Rajasthan High Court - Jodhpur
State vs Atmaram on 1 April, 2022
Bench: Sandeep Mehta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Death Reference No. 1/2019
State, Through PP
----Petitioner
Versus
1. Atmaram, S/o Norang Ram B/c Lakhara, R/o Anoopshahar
PS Bhadra, Dist Hanumangarh
2. Omprakash, Anoopshahar, Hanumangarh
3. Liladhar, Anoopshahar, Hanumangarh
4. Sharwan, Anoopshahar, Hanumangarh
----Respondents
Connected With
D.B. Criminal Appeal No. 208/2019
1. Aatma Ram S/o Shri Norangram, Aged About 38 Years,
By Caste Lakhara, R/o Anoop Shahar, PS Bhadra, Dist.
Hanumangarh.
2. Omprakash S/o Shri Norangram, Aged About 27 Years, By
Caste Lakhara, R/o Anoop Shahar, PS Bhadra, Dist.
Hanumangarh.
3. Leeladhar S/o Shri Norangram, Aged About 50 Years, By
Caste Lakhara, R/o Anoop Shahar, PS Bhadra, Dist.
Hanumangarh.
4. Sharvan Kumar S/o Shri Leeladhar, Aged About 20 Years,
By Caste Lakhara, R/o Anoop Shahar, PS Bhadra, Dist.
Hanumangarh.
----Petitioners
Versus
State, Through P.P.
----Respondent
For Petitioner(s) : Mr. Moti Singh Rajpurohit
For Respondent(s) : Mr. R.R. Chhaparwal, P.P.
Mr. Suresh Kumbhat
Mr. Sheetal Kumbhat
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
(Downloaded on 01/04/2022 at 08:30:18 PM)
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Judgment
Date of pronouncement : 01/04/2022
Judgment reserved on : 23/02/2022
BY THE COURT : PER HON'BLE MEHTA, J.
D.B. Criminal Death Reference No.1/2019 has been
instituted upon being forwarded by the learned Additional Sessions
Judge, Bhadra under Section 366 CrPC for confirmation of the
death sentence awarded to the accused-respondents Aatma Ram,
Omprakash, Leeladhar and Sharvan Kumar vide judgment dated
01.06.2019 passed in Sessions Case No.14/2014, whereas D.B.
Criminal Appeal No.208/2019 has been filed by these accused
persons for assailing the above judgment, whereby the trial court
convicted and sentenced them as below :-
Name of the Offence for Sentence and fine awarded
accused- which
appellant convicted
Aatma Ram Section 302/149 Death penalty with a fine of
IPC Rs.50,000/- and in default of
Omprakash payment of fine, additional rigorous
imprisonment of 1 year
Leeladhar Section 147 IPC 2 years' simple imprisonment and a
fine of Rs.1000/- and in default of
Sharvan Kumar payment of fine, 15 days' additional
simple imprisonment
Section 148 IPC 3 years' simple imprisonment and a
fine of Rs.5000/- and in default of
payment of fine, 3 month's
additional simple imprisonment
Section 452 IPC 7 years' simple imprisonment and a
fine of Rs.10,000/- and in default of
payment of fine, 6 month's
additional simple imprisonment
Section 447 IPC 3 months' simple imprisonment and
a fine of Rs.500/- and in default of
payment of fine, 7 days' additional
simple imprisonment
Section 323/149 1 year's simple imprisonment and a
IPC fine of Rs.1000/- and in default of
payment of fine, 15 days' additional
simple imprisonment
(3 of 58) [CRLDR-1/2019]
The present one is the second round of litigation.
Earlier the trial court convicted and sentenced the accused in the
same terms by judgment dated 03.11.2017, which was challenged
by the accused appellants by filing D.B. Criminal Appeal
No.33/2018 in this court, which was allowed vide judgment dated
13.12.2018 and the matter was remanded back to the trial court
for de novo trial. A significant flaw was noticed by the court that
the statements of material prosecution witnesses had been
recorded by the trial court without securing presence of the
accused in the dock. After remand, the material witnesses, whose
statements were earlier recorded without securing presence of the
accused in the proceedings contrary to the mandate of Section
273 CrPC, were examined afresh by the trial court while
conducting 'de novo trial'. The statements of the accused were
recorded afresh under Section 313 CrPC and thereafter arguments
were heard and the trial court proceeded to pass the judgment
dated 01.06.2019 convicting and sentencing the appellant as
above.
Brief facts relevant and essential for disposal of the
reference and the appeal are noted hereinbelow.
Mr. Vikrant Sharma (P.W.12), the then SHO, Police
Station Gogamedi, claims to have recorded Parcha Bayan (Ex.P/1)
of Kailashchand S/o Bhanwar Lal, aged 16 years, resident of
Anoopshahar, Police Station Bhadra, District Hanumangarh, at the
Community Health Center, Bhadra on 13.10.2013 at 09.35 a.m.,
wherein it was alleged that family members of Kailash and the
accused party consisting of Aatma Ram, Leeladhar, Omprakash
(4 of 58) [CRLDR-1/2019]
and Pawan, sons of Naurang Ram Lakhara, Sharvan son of
Leeladhar and Rakesh son of Aatma ram were embroiled in an
ongoing land dispute. In the morning of 13.10.2013 at about
05.30-06.00 a.m., Kailash, his father Bhanwar Lal and brother
Pankaj were harvesting Gwar crop in their field. The accused
Leeladhar, Aatma Ram, Omprakash, Pawan, Shravan, Rakesh and
2-3 unknown persons armed with lathis and axes arrived there on
a tractor. Omprakash was holding an axe, whereas the other
assailants were having lathis, on some of which pointed iron heads
were fixed. Immediately on reaching the field, these assailants
launched an assault and as a result, his father and his brother
expired at the spot. The assailants assaulted Kailash and poured
some strong irritant liquid substance in his eyes, due to which, he
completely lost his vision. Thereafter, the assailants went away.
After some time, Ex-Sarpanch Chandu Ram Varma, Kan Singh son
of Sabal Singh, Illiyas son of Chiragdan and Surendra Singh S/o
Bhanwar Singh took Kailash to his house, where he was informed
that after committing the crime in the field, the assailants
launched an attack at his residence, in which his grandfather
Moman Ram and sister Chandrakala were beaten with lathis and
axes, due to which, his grandfather expired and Chandrakala got
injured. His mother Smt. Sushila locked herself inside the room;
otherwise, she too would have been killed. Chandu Ram, Kan
Singh, Illiyas and Surendra took Kailash, his sister Chandrakala
and his grandfather Moman Ram to the Bhadra Hospital. He
received injuries on his left hand, left arm and both legs and had
lost vision of both eyes because of assault made by the accused
persons. Right thumb impression of Kailash was appended on the
(5 of 58) [CRLDR-1/2019]
Parcha Bayan because his left thumb was bandaged. Mr. Vikrant
Sharma claims that this statement was recorded in the presence
of Chandu Ram Verma, who attested the same. The Parcha Bayan
was forwarded to the Police Station Bhadra with Ramkaran, FC,
where FIR No.493/2013 (Ex.P/57) came to be registered for the
offences punishable under Sections 302, 307, 452, 447, 323, 147,
148, 149 IPC. The investigation was assigned to Mr. Rampratap
(P.W.18), SHO, Police Station Bhadra. In the intervening period,
upon receiving the information of the incident, Rampratap had
already reached Anoopshahar. He inspected the field of Moman
Ram and prepared the site inspection plan memo (Ex.P/9 and
Ex.P/9-A). The dead bodies of Bhanwar Lal and Pankaj were lifted
from the spot and were sent to the CHC, Bhadra. Blood stained
soil, control soil and a black coloured polythene bag lying at the
spot were lifted and sealed. A request was made to the CHC,
Bhadra for conducting postmortem on the dead bodies of Bhanwar
Lal, Pankaj Kumar and Moman Ram. Kailash and Chandrakala
were referred to higher center for treatment and thus, they were
shifted to a hospital at Sirsa. Kailash expired on the very same
day while undergoing treatment at a private hospital in Sirsa and
accordingly, his dead body was also brought back to Bhadra for
autopsy. The medical board conducted autopsy and issued the
postmortem reports of Moman Ram (aged 75 years) (Ex.P/43),
Bhanwar Lal (aged 46 years) (Ex.P/44), Pankaj Kumar (aged 18
years) (Ex.P/45) and Kailash (aged 16 years) (Ex.P/46).
Chandrakala was medically examined and MLC (Ex.P/42) was
issued. The dead bodies were handed over to relative Yashwant
for cremation. The accused appellants were arrested and their
(6 of 58) [CRLDR-1/2019]
informations were recorded under Section 27 of the Evidence Act
and acting in furtherance thereof, the Investigating Officer claims
to have effected recoveries. The sequence of arrest, informations
and recoveries is noted hereinbelow in a consolidated chart form
for the sake of convenience and ready reference.
Sr. Name of the Arrest Details of Informati Details of Recove Details of
No. Appellant Memo Arrest on Memo Informatio ry Recovery
n Memo Memo Memo
1. Aatma Ram Ex. 13-10- Ex. P60 Pertaining Ex. P19 One
P33 2013 at to the place barchha
03:50 PM where a and one
lathi (stick) 3ft. 2inch
and lathi
barccha (stick)
were
hidden
Ex. P64 Pertaining Ex. P13 One empty
to the blue polythene
powder bag
thrown in recovered
the from
deceased's deceased
eyes and Momanra
the plastic m's farm
bag
disposed
off at the
place of
incident
Ex. P65 Parked the Ex. P18 Farm
Farm tractor
Tractor on
the farm
Ex. P15 Clothes
worn by
the
Accused at
the time of
incident
2. Shravan Ex. 13-10- Ex. P62 Pertaining Ex. P21 Blood
Kumar P31 2013 at to the place covered
04:37 PM where the lathi
lathi (stick) (stick) with
had been the length
hidden of 5ft.
8Inch
recovered
from the
place
(7 of 58) [CRLDR-1/2019]
where
Aatma
Ram had
been
arrested
Ex. P17 Clothes
worn by
the
Accused at
the time of
incident
3. Liladhar Ex. 13-10- Ex. P61 Pertaining Ex. P20 Worn
P35 2013 at to the place clothes and
05:35 PM where the lathi
lathi (stick) (stick)
had been
hidden
4. Omprakash Ex. 13-10- Ex. P63 Pertaining Ex. P22 Bamboo
P34 2013 at to the place lathi and
04:22 PM where the cloth theli
bamboo (bag)
lathi (stick)
and theli
(bag) had
been
hidden
The clothes of the deceased as well the accused were
recovered and preserved for serological examination. The
statements of material witnesses were recorded under Section
161 CrPC. The medical papers of Chandrakala and Kailash were
procured from the Aastha Multispeciality Hospital, Sirsa. After
concluding investigation, charge-sheet came to be filed against
the appellants herein for the offences punishable under Sections
302/149, 307, 452, 447, 323/149, 147, 148 IPC.
Two accused Pawan Kumar and Rakesh could not be
apprehended and are still at large and hence, the investigation is
still open to their extent.
The case was committed to the Court of Additional
Sessions Judge, Bhadra, District Hanumangarh, where charges
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were framed against the accused for the offences punishable
under Sections 147, 148, 452, 447, 302/149, 323/149 IPC, who
denied the charges and claimed trial. The prosecution examined
as many as 23 witnesses, exhibited 73 documents and 27 articles
to prove its case. The accused were questioned under Section
313 CrPC and were confronted with the prosecution allegations,
which they denied and claimed to be innocent. Four documents
were exhibited, but no oral evidence was led in defence. The trial
court convicted and sentenced the appellants to death vide
judgment dated 03.11.2017 and Reference No.2/2017 was
registered for confirmation of death sentence. The accused
preferred appeal No.33/2018 for challenging their conviction. This
court decided both the matters by judgment dated 13.12.2018,
whereby the reference was turned down and the appeal against
conviction was allowed taking note of a significant lacuna in the
procedure adopted by the trial court. The case was remanded to
the trial court for re-examination of 12 prosecution witnesses and
to pass a fresh judgment. Upon remand, de novo proceedings
were conducted and 12 witnesses were examined afresh. The
statements of the accused were again recorded under Section 313
CrPC. They denied the prosecution case and claimed to be
innocent. 5 previous statements of witnesses were exhibited in
defence. After hearing the arguments of the learned Public
Prosecutor and the defence counsel, the trial court proceeded to
convict and sentence the appellants as above vide judgment dated
01.06.2019. The reference No.2/2017 and Appeal No.33/2018
arise out of the above judgment.
(9 of 58) [CRLDR-1/2019]
At the outset, it may be noted here that counsel for the
appellant Mr. Moti Singh Rajpurohit did not dispute the factum
regarding homicidal killings of the four victims, but still for the
sake of ready reference and as the entire evidence is required to
be scrutinized at the appellate stage, we shall discuss the injuries
caused to the four deceased persons and the injured Chandrakala
while dealing with evidence of Dr. Deepak Gindoda (P.W.16).
Mr. Moti Singh Rajpurohit, Advocate, representing the
appellants, opened the arguments and made the following
submissions, craving acceptance of the appeal against conviction
and for answering the reference in negative :-
1. That the Parcha Bayan (Ex.P/1) is a fabricated/unreliable
document because :
(a) The same has been recorded in gross violation of the
procedure provided under Rule 6.22 and 6.23 of the Rajasthan
Police Rules.
(b) Mr. Vikrant Sharma (P.W.12) was not posted at the Police
Station Bhadra and was rather posted as SHO, Police Station
Gogamedi. He had no occasion to go to the Bhadra Hospital for
recording the statement of Kailash. He was not authorized by any
senior police official in this regard. The claim of the officer that he
was given an oral authorization is not supported by corroborative
evidence and is rather contradicted by the contemporaneous
Roznamcha entries.
(10 of 58) [CRLDR-1/2019]
(c) The dying declaration does not bear any endorsement of the
medical jurist regarding the injured Kailash being in a fit condition,
either physical or mental to give such statement.
(d) Mr. Vikrant Sharma (P.W.12) got the dying declaration
attested by the witness Chandu Ram (P.W.1), who admitted in his
cross-examination that he was not available besides Kailash when
Parcha Bayan was recorded. The doctors gave him a prescription
slip and he went away to purchase medicines from the medical
shop, located outside the hospital premises. He came back with
the medicines and was asked to sign the Parcha Bayan. As per
the learned defence counsel, Chandu Ram did not actually witness
the Parcha Bayan being recorded and as a consequence, the
mandatory requirement of attestation of Parcha Bayan by two
witnesses has been flouted.
(e) Kailash was inflicted injuries in the field. He was taken to the
village by Chandu Ram and a few more villagers and was
immediately shifted into a 108 ambulance. Kailash had no
information regarding the incident, which took place in the house.
Despite that, a vivid description of the incident, which took place
in the house of Moman Ram has been recorded in the Parcha
Bayan, which clearly establishes that it is a totally fabricated
document.
(f) The certificate of fitness Ex.P/71 was not filed alongwith the
charge-sheet. The certificate Ex.P/71 allegedly issued by the
doctor regarding Kailash being fit to give the statement has not
(11 of 58) [CRLDR-1/2019]
been proved in original and a carbon copy was taken on record by
the trial court by treating it to be a primary evidence, whereas the
prayer of the prosecution through application dated 15.12.2015
filed under Section 311 CrPC was to accept the carbon copy of the
document by way of secondary evidence. The prosecution had
filed the above application with specific prayers to recall Dr.
Deepak Gindoda and for proving carbon copy of the certificate
Ex.P/71 by way of secondary evidence. Dr. Deepak Gindoda
(P.W.16) admitted in his evidence that the original of the
document was available in the hospital, but neither the
prosecution, nor the court made any effort whatsoever to procure
and prove the original document and without following the
procedure established by law, the carbon copy was accepted by
way of primary evidence, whereas there is no corroborative
evidence regarding the very existence of the document. The claim
of the prosecution regarding Dr. Deepak Gindoda having issued
the fitness certificate (Ex.P/71) is totally cooked up because the
witness Ramniwas, who allegedly gave the requisition letter
(Ex.P/71) for issuance of the certificate, was not examined by the
prosecution to prove the same. Mr. Vikrant Sharma (P.W.12),
scribe of the Parcha Bayan (Ex.P/1), did not depose that he took
any such opinion from the medical jurist before recording the
statement. Chandu Ram (P.W.1) also did not state in his evidence
that any opinion was taken from the medical jurist regarding
Kailash being in a fit condition to give the statement. Dr. Deepak
Gindoda, who allegedly appended the note on Ex.P/71 regarding
Kailash being in a fit condition to give a statement, did not give
any such evidence when he was initially examined by the
(12 of 58) [CRLDR-1/2019]
prosecution and upon cross-examination by the defence, he
admitted the police did not present any application seeking
permission to record the Parcha Bayan of Kailash.
2. Mr. Rajpurohit further urged that the recoveries effected by the
Investigating Officer are totally fabricated. The weapons were
allegedly recovered from the house of Aatma Ram on 16.10.2013.
Mr. Rampratap, Investigating Officer (P.W.18), admittedly visited
and inspected the house of the accused Aatma Ram on the very
day of the incident, i.e. 13.10.2013, and thus, it cannot be
believed that the weapons, which the Investigating Officer claims
to have recovered at the instance of the accused would have gone
unnoticed. In this regard, he drew the court's attention to the
evidence of Chandu Ram (P.W.1), the attesting witness of the
seizure memos, who admitted in his cross-examination that he
was made to sign all the documents at the police station between
13th and 15th October, 2013. Reference in this regard was also
made to the statement of Surendra Singh (P.W.3), the other
attesting witness of the seizure memos, who admitted in his
cross-examination that on 13.10.2013, Mr. Rampratap, CI, went to
the house of Aatma Ram in the evening at 05.00 p.m.. At that
time, the witness was standing there. The CI was accompanied by
4 to 5 police officers, who went inside the house and brought out
lathis, Barcha, axe and blood stained clothes and seized them and
got him to sign the memorandums. It was argued that the
recoveries are dubious because admittedly the articles were seized
within a day or two of the incident and then were shown to have
(13 of 58) [CRLDR-1/2019]
been recovered on 16.10.2013 by planting the same on the
accused persons.
3. It was also contended that the FSL report cannot be read in
evidence because the prosecution did not give convincing evidence
regarding safekeeping of the Mudda Maal articles. The weapons
and other blood stained articles were forwarded to the FSL on
29.10.2015, i.e. after more than two years of the incident.
Drawing the court's attention to the statement of Gopal Singh
Dhaka (P.W.21), Mr. Moti Singh urged that the witness admitted in
his cross-examination that these articles had been sent to the FSL
about 10-15 months earlier. However, no corresponding evidence
was given by the prosecution to explain the fate of these articles
when they were sent to the FSL earlier. Mr. Moti Singh thus urged
that the link evidence is breached and hence, FSL report cannot
be read in evidence.
4. His fervent submission was that even if the prosecution case is
to be believed as true on the face of the record, conviction of the
accused appellants for the offence under Section 302 read with
Section 149 IPC is totally unjustified because only four persons
have been charge-sheeted in this case and thus, an unlawful
assembly within the meaning of Section 143 of the IPC was not
formed and consequently, conviction of the accused appellants
with the aid of Section 149 IPC is totally unwarranted and they
deserve to be acquitted.
(14 of 58) [CRLDR-1/2019]
5. He further contended that once the Parcha Bayan (Ex.P/1) is
discarded, apparently, the entire prosecution case becomes
doubtful. The statement of Chandrakala (P.W.2) is not reliable.
She also made gross improvements in her evidence in order to
corroborate the Parcha Bayan of Kailash and as such, her
testimony also deserves to be discarded. Once, the Parcha Bayan
is excluded from consideration and the statement of Chandrakala
is held to be doubtful, there remains no evidence whatsoever on
the record of the case so as to connect the appellants with the
alleged crime and hence, their conviction is unsustainable.
6. On the aspect of confirmation of death sentence awarded to
the appellants, Mr. Moti Singh vehemently and fervently
contended that the case at hand does not fall within the category
of "rarest of the rare cases" so as to justify the capital punishment
awarded to the accused by the trial court. The trial court did not
summon any report regarding conduct of the accused in prison
which is mandatory, as per the law laid down by the Hon'ble
Supreme Court in various judgments dealing with the concept of
capital punishment. The accused appellants have remained in
custody for the last more than nine years without there being any
adverse report regarding their behaviour in prison. All adult male
members of the family are incarcerated in prison for almost ten
years and consequently, the ladies and young children of the
family have been left to fend for themselves in a state of abject
poverty. They were compelled to abandon their homes after the
(15 of 58) [CRLDR-1/2019]
incident and are struggling to survive by doing labour jobs. He
fervently urged that even if conviction of the accused appellants is
affirmed, it is not a fit case warranting award of death sentence.
On the above grounds and submissions, the learned
defence counsel implored the court to accept the appeal, set aside
conviction of the appellants and to reject the reference.
Per contra, Learned Public Prosecutor and Mr. Suresh
Kumbhat, learned counsel representing the complainant,
vehemently and fervently opposed the submissions advanced by
the appellant's counsel and supported the impugned judgment to
the hilt. They urged that the first informant Kailash was a young
boy of about 16 years of age. He himself, his father and brother
were brutally assaulted by the accused persons in the field. There
was no reason as to why the child would give a false statement for
implicating the accused persons when he was himself in a critical
condition. Law is well settled by a catena of judicial
pronouncements that a dying person does not tell a lie and hence,
the trial court was absolutely justified in placing reliance on the
Parcha Bayan (Ex.P/1) and treating it to be a dying declaration
within the meaning of Section 32 of the Evidence Act. The
investigation of the case was hampered and delayed because two
accused persons namely, Rakesh and Pawan, were absconding and
the Investigating Officer by sheer oversight, could not collect the
original fitness certificate corresponding to the carbon copy
Ex.P/71 and hence, the same was not presented alongwith the
charge-sheet. However, while the trial was proceeding, the
learned public prosecutor was informed that the Parcha Bayan had
(16 of 58) [CRLDR-1/2019]
been recorded after procuring a certificate of fitness from the
doctor concerned and immediately thereupon, a carbon copy of
the certificate (Ex.P./71), which was available in the case diary,
was filed on record with an application under Section 311 of the
CrPC with two fold prayers:-
(1) To recall Dr. Deepak Gindoda, who had issued the certificate of
fitness, appended with the application Ex.P./71 submitted by
Ramniwas, Sub-Inspector; and
(2) To bring the document on record.
The trial court accepted the said application.
The statement of the Investigating Officer Rampratap
(P.W.18) was recorded in the first round of proceedings of trial on
20.06.2016 and the document Ex.P/71 was presented and was
proved during his evidence without any objection being raised by
the defence to question the admissibility thereof.
Dr. Deepak Gindoda (P.W.16) was recalled to give
additional evidence by order dated 23.06.2016. His
supplementary statement was recorded afresh on 12.07.2016 and
during the course of his testimony, carbon copy of the document
(Ex.P/71) with endorsement of Dr. Deepak Gindoda, was fortified
by the witness without any objection being raised by the defence.
The objection regarding admissibility of this document Ex.P/71
was raised for the first time during the de novo proceedings, when
the Investigating Officer Mr. Rampratap (P.W.18) was examined on
(17 of 58) [CRLDR-1/2019]
05.02.2019. The trial court permitted marking of exhibit on the
document Ex.P/71, which was a carbon copy and rightly treated it
to be primary evidence in light of Explanation (2) of Section 62 of
the Evidence Act. They urged that graphic description was given
by Kailash in the Parcha Bayan Ex.P/1 regarding the brutal assault
made by the appellants and the absconding accused persons. Four
innocent lives were extinguished by the accused persons who
acted with rank perversion and extreme cruelty. Three members
of the family were brutally assaulted in the field and some
corrossive substance was poured in the eyes of Kailash after
assaulting him. All four male members of the family who were
aged between 16 and 75 years, were eliminated. Consorted effort
was made by the heavily armed members of the unlawful
assembly to completely obliterate the family by assaulting
Chandrakala and Smt. Sushila as well, but they somehow survived
the attack, which was fuelled with the motive/enmity arising from
a land dispute. The evidence of Chandrakala establishes the fact
that the accused persons came to the village after assaulting the
victims in the agricultural field and were hurling exhortations that
those in the field had been eliminated and Moman Ram and the
female members would also be killed.
Learned Public Prosecutor and the learned counsel
representing the complainant urged that this declaration made by
the accused persons in presence of Chandrakala amounts to an
extra-judicial confession and is a relevant fact which proves
conduct of the accused as provided by Section 6 of the Evidence
Act. They further urged that the learned defence counsel has cast
(18 of 58) [CRLDR-1/2019]
no aspersion whatsoever on the evidence of Chandrakala except
on the aspect of alleged improvement regarding the Parcha Bayan
(Ex.P/1). Her testimony regarding exhortations hurled by the
accused and the declaration that they had killed Bhanwarlal,
Pankaj and Kailash in the agricultural field as well as the assault
made on the witness herself and Moman Ram was not
controverted by putting any significant questions during cross-
examination and hence, this part of her testimony remains
unchallenged. They further urged that the contention of Mr. Moti
Singh, learned counsel representing the appellants, that conviction
of the accused appellants could not be recorded with the aid of
Section 149 IPC, is totally frivolous because it is an admitted
position that two accused are still absconding and hence, total
number of assailants, is more than five and as a consequence,
Section 149 IPC is clearly applicable to the case at hand. They
urged that the conviction of the appellants as recorded by the trial
court is based on thorough and apropos appreciation of evidence
as available on record. The impugned judgment does not suffer
from any infirmity whatsoever. The whole incident was
perpetrated with extreme cruelty. Four innocent persons were
hacked and clubbed to death and a young woman was brutally
beaten. Hence, the case is covered under the rarest of rare
category and as a consequence, the sentence of death awarded to
the accused by the trial court deserves to be affirmed. On these
submissions, they implored the Court to dismiss the appeal and
confirm the death sentence awarded to the accused appellants.
(19 of 58) [CRLDR-1/2019]
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material
available on record and have carefully re-appreciated the evidence
available on record.
Now we shall discuss and analyze the evidence in light
of the submissions advanced at bar.
A. The appellant's counsel did not make any argument
whatsoever regarding the evidence of the Medical Jurist, who
proved the injury reports of Ms. Chandrakala and Kailash and the
postmortem reports of the four deceased persons. However, as
entire evidence is required to be appreciated at the appellate
stage, gist of injuries noted by the Medical Jurist Dr. Deepak
Gindoda in the injury reports (Ex.P/41 and Ex.P/42) and the
postmortem reports (Ex.P/43, Ex.P/44, Ex.P/45 and Ex.P/46) is
summarized hereinbelow:-
INJURY REPORTS :
Injury Report of Kailash: dated 13-10-2013: Ex. P/41
Sr. Type of Dimensions of Wound On what body What type of
No. Injury/Wound part the injury weapon caused
had been caused the said injury
1. Lacerated Wound with 4cm x 2cm x 0.5cm Middle 1/3 of Blunt
visual Deformity Right Leg
(anterior aspect)
2. Lacerated Wound 3cm x 1.5cm x 0.5cm Middle 1/3 of Blunt
Left Leg (anterior
aspect)
3. Bruise 6cm x 2cm Lateral aspect of Blunt
upper 1/3 Left
Arm
4. Abrasion and Mild 3cm x 0.6cm Present between Blunt
Swelling index finger and
thumb at dorsal
aspect of left
hand
5. C/o swelling at right Right Arm, no external injury seen Blunt
6. Lacerated wound and 3cm x 2cm x 0.5cm Dorsal aspect of Blunt
(20 of 58) [CRLDR-1/2019]
mild swelling great toe of left
foot
7. Bruise and Mild 4.5cm x 3cm Left Temporal Blunt
Swelling area of head
8. Bluish Conjunctiva and opaque cornea associated and bluish Chemical (Bluish
discoloration area of eye and bluish substance seen orbital and Color)
periorbital area and also impair vision in B/L eye
Injury Report of Chandrakala: dated 13-10-2013: Ex. P/42
Sr. Type of Dimensions of Wound On what body What type of
No. Injury/Wound part the injury weapon caused
had been caused the said injury
1. Lacerated Wound with 3cm x 1cm x 2.5cm Left Frontal Area Blunt
visual Deformity of forehead
2. C/o pain over the No external injury seen Blunt
abdomen
3. C/o pain at Left elbow No external injury seen Blunt
joint
4. Abrasion and Mild 3cm x 0.6cm Present between Blunt
Swelling index finger and
thumb at dorsal
aspect of left
hand
POST-MORTEM REPORTS:
1) MOMANRAM:
Date & Time: 13-10-2013 at 12:45 PM
Age: 75 yrs
Injuries :-
(1) lacerated wound 8cm x 2cm x deep bone seen at left
parietal area of head associated and underlying fracture of
left parietal bone, also a subdural haematoma 4cm x 1.5cm
and 5mm partial thickness seen in left parietal area.
(2) Lacerated wound 10cm x 2cm x deep bone at right
parietal area associated and underlying fracture of right
parietal bone, on dissection a subdural haematoma 4.3cm x
2cm and 7mm partial thickness seen in right parietal area.
(21 of 58) [CRLDR-1/2019]
(3) Lacerated wound 3cm x 1.5cm x deep bone at left left
occipital area of Head associated and underlying fracture of
left occipital bone.
(4) Abrasion 3cm x 1cm seen at root of nose
(5) lacerated wound 3cm x 1cm x 0.5cm dorasal aspect of
right hand
(6) Bruise 5cm x 3cm seen posterior lateral aspect of right
arm seen
(7) lacerated wound four in number (2cm x 1 cm x deep
bone, 5cm x 1.5 cm x deep bone, 2 cm x 1.5 cm x deep
bone)seen anterior aspect of right leg associated and
crushing at all muscles and dried clotted blood and
underlying fractures of both legs right bone seen
(8) lacerated wound 2cm x 1cm x deep bone associated and
crushing of muscles and dried clotted blood and underlying
fracture of left fibula bone
(9) Visual deformity of left foot, on dissection fracture of 2 nd
and 3rd bone of left foot.
(10) Abrasion of 3cm x 1cm posterior aspect of left forearm
All injuries were determined to be antemortem in nature.
Opinion of the Board:
"from the above mentioned finding Medical Board have
opinion that cause of death is shock and haemorrhage due
to multiple injuries to body including vital organ brain. All
injuries and antemortem in nature."
2) BHANWARLAL:
Date and Time: 13-10-2013 at 01:40 PM
Age: 46 yrs
Injuries:-
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(1) lacerated wound 6cm x 4cm x deep bone at left occipital
area of head and fracture of left occipital bone underlying a
subdural haematoma 3.5cm x 2.5cm and partial thickness
seen.
(2) Lacerated wound 8cm x 4cm x deep bone at left parietal
area of head and fracture of left parietal bone underlying a
subdural haematoma 5cm x 3cm and 7mm partial thickness
seen.
(3) Lacerated wound 3cm x 2cm x 0.5cm at apex of head.
(4) Bruise 6cm x 4cm seen on right shoulder.
(5) Lacerated wound 2.5cm x 1.5cm x 0.5 cm seen between
index finger and thumb at dorsal aspect of left hand.
(6) Lacerated wound 3cm x 2cm x deep bone associated
and crushing of muscles and dried clotted blood and fracture
of lower 1/3rd of Ulna and radius both bone of left forearm.
(7) Lacerated wound 3cm x 2cm x deep bone seen at lateral
aspect of right arm and dried clotted blood and fracture of
humerus bone of right arm upper 1/3rd.
(8) Lacerated wound three in number- 2cm x 1cm x deep
bone, 2.5cm x 1.5cm x deep bone, 3cm x 2cm x deep bone
seen anterior aspect of right leg and fracture of tibia and
fibula both bone of right leg.
(9) Lacerated wound six in number approximately 2.5cm x
1.5cm x deep bone (all) seen at anterior aspect of left leg
and dried clotted blood and crushing of muscles and fracture
of tibia bone of left leg.
(10) Abrasion 3cm x 1cm seen at left side of chest.
(11) Abrasion 3cm x 1.5cm seen at middle of forehead
seen.
(12) Bruise three in number (5cm x 4cm, 4cm x 3cm, 6cm x
3cm) seen at upper and middle back region.
(13) Abrasion 3cm x 2cm lateral aspect of left thigh.
All injuries were determined to be antemortem in nature.
(23 of 58) [CRLDR-1/2019]
Opinion of the Board:
"From the above mentioned finding, medical board have
opinion that the cause of death is shock and haemorrhage
due to multiple injuries to body including vital organ, brain.
All injuries are antemortem in nature."
3) PANKAJKUMAR:
Date and Time: 13-10-2013 at 01:40 PM
Age: 18 yrs
Injuries:-
(1) Lacerated wound 6cm x 4cm x deep bone at left occipital
area of head and fracture of left occipital bone. Underlying a
subdural haematoma 3cm x 2.5cm and partial thickness
5mm seen.
(2) Abrasion 3cm x 1cm at posterior aspect of right forearm
and obvious deformity, on dissection both bone fracture of
right forearm.
(3) Lacerated wound two: 3cm x 1.5cm x deep bone, 4cm x
2cm x deep bone and crushing of muscles and fracture of
both bone of left forearm.
(4) Lacerated wound 3cm x 2cm x deep bone at lower 1/3rd
of left arm of crushing of muscles and fracture of left
humerus bone.
(5) Lacerated wound four in number: 3cm x 1.5cm x deep
bone, 3.5cm x 2cm x deep bone, 3.5cm x 1.5cm x deep
bone, 4cm x 2cm x deep bone seen anterior aspect of right
leg and crushing of muscles and dried clotted blood and
fracture of of both bone of right leg.
(6) Lacerated wound three in number: 2cm x 1.5cm x deep
bone, 3cm x 1.5cm x 1.5cm x deep bone, 4cm x 2cm x deep
bone seen at anterior aspect of left leg and crushed at
muscles and dried clotted blood and fracture of tibia at left
leg.
(24 of 58) [CRLDR-1/2019]
All injuries were determined to be antemortem in nature.
Opinion of the Board:
"From the above mentioned finding, medical board have
opinion that the cause of death is shock and haemorrhage
due to multiple injuries to body including vital organ, brain.
All injuries are antemortem in nature."
4) KAILASH:
Date and Time: 14-10-2013 at 09:30 AM
Age: 16 yrs
Injuries:-
(1) Bruise:- 4.5cm x 3.0cm over left temporal region of the
head. On dissection 4cm x 3.0cm parietal thickness subdural
haematoma present.
(2) Lacerated wound- 4cm x 2cm x 0.5cm over middle 1/3
of right leg with fracture of both leg bones with crushed
muscle.
(3) Lacerated wound- 3cm x 1.5cm x 0.5cm- middle 1/3 of
left leg, anterior aspect with crushing of muscle.
(4) Bruise- 6cm x 2cm- left arm- upper 1/3 and over lateral
aspect
(5) Lacerated wound- 3cm x 2cm x 0.5cm over left foot-
dorsal aspect of right toe.
(6) Abrasion- 3cm x 0.5cm between index finger and
thumb- dorsal aspect of left hand.
(7) All injuries were determined to be antemortem in
nature.
Opinion of the Board:
"From the above mentioned finding, medical board have
opinion that the cause of death is Haemorrhagic shock due to
multiple injuries to body, including vital organ, Brain. All the
injuries are antemortem in nature. However viscera are
(25 of 58) [CRLDR-1/2019]
taken for FSL examination and handed over to accompanying
police person of PS Bhadra."
A perusal of the above injuries, clearly establishes the
fact that the death of the victims was homicidal in nature and that
the accused causing such injuries were definitely having
knowledge that it may lead to death of the victims.
B. The first and foremost argument of the appellant's counsel to
challenge the impugned judgment was regarding the
admissibility/reliability of the Parcha Bayan (Ex.P/1). It is
manifest that the offence was committed in the Anoopshahar town
which falls in the jurisdiction of Police Station Bhadra. Mr. Vikrant
Sharma (P.W.12), who recorded the Parcha Bayan (Ex.P/1), was
admittedly posted as SHO Police Station, Gogamedi on the date of
incident. The prosecution has led no tangible evidence
whatsoever to satisfy the Court that Mr. Vikrant Sharma had been
authorized for recording the Parcha Bayan even though the
offence did not take place within jurisdiction of the Police Station,
where the officer was posted. This fact assumes significance
because admittedly, Mr. Rampratap (P.W.18), SHO, Police Station
Bhadra had already received information regarding the incident
and had reached the crime scene well before the Parcha Bayan
came to be recorded. Learned Public Prosecutor tried to offer a
semblance of an explanation for this discrepancy arguing that the
incident was very gruesome in nature and thus, the
Superintendent of Police, Hanumangarh, directed Mr. Rampratap
to be at the crime scene whereas, Mr. Vikrant Sharma was sent to
(26 of 58) [CRLDR-1/2019]
the hospital for taking stock of the injured persons who had been
brought there.
However, a perusal of the statements of Mr. Vikrant
Sharma (P.W.12) and Mr. Rampratap (P.W.18), makes it clear that
neither of them gave any satisfactory evidence to satisfy the court
that Vikrant Sharma had been authorized to go to the hospital for
tending to the victims of this case. Rather, Mr. Rampratap, SHO
Police Station, Bhadra, did not utter a single word in his
examination-in-chief as to why, he himself did not proceed to the
hospital or authorize any police officer posted at Bhadra to go
there for finding out the condition of the persons who had been
taken there. On the contrary, the Roznamcha Entry, (Ex.P/72),
does give an indication that Mr. Ramniwas, ASI and foot
constables Mr. Ramkaran, Mr. Amarchand and Mr. Surajbhan, had
been sent to the Government Hospital, Bhadra. However, none of
these police officials were examined by the prosecution during the
course of trial. Therefore, not a single Police Officer posted at the
Police Station, Bhadra where the incident took place, was
examined by the prosecution to prove the events which unfolded
at the Government Hospital, Bhadra after the victims Kailash and
Chandrakala were brought there.
The Parcha Bayan (Ex.P/1) does not bear any
endorsement of the Medical Jurist regarding the fitness (mental
and physical) of Mr. Kailash to give such statement. Mr. Vikrant
Sharma (P.W.12) neither made any such endorsement nor did he
record any satisfaction on the document regarding the victim
Kailash being in a fit condition to give such a lengthy statement.
(27 of 58) [CRLDR-1/2019]
The Prosecution tried to make up for this serious lacuna by filing
an application dated 15.12.2015, wherein, it was claimed that Mr.
Vikrant Sharma had as a matter of fact, taken a certificate from
the Medical Jurist regarding Kailash being in a fit condition to give
the statement. However, this document which was proved as
Ex.P/71 and admissibility whereof was seriously questioned by the
learned defence counsel, was not proved by Mr. Vikrant Sharma
during his evidence. Rather, Mr. Vikrant Sharma did not even
utter a single word in his sworn testimony that he had given any
requisition seeking opinion of the medical jurist for the fitness of
the injured to give a statement. When cross-examined, Mr. Vikrant
Sharma candidly admitted that he did not record presence of the
doctors in the Parcha Bayan because, they were busy providing
treatment to the injured. He did not make any application to the
Magistrate to record the statement. He requested Kailash to sign
the document but he could not do so and thus, his thumb
impression were appended thereupon.
The requisition Ex.P/71, (carbon copy which was proved
by the prosecution), was purportedly presented to the Medical
Jurist by Mr. Ramniwas, who was posted as an ASI at the Police
Station, Bhadra. However, the endorsement where Mr. Ramniwas,
ASI, signed the application is of SHO Police Station, Bhadra. If
this seal is ignored, the prosecution has given no explanation
whatsoever as to why Mr. Ramniwas, ASI himself was not
examined to prove the document Ex.P/71. The Medical Jurist, Dr.
Deepak Gindoda, (P.W.16), admitted in his statement that the
police neither recorded the Parcha Bayan of Kailash in his
(28 of 58) [CRLDR-1/2019]
presence, nor was he asked to endorse the same after it had been
recorded.
Mr. Rampratap, (P.W.18), exhibited a carbon copy of the
document Ex.P/71 claiming that this copy had been handed over
to him by Mr. Vikrant Sharma. However, as has been stated
above, Mr. Vikrant Sharma, did not utter a single word regarding
the document Ex.P/71. Mr. Rampratap also tried to offer an
explanation that the carbon copy could not be filed alongwith the
charge-sheet because of inadvertence and that the original was
lying at the hospital. However, it is a matter of utter surprise that
neither the prosecution nor the court made an effort by exercising
powers under Section 91 CrPC read with Section 165 of the
Evidence Act to procure the original document from the
Government Hospital concerned. The application dated
15.12.2015, which was filed by the prosecution under Section 311
Cr.P.C. to recall Dr. Deepak Gindoda in evidence for proving fitness
certificate (Ex.P/71A), contained a prayer to lead secondary
evidence of the document. However, the trial court straight off
allowed marking of exhibit on the document when Mr. Rampratap
(P.W.18) was examined in evidence on 20.06.2016 in the first
round of proceedings. It is true that at that stage, the defence
counsel did not raise any objection against the marking of exhibit
on the document. However, this is a legal objection and could be
taken at any stage. This objection was raised when Mr.
Rampratap was examined on oath in the de novo trial on
05.02.2019 post remand by this Court. Prima facie, we are
satisfied with the reasoning given by the trial court in the note
(29 of 58) [CRLDR-1/2019]
dated 05.02.2019 appended in the statement of Mr. Rampratap
that the document Ex.P/71 being a carbon copy prepared in the
same uniform mechanical process qualifies to be considered as
primary evidence as per Section 62 Explanation (2) of the
Evidence Act. However, this conclusion would not for a moment
dilute the substantial arguments advanced by the defence counsel
to impeach the very credibility of the document.
Now, we proceed to discuss this important aspect of the
case. Mr. Vikrant Sharma (P.W.12), claims to have got the Parcha
Bayan (Ex.P/1), attested from Chandu Ram Verma (P.W.1), who
upon being examined on oath, clearly stated that he was not
present besides Kailash when the police officials recorded his
statement. Chandu Ram claimed that he was informed of the
incident by Daata Ram (P.W.8), who told him that Aatma Ram,
Leeladhar, Om Prakash, Pawan, Rakesh and Shrawan were the
assailants. However, Daata Ram (P.W.8) stated in his evidence
that he actually saw the assault made on Moman Ram and
Chandrakala in the residential premises. When Chandu Ram
reached the house of the victims, Chandrakala told him that six
accused persons had come there and assaulted Moman Ram and
herself and had also hurled an insinuation that they had killed her
father and two brothers in the agricultural field. Thereupon,
Chandu Ram alongwith Kan Singh, Illiyas and Surendra took the
Max vehicle of Chandu Khan and went to the field, where they saw
Bhanwarlal and Pankaj lying dead whereas, Kailash was badly
injured and was writhing in pain. Something had been put in his
eyes because of which, they had turned blue. They picked up
(30 of 58) [CRLDR-1/2019]
Kailash and put him into the vehicle and brought him to the
village. 108 Ambulance had reached there alongwith the police
vehicles. Kailash and Moman Ram were boarded onto the 108
ambulance and were sent to Bhadra Hospital. Chandrakala was
taken to the hospital for treatment in a separate vehicle. The
witness stated in his examination-in-chief that the police recorded
the statement of Kailash. At that time, he was present besides
the victim for some duration and was also going out for bringing
the medicines, etc. Shri Chandu Ram recollected as to what had
been narrated by Kailash in the Parcha Bayan (Ex.P/1). When the
witness was cross-examined, he admitted that Chandrakala and
her mother did not come near the ambulance on which Kailash
had been boarded. Kailash was speaking slowly and would black
out periodically. When the police started recording the statement
of Kailash, doctor gave him a prescription slip and he went out to
purchase the medicines. When he came back with the medicines,
he was asked to attest the Parcha Bayan. Apparently, thus, the
witness was not present besides Kailash when the statement
Ex.P/1 was recorded and hence, attestation of the statement by
Mr. Chandu Ram becomes doubtful.
Chandrakala was examined as (P.W.2). She tried to
make an improvement in her examination-in-chief, claiming that
Kailash gave a statement to the police wherein, he narrated the
entire incident. However, the witness was confronted with her
previous police statement Ex.D/1, wherein there is no such
disclosure that Kailash gave any such statement in her presence.
Otherwise also, if the prosecution case is to be believed, then as
(31 of 58) [CRLDR-1/2019]
per the fitness certificate Ex.P/71, a clear opinion had been given
by the Medical Jurist that Chandrakala was not fit to give a
statement. Hence, possibility of Chandrakala having overheard
and recollected the Parcha Bayan of Kailash is negligible. She
admitted that when she reached the hospital, bandages had been
applied to Kailash. He was conscious when she reached the
hospital. The police officers asked her whether she was in a
position to give the statement on which, she refused, saying that
she was deeply perturbed. Kailash told her that their father and
brother had expired.
Mr. Surendra Singh, (P.W.3), admitted in his cross-
examination that while he was present with Kailash, the boy did
not say anything to his mother or sister Chandrakala. Kailash had
been boarded on to the 108 Ambulance for being sent to the
hospital and he was not aware regarding the death of Bhanwarlal
and Pankaj.
In addition thereto, there are inherent improbabilities
which make the statement (Ex.P/1) doubtful.
Admittedly, thus, Chandrakala did not talk to Kailash
before the statement Ex.P/1 had been recorded. Therefore,
Kailash could not have had a faintest idea regarding the acts of
violence, which the accused indulged into at the residence.
It is noted in the Parcha Bayan (Ex.P/1) of Kailash that
his father and brothers were brutally assaulted by the assailants,
whereafter he was beaten up and some corrosive substance was
put into his eyes, whereby he lost his vision. In these
circumstances, Kailash could not have had the faintest idea
(32 of 58) [CRLDR-1/2019]
regarding fate of his father and his brother. Surendra Singh
(P.W.3) categorically stated that Kailash was not made aware of
the fact that his father and brother had expired in the incident.
Thus, when the Parcha Bayan (Ex.P/1) was being recorded,
Kailash was unquestionably not aware of the fate which had
befallen his father and brother. Hence, introduction of the fact that
these two persons had expired and the minute details of the
incident, which took place in the residence, in the Parcha Bayan,
without the victim having any idea about the same makes it clear
that the Parcha Bayan was not faithfully recorded and extraneous
facts were introduced therein from other sources, which make the
veracity of the statement doubtful. The defence has come out
with a case that Yashwant (P.W.6), being the grandson of the
deceased Moman Ram, is a Police Constable and the Parcha Bayan
might have been manipulated at his instance. There is merit in
this contention of the defence counsel because unquestionably
there are many suspicious circumstances, as discussed supra, in
the Parcha Bayan, which cast a doubt on its creditworthiness.
There are apparent lacunae in the statement Ex.P/1
which was not recorded in compliance of Rule 6.22 of the Police
Rules, which reads as below:
"6.22 Dying declarations. - (1) A dying declaration
shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible,
be examined by a medical officer with a view to
ascertaining that he is sufficiently in possession of his
reason to make a lucid statement.
(33 of 58) [CRLDR-1/2019]
(3) If no magistrate can be obtained, the declaration
shall, when a gazetted police officer is not present, be
recorded, it shall be recorded in the presence of two or
more reliable witnesses unconnected with the police
department and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of
the injured person dying before his statement can be
recorded, it shall be recorded in the presence of two or
more police officers.
(5) A dying declaration made to a police officer should,
under section 162, Code of Criminal Procedure, be
signed by the person making it."
Thus, the Parcha Byana (Ex.P/1) deserves to be
discarded and the findings recorded by the trial court in the
impugned judgment affirming its veracity are unsustainable.
With the exclusion of the Parcha Bayan (Ex.P/1), there
remains no direct evidence on the record regarding the incident,
which took place in the field. However, despite discarding a very
important part of the prosecution case, significant direct as well as
circumstantial evidence is available on the record, which
conclusively establishes involvement of the accused in both parts
of the incident. In this regard, we would like to refer to the
evidence of Chandrakala (P.W.2). Presence of Chandrakala at the
residence, where second part of the incident took place, was not
very seriously disputed by the learned defence counsel. We have
carefully perused the statement of injured witness Chandrakala
(P.W.2). She narrated the sequence of events, which unfolded in
(34 of 58) [CRLDR-1/2019]
her presence and the assault, which was made on herself as well
as her grandfather in the following manner :-
"eq[; ijh{kk %& ?kVuk ds le; rhu pkj lky ls eSa vius ihgj
vuwi"kgj esa jg jgh FkhA vc eSa esjs llqjky jksy ftyk ukxkSj esa jgrh
gwaA djhc vkt ls lok ikap lky igys fnukad 13-10-13 dh ckr gS
lqcg djhc lk<s ikap Ng cts ds yxHkx esjs ikik Hkaojyky o esjs nks
HkkbZ iadt o dSyk"k gekjs vkFkw.ks [ksr esa xokj dkVus ds fy, x;s gq,
FksA ?kj ij esjs nknk ekseujke] esjh eka o eSa FkhA esjh eka [kkuk cuk jgh
FkhA eSa iMksl ls NkN ykus xbZ Fkh rc le; djhc lkr cts chp jkLrs
[ksrksa dh vksj ls VSDVj ij vkRekjke] yhyk/kj] iou dqekj o
vkseizdk"k tks uksjaxjke ds yM+ds Fks o ,d Jo.k iq= yhyk/kj o
jkds"k iq= vkRekjke Fks ftuds diMs [kwu ls Hkjs gq, FksA bUgksus esjs dks
ns[krs gh dgk fd rsjs ikik Hkaojyky o HkkbZ iadt o dSyk"k dks rks
ge [ksr esa ekj dj [kRe dj vk;s gS vc rsjh o eksefu;k dh ckjh gS
vkSj ;s mrjdj esjs ihNs nkSMs vkSj ftuds gkFkksa esa ykBh dqYgkMh o
tSyh Fkh fQj eSa ogka ls nkSM+dj ?kj vkbZ o ?kj vkdj eSaus xsV can
fd;k vkSj eSa esjh eka ds ikl Hkkx dj xbZ rks esjh eka us iwNk fd ,sls
dSls vkbZ rks eSaus dgk fd vkRekjke] yhyk/kj] iou dqekj o
vkseizdk"k] Jo.k o jkds"k Ng tus ihNs vk jgs gS tks rsjs dks ekjsaxs
fQj eSaus esjh eka dks dejs esa can dj fn;kA esjs nknkth ckgj cSBd ds
dejs esa cSBs Fks ftlds nks xsV Fks rFkk ckgj ds xsV dks can dj fn;k
rFkk vkRekjke oxSjg us /kDdk eqDdh dj ckgj dk xsV [kksy fy;k vkSj
fQj vkRekjke oxSjg us esjs nknk dks cqjh rjg ls ykBh dqYgkMh o
tSyh ls ekjihV fd;kA iou dqekj us esjs nknk ds flj esa ykBh dh
ekjh] eSaus chp cpko fd;k rks esjs Hkh bUgksaus dkQh pksVs ekjh tks esjs
flj esa] ihNs dh rjQ o gkFkksa] iSjksa o isV ij yxhA bl ?kVuk dks ml
le; /keZiky ftyksbZ;k us ns[kk tks Mjdj ogka ls pyk x;kA fQj esjs
nknk dejs esa Q"kZ ij fxj x;sA Q"kZ ij o nhokjksa ij o Nr ds [kwu
yxk gqvk FkkA ia[ksa dh rkfM;ka VwV xbZA fQj vkRekjke oxSjg Ngksa
eqyfteku vanj vkaxu esa dejs dh rjQ esjh eka dh rjQ Hkkxdj vk;s
vkSj esjh eka dks dgk fd jaMh fdokM [kksy rq>s Hkh ekjsaxs bl ij esjh
eka us fdokM ugh [kksysA blds ckn xkao ds vkneh vk x;s rc
vkRekjke oxSjg Hkkx x;sA gekjs xkao ds pUnwjke] lqjsUnzflag] dkuflag
(35 of 58) [CRLDR-1/2019]
o bfy;kl vk x;sA eSaus budks lkjh ?kVuk crkbZ o eSaus budks crk;k
fd [ksr esa ;s esjs ikik o HkkbZ;ksa dks ekj dj vk;s gS vkSj mUgsa [ksr esa
esjs ikik o HkkbZ;ksa dks tkdj laHkkyus dks dgkA bl ij pUnwjke o
lqjsUnzflag eSDl xkMh ysdj gekjs [ksr esa x;s vkSj gekjs [ksr ls esjs
HkkbZ dSyk"k dks ysdj ?kj vk;s rc dSyk"k cqjh rjg ls ?kk;y Fkk rFkk
esjs HkkbZ dSyk"k ds txg txg pksVs yxh gqbZ Fkh o gkFk iSj cqjh rjg
ls rksM j[ks Fks o mldh vka[kksa esa uhyk uhyk dqN Mkyk gqvk FkkA fQj
ml le; iqfyl o 108 dh xkfM;k ogka vk xbZA fQj esjs HkkbZ dSyk"k
o esjs nknk dks xkMh esa ljdkjh vLirky Hkknjk esa ys x;sA esjs nknk
dh ljdkjh vLirky esa ekSr gks xbZA fQj eSaus esjs rkm ds csVs HkkbZ
;a"kor dks lqjrx<+ Qksu fd;k vkSj mls lkjh ckrsa crkbZA fQj blds
ckn eq>s Hkh eSDl xkMh esa Hkknjk vLirky ys x;sA vLirky esa iqfyl
us esjs HkkbZ dSyk"k ds c;ku fy;s Fks eSa ml le; esjs HkkbZ dSyk"k ds
ikl ls gh FkhA esjs HkkbZ dSyk"k us iqfyl dks c;kuksa esa crk;k fd
vkRekjke] yhyk/kj] iou dqekj o vkseizdk"k] Jo.k o jkds"k oxSjg lc
vpkud [ksr esa vk;s vkSj esjs firk Hkaojyky] HkkbZ dSyk"k o iadt dks
tku ls ekjus dh fu;r ls ykBh dqYgkMh o tSyh ls tksjnkj geyk
dj fn;k rFkk esjs ikik Hkaojyky o HkkbZ iadt dh ml le; ekSr gks
xbZ FkhA mlds ckn eq>s o esjs HkkbZ dSyk"k dks vkLFkk vLirky fljlk
esa jSQj dj fn;k ogka ij bykt ds nkSjku mlh jkr dks esjs HkkbZ
dSyk"k dh ekSr gks xbZ FkhA bl ekjihV dk dkj.k tehuh fookn Fkk
tks dkQh fnuksa ls py jgk FkkA eqyfteku esjs NksVs nknk ds yM+ds o
ikSrs gSA eqyfteku us eq>s Hkh tku ls ekjus dh fu;r ls pksVs ekjh
FkhA esjk esfMdy eqvk;uk gqvk FkkA esjh eka us eqyfteku dks fdokMksa
ds Nsn ¼>hjh½ esa ls ns[kk FkkA
The significant parts of cross-examination conducted
from Chandrakala (P.W.3) are also extracted hereinbelow for the
sake of ready reference :-
;g lgh gS fd esjs iqfyl c;ku izn"kZ Mh 1 esa dSyk"k ds gkFk iSj rksM
j[ks Fks ;s ckr ugha fy[kh gqbZ gS eSaus rks iqfyl dks crk fn;k Fkk D;ksa
ugha fy[kk eq>s irk ugha gSA ;g lgh gS fd esjs iqfyl c;ku izn"kZ Mh
1 esa esjs HkkbZ dSyk"k us iqfyl dks c;kuksa esa crk;k fd vkRekjke]
yhyk/kj] iou dqekj o vkseizdk"k] Jo.k o jkds"k oxSjg lc vpkud
(36 of 58) [CRLDR-1/2019]
[ksr esa vk;s vkSj esjs firk Hkaojyky] HkkbZ dSyk"k o iadt dks tku ls
ekjus dh fu;r ls ykBh dqYgkMh o tSyh ls tksjnkj geyk dj fn;k
rFkk esjs ikik Hkaojyky o HkkbZ iadt dh ml le; ekSr gks xbZ Fkh ;s
ugha fy[kk gqvk gS eSaus rks iqfyl dks crk fn;k Fkk D;ksa ugha fy[kk eq>s
irk ugha gSA
----------------------------------------------------------------------------------------------------------------------------- ;g
lgh gS fd eSa vkt ;s ugha crk ldrh fd esjs nknk ds fdl fdl
eqyfte us fdl gfFk;kj ls "kjhj ij dgka dgk pksVs ekjhA ;g lgh gS
fd eSa vkt ;s ugh crk ldrh fd esjs fdl fdl eqyfte us fdl
fdl gfFk;kj ls dgka dgka esjs "kjhj ij pksVs ekjhA
------------------------------------------------------------------------------------------------------------ 108 gekjs ?kj
ds vkxs gh :dh gqbZ FkhA dSyk"k ds [ksr ls ykus ds dqN nsj ckn tc
mlus ?kj vkdj lkjh ckr crk nh Fkh mlds ckn esjs nknk o dSyk"k
dks 108 esa ysVk fn;k Fkk rFkk mUgsa Hkknjk ys x;s oks T;knk lhfj;l Fks
blfy, mUgsa tYnh ys x;s Fks vkSj esjs dks Hkknjk eSDl xkMh esa ckn esa
ysdj x;s FksA eq>s 108 ds tkus ds ckn rqjar gh eSDl xkMh esa Hkknjk
ysdj x;s FksA eSa tc vLirky esa xbZ Fkh rc dSyk"k ds iVVh dj j[kh
FkhA ------------------------------------------------------------------------------------- eSa csgks"k ugha gqbZ
FkhA Hkknjk vLirky esa esjs ikl iqfyl okys vk;s Fks vkSj mUgksaus eq>s
iwNk Fkk fd D;k vki c;ku nsus dh fLFkfr esa gks ysfdu eSa ml le;
c;ku nsus dh fLFkfr esa ugha Fkh ?kcjkbZ gqbZ FkhA eSa tc vLirky esa
vkbZ Fkh rc esjs HkkbZ dSyk"k us eq>s esjs firk o HkkbZ ds nsgkar dk crk
fn;k FkkA eSa tc vLirky esa vkbZ Fkh rc eq>s esjs nknk ds nsgkar dk
irk py x;k FkkA ---------------------------------------------------------------------------------------------
eqyfteku tc VSDVj ysdj vk;s Fks rc bUgksaus VSDVj dks gekjs ?kj ls
15&20 ikaoMk nqjh ij jksdk FkkA
------------------------------------------------------------------------------------------------------ gekjs ?kj ds
vkxs pkSd gSA tSls gh eSa jkeyky ds ?kj ds ikl vkbZ rks gekjs ?kj dh
nf{k.kh xyh esa iwoZ dh vksj ls eqyfteku VSDVj ysdj vk;s vkSj
eqyfteku us esjs dks ns[k dj /kedk;k fd rsjs firk vkSj HkkbZ;ksa dks ekj
vk;s gS vc rqEgkjs dks ugha NksMsxs bl ij eSa esjs ?kj esa Hkkxdj vk
xbZA eqyfteku us VSDVj dks nf{k.kh xyh esa iwohZ rjQ jksd fy;k FkkA
eqyfteku esjs ls fdruh nwj ij Fks fuf"pr ugha crk ldrh ysfdu eq>s
(37 of 58) [CRLDR-1/2019]
fn[kkbZ ns jgs FksA lHkh eqyfteku eq>s /kedh ns jgs FksA fdl vfHk;qDr
us vyx vyx D;k D;k dgk eSa vkt ugha crk ldrhA "
On going through the entire statement of Chandrakala,
it becomes clear that the defence did not give a faintest of
suggestion to the witness to impeach her testimony on the
aspects that the accused came outside their house; hurled
insinuations that they had killed Bhanwar Lal, Pankaj and Kailash
in the field and that she and Moman Ram were next in line to face
the same consequence. This blatant declaration made by the six
assailants in presence of Chandrakala admitting the factum of
murders committed in the field and threats of similar
consequences to the witness Chandrakala and the deceased
Moman Ram, are relevant facts constituting res gestae as per
Section 6 of the Indian Evidence Act, and are admissible in
evidence. Even though the incident occurred in two parts at
different time and places, they are so connected with the main
fact in issue that they form part of the same transaction. The
facts of the case at hand are identical with illustration (a) of
Section 6 of the Evidence Act, which reads as below.
"6. Relevancy of facts forming part of same
transaction.- Facts which, though not in issue, are so
connected with a fact in issue as to form part of the
same transaction, are relevant, whether they occurred
at the same time and place or at different times and
places.
Illustrations
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-
(38 of 58) [CRLDR-1/2019]
standers at the beating, or so shortly before or after it
as to form part of the transaction, is a relevant fact."
Chandrakala is an injured witness and even though, her
version regarding the Parcha Bayan of Kailash cannot be believed,
as being a sheer improvement, despite that, her testimony to the
extent of the insinuation made by the accused in her presence
that they had killed her three family members in the field and
their subsequent offensive acts causing injuries to Chandrakala
and Moman Ram at their is unimpeachable.
In addition to Chandrakala (P.W.2), the prosecution also
examined Dharmpal (P.W.4), who stated in his sworn testimony
that he heard fervent cries coming from towards the house of
Moman Ram and proceed there. He saw that the accused
appellants herein and the two absconding accused Pawan and
Rakesh were trying to force their way inside the house of Moman
Ram. They were hitting the doors with lathis hurling insinuations
that "eksefu;k fdokM [kksy rq>s ekjsaxs rsjk Mykt djus vk;s gSa rFkk ge rsjs
YkMds Hkaojyky o iksrs iadt rFkk dSyk"k dks [kRe dj vk;s gS vc rsjh ckjh
gSA". The witness tried to pacify the accused persons. They did not
relent and threatened him as well. The accused forced open the
gate of Moman Ram's house, went inside and assaulted Moman
Ram and Chandrakala. A little while later, the assailants went
towards their homes. The witness mustered courage and went to
the house of Moman Ram, where he saw Chandrakala and her
mother crying, while Moman Ram was lying on the floor and was
writhing in pain. On seeing the gory scene, he became terrified
(39 of 58) [CRLDR-1/2019]
and went back to his home. Nothing significant was elicited in the
cross-examination conducted from the witness. It may be stated
here that Chandrakala also corroborated the fact that Dharmpal
had seen the incident, but he fled from the spot out of fear.
Hence, we have no hesitation in holding that by virtue
of statements of Chandrakala (P.W.3) and Dharmpal (P.W.4), the
prosecution has been able to prove beyond all manner of doubt
the fact that the accused appellants and the two absconding
accused were the assailants, who assaulted the victims Bhanwar
Lal, Pankaj and Kailash in the agricultural field and Chandrakala
and Moman Ram at the residential premises.
Medical Evidence :-
The prosecution examined Dr. Deepak Gindoda
(P.W.16), who proved the injury reports and postmortem reports
in the manner described supra.
Though the learned defence counsel did not advance
any serious arguments regarding the availability of ample medical
evidence to bring home the charge of murder and attempt to
murder, despite that, we have carefully re-appreciated the
evidence of the medical jurist Mr. Deepak Gindoda (P.W.16) and
find that the medical evidence establishes beyond all manner of
doubt that four deceased persons, namely, Bhanwar Lal, Pankaj,
Moman Ram and Kailash, were inflicted multiple injuries by blunt
and sharp weapons (possibly by reverse side as well) on the vital
body parts. The resultant injuries were very grave and the
individual effect of some injuries and the cumulative effect of all
(40 of 58) [CRLDR-1/2019]
combined was sufficient in the ordinary nature to cause death of
the four victims. Thus, we have no hesitation in holding that
necessary ingredients required to bring home the charge for the
offence punishable under Section 302 IPC are proved beyond all
manner of doubt.
Charge for the offence punishable under Section 149 IPC :-
It was the fervent contention of the learned counsel Mr.
Moti Singh Rajpurohit that the trial court committed gross illegality
by invoking Section 149 IPC for convicting the accused appellants
for the offences punishable under Sections 302 and 323 IPC. He
asserted that only four persons have been convicted by the trial
court. The mandatory requirement of assembly of 5 persons so as
to constitute an unlawful assembly, as per Section 141 IPC, is not
satisfied. This argument has no legs to stand whatsoever. In this
regard, we may note here that witness Chandrakala (P.W.3) has
categorically stated that six assailants, i.e. the four appellants
herein and Rakesh and Pawan, launched an assault on the victims.
Apparently, investigation qua accused Rakesh and Pawan is still
kept open because these two assailants are absconding and are at
large. Thus, without any doubt the prosecution has given
unimpeachable evidence establishing active participation of more
than five persons in the assault and hence, the argument
regarding non-applicability of Section 149 IPC on account of
number of accused persons being less than five is totally frivolous
and is turned down.
(41 of 58) [CRLDR-1/2019]
Unfair investigation, lacunae in investigation and unreliable
recoveries :-
Mr. Moti Singh, learned counsel representing the
appellants, questioned the bonafides of the investigating agency
primarily on the ground that the entire investigation was
influenced by Yashwant (P.W.6), who being closely related to the
family of the accused was working as a Police Constable. We are
to some extent convinced by this argument advanced by the
defence. As a matter of fact, the Investigating Officer Mr.
Rampratap (P.W.18) acted in a most casual manner while
conducting investigation of this case. He claimed to have effected
numerous recoveries during the course of investigation, but failed
to give proper evidence to prove their sanctity. The date on which
recoveries were shown to have been effected, i.e. 16.10.2013, is
not convincing as the recoveries were definitely made earlier. He
also claims to have collected the carbon copy of the requisition
(Ex.P/71) from Ramniwas, but the same was not filed alongwith
the charge-sheet. No effort was made by the prosecution to
examine Ramniwas, ASI to prove the requisition (Ex.P/71). The
prosecution tried to link the incriminating recoveries effected at
the instance of the accused through the testimony of Investigating
Officer Rampratap (P.W.18) The incident took place in the year
2013. Ram Pratap, SHO, Police Station Bhadra (P.W.18), did not
give any plausible evidence as to when the recovered
articles/weapons were deposited in the Malkhana. He gave a bald
and unconvincing statement that the seized articles were
deposited in Malkhana in a sealed condition. When the testimony
(42 of 58) [CRLDR-1/2019]
of the Head Constable Sahab Singh (P.W.20) is seen, it becomes
clear that he gave evidence regarding receipt of articles on
13.10.2013, 15.10.2013 and 16.10.2013. These Malkhana
articles were surprisingly forwarded to the FSL as late as on
29.10.2015. The Constable admitted in cross-examination that
the samples had been sent to the FSL earlier, but they were
received back with objections. The Constable could not elaborate
or explain what precisely was the nature of objections. On the
contrary, he stated that when the Malkhana articles were received
back from the FSL with objections, he was not posted as Malkhana
Incharge at the Police Station. The Malkhana Register, which was
proved by the prosecution was of the year 2015 but the Malkhana
registers of the year 2013 and 2014 were not exhibited in
evidence. Thus, it is clear as day light that the prosecution has
failed to lead proper evidence to prove the sanctity and
safekeeping of the Mudda Maal articles. In addition thereto, we
have perused the entries made in the Malkhana register, which
was proved as Ex.P/89. A bare perusal of the entries made
therein convinces us that there have been serious bungling in the
manner in which the Malkhana articles were handled by the
concerned police officials. Thus, the FSL report (Ex.P/68) loses
significance and cannot be read in evidence against the accused
persons.
Plea of alibi :-
Regarding the defence theory of alibi qua the accused
Leeladhar and Sharwan Kumar, learned counsel Mr. Moti Singh
(43 of 58) [CRLDR-1/2019]
advanced fervent arguments that these two accused persons were
not present at the spot and were arrested from Gharsana, where
they were living to pursue their respective occupations. However,
this argument is on the face of it nothing but an afterthought. On
a perusal of the statements of Chandrakala (P.W.2) and Dharmpal
(P.W.4), it becomes apparent that both the witnesses gave
wholesome testimony regarding presence and participation of both
these accused persons in the incident. The defence did not give a
semblance of suggestion to either of these two witnesses
regarding the plea of alibi taken by these two accused. Even if we
see the statement of Sharwan recorded under Section 313 CrPC, it
becomes clear that he did not utter a word that he was living at
Gharsana at the time of the incident. The accused Leeladhar and
Aatma Ram took a plea of being at Gharsana at the time of
incident. However, this plea is nothing but an afterthought, which
has been put forth for the first time when cross-examination was
carried out from the Investigating Officer after many years of
incident. Furthermore, it is a well-settled proposition of law that a
plea of alibi is a very weak plea and has to be proved by leading
unimpeachable evidence. However, other than a bald suggstion to
the Investigating Officer and a weak belated plea in the statement
under Section 313 CrPC, the defence did not lead any evidence
whatsoever to prove this apparently frivolous plea of alibi. Hence,
in face of positive convincing evidence of the witnesses
Chandrakala (P.W.2) and Dharmpal (P.W.4), the cooked up plea of
alibi has no legs to stand whatsoever and is fit to be discarded.
(44 of 58) [CRLDR-1/2019]
Consequently, we are of the firm opinion that the
prosecution has proved by unimpeachable reliable testimony, the
factum of the assault made by the four accused appellants and
two absconding accused Rakesh and Pawan in the field, where
Bhanwar Lal and Pankaj were murdered and Kailash was seriously
injured and later on died and in the residential premises, where
Moman Ram was murdered and Chandrakala was caused
numerous injuries. Even if the Parcha Bayan of Kailash is
excluded from zone of consideration as being unreliable, the
prosecution has been able to bring home the guilt of the accused
appellants by leading cogent, convincing and unimpeachable
evidence of injured witness Chandrakala (P.W.2) and the
independent witness Dharmpal (P.W.4).
As an upshot of the above discussion, we have no
hesitation in holding that the accused appellants are liable to be
and were rightly convicted by the trial court for the offences
punishable under Sections 302/149, 147, 148, 452, 447 and
323/149 IPC.
Having held so, we now consider the case regarding
affirmation of penalty of death sentence imposed by the trial court
upon the accused appellants.
The Hon'ble Supreme Court considered various facets
of capital punishment to the accused in the case of Chhannu Lal
Verma Vs. The State of Chhattisgarh [AIR 2019 SC 243]
wherein the entire concept of death penalty was discussed in
detail. The Hon'ble Supreme Court evaluated numerous cases in
which the capital punishment awarded to the accused was
(45 of 58) [CRLDR-1/2019]
affirmed as well as those cases in which death penalty was
commuted to life sentence. It was held :-
8. In Bachan Singh (supra) while upholding the
constitutional validity of death penalty in India, it was held
that under Section 354(3) of the CrPC, imprisonment for life
is the rule and death sentence is the exception. The Court
emphasized the need for principled sentencing without
completely trammeling the discretionary powers of the
judges. It also held that the "special reasons" that are
required to be recorded while awarding death sentence
means "exceptional reasons" founded on the exceptionally
grave circumstances of the particular case relating to the
crime as well as the criminal. Some of the aggravating and
mitigating circumstances indicated in Bachan Singh (supra)
are: -
Aggravating circumstances : A court may, however, in
the following cases impose the penalty of death in its
discretion:
(a) if the murder has been committed after previous
planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed
forces of the Union or of a member of any police force
or of any public servant and was committed--
(i) while such member or public servant was on duty;
or
(ii) in consequence of anything done or attempted to
be done by such member or public servant in the lawful
discharge of his duty as such member or public servant
whether at the time of murder he was such member or
public servant, as the case may be, or had ceased to
be such member or public servant; or
(46 of 58) [CRLDR-1/2019]
(d) if the murder is of a person who had acted in the
lawful discharge of his duty under Section 43 of the
Code of Criminal Procedure, 1973, or who had rendered
assistance to a Magistrate or a police officer demanding
his aid or requiring his assistance under Section 37 and
Section 129 of the said Code."
Mitigating circumstances: In the exercise of its
discretion in the above cases, the court shall take into
account the following circumstances:
(1) That the offence was committed under the influence
of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a
continuing threat to society.
(4) The probability that the accused can be reformed
and rehabilitated. The State shall by evidence prove
that the accused does not satisfy the conditions (3) and
(4) above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in
committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he
was mentally defective and that the said defect
impaired his capacity to appreciate the criminality of
his conduct.
(47 of 58) [CRLDR-1/2019]
9. The Court also clarified that while determining the
punishment, due regard must be given to the crime as well
as the criminal. The aggravating and mitigating
circumstances would have to be viewed from the perspective
of both the crime and the criminal. The relevant discussion
reads thus:
"201. ...As we read Sections 354(3) and 235(2) and
other related provisions of the Code of 1973, it is quite
clear to us that for making the choice of punishment or
for ascertaining the existence or absence of "special
reasons" in that context, the court must pay due
regard both to the crime and the criminal. What is the
relative weight to be given to the aggravating and
mitigating factors, depends on the facts and
circumstances of the particular case. More often than
not, these two aspects are so intertwined that it is
difficult to give a separate treatment to each of them.
This is so because "style is the man". In many cases,
the extremely cruel or beastly manner of the
commission of murder is itself a demonstrated index of
the depraved character of the perpetrator. That is why,
it is not desirable to consider the circumstances of the
crime and the circumstances of the criminal in two
separate watertight compartments. In a sense, to kill is
to be cruel and therefore all murders are cruel. But
such cruelty may vary in its degree of culpability. And it
is only when the culpability assumes the proportion of
extreme depravity that "special reasons" can
legitimately be said to exist."
(Emphasis supplied)
However, the Court has emphasised that the list of
aggravating and mitigating circumstances provided above
are not exhaustive and the scope of mitigating factors in
(48 of 58) [CRLDR-1/2019]
death penalty must receive a liberal and expansive
construction by the courts. Paragraph 209 reads as follows:
"209. There are numerous other circumstances
justifying the passing of the lighter sentence; as there
are countervailing circumstances of aggravation. "We
cannot obviously feed into a judicial computer all such
situations since they are astrological imponderables in
an imperfect and undulating society."Nonetheless, it
cannot be overemphasised that the scope and concept
of mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the
courts in accord with the sentencing policy writ large in
Section 354(3). Judges should never be bloodthirsty.
Hanging of murderers has never been too good for
them. Facts and Figures, albeit incomplete, furnished
by the Union of India, show that in the past, courts
have inflicted the extreme penalty with extreme
infrequency -- a fact which attests to the caution and
compassion which they have always brought to bear on
the exercise of their sentencing discretion in so grave a
matter. It is, therefore, imperative to voice the concern
that courts, aided by the broad illustrative guidelines
indicated by us, will discharge the onerous function
with evermore scrupulous care and humane concern,
directed along the highroad of legislative policy outlined
in Section 354(3) viz. that for persons convicted of
murder, life imprisonment is the rule and death
sentence an exception. A real and abiding concern for
the dignity of human life postulates resistance to taking
a life through law's instrumentality. That ought not to
be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed."
(Emphasis supplied)
(49 of 58) [CRLDR-1/2019]
10. In Machhi Singh v. State of Punjab, (1983) 3 SCC
470 the Court summarized the findings in Bachan Singh
(supra) and held as follows:
"38. In this background the guidelines indicated in
Bachan Singhcasewill have to be culled out and applied
to the facts of each individual case where the question
of imposing of death sentence arises. The following
propositions emerge from Bachan Singh case:
(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 require 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 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.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances
before the option is exercised.
(50 of 58) [CRLDR-1/2019]
39. In order to apply these guidelines inter alia the
following questions may be asked and answered:
(a) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there
is no alternative but to impose death sentence even
after according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the
circumstances in the light of the aforesaid proposition
and taking into account the answers to the questions
posed hereinabove, the circumstances of the case are
such that death sentence is warranted, the court would
proceed to do so."
(Emphasis supplied)
11. It is evident that the Court in Bachan Singh (supra) has
set a very high threshold of "rarest of rare cases when the
alternative option is unquestionably foreclosed" for the grant
of death penalty.
The meaning and ambit of this expression has been
discussed in Santosh Bariyar (supra). The Court also
emphasised the need for a bifurcated hearing for the
purpose of conviction and sentencing. The relevant portion
reads:
"56. At this stage, Bachan Singh in forms the content
of the sentencing hearing. The court must play a
proactive role to record all relevant information at this
stage. Some of the information relating to crime can be
culled out from the phase prior to sentencing hearing.
This information would include aspects relating to the
nature, motive and impact of crime, culpability of
(51 of 58) [CRLDR-1/2019]
convict, etc. Quality of evidence adduced is also a
relevant factor. For instance, extent of reliance on
circumstantial evidence or child witness plays an
important role in the sentencing analysis. But what is
sorely lacking, in most capital sentencing cases, is
information relating to characteristics and
socioeconomic background of the offender. This issue
was also raised in the 48th Report of the Law
Commission.
57. Circumstances which may not have been pertinent
in conviction can also play an important role in the
selection of sentence. Objective analysis of the
probability that the accused can be reformed and
rehabilitated can be one such illustration. In this
context, Guideline 4 in the list of mitigating
circumstances as borne out by Bachan Singh is
relevant. The Court held: (SCC p. 750, para 206)
"206. (4) The probability that the accused can be
reformed and rehabilitated.
The State shall by evidence prove that the accused
does not satisfy Conditions (3) and (4) above."
In fine, Bachan Singh mandated identification of aggravating
and mitigating circumstance relating to crime and the
convict to be collected in the sentencing hearing.
58. The rarest of rare dictum breathes life in "special
reasons" under Section 354(3). In this context, Bachan
Singh laid down a fundamental threshold in the
following terms: (SCC p. 751, para 209)
"209. ... A real and abiding concern for the dignity of
human life postulates resistance to taking a life through
law's instrumentality. That ought not to be done save
(52 of 58) [CRLDR-1/2019]
in the rarest of rare cases when the alternative option
is unquestionably foreclosed."
(emphasis supplied)
An analytical reading of this formulation would reveal it
to be an authoritative negative precept. The "rarest of
rare cases" is an exceptionally narrow opening provided
in the domain of this negative precept. This opening is
also qualified by another condition in the form of "when
the alternative option is unquestionably foreclosed".
59. Thus, in essence, the rarest of rare dictum imposes
a wide-ranging embargo on award of death
punishment, which can only be revoked if the facts of
the case success fully satisfy double qualification
enumerated below:
1. that the case belongs to the rarest of rare category,
2. and the alternative option of life imprisonment will
just not suffice in the facts of the case.
60. The rarest of rare dictum serves as a guideline in
enforcing Section 354(3) and entrenches the policy that
life imprisonment is the rule and death punishment is
an exception. It is a settled law of interpretation that
exceptions are to be construed narrowly. That being
the case, the rarest of rare dictum places an
extraordinary burden on the court, in case it selects
death punishment as the favoured penalty, to carry out
an objective assessment of facts to satisfy the
exceptions ingrained in the rarest of rare dictum.
61. The background analysis leading to the conclusion
that the case belongs to the rarest of rare category
must conform to highest standards of judicial rigor and
thoroughness as the norm under analysis is an
exceptionally narrow exception. A conclusion as to the
(53 of 58) [CRLDR-1/2019]
rarest of rare aspect with respect to a matter shall
entail identification of aggravating and mitigating
circumstances relating both to the crime and the
criminal. It was in this context noted: (Bachan Singh
case, SCC p. 738, para 161
"161. ... The expression 'special reasons' in the context
of this provision, obviously means 'exceptional reasons'
founded on the exceptionally grave circumstances of
the particular case relating to the crime as well as the
criminal.""
(Emphasis supplied)
12. In Shankar Kisanrao Khade v. State of
Maharashtra, (2013) 5 SCC 546 this Court looked at the
manner in which the aggravating and mitigating
circumstances are to be weighed and how the rarest of rare
test is to be applied while awarding death sentence and held
thus:
"52. Aggravating circumstances as pointed out above,
of course, are not exhaustive so also the mitigating
circumstances. In my considered view, the tests that
we have to apply, while awarding death sentence are
"crime test", "criminal test" and the "R-R test" and not
the "balancing test". To award death sentence, the
"crime test" has to be fully satisfied, that is, 100% and
"criminal test" 0%, that is, no mitigating circumstance
favouring the accused. If there is any circumstance
favouring the accused, like lack of intention to commit
the crime, possibility of reformation, young age of the
accused, not a menace to the society, no previous track
record, etc. the "criminal test" may favour the accused
to avoid the capital punishment. Even if both the tests
are satisfied, that is, the aggravating circumstances to
the fullest extent and no mitigating circumstances
favouring the accused, still we have to applyfinally the
rarest of the rare case test (R-R test). R-R test
(54 of 58) [CRLDR-1/2019]
depends upon the perception of the society that is
"societycentric" and not "Judge-centric", that is,
whether the society will approve the awarding of death
sentence to certain types of crimes or not. While
applying that test, the court has to look into variety of
factors like society's abhorrence, extreme indignation
and antipathy to certain types of crimes like sexual
assault and murder of intellectually challenged minor
girls, suffering from physical disability, old and infirm
women with those disabilities, etc. Examples are only
illustrative and not exhaustive. The courts award death
sentence since situation demands so, due to
constitutional compulsion, reflected by the will of the
people and not the will of the Judges."
(Emphasis supplied)
13. In our opinion, the High Court has erroneously confirmed
death penalty without correctly applying the law laid down in
Bachan Singh (supra), Machhi Singh (supra), Santosh
Bariyar (supra) and Shankar Kisanrao Khade (supra). The
decision to impose the highest punishment of death sentence
in this case does not fulfil the test of "rarest of rare case
where the alternative option is unquestionably foreclosed".
The questions laid down in paragraph 39 of Machhi Singh
(supra) have not been answered in the particular case. No
evidence as to the uncommon nature of the offence or the
improbability of reformation or rehabilitation of the appellant
has been adduced. Bachan Singh (supra) unambiguously
sets out that death penalty shall be awarded only in the
rarest of rare cases where life imprisonment shall be wholly
inadequate or futile owing to the nature of the crime and the
circumstances relating to the criminal. Whether the person is
capable of reformation and rehabilitation should also be
taken into consideration while imposing death penalty. As
laid down in Shankar Kisanrao Khade (supra), whether the
person would be a threat to society or whether not granting
death penalty would send a wrong message to society are
(55 of 58) [CRLDR-1/2019]
additional factors to be looked at. No such analysis was
undertaken by the High Court. The High Court has also failed
to look at the aggravating and mitigating circumstances
regarding the criminal as warranted by Bachan Singh
(supra). The fact that the appellant had no previous criminal
record apart from the acquittal in the Section 376, IPC,
which was a false implication and the alleged motive did not
weigh with the High Court as an important mitigating
circumstance with respect to the criminal.
14. In the past four decades or so, this Court has been
consistently echoing its concern on the constitutional ethos
on value and dignity of life, when it said in Bachan Singh
(supra) that 'extreme depravity' (paragraph 201), 'it is the
duty of the State to adduce evidence that there is no
probability that the accused can be reformed' (paragraph
206), 'liberal and expansive connotation' (paragraph 209),
'alternative option is unquestionably foreclosed' (paragraph
209) 'humane concern' (paragraph 209), 'real and abiding
concern for dignity of human life' (paragraph 209), in Machhi
Singh (supra) that 'gravest case of extreme culpability'
(paragraph 38), 'only when life appears to be an altogether
inadequate punishment' (paragraph 28), 'mitigating
circumstances should be given full weightage' (paragraph
38), in Santosh Bariyar (supra) that 'probability that the
accused can be reformed and rehabilitated' (paragraph 57),
'the rarest of rare case is a negative precept' (paragraph
58), 'death is an exceptionally narrow opening' (paragraph
58), 'extraordinary burden on the Court to impose death'
(paragraph 60), 'maximum weightage to mitigating
circumstances and yet no alternative except death'
(paragraph 39), 'highest standards of judicial rigor and
thoroughness' (paragraph 61), and in Shankar Kisanrao
Khade (supra) that 'possibility of reformation, young age of
the accused, not a menace to the society, no previous track
record'(paragraph 52) etc. These factors have not received
due consideration by either the High Court or the Trial Court.
(56 of 58) [CRLDR-1/2019]
15. The appeal has been pending before this Court for the
past four years. Since the appellant has been in jail, we
wanted to know whether there was any attempt on his part
for reformation. The superintendent of the jail has given a
certificate that his conduct in jail has been good. Thus, there
is a clear indication that despite having lost all hope, yet no
frustration has set on the appellant. On the contrary, there
was a conscious effort on his part to lead a good life for the
remaining period. A convict is sent to jail with the hope and
expectation that he would make amends and get reformed.
That there is such a positive change on a death row convict,
in our view, should also weigh with the Court while taking a
decision as to whether the alternative option is
unquestionably foreclosed. As held by the Constitution Bench
in Bachan Singh (supra) it was the duty of the State to prove
by evidence that the convict cannot be reformed or
rehabilitated. That information not having been furnished by
the State at the relevant time, the information now furnished
by the State becomes all the more relevant. The standard
set by the 'rarest of rare' test in Bachan Singh (supra) is a
high standard. The conduct of the convict in prison cannot
be lost sight of. The fact that the prisoner has displayed
good behaviour in prison certainly goes on to show that he is
not beyond reform.
16. In the matter of probability and possibility of reform of a
criminal, we do not find that a proper
psychological/psychiatric evaluation is done. Without the
assistance of such a psychological/psychiatric assessment
and evaluation it would not be proper to hold that there is no
possibility or probability of reform. The State has to bear in
mind this important aspect while proving by evidence that
the convict cannot be reformed or rehabilitated.
17. Another aspect that has been overlooked by the High
Court is the procedural impropriety of not having a separate
(57 of 58) [CRLDR-1/2019]
hearing for sentencing at the stage of trial. A bifurcated
hearing for conviction and sentencing was a necessary
condition laid down in Santosh Bariyar (supra). By
conducting the hearing for sentencing on the same day, the
Trial court has failed to provide necessary time to the
appellant to furnish evidence relevant to sentencing and
mitigation.
18. For the abovementioned reasons, we hold that the
imposition of death sentence was not the only option and
hence the same needs to be commuted to imprisonment for
life."
The accused appellants have suffered incarceration in
prison since the year 2013. True it is that the conduct of the
accused while launching the pre-planned assault on the three
victims in the field and on Moman Ram and Chandrakala at their
residence was heinous as well as brutal. However, it is a
universally acceptable proposition that reformative theory has to
be given precedence over capital punishment, which should be
considered a last resort. In the present case, the accused
appellants have remained in custody for nearly 9 years. For
affirming the death sentence, the court would be required to
collect material regarding conduct of the accused while in prison to
assess whether they have displayed behaviour indicating signs of
reformation. Award of extreme penalty of death without
undertaking such exercise is impermissible as held by Hon'ble
Supreme Court while laying down the guidelines reproduced
supra.
Though the trial court has undertaken a superficial
exercise of trying to assess the mitigating and aggravating
circumstances, but ex facie, we are of the view that the case at
(58 of 58) [CRLDR-1/2019]
hand does not satisfy the requirements for awarding the extreme
death penalty.
As a consequence, we hereby turn down the Reference
No.1/2019 and partly accept the Appeal No.208/2019. Conviction
of the accused appellants as recorded by the trial court for the
offences punishable under Sections 302/149, 147, 148, 452, 447
and 323/149 IPC is confirmed, but the reference for confirmation
of death sentence is turned down. However, the conduct of the
accused, who attacked the entire family of Mr. Moman Ram with
clear intention of eliminating them owing to the long-standing land
dispute requires appropriate directions on the aspect of sentence
of imprisonment. If the accused are permitted to roam at large
without suffering the "imprisonment for life" in its literal meaning,
they would in all likelihood eliminate the remaining family
members as well if set at liberty. Hence, the capital punishment
awarded to the accused appellants by the trial court is commuted
to life imprisonment, which shall enure till the natural life of the
accused appellants without any possibility of permanent
parole/premature release. The fine imposed and the default
sentence awarded by the trial court on each count is maintained.
The appeal of the accused appellants is partly allowed in these
terms. The record be returned to the trial court.
(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J
Pramod/Devesh/-
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