Delhi High Court
State vs Jitender on 21 February, 2013
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 24.11.2011
Decided on: 21.02.2013
+ DEATH SENTENCE REF. 1/2011
STATE .......Petitioner
Versus
JITENDER ....Respondent
+ CRL. A. 912/2011
JITENDER .......Appellant
Versus
STATE ....Respondents
Through: Sh. Trideep Pais and Sh. Shivam
Sharma, Advocates, on behalf of Jitender.
Sh. Rajesh Mahajan, ASC (Crl), for the State.
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE PRATIBHA RANI
MR. JUSTICE S. RAVINDRA BHAT
%
1. The present judgment will dispose of Death Reference No.
1/2011 under Section 366 of the Code of Criminal Procedure, and the
accused‟s appeal, being Crl.A. 912/2011 impugning his conviction,
and the imposition of death penalty, by the judgment and order of the
learned Addl. Sessions Judge-01 (Central), Delhi, dated 24.12.2010
and 10.01.2011 respectively, in S.C. No. 69/2009.
2. The appellant (Jitender, referred to variously by his name, or as
Death Sent. 1/11 & Crl.A.912/11 Page 1
"the Appellant"), was convicted for the offence under Section 302,
Indian Penal Code (IPC) for the murder of his father. It was alleged
that on the morning of 13.03.2008, he strangulated his father, aged
about 70 years ("the deceased") to death, in the first floor of his own
house at No. 6270, Gali Ravi Dass, Nabi Karim, Delhi, within the
jurisdiction of the Nabi Karim Police Station. Thereafter, it was
alleged that he severed the head from the body, removed the entrails
and some organs from the body.
3. The facts of the case are that two temples (the Baalmiki Mandir,
and the Kaali Mata Mandir) are situated opposite each other, in the
vicinity of the appellant‟s house. At about 2.00 PM, on 13.03.2008,
the appellant was seen coming out of his house, his face and clothes
smeared with dust, carrying with him something wrapped in black
cloth, and running in the direction of the temples. It is alleged that he
found that the temples were closed when he reached them. He found
the priest of the Baalmiki Mandir, Madan Lal PW-2 (who was resting
nearby) and demanded the keys of the Kaali Mata Mandir. When
Madan Lal told him that he did not have the keys, the Appellant began
to shout and break articles in the temple, and tried to force open the
Almirah. PW-2 went outside to seek help and the Appellant was taken
away by the Police, for breaching the peace, to the Police Station at
2.25 PM. He was arrested under Sections 107/151 Cr.PC. He was
released by the Executive Magistrate in the forenoon of 14.03.2008.
4. The Appellant lived in 6270, Gali Ravi Das, Nabi Karim ("the
premises") with his father (the deceased) and his mother Kamla, PW-
3. His brother, Rakesh PW-16 resided separately in a jhuggi in Roop
Death Sent. 1/11 & Crl.A.912/11 Page 2
Nagar, and his married sister, Guddo PW-4, lived with her husband in
Shastri Nagar, Delhi. Suresh Kumar PW-5, Jitender‟s cousin, lived in
the abutting portion of the appellant‟s house. The appellant had been
married, but his wife had deserted him, and he was unemployed. On
12.03.2008, the appellant‟s mother PW-3 had gone to her other son
Rakesh‟s house for two days. On the day of the murder, the deceased
and the appellant were the only people residing in his house.
5. The prosecution case is that Guddo PW-4, who would visit her
parents every day in the morning after finishing her work, which was
that of cleaning Marwadi Basti, Nabi Karim, on 14.03.2008 also, as
usual, came to the appellant‟s house, at about 7.15/7.30 AM, to meet
her parents. When she went inside, she found the headless and naked
body of her father on the floor. She raised an alarm, which alerted
Ajay @ Bunty PW-22, who went inside the house, saw the body and
informed the police. Another neighbour, Sri Chand, informed the
deceased‟s other son Mahesh PW-16, who was at work, at around
8.30 AM. The Police recorded the information in a PCR Form (Ex.
PW14/A), the PCR van recorded the information as DD No. 8-A (Ex.
PW18/A ) at 7.25 AM.
6. The Police reached the crime scene. SI Rajni Kant PW-24 and
Constable Dharamveer saw that the headless body was lying in a pool
of blood in front of a small wooden temple of the Goddess Durga
(Sherawali). Earlier, the same day, at about 6.00 AM, Nanhe Ram
PW-1 a priest of the Baalmiki Mandir, on opening the almirah inside
the temple, found a parcel wrapped in black cloth, in which upon
unwrapping the cloth, he found a human head. He immediately
Death Sent. 1/11 & Crl.A.912/11 Page 3
informed Suresh Chand PW-9, of the managing committee of the
temple, who on seeing the head, along with some other local residents,
including Rajender PW-15, informed the police. Rakesh PW-16 (the
son of the deceased) was also informed. Both PW-15 and 16
identified the severed head to be that of Kartar Singh. This
information was immediately conveyed to SI Rajni Kant PW-24 who
was present at the house of the appellant (the headless body had been
discovered by such time). Madan Lal PW-2 then told him about the
appellant‟s strange conduct the previous day at the mandir. On the
basis of the identification of the body and the severed head and all the
above mentioned facts, a rukka was prepared (Ex. PW-24/A) on the
basis of which an FIR (Ex. PW 17/A) for the offences under Section
302/201 IPC, was registered at 8.40 AM. The Crime Team
investigated the scene of offence, photographs were taken and
necessary physical evidence was recovered from the spot. The
Appellant was arrested at around 5.30 PM in the same evening. He
allegedly made a disclosure statement to the effect that he had killed
his father, and pursuant to his disclosures, his blood stained shirt and
the knife/ churri used in the crime were recovered.
7. After conclusion of the investigation, the Police filed a final
report, indicting the Appellant for the commission of offences under
Section 302 IPC. The Appellant pleaded not guilty and claimed trial.
The Prosecution examined 25 witnesses. On conclusion of the
Prosecution evidence, the Appellant‟s statement was recorded under
Section 313 Cr. P.C. wherein he claimed his innocence, and denied all
recoveries allegedly made at his behest. After considering the
Death Sent. 1/11 & Crl.A.912/11 Page 4
evidence on record, and hearing submissions, the Trial Court found
the Appellant guilty of the charge under Section 302 IPC. On the
point of sentence, for the reasons given in its order (Paras 21- 25) the
Trial Court found that the murder of the septuagenarian father, by the
son, as human sacrifice, constituted the „rarest of rare‟ case and
sentenced him to death.
Trial Court‟s findings:
8. On appreciation of the evidence, the Trial Court was of the
opinion that the prosecution had established, on the basis of
testimonies of Jitender‟s mother, PW-3; his sister, PW-4 and his
brother, PW-16- Rakesh that the allegations regarding his living with
his parents and his unemployment, were proved. The Trial Court also
relied on the testimony of PW-3 and the statement of the appellant
under Section 313 Cr.PC, to hold that he was engaged in Devi Pooja
and had previously spoken of his desire to offer sacrifice pursuant to
such worship. The Court was satisfied that at the time of the
commission of the offence, there was no one except the appellant in
the premises. In reaching this conclusion, the Court relied on the
testimony of PW-3, his mother and PW-16, his brother. On the crucial
aspect that the appellant had beheaded his father, the Court relied on
the testimony of PW-15 Rajender who said that he had seen the
appellant on 13.03.2008 running out of his house, carrying something
wrapped in a black cloth to the Baalmiki Temple. The witness had
also identified the cloth.
9. The Trial Court relied on the testimony of PW-2, who stated
that on 13.03.2008, the appellant had gone to the Baalmiki Temple,
Death Sent. 1/11 & Crl.A.912/11 Page 5
created a commotion, tried to open the almirah; and broke glasses kept
in front of the idol. The testimony of PW-23, the policeman on duty,
who arrested the appellant on 13.03.2008, on being informed that a
person was causing destruction of temple property, was relied upon.
The Trial Court accepted all the other evidence pertaining to the
discovery of the body and severed head, its identification etc. The post
mortem which was conducted on 15.03.2008 at 01.00 PM led to the
report (Ex.PW-21/A), which fixed the probable time of occurrence of
death at 07.00 AM, on 13.03.2008. This and the other material and
circumstantial evidence were held to be sufficient to prove beyond
reasonable doubt that it was the appellant alone and no one else who
committed the murder and that every hypothesis of his innocence was
ruled out.
Analysis of evidence:
10. PW-1 Nanhe Ram deposed to working as pujari at the Baalmiki
Mandir and that Madan Lal was also a pujari there. According to him,
there was a Kaali Temple in front of Baalmiki Mandir. On
14.03.2008, at 06.00 AM, when he went to the temple (Baalmiki
Temple), and opened the cupboard to take-out a cassette deck, to play
the Arti (devotional songs), one old black coloured„potli‟ (cloth
wrapped package) fell on the ground. On unwrapping, he found that it
contained a human head. He immediately alerted the President of the
Temple Trust - Suresh Rukhal, who reached there and checked the
head. Both went to the Police Station and reported the matter. The
police visited the temple and conducted proceedings. He became
aware that a headless body was found in House No. 6270. He stated
Death Sent. 1/11 & Crl.A.912/11 Page 6
that it was also informed that the previous day, Jitender created a
scene in the temple and tried to open the almirah and was arrested by
the police. In cross-examination, he said that he went to Suresh
Rukhal‟s house at 06.05 AM and within 5 mintues, reached the temple
with him. He went to the police station with Chaudhary Keher Singh,
Kishan Lal and Suresh Chand Mukharji and many others and
remained there for 5-10 minutes, and then they returned to the temple
with the policemen. He stated that information that a headless body
was lying in House No. 6270 was circulated in the area. He clarified
that on 13.03.2008, he had reached the temple and found Jitender had
created a scene there.
11. PW-2, Madan Lal, the other pujari in the Baalmiki Temple
deposed that on 13.03.2008, the Kali Temple was closed and he was
lying near the Baalmiki Temple. At around 02.00 PM, Jitender went
there and started making noise; he had a black colored cloth package
(potli) and demanded keys of Kaali Temple from him. The witness
stated that he did not have the keys of Kaali Temple, upon which the
accused created a commotion and started breaking articles at the
temple. He informed some people sitting outside the temple. Jitender
tried to open the almirah in the temple; he had also broken the glasses
kept in the front of the idol. He went outside the temple and created a
scene. The police reached there and took him into custody. He further
deposed that on 14.03.2008, when Nanhe Ram and other pujari
opened the almirah, a human head severed from the body, kept in a
black colored cloth fell down. The police and others reached there. In
the cross-examination, he could not state what colored clothes were
Death Sent. 1/11 & Crl.A.912/11 Page 7
worn by Jitender on 13.03.2008. He also stated that Jitender did not
make any noise in his presence and that 4-5 people had gone inside
the temple. They were at a distance of 15-20 steps from the temple.
He could not say when Jitender was arrested and that he admitted that
Nanhe Ram told him that a severed head of some man was recovered
from the temple. He said that he reached the temple at 04.00 AM and
remained there till 06.00 AM; left it at 06.00 AM. He returned there
after 15 minutes and he remained in the temple the entire day.
12. PW-3 Kamla, deposed that Jitender was her younger son and
that her elder son - Rakesh resided at Roop Nagar. Jitender‟s father,
the deceased Kartar Singh, and the witness, used to live in the
premises; Jitender was unemployed and idle. His wife had deserted
him and was living with her parents. She stated that on 12.03.2008,
she had gone to stay with the elder son, Rakesh and that 2-3 days
later, at around 09.00 AM, there was police all around her house and a
crowd gathered there. She was not allowed to enter the house and she
remained outside. She later identified the body of the husband on the
basis of severed head shown to her. That severed head was brought
from the temple. She deposed that Jitender used to say that he was
doing devi pooja for which he would indulge in sacrifice. She stated
that the police had interrogated her when the body was brought down
from the second floor and that Jitender used to frequently tell her that
he used to do pooja of deities.
13. PW-4 Guddo - Jitender‟s sister deposed that she used to do
cleaning work in Marwadi Basti, Nabi Karim and that the appellant
and father used to reside in the premises. Her elder brother used to
Death Sent. 1/11 & Crl.A.912/11 Page 8
live in Roop Nagar. She deposed to visiting the said premises daily
after finishing her work. One day when she visited the premises of her
father, she found his headless body without any clothes. Thereafter,
she raised an alarm which attracted neighbors who reached there. She
went down and informed the neighbors. In the meantime, the police
reached the spot. She stated in the cross-examination that she went to
her father‟s house at 07.30 AM and that after seeing the condition of
the body, she went down. She had not informed the Police Control
Room (PCR) and she could not say who had informed the police. She
also stated that the accused did not tell her that he was indulging in
Devi worship.
14. PW-5, Suresh deposed that he was Jitender‟s cousin. He stated
that Jitender was unemployed and used to remain idle at home. He
used to keep his room shut. He stated that accused had not told him
about any pooja or that he would give sacrifice and that on
13.03.2008, he received a telephonic call about dead body in the
accused‟s house. He went to the spot and found the headless body of
Kartar Singh. He could not say from where the severed head was
recovered. The witness was declared hostile and permitted to be cross-
examined. In the cross-examination, he was confronted with his
previous statement where he had stated that Jitender used to practice
devi pooja and that he claimed he would be blessed with divine
powers. Upon being confronted with his Section 161 statement,
(Ex.PW-5/DA), he admitted to identifying the head of the deceased.
In the cross-examination, he mentioned that the incident took place on
12.03.2008 and further deposed that he received call on 13.03.2008.
Death Sent. 1/11 & Crl.A.912/11 Page 9
PW-6, Sri Chand who used to reside at 6236, Gali Gurudwarewali,
Nabi Karim deposed that on 14.03.2008 at 08.00 AM, he was in his
house when he was informed that a headless body was found in the
premises of the deceased. He went to Kaali Temple and gave the
information and brought Rakesh, the accused‟s brother to his house.
15. PW-7, Dinesh Kumar, a Constable, stated that on 14.03.2008, at
the request of SI Rajni Kant, he accompanied the Crime Team to the
premises and found a Chhuri lying on the slab in the house. He took
the photographs (exhibited as Ex.PW-7/7 - Ex.PW-7/5). He also
produced the negatives. He deposed to reaching the house at 08.45
AM, and remaining there till 09.20 AM. PW-8, Constable Dharmveer
deposed to having, with SI Rajni Kant, reached the premises and
seeing the headless body of the deceased. He stated that the head was
wrapped in black coloured cloth and was in the Baalmiki Temple. He
took the information to the Police Station where the FIR (Ex.PW-
17/A) was recorded. A copy was handed-over to SI Rajni Kant, at
whose instructions he took the body to JPN Hospital for postmortem.
The body was thereafter handed-over to the family members of the
deceased. In cross-examination he stated that he reached the House
No. 6270 at about 07.25 AM and that his movement was recorded in
D.D. No. 8A. He went to the police station with the rukka at 08.00
AM and reached the police station at 08.15 AM. He remained at the
spot for 20-25 minutes.
16. PW-9 stated that he headed the Committee which managed the
Baalmiki Temple and that at 06.15 AM, Nanhe Ram went to his house
and asked him to accompany him to the temple, where on the floor,
Death Sent. 1/11 & Crl.A.912/11 Page 10
lay a severed human head wrapped in black coloured cloth. He
collected people from the locality and went to the Police Station. He
also deposed that someone from the family of the accused telephoned
the police that the deceased‟s headless body was lying in the house.
He deposed in the cross-examination that he reached the temple
within five minutes of being informed, at 06.15 AM and that he
reached Police Station Pahar Ganj and that the police accompanied
them within 15 minutes. They remained there for 15 minutes and
afterwards went to the house of the deceased.
17. PW-10 was the photographer who deposed to having taken 11
photographs in the house of the deceased. The photographs of the
body, from different angles and that of the head, at the Baalmiki
Temple, were taken. They were produced in Court. He deposed to
having left for the spot at 08.30 AM and remained at the spot for ½ an
hour. No public witnesses were present. PW-11 was posted in the
Mobile Crime Team and stated that on receipt of information, at
around 08.30 AM, he and his team went to House No. 6270, Gali Ravi
Dass, and found the headless male body lying in a room. He lifted the
chance prints. In cross-examination, he stated that 3-4 policemen and
5-7 members of the public were there and that several photographs
were collected by the photographer. PW-12 was in-charge of the
Crime Team and he deposed to having reached the spot at 08.45 AM
with members of his team. He deposed that he was there was a blood-
stained knife lying on a slab in a room.
18. PW-14 deposed that at about 07.18 AM, on the day of the
incident, he received information that a dead body was lying in 6239,
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Gali Guru Ravi Dass, near Baalmiki Temple, which was reduced to
writing and further passed on to the PCR. The PCR Form was exhibit
PW-14/A.
19. PW-15 Rajender deposed that he was an employee of the Delhi
Jal Board and that Jitender was his neighbor. He stated that on
13.03.2008, at about 02.00 PM, while reporting for duty, he saw
Jitender leaving his house and holding something wrapped in black
cloth in his hand. He was running towards the Baalmiki Temple fast
and his clothes were dust-smeared. Upon being asked, Jitender did not
respond and continued to run towards the temple. He returned from
duty at 09.30 PM. The next day, i.e. on 14.03.2008, at 06.30-07.30
AM, while leaving home, he came to know that a human head without
the body was lying in the Baalmiki Temple, where he went. A large
number of policemen were present there. He discovered that the head
without the body was that of Kartar Singh @ Jhhunna. It was also
stated that the black cloth potli carried by the accused and which he
had seen the previous day was lying near the head. He stated that the
accused used to stay back at home after consuming liquor. He
identified the black colored cloth, Ex.P-1 upon its production in
Court. In cross-examination, he stated that he used to work and his
duty hours were between 02.00 PM and 10.00 PM and that he
proceeded from his house on 13.03.2008 at about 02.00 PM. He had
seen the accused when he was running towards his house and that at
that time, the witness was reporting for duty. There was no specific
mark on the black cloth which was used to wrap something. He could
not remember the color of the dress which the accused wore. He
Death Sent. 1/11 & Crl.A.912/11 Page 12
stated that:
"On 13.03.2008, I came back from duty at 10.00 PM.
There was a hue and cry by the members of the temple
that one head was lying in the temple but I did not go to
the temple and on the return at my house. My statement
was recorded by the police."
20. PW-16 deposed that he was living in Roop Nagar in a Jhuggi
and that his parents and Jitender lived in 6270 Gali Ravi Dass. He left
the parental home due to the accused‟s behavior. 2-3 days prior to
14.03.2008, his mother had gone to his house at Roop Nagar. The
deceased and Jitender continued to live in 6270, Gali Ravi Dass, Nabi
Karim. He stated that on 14.03.2008, Billu and Raju went to him at
his workplace near Kaali Temple, between 08.30 AM and 09.00 AM,
and asked him to reach his parental house. He found a crowd along
with police officials there. He saw a headless body in a room in front
of a wooden mandir "shrine". Different parts of the body had been
cut. He was told that a human head was lying in the Baalmiki Temple.
He went there and saw that it was his father‟s head in a black cloth on
the temple floor. He identified the head as that of his father. The
police brought that head to the house where he identified the body of
that of his father. His father‟s name was engraved (tattooed) on his
hand. The identification memo, PW-16/A bears his signatures. He
deposed that around 100 people were at the spot when he reached
home and that 20-30 policemen were also present. He deposed that the
distance between his workplace and his house was about 30 minutes.
His neighbors had told him about the head lying in the Baalmiki
Temple where he reached between 10.30 AM and 11.00 AM. He
Death Sent. 1/11 & Crl.A.912/11 Page 13
remained in the temple for about 30 minutes. He could not recollect
the number of documents he signed and stated that he reached the spot
where he remained from 01.30 to 02.30 PM. He stated that he had not
given any statement to the police.
21. PW-22 Ajay @ Bunty lived in 6239, Gali Gurudwarewali, Nabi
Karim. He was a Network Engineer employed in the Customs
Department on contract basis. He deposed that on 14.03.2008, in the
early morning, around 07.15-07.30 AM, he heard cries of Guddo,
PW-4, saying that she had discovered a headless body in her house.
He informed the police on telephone No. 100. He went inside the
house to the room on the first floor near the wooden shrine. After
some time, the police reached the spot and lifted blood, soil and earth
control and put them in a separate glass. The police also took into
custody blood-stained clothes and sealed these articles. The scene of
occurrence was photographed. He says that he joined the investigation
again at 06.00 PM when the accused was arrested by Memo Ex. PW-
22/H and his personal search was made. His disclosure statement,
Ex.PW-22/K was recorded and he led the police to the place of
occurrence and pointed to the left of the room where he had thrown a
knife, the weapon of offence after the crime. The crime team, it is
stated, took the photographs of the knife. The IO prepared a sketch of
the knife, Ex.PW-22/L and sealed the knife. At the time of arrest, the
accused was wearing blood-stained clothes which he changed at the
spot of occurrence. The blood stained clothes were seized by the
police. He also stated - in the cross-examination, with permission of
the Court, that the accused led the police party to the Baalmiki Temple
Death Sent. 1/11 & Crl.A.912/11 Page 14
and pointed-out the place where he kept the severed head of his father.
22. In the cross-examination, he mentioned that his working hours
were between 08.00 AM and 04.00 PM and that he normally left
home at 07.30 AM. The accused‟s house was located near the back of
his house; one could reach there from the rooftop of his house, in
addition to circling the gali. It took less than two minutes to reach the
accused‟s house. He made the PCR call at 07.00-07.15 AM. He stated
that the Crime Team reached at 08.00-08.30 AM and that he had
signed 4-5 papers. He also stated that he took leave from office on that
day. He deposed that his statement was recorded at 08.15 AM but he
did not remember when the second statement was recorded though it
was recorded in the morning. He could not remember if the accused
was arrested on 13.03.2008 but he was aware of that. He stated that
the accused probably wore a single-lining shirt and grey-colored pants
but was not sure. He also deposed that his statement was recorded by
police after 13.03.2008 and that 6-7 parcels were prepared in his
presence. PW-23 was the Sub-Inspector who received the report, DD-
13A on 13.03.2008. That report was exhibited as Ex.23/A. He stated
that he went to the temple where he found a big crowd and also saw
the accused. He was threatening others present there and demanding
offerings given by the devotees to the temple. At that time, his face
was soiled with ashes and he had smeared a red-colored tika on
forehead. The witness saw broken glass of the idol and also saw
blood-stained clothes of the accused. He thought that the blood-stains
could have been result of the breaking of glasses. The accused, upon
enquiry, told him "mujhe devi ki shakti aati hai" - that he derived
Death Sent. 1/11 & Crl.A.912/11 Page 15
strength from Goddess Shakti, attributing his conduct to divine power.
Jitender kept threatening those persons; as a result the witness arrested
him under Sections 107/Section 151 Cr.PC, got him medically
examined and took him to the lock-up at Police Station Pahar Ganj.
He made an arrival entry, Ex.PW-23/B and filed intimation in the
Court of Special Magistrate, Central District, where the accused was
produced on 14.03.2008 and later released from custody. The witness
stated that he came to know that Jitender murdered his father as a
sacrifice. In cross-examination, he admitted that he did not record
details, such as smearing of ash and blood-stained tika on the forehead
of the accused or that his clothes were stained with blood. He stated
that he deposed to having arrested Jitender at 03.30 PM on 13.03.2008
but did not obtain signatures of any public person on the arrest memo.
He said that he informed the accused‟s mother of his arrest on
telephone but did not record any statement to the IO about such
information given to the accused‟s mother. He also admitted having
caught the appellant with the help of Constable Krishan Pal who was
present there, and that he did not record in his statement that he had
the services of Krishan Pal. The witness stated that "the accused was
produced before the Special Executive Magistrate on 14.03.2008 at
about 12.00-12.30 o‟clock in the day time."
23. PW-24, SI Rajni Kant corroborated the statement of other
police officials with regard to the reporting of the incident through
DD-8A (Ex.PW-17/A), his reaching the premises, discovering the
headless body and being told by Madan Mohan Chauhan from
Baalmiki Temple that a head wrapped in black-colored cloth was
Death Sent. 1/11 & Crl.A.912/11 Page 16
lying there. He went to that spot and saw the head. This was later
identified by Rakesh, Jitender‟s elder brother, to be that of the
deceased. He stated that Madan Lal, the priest voiced his suspicion
about Jitender and informed him about the incident of 13.03.2008. He
also deposed about the Crime Team‟s proceedings, seizure of clothes
after taking them into custody in a parcel from the premises, seizure
of blood and blood-stained earth etc. He mentioned having joined the
investigation at 06.00 PM on 14.03.2008 when the IO arrested the
accused through Memo PW-22/H. The interrogation and disclosure
statement by the accused, his leading the police party to the house and
the recovery of a knife (which was 31 cms. long with a blade of 21
cms). and its being taken into possession by Memo, Ex.22/M, were
also deposed to. The knife was produced as Ex.P-5. In the cross-
examination, the witness admitted that when he reached the temple
premises, i.e. 6239, he was informed that PCR call was with regard to
House no. 6270 and that this fact was not recorded in his statement
under Section 161. He went immediately after receiving DD-8A at
around 07.30 AM from Police Station Nabi Karim to 6239 where he
reached around 07.40 AM. He stayed there for 1-2 minutes. He went
to House No. 6270 at about 07.45 AM and left immediately thereafter
and went to Baalmiki Temple. He was accompanied by the priest from
the Baalmiki Temple; he stayed in the temple for about 10 minutes.
Rakesh reached the Baalmiki Temple and identified his father‟s head.
He deposed that when he reached the house, the investigating
Inspector also reached the spot half-an-hour later after Rakesh was
sent for. The Crime Team was called to the spot which remained for
Death Sent. 1/11 & Crl.A.912/11 Page 17
about 30 minutes at the place of incident. He confirmed that the
accused was arrested under Section 107/151 Cr.PC on 13.03.2008. He
stated that arrest was made by PW-23. He also mentioned about
recovery and seizure of bamboo stick, Ex.6 which was measured. He
stated that "the accused was arrested near Neem Wala Chowk, Nabi
Karim by the IO at about 06.00 PM. His disclosure statement was
also recorded near Neem Wala Chowk after sitting there, by the IO."
24. PW-25, IO corroborated the particulars of deposition of PW-24
and stated that he went to the spot after receiving information from the
DO, PS Nabi Karim. He received information about the headless body
in the premises. He was about to leave the Police Station when some
people reached that place and told him about a male human body
lying in the Baalmiki Temple. He first went to the house, noticed the
headless body of a male which was mutilated and dismembered. He
informed the Crime Team which reached the spot and conducted the
proceedings. From the house, he went to Baalmiki Temple; rukka
(Ex.PW-24/A) was prepared in his presence and the case was
registered. He made various seizures, including that of a wooden
stick, danda and recorded statements of various witnesses. He stated
that on the same day, i.e. on 14.03.2008, he arrested the accused at
05.30 PM by Memo, Ex.22/H and conducted his personal search. He
also recorded his disclosure statement in which he mentioned having
kept a knife, with which he had murdered his father, concealed on a
slab. He stated that at the time of arrest, the accused was wearing
blood-stained white-lined shirt, which was seized, chhuri (knife),
which too was seized, and its sketch, Ex.PW-22/L was prepared. He
Death Sent. 1/11 & Crl.A.912/11 Page 18
also mentioned having prepared a scaled site plan, Ex.PW20/A and a
rough site plan Ex.25/C. He confirmed that Jitender had been arrested
by PW-23 on 13.03.2008 in another case.
Arguments on behalf of the Appellant/accused
25. It is argued by Jitender‟s counsel that the prosecution was
unable to prove its case beyond reasonable doubt. Learned counsel
highlighted the fact that the prosecution case entirely hinged on
circumstantial evidence. In such matters unless the prosecution was
able to prove conclusively each link in the chain and also prove the
link conclusively and further establish beyond any doubt that it was
the accused and no one else who committed the crime, a finding of
guilt would be unwarranted. It is argued that the postmortem report,
Ex.PW-21/A states that the time of death is about 54 hours from the
time of commencement (of the postmortem), i.e. 01.00 PM, on
15.03.2008. This meant that the time of death was approximately
07.00 AM on 13.03.2008. The testimonies of none of the witnesses,
i.e. PWs-3, 4, 5 or 16 was categorical that apart from the accused -
Jitender, there was no one with the deceased at or around that time.
On the other hand, the testimony of PW-3 that she used to visit her
parental home each day after completing work in the Marwadi Basti
coupled with the fact that she in fact visited her father‟s home around
07.30-07.45 AM the next day when she discovered his headless body
showed that she was a daily visitor. Strangely, in her evidence, she did
not depose to visiting her father‟s premises on 13.03.2008 and if she
did, if her father was alive. Thus, the possibility of PW-4 or even PW-
5, who lived in the same premises, being present at the time of the
Death Sent. 1/11 & Crl.A.912/11 Page 19
death along with the appellant Jitender could not be conclusively
ruled-out. In these circumstances, the Trial Court could not have held
that it was the appellant and none else who committed the crime.
Learned counsel underlined the fact that the seizure of clothes, such as
salwar, dupatta and lady‟s shirt with blood stains on them certainly
established the presence of a woman in the victim‟s house. It was also
argued that the Forensic Science Laboratory (FSL) report showed that
blood grouping of the stains found on the accused‟s clothes or on the
knife or danda or in the black cloth in which the victim‟s head was
wrapped, was inconclusive whereas the blood found on the woman‟s
clothes matches with that of the victim. These clearly establish that
the articles did not connect the accused with the crime.
26. Counsel submitted that the evidence about the previous days‟
incident and reliance on the deposition of PW-15 was not justified.
The prosecution case that PW-15 saw the accused coming out of his
house with a black colored potli and the accused was running towards
the Baalmiki Mandir. The testimony of PW-15 suffers from
contradictions and could not be believed as it appeared from his
evidence that he is a witness sponsored by the police to complete their
missing link in their story. Contradictions in the evidence of PW-15
were highlighted. It was submitted that the witness contradicted
himself in cross-examination by stating that the accused was „going
towards his house‟ and that he knew that the "head was found at the
temple at 06.30 - 07.00 AM" itself, when in his examination-in-chief
itself he had stated that the accused "was going towards Baalmiki
Temple". PW-15 stated in his examination-in-chief that he had gone
Death Sent. 1/11 & Crl.A.912/11 Page 20
to the Temple when in his cross he stated that he did not go to the
temple. It was submitted that PW-15‟s statement that accused was
going towards „Baalmiki Temple‟ itself was fallacious in the absence
of the direction from the house to the temple being established
through a Map or through independent evidence of a witness.
27. It was argued that the fact that there was a hue and cry by the
priest is not spoken of or corroborated by either of the two priests.
That apart, there is an improvement in the examination-in-chief of
PW-1. Counsel submitted that in the sequence of the events, according
to the prosecution case the accused went to the Baalmiki Mandir
where he met PW-2 and asked for keys to Kaali Mata Mandir from
him. That the accused was carrying a black colored potli stated by
PW-15 is no doubt corroborated by PW-2 but the latter‟s evidence is
contradictory and sequence of events as disclosed by him does not
match the prosecution story. It is stated that PW-2 did not say that he
told the police about his suspecting Jitender whereas both Rajni Kant
and the rukka claim so. PW-2 further deposed that he did not hear the
accused making noise in cross-examination. In examination-in-chief
he stated that accused was making noise. Though he spoke of the
black coloured potli yet the cloth piece is not identified by him.
Counsel also argued that the witness did not say that he went to the
accused‟s house the morning of the 14th of March 2008, whereas the
IO Rajni Kant, PW-23 claimed that he learnt of the head lying in the
temple from Madan Lal Chauhan by name; similarly, he did not say
that the head was kept in the almirah by the accused. PW-2 did not
corroborate that the face and clothes of the accused was smeared with
Death Sent. 1/11 & Crl.A.912/11 Page 21
dust. These inconsistencies and contradiction, said counsel for
accused, discredit the witness.
28. Counsel submitted that further according to the story of the
prosecution the accused was arrested by PW-23 under Section
107/151 Cr.PC. The entire evidence-in-chief of PW-23 was ignored
by the impugned judgment. The facts stated by PW-2, PW-15 and
PW-23 are not consistent making the chain of events improbable.
29. Arguing further counsel stated that it was claimed by the
prosecution that the information of a head lying in Baalmiki Temple
was disclosed by PW-9. It is submitted in this respect that PW-9
reached Paharganj Police Station when Nabi Karim Police Station was
next door and was en route at around 06.45 AM on 14.03.2008, on
being informed of the head being found by PW-1. He insisted that
information was not given to the police by telephone. There is no DD
entry of Paharganj that such a complaint was made. He did not
disclose which officers he came with, to the spot. Even the
testimonies of PW-24 and PW-25 do not speak of this. So the
identities of police officers who went to the temple at 07.20 or so with
Rukhal is not known. It was submitted that PW-9 deposed that neither
he nor anyone called the police on the telephone and that they went on
foot to the Police Station Pahar Ganj which took them half an hour
and came back with police which process could have brought them
back to the police station only by about 07.20 AM on the 14 th of
March, 2008. He claims to have come to the Baalmiki Mandir with the
police. Rajni Kant, PW-24, Joginder, PW-25 and Dharamveer, PW-8,
all clearly say that they went to the house of the deceased. Only PW-
Death Sent. 1/11 & Crl.A.912/11 Page 22
24 Rajni Kant went to the Baalmiki Mandir on being informed of the
head being found in the Mandir by Madan Lal Chauhan and went
back to the house from where he sent the rukka to the police station
with Dharamveer. PW-9 clearly contradicted three police witnesses.
Counsel also questioned how PW-9 came to know that someone from
the house of the deceased had called the police already when he has
not even identified the deceased. This showed that he is a
motivated/sponsored witness.
30. It was next submitted that PW-24 Rajni Kant in his statement
and rukka claimed that Madan Lal suspected Jitender but the latter did
not say so. This showed that they had decided to implicate Jitender
right from the start. According to the statement, Rajni Kant reached
the house at 07.45 and Joginder reached half an hour later. Joginder
himself claimed that he left immediately after D.D. Entry 8-A and
reached the house at 07.40 AM. Joginder also spoke about 4-5 persons
who came to the police station but did not name or identify them. He
insisted that he went only to the house and not to the temple. PW-24
deposed to reaching the Baalmiki Mandir from the deceased‟s house
around 08.00 AM on Madan Lal‟s information and meeting PW-16
who identified his father‟s severed head. There is no explanation why
Madan Lal went to the deceased‟s house instead of the police station.
On the contrary he stated in the examination that he stayed put in the
temple through the day. Even if he meant the 13 th, he did not say that
he went to the house of the deceased on the 14th March 2008.
31. It was next urged that Rakesh, PW-16 deposed that he was
informed by others at 08.30 AM to go to his house. After seeing the
Death Sent. 1/11 & Crl.A.912/11 Page 23
headless body he then went to the temple to identify the head at 10.30
to 11.00 AM. At best he would have been at the temple at 09.00 AM.
His working hours are from 06.30 AM to 02.30 PM and distance from
his work place to his house is 30 minutes. What is important here is
that by then the identification by Rakesh was complete and the FIR
registered. Thus Rakesh does not corroborate the story of the police
with regard to the identification of the head of the deceased but the
police had in any event registered the case and named Jitender as the
accused. It was submitted that the witness claimed that the death was
a sacrifice to god and was conjecture even before knowing that the
head was at Baalmiki Mandir. Elaborating, it was submitted that if
PW-24 knew that the perpetrator was Jitender who, was to his
knowledge in custody of his own police station, there is no
explanation why he was arrested only at 06.00 PM after being
released in the afternoon. This, submitted counsel, established the
police had decided to arraign Jitender as the accused right in the
beginning. The rukka was sent at 08.25 and the FIR registered at
08.40 AM. The rukka and FIR and the PCR call details mentioned
Jitender‟s name. All events took place by about 08.40 AM yet
statements of witnesses were drawn up to suit the story of the
prosecution. Counsel emphasized that there was no question of
releasing Jitender from police custody from the Special Executive
Magistrate‟s Court and he could have been arrested right away, that
the police clearly had first decided to arraign him as accused and
thereafter created paper work to suit that story. The call records to the
PCR supported this view. Counsel further urged that it is probable that
Death Sent. 1/11 & Crl.A.912/11 Page 24
Jitender was not released at all from the previous custody and his
arrest at 06.00 PM was shown in this case without him being released.
The lack of any physical evidence and the recovery of the knife at the
instance of the accused are two factors which show that he did not
commit the crime and was falsely implicated. Counsel stated that Ex.
PW-14/A (PCR Information) shows that all information was with
police at 07.33 AM including the fact that Jitender was in custody.
32. Counsel argued that the forensic evidence in the form of
depositions of PW-11 and PW-12 and the FSL reports do not support
the prosecution story. It was submitted that the witnesses‟ depositions
clearly state that there were no finger prints in either of the crime
scenes or on the knife. Similarly, the FSL report stated that the blood
group on the clothes of the accused or on the knife or danda did not
match with that of deceased.
33. On the question of sentence, learned counsel submitted that the
death sentence imposed was not warranted in the circumstances of the
case. It was submitted that even according to the prosecution case the
appellant was abnormal and acted in a strange and weird manner. His
strange ways, alleged the prosecution, drove away his brother from
the parental home and apparently alienated him from the rest of the
family and society. In view of this abnormality, which was allegedly
delusional, the Court owed a greater duty to examine whether the
appellant was normal within the meaning of that expression. His
actions alienated his wife, who left the matrimonial home; it drove
away the brother and even the mother appears to have forsaken him.
The Trial Court should have explored whether the appellant was
Death Sent. 1/11 & Crl.A.912/11 Page 25
mentally capable of facing trial, and entering a plea in the defense.
34. It was next submitted that even if the court were to uphold the
conviction, the Trial Court ought not to have imposed the death
sentence. It was submitted that mere brutality of the murder was not
an overwhelming criteria; for this purpose, reliance was placed on the
decision in Panchhi v State of U. P. (1998) 7 SCC 177 and Vashram
Narshibhai Rajpara v. State of Gujarat (2002) 9 SCC 168. In Panchhi
it was held that:
"Brutality of 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 case. In a way,
every murder is brutal, and the difference between one
from the other may be on account of mitigating or
aggravating features surrounding the murder."
Learned counsel relied on the decisions reported as State of
Maharashtra v. Prakash Sakha Vasave and others, [2009 (1) SCALE
713] and Bishnu Prasad Sinha and Anr. v. State of Assam [2007 (2)
SCALE 4] and argued that in the totality of circumstances having
regard to the fact that the appellant did not have a criminal record and
he was not known to indulge in violence, the imposition of capital
punishment was not justified, since the case did not fall in the "rarest
of rare" category.
Submissions on behalf of the State
35. Mr. Rajesh Mahajan, learned Additional Standing counsel for
the State highlighted that the events of 13.03.2008 can be divided into
two parts, i.e. the accused being seen rushing towards the temple and
second, the commotion created by him, and his arrest. It was
Death Sent. 1/11 & Crl.A.912/11 Page 26
submitted that for the first part, PW-15 Rajender saw the appellant
carrying something wrapped in black cloth. The witness saw him
coming out from his house and running towards Baalmiki Temple.
The witness further stated that the appellant had a dust smeared face
and dusty clothes. When PW-15 asked about his condition the accused
did not answer and rushed towards the temple. Counsel highlighted
that no question was put to the witness in the cross-examination
pertaining to his state and conduct as deposed in the examination-in-
chief. PW-15 identified the black cloth which he had seen the accused
carrying the previous day as Ex P-1. It was also submitted that the so-
called contradictions pointed out in his evidence are not such that they
would strike the root of the matter; they are only minor in nature. If
the witness gave contradictory versions with regard to going „towards
house‟ or „towards temple‟ or going or not to the temple, that may be
in a stray sentence in an unguarded moment but cannot be said to
demolish his entire testimony. Under such circumstances, after
weighing the material value of the contradiction, the Court ought to
look at other evidence to see which of the two versions is corroborated
through other evidence. The evidence is to be viewed in its entirety
and not in piece meal. On an overall assessment of the testimony, it
cannot be said that PW-15 is not a witness of credibility, more so
when he had no animus to depose falsely against the appellant.
36. Dealing with the second part of the incident of 13.03.2008,
Counsel stated that PW-2 Madan Lal deposed that at about 02.00 PM
on 13.08.2008, while he was lying near the Dhuna of Baalmiki
Mandir, the accused came there and started making noise. The witness
Death Sent. 1/11 & Crl.A.912/11 Page 27
further deposed that the accused had a black colored cloth potli and
that he demanded keys to the Kaali Mata Mandir from him. When the
witness told the accused that he did not have the keys, he started
making more noises and started breaking objects of the temple. The
witness informed people outside the mandir and also stated that the
accused tried to pull open the almirah in the mandir and was also
breaking the glasses kept in front of the idol. Minor variations in his
statement, would not shake the underlying veracity of the said
witnesses‟ testimony.
37. It was submitted that the police was informed, upon which SI
Surya Prakash, PW-23 reached there pursuant to DD No. 13 A
(Ex.PW-23/A). The Kalandra proceeding under Section 107/151
Cr.PC followed, which record the manner in which the accused was
behaving, and have been exhibited as Ex.PW-13/B. PW-23 SI Surya
Prakash, while deposing in Court, apart from proving the kalandra
proceedings also deposed that the face of the accused was laced with
ash and that he had put red colored tika on his forehead. He admitted
in his cross-examination that these facts were not mentioned in the
kalandra Ex. 23/B. The explanation for this omission is that when the
proceedings on 13.08.2008 were recorded, he did not know that it was
a case of human sacrifice where ash smeared face and red tika would
have significance. Moreover, he was concentrating on preventing
breach of peace for which he was called. On hind sight, after he came
to know that the accused had indulged in human sacrifice that he
could co-relate the condition/state of the accused with the post facto
knowledge of sacrifice. This is explainable on normal human behavior
Death Sent. 1/11 & Crl.A.912/11 Page 28
where the mind starts recollecting details subsequently on being told
of an alarming incident, which details may have been ignored earlier
as innocuous trivialities. This improvement thus has a valid
explanation and has wrongly been discarded by the Trial Court.
Counsel further stated that PW-23 explained that though he had
noticed blood stains on the clothes of the accused, yet he thought that
he might have received the stains while breaking the glasses in the
temple, which explanation could not be termed unreasonable. In this
context, reliance was placed on the MLC dated 13.03.2008 which also
shows incise wound on right little finger of the accused. PW-23
further stated that on enquiry, accused told him that "Mujhe devi ki
shakti aati hai" and thus explained his conduct as attributable to
divine powers. No cross-examination was directed against this part of
the deposition.
38. Dealing next with the incidents of the next day, it was
submitted that in the morning of 14.03.2008, Guddo, PW-4 noticed
the headless dead body of her father lying on the floor of the house
and raised an alarm attracting the neighbours. PW-22 Ajay @ Bunty,
heard PW-4 crying out that a headless body was lying in her house,
informed the police on number 100. His house address (No. 6239) is
mentioned in the PCR form, Ex.PW-14/A. PW-22 is also a witness of
seizures made at the spot and subsequently to the arrest, disclosure
and recovery of the knife by the accused. It was stated that the PCR
form was proved by PW-14 Constable Kishan Singh and the
information was conveyed to the concerned police station, where it
was recorded as DD no. 8A, Police Station Nabi Karim. The DD was
Death Sent. 1/11 & Crl.A.912/11 Page 29
entrusted to PW-24, who went to the spot with Dharamvir (PW-8).
PW-2 deposed to finding the dead body in the house and
contemporaneously was informed of the recovery of head from
Baalmiki Mandir by Madan Lal (PW-2). Leaving behind PW-8 at the
house, PW-24 reached the temple. Thereafter Rakesh, PW-16, another
son of the deceased joined the proceedings, identified the head and the
body, whereafter rukka was sent at 08.25 AM on 14.03.2008 by SI
Rajni Kant. PW-25, the IO - Inspector Joginder Singh was informed
by the duty officer at PS Nabi Karim about the recovery of dead body
lying in house no. 6270. When he was about to leave PS Nabi Karim,
4-5 persons went to the police station and informed him about the
male human head lying in the Baalmiki Temple. PW-9 Suresh Chand
corroborated this version of the IO when he stated that there were 4
persons who went to the police station and informed the police about
the episode. PW-1 Nanhe Ram also corroborated PW-25 and PW-9 on
this aspect. Thus all these witnesses are consistent with one another on
the reporting of the matter to the police. In this light, even if PW-2
Madan Lal did not state in his testimony about going to the house and
informing police regarding recovery of the head, the omission would
be insignificant as the fact remains that the police came to know
through other witnesses (PW-9 and PW-1) about recovery of the head
almost simultaneously with the recovery of the body.
39. Dealing with the argument about PW-9‟s statement in cross-
examination that he went to Police Station Paharganj, it was submitted
(on behalf of the State) that at the relevant time, Police Station Nabi
Karim was functioning and operating from PS Paharganj as its
Death Sent. 1/11 & Crl.A.912/11 Page 30
building was under construction. Therefore, not much significance can
be attached to this aspect. It was submitted that the IO, PW-25
deposed that further steps were taken in the investigation of the case.
Counsel submitted further that the contradictions cited between
statements of PW-24 and PW-25 were minor and not at all significant
so as to effect the sub-stratum of the case.
40. In reply to the argument that since the involvement of the
accused in question was already in the knowledge of the police in the
morning of 14.03.2008, he could not have been allowed to be released
from custody on 14.03.2008 from the Court of SEM on bail, the
prosecution stated that to elicit this explanation, appropriate questions
should have been put to the witness or the IO. But no such question
was asked. Under such circumstances, the Court has to look into the
case diary of the relevant date to find the answer. That document
revealed that the IO was aware that the suspect was in the lock-up on
allegations of breach of peace, and he informed SI Surya Prakash that
the accused be brought to the spot after release on bail from SEM
Court. The case diary further shows that the suspect was brought to
the scene of crime by SI Surya Prakash at about 5:30 PM in
compliance of the directions. In the cross-examination, PW-24 stated
that the accused was produced before the SEM on 14.03.2008 at about
12:00 noon-12:30 PM. The records of the proceedings under Section
107/151 CrPC show that Rakesh, Jitender‟s brother, stood surety for
(the accused) in that case. Thus, the accused was released from
custody in the case for Section 107/151 CrPC but remained with SI
Surya Prakash who brought him to the IO at about 5:30 PM, after
Death Sent. 1/11 & Crl.A.912/11 Page 31
which he was arrested in the present case. When read with the
contents of the case diary, the words "released from the custody" in
the testimony of PW 23 meant custody in the case under Section
107/151 CrPC or his notional release and not that the accused was set
at liberty. It is reiterated that the accused did not put any relevant
questions in the cross examination to PW-24 in this regard. It was
argued that without prejudice, even if it were assumed that there was
delay in making arrest in the present case, it would be a lapse in the
investigation which cannot falsify the entire prosecution case, more so
when there exists sufficient credible evidence on record.
41. It was emphasized that several witnesses i.e. PW-1, PW-2, PW-
9, PW-16, PW-22 apart from police witnesses PW-8 Ct Dharamveer,
PW-24 SI Rajni Kant and IO PW-25 Insp Joginder Singh joined the
proceedings on 14.3.2008, some discrepancies are bound to appear in
the narration of different witnesses when they speak on details; but the
test to be applied is as to whether the said discrepancies go to the root
of the matter or are of material dimension, which it is humbly
submitted is not the case in the facts of the present case. Reliance in
this regard is placed on Bharwada Bhoginbhai Hirjibhai vs. State of
Gujarat (1983) SCC 217 State of Himachal Pradesh vs. Lekh Raj
(1983) 3 SCC 147 and Sukhdev Yadav vs. State of Bihar (2001) 8 SCC
86. It is submitted that some variation in the timings deposed by the
witnesses are bound to happen as (a) they were not timing each step,
(b) the watches of all the witnesses are not synchronized so that each
would give the same and exact timing of each movement or action and
(c) witnesses are deposing in court after a lapse of some time since the
Death Sent. 1/11 & Crl.A.912/11 Page 32
incident for which too some allowance needs to be given. The
timings given by the witnesses do broadly match and there is not
much discrepancy to that effect.
42. The prosecution highlighted the fact that the near relatives of
the accused, i.e. mother, brother and sister fully supported the
prosecution. Being immediate family members, they were unlikely to
falsely implicate the accused. It is also argued that apart from the
circumstances enumerated by the Trial Court, there is another very
vital circumstance proved on record though not taken into
consideration by the Trial Court. This is the discovery of a fact
pursuant to a disclosure, which is admissible under Section 27
Evidence Act. It was the Appellant who disclosed on 14.3.2008 that
(a) the time of killing/death of his father was around 8 am on
13.3.2008 and (b) that the death had taken place by pressing the throat
of his father and decapitation and chopping of the organs was done
after the death. Both these facts were subsequently confirmed through
the post mortem, which was conducted on 15.3.2008. This
information would thus be admissible as it has led to discovery of
facts, within the meaning of Section 27 of the Evidence Act, which
were not in the knowledge of the police till disclosed by the Appellant
and till subsequently confirmed by the post mortem report. Reliance
in this regard is placed on Pulukuri Kottaya vs. Emperor, AIR 1947
PC 67 and Dost Mohammed. v. State Crl.A.385/2008 decided on
01.02.10 (by a Division Bench, of this Court). The prosecution also
relied on the answer given the Appellant to the first two questions
asked under Section 313, CrPC. The appellant admitted that there
Death Sent. 1/11 & Crl.A.912/11 Page 33
were three persons residing in the house in question; and further, that
that he was unemployed, habitually remained idle at home, his wife
had deserted him, he used to engage in Devi Pooja and for that he
would have to give sacrifice. The mother and sister‟s depositions were
lethal; the Appellant also admitted these aspects, conclusively proving
all links in the chain of circumstances beyond reasonable doubt.
43. Learned counsel argued that in the facts of the case, Section106
Evidence Act applies since it has emerged from the evidence that the
Appellant and the deceased were the only persons in the house at the
relevant time, and one of them was found dead. In the absence of any
other evidence to the contrary, the onus shifted on the Appellant to
explain under what circumstances his father died. His silence cannot
be considered as discharge of the said onus. To argue that the
Appellant and the deceased were not the only two persons in the
house, would be reading against the evidence led on record
particularly of the mother and siblings of the accused. Counsel also
relied on the scientific evidence in the form of FSL reports which duly
corroborated that the appellant‟s clothes had human blood, the knife
recovered pursuant to his disclosure too had human blood, though the
grouping on the same could not be ascertained. These were highly
incriminating. The danda (stick) seized from the spot also contained
human blood. The Post mortem report shows fracture in the skull. It
was thus, urged that the chain of circumstances is complete in the
facts of the present case which unerringly points only towards the
guilt of the accused. The tests for basing conviction on circumstantial
Death Sent. 1/11 & Crl.A.912/11 Page 34
evidence have been duly fulfilled in the present case. The
circumstances were correctly enumerated in the impugned judgment.
44. On the question of sentence, it was argued that applying the
rule enunciated in Bachan Singh v. State of Punjab [(1980) 2 SCC
684], the Supreme Court had, in Machhi Singh v State of Punjab AIR
1983 SC 957, held that Courts should, whenever the question of
imposition of capital punishment arises, draw a balance sheet,
"...of aggravating and mitigating circumstances ....and
in doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating
circumstances before the option is exercised."
Here, argued the prosecution, the offender was in a dominating
position vis-à-vis the victim. The deceased was an old man aged 70
years and was sleeping;
a) The act is anti-social and the crime of socially abhorrent nature.
b) Some degree of pre-meditation has gone into the act.
c) It is a case of no provocation and an act of deliberate killing.
d) The brutal, grotesque, diabolical and dastardly manner of crime
arouses intense and extreme indignation. The manner in which
organs have been cut out is revolting.
e) There was complete lack of remorse after the killing. For half a
day, the Appellant played havoc with the body of his
victim/father.
f) It is a crime against the society and the society itself in
endangered. This is also because the mother, real brother and
Death Sent. 1/11 & Crl.A.912/11 Page 35
real sister have in a rare situation in unison deposed against
their own blood relation. If the immediate family feels insecure
by his act, his being at large in the society is not at all called
for. If he can do such an act to his father, there is no assurance
that on his release he would not commit the same act with
another victim. His previous behaviour with wife and brother,
would also be of relevance, as their acts of moving away from
the; Appellant appear to be justified.
45. Reliance was placed on the decision reported as Sushil Murmu
vs. State of Jharkhand 2004 (2) SCC 338 and Ajitsingh Harnam Singh
vs. State of Maharashtra 2011 (4) JCC 2482. The prosecution urges
that there is absolutely no mitigating circumstances which can aid the
appellant and the overall conspectus of facts reveals that death
sentence is the only punishment that would be adequate and just.
Analysis of Evidence
46. The Trial Court relied on the deposition of Kamla (PW-3), the
accused‟s mother to hold that the accused used to reside with his
parents (the deceased Kartar Singh and PW-3) at 6270 Nabi Karim,
Gali Ravidass, Nabi Karim, Delhi. This witness also testified that the
accused‟s wife had deserted him and that he was unemployed and
habitually remained idle at home. This was corroborated by Guddo,
PW-4, the accused‟s sister; she stated that the accused used to live
with his parents at their residence in Nabi Karim. PW-16, the
accused‟s brother too deposed similarly. When queried under Section
313, Cr. PC, the accused admitted to this fact. Therefore, the Trial
Court, in the opinion of the Court, correctly found that the accused
Death Sent. 1/11 & Crl.A.912/11 Page 36
used to live with his parents, was unemployed and remained idle. He
had been abandoned by his wife.
47. The prosecution had alleged that the accused was engaged in
Devi Pooja and had previously spoken of his desire to offer a sacrifice
in pursuance of the practice. Smt. Kamla PW-3, in her examination in
chief, stated that the accused had told her several times that he was
engaged in the worship of deities, and that for that purpose he was
required to perform a sacrifice. She reiterated this fact in her cross
examination by the Learned Amicus Curiae appointed on behalf of the
accused-appellant in the Trial Court. Suresh Kumar, PW-5, the cousin
of the accused, had also stated in his statement under Section 161, that
the accused was engaged in Devi Pooja and that he wanted to perform
a sacrifice in furtherance of the same. However, in his examination in
chief, he resiled from this statement. In the cross-examination by the
Learned Addl. PP, when confronted with his statement under Section
161 (Ex. PW-5/DA) he denied that he had stated any such thing to the
Police. The Trial Court, in its query under Section 313, put a
compound question to the accused to seek his answer on the evidence
on record. The question was, which elicited from the accused, his
answer on the evidence on record (according to the Court) "that you
were unemployed and habitually remained ideal (sic idle) at home
while your wife had deserted you and was residing at her parental
home and you would tell your family that you were engaged in Devi
Puja and for that you would have to give sacrifice". Such a query, in
the opinion of this Court, was impermissible. PW-3‟s deposition that
the accused remained at home, idle, and indulged in Devi worship and
Death Sent. 1/11 & Crl.A.912/11 Page 37
that he had expressed the desire to give sacrifice was partially
contradicted by the testimony of PW-4 and PW-5. The Trial Court
overlooked PW-4‟s evidence that "Accused had not talked to me that
he was practicing some Pooja of Devi Devta." This evidence by a
family member contradicted the deposition of the mother, PW-3. PW-
5‟s deposition too undermined the mother‟s evidence. Besides, the
Trial Court‟s approach in putting what are known as compound
questions (or "double barreled" questions which touches upon more
than one issue, yet allows only for one answer and is unfair to an
accused) was incorrect. Dealing with the manner in which the Section
313 statement should be recorded, in Ajay Singh vs. State of
Maharashtra [AIR 2007 SC 2188], the Supreme Court directed as
under:
"It is not sufficient compliance to string together a long
series of facts and ask the accused what he has to say
about them. He must be questioned separately about each
material substance which is intended to be used against
him. The questionings must be fair and couched in a form
which an ignorant or illiterate person will be able to
appreciate and understand. Even when an accused is not
illiterate, his mind is apt to be perturbed when he is
facing a charge of murder. Fairness, therefore, requires
that each material circumstance should be put simply
and separately in a way that an illiterate mind, or one
which perturbed or confused, can readily appreciate and
understand."
In view of the above discussion, it is held that the prosecution was
able to prove that the accused used to tell his mother that he indulged
Death Sent. 1/11 & Crl.A.912/11 Page 38
in Devi pooja; however, it cannot be said to have proved that he had
expressed any desire to give a sacrifice.
48. The next circumstance is the prosecution allegation that on 13 th
March, 2008, Jitender was alone with his father. Here, reliance is
placed on the testimonies of PW-3, PW16 and to an extent, on that of
PW-4. In her examination in chief, the appellant's mother (PW-3)
stated that on 12.3.2008, she had gone to her younger son Rakesh's
house and was there for 2-3 days. Rakesh, PW-16, also stated that 2-3
days prior to 14.03.2008, his mother had come to his house at Roop
Nagar and that on these days the appellant and his father were residing
in Nabi Karim. The versions of these two witnesses have to be seen in
the context of the other evidence. PW-4 Guddo, is the deceased's
daughter and the accused's sister. She deposed that every day, she
used to visit her parental home after finishing her work (she worked as
a safai karamchari at Marwadi basti, Nabi Karim). She is the one who
saw the headless torso of her father on 14-3-2008. She did not
mention if her father had been left alone with the accused for the two
previous days, as deposed by her mother. She did not depose anything
about having visited the deceased's premises on 13 th March, 2008,
when the killing actually took place. This is possibly an innocuous
omission, or might also mean that she visited the premises on that day,
but found nothing remiss. According to the medical evidence, i.e. the
Post mortem report (Ex. PW-21/A) indicates that the post-mortem was
conducted on 15.3.2008 at 1.00 PM. It gives the probable time since
death as 54 hours. This puts the probable time of occurrence of death
Death Sent. 1/11 & Crl.A.912/11 Page 39
at 7.00 AM, on 13.3.2008. Even if there is a margin of a couple of
hours, the time of death would in all probability be around 8-9 AM. If
indeed she did visit her father, at around 7-30 AM or even around 8
AM, she did not find anything remiss, enough for her to not mention
in her deposition in court. The overall testimony of these witnesses,
i.e. PW-3, PW-4 and PW-16 (the brother, Rakesh, who received news
about his father's death at around 8:30 AM on 14-03-2008, and
identified the body thereafter) reveal that a couple of days before the
body was discovered, the deceased's wife had gone to live with PW-
16. The accused was alone with the deceased from that time onwards.
The prosecution therefore established that the accused was the only
person in the premises with the deceased, at and around the likely
time of death.
49. The next circumstance alleged against the accused is that he
killed and beheaded his father. There is concededly no direct
evidence. A series of circumstances are relied on to say that it is only
the accused, and no one else who could have committed that act. The
first in this series of facts is that the accused was allegedly seen on
13.03.2008 carrying something wrapped in a black cloth and running
towards Baalmiki Mandir. PW-15, Rajender, is the relevant witness
with regard to this circumstance. In the examination in chief, he stated
that on 13.03.2008, at about 2 PM when he was going to work, he saw
the appellant running out of his house, carrying something wrapped in
a black cloth, towards the Baalmiki Mandir. He states that his face and
clothes were smeared with dust. He claimed that he had enquired
about his condition but received no reply as the appellant was rushing
Death Sent. 1/11 & Crl.A.912/11 Page 40
towards the temple. He stated that on 14.03.2008, i.e., the next day, at
about 6.30-7.00AM, when he was on his way to buy breakfast; he
found out (was told) that a human head had been found in the
Baalmiki Mandir. On hearing this, he went to the temple. On seeing
the head, he identified it as that of his uncle, Kartar Singh. He states
that he also saw the black cloth that the appellant had been carrying
the previous day, lying near the head. He identified the black cloth in
Court on 10.12.2009, nearly one year after his examination in chief
which was on 5.12.2008. In his cross examination by the Counsel for
the accused, he made several statements that were inconsistent with
his examination in chief. He stated that, at 2 PM,on 13.03.2008, when
he was going to work, he saw the accused Jitender running towards
his house (and not the temple as he had earlier stated); he stated that
the black cloth had no identifying mark (this throws into doubt his
identification of the cloth in Court, a year later); he also stated that he
could not recall the clothes that the accused was wearing; he stated
that when he returned at around 10 PM, on that same day, there was a
hue and cry about a head lying in the temple, but that he did not go
there and instead, returned to his house (whereas in his examination in
chief he states that the head was found the next day in the temple, that
he went there, and identified the head). The Trial Court dealt with
these inconsistencies in Paras 91 to 93 of the impugned judgment and
further held that the attention of witnesses was not drawn to those; the
court also observed that PW-15 had been cross examined over 16
months after the incident, and his confusion about the commotion
regarding the date of discovery of the deceased‟s severed head, could
Death Sent. 1/11 & Crl.A.912/11 Page 41
be reasonably put down to the time interval and lapse in memory. This
court does not discern any infirmity with the reasoning of the Trial
Court on this aspect.
50. The next in the series of circumstances alleged to establish the
accused‟s role as the perpetrator of the crime is that on 13-3-2008, he
created a ruckus (commotion) at Baalmiki Mandir that day, on being
refused entry, following which, he was arrested. Shri Madan Lal, PW-
2 was the pujari at Baalmiki Mandir. In his examination in chief, he
stated that on 13.03.2008, he was lying down, near the Dhuna. At
about 2 PM, the accused, carrying a package wrapped in black cloth,
went near the temple and started making some noise. He demanded
the keys of Kaali Mata Mandir from PW-2 and on being told that he
did not have it, he started breaking articles inside the temple, tried to
open the almirah inside the temple and broke the glasses kept in front
of the idol. He stated that he informed a person sitting outside the
temple of the accused‟s behaviour. He states that the accused then
went outside and created a scene there. The Police officials, who had
been informed, came to the temple, arrested the accused and took him
away. In the cross examination, PW-2 stated that he could not
remember the clothes worn by the accused at that time, as he had been
sleeping. He contradicted his earlier statement in his examination in
chief, as he stated that the accused made no noise in his presence. The
appellant argues that this witness did not make any mention of the fact
that the appellant‟s clothes were blood stained, needs to be
considered; as also his contradictions with respect to the version of
events.
Death Sent. 1/11 & Crl.A.912/11 Page 42
51. Nanhe Ram, PW-1, the other priest of the Mandir, in his cross
examination by the counsel for the accused sought to corroborate PW-
1‟s statement. He deposed that on 13.03.2008, when he reached the
Mandir, he found a crowd gathered there, as the accused had created a
scene at the spot. He had made a statement to the Police to the effect
that the accused had broken the windows (khirkees) of the almirah; he
clarified that he had meant the doors of the almirah. SI Surya Prakash,
PW-23, was the police man on duty, who arrested the appellant at
Baalmiki Mandir on 14.03.2008, on being informed that a person was
causing the destruction of temple property. (DD. No. 13A recorded at
2.25 PM. Ex. PW- 23/A). He stated that pursuant to the recording of
the DD, he went to the temple, and found a crowd gathered there. He
saw the appellant threatening the people there and demanding a share
of the money offered by the devotees, to the temple. He says that the
appellant‟s face was smeared with ash and he had smeared red tika on
his forehead. He noticed shards of glass, and blood stains on the shirt
of the accused which he attributed to his having received injuries
while breaking the glass in the temple. He stated that when he
questioned the appellant about his conduct, he said "Mujhe Devi ki
Shakti aati hai", thus attributing his conduct to divine power. The
accused apparently continued to threaten those present, and this
witness arrested him under Section 107/151 CrPC. This witness then
lodged the accused in lock up in PS Pahar Ganj. He made an arrival
report, DD No. 20A dated 13.03.2008 (Ex. PW-23/B) in which it was
stated that the appellant had been demanding money from the persons
gathered around the temple, that he was in a fit of rage and despite the
Death Sent. 1/11 & Crl.A.912/11 Page 43
inspector trying to reason with him, he did not mend his ways.
Apprehending a possible breach of peace in the area, the Inspector
arrested him, and informed his mother Smt Kamla, PW-3 of his arrest.
52. In his cross examination the witness admitted that he did not
mention the fact of the red blood tika on the forehead, or the fact that
the appellant‟s face was smeared with ash, or that his clothes were
blood stained. He stated that the IO had recorded his statement on
23.3.2008, and in this statement he did not mention that he had
informed the mother of the appellant about his arrest. He deposed that
when he apprehended the appellant Const. Krishan Pal was already
present there. This court had, to satisfy itself about the true state of
affairs, called for the proceedings under Section 107 Cr. PC. The
relevant records reveal that PW-23 actually arrested the accused at
04:55 PM on 13-3-2008. The arrest memo clearly mentioned PW-3 as
the relative who had to be informed (about the accused‟s arrest).
53. The Trial Court held that the fact of the accused‟s clothes being
blood stained, and his having smeared tika on his forehead cannot be
taken into consideration since this witness did not record these facts in
the DD. However, it did take into consideration the fact of his face
being smeared with ash, since it found corroboration in the testimony
of PW-15. The argument on behalf of the Appellant, that PW-15‟s
testimony is suspect and the entire narrative about the previous
incident of 13-3-2008 not inspiring confidence as to amount to proof
beyond reasonable doubt, may now be analyzed. It is a fact that none
of the witnesses deposed that the accused in fact opened the almirah
and kept the black coloured potli. The Trial Court has reasoned that
Death Sent. 1/11 & Crl.A.912/11 Page 44
this detail is irrelevant, because no one deposed that the almirah was
locked; it may well have been latched. The other fact which emerges
from the testimonies of PW-1 and PW-2, who saw the accused at
different times, but in the same incident, when he reached the temple
and started making demands, was that he wanted a share of the
offerings (made to the deity). PW-2 clearly deposed that he saw the
accused with the black coloured cloth potli and that he created a
commotion. This fact, i.e. previous day‟s commotion, and that he was
arrested is corroborated by PW-23. PW-1 is not really a witness to
what happened on 13-3-2008; he was told about it. PW-23 and PW-2
are witnesses who establish that the accused was arrested, after he
created commotion in the temple. PW-2 mentioned that the accused
had broken some glass items (or idols) in the temple. Although not
part of the trial, there is some kind of corroboration about this,
because after arrest, on 13-3-2008, the accused was medically
examined around 08:00 PM. The doctor noticed a cut injury on his
finger. If for argument‟s sake, the deposition of PW-15 were to be
excluded, the depositions of PW-2 and PW-23 as well as DD 13-A
dated 13-03-2008 clearly establish, beyond any doubt that the accused
was seen going to the temple, with a black coloured packet/ potli. He
created a ruckus, or commotion, which led to arrest for breaching the
peace under Section 107 Cr. PC, by PW-23 and his being taken into
custody. Taken together, the Court does not find any infirmity in the
approach and findings of the Trial Court regarding the previous day‟s
incident.
54. The next circumstance is the discovery of the headless torso of
Death Sent. 1/11 & Crl.A.912/11 Page 45
the accused‟s father, on the morning of the 14 th March, 2008. PW-4
Guddo, the accused‟s sister (and daughter of the deceased), was the
first to discover the body of her father. She used to visit her parents
daily after finishing her work of cleaning Nabi Karim. She did not
remember the day or date on which the incident took place, but that
morning when she went inside the house, she found the naked
headless torso of her father, lying on the floor. She raised an alarm
and cried loudly which drew the attention of her neighbours. She went
downstairs, and informed the neighbours of what she had seen. She
stated that the accused had not told her that he was engaged in Devi
Pooja. In her cross examination by the Counsel for the defendant, she
states that she had gone to her parent‟s house at 7.30 AM in the
morning. The discovery of the body by PW-4 and her raising an alarm
were corroborated by PW-22. [email protected] Bunty, the deceased‟s
neighbour. He deposed at about 7.15/7.30 AM, on 14.03.2008, he was
at home, when he heard the cries of Guddo, that a headless body was
lying in her house. He informed the Police of this fact on the number
100. He went inside the house to a room on the first floor near a
wooden alter where the body was lying. Sri Chand, PW-6, is the
witness who informed the deceased‟s other son Rakesh about the
death of his father and the discovery of the beheaded body and
brought him back to his house. Rakesh, PW-16 is the son of the
deceased. He states that on 12.03.2008, while he was at work near the
Kaali Mandir, between 8.30 AM and 9.30 AM, two persons, namely
Billu and Raju told him that he should go to his house. There, he saw
a headless body lying in the room of his parents‟ house, in front of the
Death Sent. 1/11 & Crl.A.912/11 Page 46
Mandir and that different parts of the body were cut down. He
identified the mutilated torso of his father, and stated that his name
had been tattooed on his father‟s arm. In his cross examination, he
has stated that it took him thirty minutes to get to his house from his
work place on foot. The combined testimonies of PW-4, PW-22, PW-
6 and PW-16 in the opinion of the Court, proved the prosecution‟s
case about the circumstances under which the headless torso was
discovered.
55. The discovery of the severed head is the next circumstance
which has to be considered. PW-1 Nanhe Ram, worked as a priest in
the Baalmiki Mandir. On 14.03.2008, at about 6.00 AM, he opened
the almirah to take out the sound system to play some music, when a
tied up a black cloth bundle (potli) fell out of the almirah onto the
floor. He found that the bundle contained a severed human head. He
rushed to inform the President of the Mandir Trust. Shri Suresh
Rukhal, PW-9, came back to the temple with him and checked it.
Thereafter, they went to the Police Station and reported the matter. He
stated that the Police then visited the temple and took the head. He
apparently also came to know then of the fact that a headless body had
been discovered in H. No. 6270, Gali Ravidass.
56. In his cross examination by the counsel for the accused, the
witness stated that he went to Suresh Rukhal PW-9 at about 6.05 AM,
and returned within five minutes with him, From there, he along with
Chaudhary Kehar Singh, Kishan Lal, Suresh Chand Mukherji and
many other people went to the Police Station, where they remained for
about 5-10 minutes and returned to the Mandir with 4-5 police
Death Sent. 1/11 & Crl.A.912/11 Page 47
persons. He could not recall the time at which they returned to the
Mandir. But he states that by such time, rumours of a headless body
having been discovered in House No 6270 had been circulating in the
neighbourhood. Madan Lal, PW-2, the other priest of the Mandir
reiterates this version of events, but it is unclear if he was witness to
all of it, or whether he was narrating something that he had been told.
In his cross examination, he has stated that Nanhe PW-1 had told him
on 14.03.2008 of the discovery of the head. He says that though he
had left the temple at 6.00AM, he had returned within fifteen minutes
and had then stayed at the temple the whole day. Suresh Chand, PW-
9, corroborated PW-1‟s version. He stated that he was Head of the
Managing Committee of the temple and that on that day, at about 6.15
AM, Nanhe Ram, the priest of the temple asked him to accompany
him to Baalmiki Mandir. On reaching there, he went inside and found
a severed human head, wrapped in a black cloth, lying on the floor.
He gathered people from the locality. Four of them went to the Police
Station and informed them about the incident. Somebody had called
the police and told them that a headless body was lying in their house.
In the cross examination, he stated that they reached the temple in five
minutes, and that they gave the information to the police in person and
not on the phone, and that the concerned Police Station was P.S
Paharganj, which they reached within half an hour. The police
accompanied them within fifteen minutes, and they remained at the
Mandir for about fifteen minutes and then went to the house where the
body was and remained there for about one and a half hours.
57. Ct. Kishan Singh PW-14 first received the information about
Death Sent. 1/11 & Crl.A.912/11 Page 48
this incident in the PCR. According to him, when he was on duty on
the morning of 14.3.2008, at about 7.18 AM in the morning, he
received information from the mobile no. 9250585591 that a dead
body was lying in House No. 6239, Nabi Karim. The PCR Form,
Exhibit PW-14/A confirms his statement. In the cross-examination, he
reiterated that the informant had said that the incident had taken place
in House No. 6239 and the informant‟s name had not been taken
down as it was not required. This information was conveyed to PS.
Nabi Karim by DD. No. 8A (Ex. PW-18/A) which was verified by
PW-18, who stated that this DD was recorded by HC Jagbir Singh. SI
Rajni Kant, PW-24 stated that on receipt of DD. No. 8A, he and Ct.
Dharambir, went to the spot, i.e., H. No 6270, Nabi Karim, where in a
room on the first floor of the house, he saw a headless body lying in a
pool of blood. The finger, toes, penis, heart and kidney had been
removed from the body and the body was lying in front of a photo of
Goddess Durga. He observed that this seemed to have been some kind
of sacrifice. In the meantime, the priest of Baalmiki Mandir, Madan
Mohan, PW-2, went and informed him about the head that had been
found in the temple. He left the spot in the care of the Constable and
went to the temple, where he saw the head in a black cloth. He says
that Rakesh, the son of the deceased had reached the temple, by then
and identified the head as belonging to his father. Then, he and
Rakesh went back to the latter‟s house, where Rakesh identified his
father‟s body. He stated that Madan Mohan, the priest, raised
suspicions that this murder could have been committed by Jitender,
and told him that on 13.3.2008, the accused had gone to the Baalmiki
Death Sent. 1/11 & Crl.A.912/11 Page 49
Mandir and broken glasses and other things in the temple. This
witness states that he prepared the rukka and sent it to PS Nabi Karim
for the registration of the case. In his cross examination by the counsel
for the accused on this aspect, he stated that he received the DD 8/A at
7.30 AM and left immediately. When he reached House No. 6239 at
about 7.40 AM, he was informed that the incident had taken place at
House No. 6270. He did not record the name of the person who told
him where the incident had taken place (These facts are not mentioned
in his Section 161 statement) He stated that they reached House 6270
at about 7.45 AM. The priest from the Mandir had gone to the house
almost immediately after his arrival and he left the house
immediately, with the priest and went to Baalmiki Mandir, where he
stayed for about 10 minutes. Rakesh also immediately reached the
Mandir and when he identified the head of his father, he sent the
Rukka from House No 6270, at about 8.25 AM. Constable
Dharamveer, PW-8, in his examination in chief has supported the
version of PW-24. In his cross examination by the Counsel for the
accused, he stated first that he went to the Police Station with the
Rukka at about 10 AM, and the second time that he had taken the
Rukka to the Police Station at 8.00 AM and reached the Police Station
at 8.15 A.M.
58. PW-25, Inspector Joginder Singh, the IO, stated that just as he
was about to leave for House No. 6270 in Nabi Karim, on being
informed of the discovery of the headless body, 4-5 persons came to
the Police Station and told him that a male human head was lying in
Baalmiki Mandir. He went to the house, and saw the beheaded and
Death Sent. 1/11 & Crl.A.912/11 Page 50
mutilated torso lying in front of a photo of Goddess Durga, the
fingers, toes, penis and heart had been cut out and removed from the
body. He informed the crime team. In his cross-examination by the
counsel for the accused, he stated that the information about the
incident was received at the station at about 7.30 AM. He clarified
that the information recorded did state House No. 6239 as being the
place of incident, but it was later found out that it had taken place in
House No. 6270 and 6239 was the house number of the Complainant.
He was informed of the presence of the head, by four or five persons
near the police station gates. He stated that he reached the House at
about 7.40 AM. He called the crime team about half an hour later,
they reached the spot at 8.45 AM and left at about 9.45 AM. The IO
stated that he lifted one sweater, one lady‟s blue shirt/jumper, one
light blue chunni, all blood stained (memo Ex. PW-22/D); he also
seized one blood stained pant, panty, muffler, towel, an orange colour
cloth and one lady‟s trouser/shalwar (Ex PW-22/E); blood stained
samples (memo Ex. PW-22/A); blood stained floor (memo Ex. PW-
22/B,); earth control/ floor (memo Ex. 22/C,); one blood stained
bamboo danda (memo Ex. PW-22/G); wooden temple with
photograph of Goddess Durga (memo Ex. PW- 22/F) The IO
identified these case properties in Court. All these recoveries were
corroborated by PW-24, who too identified them in court. The head
was brought back to the house, the inquest proceedings were done
(Ex. PW-25/A) and the body was sent for Post-mortem. This was
corroborated by Ct. Dharamveer and Rajni Kant (PW-24).
59. The Appellant‟s attempt to argue that there is a disconnect
Death Sent. 1/11 & Crl.A.912/11 Page 51
between the testimonies of various witnesses, by highlighting
discrepancies in time and also contending that the entire prosecution
effort was to frame the accused, does not persuade this Court. This
argument is based upon a de-construction of the sequence of events
which occurred on 14-3-2008, as it were, and at the same highlighting
individual events. Such a contention in the opinion of this court, is
fallacious. The Court has to consider that two events took place in a
narrow time band separating each other. The first, chronologically,
was the discovery of the head in the temple; it was early, around 6:00-
6:15 AM. This was followed by PW-1 rushing to PW-9, his reaching
the temple, and collecting a few people, and then proceeding on foot
to the police station. Even before the reporting was done- or perhaps
during the process, PW-4 apparently went to her parents‟ house, and
discovered her father‟s mutilated and headless torso; she raised an
alarm. PW-22 reported the matter to the police. This is also testified
by PW-6. The testimony of PW-25 clarifies that the first intimation
received was about the headless torso and even as he was about to
leave some people reached the police station, and reported the
discovery of the head. At the stage of recording the first information
report, these two events were known to the police. They also were
apparently aware that Jitender had been taken into custody the
previous day. Therefore, his name finds mention in the FIR. This
Court does not find anything startling or out of the common in these
events, which have also been corroborated by documentary evidence,
in the form of the rukka, the PCR form and the FIR. Besides, PW-10
and PW-11 - as well as PW-16‟s versions corroborate these events,
Death Sent. 1/11 & Crl.A.912/11 Page 52
especially the sequence, propounded by the police. Along the
process, the prosecution has also, in the opinion of the Court, proved
conclusively that the head as well as the torso were identified. These
were testified separately by PW-15 and PW-16. Though the
deposition of PW-15 about his return home on 13-3-2008 and being
told that the murder was discovered that day, injects an element of
confusion, as observed earlier, even if the testimony of this witness is
ignored, the basic version about discovery of the torso by PW-4 and
the head by PW-1 is independently corroborated by other witnesses.
The discovery of the head is spoken to by PW-9; the discovery of the
torso was deposed to by PW-22.
60. The prosecution case, accepted by the Trial Court, is that at
about 5.30 PM, the accused Jitender was arrested (arrest memo Ex.
PW- 22/H personal search memo Ex. PW- 22/J), and thereafter made
a disclosure statement (Ex. PW- 22/K,) in which he had disclosed that
the knife/churri used by him to behead his father had been kept under
a slab in the room on the first floor of the house. At the time of arrest,
he was still wearing his blood stained clothes, which were taken into
possession by the Police. (Ex. PW-22/N). The knife was recovered,
and a rough sketch was made of it. (Ex. PW-22/LT). Ajay @ Bunty,
PW-22, who was the public witness to these seizures, recoveries and
the arrest of the accused has supported PW-25‟s version in full, as
well as identified all the recovered items in court. The scaled site plan
of the house and a rough site plan of the temple were prepared (Ex.
PW- 20/A Ex. PW-25/D). The inspector also collected other relevant
evidence such as the black cloth (Ex. PW-25/E), the FSL reports( Ex.
Death Sent. 1/11 & Crl.A.912/11 Page 53
PX, PY) and the finger prints report (Ex. PW-25/G).
61. Now, this part of the prosecution version, in this Court‟s
opinion, is the strangest and least credible. PW-23 deposed that he
informed about Jitender‟s arrest on 13-03-2008 to his mother, PW-3.
The latter however, does not depose about it. Nor does PW-16 depose
prior knowledge about Jitender‟s arrest. By the time the police came
to know about the discovery of the head, and the mutilated torso, they
too were aware that Jitender was in police custody from the previous
afternoon; in fact PW-23 is from the same police station. Yet, the
proceedings of Section 107 reveal that the accused was released, and
PW-16 his brother, stood surety for a bond in the sum of Rs. 5000/-.
Neither PW-16 (who posted the bond before the Executive
Magistrate) nor does any witness, save PW-23 mention this. This
release -of Jitender is inexplicable, to say the least. Knowing fully
well that there was a strong suspicion of his involvement in the
beheading of his father, the police acted rather strangely, in not
arresting him immediately. Instead, it is their case that he was arrested
later in the evening. Jitender himself denied this version (accepted by
the Trial Court) and stated, in his Section 313 Cr. PC statement, that
he was never released.
62. The omissions and silence of PW-3 and PW-16 on the one
hand, and the palpably unacceptable version of the prosecution
regarding the arrest of the accused, were highlighted by his counsel.
This court is of the opinion that to put it mildly, these point to glaring
lapses of the prosecution. Yet, they are not of a kind which would
fatally undermine the police version altogether. The essential and
Death Sent. 1/11 & Crl.A.912/11 Page 54
crucial factual circumstances- the accused being the only individual
present with his father in the premises at around the time of the
latter‟s death; his going to the temple and creating a commotion on
13-3-2008, some time after the beheading of his father; his arrest, and
the discovery of the head in the temple, as well as the torso, have, in
the opinion of the court been proved by the prosecution beyond
reasonable doubt. Although the prosecution could not establish that he
had expressed the desire to sacrifice something, yet two witnesses
have stated that he used to indulge in Devi worship, and was
apparently socially isolated, as his wife had left him and was also
unemployed. His behavior also led his brother to leave the parental
home. All these facts have been established by the prosecution,
beyond reasonable doubt. That the police chose to show that the arrest
was actually made at 5:30 in the evening even though he was in their
custody (as it appears to have happened according to the accused)
immediately after his release by the Executive Magistrate, points to a
lapse. But that would not upset the prosecution altogether.
63. The Post Mortem was conducted on 15.3.2008 at 1.00 PM
(according to the report Ex. PW-21/A). It gives the probable time
since death as 54 Hours. This puts the probable time of occurrence of
death at 7.00 AM, on 13.3.2008. The report lists various injuries on
the body of the deceased. It shows that the accused received two ante
mortem injuries on his neck, in the form of crescentic abrasions at the
right and left side of his neck. It records a lacerated wound on the
forehead; a chop wound separating the neck from the body at the C-6
vertebra; and several other injuries as post mortem in nature. The
Death Sent. 1/11 & Crl.A.912/11 Page 55
cause of death is asphyxia consequent to compression of neck by
manual strangulation, and that all other injuries on the body were
received post mortem. This is an important fact, because the
disclosure statement of the accused was recorded on 14-3-2008; it
states that the accused mentioned that he killed his father by
strangulation. Now, under Section 161 Cr. PC, the statement cannot
be read; however, that part of the statement which results in discovery
of an article or a fact, is admissible, by virtue of Section 27 of the
Evidence Act. (Ref. Pulukuri Kottayya v. Emperor AIR 1947 PC 67).
The prosecution is right in contending that this is a strong
circumstance, pointing to the accused‟s culpability for the crime. As
far as the churri, said to have been recovered pursuant to the
accused‟s statement is concerned, the Crime team report, prepared in
the morning (Ex PW-12/A) notes that a blood stained knife was on a
slab. In these circumstances, the recovery memo (Ex. PW-22/M)
pursuant to the disclosure statement, or that part of the disclosure
statement, loses its significance. The police cannot be said to have
"discovered" the knife, pursuant to the accused‟s statement, when
they had knowledge of it.
64. In Hanumant v. State of Madhya Pradesh, AIR 1953 SC 343,
the Supreme Court indicated the correct approach of the Courts, in the
following words:
"It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn should in the
first instance be fully established and all the facts so
established should be consistent only with the hypothesis
Death Sent. 1/11 & Crl.A.912/11 Page 56
of the guilt of the accused. Again, 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. 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 it must be such as to show
that within all human probability the act must have been
done by the accused."
This approach has been consistently followed and applied in several
other judgments, notable among them being Tufail v. State of Uttar
Pradesh, (1969) 3 SCC 198; Ramgopal v. State of Maharashtra, AIR
1972 SC 656 and in Sharad Birdhichand Sarda v. State of
Maharastra, 1984 (4) SCC 116. Sarda an authority on this and other
important aspects of criminal justice/law, put the matter in a lucid
terms:
"152. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may
be' established. There is not only a grammatical but a
legal distinction between 'may be proved' and 'must be or
should be proved as was held by this Court in Shivaji
Sahebrao Bobade v. State of Maharashtra 1973 Cri LJ
1783 where the following observations were made:
"certainly, it is a primary principle that the accused must
be and not merely may be guilty before a Court can
convict, and the mental distance between 'may be' and
'must be' is long and divides vague conjectures from sure
conclusions."
Death Sent. 1/11 & Crl.A.912/11 Page 57
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty.
(3) the circumstances should be of a conclusive nature
and tendency.
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
153. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence."
65. Having taken into consideration the totality of the evidence and
circumstances alleged and proved, this court has no doubt that the
prosecution was able to bring home the guilt of the accused, with
respect to the beheading of the deceased, and the disembowlment as
well as consequent mutilation of the victim‟s body. The most
incriminating circumstances, alleged against Jitender were
conclusively proved; each link in the chain alleged too, was proved
conclusively. The prosecution also eliminated the possibility of
anyone else being guilty and at the same time, established that the
circumstances proved are such that every hypothesis consistent with
the appellant‟s innocence has been ruled out. As a consequence, this
court affirms the findings and conviction of the Trial Court, in the
impugned judgment.
Death Sent. 1/11 & Crl.A.912/11 Page 58
Sentence
66. The Court now has to consider the rival contentions of the
parties on the question of the appropriate sentence to be awarded. The
guiding principle which courts in India have to look at, for deciding
whether to impose capital punishment in the facts of a given case is if
the circumstances are in the opinion of the court, such that they fall in
the "rarest of rare" category warranting the award of that punishment,
after the decision in Bachan Singh Vs. State of Punjab 1980 (2) SCC
684. Over the last 32 years, the Courts, notably the Supreme Court
have dealt with several cases where the factors which weigh with
courts have been discussed. Machhi Singh v State of Punjab 1983 (3)
SCC 470 is a three judge Bench decision of the Supreme Court which
mentioned the need for courts to draw a "balance sheet of
aggravating and mitigating circumstances.." and grant full weight to
mitigating circumstances, to strike a "just balance" before the option
to award the death penalty is exercised. Anshad v. State of Karnataka
(1994 (4) SCC 381 addressed the issue of subjective sentencing in
matters involving 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, 2008 (13) SCC 767 the Court
noticed that there was lack of evenness in the sentencing process. The
Death Sent. 1/11 & Crl.A.912/11 Page 59
later decision in Sangeet v State of Haryana 2012 (11) SCALE 140
doubted the "aggravating-mitigating balance sheet" approach
commended in Macchi Singh (supra). Sangeet noted, pertinently, that
in Bachhan Singh, the Constitution Bench refrained from enumerating
circumstances relating to the crime or the criminal and merely noticed
submissions made with regard to weighing the factors in each case.
Sangeet held that:
"32. It does appear that in view of the inherent multitude
of possibilities, the aggravating and mitigating
circumstances approach has not been effectively
implemented.
33. Therefore, in our respectful opinion, not only does
the aggravating and mitigating circumstances approach
need a fresh look but the necessity of adopting this
approach also needs a fresh look in light of the
conclusions in Bachan Singh. It appears to us that even
though Bachan Singh intended "principled sentencing",
sentencing has now really become judge-centric as
highlighted in Swamy Shraddananda and Bariyar. This
aspect of the sentencing policy in Phase II as introduced
by the Constitution Bench in Bachan Singh seems to have
been lost in transition."
67. 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 a serious responsibility which has to be lived with for the rest
of one‟s life. In Panchhi v. State of Uttar Pradesh 1998 (7) SCC 177,
the Supreme Court held that brutality is not the sole criterion of
determining whether a case falls under the "rarest of rare" categories,
Death Sent. 1/11 & Crl.A.912/11 Page 60
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."
The Court court‟s task of making the right choice in sentence cannot
be blinded by noticing the brutality of the crime, because focusing
solely on that aspect obscures all other features, some of which might
be mitigative in character. This Court recollects, in this context, the
following poignant statement from Rajendra Prasad Singh v State of
UP AIR 1979 SC 916 (that was a case leading to the reference to
Bachan Singh) where the Supreme Court held that "...If we go only by
the nature of the crime we get derailed by subjective paroxysm."
68. It has been held that imposition of the death sentence is an
exception, and the courts bear an onerous responsibility in
administering the "rarest of rare" test. The decision making process of
the Court in arriving at the conclusion - of the appropriateness of the
death sentence - should not be perfunctory and has to fulfill the rigors
of procedural justice (Mohd. Farooq Abdul Ghafur v State of
Maharastra 2010 (14) SCC 641). Furthermore, it has been held that
death penalty would be warranted where the court concludes that the
convict would be a menace and threat to the harmonious and peaceful
existence of society; the possibility of reformation and rehabilitation
Death Sent. 1/11 & Crl.A.912/11 Page 61
of the convict should be absent (Mohandas Rajput v State of
Maharastra 2011 (12) SCC 56; Mohinder Singh v State of Punjab Crl.
Appeal Nos. 1278-79/2010, decided by the Supreme Court on 28-01-
2013).
69. There are several decisions, which, depending on the way the
judge choses to look, would be determinative of the fate of the
accused. In 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 death sentence imposed for
brutal murders of family members were commuted by the Supreme
Court. In Rajpara (supra) 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 (supra) the accused
murdered his wife and five children, but again the death penalty was
not awarded. Ram Anup Singh (supra) was a case of murder of four
persons including the accused‟s brother and family members; yet
death penalty was not awarded. To seek uniformity in precedents, in
an area such as this, can be difficult. It would here be apt to recollect
Benjamin Cardozo‟s observation that judicial objectivity is an
illusion:
"I have spoken of the forces of which judges avowedly
avail to shape the form and content of their judgments.
Even these forces are seldom fully in consciousness. They
lie so near the surface, however, that their existence and
influence are not likely to be disclaimed. . .Deep below
consciousness are other forces, the likes and the dislikes,
Death Sent. 1/11 & Crl.A.912/11 Page 62
the predilections and the prejudices, the complex of
instincts and emotions and habits and convictions, which
make the man, whether he be litigant or judge."
70. It would now be appropriate to discuss the decisions cited by
the counsel for parties. The prosecution had relied on Sushil Murmu v
State of Jharkhand 2004 (2) SCC338, a case where the accused had
decapitated a child for the purpose of sacrifice. The Court upheld the
death penalty, observing that:
"The appellant was not possessed of the basic
humanness and he completely lacks the psyche or mind
set which can be amenable for any reformation. He had,
at the time of occurrence, a child of same age as the
victim and yet he diabolically designed in a most
dastardly and revolting manner to sacrifice a very
hapless and helpless child of another for personal gain
and to promote his fortunes by pretending to appease the
deity.
The brutality of the act is amplified by the
grotesque and revolting manner in which the helpless
child‟s head was severed . Even if the helpless and
imploring face and voice of the innocent child did not
arouse any trace of kindness in the heart of the accused,
the nonchalant way in which he carried the severed head
in a gunny bag and threw it in the pond unerringly shows
that the act was diabolic of most superlative degree in
conception and cruel in execution.
The tendency in the accused and for that matter in
any one who entertains such revolting ideas cannot be
placed on par with even an intention to kill some but
really borders on a crime against humanity indicative of
greatest depravity shocking the conscience of not only
any right thinking person but of the Courts of law, as
well.
Death Sent. 1/11 & Crl.A.912/11 Page 63
The socially abhorrent nature of the crime
committed also ought not to be ignored in this case. If
this act is not revolting or dastardly, it is beyond
comprehension as to what other act can be so described
is the question. Superstition is a belief or notion, not
based on reason or knowledge, in or of the ominous
significance of a particular thing or circumstance,
occurrence or the like but mainly triggered by thoughts
of self aggrandizement and barbaric at times as in the
present case. Superstition cannot and does not provide
justification for any killing, much less a planned and
deliberate one. No amount of superstitious colour can
wash away the sin and offence of an unprovoked killing,
more so in the case of an innocent and defenceless
child."
In an earlier decision, i.e. State of Maharashtra v. Damu S/o Gopinath
Shinde and Ors. 2000 (6) SCC 269 four children between the ages of
4 to 8 were kidnapped. Three were killed as sacrifice, by first
mutilating their genitalia and then throttling them. One child escaped
on the basis of whose testimony, and the judicial confession of one of
the accused, the accused persons were convicted. It came to light that
the conspiracy had been hatched to sacrifice 5 infants to enable the
recovery of a treasure from one of the accused ‟s land. The Supreme
Court, even while convicting the accused, did not award capital
punishment, holding that:
"The question is whether this case can be regarded as
rarest of rare cases in which the lesser alternative is
unquestionably foreclosed. Looking at the horrendous
acts committed by the accused, it can doubtlessly be said
that this is an extremely rare case. Nonetheless, a factor
which looms large in this case is that the accused
genuinely believed that a hidden treasure trove could be
Death Sent. 1/11 & Crl.A.912/11 Page 64
winched to the surface by infantile sacrifice
ceremoniously performed. It is germane to note that none
of the children were abducted or killed for ransom or for
vengeance or for committing robbery. It was due to utter
ignorance that these accused became so gullible to such
superstitious thinking. Of course, such thinking was also
motivated by greed for gold. Even so, we persuade
ourselves to choose the normal punishment prescribed
for murder as for these accused. Accordingly, while
restoring the sentence passed by the trial court in respect
of other counts of offences, we order that the accused
shall undergo imprisonment for life for the offence under
Section 302 read with Section 34 of the I.P.C."
(emphasis supplied)
Kalpana Mazumdar v. State of Orissa (2002) 6 SCC 536 was a case
where the accused had kidnapped and murdered a 4 year old child to
offer as human sacrifice to appease the deities. The nails, the hair, and
tongue of the child had been cut and offered as sacrifice. The
prosecution case was that one Simanchal Padhi, a "tantrik" had told
the other accused persons that if they sacrificed a child they would get
a pot of gold and one of the appellants would get a son. The tantric
died during the trial. The Supreme Court upheld the conviction of one
of the accused, but held that the case did not fall within the "rarest of
rare" category to justify imposition of death sentence.
71. It would therefore, be apparent that the question of imposition
of death sentence, even in cases where homicidal death, or murder, is
motivated by the desire to propitiate the gods or a deity, there is no
symmetrical approach; Sushil Murmu (supra), emphasizing the
brutality of the crime, resulted in capital punishment to the accused,
whereas in Damu S/o Gopinath Shinde (supra) and Kalpana
Death Sent. 1/11 & Crl.A.912/11 Page 65
Mazumdar (supra) a contrarian approach was adopted. In any event,
the Court, in Sushil Murmu did not take into consideration any
mitigating factor, such as the possibility of reformation of the accused.
On the other hand, it appears to have taken into consideration
allegations in some other case, for which the accused had not been
convicted.
72. This court is mindful of the decision in Sandesh @ Sainath
Kailash Abhang v State of Maharashtra (Cr. A. No. 1973/2011
decided by Supreme Court on 13-12-2012) that the "state of mind of
the accused at the relevant time, his capacity to realize the
consequences of his crime he was committing" is a very relevant
factor, in exercising sentencing choice. It is in this context that the
Court in the light of the evidence brought on the record, would
hereafter deal with the question whether death sentence is warranted.
73. Several previous decisions of the Courts, notably rendered
during the pre-Independence era, dealt with in some detail the
question of the correct judicial approach to cases where accused were
alleged to have indulged in human sacrifice. In Ashiruddin Ahmed vs
The King (1949 CriLJ 255) the accused was convicted under Section
302, Penal Code, for the murder of his five-year old son. He dreamt at
night that he had been in heaven and he heard a voice saying "Your
sacrifice (korbani) was of no use; you will have to sacrifice your own
son"; following that direction the accused sacrificed his son as
korbani in the mosque and having done so went straight and informed
his uncle Mafizuddin. The police were duly informed and the accused
was taken into custody, and confessed. During the trial he retracted
Death Sent. 1/11 & Crl.A.912/11 Page 66
from the confession. The Court addressed the question whether the
accused was entitled to the protection of the provisions of Section 84,
Penal Code. It held that, the whole point of accused‟s confession and
the facts show that he thought that what he was doing was right, that
he was commanded by someone in paradise and because his previous
korbani had been "no good". The Court was of opinion that the
accused was clearly of unsound mind and that acting under the
delusion of his dream he made this sacrifice believing it to be right.
Similarly, in Karma Urang v. Emperor, AIR 1928 Cal 238 the
accused/Appellant had a dream in which goddess Kali appeared and
told him that either he would have to kill his father or his father would
kill him. The dream, it appeared, contained other elements; in
particular, that his father was a descendant of the goddess Kali and
also that his father's tongue was black and that he was to take the head
to the Court at Silchar. The next morning, the appellant woke up and
with a dao (sword), cut his father‟s head. He thereupon picked up the
head wrapped it in something and was proceeding along the road to
Silchar Court.
74. It is of some interest that the Court sought medical opinion
during the trial; the Civil Surgeon‟s opinion was that the appellant had
definite delusion (which though passed off after two months), that he
could not tell right from wrong, and that he was insane and said that
he wanted to dedicate his father's head to the goddess Kali. The Civil
Surgeon said that from the story told to him he got the impression that
the accused thought that he was ordered by Kali to kill his father. The
Court‟s reasoning, holding that the defence under Section 84 applied,
Death Sent. 1/11 & Crl.A.912/11 Page 67
is as follows:
"7. A very common way of applying that test is to ask, in
the circumstances, whether the man would have
committed the act if a policeman had been at his elbow.
Examining this case from that point of view I think it is
very noticeable that this man having committed the deed,
immediately picked up the head of his father and was
proceeding to Silchar Court. The witness Saiyad Ali, who
saw him first, said that he was not running. He did not
proceed to run, but when the constables overtook him he
came quietly back to the thana. He explained that Ibe
was going to Silchar Court and why he was going to
Silchar Court, namely because of a dream which he had
on the previous night. That seems to me to be the best
evidence in this case upon the question whether he knew
that what he was doing was "wrong or contrary to law";
and in view of that evidence, which is supported by other
evidence in the case, particularly by the very strong
evidence of the Civil Surgeon who is not only more
competent to give but had far more opportunity than
anyone else of forming a correct opinion, in my judgment
this appeal should be allowed, the conviction and
sentence should be set aside"
75. In Elkari Shankari vs. State of Andhra Pradesh, 1990 Cri LJ 97
the accused took his son into the paddy fields and killed him by
stabbing him with a knife on the chest. During the trial, the court
called for a medical report regarding the mental condition of the
accused. The report dated stated that the accused was suffering from
major mental illness for which he needed treatment and care for 4-6
weeks. In Paras Ram and Ors. Vs. State of Punjab, (1981) 2 SCC
508, the Supreme Court held that the beheading of a four-year by his
father and relative is sufficient proof of defence under Section 84 of
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IPC. Therefore, the court dismissed the appeal. In Shriram v The State
of Maharashtra, 1991 Cri LJ 1631 the appellant was convicted of
murder by the Additional Sessions Judge, Buldana, for committing the
murder of his two grand-daughters and one grand-niece. On 18th
October 1985, the appellant seeing that no adult was in the house
closed the door from inside and killed one child on the spot while
other two succumbed to the injuries in hospital. The door of the house
was then opened and the appellant ran out of the house while dropping
the handle in the house itself. It was contended, on behalf of the
accused, that there is sufficient material on record to come to the
conclusion that the appellant killed the three kids in the fit of lunacy
and, therefore, he was entitled to the benefit of Section 84, IPC.
76. The leading decision of the Supreme Court on the aspect of the
defence of insanity is Dihyabhal v. State of Gujarat A.I.R 1964 S.C.
1563. The Court observed as follows:
"The accused has to satisfy the standard of a 'prudent
man'. If the material placed before the Court, such as,
oral and documentary evidence, presumptions,
admissions or even the prosecution evidence, satisfies the
test of 'prudent man' the accused will have discharged his
burden. The evidence so placed may not be sufficient to
discharge the burden under S.105 of the Evident Act, but
it may raise a reasonable doubt in the mind of a judge as
regards one or other of the necessary ingredients of the
offence itself. It may, for instance, raise a reasonable
doubt in the mind of the Judge whether the accused had
the requisite intention laid down in S.299 of the I.P.C. If
the Judge has such reasonable doubt, he has to acquit the
accused, for in that event the Judge has such reasonable
doubt, he has to acquit the accused, for in that event the
Death Sent. 1/11 & Crl.A.912/11 Page 69
prosecution will have failed to prove conclusively the
guilt of the accused. There is no conflict between the
general burden, which is always on the prosecution and
which never shifts, and the special burden that rests on
the accused to make out his defence of insanity."
Later, the Court ruled thus:
"The doctrine of burden of proof in the context of the
plea of insanity may be stated in the following
propositions: (1) The prosecution must prove beyond
reasonable doubt that the accused had committed the
offence with the requisite mens rea; and the burden of
proving that always rests on the prosecution from the
beginning to the end of the trial. (2.) There is a
rebuttable presumption that the accused was not insane,
when he committed the crime, in the sense laid down by
Section 84 of the I.P.C.; the accused may rebut it by
placing before the court all the relevant evidence--oral,
documentary or circumstantial, but the burden of proof
upon him is no higher than that rests upon a party to civil
proceedings. (3) Even if the accused was notable to
establish conclusively that he was insane at the time he
committed the offence, the evidence placed before the
court by the accused or by the prosecution may raise a
reasonable doubt in the mind of the court as regards one
or more of the ingredients of the offence, including mens
rea of the accused and in that case the court would be
entitled to acquit the accused on the ground that the
general burden of proof resting on the prosecution was
not discharged."
The Court further stated that "Whether the accused was in such a
state of mind as to be entitled to the benefit of Section 84 of the I.P.C.,
can only be established from the circumstances which preceded,
attended and followed the crime."
77. The Court is aware that in this case accused, Jitender did not
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enter the plea of insanity anytime during the trial. Yet, it cannot help
noticing that all circumstances point to his alienation from his
surroundings, his family, near relatives and others. The first thing that
strikes one about the incident is not only the gory nature of the
sacrifice, (which incidentally appears to have horrified and perhaps
even overwhelmed the Trial Court - evident from the first sentence of
the impugned judgment, which refers to "patricide") but also that the
accused had to depend on legal aid. The Trial Court proceedings are
testimony to the fact that he was virtually abandoned by members of
his family- perhaps because of the crime. The prosecution insisted
right through that he was practicing Devi pooja, and had committed
the crime to propitiate the Goddess. However, the Trial Court did not
deem it appropriate to have the appellant evaluated psychiatrically to
determine whether he was in control of his senses, and could
determine right from wrong. The authorities cited previously point to
the Court, in such cases, undertaking such a responsibility. This court
underscores this fact because penury, destitution, poverty and
illiteracy are barriers which accused often have to face, when
confronted with serious and often capital charges. When the crime is a
ghastly one, the motive for which is based on superstitious belief in
occult or black magic or the like, and the accused is disempowered for
any such reason, the Court has to discharge a greater responsibility.
Article 39A of the Constitution of India, and the accused‟s right to life
under Article 21 in a sense impose an obligation upon the concerned
judge, when such allegations are leveled, to prima facie satisfy herself
(or himself) that the accused was in a sound state of mind, or is in a
Death Sent. 1/11 & Crl.A.912/11 Page 71
position to distinguish between right and wrong. This is not to say that
the Court should embark upon an elaborate inquiry into the mental
state of the accused; what is being stated is that if there are such
unusual or peculiar features in the allegations leveled which excite the
suspicions of the judge at a preliminary stage that there is a possibility
of the accused labouring under some mental disorder, the court should
record so, and send the accused for psychiatric or mental evaluation.
Disempowerment on account of multiple and sometime intersecting
conditions such as poverty, illiteracy, illnesses - be they mental or
other disabilities and other such factors would act as double barriers
for such a class of accused, who would be unaware of the right to take
the pleas available to them, under the law.
78. Not much literature has been shown to the court with regard to
psychology or the mental profile of perpetrators of ritual crimes, such
as sacrifices. It appears, however that in other countries, such as the
United States, there is a wealth of information and the accused is not
just viewed as a psycosociopath. This aspect relates to behaviour
science and not just mental illness. As early as in 1974, the Federal
Bureau of Investigation (FBI) set up its Behavioral Sciences Unit. In
the illuminating article titled "The Forensics of Sacrifice: A Symbolic
Analysis of Ritualistic Crime" (2003), Dawn Perlmutter
(http://www.anthropoetics.ucla.edu/ap0902/sacrifice.htm accessed at
15:18 hours on 17-2-2013) states that:
"In the law enforcement community, illegal ritual activities
are typically referred to as "occult crimes." However,
"occult crime" is an inaccurate and pejorative designation;
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the term "occult" is applicable to many religions and
practices that are fundamentally nonviolent. Furthermore,
not all violent ritual acts are committed in the worship of a
religion. A more objective and accurate expression is
"ritualistic crime," because it encompasses crimes that may
entail ritualistic behavior completely unrelated to the
occult or any religious tradition. Similar to the term occult,
there is no agreed upon definition of ritualistic crimes.
Building upon a 1989 California Law Enforcement study of
occult crime, ritualistic crime is most precisely defined as
any act of violence characterized by a series of repeated
physical, sexual, and/or psychological actions/assaults
combined with a systematic use of symbols, ceremonies,
and/or machinations. The need to repeat such acts can be
cultural, sexual, economic, psychological, and/or spiritual.
-------- ------ -----------
The interpretation of the aforementioned ritualistic crimes
obviously depends on one‟s theoretical and theological
perspectives. From a psychological viewpoint, violent
rituals are all forms of psychopathology regardless of their
religious intent because the discipline of psychology is
based on Western secular scientific traditions. From an
extreme fundamentalist perspective, a dualistic worldview
that separates the world into good versus evil, all occult
practices inclusive of nonviolent beliefs are indicative of
Satanism regardless of individual traditions. From a
sociological perspective, ritualistic crimes are a form of
social deviance shaped by environmental factors.
Ironically, the only people who seem to recognize
ritualistic crime as a religious rite in the belief of specific
traditions are the practitioners themselves, and their
opinions are invalidated because they have been
designated as psychopaths. The fundamental problem
when researching, investigating, or analyzing ritualistic
crime is that the crimes evoke such strong emotions that
tap into our deepest beliefs about human nature and
spirituality."
79. A rational individual‟s sensibilities are revolted when
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confronted with sacrifices and horrific practices- such as mutilation of
body parts, etc. which may go with it. Yet, these are to be seen from
the behavioral analyst‟s point of view, to discern the rationale for
such ritual crimes and ritual homicides. James Gilligan, MD, in his
Violence, Our Deadly Epidemic and Its Causes (New York: G.P.
Putnam‟s Sons Publishers, 1996) pp. 59, 60 -again quoted in Dawn
Perlmutter‟s article, says that:
"The rituals surrounding violence, then, like all rituals,
are profoundly symbolic and hence profoundly
meaningful (that is, they express many highly specific
and closely related meanings, which cannot be translated
into a consistent set of propositions). In fact they are
more symbolic, and hence more meaningful, the more
"senseless" they appear to the rational mind, because
they follow laws of magical thinking rather than rational
thinking.
------------ -------------
the mutilation served as a magical means of
accomplishing something that even killing one's victim
cannot do, namely, that of destroying the feeling of
shame itself . . . So an intensification of the whole project
through the introduction of magic, by means of ritual, is
necessary, if it is to be powerful enough to enable the
murderer to stave off the tidal wave of shame that
threatens to engulf him and bring about the death of the
self."
80. This Court would not speculate about the motivations of those
who practice ritual sacrifices in India. In most cases this are animal
sacrifices. What cannot be lost sight of is that apart from superstitions,
there are belief systems which recommend - for personal gain, health
or well-being of the individual or his family, sacrifices and rituals at
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certain places, and at certain times. Black magic (tona, kala jadu or
Vashikaran) as it is known in some part of the country, or other forms
of occult practices elsewhere in the country, and their adherents claim
to provide holistic remedies or solutions for problems ranging from
health to career advancement, education, longevity, or family well-
being and increase in material wealth. In a country where illiteracy is
above 300 million, the prevalence of these beliefs (based often on
mere superstition and without any theological basis) can delude some
into believing, irrationally that ritual sacrifices are essential. A large
number of people certainly believe in appeasement rituals, wearing of
amulets, charms etc. The ubiquity and wide spread acceptance of such
beliefs is testified by the fact that in the search engine Google, keying
in "black magic india" brought forth as many as 20,100,000 results -
a large number of which provided links to various healers, occult
specialists, tantriks, etc. To rational minds, rooted in value systems
which underscore the need to maintain order, familial and social
bonds, such practices would not appeal and would be abhorent. They
are however, real, and offer the promise of benefits to those who
believe in them. To rational minds and human beings, ritual sacrifices
cannot be justified. In any event, killing a human being can never be
an accepted practice under any value system.
81. In the present case, the proven facts show that the accused used
to be engaged - perhaps obsessed with Devi worship. Whether he saw
visions of the Goddess is unclear; the prosecution story is that he
claimed that he would gain power if he indulged in human sacrifice.
The evidence on record clearly suggests that his practices led to his
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wife deserting him, his brother leaving the family home; even the
mother apparently left the home - at least at the time when the crime
took place. PW-5, besides other family members, corroborates this in
his deposition. The deposition of witnesses also suggests that the
deceased himself was a sewadar in the temple. These facts establish
that the accused was a strong believer in Goddess Devi, - a fact
admitted to by him, in his statement under Section 313, Cr. PC. Apart
from facts, the evidence on record also points to gory details, such as
mutilation of the body, after the beheading of the deceased, and the
accused placing the severed head in the temple. According to some
versions, he was clad in black clothes and had smeared himself with
dust. These surrounding circumstances, in the opinion of the Court
conclusively prove that the accused had indulged in ritual, human
sacrifice of his father.
82. This Court is of the opinion that even though in the present
case, it cannot second guess that the accused (did or did not) labour
from a mental condition or disorder at the time of commission of the
crime, the unusual nature of facts would be relevant to making an
appropriate sentencing choice. This is perhaps the kind of crime
which the Supreme Court referred to as having been committed by
one "morally-mentally retarded or disordered" (Cf. Rajendra Prasad
v State of UP AIR 1979 SC 916). An application of the Machhi Singh
ordained aggravation-mitigation test would reveal that the ghastly
nature of the crime, focusing on the fact that he killed an aged and
defenseless individual - his father, no less- coupled with the
mutilation of the body, and its beheading, has to be balanced with
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factors such as his social alienation, no known record of violent
behavior, relative young age (he was around 25 at the time of his
trial). Taking these into consideration he cannot be termed as an
"irredeemable murderer" who is beyond the pale of reformation.
Consequently, the Court does not confirm the sentence of death
imposed upon him; it however substitutes it with life imprisonment.
The conviction is however, affirmed.
83. Before parting, this Court hereby directs that in all such cases
of serious crimes, especially homicides, where the accused are alleged
to have indulged in unusual behavior, indicative of mental disorder or
disturbance, (and especially in cases involving ritual killing or human
sacrifice allegations) which emerge from a reading of the FIR or
statement of material witnesses, the Magistrate taking cognizance of
the offence alleged shall refer the accused for suitable medical check-
up to evaluate the possibility of his (or her) being, or having been of a
mental condition which might entitle her or him to avail the defence
of insanity. This procedure is an integral component of legal aid,
which every such (potentially) capitally charged accused is entitled to
avail of. Such assistance and evaluation would also further the right to
a fair trial under Article 21, of that class of accused who have no
access to quality legal assistance or have no information of their
entitlement to various defences available in law.
84. Death Reference No.1/2011 is answered in the above terms; the
accused‟s appeal (Crl. A. 912/2011 is partly allowed; the sentence is
converted to rigorous imprisonment for life. The Registry shall
forward copies of the judgment to all the District Judges within the
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territorial limits of this Court; a copy shall also be made available to
the Registrar General to be placed before the Chief Justice of the
Court.
S. RAVINDRA BHAT
(JUDGE)
PRATIBHA RANI
(JUDGE)
FEBRUARY 21, 2013
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