SANDEEP Vs STATE OF U.P.
Bench: B.S. CHAUHAN,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-001651-001651 / 2009
Diary number: 21315 / 2009
Advocates: DAYA KRISHAN SHARMA Vs
KAMLENDRA MISHRA
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1651 OF 2009
SANDEEP ….APPELLANT
VERSUS STATE OF U.P. ….RESPONDENT
WITH
CRIMINAL APPEAL NOS.1425-26 OF 2011
SHASHI BHUSHAN …APPELLANT
VERSUS STATE OF U.P. …RESPONDENT
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. These appeals arise out of the common judgment
of the Division Bench of the High Court of Allahabad in
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Criminal Appeal No.4148/2007 along with Criminal
Reference No.19/2007 by which, the High Court while
accepting the Criminal Reference insofar as it related to
appellant Sandeep in Criminal Appeal No.1651/2009,
rejected the same insofar as it related to appellant Shashi
Bhushan in Criminal Appeal Nos.1425-26/2011. In
other words, while upholding the sentence of death
awarded to Sandeep, the appellant in Criminal Appeal
No.1651/2009, the Division Bench modified the sentence
into one of life imprisonment insofar as it related to
Shashi Bhushan, the appellant in Criminal Appeal
Nos.1425-26/2011.
2. Shorn of unnecessary facts, the case of the
prosecution as projected before the trial Court was that
on 17.11.2004 I D.N. Verma (PW-1) along with Sub-
Inspector Chander Pal Singh (PW-2), Constable Rambir
Singh, Constable Sukhram, Constable Ashok Kumar and
Driver Yashvir Singh were on patrolling duty; that when
they reached ahead of Badsu on Khatoli Road leading
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towards Falut, they met Constable Rajesh Kumar and
another Constable Ramavtar who informed PW-1 and
other persons accompanying him that one Indica car
took a turn for going towards Falut road and that they
heard some screaming noise from that vehicle. PW-1,
accompanied by the other personnel referred to above,
proceeded towards Falut road and after a distance saw
an Indica car. They stated to have seen through the
focus light of the police jeep two young men trying to pull
out a girl in an injured condition by opening the rear
door of the car. It is stated that it was around 21.30
hours. The police jeep in which PW-1 and others were
proceeding stopped ahead of the Indica car and caught
hold of the two young men and also noticed a girl, with
injuries all over, on whom acid was also sprinkled. The
girl had also sustained injuries on the head as well as on
her right cheek. On noticing the above, according to PW-
1, when he questioned her, she responded by stating that
her name was Jyoti and she is the daughter of one
Baljeet Singh, R/o Lane No.16, House No.56, Jagatpuri,
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P.S. Preet Vihar, New Delhi and that her mother’s name
was Varsha whose cell number was 9871020368.
Inspector D.N. Verma (PW-1) stated to have gathered
information from her that she developed friendship with
the appellant Sandeep while she was working in a mobile
shop. She also stated to have revealed that she was
pregnant. According to the information gathered from
Jyoti, accused Sandeep had called her on that evening
and asked her to come to Laxmi Nagar market, Delhi,
around 6 p.m. promising her that he will marry her at
Haridwar. Believing his words, she went to Laxmi Nagar
market from where she was taken in a car and that while
they were moving in the vehicle, accused Sandeep asked
Jyoti to get the foetus aborted at Meerut, to which she
disagreed. On this, he started beating her inside the
vehicle right from the point of Modinagar. She stated to
have further informed PW-1 and others that she told
accused Sandeep that she would reveal all facts to his
family members as well as to the police and that when
the vehicle in which they were travelling turned towards
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an isolated place near Khatoli, they tried to throw her
into the sugarcane field at which point of time PW-1 and
other police members reached the spot. According to her
information to PW-1, accused Sandeep and Shashi
Bhushan caused the injuries on her with the aid of a jack
and pana (spanner) apart from cutting her with a blade
and also by pouring acid on her head. PW-1 stated that
on noticing the condition of the girl, he arranged for
shifting her to Muzaffarnagar Government Hospital in the
police jeep along with Constable Rambir Singh and the
driver of the jeep. It was further stated that accused
Sandeep and Shashi Bhushan, on being apprehended,
also revealed their names and informed that accused
Sandeep used to visit deceased Jyoti while she was
working in a mobile shop in Mayur Vihar Phase-I for the
last six months prior to the date of occurrence and
developed friendship with her, and that in course of time,
deceased Jyoti pressurized him to marry her. On the
date of occurrence, around 6 p.m. he stated to have
called her over phone to meet him at Laxmi Nagar red
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light, that she responded to his call and came to Laxmi
Nagar red light where accused Sandeep was waiting
along with his friend Shashi Bhushan who drove the
vehicle Indica car bearing registration No. DL 3CR 6666
which belonged to his mother. Accused Sandeep stated to
have extended a promise to marry her at Haridwar.
While the vehicle started moving, accused Sandeep asked
Jyoti to get the foetus aborted to which she did not agree
instead threatened him by saying that she will reveal all
facts to his parents as well as to the police and that as
they reached Modinagar, he started beating her.
According to the version of accused Sandeep, as told to
PW-1, at Modinagar he purchased two bottles of acid and
four shaving blades, that when they reached Khatoli, on
seeing an isolated place, they tried to pull out the injured
Jyoti from the vehicle and that at that point of time they
were apprehended by the police. It is the case of the
prosecution that while both the accused were taken into
custody, the vehicle in which they were travelling was
also seized along with the jack and pana, four blades and
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two acid bottles. The articles, namely, blood stained floor
mat, empty bottles of acid, one pair of ladies footwear
were stated to have been seized after preparing a seizure
memo. A copy of the seizure memo was stated to have
been handed over to the accused. It is the specific case
of the prosecution that since it was late in the night and
it was a lonely place, there were no independent
witnesses other than the police personnel. The seizure
memo was marked as Exhibit K-1.
3. The statement of PW-1 was registered as FIR
No.Nil/2004 on the files of P.S. Ratanpuri on 17.11.2004
against both the accused persons for offences under
Sections 307, 326, 324 and 328, Indian Penal Code (in
short ‘IPC’) which came to be subsequently altered later
on as one under Sections 302/34 IPC after the victim
was declared dead by the hospital authorities. On the
above set of facts, District and Sessions Judge,
Muzaffarnagar framed charges against both the accused
persons for offences under Section 302, IPC read with
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Section 34, IPC and Section 316, IPC read with Section
34, IPC and proceeded with the trial. In support of the
prosecution as many as 10 witnesses were examined.
4. When the accused persons were questioned
under Section 313, Cr.P.C. for offences under Section
304, IPC read with Section 34, IPC and Section 316 read
with Section 34, IPC, both the accused pleaded not guilty
and also filed a written statement to that effect. The trial
Court in its judgment dated 02.06.2007 ultimately found
the accused persons guilty of offences under Section 302
read with Section 34, IPC and 316 read with Section 34,
IPC and after hearing both the accused persons on the
question of sentence, took the view that having regard to
the magnitude and the diabolic manner in which the
offences were committed by them and also having regard
to the various principles laid down in the decisions of
this Court in relation to the award of death penalty
concluded that, the case on hand was one such case
which fell under the category of ‘rarest of rare case’ in
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which the accused deserved to be inflicted with the
capital punishment of death under Section 302, IPC read
with Section 34, IPC. Ultimately, the trial Court
convicted and sentenced both the accused persons to
death under Section 302 read with Section 34, IPC apart
from imposing a fine of Rs.30,000/- each and also
sentenced them to undergo 10 years rigorous
imprisonment and pay a fine of Rs.10,000/- each for
offences under Section 316 read with Section 34, IPC and
in default of payment of fine sentenced them to undergo
further rigorous imprisonment for one year. The
sentences were to run concurrently. On realization of
fine from the accused persons, a sum of Rs.50,000/- was
directed to be paid to the parents of the deceased Jyoti as
compensation.
5. While hearing the Criminal Reference
No.19/2007 as well as Criminal Appeal No.4148/2007
preferred by the appellants, the High Court while
confirming the death penalty imposed on appellant
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Sandeep held that the case of accused Shashi Bhushan
was distinguishable and that the gravity of the offence
did not warrant infliction of extreme punishment of death
and consequently altered the same into one of
imprisonment for life.
6. We heard Mr. Sushil Kumar, learned senior
counsel for the appellant in Criminal Appeal
No.1651/2009 assisted by Mr. Daya Krishan Sharma
and Mr. D.P. Chaturvedi, learned counsel for the
appellant in Criminal Appeal Nos.1425-26/2011 for
appellant Shashi Bhushan. We also heard Mr. Ratnakar
Dash, learned senior counsel assisted by Mr. Rajeev
Dubey, for the State.
7. Mr. Sushil Kumar, learned senior counsel in his
elaborate submissions after referring to the evidence of
the prosecution witnesses and medical evidence as well
as expert witnesses submitted that the so called dying
declaration of the deceased Jyoti was not proved, that the
confessional statement of the accused cannot be relied
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upon, that there were very many missing links in the
chain of circumstances and therefore the guilt of the
accused cannot be held to be made out. According to the
learned senior counsel there were discrepancies in the
timing of registration of the F.I.R., delay in sending of the
report to the Magistrate apart from vital contradictions in
the evidence of the police witnesses.
8. Learned senior counsel also contended that there
were serious lacunae in the preservation of foetus
samples and, therefore, the ultimate D.N.A. test result
cannot be accepted.
9. Learned senior counsel further contended that
non-examination of some of the cited witnesses caused
prejudice to the accused and on that ground also the
case of the prosecution should be faulted. He further
contended that the case of the accused about the theft of
the Indica car was not properly appreciated by the Courts
below. It was also contended that there were infirmities
in regard to the recoveries which were not properly
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examined by the Courts below. Lastly, it was contended
that it was not a case for conviction and in any event not
‘rarest of rare case’ for imposition of capital punishment
of death sentence.
10. Mr. D.P. Chaturvedi, learned counsel appearing
for the accused –Shashi Bhushan apart from adopting
the arguments of Mr. Sushil Kumar, learned senior
counsel contended that out of 17 injuries alleged to have
been sustained by the deceased Jyoti, at least 7 to 8
injuries were serious and in such circumstances there
would not have been any scope for the deceased Jyoti to
have made any statement as claimed by the prosecution.
According to him there was absolutely no overt act
attributed to the accused Shashi Bhushan in the matter
of infliction of injuries on the body of the deceased Jyoti
and consequently even the imposition of life sentence
was not warranted.
11. As against the above submission, Shri Ratnakar
Dash, learned senior counsel appearing for the State
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contended that evidence of the prosecution witnesses
who were all police personnel was fair, impartial and
natural and there was no reason to doubt their version.
He would contend that when there was no independent
witness present at the place of occurrence, there was no
question of examining any such private witness.
According to him, the deceased was alive at the time
when the accused were apprehended by the police on
17.11.2004 at 21.30 hrs. and the injuries noted by the
doctor would show that the deceased was capable of
making a statement and, therefore, the recording of such
statement by PW-1 in his complaint was perfectly in
order. He further contended that even in the statements
of the accused such of those versions made by them
which did not in any way implicate them in the offence
was admissible under Section 8 of the Evidence Act while
the rest of the statements which are likely to implicate
them can be distinguished and eliminated from
consideration.
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12. Learned senior counsel relied upon the decision
of this Court in State of W.B. v. Mir Mohammad Omar
& Ors.- 2000 (8) SCC 382 and Somappa Vamanappa
Madar & Shankarappa Ravanappa Kaddi v. State of
Mysore – (1980) 1 SCC 479] in support of his
submissions.
13. Learned counsel also contended that no prejudice
was demonstratively shown by the non examination of
the cited witnesses. Learned counsel contented that
going by the version of the expert witnesses, the
preservation of the foetus was according to the
prescribed norms and the D.N.A. result having been
proved in the manner known to law cannot be doubted.
He also contended that when the registration of the F.I.R.
was promptly made, simply because there was minor
delay in the alteration of the offence from Section 307,
IPC to Section 302, IPC and the subsequent forwarding of
the express report to the Magistrate cannot be fatal to the
case of the prosecution.
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14. Learned counsel relied upon the decision in Sunil
Kumar and Anr. Vs. State of Rajasthan - (2005) 9 SCC
283, Ram Kumar v. State (NCT) of Delhi- [(1999) 9
SCC 149, Tej Prakash v. The State of Haryana -
(1995) 7 JT 561 in support of his submissions.
15. Having heard learned Senior counsel for the
appellants and learned senior counsel for the State and
having perused the material papers, original records and
the judgments of the trial Court as well as the Division
Bench of the High Court, we wish to note the broad
spectrum of the appellants’ challenge to the conviction
and sentence which can be noted as under:
(I) The case of the prosecution which was mainly based on the so-called dying declaration of the deceased and the confessional statement of the accused cannot be accepted as the same was not proved.
(II) The accused were able to demonstrate that they were not present at the time of the commission of the alleged offence on 17.11.2004, as there were very many disruptions in the chain of circumstances to rope in the appellants.
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16. When the submissions made on behalf of the
appellants are analyzed, the following facts were
claimed to support their stand:-
a) The entire case of the prosecution was dependent on the version of witnesses, majority of whom were police personnel and there was no independent witness to support the version of the police.
b) The source of the FIR was the alleged dying declaration of the deceased which was not proved and the so-called confession of the accused Sandeep was inadmissible under Section 25 of the Evidence Act.
c) If the confession is inadmissible, the whole case depended on circumstantial evidence.
d) The case which was originally registered under Section 307, IPC was altered into one under Section 302, IPC belatedly.
e) There were very many missing links in the chain of circumstances.
f) There were serious infirmities in the tests conducted in the samples of the foetus which seriously undermine the case of the prosecution.
g) Though the occurrence took place in a public place near a crusher unit where number of labourers were working, the absence of examination of independent witnesses was fatal to the case of the prosecution.
h) Non-examination of some of the key witnesses cited in the charge-sheet whose evidence would have otherwise supported the case of the
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accused caused serious prejudice and on that ground the case of the prosecution should fail.
i) The delay in sending the express report was a serious violation of Section 157, Cr.P.C. which would again vitiate the case of the prosecution.
j) The alleged seizure of materials from the car was highly doubtful, having regard to certain vitiating circumstances.
k) Accused Sandeep was roped in falsely by creating a link with his mother’s car, which according to Sandeep, was stolen on the date of occurrence, which was omitted to be considered in the proper perspective.
l) When admittedly there was a pending rape case relating to the deceased in which certain persons were accused of having committed rape on the deceased on 17.04.2004 which was tacitly admittedly by Baljeet Singh (PW-8), father of the deceased, there was every scope for the aggrieved persons in the said criminal case to have involved in the crime against the deceased.
17. As against the above, when the stand of the
learned counsel for the State is analyzed, the following
points emerge for consideration:-
i)The relationship of Sandeep (A-1) with the deceased and the carrying of the foetus in the womb of the deceased was not in dispute.
ii) Merely because the key witnesses were police personnel, that by itself cannot be a
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ground to eschew that evidence from consideration.
iii) The case of the prosecution based on the statement of the deceased as spoken to by the witnesses cannot be doubted.
iv) The statement of the deceased to the police insofar as it related to the incident and such of those admissions of the accused not implicating them to the offence was admissible in evidence under Section 8 and not hit by Section 25 of the Evidence Act.
v) when there were no independent witnesses present at the place of occurrence, the grievance of the accused on that score does not merit consideration.
vi) The medical evidence, in particular, injuries noted in the post-mortem certificate show that the deceased was capable and did make the statement as demonstrated by the prosecution.
vii) The forensic report established the presence of blood on the weapons used as well as in the car which was one of the clinching circumstances to prove the guilt of the accused.
viii) The outcome of the DNA test established the link of the accused with the deceased to prove the motive for the crime.
ix) The claim of theft of the car was not established before the trial Court in the manner known to law.
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x) The presence of the accused at the time and place of occurrence was proved beyond all reasonable doubts.
xi) The handling of the samples sent for chemical and forensic examination was carried out in accordance with the prescribed procedure.
xii) The accused failed to show that the non- examination of any of the cited witnesses caused prejudice to them before the trial Court and, therefore, the grievance now expressed will not vitiate the case of the prosecution.
xiii) The various other discrepancies alleged were all minor and the same do not in any way affect the case of the prosecution.
18. Keeping the above respective submissions in
mind, when we analyze the case in hand the following
facts are indisputable:-
a. The relationship of Sandeep with deceased, prior to the date of occurrence, namely, 17.11.2004 as his girlfriend;
b. The deceased was carrying the foetus of six months old in her womb;
c. The Indica car in which the deceased was found on the date and time of occurrence belonged to the mother of accused Sandeep;
d. At the time when the deceased was secured by the police on 17.11.2004 at
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21.30 hours she was seriously injured but was alive;
e. The death of the deceased was ascertained by the Dr. B.S. Chaudhary (PW-6) at 10.55 p.m.
f. As per the post-mortem certificate, there were as many as 17 injuries which were caused by blunt weapons like jack and pana (spanner), shaving blades and also chemical acid.
g. Police witnesses were all on patrol duty on the date of occurrence.
h. The DNA test disclosed that accused Sandeep was the biological father of the foetus found in the womb of the deceased.
i. The theory propounded by the accused i.e. the car was stolen on 17.11.2004 was not established before the trial Court in the manner known to law.
j. The statement of the accused as stated to have been made to PW-1 contained various facts unconnected to the crime and also the self incriminating facts which could be distinguished.
k. The absence of any independent witness at the place of occurrence.
19. Keeping the above factors, the existence of which
is borne out by acceptable legal evidence, when we
examine the submissions made on behalf of the
appellants, in the foremost, it was contended that the
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deceased could not have made a statement as claimed by
Inspector D.N. Verma (PW-1) since according to
Constable Ramavatar Singh (PW-3), he noticed acid
injuries in the inner mouth of the deceased. However
forceful the above submissions may be, we find that such
a submission merely based on the version of PW-3 alone
cannot be accepted. Whatever injuries sustained by the
deceased were borne out by medical record, namely,
post-mortem certificate and the evidence of the doctor
who issued the said certificate. As many as 17 injuries
were noted in the post-mortem certificate. According to
the version of PW-3, injury in the mouth was caused by
acid. When we examine such of those injuries caused by
acid and as spoken to by PW-6, doctor, injury Nos. 4 and
17 alone were stated to have been caused by acid. Injury
Nos.4 and 17 have been described as under:-
“4. chemical burn injury from all over head, hair were charring and skin burnt chemically.
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17. Chemical burn injury all over body ranging from 12cm x 8cm to 2cm x 4 cm except upper part of chest.”
20. Going by the above description of the injuries, as
noted by the doctor who conducted the post-mortem, it is
difficult to accept the statement of learned senior counsel
for the accused that the injury in the mouth was such as
the deceased could not have made any oral statement at
all to the witnesses. It is true that by the pouring of the
acid, injury might have been caused on the head and
other parts of the body of the deceased but by no stretch
of imagination, those injuries appear to have caused any
severe damage to the mouth of the deceased, much less
to the extent of preventing her from making any
statement to the witnesses. In this context, when we
peruse the evidence of the Doctor (PW-6), he has
specifically expressed an opinion that he was not in a
position to state whether after receipt of injury on the
body of the deceased she would have been in a position
to speak or not. In other words, the doctor who had
examined the injuries sustained by the deceased did not
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rule out the possibility of the deceased making any
statement irrespective of injuries sustained by her. In
this context, when we refer to the submission made on
behalf of the appellants themselves before the Division
Bench of the High Court, we find that it was specifically
contended that the deceased sustained multiple injuries
and except one injury, all other injuries were simple in
nature and none of the injuries were sufficient in the
ordinary course of nature to cause the death of the
deceased. Therefore, even going by the stand of the
appellants, the condition of the deceased, even after
sustaining multiple injuries, was such that she was alive,
conscious and her death was not instantaneous.
21. Having regard to the above factors, we are
convinced that the case of prosecution that the deceased
made a statement about the sequence of the occurrence
was really made as spelt out by the witnesses PW Nos. 1
to 5.
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22. With this, we come to the next submission of
learned counsel for the appellants, that in the absence of
independent witnesses, no reliance can be placed upon
PW Nos.1 to 5, who were all police personnel. To deface
the evidence of PW Nos. 1 to 5, it was contended that
near the place of occurrence, a crusher unit was existing,
and at that point of time, the crusher unit was also
working. It was suggested to PW-1 that the crusher unit
was around 100 yards away from the place of
occurrence. It was also suggested to PW-2 that the
crusher unit was running at that point of time which was
100 yards away from the place of occurrence. In another
place, it was stated by PW-3 that the crusher unit was
around ½ KM away from the bridge and it was working.
It was also stated by him that at that point of time, 3-4
persons were working in the crusher unit. From what
has been stated by the above witnesses, what all that can
be inferred was that a crusher unit was at least 100
yards away from the place of occurrence and that even at
that point of time, namely, at 21.30 hours, the unit was
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working with at least 3-4 labourers. Beyond the above
fact, it was not the case of the appellant that any worker
from the crusher unit was present at the spot and yet he
was neither shown as a witness nor examined and
thereby any prejudice was caused to the appellants. It is
also not the case of the appellants that apart from the
labourers working in the crusher unit, any other
independent witness was present at the spot who was
not cited nor examined as a witness. Therefore, when
the above facts are clear, we are at a loss to understand
as to how the grievance of the appellants as regards non-
examination of any independent witness can be taken as
a factor to put the case against the prosecution and to
hold that the whole case of the prosecution should be set
at naught. Apart from the above, no other point was
raised as regards the non-examination of any
independent witness as to the occurrence narrated by the
prosecution.
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23. One other submission made by the learned
senior counsel was that after finding out the cause of the
occurrence from the deceased and after noting that she
was seriously injured, the police party arranged for
shifting her to the hospital in the police jeep along with
Rambir Singh and the driver of the jeep within 2-3
minutes and that there was no justifiable ground for not
examining Rambir Singh who was also cited as a witness
but yet not examined and also for the non-examination of
the driver of the jeep. The contention of the learned
senior counsel was that after shifting the deceased from
the Indica car to the jeep in a serious condition, the jeep
would have travelled for at least an hour or so to reach
the hospital and Constable Rambir Singh who
accompanied her would have been in a better position to
state as to what transpired during that period and what
was heard by him from the deceased which would have
thrown much light on the occurrence. The learned senior
counsel, therefore, contended that serious prejudice was
caused to the accused by non-examination of the said
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Rambir Singh as well as the driver whose version would
have otherwise been favourable to the appellants.
24. Learned senior counsel appearing for the State,
however, contended that in every criminal case it is not a
rule that all cited witnesses should be necessarily
examined. He also contended that the non-examination
of a witness can be put against the prosecution if non-
examination would have caused any serious prejudice to
the defence. He also relied upon the decision reported in
Tej Prakash (supra) in support of his submission. As
far as the said submission is concerned, when we
examine the sequence of events, we find that after
gathering whatever information from the deceased, as
regards the occurrence implicating the accused, which
were the required details for PW-1 to lodge the necessary
complaint, his immediate priority was to attend on the
injured person in order to save her life. Such a course
adopted by PW-1 and other police personnel at the place
of occurrence was quite natural and appreciable.
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Visualizing what had happened at the place of
occurrence as narrated by the prosecution witnesses, it
was brought out that whatever basic information
required to ascertain the cause of occurrence was
gathered by the prosecution witnesses as disclosed in the
complaint, which was registered as FIR and also as
stated by the witnesses before the Court. The contention
that the examination of Constable Rambir Singh and the
driver of the jeep, who took the injured deceased to the
hospital, would have disclosed very many other factors
favourable to the accused was only a wishful thinking.
In any case, what those persons would have deposed as a
witnesses and to what extent it could have been
advantageous to the appellants was not even highlighted
before us. We ourselves wonder what other evidence,
much less, favourble to the accused could have been
spoken to by Constable Rambir Singh who was entrusted
with the task of admitting the injured victim in the
hospital in order to give necessary treatment for her
injuries. Since PW-1 thought it fit to shift the injured to
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the hospital after noticing her serious condition, and the
further fact that by the time they reached the hospital
around 10.55 p.m., doctor found that the deceased was
dead, it can be safely held that nothing worthwhile could
have been drawn from the mouth of Constable Rambir
Singh or the driver of the jeep except stating that they
dutifully carried out the task of admitting the injured in
the hospital as directed by their superiors. We, therefore,
hold that the appellants could not demonstrate as to any
prejudice that was caused by the non-examination of
Constable Rambir Singh and the jeep driver in order to
find fault with the case of the prosecution on that score.
In this context, reliance placed upon by the learned
senior counsel for the State in Tej Prakash (supra) can
be usefully referred to. In para 18 of the said decision,
this Court made it clear that all the witnesses of the
prosecution need not be called and it is sufficient if
witnesses who were essential to the unfolding of the
narrative are examined. Applying the said principle to
the case, it can be safely held that the witnesses who
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were examined were able to unfold the narration of
events in a cogent and convincing manner and the non-
examination of Constable Rambir Singh and the jeep
driver was, therefore, not fatal to the case of the
prosecution.
25. Learned senior counsel for the appellants then
contended that the appellants were not present at all at
the time of occurrence, that the appellant Sandeep was
called to the police station in furtherance of the
complaint lodged by him as regards the theft of his
mother’s car on 17.11.2004 and that for that purpose
when he went to the police station, he was falsely
implicated into the offence. According to the appellants,
the deceased was already involved in a case of rape
committed by one Manoj on 17.04.2004. In that case,
the complaint preferred by the deceased was at the stage
of trial before the Court of Sessions Judge. It was
contended that by misusing the stolen car of the
appellant’s (Sandeep) mother, the crime could have been
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committed by somebody else but unfortunately the
appellants were implicated into the offence. In order to
appreciate the said submission of the appellant-Sandeep,
in the first place, when we examine the stand that his
mother’s car was stolen on 17.11.2004, we find that
except the ipse dixit statement made in the written
statement to the questioning made under Section 313
Cr.P.C. and reference to an alleged report as regards the
theft of the car, there was no other fact placed before the
trial Court. The trial Court while dealing with the said
contention has noted as under:-
“…………the accused Sandeep filed a photo copy of the report which is neither proved nor it can be taken into consideration. No FIR has been filed nor the same is proved by any police officials. The accused has also not examined himself or any other person in support of his above contention. The contention of the accused Sandeep that the car was stolen on 17.11.2004 from Geeta Colony is totally false and frivolous. ADGC contended that father of accused Sandeep is in police department posted as Sub-Inspector and had tried to manipulate a false story. The recovery of Indica car, namely, DL 3CR 6666 on the spot along with accused persons by Inspector D.N. Verma (PW-1) of PS Ratanpuri with the injured Jyoti is a very important factor which
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proved the involvement of the accused person and strengthens the prosecution case.”
26. We see no reason to differ from the above
conclusion of the trial Court. If the theory of theft of
Indica car is ruled out and the presence of the car on the
spot was indisputable, it should automatically follow that
the car could have been brought at that place along with
the deceased, driven by accused Shashi Bhushan along
with Sandeep only in the manner narrated by the
prosecution. Apart from merely suggesting that the
Indica car was stolen which was not fully supported by
any legally admissible evidence, no other case was
suggested by the appellants.
27. When the accused Sandeep took a positive stand
that he was not present at the place of occurrence by
relying upon a fact situation, namely, he was not
responsible for bringing the Indica car belonging to his
mother at the place of occurrence along with the
deceased, the burden was heavily upon him to establish
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the plea that the car was stolen on that very date of
occurrence, namely, 17.11.2004 and, therefore, he could
not have brought the deceased in that car at that place.
Unfortunately, by merely making a sketchy reference to
the alleged theft of the car in the written statement and
the so-called complaint said to have been filed with the
Geeta Colony police station nothing was brought out in
evidence to support that stand. In this situation, Section
106 of the Evidence Act gets attracted. When according
to the accused, they were not present at the place of
occurrence, the burden was on them to have established
the said fact since it was within their special knowledge.
In this context, the recent decision of this Court reported
in – Prithipal Singh and Ors. Vs. State of Punjab and
Anr.-(2012) 1 SCC 10 can be usefully referred to where
it has been held as under in para 53 :
“In State of W.B. v. Mir Mohammad Omar, this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the
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accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused……”
The contention of accused Sandeep was, therefore,
bound to fail and the said defence taken was not proved
to the satisfaction of the Court. The failure of the
accused Sandeep in not having taken any steps to prove
the said fact strikes at the very root of the defence,
namely, that he was not present at the place of
occurrence. As a sequel to it, the case of the prosecution
as demonstrated before the Court stood fully established.
28. Having regard to the above conclusion that the
deceased did narrate the occurrence right from the
invitation made by the accused Sandeep to her over
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phone at 6 p.m. under the guise of taking her to
Haridwar to marry her, that after she responded to the
said call and met him from where she was picked up by
both the accused in the Indica car belonging to the
mother of accused Sandeep, and the other sequence of
events, namely, the threat posed to the deceased to get
the foetus aborted and her refusal ultimately enraged the
appellants to cause the assault with the weapon, namely,
jack and pana, shaving blades and chemical acid was
quite convincing and there were no good grounds to dis-
believe her statement. No other motive or any other
basis was shown to disbelieve her statement. In that
respect, when we consider the reliance placed upon the
admissible portion of the statement of the accused, we
are unable to reject outrightly the entirety of the
statement by application of Section 25 of the Evidence
Act. According to learned senior counsel for the
appellants, the prosecution could not have relied upon
the confessional statement of the accused implicating
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themselves in the offence alleged against them by virtue
of Section 25 of the Evidence Act.
29. As against the said submission, Mr. Ratnakar
Dash, learned senior counsel appearing for the State
rightly pointed out that Section 25 of the Evidence Act
can be pressed into service only insofar as it related to
such of the statements that would implicate himself
while the other part of the statement not relating to the
crime would be covered by Section 8 of the Evidence Act
and that a distinction can always be drawn in the
statement of the accused by carefully sifting the said
statement in order to identify the admission part of it as
against the confession part of it. Learned senior counsel
drew our attention to the evidence of PW-1 where the
said witness narrated the statement made by accused
Sandeep which consisted of mixture of admission as well
as confession. In that learned senior counsel pointed out
that the accused Sandeep made certain statements,
namely; that Jyoti was working in a mobile shop in
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Mayur Vihar, Phase I where he used to visit; that during
that period around six months before he developed
physical relations with her; that the deceased Jyoti was
applying pressure on him to marry her, and that around
6 p.m. on the date of occurrence, he called her over
telephone to meet him at Laxmi Nagar red light. He
further told the witness that the Indica car bearing
registration NO.DL 3CR 6666 was owned by his mother
and that promising to marry her at Haridwar, he took the
deceased Jyoti along with him. He also told the witness
that while the car was moving he asked the deceased
Jyoti to get the foetus aborted to which she did not agree.
According to PW-1, Sandeep also told him that he
purchased two bottles of acid and four blades at
Modinagar, that when they reached Khatoli, he saw a
road free from disturbance towards which the vehicle was
driven and that in that place they were apprehended by
the police. Learned senior counsel also referred to
certain other statements made by Sandeep to PW-1,
namely, that on that day he planned with his friend
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Shashi Bhushan to eliminate Jyoti from his life and that
when Jyoti told him that she was going to reveal the fact
of carrying his child in her womb to his family members
and the police, he started beating her along with his
friend. Learned senior counsel fairly stated that while
the last part of the statement would fall under the
category of confession, which would be hit by Section 25
of the Evidence Act, the former statements which do not
in any way implicate the accused to the offence, would be
protected by Section 8 of the Evidence Act and
consequently the said part of the statement was fully
admissible. We find force in the submission of learned
senior counsel for the State. It is quite common that
based on admissible portion of the statement of accused
whenever and wherever recoveries are made, the same
are admissible in evidence and it is for the accused in
those situations to explain to the satisfaction of the Court
as to the nature of recoveries and as to how they came
into possession or for planting the same at the places
from where they were recovered. Similarly this part of
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the statement which does not in any way implicate the
accused but is mere statement of facts would only
amount to mere admissions which can be relied upon for
ascertaining the other facts which are intrinsically
connected with the occurrence, while at the same time,
the same would not in any way result in implicating the
accused into the offence directly.
30. In that view, when we examine the statements
referred to by learned senior counsel for the State which
were stated to have been uttered by the accused to PW-1,
we find the first statement only reveals the fact of
accused Sandeep’s friendship developed with the
deceased Jyoti six months prior to the occurrence and
the physical relationship developed by him with her.
Accepting the said statement cannot be held to
straightway implicate the accused into the crime and
consequently it cannot be construed as a confessional
statement in order to reject the same by applying Section
25 of the evidence Act. In this context the reliance
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placed upon the decision of this Court reported in Bheru
Singh S/o Kalyan Singh v. State of Rajasthan –
(1994) 2 SCC 467 is quite apposite. In the said decision,
this Court in paragraph 16 and 19 has held as under:-
“16. A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Cr.P.C deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression "accused of any offence" in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the
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admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 Cr.P.C. a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial.(emphasis supplied)
19. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the blood stained sword with which according to him he committed the murders. In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station, which was blood stained, is also
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saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to the extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence. (Emphasis supplied)
31. Another submission made on behalf of the
appellants was that there was inordinate delay in
sending the express report as well as in altering the
offence. The crime was initially registered as one under
Section 307, IPC and subsequently altered as one under
Section 302, IPC. It was pointed out that immediately
after registration of the FIR based on the complaint of
PW1 at 23.15 hours on 17.11.2004, the crime was
registered under Section 307, etc., the same came to be
altered only on 20.11.2004 even though the factum of the
death of the deceased was intimated by PW-6 on
19.11.2004 itself by 1 p.m. It was further contended that
the registration of the complaint after its alteration on
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20.11.2004, the express report was forwarded to the
Magistrate only on 25.11.2004 which was in derogation
of the prescription contained in Section 157, Cr.P.C.
Based on the above discrepancies, it was contended that
the purported delay was only to antedate the FIR to suit
the convenience of the prosecution. The submission is on
the footing that the prosecution developed the case for
implicating the accused while the accused were not really
involved in the offence and, therefore, they took their own
time to register the complaint. In order to support the
said stand, learned counsel also went on to rely upon the
statement of PW-1 as compared to Soubir Singh (PW-5),
that while PW-1 stated in his evidence that they reached
back the police station at around 23.45 hours, PW-5 in
whose presence the complaint was stated to have been
registered mentioned the time as 23.15 hours. We do not
find any serious infirmity based on the said statement.
When the preference of the complaint by PW-1 and its
registration cannot be doubted in the absence of any flaw
in its preference and registration, minor difference in the
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timing mentioned by the witnesses cannot be taken so
very seriously to hold that the very registration of the
complaint was doubtful. In fact PW-1 in his chief
examination in another place has also referred to the
registration of the FIR at 23.15 hours though the
appellants counsel wanted to rely on the statement of the
said witness to the effect that they all reached back the
police station at around 23.45 hours. Apparently, there
appears to be some mistake in recording the timing as
stated by PW-1. Therefore, nothing turns much on the
said submission of learned counsel for the appellants.
As far as the contention that there was considerable
delay in altering the offence from Section 307, IPC to
Section 302, IPC was concerned the said submission was
made by referring to the evidence of the Doctor (PW-6)
who conducted the post-mortem that by 10.55 p.m. on
17.11.2004 itself the death of the deceased was
confirmed when the victim was admitted to the hospital
which was also known to Constable Rambir Singh who
accompanied the victim to the hospital. It was also
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pointed out that PW-6 sent the intimation about the
death of the deceased to the police station at 23.10 hours
while keeping the body in the mortuary. To the above
submission, on behalf of the State, it was sought to be
explained that even though the death intimation was
dated 17.11.2004 itself, since the post-mortem was held
only on 19.11.2004 and the post-mortem report was
received on 20.11.2004 the offence came to be altered
based on the post-mortem report on 20.11.2004.
Though the said explanation cannot be said to be fully
satisfactory, it will have to be stated that when there was
no serious infirmity in the registration of the FIR based
on the complaint on 17.11.2004 (i.e.) immediately after
the occurrence and every follow-up action was being
taken meticulously, we hold that such a minor
discrepancy in the timing of alteration of the crime by
itself cannot be held to be so very serious to suspect the
registration of the crime or go to the extent of holding
that there was any deliberate attempt on the part of the
prosecution to ante date the FIR for that purpose. We
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have already held that the accused miserably failed to
substantiate the stand that he was not present at the
spot of occurrence whereas he was really apprehended on
the spot by the prosecution witnesses and was brought
to the police station from whom other recoveries were
made. The submission by referring to certain
insignificant facts relating to the delay in the alteration of
crime cannot be held to be so very fatal to the case of the
prosecution.
32. It was also feebly contended on behalf of the
appellants that the express report was not forwarded to
the Magistrate as stipulated under Section 157, Cr.P.C.
instantaneously. According to learned counsel FIR
which was initially registered on 17.11.2004 was given a
number on 19.11.2004 as FIR No.116 of 2004 and it was
altered on 20.11.2004 and was forwarded only on
25.11.2004 to the Magistrate. As far as the said
contention is concerned, we only wish to refer to the
reported decision of this Court in Pala Singh and
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Another v. State of Punjab - AIR 1972 SC 2679
wherein this Court has clearly held that where the FIR
was actually recorded without delay and the investigation
started on the basis of that FIR and there is no other
infirmity brought to the notice of the Court then, however
improper or objectionable the delay in receipt of the
report by the Magistrate concerned, in the absence of any
prejudice to the accused it cannot by itself justify the
conclusion that the investigation was tainted and
prosecution insupportable. Applying the above ratio to
the case on hand, while pointing out the delay in the
forwarding of the FIR to the Magistrate, no prejudice was
said to have been caused to the appellants by virtue of
the said delay. As far as the commencement of the
investigation is concerned, our earlier detailed discussion
discloses that there was no dearth in that aspect. In
such circumstances we do not find any infirmity in the
case of prosecution on that score. In fact the above
decision was subsequently followed in Sarwan Singh &
Others v. State of Punjab (AIR 1976 SC 2304), Anil
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Rai vs. State of Bihar (2001 Supp. 1 SCR 298) and
Aqeel Ahmad vs. State of U.P. - (2008) 17 SCR
1330.
33. Another submission made on behalf of the
appellant was that there were serious infirmities in
preserving and testing of the sample of the foetus and the
consequent DNA report implicating the accused Sandeep
to the destruction of the foetus whose biological father
was found to be the accused himself. The infirmity
pointed out was that the sample of the foetus of the child
was taken as early as on 17.11.2004 while it was sent for
forensic lab only on 25.01.2005 and that since there was
a long gap in between, the prosecution ought to have
disclosed as to how the samples were properly preserved
in order to ensure proper test to be conducted for
ascertaining the correctness of its outcome. Though
such submission was made with some emphasis, it was
not pointed out as to what was the nature of procedure
to be followed in regard to the preservation of the
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samples taken apart from what was followed in taking
the samples by the prosecution. It is not in dispute that
at the time of post-mortem, when the foetus was
discovered, the same was preserved by taking two
samples one in the Formalin solution and the other one
by ice preservation. It is borne out by record that there
was an FSL report dated 5.1.2005 as per which the SSP
of Muzaffarnagar was informed that the foetus which was
preserved in Formalin solution was not accepted since
laboratory had no standard protocol for extracting the
amplifiable DNA of Formalin preserved tissues.
34. Therefore, in the evidence of PW-10 Junior
Scientific Officer of Central Forensic Laboratory,
Chandigarh, it was brought out that the blood samples of
accused Sandeep and the foetus received by him on
27.01.2005 and that necessary test was conducted based
on which a report on 13B/1, 13A/2 and 13C/3 were
forwarded which confirmed that the accused Sandeep
was the biological father of the foetus. He also confirmed
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in the cross examination that the earlier sample of foetus
preserved in Formalin solution received on 05.01.2005
was returned back without opening the seal as the same
was kept in Formalin solution and standard protocol
analysis was not available in the laboratory. He further
confirmed that when the sample on second time was
received along with the letter dated 25.1.2005, the same
was preserved in ice separately which they were able to
test in their laboratory for finding out the result. It has
also come in his evidence that the collection of samples,
preservation of samples and transportation of samples if
not carefully done, it may affect the result, but in the
case on hand the result reported by him was not based
on wrong facts. In the light of the said expert evidence of
the Junior Scientific Officer it is too late in the day for the
appellant-Sandeep to contend that improper preservation
of the foetus would have resulted in a wrong report to the
effect that the accused Sandeep was found to be the
biological father of the foetus received from the deceased
Jyoti. As the said submission is not supported by any
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relevant material on record and as the appellant was not
able to substantiate the said argument with any other
supporting material, we do not find any substance in the
said submission. The circumstance, namely, the report
of the DNA in having concluded that accused Sandeep
was the biological father of the recovered foetus of Jyoti
was one other relevant circumstance to prove the guilt of
the said accused.
35. There were certain other submissions made on
behalf of the appellants, namely, the seizure of materials
from the car were highly doubtful etc. We do not find any
serious lacunae pointed out in support of the said
submissions. As rightly submitted on behalf of the
learned senior counsel for the State, the discrepancies
were minor in character and we do not find any serious
infirmity based on the said discrepancies argued on
behalf of the accused/appellants. In the light of the
above conclusion, we find that the chain of
circumstances alleged against the appellants was
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conclusively proved without any missing link. We,
therefore, do not find any scope to interfere with the
conviction arrived at against the appellants by the trial
Court as confirmed by the Division Bench of the High
Court.
36. We, therefore, do not find any scope to interfere
with the sentence of life and other sentences imposed
against accused Shashi Bhushan under Section 302, IPC
read with Section 34, IPC by the High Court and the
other sentences under Section 316 read with Section 34
IPC.
37. When we come to the question of sentence of
death as imposed by learned Sessions Judge, which was
also confirmed by the Division Bench as against the
accused Sandeep, the same will have to be examined in
the light of the principles laid down in the various
decisions of this Court right from Bachan Singh v.
State of Punjab [1980 (2) SCC 684], Machhi Singh v.
State of Punjab [AIR 1983 SC 957], Swamy
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Shraddananda v. State of Karnataka [2008 (13) SCC
767], Santosh Kumar Satishbushan Bariyar v. State
of Maharashtra [2009 (6) SCC 498], Mohd. Farooq
Abdul Gafur v. State of Maharashtra [2010 (14) SCC
641], Haresh Mohandas Rajput v. State of
Maharashtra [2011(12) SCC 56], State of
Maharashtra v. Goraksha Ambaji Adsul [AIR 2011 SC
2689]. The principle of ‘rarest of rare case’ enunciated in
Bachan Singh(supra) has been restated and
emphasized time and again in the above referred to
decisions. In order to appreciate the principle in a
nutshell, what is stated in Haresh Mohandas Rajput
(supra) can be usefully referred to which reads as
under:-
“20. The rarest of rare case” comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and
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harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power of political ambition or indulging in organized criminal activities, death sentence should be awarded.”
It is, therefore, well-settled that awarding of life
sentence is the rule, death is an exception. The
application of the ‘rarest of rare case’ principle is
dependant upon and differs from case to case.
However, the principles laid down earlier and restated
in the various decisions of this Court referred to above
can be broadly stated that in a deliberately planned
crime, executed meticulously in a diabolic manner,
exhibiting inhuman conduct in a ghastly manner
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touching the conscience of everyone and thereby disturb
the moral fibre of the society would call for imposition of
capital punishment in order to ensure that it acts as a
deterrent. While we are convinced that the case of the
prosecution based on the evidence displayed, confirmed
the commission of offence by the appellants, without
any iota of doubt, we are of the considered opinion, that
still the case does not fall within the four corners of the
principle of the ‘rarest of the rare case’. However,
considering the plight of the hapless young lady, who
fell a victim to the avaricious conduct and lust of the
appellant Sandeep, the manner in which the life of the
deceased was snatched away by causing multiple
injuries all over the body with all kinds of weapons, no
leniency can be shown to the said appellant. In the
decision reported in Swamy Sharaddananda (supra)
even while setting aside the sentence of death penalty
and awarding the life imprisonment, it was explained
that in order to serve ends of justice, the appellant
therein should not be released from the prison till the
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end of his life. Likewise, in Ramraj v. State of
Chhattisgarh [AIR 2010 SC 420] this Court, while
setting aside the death sentence, directed that the
appellant therein should serve a minimum period of 20
years including the remissions and would not be
released on completion of 14 years of imprisonment.
38. Taking note of the above decision and also taking
into account the facts and circumstances of the case on
hand, while holding that the imposition of death
sentence to the accused Sandeep was not warranted
and while awarding life imprisonment we hold that
accused Sandeep must serve a minimum of 30 years in
jail without remissions before consideration of his case
for premature release.
39. Criminal Appeal No.1651/2009 and the Criminal
Reference No.19 of 2007 thus stand disposed of
modifying the punishments imposed on accused
Sandeep as one for life and he should undergo the said
sentence of life for a fixed period of 30 years without
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any remission to be allowed. The Criminal Appeal
Nos.1425-26/2011 of accused Shashi Bhushan stand
dismissed.
….…………………………...J. [Dr. B.S. Chauhan]
………………………………J. [Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi; May 11, 2012
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