Delhi High Court

State vs Nitin Verma on 6 September, 2013

Author: Sunita Gupta

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRL.A.289/2013

NITIN VERMA                                             ..... Appellant
                              Through:       Mr. Sumeet Verma, Advocate

                              versus

STATE                                                   ..... Respondent
                              Through:       Ms. Ritu Gauba, APP.

                              AND

+                     Death Sentence Ref.4/2012

STATE                                                   ..... Appellant
                              Through:       Ms. Ritu Gauba, APP.

                              versus

NITIN VERMA                                             ..... Respondent
                              Through:       Mr. Sumeet Verma, Advocate

%                             Date of Decision : 06th September, 2013

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

                              JUDGMENT

: SUNITA GUPTA, J.

1. Appellant Nitin Verma in Crl.A No.289/2013 and accused in

Death Sentence Ref. No.4/2012 is charged with the commission of

offence of patricide, matricide and uxoricide. Vinod Verma, Pushpa

Verma and Pooja Verma are the father, mother and wife of appellant-

accused.

2. Prosecution case emanates from the fact that DD No.5A was

recorded in P.S Dwarka on receipt of an information through

telephone from G-50 to the effect that 2-3 persons had been killed in

House No.136, Gali No.9, Raj Nagar-II. The copy of DD was sent to

SI Rajender Singh(PW19) through Ct. Raj Singh for necessary action.

SI Rajender Singh (PW19) along with Ct. Surender (PW22) reached

H.No.136, Gali No.9, Raj Nagar-II and on enquiries came to know

that the incident has taken place in H.No.234A, Gali No.9, Raj Nagar-

II. Meanwhile, Insp. Anil Kumar(PW31) was also apprised about the

incident through wireless. He along with his staff reached the place

of incident where he found a male person drenched in blood, lying on

the floor outside a room on the ground floor, who was wearing a pant,

whereas the upper portion of his body was without clothes. There

were injuries inflicted by a sharp edged weapon all over his body.

Blood trail was seen from that place upto the stairs leading to first

floor. Insp. Anil Kumar reached the first floor and found a lady, who

was already dead in a sitting poster on a sofa in the verandah, on

whose body also, there were injuries inflicted by sharp edged weapon.

There was blood on the sofa as well as on the floor. On entering the

room, in front of sofa, a lady was found lying dead on the entrance,

drenched in blood and having injuries all over her body, inflicted by a

sharp edged weapon. Blood stains were found on the walls also.

Blood had spread on the stairs and impression of blood stains were on

various places on the walls. The lights and fans were switched on in

the house. The ornaments kept in the house had not been touched.

The ladies were found wearing their ornaments. The mangalsutra as

well as purse etc. were found intact on the dressing table. Inquiries

from the neighbourhood revealed that the dead body on the ground

floor is that of house owner, namely, Vinod Verma, the dead body of

the lady on sofa on the first floor is that of Pushpa Verma, wife of Sh.

Vinod Verma and the dead body of the lady inside the room on the

first floor is that of Pooja Verma, daughter-in-law of Vinod Verma

and wife of accused Nitin Verma. Crime team was called at the spot

and the spot was photographed from various angles, chance

fingerprints were lifted from the spot, blood samples and earth control

were lifted from near the dead body and seized by the police. It came

to be known that Nitin Verma, son of Sh. Vinod Verma, has been

taken in PCR van to the DDU hospital in an injured condition. Insp.

Anil Kumar, prepared a rukka and got the FIR registered.

3. Insp. Anil Kumar reached DDU hospital and found Nitin

Verma admitted there. There were injuries on his fingers, palms and

thigh inflicted by a sharp edged weapon. Blood sample of Nitin

Verma was collected and he was shifted to Safdarjung hospital for

treatment. After his discharge from Safdarjung hospital, he was

brought to police station where he was interrogated. He was arrested

vide arrest memo Ex.PW1/F and his personal search was taken vide

memo Ex.PW31/A. He made a disclosure statement Ex.PW20/D,

wherein he admitted his involvement in the offence. He got recovered

one blood-stained baniyan (vest), one small towel and knife, which

were seized. One mobile phone make Huawei C-2601 was also

recovered from his possession in the hospital and the same was seized

vide seizure memo Ex.PW20/C. During further investigation, it was

revealed that the reason for the murders was a lady named Surbhi

Rana PW 27, who lived in the neighbourhood of the accused and who

was the bone of contention between the accused and the deceased.

Surbhi Rana was contacted and her mobile phone of make Haier

HCC-2000 was taken into possession vide seizure memo Ex.PW10/A.

The call details of the mobile phone of accused Nitin were obtained

from his service provider M/s. Tata Indicom, which revealed that

accused Nitin was present in his house at the time when the murders

took place i.e. On 18.04.2008 from 9:26 p.m. to 12:27 a.m. in the

night. Rough site plan of the place of crime was prepared. Post

mortem on the dead bodies was got conducted. Thereafter, the dead

bodies were handed over to their relatives. The exhibits were sent to

FSL, Rohini for examination. After completing the investigation,

charge sheet was submitted.

4. Charge for offence under Section 302 IPC was framed against

the accused to which he pleaded not guilty and claimed trial. In order

to substantiate its case, prosecution examined 32 witnesses. All the

incriminating evidence was put to the accused while recording his

statement under Section 313 Cr.P.C., who denied the case of

prosecution and claimed innocence. Although, initially he stated that

he wants to lead defence evidence but no evidence was led by him.

5. Vide order dated 16.08.2012, the accused was convicted of

offence under Section 302 IPC and vide order dated 04.09.2012, he

was awarded death sentence and was directed to be hanged till death.

The sentence was however subject to confirmation by this Court

under Section 366 Cr.P.C. As such, death reference was received. The

accused also assailed the impugned order by filing appeal bearing

Crl.A.No.289/2013.

6. We have heard Shri Sumeet Verma, learned counsel for the

appellant and Ms. Ritu Gauba, learned Additional Public Prosecutor

for the State and have perused the record.

7. It was submitted by the learned counsel for the appellant that

on the intervening night of 18th/19th April, 2008 at about 12:40 a.m.

accused gave a call to PW1 Shri Vijay Kumar, his uncle that he has

met with an accident, his motorcycle is lying on the road and that he

was trying to contact his family members but they are not picking up

the phone. Thereupon, Vijay Kumar (PW1) rang up father of Nitin

Verma but no response was received. As such, he made a call to one

Ravinder Singh who used to reside in the neighbourhood of Vinod

Verma (deceased) to inform as to why he is not picking up telephone.

Ravinder Singh went to the house of Vinod Verma and informed

Vijay Kumar that no response is being received. Thereupon, Vijay

Verma asked him to forcefully open the door and then Ravinder

Singh opened the door and found the dead bodies. It was submitted

that Ravinder Singh was the first person who had seen the dead

bodies lying in the house. He was the most material witness, but he

was not examined by the prosecution. Furthermore, the initial

information on which DD No.5A was recorded was regarding killing

of 2-3 persons at House No.136, Gali No.9, Raj Nagar, Palam

Village. However, house No.136 does not belong to the deceased but

belong to PW8 Arun Kumar Mittal, which fact was suppressed by the

prosecution. DD No.3A was received regarding quarrel at House

No.H-234, Raj Nagar-II. However, it is not clear as to who gave this

call to the police. When Inspector Anil Kumar initially visited house

No.136, Gali No.9, Raj Nagar-II, it was clarified that the incident had

occurred at House No.H-234A, Gali No.9, Raj Nagar-II. Then, how

the site plan was prepared in respect of House No.237. The accused

has been implicated in this case on the basis of recovery of a vest,

towel and a knife. The vest was having blood of „B‟ group, which is

also alleged to be blood group of the accused. As such, this is not an

incriminating piece of evidence against him. Moreover, there is no

evidence to prove that the vest belongs to the accused. Towel was

opined to be having blood of „O‟ group, whereas on the knife

although blood was found but the blood group could not be given.

The recovery is alleged to have taken place from an open place which

is accessible to all. As such, there is no evidentiary value of such

recovery allegedly at the instance of the accused. It is further the case

of the prosecution that the accused was having mobile phone bearing

No.9210359955, however, this mobile phone belongs to deceased

Vinod Verma and no evidence has come on record to prove that it

was in possession of the accused. Another mobile bearing

No.9250968973 was seized, however, there is no evidence to prove

that it belongs to Surbhi. Both Surbhi and her father were examined

by prosecution but have not deposed anything against the accused.

Both of them have deposed that their signatures were obtained on

blank papers. The call details of mobile phone No.9250968973 were

not produced. As regards the knife is concerned, it was submitted that

total length of the knife has been shown as 28 cm, whereas as per the

length of blade and handle it comes to 29 cm. The knife was

measured with scale and normally total length is measured first and

then bifurcated. The discrepancy in measurement reflects that no such

sketch was prepared at the spot, hence no recovery was effected.

Referring to the testimony of witnesses, it was submitted that

relations between the accused, his parents and wife were cordial.

Although, PW3 Amit Verma tried to implicate the accused by

deposing that accused was having relation with Surbhi and

complaints used to be made by his father in this regard but he also

deposed that the relations were cordial. As regards the injury on the

person of accused is concerned, it was submitted that due to fall from

the motorcycle he had sustained injuries and even prosecution

witnesses admitted this fact. As regards opinion of the doctor that the

injuries were not possible by fall from the motorcycle, it was

submitted that Doctor Dipali (PW12)was recalled for further

examination by prosecution after a lapse of about one year and seven

months and at that time the knife was shown to her. No such opinion

was obtained during the course of investigation. As such, no reliance

can be placed on her testimony. As regards the testimony of PW6 Sai

Purshottam Kumar, it was submitted that he is a stock witness of

police and admitted that people in thousands were present when

recovery was effected but no other person was joined in investigation.

The almirah was found open and no inventory of articles was

prepared. As such, possibility of robbery cannot be ruled out.

8. Under the circumstances, it was submitted that there is no

eyewitness to the incident. The case of the prosecution is based on

circumstantial evidence. There is no reason as to why the accused

would commit triple murder of his parents and wife when the

relations between them were quite cordial. As such, prosecution has

failed to bring home the guilt of the accused beyond reasonable

doubts. As such, accused is liable to be acquitted.

9. It was further submitted in alternative that in case the

conviction is upheld, even then extreme penalty of death is not

warranted as accused in a young boy, his antecedents are clean, he is

not involved in any other criminal case, there is possibility of his

reformation and rehabilitation, the case does not fall in the category

of "rarest of rare case". Reliance was placed on Mahender Singh vs.

State of Punjab,2013(2) Scale 24.

10. Rebutting the submissions of learned counsel for the appellant,

it was submitted by learned public prosecutor for the State that it is a

case of cold blooded triple murder. On receipt of call, police reached

the spot, found the lights on, everything was in order. Therefore, there

is no possibility of committing murder for robbery. The accused after

committing murder went to Budha Jayanti Park and tried to take a

false plea of accident and informed his uncle regarding having met

with an accident. It was submitted that why no information was

given to his parent or wife regarding the accident. This clearly shows

the guilty mind of the accused, who knew it fully well that he has

already committed their murder and therefore in order to take a plea

of alibi, cooked up a false story of having met with an accident.

When his cousin brothers reached the spot, they found injury on his

person and wanted to take him to hospital, but the accused declined.

Ultimately, when accused was taken to DDU Hospital, his MLC was

prepared which reflected „history of assault‟. The injuries on his

person were opined to be by a „sharp edged weapon‟ which belies his

plea of sustaining injuries in an accident. The accused in his statement

recorded under Section 313 Cr.P.C. does not explain as to under what

circumstances he made telephone call to his uncle instead of his

parents. The mobile phone in the name of Vinod Verma, father of

accused/deceased was recovered from the possession of accused. His

plea that it belong to Vinod Verma and was not in his possession is

belied by the call details record which show that calls were made

even after Vinod Verma had died. There were only four members in

the family. Three of them were murdered. Only accused was left from

whose possession the mobile phone was recovered. The call details of

the mobile phone in the name of Vinod Verma recovered from the

possession of accused and Surbhi reflected that on 18 th April, 2008 at

least 21 calls were made, which clearly shows the close relationship

between the two and which was also the motive for committing the

heinous crime.

11. The fact that Surbhi and her father did not support the case of

prosecution is of no consequence because in order to save her honour

and prestige, Surbhi did not admit her relationship with Nitin and her

father also got her hurriedly married in order to avoid any further

complication, which is reflected from the fact that when she appeared

in the witness box she was already married and was even reluctant to

give her address of Chandigarh.

12. Further recovery was effected at the instance of accused in the

presence of an independent witness. He is not a stock witness of the

police as submitted by learned defence counsel. Rather it has come in

his testimony that he had come to appear in the court for the first

time. Non-joining of other independent witnesses is of no

consequence as it has come on record that no other person was ready

to join the proceedings. As regards non-examination of Ravinder

Singh is concerned, it was submitted that he was not a material

witness inasmuch as he is not an eyewitness of the incident.

Moreover, it is prerogative of the prosecution as to whom it has to

examine. As regards discrepancy in the number of the house in the

site plan, it was submitted that clarification has already been given by

the Investigating Officer that number of the house was given by the

neighbour and no such number was displayed outside the house. As

such, the confusion arose. Moreover, it is not in dispute that the

murder had been committed in the house of Vinod Verma. As such,

identity of the place of commission of offence is not in dispute. It was

submitted that there is no infirmity in the impugned order which calls

for interference. As such, appeal preferred by the appellant deserves

to be dismissed.

13. Regarding quantum of sentence, it was submitted that no

interference is called for inasmuch as the appellant committed the

murder of his old aged parents and wife in a most brutal and diabolic

manner in order to facilitate his affair with another girl. Hence he

deserves nothing less than death sentence.

14. We have given our considerable thoughts to the respective

submissions of learned counsel for the parties and have perused the

record.

15. At the outset, it may be mentioned that there is no eyewitness

to the incident and the case of prosecution is based on circumstantial

evidence only. Before we analyse and appreciate the circumstances

that have weighed with the Trial Court, we think it apposite to refer to

certain authorities pertaining to delineation of cases that hinge on

circumstantial evidence.

16. In Sharad Birdhichand Sarda v. State of Maharashtra AIR

1984 SC 1622, a three-Judge Bench has laid down five golden

principles which constitute the "panchsheel" in respect of a case

based on circumstantial evidence. Referring to the decision in Shivaji

Sahebrao Bobade v. State of Maharashtra, AIR 1973 SC 2622:

(1973) 2 SCC 793, it was opined that 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. Thereafter,

the Bench proceeded to lay down that 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; that the circumstances should be of a

conclusive nature and tendency that they should exclude every

possible hypothesis except the one to be proved; and that 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."

17. In Padala Veera Reddy v. State of Andhra Pradesh and Ors.

1989 Supp (2) SCC 706 : 1991 SCC (CRI) 407, Supreme Court held

that when a case rests upon circumstantial evidence, the following

tests must be satisfied: (SCC pp. 710-11, para 10)

"10.........(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

A similar view has been reiterated in Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172.

18. In Balwinder Singh v. State of Punjab, AIR 1996 SC 607, it

has been laid down that the circumstances from which the conclusion

of guilt is to be drawn should be fully proved and those circumstances

must be conclusive in nature to connect the accused with the crime.

All the links in the chain of events must be established beyond

reasonable doubt and the established circumstances should be

consistent only with the hypothesis of the guilt of the accused and

totally inconsistent with his innocence. In a case based on

circumstantial evidence, the Court has to be on its guard to avoid the

danger of allowing suspicion to take the place of legal proof and has

to be watchful to avoid the danger of being swayed by emotional

considerations, however strong they may be, to take the place of

proof.

19. In Harishchandra Ladaku Thange v. State of Maharashtra

AIR 2007 SC 2957, while dealing with the validity of inferences to be

drawn from circumstantial evidence, it has been emphasised that

where a case rests squarely on circumstantial evidence, the inference

of guilt can be justified only when all the incriminating facts and

circumstances are found to be incompatible with the innocence of the

accused or the guilt of any other person and further the circumstances

from which an inference as to the guilt of the accused is drawn have

to be proved beyond reasonable doubt and have to be shown to be

closely connected with the principal fact sought to be inferred from

those circumstances.

20. In State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SCW

640 : AIR 1992 SC 840, emphasis has been laid that it is the duty of

the Court to take care while evaluating circumstantial evidence. If the

evidence adduced by the prosecution is reasonably capable of two

inferences, the one in favour of the accused must be accepted. That

apart, the circumstances relied upon must be established and the

cumulative effect of the established facts must lead to a singular

hypothesis that the accused is guilty.

21. In Ram Singh v. Sonia and Ors., AIR 2007 SC 1218, while

referring to the settled proof pertaining to circumstantial evidence,

Supreme Court reiterated the principles about the caution to be kept

in mind by Court. It has been stated therein that:

"39......in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts."

22. In Ujagar Singh v. State of Punjab, (2007) 13 SCC 90, after

referring to the aforesaid principles pertaining to the evaluation of

circumstantial evidence, Supreme Court stated that:

"14......it must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted."

23. Keeping in view the aforesaid principles, we shall presently

proceed to scrutinize and evaluate the circumstances whether the said

circumstances establish the guilt of the accused beyond reasonable

doubt.

24. It is not in dispute that deceased Vinod Verma, Pushpa Verma

and Pooja Verma met homicidal death. This stands established from

the medical evidence adduced on record. Post mortem of deceased

Vinod Verma was conducted by Dr. Komal Singh (PW15), who

found following injuries on his person:-

Multiple clean incised wounds on his neck, face, lower

chest, abdomen and back. He had a CIW on left side of

face 3.3 cm x 1.1 cm, three traversely placed clean incised

wounds over anterior surface of the neck, CIW on gastric

region seven clean incised wounds of varying size on right

and left side of the body, three CIW below the umbilicus

of varying size, three CIW on right lateral side of

abdomen of varying size, seven CIW on the back, one

defence wound each on right and left palm of varying size.

Time since death was 15 hrs.

25. Dr. Komal Singh gave post mortem report of deceased Vinod

Verma, Ex.PW15/B and opined the cause of death to be haemorrhagic

shock and the injuries to the vital organs of body subsequent to

multiple stab injuries and it was also opined that the injuries to the

vital organs were sufficient to cause death individually as well as

collectively in ordinary course of nature. All the injuries were ante

mortem in nature. Time since death was approximately 15 hrs.

26. Post mortem of deceased Pushpa Verma was also conducted by

Dr. Komal Singh, who found following injuries on her body:-

(i) One clean incised wound on the left side of neck.

       (ii)    Another CIW over thoracic near scalpel.

       (iii)   One clean incised wound below wound no.2.

       (iv)    One clean incised wound 3 cm below wound no.3.

       (v)     One clean incised wound 4 cm below wound no.4.

       (vi)    One clean incised wound 4 cm below wound no.5.

(vii) One clean incised wound 3 cm below wound no.6.

(viii) One clean incised wound 3 cm left to wound no.6.

(ix) One traversely placed clean incised wound on the

anterior surface of the neck.

       (x)     One clean incised wound on lower margin of

               thyroid.

       (xi)    One clean incised wound 2 cm above wound no.9.

(xii) One clean incised wound 3 cm below wound no.9.

(xiii) One clean incised wound at epigastric region.

(xiv) One clean incised wound at umbilical region.

(xv) Three clean incised wound on left lateral side of

hypochondrium.

(xvi) One clean incised wound on left side of thoracic

region.

(xvii) One clean incised wound on right hand.

(xviii) One clean incised wound on lateral side of right

hand.

(xix) One abrasion on left knee.

Dr. Komal Singh also gave post mortem report of deceased

Pushpa, Ex.PW15/A and opined the cause of death to be hemorrhagic

shock subsequent to multiple stab injuries and all injuries in

combination were sufficient to cause death in ordinary course of

nature. The injuries were stated to be ante mortem in nature. Time

since death was approximately 14 hrs.

27. Post mortem on the dead body of Pooja Verma was conducted

by Dr. B.N.Mishra (PW16), who found following injuries on her

person:-

A cut throat injury at the level of thyroid cartilage, incised

wound at left face extended upto forehead, one stab wound

present at epigastric region (abdominal cavity), another two

separately placed incised stab wounds present in abdomen

cavity, multiple incised stab wounds present at left lateral

aspect of chest with penetration upto lungs and liver with sharp

in margin, multiple stab incised wounds at back with

penetration into thoracic and abdominal cavity, multiple incised

wounds present in both hands (palm and dorsal aspect), one

stab wound present at back of neck and one stab wound at the

base of chin.

28. Dr. B.N.Mishra(PW16) gave post mortem report of deceased

Pooja, Ex.PW16/A and opined the cause of death to be haemorrhagic

shock caused by multiple incised stab wounds on the body by using

sharp edged weapon like knife. The manner of death was opined to be

homicidal. Time since death was approximately 10-12 hrs.

29. The nature and extent of sharp cut injuries found all over the

bodies of the three deceased reflects that they were brutally stabbed

by a sharp edged weapon which resulted in their death. As such, the

death is homicidal which is not even disputed by the accused. As per

the post mortem report, time of death of deceased Pooja Verma

comes to about 1.45 a.m. in the night, whereas the time of death of

deceased Vinod Verma and his wife Pushpa Verma comes to around

12 midnight. Thus, it is clear that all three deceased were stabbed

approximately, at around 12:00 a.m. i.e. midnight of 18th/19th April,

2008.

30. The crucial question for consideration is: who is responsible for

committing such brutal and ghastly crime.

31. PW1 Vijay Kumar is the uncle of the accused. PW3 Amit

Verma and PW4 Sumit Verma are sons of PW1. PW7 Bharat Singh is

the friend of PW3 and PW4. All these witnesses have deposed that

they were present in the house of Vijay Kumar in late hours of 18 th

April, 2008, when a telephone call was received by PW1 Vijay

Kumar from the accused, who informed him that he has met with an

accident near Budha Garden and was not in a position to move.

Accordingly, Vijay Kumar (PW1) directed his sons Amit Verma

(PW3), Sumit Verma (PW4) and their friend Bharat Singh(PW7) to

go and see what has happened to the accused. In the meanwhile, he

also made calls to his brother Vinod Verma to inform him about the

condition of accused but there was no response from other side of

telephone. He made continuous 7-8 telephone calls but nobody

responded. Having no other option, he made a call to one Ravinder

Singh, who used to reside in the neighbourhood of deceased Vinod

and requested to check why Vinod Kumar was not picking up phone.

After sometime, Ravinder Singh informed Vijay Kumar that nobody

is responding to his repeated calls at the door of house of Vinod

Verma. Vijay Kumar again requested Ravinder Singh to open the

door forcefully. After sometime, he again made a call to Ravinder,

who informed him that his brother was lying in a pool of blood on the

floor. On receipt of this information Vijay Kumar (PW1) also

informed another brother of deceased Vinod Verma, namely, PW2

Rajesh. They rushed to the house of Vinod Verma and on reaching

there they noticed that his brother was lying on the ground floor in a

pool of blood. When he went upstairs, he found his bhabi i.e. wife of

Vinod Verma also lying in a pool of blood on the sofa at first floor

and wife of accused Nitin, namely, Pooja was also lying in a pool of

blood near the door.

32. It has come in the testimony of witnesses that when PW3 Amit

Verma, PW4 Sumit Verma and PW7 Bharat Singh reached Budha

Jayanti Park on motorcycle, they found the accused lying near a tree

along with his motorcycle. He was having cut injury on his right

hand. The injury seems to have been inflicted by a sharp edged

weapon. On enquiry from the accused as to how he has sustained

injuries, no reply was given by him. They wanted to take him to the

hospital but accused declined. Thereupon, they brought the accused

along with his motorcycle to his house. When they reached the house

of accused, they found their father outside the house, who told them

regarding murder of parents and wife of the accused and that this fact

be not divulged to him, however, accused insisted to go inside the

house. On going inside the house and on seeing the condition of his

wife and parents, he fainted. Somebody informed PCR. PCR van

came to the spot and took accused Nitin to DDU hospital. It is

pertinent to note that despite the fact that according to accused he met

with an accident near Budha Jayanti Park, instead of making any call

to his parents or wife he made a telephone call to his uncle for help.

This conduct of the accused is quite unnatural inasmuch as when a

person faces some adversity, the natural and normal reaction is to call

his close relations i.e. parents and wife, but the accused did not do so.

Although a submission was made during the course of arguments that

the accused tried to contact his parents and wife but on finding no

response he made a call to his uncle, however, this submission is not

fortified by the record. Absolutely, no suggestion was given to any of

the prosecution witnesses that the accused made efforts to contact his

parents or wife after having met with an accident and having failed in

his attempt, contacted his uncle. So much so, his statement under

Section 313 Cr.P.C. is also conspicuously silent in this regard and he

admitted that he made a call to his uncle PW1 Vijay Kumar after the

accident at Budha Jayanti Park. No explanation has been furnished by

him as to why he did not inform his parents or the wife regarding the

accident. This unnatural conduct and behavior of the accused is

inconsistent with his plea of innocence.

33. It has come in the testimony of PW3 Amit Verma that when

accused Nitin was found lying near a tree there was blood spot on his

hand and injury was dry. When he inquired from Nitin as to how he

received injuries, he did not reply anything. He insisted Nitin to

remove him to hospital but he refused. PW4 Sumit Verma, however,

had deposed that accused Nitin was having injuries on his right hand

which he tied with a handkerchief. On enquiry, he stated that he fell

down from the bike and sustained injuries. But the fact remains that

both these witnesses have deposed that despite their insistence to

remove him to hospital, he refused to go there. Having no option,

they brought him along with his motorcycle to his house where on

seeing the condition of his parents and wife he fainted. PCR van came

and shifted Nitin to DDU hospital. MLC of Nitin Verma, Ex.PW12/A

was prepared by Dr. Sajid under the supervision of PW12 Dr. Deepali

and as per this MLC, the accused had one clean incised wound on his

right hand, one clean incised wound on his left hand, one clean

incised wound on his left thigh on the anterior aspect, one incised

wound at the internal aspect of right hand, one clean incised wound

on the ring finger of right hand at the internal aspect. The injuries

were opined to be inflicted by a sharp edged weapon. The accused

was also found smelling of Alcohol. PW12 Dr. Deepali in her cross-

examination had deposed that the injuries can be caused only by a

sharp edged weapon and cannot be sustained by any accident or by a

fall on the ground. The submission of learned defence counsel that

PW3 Amit Verma, although was bent upon supporting the case of

prosecution and to see that the accused is sent to jail, admitted in

cross-examination that injuries sustained by accused could have been

caused in roadside accident and this witness was not recalled by

prosecution for further examination after seeking opinion of Dr.

Dipali(PW12) is devoid of merit inasmuch as the opinion given by

the doctor has to be given preference than that of a layman.

Moreover, even if Dr. Dipali (PW12) was recalled for further

examination after a gap of substantial period, MLC Ex.PW12/A itself

reflect that the nature of injuries were opined to be "sharp" and the

history was of "assault". The MLC was prepared at the very first

juncture and the same finds corroboration from the testimony of

doctor. Under the circumstances, it becomes clear that the injuries on

the person of accused were caused by sharp edged weapon and not in

an accident. As such, he gave false information to his uncle that he

met with an accident at Budha Garden probably in order to take a

false plea of alibi. In Mulak Raj vs. Satish Kumar, 1992, Crl.L.J

1529, Balvinder Singh vs. State of Punjab (1987) 1 SCC 1, Anurag

& Others vs. State, 2010 II AD (Delhi) 105, it was held that a false

plea of alibi is an incriminating circumstance giving rise to an

inference of guilt of the accused. It was further held in Sharad

Birdhichand Sharda Vs. State of Maharashtra, 1984 SCC (Cri.)

481, Rameshbhai Mohanbhai Koli Vs. State of Gujarat, (2011) 3

SCC (Cri.) 102 that a false plea taken by an accused in a case of

circumstantial evidence is an additional link in the chain of

circumstances.

34. It is the case of prosecution that after his arrest, accused made a

disclosure statement Ex.PW20/D that he can get the weapon of

offence and his blood-stained clothes worn by him at the time of

commission of offence recovered. The recovery was effected in the

presence of Inspector Anil Kumar (PW31), SI Jitender Dagar (PW20)

and an independent witness Sai Purshottam Kumar(PW 6). Inspector

Anil Kumar (PW31) has deposed that after making disclosure

statement accused led them to a place near railway line in front of

Maya Medicos, Palam and pointed out the place where he had thrown

his clothes worn by him at the time of commission of offence as well

as the weapon of offence. At his instance, one bloodstained baniyan

(vest) and one small towel were recovered, which was seized vide

seizure memo Ex.PW6/C. He also got recovered weapon of offence

i.e. knife from a place about 20 paces ahead towards south of the

aforesaid place. The sketch of the knife Ex.PW6/B was prepared and

it was seized vide seizure memo Ex.PW6/A. At the time of recovery,

PW6 Sai Purshottam Kumar, an independent witness was present. It

has come in the testimony of this witness that on 19.04.2008 during

evening time he was returning from his business place. He came to

know that one Nitin had murdered somebody and he was in custody

of police at that time. Police requested him to join the investigation

and he joined the investigation of his free will. He corroborated

PW31 Inspector Anil Kumar by deposing that accused led them near

Palam Fatak, near Transformer, Railway Line in front of Maya

Medicos, where he pointed out bloodstained vest and towel by which

he cleaned the blood on the knife. At a distance of approximately 20

steps the accused pointed out towards a knife. The knife was taken

into possession vide memo Ex.PW6/A after preparing its sketch and

sealing the same. The vest and towel were also taken into possession

vide memo Ex.PW6/C after sealing the same. PW9 Rajiv Kumar,

photographer took the photographs of the spot where the recoveries

were effected at the instance of accused as Ex.PW9/A1 to

Ex.PW9/A6. The witness Sai Purushottam Kumar (PW6)identified

the knife Ex.P1, vest Ex.P3 and towel Ex. P2 when shown to him

during his examination. Despite cross-examination nothing material

could be elicited to discredit his testimony. There is no reason as to

why he would falsely implicate the accused. There was no suggestion

of any motive for such alleged false implication. There was not even

a suggestion that the witness had any animosity towards the accused.

It is common experience that public persons are generally reluctant to

join police proceedings. There is generally apathy and indifference on

the part of public to join such proceedings. This position of law was

reiterated in Aslam & Ors. Vs. State, 2010 III AD (Delhi) 133 where

it was observed by this Court that reluctance of the citizens to join

police proceedings in well known and needs to be recognized. It

cannot be disregarded that public does not want to get dragged in

police and criminal cases and wants to avoid them because of long

drawn trials and unnecessary harassment. In Manish vs. State, 2000

VIII AD SC 29 and in A. Bhai vs. State, AIR 1989 SC 696 also it was

held that we cannot be oblivious to the reluctance of the common man

to join such raiding parties organized by the police, lest they are

compelled to attend police station and Court umpteen times at the

cost of considerable inconvenience to them, without any

commensurate benefit. It is an irony of fate that in the face of all

these, if an independent witness joins police proceedings, then he is

labeled as a stock witness of the police. In the instant case, the

witness has deposed that this is the first case in which he has

appeared as a witness. In pursuance to an application moved under

Section 311 Cr.P.C. this witness was called for further cross-

examination and deposed that videography and photography of the

place where knife was got recovered by the accused was done. The

exact spot where the knife was found and was recovered was shown

by accused himself. There is nothing on record to show even remotely

that he was a stock witness of the police and not an independent

witness. He is a resident of Raj Nagar-II, Palam and therefore, his

presence at the spot of recovery of articles was quite natural. Nothing

has been brought on record on behalf of the accused either in the

cross-examination of this witness or by any other independent witness

that he was a stock witness of the police or that articles were not got

recovered by the accused in his presence. Even no suggestion was

given to the Investigating Officer of the case that this witness was a

stock witness of the police. Testimony of both these witness also find

substantial corroboration from SI Jitender Dagar(PW20). Under the

circumstances, recovery of knife, vest and towel at the instance of

accused stands proved by cogent, convincing and reliable testimony

of police officials and a totally independent witness.

35. The other plea that the recovery was effected from an open

space which was accessible to all is also devoid of merit inasmuch as

in Tahir & Ors. Vs. State, 87 (2000) DLT 207, it was observed that

there is nothing in Section 27 of the Evidence Act which renders

statement of accused inadmissible if recovery of the article was made

from any place which is open or accessible to others. It is a fallacious

notion that when recovery of any incriminating article was made from

a place which is open or accessible to others it would vitiate the

evidence under Section 27 of the Evidence Act. Any object can be

concealed in places which are open or accessible to others for

example, if the article is buried on the main road side or if it is

concealed beneath dry leaves lying on public places or kept hidden in

a public office the article would remain out of the visibility of others

in normal circumstances. Until such article is discovered its hidden

state would remain unhampered. The person who had hid it alone

know where it is until he discloses that fact to any other person.

Hence the crucial question is not whether the place was accessible to

others or not but whether it was ordinarily visible to others. If it is

not, then it is immaterial that the place of concealment is accessible to

others. In the instant case, recovery was effected near the bushes in a

deserted place and as such it cannot be said that the knife was

recovered from an open space which was accessible to all. Under the

circumstances, recovery of knife, vest and towel at the instance of

accused stands duly proved.

36. As regards the submission that there is variation in the

measurement of the knife in as much as total length has been

mentioned as 28 cm, whereas if the length of the blade and handle as

mentioned in the sketch is calculated it comes to 29 cm. This is a very

minor variation which is hardly of any significance and does not in

any manner affect the recovery.

37. The knife, the vest and the towel were sent to FSL, Rohini for

forensic examination. As per report Ex.PW30/A given by Dr.Dhruv

Sharma blood was detected on all the three articles. The report of

biology division of FSL Ex.PW30/B shows that the blood group of

the blood found on the vest was „B‟ group which matched with blood

group of accused himself, found on his blood sample which was also

sent to FSL. The report also reflect that the blood group found on the

towel was of group „O‟ which matched the blood group of the three

deceased found on the sofa set cover, cotton wool, bloodstained floor

lifted from the spot and the clothes of the deceased. However, the

blood on the knife did not show any reaction. It has come on record

that after wiping the knife with hand towel, blood had come on the

towel and its blood group was same as that of the deceased. This is a

very strong clinching incriminating piece of evidence against the

accused. This suggests that the deceased have been stabbed and killed

with knife Ex.P1. Knife Ex.P1 was shown to PW12 Dr. Dipali, who

had examined the accused Nitin when he was brought to hospital and

she deposed that it is possible that accused could have sustained

injuries mentioned in the MLC by this knife. The knife was also

shown to Dr. Komal Singh, who conducted post mortem examination

on the dead body of Vinod Verma and Pushpa Verma and he deposed

that the injury Nos.1 to 17 mentioned in post mortem report

Ex.PW15/A of Pushpa Verma and injury Nos.1 to 9 in post mortem

report Ex.PW15/B of Vinod Verma were possible by the knife Ex.P1.

Similarly, Dr. B.N.Mishra, who conducted post mortem on the dead

body of Pooja deposed that the injury Nos.1 to 9 mentioned in post

mortem report Ex.PW16/A could be possible by knife Ex.P1. Under

the circumstances, it stands proved that all the three deceased had

been stabbed and killed by knife Ex.P1, which was got recovered by

the accused himself and he himself also sustained injuries by the

same knife while attacking the deceased.

38. Motive to commit the crime also stands proved inasmuch as

PW3 Amit Verma had deposed that during visit to the house of his

uncle Vinod Verma, he used to make complaints that even after the

marriage, Nitin has not mended his behaviour. He used to tell that

although they had married Nitin according to his wish but Nitin had

relation with a girl, namely, Surbhi, who was residing in the

neighbourhood. Father of the Nitin used to advise him to mend his

behaviour on the aspect of relation with Surbhi but in vain. PW8

Arun Kumar Mittal has also deposed that Nitin was residing in the

same vicinity. He was having affair with a girl, namely, Pooja with

whom he married. After about one year,he came to know that accused

had an affair with one more girl. Although, this witness does not

name the girl with whom accused was having affair, but fact remains

that he came to know about the accused having affair with some other

girl. It is pertinent to note that testimony of both these witnesses

regarding accused having relation with Surubhi goes unrebutted,

unchallenged and unshattered as the same was not assailed in cross

examination. Even no suggestion was given to any of these witnesses

that accused was not having any relation with another girl (as deposed

by PW 8, Arun Kumar Mittal) or Surubhi (as deposed by PW 3 Amit

Verma). It is settled law that where a party fails to avail right of cross

examination of witness despite there being sufficient opportunity and

testimony of such witness remains unrebutted and unimpeached, then

in such circumstances, such testimony has to be given due credence

vide Mst.Kesar Jahan Begum vs. Ramjan Karim & Ors, 1998 (46)

DRJ 7; Rajender Prasad by Lrs vs. Smt. Darshana Devi, 93 (2001)

DLT 1 (SC); Sterling Holiday Resorts (India) Ltd. Vs. Mr. Manohar

2011 (1) AD (Delhi) 387.

39. Prosecution examined Surubhi PW27 who did not support the

case of prosecution and denied any acquaintance with the accused.

The reason was obvious. Ours is a conservative society and

therefore, a young unmarried girl will not put her reputation in peril

by admitting her relationship with a stranger, more particularly so, if

the allegation against such stranger is of triple murder. In the

tradition bound non-permissive society of India, a girl would be

reluctant to admit such relationship in the prevailing circumstances of

the case. She would be conscious of the danger of being ostracized

by the society or being looked down by the society including her own

family members, friends and relatives. She would apprehend that it

would be difficult to secure an alliance with a suitable match from a

respectable family. The natural inclination would be to avoid giving

publicity to the incident lest the family name and honour is brought

into controversy. Her parents would also like to avoid publicity on

account of fear of social stigma on the family name and family

honour. That being so, the reason for this witness being declared

hostile was quite obvious that she would not like to put her prestige at

stake by admitting her relationship with accused Nitin. As per

prosecution version , at the time of incident she was only 17 years of

age. When she came to depose in the Court on 13.01.2011, she was

already married and when the witness appeared in the witness box,

she was even reluctant to give her address of Chandigarh where she

was residing. Under the circumstances, the mere fact that Surubhi

denied her relationship with Nitin is of no consequence in view of the

unchallenged testimony of PW 3 Amit Verma and PW 8 Arun Kumar

Mittal.

40. It is the case of the prosecution that accused had provided a

mobile phone of Haier HCC-2000 with Sim card of Tata Indicom

bearing No.9250968973 to Surbhi and she used to remain in touch

with him from this phone. Inspector Anil Kumar has deposed that he

contacted Surbhi. Her Haier HCC-2000 mobile phone was taken in

possession vide memo Ex.PW11/A. Surbhi Rana admitted her

signatures at point „B‟ on seizure memo Ex.PW10/A and deposed that

usually she does not sign any document without going through its

contents but went on stating that her signatures were obtained on a

blank paper. Even her father PW10 Hari Singh Rana had deposed that

his signatures were obtained on blank paper. The reason for Surbhi or

for that matter her father for not supporting the case of prosecution

are quite obvious as discussed above.

41. However, Inspector Anil Kumar(PW31) and SI Jitender Dagar

(PW20) both have deposed that they went to the house of Surbhi at

Palam Colony, where she produced her mobile phone in the presence

of her father, which was taken into possession vide seizure memo

Ex.PW10/A. There is no reason to disbelieve the testimony of the

police officials in this regard. The testimony of police personnel have

to be treated in the same manner as testimony of any other witnesses

and there is no principle of law that without corroboration by

independent witnesses their testimony cannot be relied upon. The

presumption that a person acts honestly applies, as much in favour of

police personnel as of other person and it is not a proper judicial

approach to distrust and suspect them without good ground. It will all

depend upon the facts and circumstances of each case and no

principle of general application can be laid down as held in Karanjit

Singh Vs. State (Delhi Admn.) 2003 5 SCC 291, C. Ronald & Anr.

Vs. Union Territory of Andaman & Nicobar Islands, (2001) 1 SCC

(Crl.) 596. In Sunil Clifford Daniel vs. State of Punjab, 2012 11

SCC 205, Apex Court referred to State Govt. of NCT of Delhi v.

Sunil and Anr., (2001) 1 SCC 652, wherein Court held as under:-

"20. ... But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust.....At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence

when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

42. In Madan Singh vs. State of Rajasthan, 1979 SCC (Cri) 56, it

was observed that where the evidence of the investigating officer who

recovered the material objects is convincing, the evidence as to

recovery need not be rejected on the ground that seizure witnesses did

not support the prosecution version. Similar view was expressed in

Mohd. Aslam vs. State of Maharashtra, 2002 SCC (Cri) 1024.

43. In Antar Singh vs. State of Rajasthan, 2005 SCC (Cri) 597, it

was further held:

"10.....even if Panch witness turn hostile which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated."

44. This view was reiterated in Rameshbhai (supra) by observing

that merely because the Panch witnesses have turned hostile is no

ground to reject the evidence if the same is based on the testimony of

the investigating officer alone.

45. In the instant case, testimony of the police officers does not

suffer from any infirmity or doubt. Record reveals that no ill-will or

animus has been alleged against any of the police officials for which

reason they will falsely depose regarding handing over of mobile

phone by Surabhi. In fact, testimony of SI Jitender Dagar (PW20) and

Insp. Anil Kumar (PW31) that Surabhi produced her mobile phone

make Haier in presence of her father goes unrebutted as same was not

assailed in cross examination. Even no suggestion was given that

Surabhi did not produce her mobile phone to police. Under the

circumstances, the only conclusion which can be derived is that

Surbhi had handed over a Haier HCC-2000 mobile phone with Sim

card of Tata Indicom bearing No.9250968973 to the police which was

seized vide seizure memo Ex.PW10/A.

46. The mobile phone No.9210359955 was issued in the name of

Mr. Vinod K.Verma as per record produced by Nodal Officer Shri

M.N.Vijayan (PW13). According to the accused he was not using this

mobile phone, however, it has come in the testimony of Inspector Anil

Kumar and SI Jitender Dagar that one mobile phone make Huawei C-

2601 having a Tata Indicom Sim with mobile number 9210359955

was recovered from the possession of the accused in the hospital and

was seized vide seizure memo Ex.PW20/C. Call details of this mobile

phone on 18.04.2008 and 19.04.2008 were proved by PW13

M.M.Vijayan as Ex.PW13/A. A perusal of the same shows that the

calls were made from this phone and were received on this phone

from 10.48 a.m of 18.04.2008 till 04:11 a.m. of 19.04.2008. As stated

earlier, the approximate time of death of Vinod Verma was around 12

midnight. Therefore, after having been murdered by this time, he

could not have talked on this mobile phone after midnight and

thereafter. The other two ladies in the family were also dead by that

time. There was no other member in the family and therefore, it is

only the accused, who was in a position to make and receive calls at

this mobile phone number and in fact he had used this mobile number

on the fateful night. The call detail records Ex.PW13/A reveals that

this mobile number was in touch with Surbhi Rana‟s number i.e.

9250968973 throughout the day of 18.04.2008 since 10:48 a.m. and at

least 21 calls were made on that day and 3 calls on 19.04.2008. Such

frequent calls made by accused to Surbhi on a single day indicate that

two were having some sort of intimate relationship which finds

corroboration from the testimony of PW3, Amit Verma and PW8

Arun Kumar Mittal, both of whom have deposed regarding affair of

accused with another girl Surbhi. Under the circumstances, the plea of

the accused that he was not using the mobile phone No.9210359955

which is in the name of his father is belied by the fact that it was

seized from his possession in the hospital and the call details also

negatives his pleas.

47. Another material circumstance which deserves to be noted is

that all the articles were found in intact condition. The deceased were

found to be wearing all their jewellery articles. The ornaments kept in

the house had not been touched. A Mangalsutra and ladies purse was

found intact on the dressing table. The lock of the gate was found in

order. All these rules out the possibility of any theft, robbery etc.

48. Much emphasis was laid by learned counsel for the accused on

the rough site plan of the place of incident, Ex.PW31/B prepared by

Insp. Anil Kumar for submitting that it pertains to House No.H-237,

whereas the incident had taken place in the House No.234A, Gali

No.9, Raj Nagar-II, Palam Colony. Therefore, the whole investigation

has been carried of some other offence and not of the offence involved

in the present case. This anamoly has been explained by the

Investigating Officer in his cross-examination by deposing that house

number shown by him on the rough site plan was told to him by a

neighbour and number plate was not available at the main gate of the

house of the colony. As such, the Investigating Officer was mislead by

a neighbour regarding number of the house in which the offence had

taken place and, therefore, wrong house number was mentioned in the

rough site plan. This discrepancy is even otherwise inconsequential

inasmuch as it is not in dispute that murder had taken place in the

house belonging to Vinod Verma and dead bodies were also recovered

in their own house. That being so, mere mention of wrong house

number in the site plan by Insp. Anil Kumar is of no consequence and

does not affect the prosecution case.

49. As regards the submission that Ravinder who was the first

person to see the dead body and as such was the most material witness

and his non-examination is fatal to the prosecution, we are unable to

accept the said contention as it is not necessary that all those persons

who were present at the spot must be examined by the prosecution in

order to prove the guilt of the accused. Section 134 of the Indian

Evidence Act provides that no particular number of witnesses are

required for proof of any fact. It is trite law that it is not the number

of witnesses but it is the quality of evidence which is required to be

taken note of for ascertaining the truth of the allegations made against

the accused. In Thakaji Hiraji vs. Thakore Kubersing Chamansing

(2001) 6 SCC 145, it was observed as follows:-

"It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non- examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself --

whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses."

50. In Raj Narain Singh vs. State of U.P & Ors. 2009 (12)

SCALE 627, similar plea was taken that the prosecution did not

examine other witnesses available on the spot. Repelling the

contention, it was held that if the testimony of the witnesses who

depose during the trial are found to be reliable, trustworthy and

cogent, then the said evidence cannot be disbelieved or discarded

merely because the prosecution failed to examine other witnesses

allegedly present on the spot. Surinder Narain @ Munna Pandey vs.

State of U.P, AIR 1998 SC 192 was also a case where murder took

place while deceased was travelling in rickshaw. Non- examination

of rickshaw puller was held not to be fatal by observing that evidence

has to be weighed and not counted. In the instant case, Ravinder is

not an eye witness of the incident. He was merely asked by Vijay

Kumar (PW1) to go to the house of Vinod Verma in order to check

as to why he was not responding to his telephone calls and thereafter

he informed him that he is lying murdered in the house. That being

so, he was not an eye witness of the incident. The Investigating

Officer has explained that he did not deem it necessary to examine

Ravinder as a witness since he was not an eye witness to the incident.

No flaw can be found with this explanation given by the Investigating

Officer of the case. Under the circumstances, non-examination of

Ravinder does not cause any dent on the prosecution case.

51. Another aspect is to be taken note of. All the incriminatory

circumstances which point to the guilt of the accused had been put to

him while recording his statement u/s 313 Cr.P.C, and it was

obligatory on his part to furnish some explanation with respect to

incriminating circumstances associated with him, yet he did not give

any explanation except choosing the mode of denial. In State of

Maharashtra vs. Suresh, (2000) 1 SCC 471, it has been held that

when the attention of the accused is drawn to such circumstances that

inculpated him in the crime and he fails to offer appropriate

explanation or gives a false answer, the same can be counted as

providing a missing link for completing the chain of circumstances.

Similar was the view taken in Jagroop Singh vs. State of Punjab,

(2012) 11 SCC 768, Alagupandi @ Alagupandian vs. State of Tamil

Nadu, Munish Mubar vs. State of Haryana, (2013) 1 SCC (Cri) 52.

52. A perusal of statement of accused recorded u/s 313 Cr.P.C

reveals that it is either evasive or one of denial simplicitor. To cite a

few, despite the fact that specific questions are put to the accused that

on coming to know that accused was admitted in DDU hospital, Insp.

Anil Kumar visited hospital and found injuries on his fingers, palms,

thigh inflicted by sharp edged weapon, recovery of blood stained vest,

towel knife was effected at the instance of accused in the presence of

public witnesses Sai Purushottam Kumar, call details of his mobile

phone was obtained from M/s Tata Indicom as per which he was

present in his house at the time when the murders took place i.e from

9.26 p.m on 18.04.2008 to 12.27 in the night, instead of furnishing

any explanation, his answer was simply, "I do not know". Thus

failure on the part of accused to furnish some explanation with

respect to incriminating circumstances appearing against him also

complete the chain in the circumstances appearing against him.

53. Learned Additional Sessions Judge enumerated the following

circumstances which emerged from the evidence laid by the

prosecution:-

(i) The deceased were found brutally murdered in their own

house;

(ii) No ornaments worn by the deceased or kept in the house

had been touched, thereby ruling out the possibility of theft or

robbery;

(iii) Accused does not call either his wife or his parents from

Budha Garden. He calls his uncle PW1;

(iv) Accused tells lie to PW1 that he has met with an accident

and has suffered injuries in the road accident;

(v) The injuries found on the body of the accused were sharp

cut injuries, possibly with knife Ex.P1, which he has failed to

explain;

(vi) Accused refused to go to the hospital and insisted he be

taken home;

(vii) Accused got recovered the blood stained knife and blood

stained clothes (vest, and small towel) pursuant to his

disclosure statement;

(viii) The blood group of the blood on the vest matches with

blood group of the accused and the blood group of the blood on

the towel matches with the blood group of the deceased;

(ix) Accused has not offered any explanation how his clothes

got blood and why he had hid the knife and the clothes near the

Railway Line;

(x) The accused should have normally been at his home

when the murders took place i.e. around midnight and he even

did not offer any explanation when he has left house and why

he was away from his house at such late hours of the day;

(xi) PW27 handed over a mobile phone of make Haier HCC

200 having mobile no.9250968973 to the police vide seizure

memo Ex.PW10/A;

(xii) Accused had been talking on the aforesaid mobile

number from his mobile no. 9210359955 since the morning of

18.04.08 and continued so till the morning of 19.4.08, which

indicate that there was some kind of intimate relationship

between the two.

54. It is opined that Circumstances (iii), (iv), (v), (vi), (vii), (viii),

(ix) and (x) directly point towards the guilt of the accused that he is

involved in the murder of the deceased. Circumstance (ii) eliminates

any possibility that the murder may have been the handiwork of

thieves, dacoits etc. Circumstances (xi) and (xii) relates to the motive

for the crime. It was further observed that the death has taken place

around 12 midnight when accused is normally expected to be at his

house. Accused has failed to furnish any explanation about his

absence from his house. Rather as per the testimony of Inspector Anil

Kumar, the call detail records of the mobile phone number shows that

accused was in the area of Raj Nagar-II, Palam Colony till about 12

midnight on 18th April, 2008. The case of accused is one of denial

simplicitor and absolutely in regard to any of the incriminating

circumstance appearing against him, he has not furnished any

explanation. Under the circumstance, the overwhelming evidence

coming on record established that it is the accused alone who is the

perpetrator of the triple murders. Aforesaid findings of learned

Additional Sessions Judge, does not suffer from any perversity which

calls for interference. Having taken into consideration the totality of

the evidence and the circumstances alleged and proved, this Court has

no doubt that prosecution was able to bring home the guilt of the

accused. The prosecution eliminated the possibility of any one 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 finding of the Trial Court in the impugned judgment.

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

whether the facts of the instant case warrants the imposition of

extreme penalty of death.

56. The guiding principle which Courts have to look at, for

deciding whether to impose capital punishment in the facts of the

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.

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

452, Hon‟ble Supreme Court travelled back to Jagmohan Singh

(1973) 1 SCC 20 for indicating the legislative change. Jagmohan

Singh was decided when Code of Criminal Procedure 1898 was in

force. Section 367(5) of the old Code provided that if an accused

person is convicted of an offence punishable with death, and he is

sentenced to a punishment other than death, the Court was required to

state the reason why a sentence of death was not passed. Section

367(5) of the old Code reads as follows:

"367.(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed."

58. Bachan Singh was, however, heard and decided when the

Code of Criminal Procedure, 1973 (for short `Cr.P.C‟) had come into

force w.e.f. 01.04.1974. Cr.P.C contained Section 354(3), which

provided that for an offence punishable with death, the first option

for punishment would be imprisonment for life and the second option

would be a sentence of death. Section 354(3) Cr.P.C reads as

follows:-

"354.(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a terms of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence."

59. Cr.P.C effectively reversed the position as it existed under the

old Code and also placed a requirement that if a sentence of death is

awarded, the Court should record special reasons for awarding that

sentence.

60. Following guidelines for imposing death sentence upon a

murder convict were laid down by Hon‟ble Supreme Court in Bachan

Singh(supra):-

I. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; II. Before opting for the death penalty, the circumstances of the offender also required to be taken into consideration along with the circumstances of the crime; III. Life imprisonment is the rule and death sentence is an exception. In other words, the death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously

exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;

61. Macchi Singh vs. 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

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 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."

62. 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. 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,

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."

63. 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

of the convict should be absent (Mohandas Rajput v. State of

Maharastra , 2011 (12) SCC 56; Mohinder Singh (supra).

64. There are several decisions, which, depending on the way the

judge chooses 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; Ram Anup

Singh v. State of Bihar, AIR 2002 SC 3006, Sangeet (supra) and

Mohinder Singh (supra), 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. In Sangeet (supra), appellant was convicted

of murder of four members of a family but Court commuted the death

penalty to life imprisonment. Mahender Singh (supra) was a much

more serious case where the accused was earlier sentenced to rigorous

imprisonment for 12 years for committing rape on his daughter in

which case, his deceased wife was a witness. In retaliation, when he

was released on parole, he committed double murder of his wife and

daughter. Yet keeping in view the fact that probability of offender‟s

rehabilitation and reformation was not foreclosed, death sentence was

commuted to life imprisonment.

65. There are some precedents for example Sahdeo & Others vs.

State of U.P. AIR 2004 SC 3508, Sheikh Ishaque & Ors. vs. State of

Bihar, 1995 Crl.L.J.2682,; Aloke Nath Dutta & Ors. vs. State of

West Bengal,: (2006) Suppl(10) SCR 662 which are authorities for

the proposition that if the offence is proved by circumstantial

evidence, ordinarily, death penalty should not be awarded.

66. Discussing the nature of the content of the rarest of rare

dictum, the Supreme Court observed, that a real and abiding concern

for the dignity of human life postulates resistance to taking a life

through the instrumentality of law. That ought not to be done, save in

the rarest of rare cases, when the alternative option is unquestionably

foreclosed.

67. Imprisonment for life as a penalty entails that the accused must

remain in prison till his life i.e. would never be set free from jail.

However, the executive has the power of remission under Section 433

Cr.P.C., which is subject to the restriction imposed by Section 433-A

Cr.P.C. as per which a person sentenced to imprisonment for life or

one whose sentence of death has been commuted to imprisonment for

life cannot be released from prison unless he/she has served at least

14 years of imprisonment.

68. The alternative option considered by the Courts, is to pass a

direction that the accused, who has been held guilty would not be

released from prison, till a sentence more than 14 years imprisonment

has been suffered by the accused, who has been sentenced to undergo

imprisonment for life.

69. The option was exercised in Jayawant Dattatraysuryarao &

Ors. vs. State of Maharashtra, AIR 2002 SC 143, Swami

Shraddhanand(supra) in which case some of the earlier decisions

reported as Shri Bhagwan vs. State of Rajasthan, 2001(6) SCC 296,

Prakash Dhawal Khairnar(Patil) vs. State of Maharashtra, 2002(2)

SCC 35; Ram Anoop Singh vs. State of Bihar, 2002(6) SCC 686 and

Mohd. Munna vs. Union of India, 2005 (7) SCC 417 were noted.

However, in Sangeet(supra), it was observed that by doing so,

remission power of the appropriate government has effectively been

nullified by awarding sentence of 20 years or 25 years or in some

cases without any remission. Same is, however, 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. It was further observed that there is a misconception that a

prisoner serving life sentence has an indefeasible right to release on

completion of either 14 years or 20 years imprisonment. A convict

undergoing life imprisonment is expected to remain in custody till the

end of his life, subject to any remission granted by appropriate

government u/s 432 of the Code, which in turn, is subject to

procedural checks mentioned in the said provision and further

substantive checks in Section 433A of the Code. The view was

subsequently followed in Mahender Singh (supra) where it was held

that in order to check all arbitrary remissions, the Code itself provides

certain conditions. Sub-section(2) to (5) of Section 432 of the Code

laid down basic procedure for making an application to appropriate

government for suspension or remission of sentence either by the

convict or someone on his behalf. Exercise of power by the

appropriate government under sub-section (1) of Section 432 of the

Code cannot be taken away for the simple reason that this is only an

enabling provision and the same would be possible subject to

fulfillment of certain conditions. Those conditions are mentioned in

the jail manual or in statutory rules. Power of remission cannot be

exercised arbitrarily. In other words, the decision to grant remission

has to be well informed, reasonable and fair to all concerned. The

statutory procedure laid down in Section 432 of the Code itself

provides this check on the possible misuse of the power by the

appropriate government.

70. The factors which weighed with the learned Additional

Sessions Judge for awarding death sentence were:

 The accused was in a dominating position upon all the three deceased who were his parents and wife. His father was a handicapped old person and the other two were helpless ladies.