“REPORTABLE” IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1236 OF 2006 Ramesh … Appellant

Versus

State of Rajasthan … Respondent With

Criminal Appeal No. 1235 of 2006

Bharat Kumar @ Bhatia …Appellant

Versus

State of Rajasthan …Respondent

With

Criminal Appeal No. 1237 of 2006

Gordhan Lal …Appellant

Versus

State of Rajasthan …Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of Criminal Appeal No.  

1236 of 2006 filed by Ramesh @ Gaguda (original accused  

No. 3), Criminal Appeal No. 1235 of 2006 filed by Bharat  

Kumar @ Bhatia (original accused No. 2) and Criminal  

Appeal No. 1237 of 2006 filed by Gordhan Lal (original  

accused No. 1).  We shall refer to the appellants as per  

their position before the Trial Court.  While Ramesh @  

Guguda  (A-3)  is  sentenced  to  death  by  Trial  and  

appellate  Courts,  the  other  two  accused  being  Bharat  

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Kumar @ Bhatia (A-2) and Gordhan Lal (A-1) are facing  

the  life  imprisonment  alongwith  fines  on  different  

counts.  That is how the matters have come up before us.

2. Human avarice has no limits nor does it know of any  

emotions.  The present case is the sordid saga of the  

crime which emanated purely from human avarice.

3. Phalodi is a quiet Taluk place in the State of  

Rajasthan.   Ramlal  Lunawat  alongwith  his  wife  Shanti  

Devi was doing business of money lending by pledging  

gold  and  silver  ornaments  and  was  selling  steel  

utensils.  On 5.2.2003, Anil (PW-1) telephoned to Police  

Station Phalodi that the door of the house-cum-shop of  

Ramlal was lying suspiciously open and nobody from the  

house was responding to the calls.  Kishan Singh (PW-35)  

who was the Station House Officer of the Police Station  

Phalodi, reached the house alongwith some other police  

personnel.  They found that Ramlal and his wife Shanti  

Devi were lying dead in the pool of blood.  The FIR by  

Anil  (PW-1)  was  recorded  and  the  investigation  was  

commenced for offences under Sections 302 and 457 of the  

Indian  Penal  Code  (hereinafter  called  “the  IPC”  for  

short).  The necessary spot panchnamas were executed and  

the Material Objects found on the scene were seized.  It  

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was found that both the deceased persons had human hair  

in their hands.  There was a blood-stained needle and  

syringe found near the dead body of Shanti Devi.  Some  

other materials were collected from the spot to find out  

the finger prints.  The clothes of the deceased persons  

were also seized.  On suspicion, the accused persons  

were  arrested.   One  other  accused  Rajesh  (original  

accused No. 4) was also arrested.  He stands acquitted  

by  the  Courts  below.   The  accused  persons  gave  

information under Section 27 of the Indian Evidence Act  

and the clothes that they were wearing at the time of  

incident and their shoes were recovered.  The ornaments  

stolen from the house of Ramlal were also recovered.  

Their hair were also taken for comparing with the sample  

of  hairs  founded  at  the  scene  of  occurrence.   The  

instrument used for melting ornaments was found at the  

house of Rajesh (A-4), which was allegedly stolen from  

the house of deceased Ramlal.  The materials were sent  

to the Forensic Science Laboratory (FSL), Jaipur/Jodhpur  

and the reports were obtained.  On the completion of  

investigation, the chargesheet was filed against four  

persons.

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4. Case of the prosecution is that Gordhan Lal (A-1)  

had  some  dealings  with  Ramlal  (deceased)  which  was  

evident from the diary found from the pocket of Ramlal.  

The  prosecution  alleged  that  Gordhan  Lal  (A-1),  

therefore, decided to commit a robbery at the place of  

Ramlal, who was a rich person, and conspired with the  

other accused persons, namely, Bharat Kumar @ Bhatia (A-

2),  Ramesh  @  Guguda  (A-3)  and  Rajesh  (A-4).   They  

trespassed into the house of Ramlal by night and looted  

the  house  and  decamped  with  the  looted  ornaments  of  

silver and gold, cash and other articles.  It is alleged  

by the prosecution that certain stolen gold ornaments  

were melted at the house of Rajesh (A-4) and converted  

into a nugget (Dhalia).  Ramesh (A-3) and Bharat Kumar  

(A-2) had past criminal background.  They were involved  

in number of criminal cases for offences such as attempt  

to  murder,  house  trespass,  looting  etc.   The  murder  

weapon ‘Jharbad’ was recovered from Ramesh (A-3).  The  

chargesheet  was  filed  for  offences  punishable  under  

Sections 120-B, 302, 201, 404, 414, 457, 460/34 of the  

IPC as also for the offence punishable under Section  

4/25 of the Arms Act against Ramesh (A-3).  The evidence  

was led and as many as 35 witnesses came to be examined  

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in support of the charge.  Prosecution relied on 132  

documents and also produced 105 articles (M.Os.).

5. The  defence  was  that  of  denial  and  false  

implication.   In  addition  to  that,  accused  Ramesh  

claimed that at the time of incident, he was taking part  

in a Jagran in Pali.  Four defence witnesses came to be  

examined  by  Ramesh  (A-3)  while  Gordhan  Lal  (A-1)  

produced one witness.  The accused persons also filed a  

few documents.  The defence did not prevail in case of  

the present appellants as also Rajesh (A-4).  Against  

Ramesh (A-3), the case was treated to be the rarest of  

rare case.  Ramesh (A-3) was ordered to be hanged.  He  

was also convicted for other offences punishable under  

Sections120-B, 457, 302, 379, 404, 201 of the IPC.  On  

the first two counts, he was awarded 5 years’ rigorous  

imprisonment  and  on  the  others,  1  year’s  rigorous  

imprisonment consecutively with fine of Rs.500/- on each  

count.  He was also convicted for the offence punishable  

under Section 5/25 of the Arms Act and was sentenced  

with  1  year’s  rigorous  imprisonment  with  fine  of  

Rs.500/-.  Gordhan Lal (A-1) and Bharat Kumar @ Bhatia  

(A-2) were convicted with the aid of Section 34, IPC but  

were  spared  by  ordering  them  to  suffer  rigorous  

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imprisonment  for  life.   On  the  other  counts,  the  

identical punishment, as was awarded to Ramesh (A-3),  

was awarded to them.  Rajesh (A-4) was convicted for the  

offence punishable under Sections 201, 404 and 414 of  

the IPC and was sentenced to undergo 5 years’ rigorous  

imprisonment on the first count and 1 year’s rigorous  

imprisonment on the other counts with fine of Rs.500/-  

on each count.  Reference was made to the High Court for  

confirmation of the death sentence of Ramesh (A-3) while  

the  accused  persons  also  filed  their  appeals.   The  

appeals filed by the present three appellants and Rajesh  

(A-4) were dismissed by the High Court and the sentences  

were  also  confirmed.   The  present  appellants  have  

challenged  the  judgment  of  the  High  Court;  however,  

Rajesh (A-4) has not come before us.  The reference was  

answered in affirmative and the High Court confirmed the  

death sentence in case of Ramesh (A-3) and that is how  

the matters have come up before us.

6. Shri Sushil Kumar Jain, learned counsel appearing  

on behalf of Ramesh (A-3) submitted that, in the first  

place, there was no evidence to establish theft at the  

house of the deceased persons and, therefore, there was  

no question of any motive.  The learned counsel also  

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urged  that  there  was  no  evidence  to  show  that  the  

articles  alleged  to  have  been  recovered  from  the  

appellant  Ramesh  were  belonging  to  or  otherwise  in  

possession of the deceased persons before their death.  

The  learned  counsel  pointed  out  that  the  arrest  and  

recoveries made from the appellants are doubtful since  

there are discrepancies in respect of the date, time and  

place of the arrest and recoveries made.  The learned  

counsel also urged that the prosecution also could not  

connect the accused persons with the crime on the basis  

of FSL reports regarding the blood.  Even in respect of  

the weapon, the learned counsel pointed out that the  

recovery  of  the  murder  weapon  itself  was  doubtful.  

Lastly, the learned counsel urged that at any rate, it  

was not the rarest of rare case and as such the death  

sentence  was  not  justified.   Shri  M.N.  Krishnamani,  

learned senior counsel and Shri Anis Ahmed Khan, learned  

counsel contended on behalf of Bharat Kumar @ Bhatia (A-

2) that the evidence of recovery of clothes and shoes of  

Bharat  Kumar  @  Bhatia  (A-2)  was  suspicious  and  

discrepant.  They also attacked the alleged recovery of  

silver  and  gold  ornaments  at  the  instance  of  this  

accused.  They pointed out that the FSL report was of no  

consequence  against  this  accused.   Similar  is  the  

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contention raised by Shri M.L. Lahoty, learned counsel  

appearing on behalf of Gordhan Lal (A-1).  Shri Lahoty  

pointed out that there was nothing incriminating found  

against this accused and that the so-called recoveries  

were farcical and inconsequential.  The learned counsel  

further  pointed  out  that  this  accused  could  not  be  

booked on the basis of the FSL reports.

7. All  the  learned  counsel  pointed  out  that  the  

quality of investigation was extremely poor and it was a  

pre-determined investigation.  All the learned counsel,  

therefore, prayed for rebuttal.

8. As  against  this,  learned  counsel  appearing  on  

behalf  of  the  State,  supported  the  judgment  while  

pointing  out  that  though  this  was  a  case  based  on  

circumstantial  evidence,  the  prosecution  had  fully  

proved the incriminating circumstances like the recovery  

of  ornaments  stolen  from  the  house  of  Ramlal,  their  

identification  and  the  fact  that  the  accused  persons  

were found in possession of the stolen articles almost  

immediately  after  the  crime  and,  therefore,  the  

prosecution could use the presumption under Section 114  

of the Indian Evidence Act.  The learned counsel also  

pointed out that the prosecution had proved that Rajesh,  

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the  fourth  conspirator,  was  a  receiver  of  stolen  

property and had helped in melting of some of the gold  

items with the machines removed from the house of Ramlal  

(deceased).  It was also pointed out that Gordhan Lal  

(A-1) was aware of sound financial condition of Ramlal  

as he was dealing with Ramlal which was clear from the  

diary  found  from  the  pocket  of  Ramlal’s  body.   The  

learned counsel also pointed out that there were some  

clinching  circumstances  in  the  prosecution  evidence  

which established that all the four accused persons were  

working hand-in-glove and had entered into conspiracy to  

commit robbery at Ramlal’s place.  The learned counsel,  

therefore, urged that the accused would be answerable to  

the charge of murder as they not only had conspired, but  

had also developed a common intention to commit that  

crime and had actually committed the crime of robbery  

and in that process had committed murder of two innocent  

persons.

9. As  regards  the  sentence,  the  learned  counsel  

appearing on behalf of the State urged that this was  

undoubtedly the rarest of rare case, where the accused  

persons had committed the murder for their avarice with  

pre-planned  mind  and  in  cold  blood.   The  learned  

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counsel, therefore, justified the death sentence in case  

of  Ramesh  (A-3)  and  life  imprisonment  in  respect  of  

other accused persons.

10. Before we proceed with the matter, it has to be  

borne in mind that this case depends upon circumstantial  

evidence and, as such as, per the settled law, every  

circumstance would have to be proved beyond reasonable  

doubt and further the chain of circumstances should be  

so complete and perfect that the only inference of the  

guilt of the accused should emanate therefrom.  At the  

same time, there should be no possibility whatsoever of  

the defence version being true.  Both the Courts below  

have  held  that  such  circumstances  are  proved  by  the  

prosecution  and  that  the  only  inference  flowing  

therefrom would be that of the guilt on the part of the  

three accused persons.  The scope for interference in  

factual findings by this Court is very limited.  This  

Court would, under such circumstances, examine whether  

the findings are pervert or impossible.  Again, this is  

not a case of a single accused, and, therefore, the  

incriminating  circumstances  would  have  to  be  

individually weighed vis-à-vis each accused and it would  

have to be seen as to whether such examination justifies  

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the conviction of the accused as ordered by the Trial  

Court and the appellate Court.

11. Initially, accused No.4, Rajesh was also tried with  

the accused persons.  He was charged with the offence  

under  Sections  201,  404  and  414,  Indian  Penal  Code.  

While  convicting  him,  the  Trial  Court  has  recorded  

certain  findings  convicting  him  of  all  the  three  

offences  stated  above.   Basically,  it  was  alleged  

against Rajesh (A-4) vide Exhibit P-31, that the stolen  

property  of  gold  ornament  was  recovered  from  him.  

Exhibit P-32 is the site plan of the recovery.  Rajesh  

initially  was  roped  in  as  the  conspirator  also.  

However,  it  seems  that  he  has  been  absolved  of  the  

charge of conspiracy. In that behalf, it has been held  

by the Trial Court that he cannot be booked for that  

offence since it was not proved that he had joined the  

conspiracy to the house-breaking in the house of Ram  

Lal.  Recording this finding, the Sessions Judge also  

acquitted  him  of  the  offence  under  Section  302  and  

Section 120B, IPC.  Indeed there could be no offence  

under Section 302, IPC alleged against him as there was  

no evidence against him of his having taken part in the  

actual act of house-breaking and the assault on Ram Lal  

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and  Shanti  Devi.   It  is  only  on  the  basis  of  the  

discovery by him of ornaments and the machinery to melt  

gold  that  he  has  been  booked  for  the  offence  under  

Sections 201, 404 and 414, IPC.  The Trial Court as well  

as the appellate Court have accepted that he voluntarily  

gave information vide Exhibit P-106 after his arrest on  

13.2.2003.  Both the Courts below have further held that  

in  pursuance  of  that,  he  took  the  Panchas  and  the  

Investigating  Officer  and  discovered  ornaments  

substantial in number.  The discovery was supported by  

the evidence of PW-5, Chandulal and PW-16, Madho Singh  

while recovery of the ornaments was also supported by  

the  evidence  of  PW-35,  Kishan  Singh.   The  most  

significant of the articles discovered by this accused  

is a steel tiffin on which the name of Ramlal Lunawat  

was engraved.  The other ornaments were weighing about  

350 gms. of gold.  The Courts below have held that the  

appellant  Rajesh  was  aware  of  the  incident  and  the  

circumstance as to how the steel tiffin belonging to  

Ramlal  Lunawat  along  with  ornaments  came  to  his  

possession was not explained by him.  Besides this, the  

High Court also noted that certain jewels coming out  

from the ornaments were stuck on the melting apparatus.  

Therefore, the Courts came to the conclusion that the  

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appellant knew or had reason to know that the offence  

had been committed.  He not only tried to screen the  

offence  by  melting  the  ornaments  but  was  found  in  

possession of the stolen property like the ornaments and  

the gold ingots.  It was on this basis that Rajesh was  

convicted for offences under Sections 201 and 404 as  

also Section 414, IPC.  The High Court wrote a finding  

“on the basis of the same set of evidence, it can also  

be safely said that the appellant Rajesh assisted other  

accused appellants in disposal of the property”.  The  

High Court has specifically held that accused had not  

given  any  satisfactory  explanation  regarding  this  

recovery.  He was an ordinary government employee but  

had kept the gold ornaments in his possession knowing  

them  to  be  stolen  property.   The  Trial  Court,  

thereafter, gave a finding that it were accused Ramesh  

and Rajesh together who had melted gold ornaments and  

prepared dhalias with it, weighing 347 gms. which have  

been recovered from Ramesh and Rajesh and three ladis  

ingots weighing 151 gms.  Thus, Rajesh had received the  

ornaments from none-else than Ramesh (A-3) who himself  

was found in possession of very substantial number of  

ornaments including 10 dhalias, weighing 1347 gms. It  

was,  therefore,  obvious  that  there  was  a  definite  

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connection between Rajesh (A-4) and the other accused  

(A-1) Ramesh.  Very surprisingly, the finding regarding  

the ornaments received by Rajesh coming from Ramesh and  

fellow accused has not been challenged in any of the  

appeals.  If the ornaments were found to be belonging to  

Ramlal as they were kept in the tiffin on which the name  

of Ramlal was engraved and further if Rajesh had given  

no  explanation,  it  was  obvious  that  the  ornaments  

proceeded from accused Ramesh and his fellow accused to  

Rajesh with the sole objective of melting the ornaments.  

Rajesh knew that it was stolen property and had accepted  

the same.  In such circumstances, it was incumbent upon  

the other accused being A-1, A-2 and A-3 to challenge at  

least the finding against Rajesh even if Rajesh had not  

challenged  his  conviction.  The  finding  given  against  

Rajesh regarding the stolen property having been given  

to him by accused Ramesh ought to have been challenged.  

There was no challenge on this major circumstance with  

the result that it is now the factual situation that the  

ornaments  stolen  from  Ramlal’s  house  and  the  other  

connecting  materials  like  tiffin  were  passed  on  to  

Rajesh.

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12. However, that by itself will not be a clinching  

circumstance  against  the  three  appellants.  The  

prosecution had to prove beyond reasonable doubt that  

these three accused persons entered the house-cum-shop  

of Ramlal and then committed the murder of the two and,  

thereafter,  decamped  with  the  cash  and  substantial  

amount of ornaments.

13. A very strange argument was raised by Shri Sushil  

Kumar Jain.  According to him, the prosecution had not  

proved that there was any theft at all.  This argument  

was  not  made  even  before  the  Trial  Court  or  the  

appellate Court.  However, the argument must fail on the  

simple ground that the ornaments found with Rajesh were  

kept in a tiffin bearing the name of Ramlal.  Rajesh  

could not give any explanation of the huge amount of  

ornaments  melted  and  other  things  found  in  his  

possession.  Secondly, there was also a Katordan which  

was  found  by  the  Investigating  Officer  with  Gordhan  

(though  there  is  some  controversy  as  to  from  which  

accused the said Katordan bearing the name of Ramlal was  

found).  Even if there is such a controversy the fact of  

the matter is that the Katordan did belong to Ramlal and  

there  is  no  explanation  whatsoever  as  to  how  the  

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Katordan came out of the house of Ramlal.  Thirdly, the  

huge amount of gold which was found with Ramesh being  

1347 gms. (some ornaments being intact and some turned  

into  gold  ingots  for  which  there  was  virtually  no  

explanation, as also the ornaments found with accused  

Gordhan  and  accused  Bharat  without  any  reasonable  

explanation),  therefore,  would  completely  destroy  the  

argument of learned counsel that there was no theft.  It  

does  not  stand  to  reason  that  the  police  must  have  

collected all these ornaments from the house of Ramlal  

after the murder and planted the ornaments without any  

purpose  for  the  obvious  weakness  of  the  argument.  

Therefore, the first argument of Shri Jain on behalf of  

Ramesh,  (A-3)  that  there  was  no  theft  or  that  the  

prosecution had not proved any theft having committed at  

Ramlal’s house must fall to the ground.   

14. Considering  the  case  of  Ramesh  (A-3)  whose  

complicity has been held to be proved, Shri Sushil Kumar  

Jain, learned counsel for the said appellant submitted  

that there was contradiction with regard to the date,  

time and place of the discoveries and recoveries.  Some  

minor  contradictions  were  shown  which  are  of  no  

consequence.  The learned counsel tried to urge that  

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though  the  accused  was  arrested  on  9.2.2003  as  per  

Exhibit  P-102A  (Rojnamcha  of  the  Police  Station  

Phalodi),  according  to  Inder  Singh  (PW-10),  he  was  

arrested on 10.2.2003.  We are not impressed by this  

argument at all, particularly, in view of the evidence  

of Inder Singh (PW-10), Mahendra Pal Singh (PW-19) and  

Nagaram (PW-33).  There is nothing wrong if the said  

accused was arrested somewhere and brought to the Police  

Station Kotwali.  After all, he was carrying the huge  

amount of ornaments and cash on his person.  If that was  

so, it could not have been weighed in the open market.  

For that, he was required to be brought to the Police  

Station Kotwali.  Therefore, this argument that there  

was some contradiction in the versions, does not impress  

us.  Similarly, the learned counsel tried to argue that  

as per the evidence of Inder Singh, SHO (PW-10), after  

arresting  Ramesh  (A-3),  they  had  come  straight  to  

Nagorigate  Police  Station.   We  do  not  find  much  

substance in this argument as it is sufficiently proved  

by the prosecution that when Ramesh (A-3) was arrested,  

he was having a black bag containing huge amount of gold  

ornaments.  It does not really matter as to whether the  

proceedings were done at Adharshila or at Nagorigate or  

even at Kotwali Police Station so long as it is proved  

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that  when  apprehended,  Ramesh  (A-3)  was  carrying  the  

black bag full of ornaments and cash which has been  

successfully proved by the prosecution.  This is all the  

more  true  as  there  is  absolutely  no  explanation  by  

Ramesh (A-3) for the possession of the huge haul of  

gold.  Therefore, the so-called contradictions in the  

evidence of Inder Singh (PW-10), Mahendra Pal Singh (PW-

19) and Nagaram (PW-33) does not impress us at all.  We  

have already observed that it could not be possible for  

the police to collect all the gold and to put it against  

the three accused persons.  The learned counsel tried to  

argue that there is no mention in Exhibit P-44 (Memo of  

Arrest) of the black bags specifically.  That is not  

correct.  A look at Exhibit P-44 is sufficient to show  

that there was a black bag with Ramesh (A-3).  After  

all, he was not going to carry all these instruments in  

his shirt pockets and pant pockets.  Even if it is not  

mentioned,  that  is  of  no  consequence.   A  good  

explanation has been given that since the bag was empty,  

there was no necessity of its being sealed.  We accept  

the explanation.  Therefore, we hold that the High Court  

and the Trial Court were correct in holding that a huge  

haul of gold was found weighing as much as 1347 gms.,  

which is more than a Kilo of gold.  There was also no  

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explanation for the cash.  It is also significant that  

Ramesh  (A-3)  did  not  claim  these  ornaments  as  his  

ornaments.  All that the accused is suggesting is that  

the  ornaments  were  not  seized  from  him.   It  is  

impossible to accept this version of the accused.   

15. This takes us to a very strong circumstance against  

Ramesh (A-3) i.e. the presence of human blood on his  

(Ramesh’s) clothes.  Recovery Memo (Exhibit P-41) is in  

respect of clothes and shoes of Ramesh (A-3).  That was  

effected on 15.2.2003.  Exhibit P-42 is a site plan of  

the  recovery  of  clothes  and  shoes.  True  it  is  that  

Ramesh’s house was visited by Kishan Singh (PW-35), the  

Investigating Officer for recovery of Jharbad.  It may  

be that at that time the concerned police officer did  

not show the presence of mind by searching the house for  

recovery of clothes and shoes.  However, that by itself  

will not demolish the prosecution case.  It has to be  

borne in mind that it was in pursuance of Exhibit P-108  

that the information was given by the accused regarding  

the  clothes  and  shoes.   While  he  had  given  the  

information about the weapon of offence ‘Jharbad’ vide  

Exhibit P-103 dated 12.2.2003, we do accept that the  

police officer on 12.3.2003 itself, when he seized the  

19

murder weapon i.e. Jharbad, should have taken the search  

of the whole house.  But, failure on the part of the  

police officer to do that would not by itself wipe out  

the prosecution case, particularly, in view of the fact  

that the articles, namely, Jharbad, pant and the shoes  

were found to be stained with human blood, which is  

clear from Exhibit P-126.  We have minutely seen and  

examined Exhibit P-126, where it is seen that shirt and  

shoes of Ramesh (A-3) were stained with human blood,  

though the blood group could not be detected.  However,  

some explanation was bound to be offered by Ramesh (A-3)  

as to how the human blood came on the shoes and on the  

shirt.  There is no explanation which is worthy.  The  

murder  weapon,  however,  has  been  found  stained  with  

human blood and even its blood group has been shown to  

be ‘A’.  It is to be seen that the clothes of Ramlal  

were stained with his own blood which was of group ‘A’.  

This is a very weighty circumstance against Ramesh (A-3)  

and there is absolutely no explanation offered by Ramesh  

(A-3) of this highly incriminating circumstance.  Thus,  

it  is  clear  from  this  evidence  that  prosecution  had  

proved  its  case  against  Ramesh  (A-3)  that  he  was  

involved in the robbery which was clear from the human  

blood  detected  on  his  clothes  and  the  murder  weapon  

20

which was recovered at his instance.  Shri Jain, learned  

counsel  tried  to  attack  the  recoveries  and  the  

discoveries.   However,  both  the  Courts  below  have  

accepted the same.  In addition to this, Ramesh (A-3)  

was found to be in possession of huge amount of gold in  

form of ornaments and ingots and cash, for which he had  

no explanation.  The said articles were seized from his  

person.  It is not understood as to why the gold would  

be in the form of ingots from the recovery of the gold  

melting apparatus from Rajesh. It was clear that there  

was effort to melt the gold.  The necessity of melting  

the gold and the fact that the accused persons like  

Rajesh made efforts to melt the gold and further accused  

Ramesh being found in possession of gold ingots which  

could not have been in that form lends support to the  

theory  that  Ramesh  was  in  possession  of  the  stolen  

property.  There is no explanation by Ramesh even for  

the huge cash.  He did not accept the cash belonging to  

him.  He is not shown to be a wealthy person so as to be  

in possession of 1347 gms. of gold and a huge cash of  

about Rs. 30,000/-.  All this and the further evidence  

that his clothes and shoes were stained in blood and the  

Jharbad  (weapon)  recovered  from  him  was  also  blood  

stained with A group of blood would clinch the case  

21

against Ramesh.  Shri Jain also very earnestly suggested  

that discoveries and recoveries were farcical and that  

in fact, some of the discoveries and recoveries were  

disbelieved  by  the  Trial  Court  also  but  had  been  

accepted by the High Court.

16. We are of the clear opinion that the High Court was  

absolutely  correct  in  believing  the  recoveries  and  

discoveries also, particularly, as against the accused  

Ramesh.  There may be some irregularities here and there  

or some casual investigation by the police, however, we  

do not think that the investigation in this case was  

tainted.  There was absolutely no reason for the police  

to  falsely  implicate  Ramesh  (A-3)  and  the  other  two  

accused persons.  True it is that Phalodi is a small  

place and there was great tension prevailing on account  

of the robbery, however, that by itself will not be the  

reason for police to falsely implicate Ramesh (A-3) and  

the other two accused persons.  Nothing has been brought  

in  the  cross-examination  of  the  police  officers  and,  

more particularly, the cross-examination of Kishan Singh  

(PW-35), the Investigating Officer.  Before going to the  

other cited cases, we would consider the case of Gordhan  

Lal (A-1).

22

17. In so far as accused Gordhan is concerned, Shri  

Lahoti,  learned  counsel  appearing  for  him,  led  much  

stress on the fact that there was no blood found on  

Gordhan’s pant and T-shirt.  The learned counsel further  

says  that  it  is  obvious  that  Gordhan  was  not  the  

participant in the crime.  That statement is clearly  

incorrect.  Insofar as his T-shirt is concerned, Exhibit  

P-126 clearly speaks that human blood was found on his  

shirt.  As if this was not sufficient, his shoes were  

also found to be stained with human blood.  Therefore,  

Exhibit  P-126  would  falsify  the  claim  on  behalf  of  

accused  Gordhan  that  he  was  not  connected  with  the  

crime.  It is only his pant which seems to be innocuous  

in  the  sense  that  no  blood  was  found  on  the  same.  

However, there is no explanation by Gordhan as to how  

his T-shirt and shoes were found to be stained with  

human  blood.   Shri  Lahoti  attacked  the  recovery  of  

clothes  as  well  as  the  ornaments  on  9.2.2003.   The  

prosecution has relied on PW-6, Mohan Lal, PW-7, Dev  

Kumar and PW-11, Ajit Jain. The recovery of clothes was  

on  9.2.2003,  while  the  ornaments  were  recovered  on  

13.2.2003 and 19.2.2003.  It was only the gold chain  

which was recovered on 19.2.2003 from him.  Rest of the  

ornaments were recovered from him and it was found at  

23

the time of recovery that the ornaments were kept in a  

Katordan.  It is specifically mentioned therein that the  

name of Ramlal was engraved on the said Katordan.  The  

learned counsel very vehemently attacked this so-called  

recovery  which  was  made  on  13.2.2003.   The  recovery  

appears to have been made on 09.2.2003 vide Exhibit P-

38.  It was only on that day that the clothes and the  

shoes of Gordhan were seized.  On 19.2.2003, Gordhan  

produced the chain.  It must be remembered that this was  

the gold chain which was identified by PW-30 Rajesh in  

the  identification  parade  by  PW-22,  Jitendra  Kumar  

Pandey Tehsildar, Phalodi.

18. We have gone through the evidence of identification  

parade especially of PW-22, Jitendra Kumar Pandey and  

both the Courts having accepted the evidence about the  

identification of ornaments which were recovered from  

Ramesh.  We do not find any reason to dis-believe that  

evidence.  Therefore, it is established that Ramesh was  

undoubtedly  in  possession  of  the  ornaments  which  

ornaments can be connected with Ramlal.  In this behalf,  

we must refer to the evidence of Rajesh who claimed in  

his  evidence  that  he  identified  the  chain  of  his  

maternal uncle.  It is to be seen that Rajesh was the  

24

nephew  of  deceased  Ramlal.   He  surfaced  immediately  

after it was known that Ramlal and his wife Shanti Devi  

were murdered.  He claimed that he had seen his maternal  

uncle using the chain and two rings and his Mami i.e.  

Shanti Devi using four bangles and four rings and ear  

rings in her ears.  He was the one who performed the  

last rites of Ramlal and Shanti Devi.  He also referred  

to the search taken by police on 8.2.2003 and the Fard  

prepared therein vide Exhibit P-22.  He described that  

the goods in the shop were lying scattered and there  

were small  Potlies  containing Rs.17,000/- in cash and  

some  change.   On  18.4.2003,  he  was  called  for  

identifying  the  ornaments.   The  identification  

proceedings are to be seen from Exhibits P-24 and P-25.  

He correctly identified the chain of maternal uncle and  

also the bangles of his maternal aunt.  The learned  

counsel assailed this evidence vehemently.  The mother  

of Rajesh was the first wife of his father and Ramlal  

was the brother of his mother who was no more.  His  

claim that he used to stay with deceased Ramlal whenever  

he was in Phalodi, could not be demolished.  It was  

urged that even Ramlal’s first wife had died and Shanti  

Devi was his second wife, for whose marriage he was not  

invited.  He corrected himself and claimed that though  

25

he  was  invited,  since  there  was  a  death  of  a  close  

relative,  he  could  not  come  for  the  marriage  from  

Madras.  Even accepting that this witness was not called  

for the marriage, the fact that he used to stay with the  

deceased persons whenever he was in Phalodi could not be  

demolished.  The tenor of his evidence shows that he  

indeed was very closely connected with Ramlal.  We are  

not impressed by the huge and long cross-examination of  

this  witness.   Most  of  the  cross-examination  was  

irrelevant.  In fact, it is in his cross-examination  

that it has come that there was a mark of flower and  

patia (leaves) on the gold bangles of his maternal aunt.  

It cannot be expected that the witness would give a  

graphic  description  of  the  ornaments.   Much  cross-

examination was wasted in showing that he did not know  

from where the other bangles and chains were brought by  

the police for the identification purpose.  That was  

absolutely irrelevant.  The evidence of Jitender Kumar  

(PW-22) is extremely important inasmuch as both Ramesh  

(A-3) and Bharat Kumar (A-2) are connected because of  

that  evidence.   The  four  gold  bangles  which  were  

identified by Rajesh (A-4) were seized from Bharat Kumar  

(A-2) while the chain which was identified by him was  

seized  from  Gordhan  Lal  (A-1).   This  witness  

26

specifically stated that these ornaments were correctly  

identified.  There is hardly any cross-examination which  

is worthy and can be relied upon and accepted.  The  

cross-examination  only  consists  of  some  futile  

suggestions.  This witness had no interest against the  

accused or in favour of the prosecution.  He was doing  

his  duty.   His  evidence  connects  Gordhan  (A-1)  and  

Bharat  Kumar  (A-2)  with  the  crime.   We,  therefore,  

accept the identification.  We are also in agreement  

with the High Court that the recoveries from Gordhan Lal  

(A-1) and Bharat Kumar (A-2) of the ornaments including  

the identified bangles and the chain were fully proved.  

There is hardly any explanation by these two accused  

persons.

19. We are not impressed by the contention raised that  

the police have seized the gold chain on 19.2.2003 even  

when they had visited the same place on 9.2.2003 for  

recovering the cloths on 13.2.2003 for recovering the  

other ornaments including the Katordan.  It is quite  

possible that the police were not able to recover all  

the ornaments in one go.  The High Court has given good  

reasons to set aside the finding of the Trial Court to  

the effect that this recovery was not proved.  In fact,  

27

there is clear cut evidence on record that the ornaments  

which  were  recovered  on  13.2.2003  were  kept  in  a  

Katordan.  We have already commented that in Exhibit P35  

itself,  it  is  clearly  mentioned  that  full  name  of  

deceased  Ramlal  was  engraved  on  the  Katordan.   The  

recovery of Katordan would clinch the issue insofar as  

the  identification  of  the  ornaments  is  concerned.  

Gordhan  had  no  explanation  whatsoever  for  these  

ornaments or for the Katordan.  Therefore, it is clear  

that  Gordhan  was  also  in  possession  of  the  stolen  

property  almost  immediately  after  the  theft  and  was  

directly connected with the crime since his shirt and  

shoes were stained with human blood for which there was  

no explanation. We confirm the finding given by the High  

Court regarding the recoveries.  We have already pointed  

out earlier that the gold chain which was recovered from  

accused Gordhan was clearly identified by PW-30, Rajesh.  

We have closely seen the evidence of PW-7, Dev Kumar and  

PW-35,  Kishan  Singh.   We  have  also  considered  the  

evidence of DW-5, Chhel Singh.  We are, therefore, of  

the clear opinion that the prosecution has been able to  

prove  the  guilt  of  Gordhan  who  was  not  only  a  

participant  in  the  crime  but  was  also  found  in  

possession  of  the  gold  ornaments  including  the  gold  

28

chain  which  was  clearly  identified  by  witness  PW-

30,Rajesh.  We, therefore, confirm the finding of the  

High Court in that behalf and hold that the High Court  

was right in dismissing the appeal of Gordhan.  There is  

some  controversy  in  respect  of  the  Katordan  as  to  

whether it was seized from Gordhan or from Bharat Kumar.  

Considering the oral evidence of PW-6, Mohan Lal as also  

PW-35, Kishan Singh and further considering Exhibit P-

35, we are of the clear opinion that Katordan on which  

name  of  deceased  Ramlal  was  engraved  was  undoubtedly  

seized from this accused.  We are, therefore, of the  

clear  opinion  that  the  High  Court  was  right  in  

dismissing the appeal of this accused.

20. This leaves us with the case of Bharat which is no  

better than Gordhan’s case.  It must be remembered that  

as per Exhibit P-126, Bharat Kumar’s T-shirt as well as  

pant as also his shoes were stained with human blood and  

further his pant and shirt were found to be stained with  

blood group A which was the blood group of Ramlal.  This  

circumstance  alone  is  sufficient  to  clinch  the  issue  

against this accused.  As if this is not sufficient,  

there  has  been  the  recovery  of  gold  ornaments  from  

Bharat Kumar.  He was arrested on 7.2.2003 and vide  

29

Exhibit P-85, he agreed to produce the ornaments vide  

Exhibit  P-105.   The  ornaments  were  recovered  vide  

recovery  memo  being  Exhibit  P-53.   The  following  

ornaments were found with him:

“Silver Badia weighing 295 gms;

One pair of silver nevra weighing 270 gms;

One pair of silver kadla weighing 430 gms;

Silver ‘dhala’ weighing 076 gms;

Silver ring, bichhudi, 17 pairs of pech, 14 pech  weighing 84 gms;

One silver ingot weighing 205 gms.”

This recovery is supported by the evidence of PW-13,  

Jalim Chand.  However, the Trial Court rejected this  

recovery.  The High Court has set aside that finding and  

has held that the recovery was fully proved.  It cannot  

be forgotten that Bharat gave no explanation about the  

huge amount of silver ornaments found with him.  Again,  

we fail to follow as to how the silver ingots weighing  

205 gms. could be found unless the silver ornaments were  

turned into the shape of ingots.  Secondly, four gold  

bangles were found vide Exhibit P-114 by way of this  

discovery.  This discovery was proved by PW-11, Ajit  

Jain and in the identification proceedings vide Exhibit  

30

25, bangles were correctly identified by PW-30, Rajesh.  

We  have  already  commented  about  Rajesh  and  PW-22,  

Jitender Kumar who held the identification parade.  This  

in  fact  clinches  the  issue.   A  strong  argument  was  

advanced by the learned counsel Shri Krishnamani that  

this was a belated discovery and as such was not liable  

to be believed.  We have already held that the discovery  

made by the accused and the recovery of the ornaments in  

pursuance of that are completely credible, seen in the  

light of other evidence of his blood stained T-shirt and  

shoes.    Shri Krishnamani could not explain the finding  

of  the  blood  as  also  the  clinching  evidence  of  the  

recovery  of  ornaments  in  pursuance  of  the  discovery  

statement made by the accused.  We are, therefore, of  

the clear opinion that even this accused would be held  

liable and would be held guilty for the offence alleged  

against him.

21. We shall now consider the case law relied upon by  

the learned counsel for the defence.  Shri Jain, learned  

counsel appearing on behalf of Ramesh (A-3) then relied  

on  the  decisions  in  Chandmal  &  Anr.  Vs.  State  of  

Rajasthan [1976 (1) SCC 621], Mohd. Aman & Anr. Vs.  

State  of  Rajasthan  etc.  etc.,  [1997  (10)  SCC  44],  

31

Mahabir Sao alias Mahadeo Sao Vs. The State of Bihar  

[1972 (1) SCC 505] and Inspector of Police, Tamil Nadu  

Vs. Bala Prasanna [2008 (11) SCC 645].  Even as regards  

the detection of human blood, the learned counsel relied  

on the decisions in  State of Rajasthan Vs. Raja Ram  

[2003 (8) SCC 180],  Yeshwant & Ors. Vs. The State of  

Maharashtra etc. etc. [1972 (3) SCC 639], Raghunath Vs.  

State of Haryana & Anr. etc. etc. [2003 (1) SCC 398],  

State of M.P. Vs. Nisar [2007 (5) SCC 658] and Hardyal  

Prem Vs. State of Rajasthan [1991 Supp. (1) SCC 148] to  

suggest  that  mere  presence  of  human  blood  would  not  

constitute an incriminating circumstance.  The other two  

cases  relied  upon  by  the  learned  counsel  are  Manish  

Dixit & Ors. Vs. State of Rajasthan etc. etc. [2001 (1)  

SCC 596] and Subhash Chand Vs. State of Rajasthan [2002  

(1) SCC 702].

22. Insofar as the first group of cases is concerned,  

they are relating to the identification of the ornaments  

recovered from Ramesh.  In Chandmal & Anr. v. State of  

Rajasthan (cited supra), this Court held that unless the  

property in possession of the accused is proved to be a  

stolen property the prosecution cannot benefit from mere  

possession of such property.  That was a case where the  

32

property was recovered after two years of the murder and  

the alleged theft and, therefore, the Court held that  

presumption under Section 114 Illustration (a) of the  

Indian Evidence Act could not be applicable.  The case  

is quite different on facts.  In Mohd. Aman & Anr. v.  

State of Rajasthan etc.etc. (cited supra) the question  

was of the possession of the accused of four silver  

rings belonging to the deceased’s wife.  On facts, it  

was held that the same could not be stolen property as  

the  prosecution  had  failed  to  prove  that  the  rings  

belonged to the deceased’s wife.  It was further held  

that  even  assuming  that  the  rings  belonged  to  the  

deceased wife, it was not established by the prosecution  

that  the  said  rings  were  stolen  at  the  time  of  

commission of murder and not on earlier occasion.  The  

Court had found, on appreciation of evidence, that the  

recovery of the stolen articles was not established.  It  

was, therefore, that the Court left the said evidence  

out of the consideration.  However, that is not the case  

here.  We have already pointed out that the theft of the  

articles,  more  particularly,  the  melting  apparatus  

machine and the ornaments was fully established.  The  

identification  of  the  property  was  also  established.  

Hence the ruling is of no consequence.   

33

In  Inspector of Police, Tamil Nadu v. Bala Prasannas’  

case (cited supra), the Court observed that though the  

accused persons were found in possession of the gold  

ingots, the Court went on to hold that because of that  

it would be hazardous to come to the conclusion that in  

fact gold jewellery belonged to the deceased. That was a  

case where the earrings of the deceased remained intact  

on the body.  The case turns on its own facts.  In the  

present case, it is not only the gold which connects the  

accused  with  the  crime  but  also  the  articles  like  

Katordan and tiffin on which the name of the deceased  

was  engraved.   The  evidence  clearly  showed  that  the  

Katordan was seized with the ornaments in it.  Further,  

some of the ornaments like gold bangles and the chain  

were  actually  identified  and  we  have  accepted  the  

identification evidence. Such was not the case in the  

reported decision.  That decision would, therefore, be  

of no consequence.   

The last decision relied upon by the learned counsel  

Shri Jain reported as Mahabir Sao @ Mahadeo Sao v. The  

State  of  Bihar  (cited  supra) was  again  on  different  

facts.   In  this  case  the  description  of  the  stolen  

property itself differed.   

34

23. The learned counsel then urged, relying on State of  

Rajasthan  Vs.  Raja  Ram  (cited  supra),  that  merely  

because the articles and weapons were found with human  

blood, that by itself would not connect the accused. The  

contention was raised in respect of the murder weapon  

Jharbad.  The contention is that mere recovery of weapon  

cannot be a foundation of the prosecution case and the  

conviction cannot be made merely on the basis of such  

recovery.  It must be stated at this juncture that in  

this case the conviction of Ramesh is not being based  

merely on the recovery of weapon.  It must be remembered  

that not only were the clothes blood stained but the  

Jharbad (weapon) was also found to be stained with blood  

of  the  blood  group  A  which  was  the  blood  group  of  

deceased  Ramlal.   We  have  nothing  to  say  about  the  

principles emanating from this ruling.  However, the  

facts appear to be clearly different. The existence of  

blood on the clothes was explained in that case on the  

basis of the possibility of blood being that of the  

accused himself.  Such is not the case here.  None of  

the accused has pleaded that they were injured in any  

manner nor was any injury found on their person.  The  

ruling is, therefore, of no consequence.   

35

In  Yashwant’s case, (cited supra) the facts are quite  

different.   That  case  turned  on  account  of  the  

identification parade not having been believed.  The  

Court  proceeded  to  hold  that  though  a  blood  stained  

dhoti  was found at the accused’s residence, the blood  

group  was  not  fixed.   There  was  no  connection  

established.   It  is  on  that  ground  that  the  Court  

proceeded to give the benefit of doubt.  The Court has  

not held that in all the cases where the blood group is  

not fixed, the existence of blood on the wearing apparel  

becomes inconclusive.  In this case, the existence of  

the blood is not the only circumstance on the basis of  

which the accused has been convicted.  We, therefore,  

find no parity of reasoning in this case.   

In Raghunath’s case (cited supra) again, the Court was  

concerned with the blood stained earth, blood stained  

muffler  and  lathis.   Since  the  blood  group  was  not  

proved, the Court came to the conclusion that the mere  

fact  that  the  blood  was  human,  was  not  conclusive  

evidence.  Insofar as some of the accused persons are  

concerned, even the blood group is fixed and, therefore,  

this case would be of no consequence.

36

In  Hardayal  Prem’s case (cited  supra), the  

prosecution was not able to fix the blood group of blood  

found on the weapon.  Under those circumstances, the  

prosecution case was not accepted.  Such is not the case  

here.  The blood on Jharbad was found to be a blood of  

blood group of A which was Ramlal’s blood group.

In  Manish  Dixit’s case  (cited  supra) the  only  

circumstance was that the blood found on the motorcycle  

of the accused was found to be of the blood group of the  

deceased.  Under the circumstances, this Court declined  

to convict the accused on that sole circumstance.  It is  

very significant to note the observations made in para  

35 “if there were other circumstances apart from the  

recovery of some jewellery belonging to the deceased  

from  the  possession  of  this  accused,  perhaps  the  

aforesaid circumstance (relating to the blood stained  

found on the motorcycle) would have lent support to an  

inference against him.”   In fact the observations are  

more helpful to the prosecution than to the defence.   

The case of  Subhash Chand (cited supra) is completely  

different on facts.  That was a case where the underwear  

which was blood stained  and on which the semen stain  

was not shown to be belonging to the accused at all no  

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connection was established.  It was on that basis that  

the matter was decided.  Therefore, this case is also of  

no consequence.   

Some  other  cases  were  cited  like  oft-quoted  case  of  

Pulukari  Kottaiah  v.  King  Emperor  [AIR  1947  PC  67],  

Mohd.  Inayatullah  v.  State  of  Maharashtra [1976  (1)  

828], Pohalya Motya Valvi v. State of Maharashtra [1980  

(1) SCC 530] and Mohd. Abdul Hafeez v. State of Andhra  

Pradesh [1983 (1) SCC 143].  There is no question of the  

principles regarding Section 27, Indian Evidence Act.  

However, on facts we have found the discoveries of all  

the three accused persons in this case to be reliable in  

the peculiar facts of this case.  Lastly, the learned  

counsel relied on  Ram Pal Pithwa Rahidas v. State of  

Maharashtra [1994 Suppl. (2) SCC 73] which speaks about  

the necessity of a fair investigation.  In para 37, the  

Court has observed as under:  

“37.The quality of a nation’s civilization, it is  said, can be largely measured by the methods it  uses in the enforcement of the criminal law’ and  going by the manner in which the investigating  agency acted in this case causes concern to us.  In every civilized society the police force is  invested with the powers of investigation of the  crime to secure punishment for the criminal and  it is in the interest of the society that the  investigating agency must act honestly and fairly  and not resort to fabricating false evidence or  

38

creating false clues only with a view to secure  conviction because such acts shake the confidence  of the common man not only in the investigating  agency but in the ultimate analysis in the system  of  dispensation  of  criminal  justice.   Let  no  guilty  man  go  unpunished  but  let  the  end  not  justify the means! The courts must remain ever  alive  to  this  truism.   Proper  results  must  be  obtained by recourse to proper means- otherwise  it would be an invitation to anarchy.”

24. We  have  absolutely  no  reason  to  differ  on  the  

principle of honesty and fair investigation.  However,  

we do not find any reason here in this case to hold that  

the  investigation  was  in  any  way  unfair.   We  have  

already  held  that  merely  because  the  recoveries  were  

made from the same place which was already visited by  

the police, that would itself not dispel the evidence of  

discovery and recovery.  This we have held on the basis  

of the peculiar evidence led in this case.  True it is  

that the investigation officer should have thoroughly  

searched the premises of Gordhan and Bharat Kumar on  

9.2.2003  itself.   However,  if  the  accused  agreed  to  

discover different things on different dates and those  

things  were  actually  found  in  pursuance  of  the  

information given by the accused, the discoveries cannot  

be faulted for only that reason.

25. In short, we are of the opinion, that the appeals  

filed by the accused persons, namely, Gordhan (A-1) and  

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Bharat Kumar (A-2) have to be dismissed and they are  

dismissed.   Even  accused  No.3,  Ramesh  has  been  

convicted.   We  confirm  the  conviction  of  Ramesh.  

However, Ramesh has been awarded death sentence.  We  

would,  at  this  juncture,  consider  as  to  whether  the  

death sentence is justified in the present case.

26. Both  the  Courts  below  have  unanimously  awarded  

death sentence to accused Ramesh, treating this to be a  

rarest of the rare case.  The Trial Court has held that  

it was this accused Ramesh who inflicted injuries on  

both the deceased Ramlal and Shanti Devi.  The Trial  

Court referred to the reported decision in Shri Bhagwan  

v. State of Rajasthan [2001 (6) SCC 296] and it is only  

on that ground that accused Ramesh alone was condemned  

to death.  We are not quite satisfied with the reasoning  

given by the Trial Court.  Before awarding the death  

sentence, the Trial Court was expected to give elaborate  

reasons.  We have gone through the appellate Court’s  

judgment.  The appellate Court’s judgment relied on the  

reported decision in Suhil Murmu v. State of Jharkhand  

[AIR 2004 SC 394] which observed that a balance-sheet of  

the aggravating and mitigating circumstances has to be  

drawn up and further to accord full weightage to the  

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mitigating circumstances and then to strike just balance  

between  the  aggravating  and  mitigating  circumstances  

before the option is exercised.  The appellate Court has  

quoted paragraph 16 of that judgment and has given four  

circumstances  which  may  be  relevant  in  awarding  the  

death sentence.  They are as under:

“The  following  guidelines  which  emerge  from  Bachan Singh case (supra) will have to be applied  to the facts of each individual case where the  question of imposition of death sentence arises: -

(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. 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.

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27. In  our  opinion,  none  of  the  four  circumstances  

mentioned is available in the present case.  It is no  

doubt true that the murder of Ramlal and Shanti Devi  

was cruel.  However, that cannot be said to be brutal,  

grotesque and diabolical nor could it be said that the  

murder was committed in a revolting manner so as to  

arise intense and extreme indignation.  This was not a  

case where accused Ramesh was in a dominating position  

or in a position of trust nor could it be said to be a  

murder for personal reasons.  This is also not a case  

of bride burning or dowry death which is committed in  

order  to  remarry  for  extracting  dowry  once  again.  

Though this is a double murder, it cannot be said to be  

a crime of enormous proportion.  Ramesh could not be  

said to be a person in a dominating position as this is  

not a murder of an innocent child or a helpless woman  

or old or infirm person.  This was undoubtedly a murder  

for gains.  The High Court has come out with a case  

that  appellant  Ramesh  was  having  criminal  record.  

However, we do not find any previous conviction having  

been proved against Ramesh by the prosecution.  It is  

apparent that the original intention was theft and on  

account  of  the  deceased  having  been  awakened,  the  

accused persons took the extreme step of eliminating  

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both the inmates of the house for the fear of being  

detected.

28. It cannot be said that it was Ramesh alone who has  

committed the murder only because he was the one who  

discovered the murder weapon Jharbad.  It is not clear  

from the evidence as to who was the actual author of  

the injuries on Ramlal and Shanti Devi though all the  

three  were  participants  of  the  crime.   There  is  no  

definite evidence about the acts on the part of each of  

the accused.  It will be, therefore, difficult to say  

that Ramesh alone was the author of injuries on Ramlal  

as well as Shanti Devi.   

29. The learned counsel relied on two decision of this  

Court,  the  first  being  Dilip  Premnarayan  Tiwari  v.  

State of Maharashtra  [2010 (1) SCC 775].  The other  

decisions relied upon is  Mulla v. State of U.P. [2010  

(3)  SCC  508] as  also  Santosh  Kumar  Shantibhushan  

Beriyar v. State of Maharashtra [2009 (6) SCC 498].  In  

Mulla’s case in paragraph 80 and 81, the Court held as  

under:

“80.Another  factor  which  unfortunately  has  been left out in much judicial decision-making in  sentencing is the social-economic factors leading  to crime.  We at no stage suggest that economic  depravity  justify  moral  depravity,  but  we  

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certainly recognize that in the real world, such  factors  may  lead  a  person  to  crime.   The  48th  

Report of the Law Commission also reflected this  concern.   Therefore,  we  believe,  socio-economic  factors  might  not  dilute  guilt,  but  they  may  amount to mitigating factor i.e. the ability of  the guilty to reform.  It may not be misplaced to  note that a criminal who commits crimes due to  his  economic  backwardness  is  most  likely  to  reform.  This Court on many previous occasions  has held that his ability to reform amounts to a  mitigating factor in cases of death penalty.

81.In the present case, the convicts belong  to an extremely poor background.  With lack of  knowledge, on the background of the appellants,  we may not be certain as to their past, but one  thing  which  is  clear  to  us  is  that  they  have  committed these heinous crimes for want of money.  Though we are shocked by their deeds, we find no  reason why they cannot be reformed over a period  of time.”

The observations are extremely germane to the question  

before us.

30. There can be no dispute that this was a case in  

which money was the motive.  We have already seen that  

the  accused  person  do  not  come  from  a  wealthy  

background.  On the other hand, it has been held that  

they could not justify the possession of ornaments found  

with  them.   It  has  also  been  held  that  they  were  

unlikely  to  own  the  ornaments  on  account  of  their  

financial position.    

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31. Practically, the whole law on death sentence was  

referred to in Santosh Kumar’s case.  In paragraph 56,  

the Court observed “the court must play a pro-active  

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  

convict etc.   Quality of evidence 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  socio-

economic background of the offenders.  This issue was  

also raised in 48th Report of the Law Commission.   The  

Court, thus, has in a guided manner referred to the  

quality of evidence and has sounded a note of caution  

that in a case where the reliance is on circumstantial  

evidence, that factor has to be taken into consideration  

while awarding the death sentence.  This is also a case  

purely on the circumstantial evidence. We should not be  

understood to say that in all cases of circumstantial  

evidence, the death sentence cannot be given.  In fact  

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in Shivaji @ Dadya Shankar Alhat v. State of Maharashtra  

[2008  (15)  SC  269], this  Court  had  awarded  death  

sentence  though  the  evidence  was  of  circumstantial  

nature.   All  that  we  say  is  that  the  case  being  

dependent upon circumstantial evidence is one of the  

relevant considerations.  We have only noted it as one  

of  the  circumstances  in  formulating  the  sentencing  

policy.   Further  in  that  case  the  Court  upheld  the  

principles  emanating  from  Bachan Singh  v.  State  of  

Punjab [1980 (2) SCC 684] where the probability that the  

accused can be reformed and rehabilitated was held as  

one of the mitigating circumstances and it was observed  

that  the  State  should,  by  evidence  prove  that  the  

accused  does  not  satisfy  these  conditions,  meaning  

thereby that the accused is not likely to be reformed.  

The Court went on to hold that the rarest of rare dictum  

imposes a wide ranging embargo on the award of death  

punishment which can only be revoked if the facts of the  

case successfully satisfy double qualification :

1) that the case belongs to rarest of the rare category  and;  

2)  alternative  option  of  life  imprisonment  will  not  suffice in the facts of the case.   

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32. The Court then observed that the rarest of the rare  

dictum  places  an  extraordinary  burden  on  the  Court.  

Considering these principles, we do not think that there  

was  no  possibility  of  reformation  of  the  accused  

persons.  True it is that the accused were driven by  

their avarice for wealth but given a chance there is  

every possibility of their being reformed.  We are also  

of  the  clear  opinion  that  in  this  case  it  is  not  

established  that  alternative  punishment  of  life  

imprisonment will be futile and would serve no purpose.  

In paragraph 66 of Santosh Kumar’s case (cited supra),  

the Court observed that life imprisonment can be said to  

be completely futile only when the sentencing aim of  

reformation can be said to be unachievable.  The Court  

further went on to say “therefore, being satisfied the  

second explanation of rarest of rare doctrine the court  

will  have  to  provide  clear  evidence  as  to  why  the  

convict  is  not  fit  for  any  kind  of  reformative  and  

rehabilitation scheme.   

33. In our opinion, there has been no such exercise  

taken either by the trial Court or appellate Court nor  

do we find any discussion about the life imprisonment  

being rendered futile and serving no purpose.   

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34. In  Bachan Singh’s case (cited supra) the age of  

accused  was  held  to  be  one  of  the  mitigation  

circumstances.  Accused Ramesh is a young person.  We do  

not see any reason as to why he cannot be reformed and  

rehabilitated.

35. We must also take into consideration that this was  

the first proved offence of accused Ramesh.  No other  

conviction  has  been  proved  against  him  by  the  

prosecution. Since this is his maiden conviction, we do  

not see as to how accused Ramesh cannot be reformed.  

Further we do not see this to be an offence by the  

organized criminals so as to affect the society as a  

whole.

36. Learned counsel also relied on  Dilip Premnarayan  

Tiwari v. State of Maharashtra (cited supra) where the  

accused, who was guilty of three murders, was let off.  

That was also a case of the accused being of young age.  

The Court also took into consideration the argument that  

the deaths in that case were in reality not intended  

deaths but the dead persons became the victims of the  

circumstances since the deceased in that case tried to  

stop the assailants.  The situation is somewhat similar  

here though not identical.  We have already mentioned  

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that if the deceased Ramlal and his wife had not been  

awakened, the ghastly incident might not have occurred.  

There are number of other decisions which were relied  

upon by the learned counsel.  However, since we have  

referred to Santosh Kumar’s case (cited supra) which has  

considered the whole law on the subject, we find it  

unnecessary to repeat the same again.   

37. It  has  come  in  evidence  in  this  case  that  the  

deceased Ramlal and Shanti Devi had hair in their hands.  

The prosecution wanted to point out that it must be  

during the scuffle that the two dying persons might have  

pulled the hair of the assailants and this is how hair  

came  in  the  hands  of  the  deceased  persons.   It  is  

significant to note that on scientific examination, it  

could not be established that hair in the hands of the  

deceased belonged to accused Ramesh.  Though there are  

other clinching circumstances also to hold that Ramesh  

and the two accused were undoubtedly the assailants.  

This circumstance would also weigh in our mind in not  

confirming the death sentence.  We say this particularly  

in the light of the principles emanating from  Santosh  

Kumar’s case.  

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38. Lastly, we must take into consideration that Ramesh  

who was convicted and awarded the death sentence by the  

learned Sessions Judge in 2004 is languishing in death  

cell for more than six years.  This also would be one of  

the mitigating circumstances.

39. In short, we are of the opinion that the death  

sentence awarded to Ramesh would not be justified and  

instead we would modify the same to life imprisonment.  

However,  conviction  for  the  other  offences  as  also  

sentences awarded are confirmed.  All the three appeals  

are  accordingly  dismissed  with  the  modifications  of  

sentence in Criminal Appeal No.1236 of 2006 filed by  

Ramesh.

………………………….J.

[V.S. Sirpurkar]

………………………….J.

[T.S. Thakur]

New Delhi;

February 22, 2011.

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