on
the record, the prosecution witnesses are silent as to what the accused said.
It can reasonably be inferred that he mentioned about the incident in those
calls. One reasonable hypothesis - considering that the appellant is
unhelpful, either out of choice, or (if the hearings in this court are any
indication, on account of legal advice) - can be that due to the stress
mentioned by PW-2, he committed the crime, and was overcome by
remorse almost immediately, which also explains his reporting the matter
without any delay, to the police.
138. In the recent judgment reported as Ajit Singh Harnam Singh Gujral
v. State of Maharashtra 2011 (Supra), the Supreme Court dealt with the
question whether the appellant deserved death sentence for killing his wife
and three children by pouring petrol on them and setting them on fire. After
considering death penalties worldwide and in India and the basic cases on
the subject i.e. Bachan Singh and Machhi Singh, also considered some
other decisions, where death penalty has been affirmed by that Court. The
same are as under:-
(1) Sunder Singh vs State of Uttranchal (2010) 10 SCC 611
(2) C. Muniappan vs State of T.N. (2010) 9 SCC 567
(3) M.A. Antony vs State of Kerala (2009) 6 SCC 220
(4) Jagdish vs State of M.P. (2009) 9 SCC 495
(5) Prajeet Kumar Singh vs State of Bihar (2008) 4 SCC 434
(6) Ram Singh vs Sonia (2007) 3 SCC 1
(7) State of U.P. vs Satish (2005) 3 SCC 114
(8) Holiram Bordoli vs State of Assam (2005) 3 SCC 793
(9) Saibanna vs. State of Karnataka (2005) 4 SCC 165
(10) Karan Singh vs State of U.P. (2005) 6 SCC 342
(11) Gurmeet Singh vs State of U.P. (2005) 12 SCC 107
(12) Sushil Murmu vs. State of Jharkhand (2004) 2 SCC 338
(13) State of Rajasthan vs. Kheraj Ram (2003) 8 SCC 224
(14) Om Prakash vs. State of Uttranchal (2003) 1 SCC 648
(15) Gurdev Singh vs. State of Punjab AIR 2003 SC 4187
(16) Praveed Kumar vs. State of Karnataka (2003) 12 SCC
(17) Suresh vs. State of U.P. AIR 2001 SC 1344
(18) Molai vs. State of M.P. AIR 2000 SC 177
(19) Ramdeo Chauhan vs. State of Assam AIR 2000 SC 2679
(20) Narayan Chetanram Chaudhary vs. State of Mahrashtra AIR
2000 SC 3352
(21) State of U.P. vs. Dharmendra Singh AIR 1999 SC 3789
(22) Ronny vs. State of Mahrahtra AIR 1998 SC 1251
(23) Surja Ram vs. State of Rajasthan AIR 1997 SC 18
(24) Umashankar Panda vs. State of M.P. AIR 1996 SC
(25) Ravji vs. State of Rajasthan AIR 1996 SC 787
(26) Suresh Chandra Bahri vs. State of Bihar AIR 1994 SC 2420
(27) Bheru Singh vs. State of Rajasthan (1994) 2 SCC 467
(28) Sevaka Perumal vs. State of T.N. AIR 1991 SC 1463
(29) Sudam @ Rahul Kanjram Jadhav vs. State of Maharashtra
(Criminal Appeal Nos. 185-186 of 2011)
(30) Ranjeet Singh vs. State of Rajasthan (1988) 1 SCC 633
(31) Atbir vs. Govt. of NCT Delhi AI R2010 SC 3477
(32) Surendra Koli vs. State of U.P. AIR 2011 SC 970
139. The facts and circumstances of the cases in which death penalty was
affirmed, were considered at length and while dealing with the case of
appellant, observed that as held in Bachan Singh Vs. State of Punjab
(supra) that death sentence should only be given in the rarest of rare case,
the case of the appellant Harnam Singh was one of such cases. Relevant
paragraphs of the report are extracted as under:-
"96. In our opinion, a person like the appellant who instead
of doing his duty of protecting his family kills them in such a
cruel and barbaric manner cannot be reformed or
rehabilitated. The balance sheet is heavily against him and
accordingly we uphold the death sentence awarded to him.
97. In the present case the accused did not act on any spur
of the moment provocation. It is no doubt that a quarrel
occurred between him and his wife at midnight, but the fact
that he had brought a large quantity of petrol into his
residential apartment shows that he had pre-planned the
diabolical and gruesome murder in a dastardly manner."
140. Courts in India have, post Bachan Singh a duty to satisfy themselves
that there are elements in the proven facts and circumstances of a given
case, which set it apart, or constitute the "rarest of rare" category of cases,
which warrant imposition of death penalty. The singular feature of the duty
cast is highlighted by the fact that death penalty was upheld as a valid
punishment, and not violative of Article 21, provided it was imposed in the
"rarest of rare" cases. Later decisions, particularly of the Supreme Court
have sought guide as to the correct approach, stressing the need to draw up
a balance sheet of aggravating and mitigating circumstances (Machi Singh v
State of Punjab, AIR 1983 SC 17) while considering the appropriateness of
imposing the death sentence, and the need for the Court to ask the question
if the death penalty was the only sentence that could be imposed in the
given facts. Anshad v. State of Karnataka (1994 (4) SCC 381) addressed the
issue of subjective judicial-decision making. The Court commuted the death
sentence to life imprisonment observing that the courts are expected to
exhibit sensitivity in the matter while awarding a sentence especially if the
case involves the question of death penalty. The manner in which the crime
was committed, the weapons used and the brutality or the lack of it are
some of the considerations which must be present in the mind of the court.
It was further stated that the Court while taking into account the aggravating
circumstances should not overlook or ignore the mitigating circumstances.
In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka,
AIR 2008 SC 3040 it was held that if the case falls short of the rarest of rare
category and the Court is reluctant to award the death penalty, but at the
same time, it feels that life imprisonment, subject to remission, which is
usually of 14 years is inadequate, then recourse should be taken to the
extended option. The Court should direct that the convict should be given
life imprisonment and he must not be released for the rest of his life.
141. Courts have to recognize that the "rarest of rare" principle is an
attempt to streamline sentencing, and instruct a certain uniformity in
judicial approach towards a task which is extremely sensitive and difficult.
When a judge exercises a choice either way, she (or he) assumes an onerous
responsibility which has to be lived with for the rest of one‟s life.
142. Panchhi v. State of Uttar Pradesh, AIR 1998 SC 2726 is an
important case, where the Supreme Court held that brutality is not the sole
criterion of determining whether a case falls under the "rarest of rare"
categories, thereby justifying the commutation of a death sentence to life
imprisonment. The Court observed:
"No doubt brutality looms large in the murders in this case
particularly of the old and also the tender age child. It may be that
the manner in which a murder was perpetrated may be a ground but
not the sole criterion for judging whether the case is one of the
„rarest of rare cases‟ as indicated in Bachan Singh‟s case."
143. It would be useful for the Court to recollect that the court‟s task is not
lightened only by noticing the brutality of the crime, because a focus only
on that aspect tends to obscure all other features, some of which might be
mitigative in character. This Court recollects, in this context, the following
poignant passage from Rajendra Prasad Singh v State of UP AIR 1979 SC
916 (that was a case leading to the reference to Bachan Singh):
"An easy confusion is over-stress on the horror of the crime and the
temporary terror verging on insane violence the perpetrator displays,
to the exclusion of a host of other weighty factors when the scales are
to settle in favour of killing by law the killer who resorts to unlaw.
Speaking illustratively is shocking crime, without more, good to
justify the lethal verdict? Most murders are horrifying, and an
adjective adds but sentiment, not argument. ....Did not Lord Camden,
one of the greatest and purest of English judges, say
"that the discretion of a judge is the law of tyrants; it is always
unknown; it is different in different men; it is casual, and
depends upon constitution, temper and passion. In the best it is
oftentimes caprice; in the worst, it is every vice, folly and
passion to which human nature can be liable." (State v.
Cummings 36 Mo.263 278 (1865) When life is at stake, can
such frolics of fortune play with judicial veriest?
The nature of the crime-too terrible to contemplate-has often been
regarded a traditional peg on which to hang a death penalty. Even
Ediga Annamma (supra) has hardened here. But 'murder most foul' is
not the test, speaking scientifically. The doer may be a patriot, a
revolutionary, a weak victim of an overpowering passion who, given
better environment, may be a good citizen, a good administrator, a
good husband, a great saint . What was Valmiki once? And that
sublime spiritual star, Shri Aurobindo, tried once for murder but by
history's fortune acquitted....
If we go only by the nature of the crime we get derailed by subjective
paroxysm."
144. If the decision in Ajit Singh Harnam Singh Gujral (supra) falls in one
end of the spectrum about killing of members of the accused‟s family, being
construed as brutal and diabolical, as to warrant death penalty, Rajpara v.
State of Gujarat, (2002) 9 SCC 18; Sheikh Ayub v. State of Maharashtra,
1998 SCC (Cri) 1055 and Ram Anup Singh v. State of Bihar AIR 2002 SC
3006 indicate a contrary approach. In Rajpara the accused was convicted
for murder of wife and four daughters by pouring petrol on them and setting
them on fire when they were asleep. But the Court commuted the death
penalty to life imprisonment. In Sheikh Ayub the accused murdered his wife
and five children, but again the death penalty was not awarded. Ram Anup
Singh was a case of murder of four persons including the accused‟s brother
and family members; yet death penalty was not awarded). Curiously, Ajit
Singh Harnam Singh notices none of these judgment; it also misread Ronny
vs. State of Maharashtra (1998) 3 SCC 625. In fact, despite the accused
having been found guilty under Sections 376 and 302/34 IPC for
committing rape and gruesome murder and being sentenced to death by the
Trial Court and the High Court concurrently, the Supreme Court commuted
the sentence to imprisonment for life.
145. This Court takes into consideration the above decisions, (as they are
useful guidelines for the court to focus its mind, and not as containing
binding, inflexible principles) though the heartless nature of the crime is
shocking, yet, it cannot be said that the appellant is irredeemable as a
human being; he is not "shut out from God and man" for the court to say
that death penalty is the only sentence fit for his crime, and that it falls
within the rarest of rare category of offences.
146. In view of the above discussion, the sentence of death imposed by the
Trial Court is not confirmed; it is accordingly reduced to life imprisonment,
which, shall mean the rest of his life as held in Swamy Shraddananda @
Murali Manohar Mishra v. State of Karnataka (supra). The conviction
and sentence imposed in respect of the offences under the Arms Act are, for
the above reasons, upheld.
147. The Death Reference is answered accordingly. The Appeal is, for the
above reasons, allowed in part.
PRATIBHA RANI, J
S. RAVINDRA BHAT, J
November 20, 2012
st/dc/aka
