Mangal Singh vs State (Govt. Of Nct) Of Delhi
2013 Latest Caselaw 2975 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 885/2010

        MANGAL SINGH                               ..... Appellant
                            Through:    Mr. Ajay Verma, Advocate.

                            versus

        STATE (GOVT. OF NCT) OF DELHI     ..... Respondent
                      Through: Ms. Ritu Gauba, APP.


%                           Date of Decision: July 16, 2013


CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE SUNITA GUPTA

                            JUDGMENT

: SUNITA GUPTA, J.

1. Mangal Singh impugned the judgment dated 23.09.2009 and

order of sentence dated 30.09.2009 passed by learned Additional

Sessions Judge in Sessions Case No.423/2006 arising out of FIR

No.569/2004, PS Tilak Nagar, vide which he was convicted for

committing offences punishable under Sections 302/307 IPC and

Section 27 Arms Act and sentenced to undergo rigorous

imprisonment for life with a direction that he shall not be considered

for being granted remission till he undergoes an actual sentence of 30

years and to pay a fine of Rs.50,000/- for the offence under Section

302 IPC, in default of payment of fine to further undergo simple

imprisonment for a period of six months. He was further sentenced to

undergo rigorous imprisonment for a period of ten years and to pay a

fine of Rs.25,000/-, in default of payment of fine to undergo simple

imprisonment for a period of three months under Section 307 IPC and

to undergo rigorous imprisonment for a period of five years and to

pay a fine of Rs.25,000/-, in default of payment of fine to undergo

simple imprisonment for a period of three months under Section 27

Arms Act, 1959. All the substantive sentences of imprisonment were

to run concurrently.

2. The factual matrix of the case is as under:-

On 26.07.2004 at about 7.30 a.m., one Harry Chowdhary

(PW2) along with his elder sister Ritika Chowdhary @ Charu and

Neha (PW7), a friend of his sister was going to the school at CRPF

Camp, Tilak Vihar in a cycle rickshaw. When their cycle rickshaw

reached near C-1, Tilak Vihar Mor, then, accused came on a

motorcycle and stopped the motor cycle in front of the cycle

rickshaw. He thereafter came near them and asked Ritika that he

wanted to talk to her in private. However, Ritika kept quiet, upon

which accused asked her to get down. Ritika, refusing to talk to him,

rather asked him as to why he was troubling her, upon which accused

got annoyed and took out a khukri from his pocket and stabbed Ritika

with it by saying 'Ritika tu meri nahi ho sakti to aur kisi ki bhi nahi

ho sakti'. Upon seeing this incident, the rickshaw puller and Ritika‟s

friend Neha (PW7) both ran away from the spot. Harry Chowdhary

(PW2), brother of the deceased got down from the rickshaw and

caught hold of khukri, but his hand also got injured in the process.

The accused, however, attacked him also on his stomach with khukri.

Thereafter, he continued to attack Ritika repeatedly with khukri by

uttering the same above mentioned words. In the meantime, some

public persons, who were passing from nearby tried to catch hold of

the accused, upon which accused started running away from the spot.

While being chased by one Arvinder Pal Singh (PW3), he entered

inside Police Post, Tilak Vihar carrying the bloodstained khukri in his

hand. Inside the police post, he was overpowered and khukri was

taken away from his hand. One Jasbir Kaur (PW21) residing nearby

to the place of incident also reached the spot and she helped in

removing the injured persons to DDU Hospital. Information about the

incident was received by Smt. Rajni Chowdhary (PW1), mother of

the injured and maternal uncle Balvinder Singh (PW6), who reached

the hospital. ASI Gian Singh (PW28) took into possession the khukri

and also custody of the accused in the police post. He recorded the

statement of Arvinder Pal Singh (PW3) and conveyed information

about the incident to Incharge, police post and SHO. He himself went

to the spot and found blood lying over there, besides a red colour

Pulsar motorcycle bearing No.DL-4S-AL-4635, two school bags, a

water bottle and a cello tape. SI Ishwar Singh also reached the spot

and thereafter they all went to DDU hospital, where Inspector Pratap

Singh (PW29) also met them besides SI Bhim Singh Rawat (PW20).

While Ritika was declared brought dead by the doctors, the other

injured child Harry was undergoing surgery inside the operation

theatre. After collecting the MLC of injured Harry, ASI Gian Singh

again came to the spot and prepared rukka on the basis of statement of

Arvinder Pal Singh (PW3) and got FIR Ex.PW12/A registered at PS

Tilak Nagar for the offences under Sections 302/307 IPC read with

Section 27 Arms Act, 1959. The subsequent investigation was taken

over by Inspector Pratap Singh, who had also reached the spot. The

spot was inspected by the crime team and photographs were taken.

Site plan of the place of incident was prepared on the pointing out of

Arvinder Pal Singh (PW3). The motorcycle lying at the spot, a water

bottle, cello tape, two school bags containing books and copies

carrying the names of Harry and Ritika were also taken into

possession. Blood sample and bloodstained earth control besides earth

control samples were seized from the spot. The bloodstained clothes

of injured Harry were collected by the doctors and were also taken

into possession. At the police post, Constable Anil Kumar produced

the bloodstained khukri, which was seized from the hands of accused,

which was also taken into possession after preparing its sketch and

sealing it in a pulanda. After interrogation, accused was also arrested

and his bloodstained clothes as well as bloodstained finger rings were

taken into possession. Accused was also taken for medical

examination as there was blood on his hand, where doctors took the

scrap of blood from the hands of the accused and seized it in a

pulanda. Inquest proceedings regarding death of Ritika were carried

out. Post mortem examination was conducted by Dr.

M.M.Narnaware. Subsequent opinion of the doctor was also obtained

during the course of investigation. Exhibits were sent to FSL for

examination. After completing investigation challan was submitted in

the Court of learned Metropolitan Magistrate who committed it to the

Court of Sessions.

3. Vide order dated 17.03.2005, charges for offences under

Sections 302/307 IPC and Sections 27/54/59 Arms Act were framed

by learned Additional Sessions Judge. The accused pleaded not guilty

to the charges and claimed trial. To substantiate the charges,

prosecution examined 29 witnesses. In his statement under Section

313 Cr.P.C., the accused denied the incriminating circumstances and

pleaded false implication in the case as he was having love affair with

Ritika and her family was against this relationship. He did not prefer

to lead any defence evidence.

4. After appreciating and considering the rival contentions of the

parties, the learned Trial Court concluded that accused was

responsible for committing the heinous crime of murdering Ritika,

causing injuries on the person of Harry with such an intention and

under such circumstances that if death of Harry would have been

caused then he would have been guilty of committing culpable

homicide amounting to murder. Aggrieved by the said findings, the

present appeal has been preferred.

5. We have heard Sh. Ajay Verma, Advocate for appellant and Ms.

Ritu Gauba, Additional Public Prosecutor for the State. Learned counsel for

the appellant challenged the finding of the Trial Court and urged that it did

not appreciate the evidence in its true and proper perspective. As such,

impugned order be set aside. On the other hand, supporting the judgment,

learned APP urged that the impugned order does not call for any interference.

6. We have considered the submissions of both the parties and

have examined the Trial Court record. PW2 Harry Chowdhary is

victim, who was 13 years old on the date of examination in the court.

The trial court put preliminary questions to ascertain if he understood

the questions and was able to give rational answers. The court was of

the opinion that the child witness is capable of making the statement.

Since he was 13 years of age, oath was administered to him. In his

deposition, PW2 Harry testified that on the date of incident i.e.

26.07.2004 he along with his sister Ritika Chowdhary engaged a

rickshaw at the colony gate to go to the school. They left the house at

around 7:05 a.m. and it took five minutes to reach the gate. Thereafter

they hired a rickshaw and reached GH-6, where Neha (PW7), his

sister‟s friend also sat in the rickshaw. All three of them got down at

Mira Bagh bus stop. They boarded a bus to CRPF camp and got down

at CRPF camp. From there they took another rickshaw for Tilak

Vihar to reach the school. His sister was sitting on the right side while

her friend was sitting on the left. He was sitting on the seat at the back

of the rickshaw. As they reached C Block Mor of Tilak Vihar, he saw

accused Mangal Singh coming on his red coloured Pulsar motorcycle

towards their rickshaw. He stopped the motorcycle in front of the

rickshaw. Mangal Singh approached the rickshaw and asked his sister

to get down as he wanted to talk to her privately. His sister kept

quiet. Again accused asked his sister to get down as he wanted to talk

to her alone. His sister replied that she did not wish to talk to her and

asked him why he was troubling her. Then accused got annoyed and

took out a khukri from his pocket and declared 'Ritika tu meri nahi ho

sakti to aur kisi ki bhi nahi ho sakti' and stabbed her with the khukri.

On seeing the incident the rickshaw puller and Neha (PW7) fled away

from the spot. He got down from the rickshaw and caught hold of the

khukri from the side of blade. In that process, he sustained injuries on

right hand thumb. After releasing the khukri from his hand the

accused struck khukri on his stomach. Thereafter, he kept on striking

his sister with khukri. He became giddy and fell at a distance but did

not lose consciousness. He saw accused repeatedly giving khukri

blows to his sister and while doing so he was repeating the above said

words. After some time he lost consciousness and when gained

consciousness he was in the hospital. He was subjected to cross-

examination, but the accused failed to elicit any material or relevant

discrepancy or inconsistency despite searching cross-examination.

Learned trial court had the occasion to see the witness as such there

are court observations to the effect that there is cut mark on the

mound below the thumb and there are marks in the middle of the

abdomen in line with the umbilicus. Although, he was a child witness

but rightly the testimony of this witness was not assailed on that

account. It is well settled that the court can place reliance on the

solitary testimony of a witness even if it is a child, if the evidence is

found to be true and correct version of the case of the prosecution. In

Rameshwar vs. State of Rajasthan, AIR 1952 SC 54; Panchhi and

Ors. vs. State of U.P., AIR 1998 SC 2726, (2012) 4 SCC 559;

Promode Dey vs. State of West Bengal, AIR 2012 SC 1598, (2011)

14 SCC 268; Dinesh Prajapati vs. State of M.P., 2012 (Cri) LJ 1212;

(Alagupandi @ Alagupandian vs. State of Tamil Nadu, AIR 2012

SC 2405 and State of Uttar Pradesh vs. Krishna Master and Anr.,

(2010) 12 SCC 324, it was held that a child witness is a competent

witness provided statement of such witness is reliable and truthful. A

conviction can be based on the sole testimony of a child witness. The

only precaution, which the Court should bear in mind while assessing

evidence of a child witness is that witness must be reliable one and

his demeanour must be like any other competent witness and that

there exists no likelihood of being tutored. There is no rule of

practice that in every case evidence of such a witness be corroborated

by other evidence before a conviction could be allowed to stand, but

as a rule of prudence court always find it desirable to seek

corroboration to such evidence from other reliable evidence placed on

record. In the last mentioned case, it was held that it would be doing

injustice to a child witness possessing a sharp memory to say that it is

inconceivable for him to recapitulate facts in his memory witnessed

by him long ago. A child of tender age is always receptive to

abnormal events which take place in his life and would never forget

those events for the rest of his life. The child would be able to

recapitulate correctly and exactly when asked about the same in

future. The witness has given a true and vivid picture of the entire

incident in which not only his sister lost her life but he also sustained

dangerous injuries and had to remain hospitalised for about 10 days.

Therefore, it is inconceivable that he would not remember these facts.

He recapitulated the facts correctly and narrated the same. The

conviction of the accused can be based on the solitary testimony of

this injured witness. However, in the instant case there is ample other

material on record to corroborate his version.

7. PW3 Arvinder Pal Singh is a totally independent witness. It has

come in his deposition that on the fateful day he was going to drop his

son to S.S. Mota Singh Public School, Paschim Vihar on his scooter.

At about 7:30 a.m., when he reached C Block Chowk, Tilak Vihar he

saw two girls and one boy travelling in a rickshaw. Accused Mangal

Singh, whose name he came to know subsequently had placed his

motorcycle in front of the rickshaw to prevent it from moving further.

He was having a khukri in his hand. The accused chased one of the

girls and also stabbed the boy. Boy fell at some distance and then

accused began striking the girl with the khukri continuously. He tried

his level best to stop him from stabbing the girl but accused kept on

inflicting injuries on the girl with the khukri. The girl fell down on the

ground but even thereafter accused kept on giving blows on her with

khukri. Although, he tried to stop him, but accused did not stop and

declared that he was bent upon killing her. He sought the assistance of

others to chase him. The accused ran away from the spot with khukri

in his hand covered with blood and got into the Police Post, Tilak

Vihar. Police recorded his statement Ex.PW3/A. He accompanied the

police to DDU Hospital, where he learnt that the girl had expired and

the boy was being operated. He identified the khukri Ex.P-1 to be the

same with which the accused had caused injuries on the boy and the

girl. This witness was also subjected to cross-examination but he

withstood the same. His testimony was sought to be challenged on

the ground that he was a stock witness of police. Experience tells us

that in big cities like Delhi there is general apathy and indifferent

attitude and people are reluctant to join police proceedings. But it is

very unfortunate that if a totally independent person comes to the

rescue of victim and tries to nab the accused, then he is termed as

„stock witness‟ of the police. The detailed cross examination of the

witness reflects that neither he is on any friendly terms with the

family of deceased or has any enmity, ill-will or grudge against the

accused. As a good samaritan, on seeing the brutal assault on Ritika

and Harry, helpless school going children, he tried to dissuade

accused but when he did not pay any heed and tried to run away, he

chased him with the assistance of others. It was only due to that

reason that probably to save himself, accused entered the police post

and then could be arrested. He deserves a word of appreciation

instead of condemnation. Presence of this witness at the spot and

then chasing him upto police post stands proved from the fact that it

was on his statement Ex. PW3/A that FIR was registered which

became bedrock of investigation.

8. It has come in cross-examination of this witness that he had

helped in removing the injured in a three-wheeler scooter and a

woman had accompanied the children to hospital. This part of his

testimony finds corroboration from PW21 Smt. Jasbir Kaur, who

testified that on the fateful day she was standing outside her house at

about 7:30 a.m. as she had come to see off her kids for school. Her

husband took the children to school on scooter and she was still at

gate when she heard the commotion. She locked the house and went

towards the spot, where a crowd had gathered. She saw a boy lying in

injured condition. Blood was oozing from his abdomen. A girl was

also lying in injured condition. Both were in school uniform. A red

coloured Bajaj Pulsar Motorcycle, two school bags, a water bottle and

a cello tape were found lying at the spot. She picked up the boy with

the help of other persons and took him to a nearby hospital called

„family hospital‟. However, hospital authorities refused to admit the

patient and advised her to take him to a bigger hospital. The girl was

also brought by some other person to family hospital. She then took

both of them to DDU Hospital in TSR. Some relations of injured also

reached the hospital and got them admitted there. The girl, namely,

Ritika was declared brought dead. As such, as a good citizen, she

tried to provide immediate medical aid to the children who were

unknown to her but the attitude of hospital authorities was deplorable.

Instead of providing medical aid to the children, they asked her to

take them to bigger hospital. As far back as in the year 1989 Hon‟ble

Apex Court in Parmanand Katara vs. UOI, (1989) 4 SCC 286, AIR

1989 SC 2039 had emphasised the need for making it obligatory for

hospitals and medical practitioners to provide emergency medical

care. The view was reiterated in Paschim Banga Khet Mazdoor

Samity vs. State of West Bengal 1996 (4) SCC 37. Recently this

Court in W.P. (C) 7927/2012 Court on its own motion vs. UOI

through Secretary, Ministry of Home Affairs & Anr. directed Govt.

of NCT of Delhi to issue appropriate directions to all hospitals

including private hospitals, whether they be recognized hospitals or

not, to attend to the victims of all crimes and provide immediate

treatment required by them depending upon the condition of the

injured or victim, as the case may be and in which event, the hospitals

shall not refuse to provide such medical treatment for any reason

including that the case is of a medico legal nature.

9. Coming back to the factual matrix of the case, while Arvinder

Pal Singh (PW3) helped in nabbing the accused, Jasbir Kaur (PW21)

removed the children to hospital. On receipt of information Rajni

Chowdhary (PW1), mother and Balwinder Singh (PW6), maternal

uncle of the children reached DDU Hospital. Since the injured were

being admitted in hospital, as such Balwinder Singh gave his name as

the person who brought them to hospital. While Ritika was declared

brought dead, the condition of Harry was critical and he was in

operation theatre.

10. Sequence of events leading to the present incident has been

narrated by Rajni Chowdhary (PW1), who deposed that she came to

know that her daughter Ritika and accused were friends. She had

called the accused and her daughter and explained to the accused that

nothing should be done which would lower their status and the

children are too young. Her daughter immediately understood and

agreed and assured her that she would not in future be friendly with

people in this manner. But the accused did not pay any heed to her

advice. Her children used to come and go by the same route to the

school and to the house. The accused used to stand in the way and

tease her daughter and harass her. Her daughter used to complain to

her about harassment and teasing of the accused. She again called the

accused and asked him not to indulge in such activities. The accused

used to threaten her daughter that in case she did not speak to him the

result would not be good. When she again reasoned with accused he

was not willing to listen to her. One day in her absence he came to her

house and slapped and beat her daughter and ran away. Then she

made a report Ex.PW1/A to police at Tilak Vihar Police Post.

Accused was apprehended. ASI Gian Singh talked to the accused and

accused finally understood and even touched her feet and asked

forgiveness and assured her that he would not tease her daughter or

harass her in any manner in future. He also returned to her, her

photographs and letters. He also wrote down the apology letter

marked „A‟ in her presence and wept bitterly and asked for

forgiveness. Things, however, did not improve as later on, her

daughter again complained to her that accused and his friends used to

stand on the roadside and harass her and on her query she assured that

she was not even looking at him but the accused went on harassing

her. Thereafter, she went to the house of bhabhi of accused. The

bhabhi of the accused also reasoned with the accused but he

misbehaved with her and spoke very rudely. Then the bhabhi advised

her to talk to the mother of the accused as she had also come to Delhi.

The mother of the accused also scolded the accused and she assured

that she would take charge of accused since he was becoming much

undisciplined and she asked her to take care of her children. However,

in the presence of his bhabhi and mother the accused threatened to

kill her daughter. At that time, she told him as to how he would be

killing a child but accused abused her and her daughter. His mother

scolded him. While she was leaving their house accused again

threatened that he would not leave any member of the family alive.

PW6 has also corroborated her version by deposing that accused used

to follow Ritika on his motorcycle and a complaint to this effect was

made by Ritika to him when she had come to his house. It was not a

bare and bald threat but turned into reality when on the fateful day he

committed brutal murder of Ritika and even thereafter he was not

remorseful as it has come in the testimony of PW6, Balvinder Singh

that when Mangal Singh was brought in the hospital, he inquired from

him as to why he has done such a terrible thing on which he informed

him that after bribing the police officials he would get himself freed

and then will kill the remaining children and mother.

11. The mere fact that PW7 Neha, friend of Ritika did not identify

the accused as being the assailant is insignificant in view of the fact

that even this witness does not dispute that an incident had taken

place. As per the case of prosecution, she fled away from the spot. It

was quite natural that on seeing the attitude of accused, she must have

got scared and, therefore, fled away from the spot. When she was

cross examined by learned Public Prosecutor, although at one point of

time she denied the suggestion that she is not identifying the accused

out of fear but in the same breath she stated „I do not remember‟

which makes it amply clear that out of fear of accused, she is not

identifying him but in view of voluminous evidence coming on record

against the accused, this fact pales into insignificance.

12. The ocular testimony of the prosecution witnesses finds

substantial corroboration from medical record, which reflects that

Ritika was declared brought dead. As many as 20 injuries were found

on her person when the post mortem examination was conducted by

Dr. M.M.Narnaware. The injuries on the person of Harry were also

opined to be "dangerous" and he had to remain hospitalised for a

period of about 10 days. The doctor M.M.Narnaware had given his

subsequent opinion regarding the weapon of offence that the injuries

on the person of the Ritika were possible by weapon of offence

shown to him. The accused himself sustained injuries while stabbing

Ritika and Harry, which is reflected from his MLC Ex.PW22/A.

13. Blood gauge, earth control, school bags, bloodstained earth,

water bottle, cello tape, motorcycle were seized from the spot vide

seizure memo Ex.PW28/A. Blood sample on cotton piece, blood

stained road concrete and sample road concrete were lifted vide

Ex.PW21/B. Bloodstained clothes of injured Harry were seized vide

seizure memo Ex.PW20/A. Khukri was seized vide seizure memo

Ex.PW13/E. Bloodstained clothes and two rings of the accused were

seized vide seizure memo Ex.PW19/C. Blood sample of accused and

blood scrap from his hand were seized vide memo Ex.PW20/B.

Clothes of the deceased and blood sample were also seized. All the

exhibits were sent to FSL. The same were examined by Sh.

V.Shankar Narayanan and as per report Ex. PW26/A blood was

detected on all the exhibits except road concrete and earthly material.

As per serological report Ex. PW26/B although human blood was

detected on cotton wool, swab, bloodstained earthy material, cotton

wool swab, bloodstained earthy material, shirt, ring, as regards other

exhibits it was opined „no reaction‟. Except for shirt and ring on

which blood group was opined to be „A‟ Group, however for

remaining exhibits no blood group could be opined. As such, to

certain extent, even this FSL report corroborates prosecution version.

14. The plea of the appellant in his statement recorded under

Section 313 Cr.P.C. is that he was having love affair with Ritika. The

family members of Ritika were against the love affair. Therefore, in

order to teach him a lesson he was falsely implicated in the case. He

has further taken a plea that he was not present at the spot and was

brought from his home and then implicated in this case. In the face of

cogent and clinching evidence coming on record, it is highly

improbable that accused would be falsely named as assailant of the

crime by allowing the real culprits to scot free. Moreover, it is

important to note that accused is not disputing his presence at the spot

in as much as to almost all the prosecution witnesses a suggestion has

been given that he had tried to rescue Ritika and had gone to the

police post to make a complaint where he was falsely implicated in

this case. He does not dispute the factum of motorcycle No.DL-4S-

AL-4635 lying at the spot. The fact that the motorcycle belongs to

him stands proved from the record brought by PW24 Naresh Chand,

LDC from Delhi Transport Authority, West Zone. As per the record,

the motorcycle was registered in the name of Mangal Singh, son of

Sewa Singh, resident of WZ-3, Krishna Nagar, Delhi. Not only that,

the accused is also not disputing the factum of incident which had

taken place at the spot nor is he disputing the use of khukri as the

weapon of offence being used in the incident in as much as he himself

suggested to the prosecution witnesses that he had snatched away the

khukri from the hands of the assailant. He also does not dispute that

he himself had gone to the police post along with khukri where he

was apprehended. The only plea taken by him is that he had gone to

police post to make a complaint which in the face of voluminous

evidence coming on record against him does not have any ring of

truth. As regards the plea that he was not present at the spot or was

picked up by the police from his house, same is clearly an

afterthought having seen light of the day for the first time in his

statement under Section 313 Cr.P.C. and has no legs to stand.

15. In view of the above discussion and our appraisal and analysis

of the evidence on record we have no hesitation to hold that

prosecution has successfully established the case against the appellant

by clear, cogent and reliable evidence.

16. Coming to the quantum of sentence, learned counsel for the

appellant prayed for leniency on the ground that the incident is a

result of frustration in love. Appellant has no criminal background.

His conduct during the entire trial remained above board. He is the

only son and has five sisters. As such, it was submitted that there was

no occasion for imposing the harsh punishment that he was not

entitled to seek any remission in the sentence till he undergoes an

actual sentence of 30 years. Reliance was placed on Santosh Kumar

Satishbhusan Bariyar vs. State of Maharashtra, (2009) 6 SCC 498

and Sangeet and Another vs. State of Haryana, (2013) 2 SCC 452.

17. On the other hand, it was submitted by learned Public

Prosecutor for the State that the victim was a tender aged school

going girl of 10th standard and another victim was a school going kid

of 7th standard between 13-15 years of age. The accused came with

premeditated mind with a khukri in hand to the spot. He caused

multiple stab blows on the girl as well as dangerous injuries on PW2

Harry, who was discharged from the hospital after 10 days as per

MLC. Previous threats to do away with the entire family of the girl as

well as on the fateful day disclosing his mind to kill the entire family

after paying bribe to police officials and hushing up the case is

another factor which goes against him. Testimony of witnesses

reflects that the girl Ritika was not willing to talk to the accused and

remained silent. Hence she was being stalked by the appellant. The

victims did not give any provocation and were young children. As

such, death sentence was the appropriate sentence but a liberal view

has already been taken by awarding life imprisonment with the rides

of not seeking remission till he undergoes an actual sentence of 30

years which does not call for any interference. Moreover, it is a crime

against women. As such, leniency in sentence was otherwise

unwarranted. Reliance was placed on Ashabai and Another vs. State

of Maharashtra, (2013) 2 SCC 224, (2013) 1 SCC (Cri) 943 and

Guru Basavaraj @ Benne Settappa vs. State of Karnataka, (2012) 8

SCC 734, (2013) 1 SCC (Cri) 972. Ratio decidendi of both these

decisions is that crime against women are to be dealt with sternly and

adequate sentence is required to be imposed.

18. Needless to say, the offence committed by the appellant is very

grave and serious in nature inasmuch as out of frustration in love, he

inflicted as many as 20 stab blows on the person of Ritika which

proved fatal and thus, treated her with bestiality and cruelty besides

subjecting her to extreme pain. Not only that when her brother Harry

who was only aged about 13-14 years tried to intervene, even he was

attacked and injuries on his person were opined to be dangerous. He

had to remain hospitalized for about ten days. However, after taking

note of the aggravating and mitigating circumstances learned Trial

Court was of the view that the case does not fall within the category

of rarest of rare cases. Therefore, death sentence was not awarded.

However, relying on the decision of this Court in Shree Gopal @

Mani Gopal, Death Reference No. 1/2009 & Crl. A. 528/2009, the

appellant was sentenced to undergo RI for life with a direction that he

shall not be considered for being granted remission till he undergoes

an actual sentence of 30 years u/S 302 IPC besides imposing other

sentence & fine u/S 307 IPC & Section 27 Arms Act.

19. The vexed question which now arises for consideration is:

whether the facts of the instant case warrants the imposition of

condition that appellant shall not be considered for being granted

remission till he undergoes an actual sentence of 30 years.

20. This aspect of the matter was dealt with in Sangeet (Supra),

where, after referring to various earlier decisions rendered by Hon‟ble

Supreme Court, it was observed as under:-

"55. A reading of some recent decisions delivered by this Court seems to suggest that the remission power of the appropriate Government has effectively been nullified by awarding sentences of 20 years, 25 years and in some cases without any remission. Is this permissible? Can this Court (or any court for that matter) restrain the appropriate Government from granting remission of a sentence to a convict? What this Court had done in Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC 767 and several other cases, by giving a sentence in a capital offence of 20 years‟ or 30 years‟ imprisonment without remission, is to effectively injunct the appropriate Government from exercising its power of remission for the specified period. In our opinion, this issue needs further and greater discussion, but as at present advised, we are of the opinion that this is not permissible. The appropriate Government cannot be told that it is prohibited from granting remission of a sentence. Similarly, a convict cannot be told that he cannot apply for a remission in his sentence, whatever be the reason."

21. It was further observed that it is true that a convict undergoing

a sentence does not have the right to get a remission of sentence, but

he certainly does have a right to have his case considered for the grant

of remission, as held in State of Haryana Vs. Mahender Singh

(2009) 1 SCC (Cri.) 221 and State of Haryana Vs. Jagdish (2010) 2

SCC (Cri.) 806. Referring to Section 45 of the Indian Penal Code, it

was observed that this Section defines "life" as denoting the life of a

human being unless the contrary appears from the context. Therefore,

when a punishment for murder is awarded under Section 302 IPC, it

might be imprisonment for life, where life denotes the life of the

convict or death. The term of sentence spanning the life of the convict

can be curtailed by the appropriate Government for good and valid

reasons in exercise of its powers under Section 432 Cr. P.C. This

Section statutorily empowers the appropriate Government to suspend

the execution of a sentence or to remit the whole or any part of the

punishment of a convict. The statute provides some inherent

procedural and substantive checks on the arbitrary exercise of this

power as embodied in Sub-section 2 to Sub-section 5 of Section 432

Cr.P.C. and Section 433-A Cr.P.C. After referring to these

provisions, it was observed that there is a misconception that a

prisoner serving a life sentence has an indefeasible right to release on

completion of either fourteen years‟ or twenty years‟ imprisonment.

The prisoner has no such right. A convict undergoing life

imprisonment is expected to remain in custody till the end of his life,

subject to any remission granted by the appropriate government under

Section 432 Cr. P.C which in turn is subject to the procedural checks

in that section and the substantive checks in Section 433-A Cr.P.C.

The death penalty awarded to the appellant was converted into a

sentence of life imprisonment subject to the procedural and

substantive checks as referred above. Substantially similar view was

taken in Mohinder Singh Vs. State of Punjab, 2013 (2) Scale 24.

Under the circumstances, curtailing the power of the appropriate

Govt. to consider his plea of remission before the expiry of 30 years

is impermissible.

22. In the case of Kaushal Singh Vs. State of NCT of Delhi, 194

(2012) DLT 342 and Rajinder Singh @ Raju Vs. The State, 2012 6

AD (Delhi) 196 also condition was imposed upon the convict that he

shall not be considered for grant of remission till he undergoes an

actual sentence of 20 years and 35 years respectively, which was

modified to imprisonment of life only without any such condition.

The facts and circumstances of the present case also does not warrant

imposition of such a condition. That being so, the sentence is

modified only to the extent that the appellant will undergo life

imprisonment which means till the end of his life, subject to any

remission granted by the appropriate government under Section 432

Cr. P.C. which in turn will be subject to the procedural checks in that

Section and the substantive check in Section 433A Cr. P.C. The fine

imposed upon the appellant and the default sentence awarded to him

shall remain unaltered. Out of the fine, if realised, a sum of

Rs.60,000/- be paid to the parents of deceased and Rs.25,000/- be

paid to injured Harry as compensation as provided under Section 357

Cr. P.C. The appeal is disposed of in the above terms in modification

of the order passed by the Court below.

SUNITA GUPTA, J

REVA KHETRAPAL, J JULY 16, 2013 aks/as/rs