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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.693 OF 2007

Sushil Sharma …Appellant

Versus

The State of  N.C.T. of  Delhi …Respondent

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. In  this  appeal,  by  special  leave,  appellant  -  Sushil  

Sharma  (“the  appellant”)  has  challenged  judgment  and  

order dated 19/02/2007 passed by the Delhi High Court in  

Criminal  Appeal  No.827  of  2003  confirming  the  death  

sentence awarded to him in Sessions Case No.88 of 1996.  

He was tried in the said case along with A2-Keshav Kumar  

(“A2-Keshav”),  A3-Jai  Prakash,  A4-Rishi  Raj  and  A5-Ram  

Prakash.

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2. The appellant was tried for offences punishable under  

Section 302, Section 120-B read with Sections 302 and 201  

of the Indian Penal Code (“the IPC”).  A2-Keshav was tried  

under Section 120-B read with Sections 302 and 201 of the  

IPC.  A3-Jai Prakash, A4-Rishi Raj and A5-Ram Prakash were  

tried  under  Section  212  of  the  IPC.   Learned  Additional  

Sessions  Judge  by  judgment  and  order  dated  3/11/2003  

convicted the appellant under Section 302 of the IPC.   He  

convicted the appellant and A2-Keshav under Section 120-B  

read with Section 201 of the IPC.  Since the charge under  

Section 302 read with Section 120-B of the IPC was held not  

proved  against  A2-Keshav,  he  was  acquitted  of  the  said  

charge.  Charge under Section 212 of the IPC was held not  

proved  against  A3-Jai  Prakash,  A4-Rishi  Raj  and  A5-Ram  

Prakash  and  they  were  acquitted.   Learned  Additional  

Sessions Judge forwarded the death reference to the Delhi  

High Court,  as required under Section 366 of the Code of  

Criminal Procedure, 1973 (‘the Cr.P.C.’).  A2-Keshav did not  

file  any  appeal.   As  stated  above,  by  the  impugned  

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judgment,  the  Delhi  High  Court  confirmed  the  death  

sentence awarded to the appellant.   

PROSECUTION CASE:

3. The  appellant  was  the  President  of  Delhi  Youth  

Congress  (I),  at  the  relevant  time.    Naina  Sahni  (‘the  

deceased’)  was the General  Secretary of the Delhi  Youth  

Congress  (I)  Girls  Wing.   The appellant  and the  deceased  

were working for Delhi  Youth Congress.   The office of the  

Delhi  Youth Congress was earlier  situated  at  4,  Bhai  Veer  

Singh Marg, Gole Market, New Delhi.  Later on, it was shifted  

to 2, Talkatora Road, New Delhi.  The deceased used to visit  

the appellant at the office of Youth Congress at the above-

mentioned places.  In the year 1992, the appellant obtained  

Flat  No.8/2A  situated  at  Mandir  Marg,  New  Delhi  (“Flat  

No.8/2A”  or  “the  said  flat”)  from  it’s  allottee  -  Jagdish  

Prasad.  The deceased used to visit the appellant at  the said  

flat also.  At times, she used to stay there in the night.  The  

appellant  and  the  deceased  got  married  secretly.   The  

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deceased, therefore, continued to live in the said flat as the  

wife of the appellant till she was murdered.   

4.  The  India  Tourism  Development  Corporation  (‘the  

ITDC’)  which was running its unit called Ashok Yatri Niwas at  

Ashoka  Road  entered  into  a  licence  agreement  on  

10/11/1994  with  Lalit  Kishore  Sachdeva,  Virendra  Kumar  

Nagpal,  Manoj  Malik,  R.P.  Sachdeva  and  the  appellant  -  

partners of M/s.  Excel  Hotel  & Restaurant Inc.,  situated at  

159, Kamla Market, Delhi.  The licence granted by the ITDC  

permitted the user of park in front of main gate of Ashok  

Yatri Niwas towards Ashoka Road by the said partners of M/s.  

Excel Hotel & Restaurant Inc. for running a ‘Bar-be-Que’.  As  

per  the  licence,  Bar-be-Que  was  continuously  run  by  the  

appellant at the said park. It was called ‘Bagia Bar-be-Que’.  

There was a tandoor in the said park.  The park had fencing  

of bamboos called Jafri.   

5. On the night of 2-3/07/1995, PW-3 HC Kunju, who was  

posted at the P.S. Connaught Place and PW-4 Home Guard  

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Chander  Pal  of  Delhi  Home  Guard  were  patrolling  in  the  

Ashoka  Road,  Western  Court  Area.   At  about  11.00  p.m.,  

when they reached near Ashok Yatri Niwas they heard the  

cry of  PW-7 Anaroo Devi saying ‘hotel main aag lag gayi’  

(hotel is on fire).  Having heard the cry, PW-3 HC Kunju and  

PW-4 Home Guard Chander Pal rushed towards Janpath lane  

where Ashok Yatri  Niwas is  situated.   They noticed smoke  

spiralling and flames leaping out of Bagia Bar-be-Que from  

the side of the kitchen.  PW-3 HC Kunju rushed to the nearby  

telephone booth to inform the control room.  However, the  

telephone  booth  was  closed.   He,  then,  left  PW-4  Home  

Guard Chander Pal at the site and rushed to the police post  

Western Court situated nearby to inform the police station,  

on wireless, about the fire.  On return, PW-3 HC Kunju noticed  

that the smoke and fire had increased.  PW-3 HC Kunju and  

PW-4 Home Guard Chander Pal, in order to find out the cause  

of the same, entered the Bar-be-Que from its back.   They  

found  A2-Keshav  standing  near  the  tandoor.   They  also  

noticed him putting wooden logs and small fire wood in the  

fire so as to increase it with the aid of a bamboo.  PW-3 HC  

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Kunju told A2-Keshav that by this, the fire would spread and  

the entire hotel would be burnt.  A2-Keshav then represented  

to PW-3 HC Kunju that he was a worker of the Congress Party  

and he was burning old banners, posters and waste papers of  

the party.  

6. Patrolling Officer SI Rajesh Kumar along with CW-5 HC  

Majid Khan of Police Control Room, PW-62 PC Ranbir Singh  

and security staff of hotel PW-35 Mahesh Prasad reached the  

Bar-be-Que from the main gate of Ashok Yatri Niwas towards  

Ashoka Road.  The appellant was noticed by them standing  

by the side of the kanat at the gate of the Bar-be-Que.  Foul  

and  pungent  smell  was  emitting  from  the  tandoor.   A2-

Keshav was detained out of suspicion by SI  Rajesh Kumar  

and PW-3 HC Kunju.   SI Rajesh Kumar along with security  

staff of the hotel and A2-Keshav then went upstairs to find  

out whether the fire had spread there.   They noticed that the  

flames in the tandoor had flared-up again.  SI Rajesh Kumar  

and others rushed downstairs.  By that time the appellant  

had run away from there.  

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7. The fire was doused.  When they went near the tandoor  

they saw a part of human body inside it. Closer look revealed  

that  it  was a  charred  body of  a  female  whose limbs  had  

burnt.  Intestines had come out of the body.  Burnt bones  

were  lying  in  the  tandoor.   They  also  noticed  near  the  

tandoor a black polythene sheet.  Investigating Officer PW-81  

IO Niranjan Singh and senior officer of the hotel PW-5 K.K.  

Tuli also reached there.  Then, A2-Keshav was handed over  

to  PW-81  IO  Niranjan  Singh.   PW-81  IO  Niranjan  Singh  

inspected the site.  He found that the burnt body was of a  

woman.  He recorded the statement of PW-3 HC Kunju which  

was treated as FIR.   

8.  There were blood stains on the clothes of A2-Keshav.  

He was arrested.  His blood stained clothes were seized.  PW-

81  IO Niranjan Singh seized the polythene sheet,  besides  

other articles, from the place of offence.  After holding the  

inquest proceedings, PW-81 IO Niranjan Singh sent the dead  

body  to  RML  Hospital,  where  PW-85  Dr.  Joginder  Singh  

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prepared the Medico Legal Report (Ex.PW-85/A).  PW-85 Dr.  

Joginder Singh noticed the following condition of the charred  

body.

“Whole body burnt exposing underlying bones and  tissues,  gastro intestinal  contents  are  protruding  outside.  The left lower limb is amputated above  the knee joint, right limb is amputated below knee  joint.  Brought dead.”

9. The   prosecution  had  made  an  application  to  the  

hospital authorities to preserve the dead body as it was not  

identified.  In view of the disclosure made by A2-Keshav,  the  

search for the appellant and the Maruti Car in which he had  

come to the restaurant was started.  Since both could not be  

traced  out,  the  police  obtained  arrest  warrant  for  the  

appellant.  

10. On  04/07/1995  the  police  got  information  from  

Chanakya Puri Police Station that Maruti Car No.DL-2CA-1872  

had  been  found  abandoned  at  Malcha  Marg  near  Gujarat  

Bhawan where the appellant had gone and spent the night of  

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2-3/07/1985 with PW-31 D.K. Rao after fleeing from his Bagia  

Restaurant.   The police  team reached  the  said  place  and  

found the Maruti Car abandoned there.  On inspection of the  

car, they found dried blood in the dicky and some hair stuck  

on the back of the left front seat.   On 4/7/1995 the police  

also searched Flat No.8/2A where the appellant was residing.  

Certain  articles  were  seized.   During  the  search,  some  

cartridges, a lead bullet and a ply having a hole and an air  

pistol were seen in the said flat but they were not seized as  

Ballistic Expert was not present.   They were seized in the  

presence of Ballistic Expert on 5/7/1995 under a panchnama.  

On enquiries made from the neighbourhood, the police came  

to know that the deceased used to live in the said flat of the  

appellant  as  his  wife.   One  Maruti  Car  No.DAC 3283  was  

parked below the flat, which was found to be in the name of  

the deceased.  It was seized by the police.   

11. Parents  of  the  deceased  were  contacted  for  

identification of the corpse.  On seeing the charred body  

kept in the mortuary, they simply wept but they could not  

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identify the dead body.  On 05/07/1995 the dead body was  

identified by PW-12 Matloob Karim, who was also a worker  

of the Congress Party and was stated to be very close to  

the deceased.  Thereafter, on 05/07/1995, the post-mortem  

examination  was  conducted  by  CW-6  Dr.  Murari  Prasad  

Sarangi. The condition of the burnt body as noticed by CW-

6 Dr. Sarangi, in his Report, was as under:

“(Eyes, Ears, Nose, Mouth, Teeth and Tongue etc.)

Both  eye  lids  with  face  charred,  eye  balls   destroyed, ears, nose and lips were also charred,   teeth were exposed and studded with soot, other   natural orifices were studded with soot particles.

EXTERNAL EXAMINATION:-

Revealed  extensive  charring  of  a  female  dead  body  beyond  identification,  having  attained  a   Pugilistic  attitude  owing  to  coagulation  of  the  muscle proteins.

Skull  bone  exposed,  partly  burnt,  blackened,   showed multiple post  mortem cracks with a few  strands  of  partially  burnt  hair  and  metallic  hair   clip.

...intestines  exposed  to  outside  with  portions  of  other internal organs in the abdomen, more on the   left side.

Thoracic  cage,  intercostals  muscles  and  diaphragm were burnt more on the lt side.

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Lt. thigh was chopped off, 28 cms. below left. And  super iliac spine, underlying thigh bone cut from  the back showing beveling from above downwards  vide  overleaf.  No  evidence  of  firearm  discharge   from internal examination of the organs.

HEAD and NECK

Scalp  tissue  almost  burnt  except  over  a  very  insignificant (2.5 x 0.8 cm) area on the occipital   region  with  a  few  strands  of  burnt  hair.  Skull   showed multiple post mortem heat cracks partly   charred and blackened.

BRAIN,  MENINGES  and  CEREBRAL  BLOOD  VESSELS:

Reddish  white  thick  heat  haematoma  present   more on the left  cerebral  hemisphere above the   dura  adhered to  the  endoevanium on the  same  side.Meninges intact and pale. Brain shrunken and   substance looked pale, no injury or haemorrhage  anywhere.

LARYNX, PHARYNX and OTHER NECK STRUCTURES

Pharynx,  Larynx  and  Tracheal  rings  intact  lipoid   bone  intact.  Mucous  membranes  of  Pharynx,   Larynx  and  Trachea  showed  adhered  soot   particles.  Blood  vessels  were  destroyed  and  collapsed due to burns.

THORAX

Burnt as mentioned above. Leg was chopped off   23 cm. below the knee. Both the bones of the leg   exposed being cut from the front showing beveling   below and inwards.

Patella (knee cap) bone was missing on the Rt.side   Distal phalanges in the hand missing (chopped off)   Upper limb was chopped off just below the elbow.

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Trachea and Bronchi:  Intact,  mucosa of Tracheal   rings smeared with black soot particles.

Pleural  Cavity  and  Lungs:  Pleural  studded  with   carbon particles  did  not  show any  inflammatory   sign  to  the  naked  eyes.  Both  lungs  shrunken,   desiccated and pale  WT 200 gms. (Lt)  210 gms   (Rt.)

Abdominal wall, peritoneum: Abdominal and pelvic   walls burnt, peritoneum- partly burnt.

Stomach and contents: Contained about 500 ml of  brownish-semi  liquid  material,  smelt  alcoholic,   walls looked pale

Pancreas,  small  and  large  intestines:  Shrunken,   desiccated,  protruded  out,  no  injury/abnormality   was noticed.”

12. CW-6 Dr. Sarangi opined provisionally that the cause  

of death  was “hemorrhagic  shock consequent  to  various  

ante-mortem injuries found on the dead body”.  According  

to CW-6 Dr. Sarangi the burns noticed on the dead body  

appeared to have been inflicted after death. Final opinion  

about the cause of death was kept pending by him till the  

receipt of the Report about histopathological examination  

as well as the Report of examination of viscera and blood  

sample.  Although PW-81 IO Niranjan Singh had also asked  

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for  X-ray of  the  dead body to find out  if  there  was any  

firearm  injury,  it  could  not  be  conducted  at  that  time  

because the X-ray machine was stated to be out of order.  

13. The appellant, in order to avoid his arrest, spent the  

night of 2/7/1995 at Gujarat Bhawan, New Delhi with PW-31  

D.K. Rao and from there he kept on going from one city to  

another. He  called  up  PW-31 D.K.  Rao on 4/7/1995  from  

Bombay and told him that he had killed his wife i.e. the  

deceased.  It may be mentioned here that the High Court  

has  not  relied  upon  this  piece  of  evidence  and,  in  our  

opinion, rightly so.  The appellant obtained anticipatory bail  

from the Sessions Court at Madras upon coming to know  

that the police were looking for him. The anticipatory bail  

granted by Sessions Court, Madras was later on cancelled  

by  the  Madras  High  Court  at  the  instance  of  the  Delhi  

Police.  He was arrested on 10/07/1995 at Bangalore by the  

Bangalore Police under Section 41A of the Cr.P.C. when he  

was  moving  around  in  a  suspicious  manner  with  his  

advocate  Mr.  Anantanarain.  Delhi  Police  upon coming  to  

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know about his apprehension went to Bangalore and took  

over  the  custody of  the  appellant on 11/7/1995  with  the  

permission  of  the  concerned  court.  During  the  

interrogation, it transpired that the appellant was staying in  

one  hotel  called  Pai  Vihar  along  with   advocate  Mr.  

Anantanarain.  The appellant led the police to Room No.110  

of the said hotel.  From the room he produced a briefcase  

which  was  found  to  contain  one  .32  bore  revolver  

No.1277725 (make Arminius) with its license in his name,  

four live cartridges and some other documents.  All these  

articles were seized by PW-81 IO Niranjan Singh.

14. The appellant was then brought to Delhi.  Pursuant to  

disclosure  statements  made  by  him  one  blood  stained  

kurta-pajama was recovered from the bushes near Gujarat  

Bhawan at  Malcha Marg.  At  his instance,  another  blood  

stained kurta was also recovered from Rangpuri area.

15. The investigating agency decided to get another post-

mortem examination conducted from a Board of Autopsy  

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Surgeons.  Accordingly,  second  post-mortem  examination  

was done on 12/07/1995 by a team of three doctors headed  

by  PW-44  Dr.  Bharat  Singh.   During  the  course  of  the  

second  post-mortem  examination  the  dead  body  was  

subjected  to  X-ray  examination  and  the  X-ray  Reports  

showed the presence of one metallic piece in the skull and  

one in the neck region of the dead body. Those metallic  

pieces were then extracted out and were found to be lead  

bullets.   The Board  of  Doctors  opined that  the  cause of  

death was due to “coma consequent upon firearm injury on  

the  head  which  was  sufficient  to  cause  death  in  the   

ordinary course of nature”.

16.  The bullets recovered from the body, fired cartridge  

cases, one lead bullet which were recovered from  the said  

flat,  the  live  cartridges  and  Arminius  revolver  recovered  

from the  possession of  the  appellant  at  Bangalore  were  

sent  to  the  Central  Forensic  Science  Laboratory  (“the  

CFSL”) for examination by a Ballistic Expert.  The Ballistic  

Expert  -  PW-70  Roop  Singh  gave  Report  (Ex.  PW-70/A)  

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confirming that the .32 Arminius revolver was a firearm in  

working condition and had been fired through. He further  

opined that the five .32 cartridge cases and one lead bullet,  

which were recovered from the said flat and the two lead  

bullets which were extracted from the skull and neck of the  

deceased  had  been  fired  from  the  said  .32  Arminius  

revolver.  The piece of plywood seized from the said flat on  

which a bullet hole was noticed, was also forwarded to the  

CFSL.  The bullet hole was found to have been caused by  

the aforesaid .32 lead bullet recovered from the said flat.  

Blood stained articles seized from the Bagia Restaurant and  

those recovered from the said flat were sent to the CFSL  

where,  on  examination,  it  was  found  that  human  blood  

found on  these articles was of ‘B' group, which was the  

blood group of the  deceased.   

  17. DNA test was also got conducted from the Centre for  

Cellular  and Molecular  Biology, Hyderabad for  confirming  

the identity of the corpse by  forwarding to it  the blood  

samples of the parents of  the deceased and the tissues  

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(muscle) from the thigh, radius and ulna bones and two ribs  

of the deceased. The DNA Report (Ex.PW-87/A) confirmed  

that the dead body which was burnt at the Bagia Bar-be-

Que  tandoor was  that  of  the  deceased,  who  was  the  

biological offspring of CW-1 Smt. Jaswant Kaur and CW-2  

Harbhajan Singh.  

18. After  completion  of  investigation,  the  prosecution  

came to the conclusion that the deceased was killed by the  

appellant  since  he  was  suspecting  that  she  was  having  

some  relationship  with  PW-12  Matloob  Karim.   The  

appellant also did not want to make his marriage with the  

deceased public and the deceased was insisting on that.  

After killing her, the appellant with the help of A2-Keshav  

burnt her dead body in the  tandoor of Bagia Bar-be-Que.  

The appellant was harboured to save him from punishment  

from the crime by three persons, namely, A3-Jai Prakash,  

A4-Rishi  Raj  and  A5-Ram  Prakash.   After  the  case  was  

committed  to  the  Sessions  Court,  learned  Additional  

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Sessions  Judge  framed  charges  as  aforesaid  against  the  

accused.    

THE TRIAL:

19. In  support  of  its  case,  the  prosecution  examined  85  

witnesses.  Seven Court Witnesses were also examined.   We  

shall refer to the important witnesses as we proceed further.  

All  the  accused  pleaded  not  guilty  to  the  charges  and  

claimed to be tried. During the trial, A2-Keshav moved  an  

application   confessing  his  guilt  so  far  as  the   charges  

against  him under Section 201 read with Section  120-B of  

the IPC are concerned.  He requested the court to dispose of  

his case in view of the confession.  He, inter alia, stated  that  

he  had  not  conspired  to  murder  the  deceased.  He was  

serving in Bagia Restaurant of the appellant  and,  at   his  

command, he  put  the  dead  body of the deceased in the  

tandoor.  At the  trial,  A2-Keshav admitted the correctness of  

the  contents of his confessional application.  However, he  

added  that  it  was  moved  because  the  Special  Public  

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10/7/1995.   He  admitted  that  Car  No.DL-2CA-1872  

belonged to him. He stated that it was removed from his  

residence at  MP-27,  Maurya  Enclave,  Delhi  where  it  was  

parked by his driver.   At one stage, he admitted that he  

was living with the deceased at Mandir Marg.  However, as  

far as his relationship with the deceased is concerned he  

stated as under:

“I knew Naina since 1985. She contested election  of Shyama Parsad Mukherjee college.  She lost.  I  was  president  of  N.S.U.I.  Delhi.  She  came  in  contact with me then. Her attendance was short in  the  college.  She  was  not  allowed  to  sit  in  the  examination. Next year I got admitted her in the  correspondence course.  She was career  oriented  woman. She learned the course of Pilot. I helped  her  in  that.  She  went  to  London  for  CPL  (Commercial pilot license). From 1994 to January  1995 she lived in a flat Opp. Birla Mandir as paying  guest.  That  flat  belonged  to  a  lady  working  in  Doordarshan.  I  have  shown  that  flat  to  police.  Police  did  not  cite  her  as  witness.  I  used  to  be  called  at  various  functions  organized  at  her  residence along with other lady friends associated  with  her  business  and  pilot  course.  She  started  living separately from her parents after there was  a dispute between her  and her  father.  She then  lived at Gole Market. In the functions which were  organized  at  the  residence  at  Gole  Market  her  parents  visited  and  I  also  visited.  She  had  a  servant  Ramu  @  Bilas.  She  was  not  allowing  anyone else to stay there including her parents. I  had no contact with her after January, 1995. She  

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remained  busy  in  her  career  and  I  remained  involved in politics”.

21. None of the accused persons adduced any evidence in  

defense.

22. After  considering  the  evidence,  learned  Additional  

Sessions Judge convicted the appellant as aforesaid.  The  

Reference  made  by  the  learned  Sessions  Judge  under  

Section 366 of  the  Cr.P.C.  was heard by the  High  Court  

along with the appeal filed by the appellant challenging his  

conviction and sentence.   The High Court dismissed the  

appellant’s  appeal  and  confirmed  the  death  sentence  

awarded to him. Hence, this appeal by special leave.  

23. We  have  heard  Mr.  Jaspal  Singh,  learned  Senior  

Advocate for the appellant and Mr. Amarjit Singh Chandhiok,  

learned Additional Solicitor General for the State of NCT of  

Delhi.   We have carefully perused the written submissions  

filed  by  them.   Since  death  sentence  is  awarded  to  the  

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appellant, we have independently considered the evidence.  

We shall now give the gist of the submissions of the counsel.  

24.      WRITTEN  SUBMISSIONS  ON  BEHALF  OF  THE    APPELLANT ON THE MERITS OF THE CASE:

a) This is a case which rests on circumstantial  

evidence  and,  therefore,  motive  assumes  

great  significance.   The prosecution case  is  

that the deceased wanted to make public her  

marriage with the appellant and the appellant  

did not want to do that because that would  

have  affected  his  political  career.    To  

substantiate this case, PW-12 Matloob Karim  

has been examined, but, his conduct makes  

him  a  totally  unreliable  witness.   He  is  a  

married  man.  Despite  the  appellant’s  

marriage with the deceased, he kept alive his  

relationship with the deceased.  He continued  

to assist the deceased in her attempt to go to  

Bombay  or  migrate  to  Australia.    All  this  

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indicates  that  he  was  inimically  disposed  

towards the appellant.  In any case, marriage  

can hardly spoil anyone’s political prospects.  

Besides, there is ample evidence on record to  

establish  that  the  marriage  was  already  

known to everybody.  PW-12 Matloob Karim  

knew about it.  Marriage was with the consent  

of the parents of the deceased.  They used to  

visit  the  said  flat  where  the  deceased  was  

allegedly living with the appellant as his wife.  

Thus, the alleged motive for the murder viz.  

that  the  deceased  wanted  to  make  the  

marriage  between  her  and  the  appellant  

public  is  not  proved.   Even  otherwise,  the  

prosecution  evidence  shows  that  the  

appellant  was  deeply  in  love  with  the  

deceased.   Despite  knowing  her  intimate  

relations with  PW-12 Matloob Karim,  he  did  

not  turn  her  out  of  the  house.   He  only  

restricted  her  movements  as  he  wanted  to  

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stop her from her wayward ways.  There is no  

evidence on record to show that there were  

any constant quarrels between the appellant  

and  the  deceased.    The  story  that  the  

appellant  suspected  the  fidelity  of  the  

deceased and, hence, he killed her is also not  

borne  out  by  the  evidence.  Therefore,  the  

prosecution has failed to prove motive.  

b) It  is  the  prosecution  case  that  empty  

cartridges  were  recovered  from  the  

matrimonial  house  of  the  deceased   on  4th  

and 5th of July, 1995. According to PW-81 IO  

Niranjan Singh, on 4/7/1995, he inspected the  

said flat in the presence of PW-14 Inspector  

Suraj  Prakash and PW-13 Dhara  Singh.   He  

found two bowls on the cupboard containing  

empty  cartridges  and  one  .32  bore  empty  

cartridge under  a  stool  and one lead bullet  

under the bed.  He further stated that he did  

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not take them into possession as the Ballistic  

Experts were not present.  According to him,  

he left the said flat under surveillance of PW-

14  Inspector  Suraj  Prakash.  This  story  is  

concocted because PW-13 Dhara Singh,  the  

panch  witness  has  nowhere  stated  that  

empty cartridges and lead bullet were found  

in the house on 4/7/1995. He visited the said  

flat  on  5/7/1995  along  with  PW-70  Roop  

Singh,  the  Ballistic  Expert  and  took  those  

cartridges and lead bullet into possession in  

his  presence.   The  lead  bullet  was  stained  

with  the  blood  of  the  blood  group  of  the  

deceased.   PW-14  Inspector  Suraj  Prakash  

admitted  that  in  his  statement  recorded  

under Section 161 of the Cr.P.C. there is no  

mention of those recoveries.  No memo was  

prepared that  though empty cartridges and  

lead  bullet  had  been  found,  they  had  not  

been taken into possession on account of the  

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advise of persons from the CFSL. The Ballistic  

Expert  -  PW-70  Roop  Singh  does  not  say  

anything  about  the  recoveries  allegedly  

effected on 5/7/1995.   There is a recovery  

memo  of  4/7/1995.   It  does  not  speak  of  

recovery of empty cartridges or lead bullet.  

Thus, the version of PW-81 IO Niranjan Singh  

about the recovery of empty cartridges and  

lead bullet is falsified.   

c) It  is  the  case  of  the  prosecution  that  the  

deceased had received two bullet injuries in  

the skull.  This is confirmed by the Report of  

the  Board  of   Doctors.   Any  other  firearm  

injury is, therefore, ruled out.  Therefore, the  

prosecution must  explain the presence of a  

lead  bullet  having  blood  group  of  the  

deceased  in  the  room.   This  suggests  that  

there  was  some  other  person  also  in  the  

house having the same blood group as that of  

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the deceased as the appellant has a different  

blood group from that of the deceased.  Had  

the prosecution taken the finger prints from  

the  vodka  bottle  which  was  lying  there,  it  

would  have  provided  answer  to  this  as  

someone was consuming vodka in the room.  

The deceased was a teetotaler and so is the  

appellant.   Besides, the alleged recovery of  

empty cartridges, lead bullet and bullet hole  

in the plywood show that at least 10 rounds  

were fired (5 empty cartridges in the bowls,  

two  recovered  from  the  floor,  one  causing  

hole in the ply and two found from the skull).  

Surprisingly, the next door neighbours did not  

notice such firing.  Moreover, the police found  

no trail of blood in the drawing room, on the  

stairs or on the road.  This casts a shadow of  

doubt on the prosecution story.  

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d) It  is  also  doubtful  whether  the  death  was  

caused  due  to  firearm  injuries.   PW-85  Dr.  

Joginder Pal,  the Casualty Medical Officer at  

RML Hospital, who was on duty on 3/7/1995,  

stated that he did not find any firearm injuries  

in the neck or in the head or in the nape of  

the  deceased.   CW-6  Dr.  Sarangi,  who had  

conducted the post-mortem of the deceased  

on 5/7/1995 at  3.30 p.m.  at  Lady Hardinge  

Medical  College stated  that  he  had opened  

the skull and had not noticed any bullet mark  

or any bullet and that the brain matter was  

intact.   CW-6 Dr. Sarangi is MBBS and MD in  

forensic  medicine  and  toxicology,  having  

experience  in  the  field  and,  therefore,  his  

evidence  cannot  be  lightly  brushed  aside.  

The Board of Doctors allegedly extracted two  

bullets  and  opined  that  those  two  bullets  

caused the death.  Report dated 13/7/1995 of  

the Board headed by PW-44 Dr. Bharat Singh  

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needs to be rejected because as per PW-44  

Dr.  Bharat  Singh,  the Board first  conducted  

post-mortem on 12/7/1995 at 12.00 noon at  

Lady Hardinge Medical  College which lasted  

upto 2.00 or 3.00 p.m. and it was only after  

2.00 or 3.00 p.m. that the body was shifted to  

the Civil Hospital.  However, as per PW-57 SI  

Ombir  Singh,  on  instructions  of  PW-81  IO  

Niranjan Singh, he reached the mortuary of  

Lady Hardinge Medical  College at  9.00 a.m.  

on 12/7/1995,  took  the  body from there  at  

9.30 a.m. and reached the Civil  Hospital  at  

11.30 a.m., where he entrusted the body to  

PW-44 Dr.  Bharat  Singh.  According to him,  

post-mortem started at Civil Hospital at 12.30  

p.m.   However,  as  per  the  Report  of  the  

Board,  the  post-mortem  started  at  Lady  

Hardinge Medical College at 12.00 noon and,  

thereafter, the body was shifted to the Civil  

Hospital.  PW-57 SI Ombir Singh has not been  

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declared  hostile  and,  if  his  statement  is  

accepted, the evidence of PW-44 Dr. Bharat  

Singh  about  the  post-mortem  becomes  

suspect.  

e) There is no evidence on record that the body  

and  the  skull  subjected  to  post-mortem  by  

the Board were of the deceased.  PW-44 Dr.  

Bharat  Singh stated  that  the  body and the  

skull had been identified by PW-57 SI Ombir  

Singh.  However, PW-57 SI Ombir Singh has  

nowhere  stated  that  he  had  identified  the  

body. There is no evidence produced from the  

mortuary  of  Lady  Hardinge  Medical  College  

that on 12/7/1995 the body and the skull of  

the  deceased  were  in  its  mortuary  and  no  

record has been produced to show that they  

were removed from there on 12/7/1995.  Lady  

Hardinge Hospital & Medical College is one of  

the  top-most  hospitals  in  Delhi.   It  is  

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unbelievable  that  it  had  no  X-ray  facility.  

Therefore, the reason given for removal of the  

dead  body  and  skull  from  Lady  Hardinge  

mortuary to Civil Hospital that because X-ray  

facility  was  not  available  there,  it  was  so  

removed, is not acceptable.   

f) The entire evidence relating to the Board of  

Doctors deserves to be rejected because (a)  

there is no evidence that the skull sent for X-

ray was that of the deceased; (b) assuming  

that the skull was that of the deceased, the  

prosecution  has  not  led  any  evidence  to  

assure that before 12/7/1995, it had not been  

tampered with; (c) the members of the Board  

have  not  proved  the  sky  grams  which  

allegedly they had examined on 12/7/1995;  

(d)  although  PW-44  Dr.  Bharat  Singh  has  

stated that the sky grams and the Report of  

the  Radiologist  were   received  from  the  

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Radiologist on 12/7/1995 at 2.00 p.m. or 3.00  

p.m., the Report of the Radiologist shows that  

X-rays  were  taken  on  13/7/1995  and  the  

Report was also prepared on 13/7/1995 and  

(e) as the X-ray films were developed and the  

Report was prepared on 13/7/1995, recovery  

of  bullets  from  the  skull  on  12/7/1995  

allegedly  on  the  basis  of  X-rays  and  the  

Report  of  CW-7  Dr.  P.S.  Kiran  makes  the  

entire  version  regarding  recovery  of  bullets  

unworthy of reliance.   There is no evidence  

on record to establish that  the members of  

the Board were experts  in  conducting post-

mortems.   The  answer  given  by  CW-6  Dr.  

Sarangi  to  a  court  question,  which contains  

six  reasons  for  rejecting  the  Report  of  the  

Board  have  not  been  answered  by  the  

prosecution.   CW-6 Dr. Sarangi  stated that  

after  the  post-mortem  was  conducted  on  

5/7/1995 on the request of PW-81 IO Niranjan  

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Singh,  he  had  handed  over  the  skull  bone,  

after separating the same from the body, to  

PW-81 IO Niranjan Singh.  This is supported  

by endorsement dated 5/7/1995 made by PW-

81 IO Niranjan Singh on a letter addressed by  

SHO,  P.S.  Connaught  Place  to  the  Autopsy  

Surgeon, Lady Hardinge Medical  College.  If  

the  skull  was  handed  over  to  PW-81  IO  

Niranjan Singh on 5/7/1995, then there is no  

evidence to show where the skull was kept till  

12/7/1995 when it  was produced before the  

Board headed by PW-44 Dr. Bharat Singh for  

post-mortem.   PW-44  Dr.  Bharat  Singh  has  

stated  that  “a  burnt  dead  body  with  skull   

separated” was received by him and that the  

skull was kept in a separate cardboard box.  

Therefore, there is no evidence to establish  

that the skull was that of the deceased and  

assuming it to be the skull of the deceased,  

there is no guarantee that between 5/7/1995  

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and  12/7/1995,  it  was  not  tampered  with.  

From the evidence on record, it can be said  

that  only  one  unidentified  skull  of  a  lady  

containing two bullets was handed over to the  

Board on 12/7/1995.   When asked whether a  

bullet can be put inside the body after death  

at a place where it had been noticed by the  

Board, CW-6 Dr. Sarangi stated that such a  

possibility could not be absolutely ruled out  

especially  in  the  presence  of  multiple  post-

mortem  cracks  and  separation  of  the  skull  

bone  from  the  neck  for  the  purpose  of  

superimposition.   

g) Assuming that the skull produced before the  

Board was that of the deceased and that two  

bullets  were  recovered  from  the  skull,  the  

prosecution  has  failed  to  prove  that  the  

bullets  were  fired  from the  revolver  of  the  

appellant. It is the prosecution case that two  

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bullets were put in two separate parcels and  

both bore the seal of Civil Hospital and, they  

were handed over to PW-81 IO Niranjan Singh  

by PW-57 SI Ombir Singh.  However, PW-81 IO  

Niranjan  Singh  has  nowhere  stated  that  he  

had deposited the two parcels with the seal of  

Civil Hospital with the Mohrar Malkhana.  He  

has not stated that he had himself sent those  

two parcels with the seal of the Civil Hospital  

to the CFSL.  PW-67 HC Raj Kumar, who was  

in-charge of Mohrar Malkhana has stated that  

no  parcel  was  deposited  with  him  on  

12/7/1995, 13/7/1995 and 14/07/1995.  It was  

only  on  15/7/1995  that  two  parcels  were  

deposited but they bore the seal of N.S.  Thus,  

from  his  evidence,  it  cannot  be  concluded  

that the parcels with the seal of Civil Hospital  

were ever sent to the CFSL.  If these parcels  

were never sent to the CFSL, it cannot be said  

that the two bullets which killed the deceased  

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were fired from the revolver of the appellant.  

Moreover,  the  two  bullets  which  were  

allegedly  extracted  by  the  Board  from  the  

skull have not been identified by anyone.   

h) The case that a revolver, a licence and four  

live cartridges were recovered from Pai Vihar  

Hotel,  Bangalore  where  the  appellant  was  

staying  is  false  because  on  10/7/1995  at  

11.30  p.m.,  the  appellant  was  brought  to  

Delhi.   On 12/7/1995,  a  remand application  

was  made  before  the  Metropolitan  

Magistrate’s Court.  In that application, it  is  

stated that the weapon used in the crime is to  

be ascertained and recovered.   If the weapon  

was already recovered, such averment would  

not  have  been  made  in  the  application.  

Moreover, the appellant was brought on the  

strength of a production warrant issued by a  

Delhi Court and, therefore, he was in judicial  

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custody.   Section  27  of  the  Evidence  Act  

would  not  be,  therefore,  attracted.   In  any  

case, no statement under Section 27 of the  

Evidence  Act  was  recorded.   The  alleged  

recoveries  are,  therefore,  not  admissible.  

[Bahadul   v.   State  of  Orissa.1]   Mr.  

Anantnarayan, the appellant’s advocate was  

present in the hotel room when the alleged  

recoveries were made.  However, he has not  

been  examined.   Similarly,  PW-48  Srinivas  

Rao,  the  Manager  of  the  hotel  and  PW-50  

Kancha, the waiter of the hotel were given-up  

after  having  entered  the  witness  box.  

Recoveries were made by PW-81 IO Niranjan  

Singh of P.S. Connaught Place, New Delhi in  

Bangalore  i.e.  outside  his  territorial  

jurisdiction.   Therefore,  provisions  of  sub-

sections  (4)  and  (5)  of  Section  165  of  the  

Cr.P.C.  ought  to  have  been  followed.  The  

1 AIR 1979 SC 1262  

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licence which was allegedly  recovered from  

Pai  Vihar  Hotel,  Bangalore  had  expired  on  

18/1/1994 and its validity was extended only  

on  15/10/1995.   Therefore,  at  the  time  of  

alleged  recovery  of  revolver  on  11/7/1995,  

there was no valid licence.  Yet, no action was  

taken  by the  police.   To cover  up this,  the  

validity of the license was extended later on.  

If  the  licence  was  deposited  with  Mohrar  

Malkhana  with  the  seal  of  N.S.,  it  is  not  

understood how the entry of extension was  

made  on  it  on  15/10/1995.   This  suggests  

tampering of evidence.  

i) Recovery of the appellant’s car from Malcha  

Marg is suspect because no record of wireless  

message  has  been  produced;  no  one  from  

P.S., Malcha Marg was examined; no record of  

P.S.,  Malcha  Marg  has  been  produced,  no  

information  was  given  to  the  nearest  

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Magistrate;  no  record  showing  presence  of  

PW-72  PC  Mukesh  Kumar  was  produced.  

According to the prosecution, the CFSL team  

was called and blood sample was taken from  

the  blood  stains  in  the  dicky  of  the  car.  

However, no witness from the CFSL has been  

examined;  no  photographs  have  been  

produced  and  no  independent  witness  has  

been  examined.   PW-72  PC  Mukesh  Kumar  

stated that PW-81 IO Niranjan Singh remained  

at the site for six hours.  PW-81 IO Niranjan  

Singh  stated  that  he  had  received  wireless  

message about the car on 4/7/1995 at 9/10  

a.m.  Even if he had reached the site at 10.00  

a.m. he should have remained there till 4.00  

p.m.    He,  however,  stated  in  his  evidence  

that he reached the said flat at 11.30 a.m. or  

12.00 noon on 4/7/1995.  The seizure memo  

dated 4/7/1995 states that in the dicky of the  

car,  very  little  blood  was  detected.   The  

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memo also  states  that  the  long hairs  were  

found at the back of the front seat next to the  

driver’s seat.  If the prosecution case is true  

then the dicky ought to have a pool of blood  

and not very little  blood and the long hairs  

should have been found in the dicky and not  

on  the  back  of  the  front  seat  next  to  the  

driver’s seat.  

j) To prove the presence of the appellant at the  

tandoor in  the  night  of  2/7/1995,  the  

prosecution has examined PW-1 Philips  and  

PW-2 Mrs. Nisha.  They stated that they had  

last seen the appellant at around 9.45 p.m. at  

the gate  of Ashok Yatri  Niwas in  his  Maruti  

car.  However, PW-3 HC Kunju stated that he  

noticed the fire at 11.20 p.m.  Therefore, the  

presence  of  the  appellant  at  around  10.00  

p.m.  at  the  tandoor is  not  of  much  

importance.   To  prove  his  presence  at  the  

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tandoor at  11.30  p.m.  the  prosecution  has  

also examined PW-4 Home Guard Chander Pal  

and CW-5 HC Majid Khan.  It is apparent from  

the evidence of PW-3 HC Kunju  that  at  the  

relevant  time,  the  light  at  the  Bagia  

Restaurant was switched off.  The appellant  

was not known to any of the witnesses. He  

was identified because PW-35 Mahesh Prasad  

had allegedly told the witnesses about him.  

However,  PW-35  Mahesh  Prasad  has  stated  

that  he had never  met  the appellant.   It  is  

doubtful whether PW-3 HC Kunju, PW-4 Home  

Guard Chander Pal and CW-5 HC Majid Khan  

were  actually  present.   They are  from P.S.,  

Connaught  Place.   No  record  of  P.S.,  

Connaught Place, has been produced to show  

that they were on duty at the relevant time.  

No record has been produced to show that  

PW-3  HC  Kunju  had  sent  wireless  message  

about the incident.  In fact, PW-59 ASI Sher  

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Singh stated that the message was actually  

received from Constable Rattan Singh.  CW-5  

HC Majid Khan of the PCR was directed by the  

court to bring Log Book of the vehicle - Victor  

20 in which he claimed to have gone to the  

restaurant.  However, the record is stated to  

have  been  destroyed.   Thus,  most  vital  

contemporaneous  record  was  kept  back  

intentionally.    CW-5  HC  Majid  Khan  also  

stated that PCR Van did not enter the hotel  

and remained parked outside.  However, the  

register  showing  entry  and  exit  of  vehicles  

indicates that the PCR Van entered the hotel.  

PW-35 Mahesh Prasad stated that all entries  

were made in the register by him as directed  

by the police at the police station.  Thus, the  

prosecution  story  is  shrouded  in  suspicion.  

The prosecution has not been able to prove  

its  case  beyond  reasonable  doubt.   The  

appellant, therefore, be acquitted.  

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25.      SUBMISSIONS ON BEHALF OF THE RESPONDENT    ON THE MERITS OF THE CASE.

a) Unnecessary doubt is sought to be created as  

regards  location  of  skull  from  5/7/1995  till  

12/7/1995.   During  trial  no  questions  were  

asked  and  no  suggestions  were  put  to  the  

witnesses in this regard.  Had that been done,  

the  witnesses  would  have  offered  

explanation.  In any case,  there is reliable  

and cogent evidence on record that the skull  

was properly preserved and it was the skull of  

the deceased.  

b) At one stage, the stand of the appellant was  

that  there  was  a  possibility  of  implanting  

bullets on 12/7/1995 itself when the body was  

being taken to the Civil Hospital for X-ray.  A  

contrary stand is taken in this Court that two  

bullets  might  have  been  put  in  the  skull  

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during the period 5/7/1995 to 12/7/1995.  This  

submission  of  the  defence  deserves  to  be  

rejected.   There  is  no  reason  to  disbelieve  

independent  evidence  of  the  doctors  who  

were part of the Board of Doctors.  

c) A revolver was recovered from the custody of  

the appellant from Bangalore on 11/7/1995.  

It  was brought to New Delhi  along with the  

appellant  on  12/7/1995.  The  Report  of  the  

CFSL shows that the bullets found in the skull  

were  from  the  revolver  of  the  appellant.  

There  was  no  cross-examination  on  the  

veracity of the said Report.  The defence has  

not stated what could be the motive for PW-

81 IO Niranjan Singh or anyone else to falsely  

involve the appellant.  There was no enmity  

between them and the appellant.   

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d) The  contention  that  the  bullets  recovered  

were not deposited in the Malkhana must be  

rejected.   One lead bullet  was deposited in  

the  Malkahna  on  5/7/1995  by  PW-81  IO  

Niranjan Singh.  Two bullets (Ex-36 and Ex-

37) removed from the skull of the deceased  

were  duly  sealed  and  handed  over  to  the  

police by PW-44 Dr. Bharat Singh immediately  

after  the  post-mortem  examination.  As  per  

the Register of the Malkhana, the two bullets  

recovered  from  the  skull  of  the  deceased  

were deposited in the Malkhana by PW-81 IO  

Niranjan  Singh  on  12/7/1995.   They  were  

received in the CFSL on 17/7/1995 in sealed  

condition, as is evident from Ex-PW70/A1-A9.  

The said bullets were also examined by Dr.  

G.D.  Gupta,  Serologist,  who  confirmed  that  

the blood on the bullets was B+ve.

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e) Only one lead bullet,  five empty cartridges,  

one piece of ply having one hole of bullet and  

one air pistol were collected on 5/7/1995 after  

the site was inspected by PW-70 Roop Singh,  

the Ballistic  Expert  and also the Director of  

the  CFSL  -  PW-16  Dr.  V.N.  Sehgal.   From  

memo  (Ex-PW-16/A)  which  bears  the  

signature  of  PW-16  Dr.  V.N.  Sehgal  and  

Inspector  Ramesh,  it  is  clear  that  only  one  

lead bullet (Ex-24) and five cartridges (Ex-25)  

were found at the said flat.  It is not the case  

of the prosecution that bullet recovered from  

the said flat was stained with human blood.    

f) It  is  true  that  CW-6  Dr.  Sarangi,  who  

conducted the post-mortem did not find any  

bullet injury but due to the condition of the  

dead body the bullet injuries might not have  

been detected by naked eyes at the time of  

first  post-mortem.  The  second  post-mortem  

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Report clearly states that the firearm injuries  

were ante-mortem.  The evidence on record  

thus clearly establishes that firearm injuries  

were found on the skull of the deceased.  It is  

true that the Security Regulations prohibit the  

carriage of weapons in the passenger cabin  

but it was not impossible for the appellant to  

have  flown  from  Jaipur-Mumbai-Chennai  

carrying a revolver. There is no prohibition in  

carrying the revolver in checked-in luggage.  

This  plea  is  also  raised  during  arguments.  

The witnesses were not confronted with it at  

the trial.   

g) The appellant has not established the plea of  

alibi.   Since the appellant pleaded alibi the  

burden was on him to prove it.  Since he has  

failed to prove alibi  an adverse inference is  

drawn  against  him.   The  appellant  was  

noticed at or around 10.00 p.m. or 11.00 p.m.  

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in the night intervening 2nd and 3rd at Bagia  

Restaurant with Car bearing No.DL-2CA-1872.  

This  is  established  by  leading  evidence  of  

reliable  witnesses.   That  the  deceased  and  

the  appellant  were  last  seen  together  on  

2/7/1995  at  the  said  Flat  No.8/2A   is  

established by the evidence of the neighbour  

of the appellant.  PW-11 Mrs. R.K. Chaudhary.  

PW-12 Matloob Karim and PW-82 R.N. Dubey,  

the servant of the appellant have established  

that the relations between the appellant and  

the  deceased  were  strained.   PW-81  IO  

Niranjan  Singh  who  deposed  about  the  

condition of the said flat and the recoveries  

made  from  the  said  flat.   He  stated  that  

recoveries were effected on 4/7/1995 in the  

presence of PW-13 Dhara  Singh and PW-14  

Inspector Suraj  Prakash and, thereafter,  the  

said  flat  was  locked  and  left  under  

surveillance  of  SHO,  Mandir  Marg  and  on  

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5/7/1995 the recovery of one lead bullet, five  

cartridges, one ply with a hole, one air pistol  

was  made  in  the  presence  of  the  Ballistic  

Expert  -  PW-70  Roop  Singh  and  PW-16  Dr.  

V.N. Sehgal, the Director of the CFSL.    The  

testimony of PW-13 Dhara Singh is supported  

by  the  photos  taken  by  PW-84  PC  Balwan  

Singh.   The  contention  that  photos  taken  

during  investigation  were  not  placed  on  

record is contrary to the facts.  Photographs  

of  the  burnt  body  are  exhibited  at  Ex-PW-

74/9-16  and  their  negatives  are  at  Ex-PW-

74/1-9,  skull  photographs  are  at  Ex-PW-

76/A15-A28 and their negatives are at Ex-PW-

76/A1-A31 and photographs of the said flat,  

female clothes etc. were placed on record at  

Ex-PW-76/A1-A14.

h) The  appellant  absconded  from  Bagia  

Restaurant on the night intervening 2/7/1995  

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and 3/7/1995 and stayed at Gujarat Bhawan.  

He absconded from Delhi to Jaipur by taxi on  

3/7/1995.   On  4/7/1995  he  travelled  by  air  

from  Jaipur-Bombay  and  from  Bombay-

Madras and, in the end, he went to Bangalore  

from  where  he  was  apprehended  by  the  

Bangalore  Police  on  10/7/1995.  In  the  

presence  of  the  DCP  of  Bangalore  Police,  

search  of  the  briefcase  and  shoulder  bag  

produced by the appellant was done and the  

revolver was recovered from his possession.  

The  Report  of  the  CFSL  states  that  the  

damaged  fired  lead  bullets  recovered  from  

the head and the neck of the deceased and  

the damaged fired lead bullet recovered from  

the carpet in the said flat were fired from the  

said revolver.  The hole in the ply was also  

caused  by  the  shot  fired  from  the  said  

revolver.    Though the  incident  in  question  

was  widely  published  the  appellant  never  

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sought  to contact  any one.  Abscondence of  

the  appellant  is  an  important  circumstance  

and  lends  support  to  the  case  of  the  

prosecution.   His  conduct  is  relevant  under  

Section 8 of the Indian Evidence Act. [Swamy  

Shraddananda  alias  Murali  Manohar  

Mishra v. State of Karnataka2]

i) The car of the appellant bearing No.DL-2CA-

1872 was found abandoned at Malcha Marg  

on 4/7/1995.  On information received by PW-

81 IO Niranjan Singh, the same was seized.  

Dry human blood was found in the dicky of  

the  said  car.   The  key  of  this  car  was  

recovered at the Pai Vihar Hotel at Bangalore  

in  the  presence  of  the  appellant  and  his  

advocate.   The  testimony  of  PW-81  IO  

Niranjan Singh about the recovery of the car  

at Malcha Marg has not been questioned in  

2 (2007) 12 SCC 288

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cross-examination.  Thus,  all  the  

circumstances  clearly  establish  the  

prosecution  case.   The  conviction  of  the  

appellant deserves to be confirmed.  

ANALYSIS OF EVIDENCE IN LIGHT OF SUBMISSIONS OF  

THE COUNSEL.

26. We shall now consider the submissions of the counsel in  

light of evidence on record.   Since this is a case based on  

circumstantial  evidence,  we  must  see  whether  chain  of  

circumstances is complete and points unerringly to the guilt  

of the appellant.  It is first necessary to see the background  

of the case.  The fact that the appellant and the deceased  

were staying at the said flat as husband and wife can hardly  

be disputed.  PW-12 Matloob Karim, who was known to the  

appellant and the deceased stated that in the year 1989, he  

was the  Organizing Secretary  of Youth Congress.   At  that  

time, the appellant was its President and the deceased was  

General Secretary of its Girls Wing.  He stated that he knew  

the deceased from 1984 when they were in  the  Students  

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Union  of  Delhi  University  and  because  of  their  close  

association,  they  had  fallen  in  love  with  each  other.  

However,  they could not  marry because they belonged to  

different  religions.   He  stated  that  he  got  married  in  

December, 1988.  The deceased got married to the appellant  

in  the  year  1992  and  informed him about  it.   He  further  

stated  that  after  her  marriage,  she  was  staying  with  the  

appellant  at  the  said  flat.   CW-1  Mrs.  Jaswant  Kaur,  the  

mother of the deceased, CW-2 Sardar Harbhajan Singh, the  

father of the deceased and PW-82 Ram Niwas Dubey, who  

was the personal servant of the appellant also confirmed this  

fact.  Pertinently, no suggestion was put to them in the cross-

examination that what they were saying was false.  In this  

connection, it is important to note that the DNA Report [Ex-

PW-87/A] confirms that the dead body which was burnt at  

Bagia  Restaurant  was that  of the  deceased,  who was the  

biological  offspring  of  CW-1  Mrs.  Jaswant  Kaur  and  CW-2  

Sardar Harbhajan Singh.  PW-11 Mrs. Chaudhary, a retired  

Government servant, was staying along with her husband in  

Flat  No.8/2-B,  which  was  in  front  of  the  appellant’s  Flat  

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No.8/2-A.   She stated that the appellant was living with his  

wife i.e. the deceased in the said flat.  Her husband PW-9  

M.L. Chaudhary corroborated her evidence. According to PW-

11  Mrs.  Chaudhary,  the  deceased  was  last  seen  with  the  

appellant in the evening of 2/7/1995 in the said flat.  Though  

his statement recorded under Section 313 of the Cr.P.C., in  

answer to one of the questions, the appellant stated that he  

was the President of NSU(I); that he knew the deceased since  

1985; that the deceased was living with his parents at Gole  

Market and that he had no contact with her after 1985, while  

answering another question, he admitted that he was living  

with the deceased in the said flat.  PW-15 HC Amba Das was  

the beat constable of Mandir Marg Area at the relevant time.  

According to  him,  once he  had gone to  the  house of  the  

appellant for verification of the quarters. At that  time, the  

appellant  told  him  that  he  should  take  care  of  the  Car  

bearing  No.DAC  3285  belonging  to  his  wife  and  his  Car  

bearing  No.DL-2CA-1872 as  the  vehicles  were  increasingly  

being stolen.   According to him, the appellant also told him  

that since during the day time they were out, he should take  

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care of their house.   Admittedly, Car bearing No.DAC 3285  

belonged to the deceased.   It may be noted here that on  

5/7/1995,  this  car  was seized by PW-81 IO Niranjan Singh  

when it was parked below the said flat.  We are, therefore, of  

the opinion that the prosecution has successfully proved that  

the appellant and the deceased were married and they were  

staying in the said flat  as husband and wife and that  the  

deceased was last seen in the company of the appellant in  

the  said  flat  on  the  evening  of  2/7/1995  by  PW-11  Mrs.  

Chaudhary.    

27. The appellant’s connection with the Bagia Restaurant is  

very  crucial  to  the  prosecution  because  the  infamous  

tandoor was situated there.  The appellant has not disputed  

that the Bagia Restaurant is run as per the agreement with  

the ITDC.  In his statement recorded under Section 313 of the  

Cr.P.C., he stated that his Manager at Bagia Restaurant was  

one Mr. Handa and his Accountant was one Mr. Karan.  He  

admitted that A2-Keshav was employed in Bagia Restaurant.  

A2-Keshav has also admitted this fact.  Thus, the prosecution  

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has successfully proved that the appellant was the owner of  

Bagia Restaurant.  

28. From the evidence on record, it is clear that all was not  

well  between  the  appellant  and  the  deceased.   PW-12  

Matloob Karim has admitted that the deceased and he were  

in love with each other but they could not marry because  

they belonged to different religions.  His evidence indicates  

that  he  got  married  to  a  Muslim girl  in  December,  1988.  

According  to  him,  the  deceased  told  him  that  she  had  

married the appellant in the year 1992. He stated that even  

after his marriage, he and the deceased used to meet and  

talk.  According to him, in August, 1989, the deceased told  

him to enquire about the antecedents of the appellant.  She  

told him that the appellant had proposed to her.  According  

to this witness, he had told her that the appellant was not a  

good person.  The deceased phoned him sometimes in the  

year  1992  and  stated  that  she  had  got  married  with  the  

appellant and that prior to the marriage, she had disclosed  

their friendship to the appellant.  Six months thereafter, he  

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received  a  call  from  the  deceased  stating  that  she  was  

trapped; that the appellant was not a good man and that he  

used  to  abuse  and  thrash  her  on  trivial  matters.   The  

deceased again phoned him and told him that the appellant  

had thrown her out of their  house.  On 2/7/1995 between  

3.00 p.m. to 4.00 p.m., the deceased telephoned him and  

told him to help her to migrate to Australia.  The evidence of  

this witness is criticized on the ground that he is not a person  

of  good  character  because  he  admitted  that  even  after  

marriage,  he  continued  to  have  relationship  with  the  

deceased.   It is contended that he was inimically disposed  

towards  the  appellant  and,  therefore,  he  had  falsely  

implicated him.  We find no substance in  this submission.  

Assuming this witness loved the deceased and he continued  

to meet her after her marriage with the appellant that, in our  

opinion, has no relevance.  His evidence has a ring of truth.  

By  falsely  implicating  the  appellant,  he  would  not  have  

gained anything.   In  our opinion, this witness is  worthy of  

credence.  PW-82 Ram Niwas Dubey’s testimony also throws  

light on this aspect.  His association with the appellant began  

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in the year 1989 when the appellant was the President of  

Youth Congress (I). He was working as a peon with him till  

April, 1995.  He stated that the appellant obtained the said  

flat  in  1992.   The  appellant  lived  with  his  wife  i.e.  the  

deceased in the said flat.  He knew the deceased since 1992  

as  she  was the  General  Secretary  of  Youth Congress  and  

used to visit the appellant at his office at Talkatora.   After  

the appellant’s marriage with the deceased, he was working  

with the appellant and was living in the said flat.  He stated  

that the appellant and the deceased used to quarrel on the  

topic of marriage.  The deceased used to ask the appellant  

as  to  when  he  would  make  their  marriage  public.   The  

appellant used to tell her that he will disclose their marriage  

to the people at  the appropriate time.   According to him,  

there used to be frequent quarrels between the two and the  

appellant  used  to  beat  the  deceased  with  legs,  fists  and  

dandaa.   He  further  deposed  that  as  directed  by  the  

appellant,  he used to accompany the deceased to keep a  

watch on her movements because the appellant suspected  

her  fidelity.   The defence has not  elicited anything in  the  

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cross-examination of this witness, which can persuade us to  

discard  his  testimony.  PW-11  Mrs.  R.K.  Chaudhary,  the  

neighbour  of  the  appellant  and the  deceased,  stated  that  

once  when  they  were  watching  T.V.  in  their  house,  they  

heard a noise coming from outside.  They opened the door of  

the drawing room and saw that scuffle was going on between  

the appellant and the deceased.  The deceased wanted to go  

out  of  the  house  but  the  appellant  was  pulling  her  back  

inside the house.  This witness has no reason to concoct a  

story.  She appears to us to be a reliable witness.  Though  

the father and the mother of the deceased, the neighbours of  

the appellant and the deceased and their servant knew that  

the appellant and the deceased were staying together and  

the  parents  of  the  deceased  stated  in  the  court  that  the  

appellant and the deceased were married to each other, the  

marriage was not made public.  The deceased wanted the  

marriage to be made public.  The appellant was reluctant to  

do so and was suspecting her fidelity.  On account of this  

suspicion, he used to quarrel with her and beat her.  He had  

asked  PW-82  Ram  Niwas  Dubey  to  keep  watch  over  her  

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movements and had also put restrictions on her movements.  

On account of this, the deceased was making efforts to leave  

him.  It appears that perhaps the appellant did not want to  

make  the  marriage  public  because  the  deceased  was  

continuing her relationship with PW-12 Matloob Karim even  

after marriage. These circumstances established by evidence  

adduced by the prosecution lead us to conclude that there  

was a strong motive for the appellant to do away with the  

deceased.  It was urged that the appellant was deeply in love  

with the deceased and despite knowing her relationship with  

PW-12 Matloob Karim,  he  did  not  drive  her  out.   He  only  

restricted  her  movements  because he wanted to stop her  

from her wayward ways.  He would have, therefore, never  

killed  her.  In  our  opinion,  the  appellant’s  love  for  the  

deceased does not dilute the prosecution case on motive.  In  

fact, it strengthens it.   

29. That  there  was  fire  in  the  Bagia  Restaurant  around  

10.30 p.m. on 2/7/1995 and that, at that time, the appellant  

was present near the Bagia Restaurant is established by the  

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prosecution by leading reliable evidence.  PW-7 Mrs. Anaro  

Devi  who was running a  vegetable  shop near  Ashok Yatri  

Niwas stated that  two years back at  about 11.30 p.m. on  

2/7/1995 when she was present at her shop, a fire broke out  

in Bagia Restaurant.  One constable and home guard came  

there.  She informed them about the fire.  PW-3 HC Kunju  

stated that on 2/7/1995 he was posted as Constable at P.S.,  

Connaught Place.  PW-4 Home Guard Chander Pal was with  

him.  When they reached near Ashok Yatri Niwas at about  

11.20 p.m., they found that fire had broken out in the Bagia  

Restaurant.  He rushed to the Police Post, Western Court and  

gave information to the police through wireless.  On reaching  

the  spot,  he  saw  flames  coming  up  from  the  Bagia  

Restaurant.   He  entered  the  restaurant  along  with  PW-4  

Home Guard Chander Pal and saw A2-Keshav standing near  

the tandoor.  He was putting pieces of wood into the tandoor  

and was shuffling the same with a long wooden stick.  On  

enquiry, A2-Keshav told him that he was a Congress Party  

worker  and  he  was  burning  the  old  banners,  posters  and  

waste papers, etc. of the Congress Party.  In the meantime,  

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the patrolling officer SI Rajesh Kumar, the staff of PCR and  

security officials Rajiv Thakur and PW-35 Mahesh Prasad also  

came there. According to him, he saw the appellant near the  

gate of the Bagia Restaurant.  PW-35 Mahesh Prasad told him  

that the appellant was the owner of the Bagia Restaurant.  

PW-3 HC Kunju identified the appellant at the police station  

as the same person whom he had seen at the gate of the  

Bagia  Restaurant.   PW-4 Home Guard  Chander  Pal  stated  

that on 2/7/1995, when he was on patrolling duty along with  

PW-3 HC Kunju,  they reached Ashok Yatri  Niwas at  about  

11.30 p.m.  They saw fire at the Bagia Restaurant.  PW-3 HC  

Kunju went and phoned the police station and came back.  

Both  of  them  scaled  the  wall  and  entered  the  Bagia  

Restaurant for extinguishing the fire.  They saw A2-Kesahv  

trying to stoke the fire with the help of a wooden stick.  When  

asked,  A2-Keshav  told  them that  he  was  burning  the  old  

banners and   posters  of the  Congress Party.   He further  

stated that the appellant was standing there wearing white  

coloured  kurta  pyjama.   He  was  so  informed  by  PW-35  

Mahesh Prasad.  He further stated that the appellant came  

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near the tandoor and shuffled the fire with wooden stick and,  

thereafter, he left from there.  He stated that he identified  

the appellant at the police station.   CW-5 HC Majid Khan  

deposed that in the night of 2/7/1995, he was on duty on PCR  

vehicle driven by Ranbir  Singh.  They went to Ashok Yatri  

Niwas for drinking water and there they noticed the fire in  

Bagia  Restaurant.   They  went  towards  the  gate  of  Bagia  

Restaurant.  There was a  kanat fixed at the gate and one  

man was standing there.  The man told them that they were  

burning  the  old  banners  and  waste  papers  and  flags  of  

Congress  Party  and  that  he  was  the  leader  of  Youth  

Congress.  PW-35 Mahesh Prasad then told them that that  

man was the owner of Bagia Restaurant and his name was  

‘Sushil Sharma’.  According to him, A2-Keshav was stoking  

the fire.  He stated that A2-Keshav was apprehended at the  

spot.   PW-1  Philips’s  evidence  is  also  important.  He  was  

working as a Stage Programmer in Bagia Restaurant.  This  

fact is confirmed by PW-5 K.K. Tuli, the General Manager of  

Bagia Restaurant.  According to PW-1 Philips, on 2/7/1995, he  

was on duty from 8.00 p.m. to 12.00 midnight.  He stated  

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that  he  and  his  wife  PW-2  Mrs.  Nisha  were  to  stage  a  

performance on that day.  One guest had come to see him.  

He had gone to see off that guest at 9.30 p.m. or 9.45 p.m.  

When he came back, he saw the appellant coming there in  

Maruti Car No.1872.  After 5-7 minutes, A2-Keshav asked him  

to stop the programme and go back to his house as his duty  

was over.  He obeyed and left for his house along with his  

wife PW-2 Mrs.  Nisha.   While going,  he saw the appellant  

sitting in his Maruti car which was standing at the gate.  PW-

2 Mrs. Nisha corroborated PW-1 Philips.  She stated that she  

had seen the appellant at about 10.15 p.m. at the gate of  

Bagia  Restaurant  in  Maruti  Car  No.1872.   PW-5  K.K.  Tuli,  

General Manager of Bagia Restaurant stated that around the  

time when the incident occurred, the appellant used to visit  

the Bagia Restaurant every day.  All  these witnesses have  

stood firm in the cross-examination.    

30. PW-3  HC  Kunju  stated  that  since  foul  smell  was  

emanating from the  tandoor, he and SI Rajesh Kumar went  

near the tandoor out of suspicion.  They saw a human body  

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whose  hands  and  feet  were  completely  burnt  and  whose  

intestines  were  protruding  out  from  the  stomach  in  the  

tandoor.  On a close look, they found that the dead body was  

of a female.  PW-4 Home Guard Chander Pal corroborated  

PW-3 HC Kunju on this aspect.  He stated that a body of a  

woman was found lying in the tandoor.  It’s bones were cut  

and intestines were protruding.  PW-5 K.K. Tuli, the General  

Manager  of  Ashok  Yatri  Niwas  stated  that  on  receiving  

telephonic information from the security staff, he went to the  

Bagia Restaurant and found a dead body of a woman in burnt  

condition lying amongst the wood pieces in tandoor.  There is  

no challenge  to  these statements  of  the  witnesses  in  the  

cross-examination.  On receiving information, senior police  

officers including PW-81 IO Niranjan Singh reached the spot.  

Photographs of the dead body were taken by PW-74 HC Hari  

Chand.  He produced the photographs of the dead body (Ex-

PW-74/9 to 16) and negatives thereof (Ex-PW-74/1 to 8).  PW-

75 Inspector Jagat Singh and PW-81 IO Niranjan Singh have  

also deposed about it. A2-Keshav was handed over to PW-81  

IO Niranjan Singh.   PW-81 IO Niranjan Singh recorded the  

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statement of PW-3 HC Kunju, which was treated as FIR.  In  

the FIR, PW-3 HC Kunju narrated all the events which took  

place  after  he  reached  the  Bagia  Restaurant  till  his  

statement was recorded.  It is necessary to note here that he  

specifically mentioned about the presence of the appellant.  

He made it clear that he was informed about the appellant’s  

presence by the Security Guard PW-35 Mahesh Prasad. He  

stated that  the Security Guard PW-35 Mahesh Prasad told  

him  that  the  appellant,  who  is  the  owner  of  the  Bagia  

Restaurant was standing there. He noted the presence of the  

appellant  and  A2-Keshav.   He  stated  that  A2-Keshav  was  

detained,  however,  the  appellant  had  run  away.  He  also  

stated about the finding of burnt body of an unknown lady in  

the tandoor.   

31. It must be mentioned here that PW-35 Mahesh Prasad  

has not supported the prosecution on this aspect.  He stated  

that he had not seen the appellant on that day at the Bagia  

Restaurant.  It appears that he was won over by the defence.  

Tenor of his evidence suggests that he was hiding the truth  

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and  favouring  the  appellant.  The  trial  court  has  rightly  

commented on his demeanor and stated that his demeanor  

indicates  that  he  was won over  by the  appellant.   In  the  

circumstances, we see no reason to disbelieve PW-1 Philips,  

PW-2 Mrs. Nisha, PW-3 HC Kunju, PW-4 Home Guard Chander  

Pal and CW-5 HC Majid Khan.  In any case, even if we leave  

the evidence of PW-3 HC Kunju, PW-4 Home Guard Chander  

Pal  and CW-5 HC Majid  Khan out  of consideration on this  

aspect,  the evidence of PW-1 Philips and PW-2 Mrs.  Nisha  

establishes  the  presence  of  the  appellant  at  the  Bagia  

Restaurant at the relevant time in the night of 2/7/1995 at  

around 10.15 p.m. Some controversy is sought to be created  

as to whether PCR Vehicle entered the Bagia Restaurant or  

not  because  the  log  book  of  the  PCR  Vehicle  was  not  

produced. We have no manner of doubt that this discrepancy  

is created by PW-35 Mahesh Prasad, who was won over by  

the  appellant.   It  needs  to  be  ignored.   In  our  opinion,  

whether  the  PCR vehicle  entered the  Bagia  Restaurant  or  

was  parked  outside  is  not  a  material  circumstance.   The  

presence of the witnesses is well established.  It is, therefore,  

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not necessary to dwell  on this point.  On the basis of the  

evidence  discussed  above,  we  are  satisfied  that  the  

prosecution has established the presence of the appellant at  

the Bagia Restaurant at around 10.30 p.m. on 2/7/1995.  It  

has also established that a dead body of a woman in burnt  

condition was found lying in the tandoor.  

32. PW-81 IO Niranjan Singh started investigation and after  

holding inquest, sent the dead body to RML Hospital.   We  

have already referred to PW-85 Dr. Joginder Pal, who stated  

that on 3/7/1995 an unknown female body was brought to  

the RML Hospital at 6.20 a.m.  He examined the dead body.  

In  his  Report  (Ex-PW-85/A)  he  noted  the  condition  of  the  

charred body.  PW-12 Matloob Karim identified the dead body  

as that of the deceased on 5/7/1995 at RML Hospital.  DNA  

Report  established  that  the  dead  body  was  of  deceased  

Naina Sahni,  who was the  daughter  of CW-1 Mrs.  Jaswant  

Kaur  and  CW-2  Sardar  Harbhajan  Singh.  Thus,  the  

prosecution has successfully established that the dead body  

was of Naina Sahini, wife of the appellant.  

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33. Post-mortem of the dead body was conducted by CW-6  

Dr.  Sarangi  on  5/7/1995.   We  have  reproduced  the  

observations noted by CW-6 Dr. Sarangi in his post-mortem  

report,  hereinabove.   That  the  death  was  homicidal  is  

established  and is not disputed. In this case, the medical  

evidence assumes great importance.   We shall discuss it, in  

detail, a little later.   

34. We shall now go to the search of the said flat.  PW-81 IO  

Niranjan Singh stated that on 3/7/1995 at about 3.00 p.m.,  

he went to the said flat  along with A2-Keshav,  but  it  was  

found locked.  On 4/7/1995 at about 11.30 a.m. / 12.00 noon,  

he  reached  the  said  flat.   The  said  flat  was  under  the  

surveillance of PW-14 Inspector Suraj Prakash. It was forced  

open under a panchanama.  Certain bloodstained articles like  

cloth pieces, chatai and piece of carpet were seized from the  

said  flat  under  a  panchnama.   He  found  five  empty  

cartridges, a lead bullet, an air pistol and a ply in which there  

was a hole caused by the bullet.  According to him, he did not  

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take  possession  of  these  articles  because  the  Ballistic  

Experts were not present.  On 5/7/1995, he visited the said  

flat along with PW-70 Roop Singh, the Ballistic Expert, and  

PW-16  Dr.  V.N.  Sehgal,  Director  of  the  CFSL  and  in  their  

presence five empty cartridges, one lead bullet, an air pistol  

and a ply having bullet hole were seized and panchnama (Ex-

PW-16/A) was drawn.  It was signed by PW-16 Dr. V.N. Sehgal  

and Inspector Ramesh Chander. PW-16 Dr. V.N. Sehgal has  

confirmed  that  on  5/7/1995  at  about  12.00  noon,  on  a  

request  made by the police, he visited the said flat  along  

with PW-70 Roop Singh. He stated that he entered the said  

flat  along with PW-70  Roop Singh and PW-81 IO Niranjan  

Singh.  PW-70 Roop Singh collected five empty cartridges,  

one lead bullet, one piece of ply having a hole in it and one  

air  pistol.   He further  stated that  the seized articles  were  

sealed and the memo was prepared, which is at Ex-PW-16/A.  

PW-81 IO Niranjan Singh has also spoken about the seizure  

memo [Ex-PW-16/A] on which he obtained signatures of PW-

16 Dr. V.N. Sehgal and Inspector Ramesh Chander.  PW-67  

HC Raj Kumar, in-charge of Malkhana has deposed about the  

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parcels of the seized articles received by him on 5/7/1995.  

He stated that on 17/7/1995, SI Rakesh Ahuja took all  the  

parcels to the CFSL.  Thus, seizure of five empty cartridges,  

one lead bullet, a ply with a hole on it from the said flat on  

5/7/1995 is proved.  It  is also proved that the said seized  

articles were deposited in Malkhana on 5/7/1995 and were  

sent to the CFSL on 17/7/1995.  

35. PW-70 Roop Singh, the Ballistic Expert has stated about  

receipt of the seized articles from SHO, P.S., Connaught Place  

on 17/7/1995.  He has spoken about the examination of the  

said articles sent to his laboratory and the result thereof.  It  

is true that in his evidence, he has not stated anything about  

his  visit  to  the  said  flat  on  5/7/1995  or  the  finding  of  

cartridges, lead bullet  and ply with a hole in the said flat,  

which has been stated by PW-16 Dr. V.N. Sehgal and PW-81  

IO Niranjan Singh.  From this, it cannot be concluded that he  

was  not  present  in  the  said  flat  on  5/7/1995.   Obviously,  

being  a  Ballistic  Expert,  he  has  only  concentrated  on the  

result  of  examination  conducted  in  his  laboratory.   No  

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adverse  inference  can  be  drawn from his  not  mentioning  

finding of cartridges, lead bullet, etc. from the said flat on  

5/7/1995.  It is true that PW-14 Inspector Suraj Prakash has  

admitted that in his statement recorded under Section 161 of  

the Cr.P.C., he has not referred to the seizure of cartridges,  

bullets, etc.  However, his evidence makes it clear that his  

statement was recorded at the spot when the recoveries of  

other articles were made i.e. on 4/7/1995.  He stated that his  

supplementary  statement  was  not  recorded.  Since,  the  

seizure of the said articles was made on 5/7/1995 that too in  

his absence, there was no question of his mentioning about  

the recoveries of cartridges, etc. in his statement recorded  

on 4/7/1995.  He stated in his evidence that the said articles  

were there in the said flat but they were not seized because  

the Ballistic Expert was not there. The fact that statement of  

this witness was recorded on 4/7/1995 is also stated by PW-

81 IO Niranjan Singh.  Therefore, this circumstance cannot be  

taken against the prosecution.  

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36. It is argued that in the recovery memo dated 4/7/1995,  

there is  no mention of recovery of empty cartridges,  lead  

bullet, etc. and, therefore, PW-81 IO Niranjan Singh’s version  

regarding  recovery of  empty  cartridges  and  lead  bullet  is  

falsified.  This submission deserves to be rejected without  

hesitation because the recovery was effected on 5/7/1995  

under  panchnama  (Ex-PW-16/A).   These  articles  were  not  

seized on 4/7/1995.  Therefore, they cannot find mention in  

the  panchnama  dated  4/7/1995.    Recovery  Memo dated  

5/7/1995  clearly  talks  about  recovery  of  cartridges,  lead  

bullet,  a  piece of ply having a hole of a bullet  and an air  

pistol.  It is true that PW-13 Dhara Singh has not stated that  

on 4/7/1995 any cartridges or lead bullet were found in the  

said flat.  However, PW-14 Inspector Suraj Prakash who had  

accompanied him and PW-81 IO Niranjan Singh have stated  

so. Therefore, non-mentioning of this fact by PW-13 Dhara  

Singh  is  of  no  consequence.   Both  PW-14  Inspector  Suraj  

Prakash and PW-81 IO Niranjan Singh have stated that the  

said cartridges, etc. were not seized on 4/7/1995 because the  

Ballistic  Expert  was  not  present.   Therefore,  we  feel  that  

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absence  of  any  memo  in  this  regard  does  not  affect  the  

prosecution  case  adversely.   It  is  stated  in  the  written  

submissions that two lead bullets were recovered from the  

said  flat.   This  statement  is  factually  incorrect.   All  the  

witnesses  have  stated  that  only  one  lead  bullet  was  

recovered from the said flat  and that  is  confirmed by the  

panchnama (Ex-PW-16/A).  We are also not impressed by the  

submission of the appellant’s counsel that at least ten rounds  

must have been fired in the said room and the neighbours  

should  have  therefore  spoken  about  it.   That,  ten  rounds  

must have been fired is a speculation of the counsel.  But,  

assuming  that  to  be  so,  it  is  common  knowledge  that  

neighbours generally would not want to get involved in such  

cases.  There is always an effort to disassociate oneself from  

such incidents for fear of getting entangled in court cases.  

Not much can be made out of this conduct of the neighbours.  

It is pertinent to note that PW-81 IO Niranjan Singh stated  

that when he asked the neighbours to become witnesses in  

the proceedings of the house search, they refused and stated  

that it is not proper to give evidence in a murder case.  It  

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appears that somehow two neighbours agreed to depose in  

the court, but considering the general apathy of the people  

towards associating themselves with such incidents, their not  

referring to any sound of firing cannot be taken against the  

prosecution.  Moreover, it is quite possible that since the flats  

were  closed,  sound  did  not  travel  from  one  flat  to  the  

neighbours’ flat.  We, therefore, reject this submission.  

37. It was argued that the lead bullet which was found  in  

the said flat was blood stained.  This is not correct.  Seizure  

Memo [Ex-PW-16/A] regarding the seizure of articles from the  

said flat on 5/7/1995 states that one lead bullet was seized.  

It  does not say that  the said lead bullet  was stained with  

blood.  PW-81 IO Niranjan Singh stated that on 5/7/1995 he  

seized  one  lead  bullet  from the  said  flat.   He  makes  no  

reference to any blood being found on it.   PW-16 Dr. V.N.  

Sehgal,  Director,  CFSL who was present  when the  articles  

were  seized  on  5/7/1995  stated  that  one  lead  bullet  was  

recovered from the said flat.  He  nowhere stated that it was  

blood stained.  PW-70  Roop Singh,  Ballistic Expert stated  

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that  he  received  one  lead  bullet  among  others  for  

examination on 17/7/1995.  He stated that the lead bullet  

recovered from the said flat was fired through .32 revolver  

[W-2].  It is pertinent to note that this is the same revolver  

which was seized from the room of the appellant at Pai Vihar  

Hotel, Bangalore.  He further stated that the hole on the ply  

was  found  to  have  been  caused  by  the  said  lead  bullet  

recovered from the said flat.  He however did not state that it  

was blood stained.  CFSL Report dated 27/7/1995 also does  

not state that the said bullet was blood stained.  Therefore, it  

is clear that it is not the case of the prosecution that the lead  

bullet seized from the said flat on 5/7/1995 was stained with  

blood.   Therefore,  all  the  submissions  based  on  the  

assumption  that  bullet  found  in  the  said  flat  was  blood  

stained are rejected.

38. PW-81 IO Niranjan Singh has stated that on 4/7/1995 at  

about 9.10 a.m., a wireless message was received by him  

that  Car  bearing  No.DL-2CA-1872  was  parked  at  Malcha  

Marg.  He along with the staff  reached near Malcha Marg  

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Market.   The said car was parked on the road.  The CFSL  

team was called  for  inspection of  the  car.   Car  was then  

inspected.  The dry blood lying in the dicky of the car was  

scratched,  kept  in  a  polythene  packet,  converted  into  a  

parcel and sealed.   Many long hair were lifted from the back  

of the front left seat of the car, kept in a parcel and sealed.  A  

memo being Ex-PW-60/B was prepared which bears this out.  

The recovery of the appellant’s car is attacked on the ground  

that no record of wireless message has been produced; no  

one from P.S. Malcha Marg was examined; no record of P.S.  

Malcha Marg has been produced; no information was given to  

the nearest Magistrate and no record showing presence of  

PW-72 PC Mukesh of P.S. Chanakyapuri was produced.  It is  

also  stated  that  no  witness  from  the  CFSL  has  been  

examined;  no  photographs  have  been  produced  and  no  

independent witnesses have been examined.  In our opinion,  

it was not necessary to produce the record showing presence  

of PW-72 PC Mukesh.  We find him to be a truthful witness.  In  

his  evidence,  PW-72  PC  Mukesh  clearly  stated  that  on  

4/7/1995, the said car  was found abandoned near Gujarat  

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Bhavan.   He  also  deposed  that  before  leaving  the  police  

station for patrolling duty, he was given number of the said  

car by SHO saying that it was involved in the murder case of  

P.S. Connaught Place and he should look for the said car.  In  

view of   the clear testimony of PW-72 PC Mukesh,  it was not  

necessary to produce other record to support seizure of the  

car.  There is no reason to disbelieve him.  PW-81 IO Niranjan  

Singh has stated that  the  blood stains found in  the dicky  

were scratched and sample thereof was taken.  Therefore,  

even  if  no  witness  from the  CFSL  has  been  examined  to  

depose about this or no photographs have been produced,  

that has no adverse effect on the prosecution case.   Some  

advantage is sought to be drawn from the discrepancies in  

the time as regards receipt of wireless message from PW-81  

IO Niranjan Singh and the estimate of time given by PW-72  

PC Mukesh regarding PW-81 IO Niranjan Singh’s presence at  

the site and the time given by PW-81 IO Niranjan Singh as to  

when he reached the said flat after taking samples from the  

appellant’s car.  The estimate of time given by the witnesses  

differ and may, at times, conflict.  When there are telltale  

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circumstances on record clearly supporting the prosecution  

case, assuming there are some discrepancies in the evidence  

of witnesses as regards time, it would not make any dent in  

the prosecution story.   The argument that in the dicky there  

ought  to  have been a  pool  of  blood,  will  also have to  be  

rejected.  PW-75 Inspector Jagat Singh in his evidence stated  

that  from  the  spot,  a  polythene  sheet/tarpaulin  bearing  

stains of blood on one side and scratch marks on the lower  

side was taken in possession under seizure memo [Ex-PW-

75/1].  The body must, therefore, have been well covered in  

polythene sheet to hide it and, hence, there was no pool of  

blood in the dicky.   This also explains why there was no trail  

of blood on the staircase or on the road.  Blood was, however,  

found in the said flat.  

39. The CFSL Report dated 27/7/1995 states that the hair  

recovered from the back of the left front seat of the said car  

were identified to be of human origin. However, no opinion  

could be given as to whether they were of the deceased.  

From the dicky,  no human hair  were  recovered possibly  

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because  the  dead  body  was  properly  covered.   This  

circumstance appears to us to be totally innocuous and no  

advantage can be drawn from it by the defence.   So far as  

the sample of blood found in the dicky of the said car is  

concerned,  the CFSL Report  while confirming that  it  was  

blood, stated that the blood group could not be analysed.  

There is no positive finding that the blood detected was not  

found to be ‘human’ blood. The submission that the blood  

detected in the dicky was found not to be ‘human’ blood is  

contrary to facts.  Seizure of the appellant’s car which was  

found abandoned  at  Malcha  Marg  with  dry  blood in  the  

dicky establishes the prosecution case that the said car was  

used by the appellant to carry the dead body to the Bagia  

Restaurant.   It  is  further  established  that  after  leaving  

Bagia Restaurant on arrival of police, he came to Malcha  

Marg and parked the car there.  

40. The  evidence  on  record  establishes  that  after  

committing  the  murder,  the  appellant  spent  the  night  at  

Gujarat  Bhawan situated at  Malcha Marg.  Thereafter,  the  

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appellant  was  on  the  run.   PW-81  IO  Niranjan  Singh’s  

evidence throws light on it.  It appears that while in Madras,  

the  appellant  having  come  to  know that  the  police  were  

looking for him, obtained anticipatory bail.  On an application  

filed by the prosecution, the anticipatory bail was cancelled.  

According  to  PW-81  IO  Niranjan  Singh,  he  learnt  that  on  

10/7/1995, the appellant  was arrested by PW-46 Inspector  

Gangadhar of the Bangalore Police.  PW-81 IO Niranjan Singh  

got  the  production  warrant  issued  from  the  concerned  

Magistrate  by  filing  Application  [Ex-PW-81/X-6].   On  

11/7/1995, he along with his colleague reached Bangalore  

and took custody of the appellant.  The appellant led them to  

Room No.110 of Hotel Pai Vihar where he was staying along  

with his advocate Mr. Anantanarayan.  From Room No.110, a  

briefcase  was  recovered.   In  the  briefcase,  there  was  a  

revolver of Arminius make of .32 bore.  There were four live  

cartridges, arms licence, passport and other documents.  A  

key of a Maruti Car was also found from the briefcase and the  

same was also taken charge of and marked Ex-PW-81/X-10.  

All the articles were seized and seizure memo [Ex-PW-47/A]  

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was drawn.  The appellant was then brought to New Delhi.  

PW-81 IO Niranjan Singh has clearly stated that he informed  

the  security  personnel  at  the  airport  about  the  recovered  

revolver and the cartridges, while bringing the appellant to  

New Delhi by air.

41. No advantage can be drawn by the appellant from the  

fact that in the remand application dated 12/7/1995, it was  

stated  that  the  weapon  used  in  the  crime  had  to  be  

ascertained  and  recovered,  though  a  revolver  had  been  

recovered on 10/7/1995.  It must be borne in mind that the  

said  remand  application  was  made  at  an  early  stage  of  

investigation.  When the remand application was made, the  

police  had  not  ascertained  from  the  CFSL  whether  the  

revolver recovered at Bangalore was used by the appellant.  

Therefore, the said averment does not affect the veracity of  

recovery evidence.  As regards the criticism that there is no  

statement of the appellant recorded under Section 27 of the  

Evidence Act and, therefore, recoveries made at Bangalore  

become inadmissible is concerned,  it must be stated that it  

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is  not  the  prosecution  case  that  any  statement  of  the  

appellant was recorded under Section 27 of the Evidence Act.  

The revolver was recovered during investigation.  Pertinently,  

the  CFSL  Report  has  established  the  link  between  the  

revolver recovered from the hotel room at Bangalore and the  

bullets found in the skull of the deceased.  Evidence of police  

witnesses on this aspect is cogent and reliable.  We find no  

reason to discard it.  We may add here that in his statement  

recorded  under  Section  313  of  the  Cr.P.C.  the  appellant  

admitted that he possessed .32 bore Arminius revolver.  But  

he  stated  that  police  recovered  it  from  his  residence  at  

Maurya Enclave when he was at Tirupati.  The appellant has  

not led any evidence to prove that he was staying at Maurya  

Enclave.  His parents did not step in the witness box.  This  

story  is  rightly  disbelieved  by  the  High  Court.   Thus,  the  

appellant’s admission that he possessed .32 bore Arminius  

revolver goes a  long way amongst  other  circumstances in  

establishing his guilt.  

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42. Alleged  non-compliance  with  procedural  requirements  

laid  down in Cr.P.C.  by PW-81 IO Niranjan Singh who was  

conducting investigation outside his jurisdiction assuming to  

be true, is an instance of irregularity in investigation which  

has no adverse impact on the prosecution case.  It is true  

that Mr. Anantanarayan, the advocate was not examined.  It  

is also true that PW-48 Srinivas Rao, the Manager of Pai Vihar  

Hotel and PW-50 Kancha, the waiter of the said hotel were  

given  up  by  the  prosecution.  Mr.  Anantanarayan  being  

advocate of the appellant was not expected to support the  

prosecution.   It  appears  that,  therefore,  he  was  not  

examined.  So far as PW-48 Srinivas Rao is concerned, he  

was not examined by the prosecution because he was won  

over by the appellant.  PW-50 Kancha was not examined by  

the prosecution because he had difficulty in understanding  

Hindi and English.  These witnesses are therefore, of no use  

to  the  prosecution.   However,  the  prosecution  case  is  

substantiated by the evidence of PW-81 IO Niranjan Singh,  

PW-55 ACP Raj Mahinder Singh of Delhi Crime Branch and  

PW-47 CI Gowda of Hauze Kote Police Station, Bangalore.  We  

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find  them  to  be  truthful.   There  is  no  presumption  that  

evidence of police witnesses is always tainted.  No evidence  

has been brought on record to suggest that they bore any  

grudge against the appellant and, hence, wanted to falsely  

involve him.  In our opinion, recoveries made at Bangalore  

are proved beyond reasonable doubt.  

43. So  far  as  recoveries  of  bloodstained  clothes  at  the  

instance of the appellant from bushes near Gujarat Bhawan  

and from Rangpuri area are concerned, the trial  court has  

not relied upon the recovery made from the area near Gujrat  

Bhawan.  The High Court has found no reason to discard the  

recovery made from Rangpuri area.  In our opinion, even if  

these  recoveries  are  kept  out  of  consideration,  there  is  

enough other evidence on record which establishes the guilt  

of the appellant.  It is therefore, not necessary to dwell on  

the said recoveries.  

44. Counsel for the appellant has stated that according to  

the prosecution on 11/7/1995, a revolver and arms licence  

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were recovered from the hotel room of the appellant at Pai  

Vihar, Bangalore.  The same were put in a parcel sealed with  

the  seal  of  N.S.   It  is  submitted  that  on  15/10/1995,  the  

licence period was extended to cover up the lacunae and an  

entry was made on the seized licence to that effect and this  

suggests tampering.  We find no substance in this allegation.  

It appears from the evidence that the appellant had made an  

application for extension of licence on 18/1/1994 which was  

granted on 15/10/1995 by PW-55A ACP Ram Narain.   The  

evidence  on record indicates  that  what  was recovered on  

11/7/1995 is licence (Ex-PW-47/E) and according to PW-55A,  

ACP  Ram  Narain,  he  made  the  entry  of  extension  dated  

15/10/1995 on the licence (Ex-PW-55/A).  There is, therefore,  

no question of tampering with the seized licence.  Besides,  

no  question  was  put  to  any  of  the  officers  about  the  co-

relation between the said two exhibits.  In any case, expiry of  

arms  licence  has  nothing  to  do  with  the  core  of  the  

prosecution case.  We reject this submission.   

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45. We  shall  now go to the medical  evidence.   We have  

already  reproduced  the  observations  made  by  PW-85  Dr.  

Joginder Pal in his Medico Legal Report after he received the  

dead body. We have also reproduced the relevant portions of  

the post-mortem notes and the cause of death given by CW-

6 Dr. Sarangi.  According to CW-6 Dr. Sarangi, the cause of  

death was hemorrhagic shock consequent to various ante-

mortem injuries found on the dead body.  He has opined that  

the  burns  present  on  the  said  body  must  be  probably  

inflicted after the death.  It  was argued that it  is doubtful  

whether the death was caused due to firearm injuries.  It was  

pointed out that PW-85 Dr. Joginder Pal, the Casualty Medical  

Officer at RML Hospital has stated that he did not find any  

firearm injuries in the neck or in the head or in the nape of  

the  deceased.   Moreover,  CW-6  Dr.  Sarangi  also  did  not  

notice any bullet mark or bullet present in the dead body. In  

fact, he stated that the brain matter was intact.  Doubt was  

cast on the opinion of the Board of Doctors, who extracted  

the  two bullets  and  opined that  those two bullets  caused  

death.   It was argued that the skull from which bullets were  

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recovered was not the skull of the deceased.  We have no  

hesitation in rejecting all these submissions which are aimed  

at creating doubt about the Report of the Board of Doctors.   

46. So  far  as  PW-85  Dr.  Joginder  Pal  is  concerned,  

admittedly,  he  did  not  conduct  the  post-mortem.   He  

conducted  superficial  examination  of  the  dead  body.  

Obviously, therefore, he did not notice any firearm injury in  

the neck or in the head or in the nape of the deceased.  It is  

true that CW-6 Dr. Sarangi did not notice any evident bullet  

marks  or the bullets  embedded in  the skull.   Possibly the  

bullets were so embedded that they were not visible to the  

naked eye.  In this connection, it is necessary to turn to PW-

81 IO Niranjan Singh’s evidence.  He stated that as he found  

empty cartridges, a lead bullet and a bullet hole on a ply in  

the said flat, he suspected that a firearm must have been  

used  in  this  incident.   Therefore,  he  requested  CW-6  Dr.  

Sarangi  to  conduct  X-ray  examination  of  the  dead  body.  

However, X-ray examination was not conducted.  These facts  

were mentioned by him in letter (Ex-PW-81/X-11).  Since no  

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X-ray examination was done on 9/7/1995, he discussed the  

need of having a  second post-mortem with the  DCP,  New  

Delhi  and  ACP,  Connaught  Place.   He  wrote  a  letter  

containing queries about re-post-mortem and handed it over  

to PW-57 SI Ombir Singh and directed him to hand over the  

same  to  the  Board  of  Doctors.   According  to  him,  on  

9/7/1995,  he  had  requested  Dr.  Aditya  Arya,  DCP  for  

constitution of Board of Doctors.  Copy of the letter to Dr.  

Arya is at Ex-PW-81/X-11.  The Commissioner requested the  

Lt. Governor and by the order of Lt. Governor of New Delhi,  

the  Board  of  Doctors  was  constituted.   PW-44  Dr.  Bharat  

Singh,  PW-68  Dr.  T.D.  Dogra  and  Dr.  S.K.  Khanna  were  

selected as members of the Board.  On 12/7/1995, at about  

10.30 a.m., the members of the Board of Doctors reached  

the Lady Hardinge Mortuary to conduct second post-mortem.  

CW-6 Dr. Sarangi was also there and he had a conversation  

with  them.   Second  post-mortem  report  (Ex-PW-44/A)  

indicates  that  it  was  partly  conducted  at  Lady  Hardinge  

Mortuary  and thereafter  the body was shifted  to the  Civil  

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Hospital for X-ray.  Skull  was X-rayed.  X-ray revealed two  

bullets embedded in the skull.   

47. In  our  opinion,  when  PW-81  IO  Niranjan  Singh  had  

requested CW-6 Dr. Sarangi to get the dead body X-rayed, he  

should have got the X-ray examination done.   He gave an  

excuse that the X-ray examination was not done because the  

portable X-ray machine available at Lady Hardinge Medical  

College was not functioning.   Assuming this to be true, in a  

serious crime like this, he should have immediately taken the  

dead body to the Civil Hospital for X-ray examination.  It is  

pertinent to note that to a court question, he has stated that  

he was making sincere efforts to get X-ray of the dead body  

done  in  the  X-ray  department  in  consultation  with  the  

Medical Superintendent of the hospital. However, before he  

could  complete  any  such  endeavour,  the  body was  taken  

away by PW-81 IO Niranjan Singh for further examination by  

some other doctors at some other hospital.  There is nothing  

on record to show that CW-6 Dr. Sarangi made any grievance  

about this fact.  In fact, he admitted that in the post-mortem  

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report, he did not mention these facts nor did he take any  

action  against  PW-81  IO  Niranjan  Singh.    When  asked  

whether he had taken any action, CW-6 Dr. Sarangi changed  

his  stand and stated that  he thought  that  what  PW-81 IO  

Niranjan Singh was doing was in the furtherance of “good  

justice”. He has indeed contradicted himself.  If he thought  

that  the  dead  body was  suddenly  withdrawn and  he  was  

keen on X-raying it, then he ought to have written a letter to  

that effect to the Commissioner of Police and to the hospital  

authorities and he ought  to have made complaint  against  

PW-81 IO Niranjan Singh.  He did nothing.  In fact, at  one  

stage he stated that the necessity of X-ray examination was  

not  realized  by him because he did  not  notice  any bullet  

marks and at another stage he suggested that he wanted to  

get  the  dead  body  X-rayed.  When  he  was  asked  as  to  

whether a bullet can be put inside the body after death at  

the place where it has been noticed by the Board, he stated  

that  the  possibility  could  not  be  absolutely  ruled  out  

especially  in  the  presence of  multiple  post-mortem cracks  

and  separation  of  the  skull  bone  from  the  neck  for  the  

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purpose of superimposition.  Thus, CW-6 Dr. Sarangi in his  

evidence has tried to cast a doubt on the entire investigation  

and  the  Board  of  Doctors.   The  trial  court  severely  

commented on the conduct of CW-6 Dr. Sarangi.  The High  

Court,  however, expunged those remarks.   Since the High  

Court  has  expunged  those  remarks,  we  would  not  like  to  

reopen the issue.  But we find it extremely difficult to reject  

the  opinion  of  the  Board  of  Doctors  on  the  basis  of  his  

evidence.  Eminent doctors were members of the Board of  

Doctors.   They  had  no  reason  to  falsely  implicate  the  

appellant.  

48. We  would  also  like  to  make  it  clear  that  there  is  

absolutely no reason to doubt the prosecution case that the  

skull  of  which X-ray was taken was that  of the deceased.  

CW-6 Dr.  Sarangi  stated  that  on the  request  of  PW-81 IO  

Niranjan  Singh,  the  skull  bone  was  separated  for  

superimposition.   PW-81  IO  Niranjan  Singh  stated  that  he  

received the skull on 5/7/1995.  He stated that at the time of  

post-mortem,  he  gave  application  dated  5/7/1995  to  the  

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Autopsy Surgeon for preserving the skull for superimposition.  

Thus,  the  skull  was  merely  separated  for  the  purpose  of  

superimposition but remained in the mortuary along with the  

dead  body.   The  first  post-mortem  report  dated  5/7/1995  

records  that  the  skull  was  preserved  for  superimposition.  

The skull along with the body remained in the mortuary of  

Lady Hardinge Medical  College after  the first  post-mortem  

and was not sent for superimposition.  On application dated  

9/7/1995 submitted  by PW-81 IO Niranjan Singh,  an order  

was passed for  the second post-mortem.   This  application  

shows  that  though  a  request  was  made  for  skull  

superimposition test, the dead body with its head was still  

preserved in  the  Lady  Hardinge  Medical  College  mortuary  

and process of superimposition had not started till then.  The  

second post-mortem report records that the body was kept in  

the mortuary of Lady Hardinge Medical College in a plastic  

bag and was taken out from the same.  It was a dead body  

with the skull  separated.  The evidence clearly shows that  

the  separated  skull  remained  along  with  the  body  in  the  

mortuary  of  the  Lady  Hardinge  Medical  College  from  

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5/7/1995  till  12/7/1995.   The  second  post-mortem  was  

conducted on 12/7/1995.  During the second post-mortem,  

the  dead  body  was  taken  to  Civil  Hospital  for  X-ray  and,  

thereafter,  it  was  brought  back  to  the  Lady  Hardinge  

Mortuary. The body along with the skull was later taken to  

AIIMS for conducting superimposition.  The defence has not  

been able to create any doubt in our minds that the skull was  

not that of the deceased.  Minor discrepancies, if any, in the  

evidence of witnesses are natural in a case of this type.  They  

will not have any adverse impact on the basic case of the  

prosecution  which  is  borne  out  by  cogent  and  reliable  

evidence.     

49. The second post-mortem report  states  that  the  body  

was kept in the mortuary of Lady Hardinge Medical College in  

a  plastic  bag  and  was  taken  out  from  the  same  in  the  

presence Board of Doctors.   On external  examination, the  

body  is  described  as  “a  burnt  dead  body,  with  skull   

separated  at  upper  cervical  level  (kept  in  a  separate   

cardboard box)”.  After describing the state of upper limbs,  

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lower  limbs,  left  lower  limb,  thoracic  cavity,  abdominal  

cavity,  kidneys,  back  of  trunk,  spinal  column,  head,  skull  

vault,  cranial  cavity,  it  is  stated that  at  that  stage it  was  

decided to take  X-rays of  the  body to  detect  any firearm  

projectiles.   The  Report  further  notes  that  due  to  non-

availability of the facility of X-ray for the dead bodies at Lady  

Hardinge Medical College, it was decided to shift the body to  

the Civil Hospital for X-ray.   The body was shifted to the Civil  

Hospital in a police vehicle and X-ray was taken in the Civil  

Hospital.  From the evidence of CW-7 Dr. (Ms.) P.S. Kiran, the  

Radiologist, Civil Hospital, New Delhi, it appears that she took  

the necessary X-rays of the dead body.  X-ray plates were  

shown to  the  Board  of  Doctors.   The  doctors  noted  their  

observations in their report after viewing the X-ray plates.  It  

is stated that the X-ray plates showed the presence of two  

metal pieces, (i) in back of right ear (mastoid region) and (ii)  

left  side of neck, near  the spine in soft tissues of cervical  

stumps.  The report then indicates that thereafter the neck  

was  dissected  and  a  deformed  bullet  was  located.  

Thereafter,  the  right  mastoid  area  was  also  dissected  to  

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locate the bullet.  The outer table of the skull above mastoid  

process was bulging outwards through which a metal piece  

was  seen.   On  further  dissection,  a  deformed  bullet  was  

found embedded in the bone with its nose portion pointing  

outwards  and  base  towards  medial  side.  Both  the  bullets  

were  removed.   The  final  opinion  of  the  Board  reads  as  

under:

“The  burns  are  post-mortem  in  nature  and  are   caused  by  fire.   The  firearm  injuries  are  ante- mortem in nature, caused by a firearm such as a   revolver or pistol.  In view of the extensive burns,   it is not possible to give exact location of the entry   wounds.  However on the basis of the track and   location of bullet,  the entry  wound on the  head  could be in the left temporal region and that in the   neck could be in the right upper part of the neck.   It is also not possible to comment upon the range  of fire, because of extensive burns on probable site  of  entry.   The  firearm  injury  on  the  head  is   sufficient  to  cause  death  in  ordinary  course  of   nature.  The death in this case was due to coma,   consequent upon firearm injury to the head.

It  is not possible to comment whether the distal   portions  of  the  limbs  were  chopped  off  or  were  separated due to burns, in view of the burnt distal   ends of the bones.”  

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50. Thus,  the  second  post-mortem  report  makes  it  clear  

that the burns were post-mortem and firearm injuries were  

ante-mortem and the death was due to coma, consequent  

upon firearm injury to head.  It was, however, not possible to  

say whether the distal portions of the limbs were chopped off  

or were separated due to burns in view of the burnt distal  

ends of  the  bones.   The report  also shows how the body  

travelled  from Lady Hardinge  Medical  College  to  the  Civil  

Hospital.   The  body  was  lying  in  the  mortuary  of  Lady  

Hardinge Medical College in a plastic bag and it was taken  

out from there in the presence of the Board of Doctors and  

the second post-mortem was conducted.  When need for X-

ray was realized, it was shifted in police vehicle to the Civil  

Hospital and the X-rays were taken at the Civil Hospital.  We  

have no hesitation in placing implicit reliance on the opinion  

expressed by the Board of Doctors after  the second post-

mortem.     

51. It is also necessary to deal with the submission of the  

counsel for the appellant that the two parcels containing  

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bullets  which  were  extracted  from  the  skull  of  the  

deceased, bearing the seal of Civil Hospital were never sent  

to  the  CFSL.   This  submission  deserves  to  be  rejected,  

because  PW-44  Dr.  Bharat  Singh  stated  that  after  the  

second  post-mortem,  he  handed  over  the  two  bullets  

recovered from the skull of the deceased to PW-57 SI Ombir  

Singh in a sealed cover with  the seal of Civil Hospital.  PW-

57 SI Ombir Singh has confirmed this fact. He stated that  

he took  possession of the same vide Memo [Ex-PW57/A]  

and  after  depositing  the  dead  body  at  Lady  Hardinge  

Medical College, he came to the police station and handed  

over the said parcels to PW-81 IO Niranjan Singh along with  

Memo  [Ex-PW-57/A].   It  was  urged  that  PW-67  HC  Raj  

Kumar,  who is in-charge of Malkhana has stated that  no  

parcel  was  deposited  with  him  on  12/7/1995,  13/7/1995  

and  14/7/1995.   This  argument  is  misleading.   In  his  

evidence PW-67 HC Raj Kumar has nowhere stated that he  

had not received any parcel on 12/7/1995, 13/7/1995 and  

14/7/1995.  According to the prosecution, Entry No.2146 of  

the  Malkhana  Register  shows  that  the  two  bullets  

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[Ex.Nos.36  and  37]  recovered  from  the  skull  of  the  

deceased were deposited in Malkhana. PW-81 IO Niranjan  

Singh has stated that on 17/7/1995 he had sent the parcels  

to  the  CFSL through SI   Rakesh  Ahuja.   PW-67   HC  Raj  

Kumar  has  confirmed  this  fact.  PW-70  Roop  Singh  has  

stated that  he received two parcels with the seal of Civil  

Hospital, Delhi from the Malkhana on 17/7/1995.  We have,  

therefore, no doubt that the two bullets recovered from the  

skull  of  the  deceased  were  sent  to  the  CFSL.  There  is,  

therefore, no substance in this argument.  

52. We  may  add  here  that  the  CFSL  Report  dated  

27/7/1995 states that the two bullets recovered from the  

skull  of the deceased were stained with blood of ‘B’ group.  

This establishes that the blood group of the deceased was  

‘B’.   It  is  pertinent  to  note  that  the  CFSL  Report  dated  

17/7/1995  states  that  the  various  articles  such  as  cloth  

piece, carpet piece, chatai, etc. recovered on 4/7/1995 from  

the  said  flat  were  stained  with  the  blood  of  ‘B’  group.  

Similarly,  it  states  that  the  polythene  sheet  which  was  

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recovered from the Bagia Restaurant was also stained with  

the blood of  ‘B’ group. It is pertinent to note that the CFSL  

Report dated 27/7/1995 also shows that in the dicky of Car  

No.DL-2CA-1872,  blood  was  detected.   Therefore,  the  

prosecution case that the deceased was murdered in the  

said flat by shooting her in the head by the appellant; that  

the body of the deceased was wrapped in the polythene  

sheet and carried by the appellant in his car bearing No.DL-

2CA-1872 to the Bagia Restaurant and that  it  was burnt  

there in the tandoor, is proved.    

53. Attempt has been made to create confusion and caste a  

doubt  on  the  entire  procedure  of  second  post-mortem by  

pointing out some discrepancies in the evidence of PW-44 Dr.  

Bharat Singh and PW-57 SI Ombir Singh as regards the time  

when the second post-mortem was conducted.  We repeat  

that the evidence of the doctors who were concerned with  

the second post-mortem and their report inspires confidence.  

It is reliable.  Hence, we reject this submission.  At the cost of  

repetition,  we  must  note  that  minor  discrepancies  in  the  

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evidence  of  witnesses  as  regards  dates  and  time  cannot  

have any adverse impact on the prosecution case because in  

this case, it’s substratum is firmly established by cogent and  

reliable evidence.  

54. Certain minor procedural irregularities have also been  

highlighted.   But  it  must  be  borne  in  mind  that  the  

investigation of this case was not restricted to New Delhi.  

The appellant travelled from one city to another.  He reached  

Madras.  From there  he  went  to  Bangalore  where  he  was  

arrested.  In a case of this type there is likelihood of some  

lapses on the  part  of the investigating agency.   It  is  well  

settled that such lapses, if they are minor, cannot be allowed  

to defeat the cause of justice.   We have not noticed any  

major  lacuna  in  the  investigation  from  which  adverse  

inference can be drawn against  the prosecution.  Attempt  

has  been  made  to  suggest  that  all  witnesses  including  

doctors, expert witnesses, and police officers have conspired  

against  the  appellant  and he has  been falsely  implicated.  

We see no reason to draw such conclusion.  It is impossible to  

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believe that everyone would want to implicate the appellant  

in a false murder case and in that attempt, go to the extent  

of  implanting  bullets  in  the  skull.   We  reject  all  such  

submissions.

55. The  evidence  on  record  clearly  establishes  that  the  

appellant has not been able to prove the defence of alibi.  

Adverse inference needs to be drawn from this fact.  False  

defence  of  alibi  indeed  forms  a  vital  link  in  the  chain  of  

circumstances.   It is also established by the prosecution that  

after  the murder,  the appellant  made himself  scarce.   He  

stayed  in  the  night  of  2/7/1995  and  3/7/1995  at  Gujarat  

Bhavan.   He was on the  run.   He travelled  from Delhi  to  

Jaipur, from Jaipur to Bombay, from Bombay to Madras and  

from  Madras  to  Bangalore  where  he  was  arrested  on  

10/7/1995.  These facts are successfully established by oral  

and documentary evidence.  Thus, the fact that the appellant  

was absconding is established beyond doubt.   

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56. In the ultimate analysis, therefore, we are of the opinion  

that  the  prosecution  has  successfully  proved  beyond  

reasonable doubt the following circumstances:  

(a) the appellant and the deceased were married and they  

were staying together in the said flat being Flat No.8/2A  

situated at Mandir Marg;  

(b) the relations between the appellant and the deceased  

were strained.  The appellant was suspecting the fidelity  

of the deceased.  The deceased wanted to make their  

marriage public which the appellant was not willing to  

do.  There was, thus, a strong motive to murder;

(c) the appellant and the deceased were last seen together  

in the evening of 2/7/1995 in the said flat;  

(d) on 2/7/1995, at  about 11.00 p.m. there was a fire in  

Bagia Restaurant and the appellant was seen at around  

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10.15 p.m. at  the Bagia Restaurant in his Maruti  Car  

bearing No.DL-2CA-1872;

(e) A2-Keshav,  who  was  an  employee  of  the  Bagia  

Restaurant owned by the appellant, was seen shuffling  

the wood in the tandoor with a wooden stick and he was  

apprehended  at  the  spot  in  the  night  intervening  

2/7/1995 and 3/7/1995;  

(f) charred corpse found in the tandoor was identified to be  

that of the deceased;   

(g) on  4/7/1995,  certain  blood  stained  articles  were  

recovered from the said flat  where the appellant and  

the deceased were staying together;

(h) on 4/7/1995, Car No.DL-2CA-1872 was found abandoned  

at Malcha Marg and the dicky of the car was found to  

contain dry blood.  

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(i) on 5/7/1995, five empty cartridges, one lead bullet, a  

ply  with bullet  hole and an air  pistol  were recovered  

from the said flat where the appellant and the deceased  

were staying together;

(j) from the evening of 2-3/7/1995, the appellant was on  

the  run  till he  was arrested by the Bangalore Police at  

Bangalore  on  10/07/1995.   On  11/07/1995,  the  

appellant  was  handed   over   to  the  Delhi  Police  

and, inter  alia,   a  .32  Arminius  revolver  owned  by  

him was recovered by the police from his room at Pai  

Vihar Hotel at Bangalore;  

(k) the second post-mortem report prepared after studying  

the X-ray plates of the skull of the deceased revealed  

that there were two bullets embedded in it;  

(l) the  CFSL  report  stated  that  the  said  two  bullets  

recovered from the skull of the deceased and the one  

lead bullet recovered from the said flat were fired from  

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the .32 Arminius revolver recovered by the police from  

Pai Vihar Hotel at Bangalore;  

(m) the  death  of  the  deceased  was  homicidal  and  was  

consequent  upon  firearm  injuries  to  the  head  of  the  

deceased caused by the appellant  alone with his  .32  

bore Arminius revolver;  

(n) as per the CFSL Report, blood found on various articles  

seized  from  the  said flat and from Bagia Restaurant  

and the  blood  found  on  the  bullets  recovered from  

the  skull  tallied.   It  was  of  the  blood  group  of  the  

deceased.  

(o) the defence of alibi pleaded by the appellant was found  

to be false; and

(p) the  appellant  and  A2-Keshav  conspired  to  cause  

disappearance  of  the  evidence of  murder  by burning  

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the  dead  body  of  the  deceased  in  tandoor  of  Bagia  

Restaurant.  

57. We  have  no  doubt  that  the  chain  of  the  above  

circumstances is complete and unerringly points to the guilt  

of the appellant.  The established circumstances are capable  

of  giving  rise  to  inference  which  is  inconsistent  with  any  

other  hypothesis  except  the  guilt  of  the  appellant.   The  

prosecution has, therefore, proved that the appellant alone  

has committed the murder of the deceased in the said flat on  

2/7/1995.   The  appellant  conspired  with  A2-Keshav  to  do  

away with the dead body of the deceased so as to cause  

disappearance  of  the  evidence  of  murder  and,  at  the  

instance of the appellant, A2-Keshav burnt the dead body in  

the  tandoor.   The  appellant  has,  therefore,  rightly  been  

convicted under Section 302 of the IPC and also for offence  

under Section 201 read with Section 120-B of the IPC.  A2-

Keshav  has  been  acquitted  of  offence  punishable  under  

Section 302 read with Section 120-B of the IPC.  However, he  

has  been  rightly  convicted  for  offence  punishable  under  

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Section 201 read with Section 120-B of the IPC.  As already  

stated,  he  has  not  appealed  against  the  said  order  of  

conviction.  In view of the above, we confirm the conviction of  

the appellant for offence punishable under Section 302 of the  

IPC and also for offence punishable under Section 201 read  

with  Section  120-B  of  the  IPC.   Having  confirmed  the  

conviction, we must now consider as to whether the death  

sentence awarded by the trial  court and confirmed by the  

High Court should be confirmed.   

SUBMISSIONS ON SENTENCE:

58.  On the question of sentence, we have heard Mr. Jaspal  

Singh at great length.  He first took us to the judgment of the  

Constitution Bench of this Court in  Bachan Singh, etc. v.  

State of Punjab, etc.  3  , where the Constitution Bench has  

noted  the  aggravating  circumstances  and  mitigating  

circumstances  and  observed  that  while  considering  the  

question of sentence relative weight must be given to them.  

Counsel  laid  stress  on the  observation of  the  Constitution  

3 (1980) 2 SCC 684

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Bench that apart from the mitigating circumstances noted by  

it  there  are  numerous  other  circumstances  justifying  the  

passing of the lighter sentence; that the mitigating factors in  

the  area  of  death  penalty  must  receive  a  liberal  and  

expansive construction by the court and that judges should  

never be bloodthirsty.  

59. Counsel  relied  on  the  judgments  of  this  Court  in  

Santosh Kumar Satishbhushan Bariyar, etc. v. State of   

Maharashtra, etc.  4  ;      Ramdeo Chauhan alias Raj Nath v.    

State  of  Assam  5  ;  Swamy  Shraddananda  (2)  alias    

Murali Manohar Mishra  v.  State of Karnataka  6  ; Aloke    

Nath Dutta & Ors. v.  State of West Bengal  7  ; Haresh    

Mohandas Rajput  v.  State of Maharashtra  8   and State    

of Punjab  v.  Manjit Singh and Ors.9 and submitted that  

public  perception  is  extraneous  to  conviction  as  also  

sentencing.   Age  of  the  accused  would  be  a  relevant  

consideration.   In  a  case  of  circumstantial  evidence  the  4 (2009) 6 SCC 498 5 (2001) 5 SCC 714 6 (2008) 13 SCC 767 7 (2007) 12 SCC 230 8 (2011) 12 SCC 56 9 (2009) 14 SCC 31

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courts should lean towards life imprisonment.  Every murder  

is brutal. Brutality alone would not be a ground for judging  

whether the case is one of the rarest of rare cases.  The court  

must consider whether the accused has a criminal history;  

whether he is a criminal or a professional killer and whether  

he will be an ardent criminal and a menace to the society.  

Counsel pointed out that despite the fact that the offences  

committed by the accused were heinous in Mohd. Chaman  

v.   State (NCT of Delhi)  10  ;  Dilip Premnarayan Tiwari &    

Anr., etc. v. State of Maharashtra  11  ;  Sebastian alias    

Chevithayan v.    State of Kerala  12  ;  Rajesh Kumar v.    

State through Government of NCT of Delhi  13   and  Amit    

v.    State of  Uttar  Pradesh  14  ,   the  court  converted  the  

death sentence into life sentence.  Counsel submitted that  

probability of reformation and rehabilitation of the accused  

has to be  considered and burden  is  on the  State  to  lead  

evidence to prove that there is no probability of reformation  

or  rehabilitation  of  the  accused.   Counsel  submitted  that  

10 (2001) 2 SCC 28 11 (2010) 1 SCC 775 12 (2010) 1 SCC 58 13 (2011) 13 SCC 706 14 (2012) 4 SCC 107

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Machhi Singh & Ors. v.   State of Punjab  15   advocates  

principle  of  proportionality  which  is  old  and  archaic  and,  

hence, we must fall back on Bachan Singh.  Counsel further  

submitted  that  there  is  a  long  lapse  of  time  since  the  

imposition of capital sentence and consideration of sentence  

by this Court.  The offence was committed on 2/7/1995.  The  

trial  court  convicted  and  sentenced  the  appellant  on  

3/11/2003.  The High Court confirmed the death sentence on  

19/2/2007.  The appeal has been pending in this Court for  

the  last  six  years.   He  submitted  that  the  appellant  has  

already undergone more than 18 years imprisonment in the  

jail.  This delay also provides a valid ground for commuting  

death sentence to life imprisonment. In this connection he  

relied  on  Piare  Dusadh   v.   King  Emperor  16  ;   Neti    

Sreeramulu   v.   State of Andhra Pradesh  17  ;  Ediga    

Anamma v. State of Andhra Pradesh  18  ;  Ramesh and    

Ors.  v.  State of Rajasthan  19  ;   Mohd.  Farooq Abdul    

Gafur & Anr. etc.  v.  State of Maharashtra, etc.  20   and    15 (1983) 3 SCC 470 16 AIR 1944 FC  1 17  (1974)  3 SCC 314 18 (1974) 4 SCC 443 19 (2011) 3 SCC 685 20 (2010) 14 SCC 641

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State  of  Uttar  Pradesh    v.   Munesh  21  .     Counsel  

submitted that the instant case does not fall in the category  

of rarest of rare cases.  The appellant has no criminal history.  

He is not a professional criminal.  Death was caused by bullet  

injuries.  It was not savage or brutal.  The State has not laid  

any evidence to establish that  the accused would commit  

criminal  acts  of  violence  as  would  constitute  continuing  

threat  to  the  society.   Therefore,  the  principle  that  life  

imprisonment is the rule and death sentence is an exception  

must be applied to this case.  Counsel submitted that body  

was burnt to destroy evidence.  That would not bring this  

case  in  the  category  of  rarest  of  rare  cases  (Santosh  

Kumar  Bariyar).  Counsel  submitted  that  evidence  on  

record establishes that the appellant loved the deceased.  He  

married her despite the fact that she had an affair with PW-

12 Matloob Karim.  She continued to have relations with PW-

12 Matloob Karim despite his objection after marriage.  The  

deceased  was  not  a  hapless  woman.   She  was  an  

independent  woman.   Since  crime  is  committed  in  such  

21 (2012) 9 SCC 742

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circumstances, death sentence should not be awarded to the  

appellant.  

60. On  the  other  hand,  relying  on  the  judgments  of  this  

Court in  Ediga Anamma  22  ; Mahesh s/o. Ram Narain, &    

Ors.   v.   State of Madhya Pradesh  23  ;  Machhi Singh;    

Molai  & Anr. v.  State of Madhya Pradesh  24  ;  State of    

Rajasthan  v.  Kheraj Ram  25   and D  hananjoy Chatterjee    

alias Dhana v.  State of West Bengal  26    Mr. Chandhiok,  

learned  Additional  Solicitor  General,  submitted  that  the  

appellant deserves no sympathy.  The crime committed by  

the  appellant  is  horrendous  and  warrants  death  penalty.  

Counsel  submitted that  the deceased was a  hapless lady;  

qua  her,  the  appellant  was  in  a  dominating  position;  the  

appellant always ill-treated her and refused to acknowledge  

her as his wife though she was residing with him; his plea  

was held to be false; he showed no remorse after the murder  

and  he  tried  to  destroy  the  evidence  in  a  most  barbaric  

22 (1974) 4 SCC 443 23 (1987) 3 SCC 80 24 (1999) 9 SCC 581 25 (2003) 8 SCC 224 26 (1994) 2 SCC 220

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manner.    Thus, there are no mitigating circumstances, in  

this case.  A sentence other than the death sentence will not  

operate as a deterrent and may send a wrong signal to the  

society.  Counsel submitted that the object of sentencing is  

to see that the crime does not go unpunished and the victim  

of crime as also the society has the satisfaction that justice  

has been done.  Drawing our attention to paragraphs 19, 22,  

87  and  88  of  the  impugned  judgment,  counsel  submitted  

that the High Court has given strong, convincing and legally  

sound  reasons  for  awarding  death  penalty,  which  do  not  

deserve to be disturbed.  On the aspect of delay, relying on  

the  judgment  of  this  Court  in  Smt.  Triveniben,  etc.  v.  

State of Gujarat, etc.27, counsel submitted that in this case  

the  Constitution  Bench  has  held  that  while  considering  

whether the death sentence should be awarded or not, the  

time utilized in judicial proceedings upto final verdict cannot  

be  taken  into  account.   This  is  not  a  case  of  delay  in  

disposing of mercy petition.  Counsel submitted that while  

awarding death sentence, perception of the Society is one of  

27 (1989) 1 SCC 678

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the considerations.  Counsel submitted that this case is one  

of the most widely published and infamous murder case.  It is  

a  case  where  this  Court  must,  by  confirming  the  death  

sentence,  send  a  strong  signal  to  the  society  which  will  

operate as an effective deterrent in future.         

ANALYSIS  OF  SUBMISSIONS  ON  SENTENCE  AND  

CONCLUSION:

61. Learned  counsel  have  drawn  our  attention  to  the  

decisions of the Constitution Bench of this Court in  Bachan  

Singh and  Machhi Singh.   We must begin with them. In  

Bachan Singh,  after  referring  to  Ediga Anamma, which  

had,  in  turn,  referred  to  Neti  Sreeramulu, constitutional  

validity of death penalty for murder provided in Section 302  

of the IPC and the sentencing procedure embodied in sub-

section (3) of Section 354 of the Code was considered. The  

Constitution Bench observed that the death penalty should  

be imposed in rarest of rare/gravest cases. It was observed  

that  while  considering  the  question  of  sentence  relative  

weight  must  be  given  to  the  aggravating  and  mitigating  

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circumstances.   The  Constitution  Bench  noted  the  

aggravating circumstances as under:  

“(a) if  the  murder  has  been  committed  after  previous planning and involves extreme brutality;  or

(b) if the murder involves exceptional depravity;  or

(c) if the murder is of a member of any of the  armed forces of the Union or of a member of any  police  force  or  of  any  public  servant  and  was  committed—

(i) while  such  member  or  public  servant  was on duty; or

(ii) in  consequence  of  anything  done  or  attempted to be done by such member or public  servant  in  the lawful  discharge of his  duty  as  such member or public servant whether at the  time of murder he was such member or public  servant, as the case may be, or had ceased to  be such member or public servant; or

(d) if the murder is of a person who had acted in  the lawful discharge of his duty under Section 43 of  the Code of Criminal Procedure, 1973, or who had  rendered  assistance  to  a  Magistrate  or  a  police  officer  demanding  his  aid  or  requiring  his  assistance under Section 37 and Section 129 of the  said Code.”

The mitigating circumstances were noted as under:  

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“(1) That  the  offence  was  committed  under  the  influence  of  extreme  mental  or  emotional  disturbance.

(2) The  age  of  the  accused.  If  the  accused  is  young or old, he shall not be sentenced to death.

(3) The probability  that  the  accused  would not  commit  criminal  acts  of  violence  as  would  constitute a continuing threat to society.

(4) The  probability  that  the  accused  can  be  reformed  and  rehabilitated.  The  State  shall  by  evidence prove that the accused does not satisfy  the conditions (3) and (4) above.

(5) That  in  the  facts  and  circumstances  of  the  case  the  accused  believed  that  he  was  morally  justified in committing the offence.

(6) That the accused acted under the duress or  domination of another person.

(7) That  the  condition  of  the  accused  showed  that he was mentally defective and that the said  defect  impaired  his  capacity  to  appreciate  the  criminality of his conduct.”

62. The Constitution Bench noted that there are numerous  

other  circumstances  justifying  the  passing  of  the  lighter  

sentence  as  there  are  countervailing  circumstances  of  

aggravation.  It was further observed that the court cannot  

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obviously feed  into  a  judicial  computer  all  such  situations  

since  they  are  astrological  imponderables  in  an  imperfect  

and  undulating  society.   Nonetheless,  it  cannot  be  over-

emphasized that the scope and concept of mitigating factors  

in  the  area  of  death  penalty  must  receive  a  liberal  and  

expansive  construction  by  the  courts  in  accord  with  the  

sentencing policy. It was further observed that Judges should  

never  be  bloodthirsty.  Relevant  observations  of  the  

Constitution Bench read as under:  

“Judges should never be bloodthirsty. Hanging of  murderers  has  never  been  too  good  for  them.  Facts and figures, albeit incomplete, furnished by  the Union of India,  show that  in the past, courts  have inflicted the extreme penalty with extreme  infrequency — a fact which attests to the caution  and compassion which they have always brought  to  bear  on  the  exercise  of  their  sentencing  discretion  in  so  grave  a  matter.  It  is,  therefore,  imperative to voice the concern that courts, aided  by the broad illustrative guidelines indicated by us,  will discharge the onerous function with evermore  scrupulous  care  and  humane  concern,  directed  along the highroad of legislative policy outlined in  Section 354(3)  viz.  that  for  persons convicted of  murder,  life  imprisonment  is  the  rule  and death  sentence an exception. A real and abiding concern  for the dignity of human life postulates resistance  to taking a life through law’s instrumentality. That  ought not  to be done save in  the rarest  of rare  

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cases  when  the  alternative  option  is  unquestionably foreclosed.”

63. In  Machhi Singh, a three Judge Bench of this  Court  

considered  whether  death  sentence   awarded  to  the  

appellants should be confirmed.  In that case as a result of a  

family  feud  the  appellants  with  a  motive  of  reprisal,  

committed  17  murders  in  five  incidents  occurring  in  the  

same  night  in  quick  succession  in  the  five  neighbouring  

villages.   Some of  the  accused  were  sentenced  to  death.  

This Court referred to the judgment of the Constitution Bench  

in Bachan Singh and culled out the following propositions as  

emerging from Bachan Singh’s case:

“(i)  The  extreme  penalty  of  death  need  not  be  inflicted  except  in  gravest  cases  of  extreme  culpability.

(ii)  Before  opting  for  the  death  penalty  the  circumstances of the ‘offender’ also require to be  taken  into  consideration  along  with  the  circumstances of the ‘crime’.

(iii)  Life  imprisonment  is  the  rule  and  death  sentence  is  an  exception.  In  other  words  death  sentence  must  be  imposed  only  when  life  imprisonment  appears  to  be  an  altogether  inadequate  punishment  having  regard  to  the  

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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.”

It was further observed that to apply these guidelines  

court must ask and answer the  following questions:  

“(a)  Is  there  something  uncommon  about  the  crime which renders sentence of imprisonment for  life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that  there  is  no  alternative  but  to  impose  death  sentence  even  after  according  maximum  weightage to the mitigating circumstances which  speak in favour of the offender?”

In  the  facts  of  the  case,  death  sentence  awarded  to  

some of the accused was confirmed.  

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64. We shall  now go to some of the other  judgments  on  

which  reliance  is  placed  by  the  appellant  and  the  

respondent.  It is not necessary to refer to all the judgments  

because they reiterate the same principles.  

JUDGMENTS RELIED ON BY THE APPELLANT:

65. In Mohd. Chaman, the appellant had raped a 1½ year-

old  girl.  In  the  process  of  committing  rape,  injuries  were  

inflicted on liver which resulted in death of the child.  The  

trial  court  sentenced  him  to  death.   The  High  Court  

confirmed the death penalty.  This Court observed that the  

crime was undoubtedly serious and heinous and the conduct  

of the appellant was reprehensible.  It revealed a dirty and  

perverted mind of a human being who has no control over his  

carnal  desires.   However,  after  treating  the  case  on  the  

touchstone of the guidelines laid down in Bachan Singh and  

Machhi Singh, this Court was of the view that the appellant  

was not such a dangerous person that to spare his life will  

endanger the community.  It was further observed that the  

circumstances of the crime were not such that there was no  

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alternative  but  to  impose  death  sentence  even  after  

according  maximum  weightage  to  the  mitigating  

circumstances in favour of the offender.  It was observed that  

the  case  is  one in  which  a  humanist  approach  should  be  

taken while awarding punishment.  The capital punishment  

imposed  against  the  appellant  was  set  aside  and  the  

appellant was sentenced to life imprisonment.  

66. In  Aloke Nath Dutta,  the  appellant,  who had many  

vices, was in need of money.  Out of greed for money, he  

killed his brother.  The trial court sentenced the appellant to  

death.   The High Court confirmed the death sentence.  This  

Court held that though the offence was gruesome, the case  

was not one of the rarest of rare cases.  This Court observed  

that though the deceased was killed while he was in deep  

slumber, the method applied cannot be said to be cruel.  This  

Court noted that both the brothers i.e. the deceased and the  

appellant were living in the same premises for a long time;  

they were looking after their parents and the other brothers  

had filed a suit against them and their mother apprehending  

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that their mother would bequeath the property in favour of  

the appellant and the deceased.  This Court held that the  

prosecution had failed to prove the case of conspiracy and, in  

the circumstances, the case did not fall  in the category of  

rarest  of  rare  cases.   The  appellant’s  death  penalty  was  

commuted to life imprisonment.   

67. In  Manjit Singh, the case of the prosecution was that  

Bhinder  Kaur,  the  wife  of  the  deceased-Sewa  Singh  was  

having illicit relationship with the accused, who were working  

as Sewadars in the Gurdwara where the deceased used to  

recite  Kirtan.   Having  come to  know this,  deceased-Sewa  

Singh and his son used to beat Bhinder Kaur.  Enraged by  

this, the accused came to the house of deceased-Sewa Singh  

and  murdered  him  by  assaulting  him  with  Kirpan  and  

Khanda.   The son of deceased-Sewa Singh and two others  

were killed in  the  Gurdwara  by them.   The accused were  

sentenced  to  death  by  the  trial  court.   The  High  Court,  

however,  commuted  the  death  sentence  to  life  

imprisonment.  The State of Punjab appealed to this Court.  It  

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was argued that the High Court was not right in converting  

the  death  sentence  into  life  imprisonment.   This  Court  

observed that whether the case is one of the rarest of rare  

cases is a question which has to be determined on the facts  

of each case.   Only where culpability of the accused has  

assumed depravity or where the accused is found to be an  

ardent criminal and menace to the society; where the crime  

is committed in an organized manner and is gruesome, cold-

blooded,  heinous  and  atrocious;  where  innocent  and  

unarmed persons are attacked and murdered without any  

provocation, death sentence should be awarded.  In the facts  

of the case before it, this Court held that being driven more  

by  infatuation  and  also  being  devoid  of  their  senses  on  

coming to know about the ill-treatment meted out to Bhinder  

Kaur, the accused committed the murders.  It was observed  

that though the act of the accused was gruesome it was a  

result of human mind going astray.  In the circumstances,  

the  High  Court’s  order  commuting  death  sentence  to  life  

imprisonment was confirmed.  

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68. In  Santosh Kumar Bariyar, all the accused including  

the appellant were unemployed young men in search of job.  

In  execution  of  a  plan  proposed  by  the  appellant  and  

accepted by them, they kidnapped a friend of theirs with the  

motive  of  procuring  ransom  from  his  family  but  later  

murdered him and after cutting his body into pieces disposed  

of the same at different places.  One of the accused turned  

approver. The prosecution case was based exclusively on his  

evidence.   The trial  court  awarded death  sentence to  the  

appellant.  The High Court confirmed the death sentence.  In  

appeal,  this  Court  held  that  doctrine  of  proportionality  

provides for justifiable reasoning for awarding death penalty.  

However, while imposing any sentence on the accused the  

court must also keep in mind the doctrine of rehabilitation.  

The  court  cannot,  therefore,  determine  punishment  on  

grounds of proportionality alone.  This Court observed that  

there was nothing  to show that the appellant could not be  

reformed and rehabilitated.  It was further observed that the  

manner  and  method  of  disposal  of  the  dead  body of  the  

deceased made the case a most foul and despicable case of  

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murder.  However, mere mode of disposal of the dead body  

may not by itself be made the ground for inclusion of a case  

in the rarest of care category for the purpose of imposition of  

death sentence.  It  may have to be considered along with  

several other factors. This Court was of the view that the fact  

that  the  prosecution  case  rested  on  the  evidence  of  the  

approver,  will  have  to  be  kept  in  mind.   It  was  further  

observed that where the death sentence is to be imposed on  

the  basis  of  circumstantial  evidence,  the  circumstantial  

evidence must be such which leads to an exceptional case.  

It was further observed that the discretion given to the court  

in such cases assumes onerous importance and its exercise  

becomes  extremely  difficult  because  of  the  irrevocable  

character of death penalty.  Where two views ordinarily could  

be  taken,  imposition  of  death  sentence  would  not  be  

appropriate,  but  where  there  is  no  other  option  and  it  is  

shown that reformation is not possible, death sentence may  

be imposed.  In the circumstances, the death sentence was  

converted to life imprisonment.  

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69. In  Sebastian,  the  appellant  had  trespassed  into  the  

complainant’s  house  and  kidnapped  his  two  year-old  

daughter.  He  then  raped  and  killed  her.   The  trial  court  

sentenced him to death.  The death sentence was confirmed  

by the High Court.  This Court considered the fact that the  

appellant was a young man of 24 years of age at the time of  

incident and that the case rested on circumstantial evidence,  

and substituted the death sentence by life sentence.  It was,  

however, directed that the appellant shall  not be released  

from prison for the rest of his life.  

70. In  Rajesh  Kumar,  the  appellant  was  convicted  for  

killing  two  children  aged  four-and-a-half  years,  and  eight  

months in a brutal and diabolical manner.  He had held the  

legs of the infant and hit the child on the floor, and had slit  

the throat of the elder son with a piece of glass which he had  

obtained by breaking the dressing table glass.  The motive  

for  crime was said  to  be  the  refusal  by the  father  of the  

children to lend money to him.  The trial court imposed death  

sentence on the appellant.   The High Court confirmed the  

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death sentence.  On appeal, this Court held that the State  

had failed to show that the appellant was a continuing threat  

to  the  society  or  that  he  was  beyond  reform  and  

rehabilitation.  It was observed that the High Court has taken  

a  very  narrow  and  a  myopic  view  of  the  mitigating  

circumstances about the appellant.  It was observed that the  

brutality  of  murder  alone cannot  justify  infliction of  death  

penalty.  The death sentence was, in the circumstances, set  

aside and the appellant was sentenced to life imprisonment.  

71. In Ramesh, Ramlal, who was doing business of money  

lending and his wife Shanti Devi were found lying dead in a  

pool of blood in their house-cum-shop. Pursuant to the FIR  

registered  under  Sections  302  and  457  of  the  IPC,  the  

appellant was arrested along with others.  The case of the  

prosecution was that the appellant and other accused had  

decided to commit robbery at the house-cum-shop of Ramlal.  

They  trespassed  into  it;  looted  the  house-cum-shop  and  

decamped with the ornaments of silver, gold and cash. The  

murder weapon was recovered from the appellant.  The trial  

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court convicted the appellant, inter alia, under Sections 120-

B and 302 of the IPC.  He was sentenced to death.  The High  

Court confirmed the death sentence.  On appeal, this Court  

observed  that  though  the  case  was  of  double  murder,  it  

cannot be said to be a crime of enormous proportion.  The  

appellant could not be said to be a person in a dominating  

position as it  was not a  murder  of an innocent  child  or  a  

helpless woman or old or infirm person.  Though it was the  

case  of  the  prosecution  that  the  appellant  was  having  

criminal  record, this Court  noticed that  it  did not find any  

previous  conviction  having  been  proved  against  him.  The  

original intention was theft and on account of the deceased  

having been awakened, the accused took the extreme step  

of eliminating both of them for fear of being detected. This  

Court  further  observed  that  it  cannot  be  said  that  the  

appellant  alone  had  committed  the  murder  because  he  

discovered the murder weapon.  It was not clear as to who  

was the actual author of the injuries.  This Court noted that  

the appellant was languishing in death cell for more than six  

years.   That  would  also  be  one  of  the  mitigating  

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circumstances.   In  the  circumstances,  death  sentence  

awarded  to  the  appellant  was  converted  into  life  

imprisonment.  

72. In Amit, the complainant lodged FIR alleging that while  

his mother and wife were present in the house, the appellant  

came  there,  took  away  his  3  year-old  daughter  on  the  

pretext that he would give her biscuits.  However, neither the  

appellant  nor  the  complainant’s  daughter  returned.  

Investigation disclosed that the appellant had kidnapped the  

girl.  She was subjected to unnatural offence and rape.  She  

was hit on the head and was strangulated.  The trial court  

convicted the appellant, inter alia, under Section 302 of the  

IPC and sentenced him to death.  The High Court confirmed  

the  death  sentence.   On  appeal,  this  Court  set  aside  the  

death sentence.   This Court observed that the appellant was  

a young person aged about 28 years.  There was no evidence  

to show that he had committed such offences earlier.  There  

was nothing on record to show that he was likely to repeat  

similar crimes in future.  This Court expressed that given a  

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chance,  the appellant  may reform over a  period of years.  

This Court sentenced the appellant to life imprisonment and  

observed that life imprisonment shall extend to the full life of  

the appellant, but subject to any remission or commutation  

at the instance  of  the  Government for good and substantial  

reasons.   

73. We may also refer to  Mohinder Singh  v.  State of  

Punjab28, where the appellant, who was serving 12 years’  

rigorous imprisonment  for  having  raped  his  own daughter  

was released on parole.  While on parole, he murdered his  

wife and the daughter, whom he had raped earlier, by giving  

repeated  axe-blows  on  their  heads.   His  other  daughter  

saved herself by hiding in a room and bolting the same from  

inside.  The trial court convicted him under Section 302 of  

the  IPC  and  sentenced  him  to  death.   The  High  Court  

confirmed the death sentence.  This Court observed that the  

appellant  was  a  poor  man  and  was  unable  to  earn  his  

livelihood  since  he  was  driven  out  of  his  house  by  the  

28 (2013) 3 SCC 294

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deceased-wife.  It was his grievance that the deceased-wife  

was adamant that he should live outside and that was the  

reason why the relations were strained. The appellant was  

feeling  frustrated  because  of  the  attitude  of  his  wife  and  

children.  This Court also took into consideration the fact that  

the appellant did not harm his other daughter who was there  

even though he had a good chance to harm her.  This Court  

observed that after balancing the aggravating and mitigating  

circumstances emerging from the evidence on record, it was  

not persuaded to accept that the case can appropriately be  

called the rarest of rare case warranting death penalty.  This  

Court  also expressed that  it  was difficult  to  hold  that  the  

appellant was such a dangerous person that he will endanger  

the  community  if  his  life  is  spared.   The  possibility  of  

reformation of the appellant could not be ruled out.  In the  

circumstances, this Court converted the death sentence into  

life imprisonment.  However, after referring to its judgment in  

Sangeet   &  Anr.   v.   State  of  Haryana,29 this  Court  

observed  that  there  is  a  misconception  that  a  prisoner  

29 (2013) 2 SCC 452

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serving life sentence has an indefeasible right to release on  

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

convict undergoing life imprisonment is expected to remain  

in custody till  the end of his life, subject to any remission  

granted by the appropriate Government under Section 432 of  

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

mentioned  in  the  said  provision  and  further  substantive  

checks in Section 433-A of the Cr.P.C.  This Court, therefore,  

sentenced the appellant to undergo rigorous imprisonment  

for life, meaning thereby imprisonment till the end of his life  

but  subject  to  any  remission  granted  by  the  appropriate  

Government satisfying the conditions prescribed in Section  

432  of  the  Cr.P.C.  and  further  substantive  checks  under  

Section 433-A of the Cr.P.C. by passing appropriate speaking  

order.  

JUDGMENTS RELIED ON BY THE RESPONDENT-STATE.  

74. In  Mahesh,  five  persons  were  murdered  because  of  

marriage of a lady of a higher caste with a Harijan boy.  They  

were axed to death in an extremely brutal manner.  After the  

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murders, the accused tried to break open the door of the  

room where two of the prosecution witnesses were hiding to  

save themselves and they left the place only when the door  

could not be opened.  The accused were convicted under  

Section 302 of the IPC and sentenced to death by the trial  

court.    While  confirming  the  death  sentence,  this  Court  

observed as under:

“It  will  be  a  mockery  of  justice  to  permit  these  appellants to escape the extreme penalty of law  when  faced  with  such  evidence  and  such  cruel  acts.  To  give  the  lesser  punishment  for  the  appellants would be to render the justicing system  of this country suspect. The common man will lose  faith in courts. In such cases, he understands and  appreciates the language of deterrence more than  the  reformative  jargon.  But  this  does  not  mean  that the Court ignore the need for a reformative  approach  in  the  sentencing  process.  But  here,  there  is  no alternative  but  to  confirm the death  sentence.”  

75. In  Dhananjoy  Chatterjee,  the  appellant  had  raped  

and murdered a young 18 year-old girl in her flat in a society  

where he was working as a security guard.  The trial court  

found him guilty, inter alia, under Sections 302 and 376 of  

the IPC.  The High Court confirmed the sentence of death.  

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This Court also confirmed the death sentence by observing  

that the case falls in the category of rarest of rare cases.  

This Court observed as under:

“The faith of the society by such a barbaric   act of the guard, gets totally shaken and its   cry for justice becomes loud and clear.  The   offence was not only inhuman and barbaric   but  it  was  a  totally  ruthless  crime  of  rape  followed  by  cold  blooded  murder  and  an  affront to the human dignity of the society.   The savage nature of the crime has shocked  our  judicial  conscience.  There  are  no  extenuating  or  mitigating  circumstances  whatsoever in the case. We agree that a real   and abiding concern for the dignity of human  life  is  required  to  be  kept  in  mind  by  the   courts while considering the confirmation of  the  sentence  of  death  but  a  cold  blooded  preplanned  brutal  murder,  without  any  provocation,  after  committing  rape  on  an   innocent  and  defenceless  young  girl  of  18  years, by the security guard certainly makes   this case a “rarest of the rare” cases which   calls for no punishment other than the capital   punishment and we accordingly confirm the  sentence  of  death  imposed  upon  the   appellant for the offence under Section 302  IPC.”

76. In Molai, a 16 year-old girl was preparing for her class  

10th examination  at  her  house.   Both  the  accused  took  

advantage of her being alone in the house and committed  

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rape on her.  Thereafter, they strangulated her by using her  

undergarment and took her to the septic tank along with the  

cycle and caused injuries with a sharp-edged weapon.  Then,  

they threw the dead body into a septic tank.  The trial court  

awarded  death  sentence  to  the  accused  which  was  

confirmed by the High Court.  This Court confirmed the death  

sentence  observing  that  there  was  no  mitigating  

circumstance, which could justify the reduction of sentence  

of death penalty to life imprisonment.  

77. In  Kheraj Ram, suspecting infidelity on the part of his  

wife, the accused-Kheraj Ram killed her, his two children and  

brother-in-law.  The trial court convicted him under Section  

302 of the IPC and sentenced him to death.  The High Court  

noted that the case rested on circumstantial evidence.  The  

circumstances were not proved and, therefore, the accused  

was entitled to acquittal.  On appeal, this Court held that the  

prosecution had established its case; that the murder was  

committed in a cruel and diabolic manner; the accused did  

not act on any spur-of-the-moment provocation; the murder  

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was  deliberately  planned  and  meticulously  executed  and  

after the incident, the accused smoke chilam with calmness,  

which indicated that he had no remorse and he was satisfied  

with what he had done.  This Court observed that the victims  

were two innocent children and a helpless woman. They were  

done  to  death  in  an  extremely  gruesome  and  grotesque  

manner.  In the circumstances, this Court set aside the order  

of acquittal and confirmed the death sentence awarded by  

the trial court.   

78. In light of the above judgments, we would now ascertain  

what factors which we need to take into consideration while  

deciding the question of sentence.  Undoubtedly, we must  

locate the aggravating and mitigating circumstances in this  

case and strike the right balance.  We must also consider  

whether  there  is  anything  uncommon  in  this  case  which  

renders the sentence to life imprisonment inadequate and  

calls for death sentence. It is also necessary to see whether  

the  circumstances  of  the  crime are  such  that  there  is  no  

alternative  but  to  impose  death  sentence  even  after  

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according  maximum  weightage  to  the  mitigating  

circumstances which speak in favour of the offender.  

79. We  notice  from  the  above  judgments  that  mere  

brutality of the murder or the number of persons killed or the  

manner  in  which  the  body is  disposed  of  has  not  always  

persuaded this Court to impose death penalty.  Similarly, at  

times,  in  the  peculiar  factual  matrix,  this  Court  has  not  

thought it fit to award death penalty in cases, which rested  

on circumstantial evidence or solely on approver’s evidence.  

Where  murder,  though  brutal,  is  committed  driven  by  

extreme  emotional  disturbance  and  it  does  not  have  

enormous  proportion,  the  option  of  life  imprisonment  has  

been exercised in certain cases.  Extreme poverty and social  

status  has  also  been  taken  into  account  amongst  other  

circumstances  for  not  awarding  death  sentence.   In  few  

cases,  time  spent  by the  accused  in  death  cell  has  been  

taken into consideration along with other circumstances, to  

commute death sentence into life imprisonment.  Where the  

accused had no criminal antecedents; where the State had  

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not led any evidence to show that  the accused is beyond  

reformation  and  rehabilitation  or  that  he  would  revert  to  

similar crimes in future, this Court has leaned in favour of life  

imprisonment.  In such cases, doctrine of proportionality and  

the theory of deterrence have taken a back seat.  The theory  

of reformation and rehabilitation has prevailed over the idea  

of retribution.   

80. On  the  other  hand,  rape  followed  by  a  cold-blooded  

murder of a minor girl and further followed by disrespect to  

the body of the victim has been often held to be an offence  

attracting  death  penalty.   At  times,  cases  exhibiting  

premeditation  and  meticulous  execution  of  the  plan  to  

murder  by  levelling  a  calculated  attack  on  the  victim  to  

annihilate him, have been held to be fit cases for imposing  

death  penalty.   Where  innocent  minor  children,  unarmed  

persons,  hapless  women and old and infirm persons have  

been  killed  in  a  brutal  manner  by  persons  in  dominating  

position,  and  where  after  ghastly  murder  displaying  

depraved mentality,  the accused have shown no remorse,  

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death penalty has been imposed.  Where it  is  established  

that the accused is a confirmed criminal and has committed  

murder  in  a  diabolic  manner  and  where  it  is  felt  that  

reformation and rehabilitation of such a person is impossible  

and if let  free, he would be a menace to the society, this  

Court has not hesitated to confirm death sentence.  Many a  

time, in cases of brutal murder, exhibiting depravity and sick  

mind,  this  Court  has  acknowledged  the  need  to  send  a  

deterrent message to those who may embark on such crimes  

in future.  In some cases involving brutal murders, society’s  

cry for justice has been taken note of by this court, amongst  

other relevant factors.  But, one thing is certain that while  

deciding whether death penalty should be awarded or not,  

this Court has in each case realizing the irreversible nature of  

the  sentence,  pondered  over  the  issue  many  times  over.  

This Court has always kept in mind the caution sounded by  

the Constitution Bench in Bachan Singh that judges should  

never  be  bloodthirsty  but  has  wherever  necessary  in  the  

interest  of  society  located  the  rarest  of  rare  case  and  

exercised the tougher option of death penalty.  

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81. In the nature of things, there can be no hard and fast  

rules which the court can follow while considering whether an  

accused should be awarded death sentence or not. The core  

of a criminal case is its facts and, the facts differ from case to  

case.   Therefore,  the  various  factors  like  the  age  of  the  

criminal, his social status, his background, whether he is a  

confirmed criminal or not, whether he had any antecedents,  

whether  there  is  any  possibility  of  his  reformation  and  

rehabilitation or whether it is a case where the reformation is  

impossible and the accused is likely to revert to such crimes  

in  future  and  become a  threat  to  the  society  are  factors  

which the criminal court will have to examine independently  

in each case.  Decision whether to impose death penalty or  

not must be taken in light of guiding principles laid down in  

several  authoritative  pronouncements  of  this  Court  in  the  

facts and attendant circumstances of each case.   

82. We must  also  bear  in  mind  that  though,  the  judicial  

proceedings do take  a  long time in  attaining finality,  that  

would not be a ground for commuting the death sentence to  

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life imprisonment.  Law in this behalf has been well settled in  

Triveniben.   The  time  taken  by  the  courts  till  the  final  

verdict is pronounced cannot come to the aid of the accused  

in  canvassing  commutation  of  death  sentence  to  life  

imprisonment.  In Triveniben,  the Constitution Bench made  

it clear that though ordinarily, it is expected that even in this  

Court, the matters where the capital punishment is involved,  

will be given top priority and shall be heard and disposed of  

as expeditiously as possible but it could not be doubted that  

so long as the matter is pending in any court, before final  

adjudication, even the person who has been condemned or  

who has been sentenced to death has a ray of  hope.  It,  

therefore, could not be contended that he suffers that mental  

torture which a person suffers when he knows that he is to  

be  hanged  but  waits  for  the  doomsday.   Therefore,  the  

appellant cannot draw any support from the fact that from  

the day of the crime till  the final  verdict,  a long time has  

elapsed.  It must be remembered that fair trial is the right of  

an  accused.   Fair  trial  involves  following  the  correct  

procedure  and  giving  opportunity  to  the  accused  to  

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probabalize his defence.   In a matter such as this, hurried  

decision may not be in the interest of the appellant.  

83. We must now examine the present case in light of our  

observations  in  the  preceding  paragraphs.   The  appellant  

was the State President of the Youth Congress in Delhi.  The  

deceased was a qualified pilot and she was also the State  

General Secretary of Youth Congress (Girls Wing), Delhi.  She  

was an independent lady, who was capable of taking her own  

decisions.  From the evidence on record, it cannot be said  

that she was not in touch with people residing outside the  

four walls of her house.  Evidence discloses that even on the  

date of incident at around 4.00 p.m. she had contacted PW-

12  Matloob Karim.   She  was  not  a  poor  illiterate  hapless  

woman.  Considering the social  status of the deceased,  it  

would  be  difficult  to  come  to  the  conclusion  that  the  

appellant was in a dominant position qua her.  The appellant  

was deeply in love with the deceased and knowing full well  

that the deceased was very close to PW-12 Matloob Karim,  

he married her hoping that the deceased would settle down  

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with  him and lead  a  happy life.   The evidence  on record  

establishes that they were living together and were married  

but unfortunately, it appears that the deceased was still in  

touch  with  PW-12  Matloob  Karim.  It  appears  that  the  

appellant  was  extremely  possessive  of  the  deceased.  The  

evidence on record shows that the appellant suspected her  

fidelity and the murder was the result of this possessiveness.  

We have noted that when the appellant was taken to Lady  

Hardinge Mortuary and when the dead body was shown to  

him, he started weeping.  It would be difficult, therefore, to  

say that he was remorseless.  The fact that he absconded is  

undoubtedly  a  circumstance  which  will  have  to  be  taken  

against him, but the same, in our considered view, would be  

more relevant to the issue of culpability of the accused which  

we  have  already  decided  against  him  rather  than  the  

question of what would be the appropriate sentence to be  

awarded which is presently under consideration. The medical  

evidence  does  not  establish  that  the  dead  body  of  the  

deceased was cut.  The second post-mortem report states  

that no opinion could be given as to whether the dead body  

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was cut as dislocation could be due to burning of the dead  

body.  There is no recovery of any weapon like chopper which  

could suggest that the appellant had cut the dead body.  It is  

pertinent  to  note  that  no  member  of  the  family  of  the  

deceased came forward to depose against the appellant.  In  

fact, in his evidence, PW-81 IO Niranjan Singh stated that the  

brother and sister-in-law of the deceased stated that  they  

were under the obligation of the appellant and they would  

not like to depose against him.  Murder was the outcome of  

strained personal relationship.  It was not an offence against  

the Society.  The appellant has no criminal antecedents.  He  

is not a confirmed criminal  and no evidence is led by the  

State to indicate that he is likely to revert to such crimes in  

future.  It is, therefore, not possible in the facts of the case to  

say that there is no chance of the appellant being reformed  

and rehabilitated.  We do not think that that option is closed.  

Though it may not be strictly relevant, we may mention that  

the appellant is the only son of his parents, who are old and  

infirm.  As of today, the appellant has spent more than 10  

years in death cell.  Undoubtedly, the offence is brutal but  

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the brutality alone would not justify death sentence in this  

case.  The above mitigating circumstances persuade us to  

commute  the  death  sentence  to  life  imprisonment.   In  

several  judgments,  some  of  which,  we  have  referred  to  

hereinabove, this Court has made it clear that life sentence is  

for  the  whole  of  remaining  life  subject  to  the  remission  

granted by the appropriate Government under Section 432 of  

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

mentioned  in  the  said  provision  and  further  substantive  

checks in Section 433-A of the Cr.P.C.  We are inclined to  

issue the same direction.   

84. We  have  already  confirmed  the  conviction  of  the  

appellant for offence punishable under Section 302 of the IPC  

and for  offence punishable  under  Section 120-B read with  

Section 201 of the IPC.  In view of the above discussion, we  

commute the death sentence awarded to appellant – Sushil  

Sharma to life sentence.  We make it clear that life sentence  

is for the whole of remaining life of the appellant subject to  

the remission granted by the appropriate Government under  

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Section 432 of the Cr.P.C., which, in turn, is subject to the  

procedural  checks  mentioned  in  the  said  provision  and  

further substantive checks in Section 433-A of the Cr.P.C.

85. Appeal is disposed of in the aforestated terms.

…………………………………………..CJI (P. SATHASIVAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

……………………………………………..J. (RANJAN GOGOI)

NEW DELHI, OCTOBER 8, 2013.

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