A.K. Sikri, J.
1. Lohri is a famous festival of Hindus. It is celebrated every year on 13th January. Like many other Hindu festivals, it also has religious fervour and traces to Hindu mythology. On 13th January, 1996, people in Delhi celebrated Lohri in the traditional way by burning heaps of woods and putting flames. However, before these flames could even die down, it became pyre (symbolically) of innocent family of Sharmas who were living in C-1/1396, Vasant Kunj, New Delhi. Same night, all four members of this family along with their servant were brutally murdered. The family consisted of Sh. S.P. Sharma, his wife Mrs. Shobha, two young children in their youth, namely, daughter Ms. Charu, aged 20 years and son Punit, aged about 15 years. The servant Dinesh was an adolescent boy aged about 9-10 years. In fact the family was having two servants. The name of other servant is Tika Ram. When the gruesome killings were discovered after breaking open the flat of Sharmas, Tika Ram was nowhere to be seen. The needle of suspicion, therefore, naturally, pointed towards Tika Ram and the police started investigating the crime with this focus in mind. Ultimately, Tika Ram was apprehended; put to trial of having committed five murders and found guilty by the learned Additional Sessions Judge, New Delhi in Sessions Case No. 330/96. Terming it as the rarest of rare cases, the learned Additional Sessions Judge held the view that nothing less than death sentence would meet the ends of justice. Thus while convicting Tika Ram vide impugned judgment dated 21st November, 2002, of the charge under Sections 302/394/411 of the Indian Penal Code (IPC), sentence dated 15th January, 2003 is pronounced by the Trial Court imposing death penalty under Section 302, IPC and directing that he be hanged by neck till he is dead.
2. Section 366 of the Code of Criminal Procedure, 1973 (Cr.P.C.) provides that where the Court of Sessions passes a sentence of death, the proceedings are to be submitted to the High Court and the sentence is not to be executed, unless it is confirmed by the High Court. Having regard to this provision, present reference is sent to this Court and in the meantime the accused is committed to jail custody through warrant where he is cooling his heals waiting, anxiously and desperately, for the outcome of the present reference.
3. The accused-Tika Ram is also not satisfied about his conviction by the learned Additional Sessions Judge. Therefore, he has filed appeal being Crl. A. No. 146/2003 against the finding recorded in judgment dated 21st November, 2002 holding him guilty of murder of five persons as well as theft of property of the deceased persons and convicting him under Section 302, IPC reading Section 411, IPC. The challenge takes within its sweep, in the appeal filed by him, the order dated 15th January, 2003 as well, on the sentence passed by the learned Additional Sessions Judge inflicting death penalty. This is how we are called upon to decide the legality, validity and propriety of the aforesaid conviction and sentence in the reference as well as in the appeal. Obviously, as the reference and the appeal are inter-connected, they were heard together.
4. Mr. Rajesh Mahajan, Advocate argued for the convict-Tika Ram as amices Curiae and was assisted by Mr. R.K. Sonkiya, another amices who was the defense Counsel of the convict in the Trial Court as well. On behalf of the State, Standing Counsel, Ms. Mukta Gupta made the submissions.
5. With this brief introductory, let us first embark on the prosecution story as unfolded during trial and the manner in which the convict was implicated. This may be traced in the findings of fact, as recorded by the learned Additional Sessions Judge, in the following manner:
6. Family of Sharmas, after celebrating Lohri returned to sleep with their servants Dinesh and Tika Ram, the convict. When the whole family was asleep, Tika Ram got up and decided to wreck some personal vengeance, irked as he was with behavior of Mrs. Sharma and her son Punit on some small matter, as disclosed by the convict in his disclosure statement to the police. He attacked the family and other servant Dinesh, who was sleeping in the kitchen. The weapons used were hammer and other sharp objects like screw driver. With hammer he attacked all the deceased on their heads and also pierced their bodies by screw driver. After killing the family and the servant, he allegedly removed some bangles of Mrs. Sharma, put them in his pocket and later on changed his clothes with the clothes of Punit but he threw the clothes worn by him at the time of incident, on the roof of another house. He was forgetful of the bangles removed by him which he had kept in the pant pocket, which he was wearing and which he changed and therefore, those bangles also remained in the pant which he had thrown on the roof of another house. He locked the room and made an escape throwing the key of the lock at some terrace. It may be mentioned at this stage that when the Sharmas and their servants were found murdered by the neighbours and the police was called since nobody was in the house and the convict had allegedly eloped, the aforesaid facts came to the knowledge of police only from the convict's own mouth and disclosure statement. The murders came to light only on the evening of next day i.e. 14th January, 1996 when Mr. Pradeep Sharma, the brother of Mr. S.P. Sharma came to the house on getting no response and the friends informed him that the house was locked since morning and newspapers were lying outside. On reaching the house and finding it locked and getting no response, a PCR was called. The police also reached the spot on receiving the said call vide DD No. 34A. The SHO of the concerned police station along with his staff came to the spot finding that the house was locked. In front of the witnesses and the complainant, namely, Mr. Pradeep Sharma, the grill door of the house was broken open and the entry was made. The police found all the four members of the family and servant-Dinesh in pool of blood. All dead bodies had injuries on their heads and faces. Statement of Mr. Pradeep Sharma was recorded and the case was registered vide Ex. PW 1/A. The police sprung into action and started investigation. It lifted chance prints from different articles in the house, from the broken almirah. Scene was got photographed. Bodies were sent for post mortem. The reports and samples were collected and articles seized. Recovery of blood stained hammer from the top of wood almirah was made. It had hair struck to it.
7. The statement/Rukka (Ex.I/A) made by Mr. Pradeep Sharma was recorded. Apart from other narration, already recorded above, he pointed out that Tika Ram, who was of Nepali origin, was employed as a domestic servant; he used to sleep in the house and was absconding from the house. On inquiry from the neighbours and others, the police was informed that Tika Ram was seen at the house on the night of 13th January, 1996. The police kept a watch for the culprits and suspecting the role of servant Tika Ram, the Commissioner of Police announced an award of Rs. 50,000/-. The Government of Nepal was also informed through Interpol. Three months passed. The investigation did not yield any results. However, on 8th April, 1996, the convict Tika Ram was apprehended at Ruparia Bus Stand, near Nepal border. He was wearing a leather jacket and was in possession of a Kodak camera which were recovered from him as Ex.PW 19/8. After interrogation he allegedly confessed to the crime. His disclosure statement was recorded wherein he, inter alia, stated that the members of the Sharma family used to give beatings and abuses and any loss/damage in the household would be attributed to him. He had, therefore, avenged this humiliation by liquidating the entire family. He had used a hammer, a kitchen knife and a screw driver to accomplish this task. He also made confession of removing Rs. 25,000/- from the almirah, three gold bangles, leather jacket and a camera. He further stated that the pant and shirt of the deceased Punit, after committing the crime were left at his house in Nepal. His own clothes which he was wearing at the time of crime were put by him in a polythene bag and he threw them on the roof of a room between Flat No. 1403 and Flat No. 1396. He also disclosed that he threw the key of the house on the terrace of the stairs and he could point out the same.
8. The police remand of Tika Ram was procured and he was taken to the place of crime. He got recovered the blood stained clothes with three gold bangles in the pant as well as the key of the lock. The case property was got test identified judicially and after collecting all other evidence and report of finger chance prints, the police filed the challan in the Court. It was stated in the challan that the hammer, i.e. the weapon of offence had already been recovered; the pant and shirt of Punit could not be recovered as there was no treaty between India and Nepal.
9. After committing the case to the Court of Sessions, a charge was framed under Section 302, IPC implicating Tika Ram with the murder of five persons. He was also charged with the offence under Section 411, IPC for having been found in possession of stolen articles, namely, leather jacket, camera of Punit and three gold bangles. The convict-Tika Ram pleaded 'not guilty' to both the charges and claimed trial. The matter was accordingly set to trial and opened with the examination of prosecution witnesses. As many as 24 witnesses were examined by the prosecution who were extensively cross-examined by the Counsel for Tika Ram. Thereafter, the incriminating circumstances coming forth in the said evidence were put to accused for his explanation and on these questions his statement under Section 313, Cr.P.C. was recorded.
10. Before analysing the prosecution evidence, it would be proper to state at this stage itself, which is by now becoming clear from the narration of prosecution version, that there is no eye-witnesses to the crime. The entire case hinges on the circumstantial evidence. According to the prosecution all the circumstances, which have been revealed through evidence, unmistakenly point accusing finger at Tika Ram and establish complete chain leading to irresistible conclusion that nobody else but only Tika Ram could have committed this crime. It may also be mentioned at this stage itself that the main defense of the accused is based on plea of alibi. Although not denying that he was employed with Sharmas as a domestic servant, he, however, pleads that he had left the house of Sharmas 4-5 days before the occurrence of crime by taking leave and was away in Nepal on the fateful night. Thus, he was not in Delhi and is falsely implicated. This is the thrust of his statement under Section 313, Cr.P.C. as well, although he has not produced any other independent witness to establish his plea of alibi. His case is that the prosecution has miserably failed to prove that he was in Delhi on the night of 13th/14th January, 1996 when Sharma family was murdered and, therefore, he cannot be convicted.
11. We may also, at this stage, point out the circumstantial evidence against Tika Ram which according to the prosecution is unflinching. Learned Additional Sessions Judge, in the impugned judgment, has enlisted this strong circumstantial evidence of the following facts:
(i) fact of accused being present in the house on the night of Lohri on 13.1.96, as a domestic servant;
(ii) the conduct of his absconding, as he was not found after the murder in the house;
(iii) the fact that he made a disclosure statement leading to recovery of blood stained clothes worn by the accused at the time of alleged murder.
(iv) the recovery of 3 bangles from the pocket of pant of the recovered pant belonging to accused. The recovery was allegedly made at his instance from the roof between H.Nos. 1403 and 1396;
(v) the recovery of the key of the lock, which he used for locking the house before escaping;
(vi) the recovery of hammer from the top of wood almirah, from the scene of crime;
(vii) the medical post mortem examination of the five deceased persons. The medical reports show death by head injuries by blunt force on head and face;
(viii) the finger prints of accused matching with the lifted chance finger prints.
12. What is stated by the 24 prosecution witnesses may be narrated how. Here again, since this task is also undertaken by the learned Additional Sessions Judge in the impugned judgment and inevitably so, summation of his analysis of the prosecution witnesses can be reproduced with no fear of mistake as it is not disputed that what these witnesses deposed is correctly reproduced by the learned Additional Sessions Judge (what is disputed is the inferences and conclusions on the analysis of the said evidence).
13. PW-1 is complainant, the brother of the deceased, who lodged the report after finding the dead bodies of family members, on opening the house. PW-2 is relative of deceased's servant Dinesh, who identified his dead body in mortuary. PW-3 is Avdesh Kumar, expert from the Finger Print Bureau. He was given 14 chance prints for comparison. He proved his report Ex. PW3/A. On comparison he found the chance prints mark Q-13, which identified with the right thumb mark, specimen S-1, belonging to accused Tika Ram. PW-4 is relative of the deceased members of the family. He identified the dead bodies of Shri S.P. Sharma, Smt. Shobha Sharma, Punit and Ms. Charu vide receipts Ex.PW 4/A to Ex.PW 4/D. PW-5, Ashok Khanduja, living in Flat No. C-II/ 2352, opposite to the flat of deceased C-1/1396. He identified the servant Tika Ram. PW-6 Vijay Kumar is a car repairer, known to the deceased S.P. Sharma, who found the house locked on 14.1.96, to return the car, which he had taken to repair. He noticed the newspapers of the day unattended.
PW-7 is Dr. G.K. Chaubey of Safdarjung Hospital. He conducted the post mortem examination of Satya Prakash. He proved his report Ex.PW7/A, in his handwriting, showing different ante-mortem injuries and opined the death due to coma as a result of head injury sufficient to cause death in ordinary course of nature. PW-8 is formal witness who recorded FIR Ex.PW 8/A. PW-9 is another Finger Print Expert, who on 15.1.96 visited the scene of crime, along with ASI Nirmal Singh and police photographer Const. Suraj Mal. He developed 12 chance prints Q-1, Q-2 and Q-3 from outside the steel almirah. Q-4 and Q-5 from inside the locker of the almirah. Q-6a blood print on bed room wall, Q-7 on telephone, Q-8 and Q-9 on another steel almirah and Q-10, Q-11 and Q-12 from TV stabilizer. He proved his report Ex. PW 9/A. He deposed that since bulb of his Omni Print fused, he sent for other photographer of police. Mr. Amar Pal Verma came to the spot with Mini laser, he re-photographed chance prints mark Q-1 to Q-5 and Q-8 to Q-12. He also took photographs of chance prints Q-13 and Q-14. Mr. Amar Pal Verma, gave his report to SHO in his presence. PW-10 is public witness Paramjeet Singh, an interior decorator working in the area pf Vasant Kunj and known to deceased Satya Prakash. He had visited the house on 13.1.96 and on 14.1.96 when he learnt of the unfortunate happening. PW-11 is a formal witness of police, who prepared sketch of the scene of house vide report Ex.PW 11/A. PW-12 is Const. Dev Kumar, a formal witness, who took special report to the area Magistrate, and senior police officers.
PW-13 is Rameshwar Dayal, MHC(M) of P.S. Vasant Kunj on 15.1.96. He proved deposit of 16 sealed packets vide entry in register No. 19. On 18.1.96 he handed over the packets with seal of SKS to SI Diwan Chand vide RC No. 2821, for depositing in FSL, Malviya Nagar. PW 14 is Const. Om Prakash, who accompanied the IO of the case, the SHO, to the scene of crime on getting the message. He described how they entered in the house, by breaking open the door, and what was witnessed by him on the scene of the crime. PW-15, likewise is Head Const, who after receiving the message reached the flat on getting message. He proved the seizure of various belongings of the deceased vide memo Ex.PW 15/A including hammer. PW-16 is photographer of Crime team who reached at the spot on the night of 14 and 15th January, 1996. He took 23 photographs vide photographs Ex.PW 1-23 with negatives Ex.PW16/24-46. PW-17 is Dr. Arvind Thergaonkar, CMO of Safdarjung Hospital. He proved the post mortem report of Mr. Punit, son of S.P. Sharma, vide report Ex.PW 17/A. He opined death due to carnio cerebral damage consequent upon blunt, sharp and penetrating weapon. He described various injuries observed by him. PW-18 is Dr. A.K. Sharma, CMO of Safdarjung Hospital. He proved the post mortem report of servant Dinesh Gupta, vide report Ex.PW 18/A. He opined death due to head injury by blunt and injuries by sharp weapon.
14. PW-19 is Const. Rupesh Kumar. He on 10.3.96 accompanied SHO Surender Sharma with SI Diwan Chand and Const. Subhash to Nepal border in U.P. for search of accused. He deposed that on 8.4.96, when they were near the Ruparia town near the border, they received secret information about the accused coming to bus stop Ruparia for going to India. He deposed that at about 5.00 p.m. he was apprehended with a red colour bag. He proved his arrest vide memo Ex. PW19/A. In the bag, a jean pant, a leather jacket, a Camera belonging to the deceased were taken into possession vide memo Ex.PW 19/B. He proved disclosure statement of accused as Ex.PW 19/C. They came to Delhi on 9.4.96. Accused led the police party to the common roof of the stairs of flat Nos. 1396 and 1403 and from there got recovered a polythene of white colour containing pant and shirt of green colour. Accused got recovered gold bangles placed in the pocket of the pant. A key was also recovered. These were seized vide memo Ex.PW 1/B and Ex.PW 1/C. The pointing out memo of almirah from the top of which hammer had already been found is proved as Ex.PW 9/B. The Camera is produced as Ex.P-19/1. The leather jacket is proved on production as Ex.PW 19/3. The key was produced as PW 19/4. Leather cover of Camera is Ex.PW 19/2. The three gold bangles recovered are Ex.PW 19/5-7. The shirt and pant are Ex.PW 19/8 and Ex.PW 19/9. PW-20 is Sub-Inspector Sushil Kumar, who was posted on 14.1.96 at P.S.Vasant Kunj. He received information in the P.S., which was recorded vide DD No. 34A. On getting information vide DD No. 35A and DD No. 34A, he accompanied SHO with other officials to the place of crime at C-1/1396, Vasant Kunj. He described the scene and how the blood stains were collected and jewellery of the deceased persons were taken into possession vide memo Ex.PW 15/A. He proved recovery of hammer vide Ex.PW 15/B. PW-21 is another Sub-Inspector Diwan Chand, who had accompanied the IO/SHO to Nepal border. He corroborated the testimony of PW-19. He deposed that on 18.6.96, he deposited 39 sealed parcels in FSL, Malviya Nagar, and on 27.6.96 produced one jacket, Kodak Camera and three gold bangles before Ms. Renu Bhatnagar, learned M.M. for TIP. There is no challenge to the TIP proceedings. PW-22 is Const. Maman Singh, who joined IO for the place of incident and got the post mortem conducted. PW-23 is Magistrate Mrs. Renu Bhatnagar. She proved the TIP proceedings conducted by her on 27.6.96. She deposed that witness Pradeep Kumar rightly identified three bangles, one leather jacket and camera. She proved proceedings Ex.PW 23/B. PW-24 is Insp. S.K. Sharma, who was working as SHO on 14.1.96. He deposed that at 10.30 p.m. a PCR call was received from one Pradeep Sharma that the house of his brother was lying closed. He with other staff reached the place and described how the police entered the house and saw the dead body of five persons. He found the iron almirah broken. He proved Rukka Ex. PW 24/A, sent for registration of FIR. He proved brief facts recorded by him as Ex.PW 24/E. He deposed that Pradeep Kumar informed that Tika Ram servant was found missing. He proved the disclosure statement Ex.PW 19/C. He proved that on 9.4.96, at his instance the key was recovered from the top of H.No. C-1/1396, seized vide Ex.PW 1/C. He proved all other facts.
15. In the statement under Section 313, Cr.P.C., Tika Ram denied most of the allegations made against him in the evidence. Further, as noted above, his case is that he was not in Delhi and was away to Nepal and, therefore, falsely implicated. He has also stated that he was arrested by Nepal police on 28th January, 1996; remained in their custody till 6th March, 1996; was brought to Delhi in the custody on 8th April, 1996.
16. The learned Additional Sessions Judge after giving the aforesaid analysis of the evidence and stating eight sets of circumstantial evidence pleaded against Tika Ram, as reproduced above, and hearing the Counsel for the parties, came to the conclusion that the prosecution successfully proved the charges against Tika Ram. The judgment proceeds by taking note of the law on 'circumstantial evidence' as interpreted by the Supreme Court formulating three tests which are required to be satisfied, namely, (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogent and firmly established; (2) these circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that in all human probability, the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The learned Additional Sessions Judge, thereafter, considered the issue of the presence of the accused Tika Ram in the house of Sharmas on the fateful night in the context of the plea of alibi raised by Tika Ram. On the basis of the statements of PW-1 Pradeep Sharma, PW-10 Paramjit Singh and PW-5 Ashok Khanduja the learned Additional Sessions Judge concluded that the prosecution has been able to establish the presence of Tika Ram in the house of Sharmas. Conscious of the fact that the best evidence to show the presence of Tika Ram could be the family members but such evidence was not available as no one survived, the learned Additional Sessions Judge pointed out that the next best evidence could be the close relations of the deceased who have been visiting the house and the neighbours or the persons living opposite or nearby. The learned Additional Sessions Judge noted that PW-1 and deceased Sh. S.P. Sharma who were real brothers, had cordial and normal relations; Tika Ram was working as domestic servant with his brother; when he came to the house after the incident, he did not find Tika Ram who used to sleep along with Dinesh, the other servant inside the house; he suspected Tika Ram of committing the crime and named him in his statement immediately to the police; after the arrest of Tika Ram he went to the police station on 9th April, 1996 and enquired from Tika Ram personally whether he had committed the murders and Tika Ram replied in the affirmative admitting having committed the crime with the help of a hammer; Tika Ram also gave reason for this act, namely, he was being maltreated. He pointed out the place where he had thrown the polythene bag containing his clothes and got it recovered and from the search of the pocket of pant, three gold bangles were recovered in his presence; he also got recovered one key of the main door from the Mumtee of the same flat in his presence; accused also pointed out the route of escape in his presence and identified the leather jacket and camera of Punit in judicial test identification parade (TIP). According to the learned Additional Sessions Judge, although PW-1 was cross-examined in detail, his testimony was not questioned on material deposition and only a simple suggestion had been put to him that Tika Ram had gone to Nepal 4-5 days before the incident and was falsely implicated. There was no challenge to the testimony of recoveries of the clothes kept in polythene bag or three gold bangles of Mrs. Sharma recovered from the pant of the accused or the recovery of key of the main door. Analysing the evidence of PW-1 in the aforesaid manner, learned Additional Sessions Judge concluded:
I have considered the evidence. The testimony of PW-1 clearly shows that he was employed only on 16/17 December, 1995, after about a year of gap, when he came back and was re-employed. There could be no question of his going back on leave to Nepal again after about a month. He seems to have taken false plea. The recovery of his clothes, bangles, and key of the door connects him directly with the crime. There is no reason to disbelieve the testimony of PW-1 on any account.
17. Learned Additional Sessions Judge further pointed out that PW-5 Ashok Khandja, who was the neighbour, had deposed that he was on visiting terms with the deceased family and on the date of incident, two servants, namely, Dinesh and Tika Ram were working as domestic servants in the house of Sharmas and specifically denied that the accused-Tika Ram had gone to his native village four days before the murders. The reading of the statements of PW-1, PW-5 and PW-10 in their examination-in-chief and cross-examination led the learned Additional Sessions Judge to come to the following findings:
The testimony of PW-1, PW-5 and PW-10 clearly established beyond doubt that servant Tika Ram was working as servant in the house of deceased and he used to sleep in the house. He was not found anywhere after the incident of murder. The recovery of his blood stained clothes worn by him, kept in a polythene and recovery of key of the main door clinchingly and unerringly connect him with the crime. The chain of circumstances is so complete that it excludes all other probability of innocence consistent with the facts established. The chance print Q-13, lifted from the outside of broken steel almirah, as per report of Finger Print Bureau Ex.PW3/1 tallied with right thumb mark of accused Tika Ram. This evidence of scientific nature points unerringly to the presence of accused and his connection with the broken almirah in the house. This corroborates the evidence of other witnesses that he was present in the house on the night of Lohri on 13.1.96. It is thus established that unerringly accused Tika Ram is the author of the crime. The motive is also established. He avenged his personal wrath against maltreatment felt by him. In his rage he included even the other minor servant.
18. The impugned judgment, thereafter, proceeds to deal with the defense submissions wherein test identification of three bangles, leather jacket and camera were questioned including the validity of TIP. The learned Additional Sessions Judge accepted that the witness (PW-1) could not have correctly identified the bangles. Even according to him, his sister-in-law used to wear lot of gold and in any case PW-1 had already seen the leather jacket and camera in the police station on 9th April, 1996 thus vitiating the TIP. However, the defense submissions are brushed aside by the learned Additional Sessions Judge by observing that there was no challenge to the disclosure statement Ex.PW19/C made by the accused and the recovery of blood stained clothes worn by him at the time of offence as well as to the recovery of bangles in his pocket. Therefore, TIP was not even necessary which was arranged by way of abundant caution by the police. Likewise TIP of jacket and camera was also not necessary as PW-1 had already told the police that these articles belonged to the son of deceased Sh. S.P. Sharma. The recoveries of these items at the behest of the accused were sufficient to shift the burden on the accused for explaining his position which he had failed to discharge.
19. Thus, according to the learned Additional Sessions Judge the evidence produced by the prosecution which was reliable, clinching and formed a complete chain of events unerringly connected Tika Ram with the crime. Tika Ram, in this manner, has been convicted by the learned Additional Sessions Judge of both the offences punishable under Section 302 as well as Section 411, IPC for which he was charged.
20. Lengthy submissions were, thereafter, heard by the learned Additional Sessions Judge on the sentence which needed to be awarded to Tika Ram for the offences committed by him. A detailed order dated 15th January, 2003 is passed on sentence justifying the death penalty. We shall revert to this order at the appropriate stage as we have to first consider the issue and propriety of conviction in view of this reference and specific challenge by the convict Tika Ram in so far as his conviction is concerned.
21. Learned Counsel for the accused-Tika Ram questioned each and every finding recorded by the learned Additional Sessions Judge. Highlighting the essential rules of the game and the principles which needed to be established before an accused is convicted on circumstantial evidence, the learned defense Counsel submitted that caution had to be observed by the Court in a case of circumstantial evidence as there is always a danger that conjecture or suspicion may take the place of legal proof in such cases. According to him, this is precisely the error committed by the learned Additional Sessions Judge. His submission was that in the case of circumstantial evidence motive plays a pivotal role and this, first and foremost ingredient, could not be proved by the prosecution. The motives imputed were not only weak but varying and contradictory. He also submitted that the learned Additional Sessions Judge fell in error by relying on print Q13 found on the outside of the almirah and holding that this chance print matched with the alleged specimen S-1 taken from the convict Tika Ram. He questioned the very existence of chance print Q13 by submitting that lifting thereof was surrounded with suspicion and pointed towards clear fabrication; alleged specimen finger print of the accused (S-1) was itself not proved through any cogent evidence and therefore the very exercise of matching the same with chance finger print was futile. He went on to argue that in any case comparison of the specimen S-1 with chance finger print Q13 would reveal that the two were identical and appeared to have been forcibly matched which was evident from the cross-examination of PW-3. The learned Counsel challenged all the recoveries; be it recovery of key, be it recovery of blood stained clothes, be it recovery of bangles, be it recovery of jacket and camera, be it recovery of hammer as hoax. He also submitted that, in any case, the alleged recoveries did not fit in within the parameters of Section 27 of the Indian Evidence Act, 1872 and were, therefore, inadmissible in evidence. The learned Counsel took great pains in his endeavor to demonstrate from the evidence on record that the prosecution could not prove the presence of Tika Ram at the site on the day of occurrence of the crime. His submission was that as the onus to prove his presence lay on the prosecution the plea of alibi taken by the accused in his defense was immaterial. He emphasised that the circumstances regarding presence of Tika Ram in the house of the deceased on the intervening night of 13th/14th January, 1996 had not even been put to him in his statement under Section 313 of the Cr.P.C. Likewise circumstance of abscondence was not put to him.
22. His submission was that in a case like this the Court was to proceed by keeping in view the following principles/parameters in mind:
(i) That the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defense version by proving its case.
(ii) That onus of the prosecution never shifts.
(iii) The Indian Evidence Act does not contemplate that the accused should prove his ease with same strictness and rigor as the prosecution is required to prove a criminal charge. It is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Indian Evidence Act as a result of which he succeeds not because probability of the version given by him throws doubt in the prosecution case and therefore the prosecution cannot be said to have established the charge beyond reasonable doubt. The above three principles are referred to in Rabindra Kumar Dey v. State of Orissa, 1967 SCC (Cri) 566 (para 6). In a criminal trial, it is not at all obligatory on the accused to produce evidence in support of his defense and for the purpose of proving his version he can rely on the admissions made by the prosecution witnesses or the documents filed by the prosecution. (Paras 7, 19 and 27)
(iv) If two views are possible on the evidence adduced by the prosecution, one pointing to the guilt of the accused and other to this innocence, the Court should adopt the latter view favorable to the accused. (Harender Narain Singh v. State of Bihar, 1991 SCC (Cri) 905).
(v) Fouler the crime, greater the degree of Proof. Dhananjoy Chatterjee v. State of W.B., I (1994) CCR 89 (SC)=1994 SCC (Cri.)
(vi) Suspicion, howsoever strong, cannot take the place of legal proof. This is a long distance between may be true and must be true. Shankarlal Gyarsilal Dixit v. State of Maharashtra, 1984 SCC (Cri) 487
(vii) It is also settled law that prosecution cannot rely on the weakness or falsity of defense to sustain the guilt of the accused. It must succeed on its own evidence. It has been held in State of U.P. v. Ram Swamp and Anr., 1974 SCC (Cri) 674 (paras 9,21) the Court can find a plea in favor of the accused without accused having taken that plea. The defense need not lead evidence to prove defense plea. Prosecution evidence and facts emerging out of the case be relied upon by the defense for the purpose.
(viii) In Tika and Ors. v. State of U.P., 1974 SCC (Cri) 67 (para 6), it has been reiterated that the case of the prosecution has to be tested independently of the defense version. Falsity or weakness of defense version does not establish the case of the prosecution.
(ix) The prosecution or the Court cannot reconstruct a story different from the one propounded by the prosecution and convict the accused on that basis i.e. the prosecution must prove beyond doubt the very story it alleges and nothing else. Reliance in this regard is placed on Bhagirath v. State of M.P., 1975 SCC (Cri) 742 (paras 14 & 15). On the same point is Dinesh v. State of Haryana, I (2002) CCR 76 (SC)=JT 2001 (10) SC 144.
(x) That the standard of proof required to prove a defense plea is not the same which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probablises the plea, he will be entitled to the benefit of reasonable doubt. Dr. S.L. Goswami v. State of M.P., 1972 SCC (Cri) 258.
(Paras 6 & 22)
(xi) In Koli Trikam Jivraj v. State of Gujarat, 1969 Crl.L.J.409 (paras 15, 16 and 18), it has been held that suggestions put in cross-examination are no evidence at all against the accused and on the basis of such suggestions, no inference can be drawn against the accused that he admitted the fact referred to in the suggestions.
(xii) Circumstance not put to the accused in statement under Section 313, Cr.P.C. ought to be excluded from consideration while assessing the guilt of the accused. In a criminal case, an accused is not bound by his pleadings. Court can create a plea not specifically taken by the accused.
(xiii) Apex Court has observed human nature is too willing, when faced with brutal crimes, to spin out stories out of strong suspicion. Our judgment will raise a legitimate query. If the appellant was not present in the house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases in Shankarlal Gyarsilal Dixit v. State of Maharashtra, 1981 SCC (Cri) 315 (Para 33).
23. Challenging the very edifice of the prosecution case, learned Counsel submitted that it did not appeal to reason that one man, all of 19 years of age and thin built, could by himself commit the murder of four fully grown up people with 9 year old servant without any resistance of anybody and without any one being able to raise an alarm so as to invite the attention of the neighbours. Such a prosecution story was based on very weak foundation and taking the aid of medical jurisprudence and forensic evidence as available on record, he submitted that it was most unlikely that Tika Ram could have committed such a series of murders.
24. We have given the bird's eye view of the submission of defense Counsel and would take note of all these submissions in detail while dealing with each aspect separately. Suffice is to state at this stage that the attempt of the learned Counsel is to tear apart each and every piece of evidence; each and every alleged circumstance; each and every conclusion of the learned Additional Sessions Judge on the formation of chain and has submitted that neither presence of the accused Tika Ram at the place of crime nor his role in commission of crime nor his motive in committing such a crime is established.
25. In a case like this, before dealing with the nitty gritty of the matter and looking into, microscopically, various aspects and nuances of the case, we deem it proper to first ascertain as to whether the prosecution has been able to prove the presence of the convict at the place of crime when the murders were committed. In this context, we shall also deal with the plea of alibi raised by the defense. It is necessary to deal with this aspect of the matter, in the first instance, as not only the edifice of the prosecution case depends on the outcome of this finding, even further probe into the matter and the manner in which we should deal with the evidence led by prosecution to prove the offence of the convict depends on this aspect. If the convict was not present at the scene of the crime no other aspects are even required to be looked into. On the other hand, if his presence is established, his conduct after the alleged crime becomes of relevance and the evidence which has been led by the prosecution implicating the convict will have to be adjudged in the light of this aspect.
Re: Presence of convict/his plea of alibi:
26. It is the case of the prosecution that it has been able to establish the presence of the convict at the time of commission of crime with the following nature of evidence:
(a) Statements of the witnesses.
(b) Prosecution witnesses specifically denying the suggestion of the defense that convict had gone on leave.
(c) When the commission of crime was committed and the place of crime visited by certain persons, the first reaction of material witnesses was, after seeing five dead bodies that the convict was missing.
(d) Photographs taken at the scene of crime including where 10 years' old servant was lying dead would clearly show that bed was laid for two persons and one could infer that the other person was the convict.
(e) Most importantly, the suggestion given by the defense Counsel himself to PW-6/Vijay Kumar while cross-examining him would show that the convict was present.
27. We would deal with the aforesaid pieces of evidence in some detail. Ex.PW-1/A is a statement/Rukka made by Mr. Pradeep Sharma, brother of Sh. S.P. Sharma. It is the first statement recorded on the spot immediately after the murders came to light. Apart from giving the account of how he came to know about the killings and how he reached the spot and what was found after witnessing the scene of crime, he stated in the last portion of statement as under:
At present I do not know as to what articles have been, stolen there from. My brother Satya Prakash Sharma had employed a Nepali boy namely Tika Ram as a domestic servant in his house about one month back. Tika Ram used to sleep in the house at night and he is now absconding from the house. My brother, Bhabi, nephew, niece and their domestic servant Dinesh have been murdered. Legal action may please be taken.
28. FIR is also based on this very statement which is reproduced therein. Thus the first reaction of the brother of deceased S.P. Sharma, after visiting his house, was that the convict, who was second servant in the household, was missing and was absconding. In his statement before the Court as PW-1, he reiterated the details of what the scene of the crime looked like, after the police, in his presence as well as in the presence of the neighbours forced open the iron gate and entered the flat. He further stated that thereafter police started its proceedings. The police enquired from me about the number of persons residing in the flat. I told the police that apart from family members of my brother, there were two domestic servants who used to sleep inside the house. At that time Tika Ram was not available there. He further stated that because of absence of Tika Ram he suspected him for the murders and gave statement to the police.
29. PW-5 Ashok Khanduja who was a neighbour of the deceased family and was on visiting terms with them also stated that besides the aforesaid family members at the time of incident his two servants were also living with him, namely, Dinesh and Tika Ram. He identified Tika Ram in the Court. No doubt he stated that he had seen Tika Ram 15-20 days before the date of incident. Thus he had not seen Tika Ram on the fateful day i.e. 13th January, 1996 but he has clearly deposed that at the time of 'incident' Tika Ram was living with deceased Sh. S.P. Sharma. There is no suggestion on this fact and even suggestion is not given that Tika Ram had gone on leave 4-5 days before the date of incident and therefore he was not available 'on the date of incident'. In the cross-examination he has deposed as under on this aspect:
About 1 or 1A1/2 years before the incident accused Tika Ram used to work as a domestic servant in the house of Satya Prakash. Thereafter, he left, and again joined as domestic servant some time before the incident but the exact time I cannot tell. I used to see him in their house as well as outside the house prior to the incident. (whenever we visited the house of Mrs. Satya Prakash accused used to serve tea).
The learned Additional District Judge has aptly remarked that the best evidence could be the family members but none survived and in these circumstances the next best evidence could be close relations of the deceased and thereafter the neighbours or the persons living opposite them. About neighbours, the learned Additional District Judge observed that now-a-days as the persons living can only generally know about a particular servant employed in a particular family, they cannot describe presence or otherwise of a servant at any particular time in the family, save in rare cases, where the neighbours might have interacted with the servant for some reason at or about the time when the incident took place. When we analyze the evidence of PW-5 in this background, what is forthcoming is that even if PW-5 might have seen Tika Ram 15-20 days before the incident, he knew that even at the time of incident he was in the employment and he used to see him as and when visiting the house of Sh. S.P. Sharma.
PW-10, Paramjeet Singh, who was also known to the family of Mr. S.P. Sharma, deposed to the effect that Tika Ram was employed as domestic servant by the family. He stated that on 13th January, 1996 also he had visited the house of the deceased Sh. S.P. Sharma at about 5/6 p.m. and at that time Tika Ram was not there. However, he categorically stated that at the time of the incident, Tika Ram was also working a domestic servant (sic) as a domestic servant) with deceased. To him also there is no suggestion that at the time of incident Tika Ram was not there and he had gone on leave.
PW-6 is another witness whose statement needs to be stated with some elaboration. He is a Motor Mechanic who knew deceased Mr. S.P. Sharma for last 15 years as he used to attend to his car. He had also visited Sh. Sharma's house on 13th January, 1996 at around 10.30 p.m. as Mr. Satya Prakash Sharma had asked me to come and collect his car for repairing. He categorically stated that on that date when I went to their house I was attended by Mr. Satya Prakash Sharma. At that time accused Tika Ram had also served me with a glass of water. He stated that at that time other family members as well as the other domestic servant was also in the house and Punit s/o Mr. S.P. Sharma was eating rice. Before leaving their flat Mrs. Satya Prakash Sharma asked Punit to accompany the witness downstairs along with the key of the car and also with the direction that he should also take out the dog for stroll and both of them came down. Most significant is the suggestion to this witness by the defense Counsel in cross-examination on the aforesaid statement that he came down with Punit Sharma. This suggestion reads as under:
It is wrong to suggest that on 13.1.96 when I came down stairs along with Puneet Sharma accused Tikka Ram also came downstairs at that time. (vol. at that time when I left the flat both the servants were sleeping on the carpet in the drawing room).
30. By giving this suggestion the defense has unwittingly accepted the presence of Tika Ram in the house on the fateful night. The evidence of PW-6 is thus clinching evidence which shows that Tika Ram was present in the house of the deceased family and his presence is established. To repeat, PW-6 has categorically stated that Tika Ram was present when he visited the house of Sharma at 10.30 p.m.; Tika Ram served him with a glass of water and when he left the house of Sharma at 11 p.m., both the servants including Tika Ram were sleeping on the carpet in the drawing room. In the cross-examination there is no suggestion that Tika Ram was not present in the house. On the contrary, what is disputed is the statement of PW-6 that Tika Ram was sleeping when he left, by putting the suggestion that he accompanied PW-6 when PW-6 came down with Punit. We may also mention at this stage that in his cross-examination PW-6 stated that he was having another car of another person which was to be handed over to the owner after repair in Vasant Kunj area and as he had to collect the car of Mr. Sharma also who wanted his car to be repaired, therefore he went to the house of Mr. Sharma in the late hours. Interestingly, on this part of his testimony, the suggestion put to this witness by the defense Counsel is that he visited the house of Sharma to find out the address of other person to whom the car was to be delivered. We may reproduce this suggestion:
It is further wrong to suggest that actually I did not know the address of that person and therefore I went to the house of Mr. Sharma to send somebody along with me to help me in locating the house of the said car owner.
31. Significantly, by putting this suggestion, the defense has admitted the visit of PW-6 to Sharma's house. The defense was only disputing the purpose of visit which may not be of much relevance. Thus when visit of PW-6 in the house of Sharma at 10.30 p.m. is admitted and he has deposed that he saw Tika Ram in the house at that time, he has to be generally believed in his testimony more so, in the light of particular nature of cross-examination. As noticed earlier, not only there is no suggestion given to him, on the contrary suggestion is that Tika Ram came down with him when he was leaving the house of Sharma's. We feel that no sufficient evidence has come on record to prove that convict Tika Ram was present in the house at the time of incident.
32. In the backdrop of aforesaid evidence, we examine the plea of alibi taken by convict Tika Ram. He has not led any evidence in support of this plea of alibi. This was admitted by the learned Counsel for Tika Ram during arguments. Conscious of this limitation, his emphasis was that burden of proof was on the prosecution to prove the presence of accused at the time of offence and since prosecution has not been able to prove this, the plea of alibi taken by the accused stands proved by theory of preponderance of probability. For this proposition, he relied upon two judgments of the Supreme Court in the cases of Binay Kumar Singh v. State of Bihar reported as and Gurcharan
Singh and Anr. v. State of Punjab reported as . In
Binay Kumar Singh (supra), the Supreme Court observed:
Para 22: We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:
The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant.
Para 23: The Latin word alibi means elsewhere and that word is used for convenience when an accused takes recourse to a defense line that when the occurrence took place he was far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defense of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P., ; State of Maharashtra v. Narsingrao Gangaram Pimple .
33. Reliance was placed on para 6 of the judgment of the Supreme Court in Gurcharan Singh (supra):
But even so, the burden of proving the case against the appellants was on the prosecution irrespective of whether or not the accused have made out a plausible defense. The case for the prosecution against the appellants rests on the testimony, as already indicated, of P.Ws. 2 and 4 who had accompanied the deceased from the village on the journey to Muktsar and P.Ws. 6 and 7 who were on their way back from Muktsar and were attracted to the scene of the occurrence by the alarm raised by those two witnesses.
The Courts below have discussed the evidence of these four witnesses in great detail and have found it reliable notwithstanding the fact that Gurnam Singh (P.W.2), Raman Singh (P.W. 6) and Hari Singh (P.W. 7) are close relations of the deceased. On the face of it, therefore, there is no question of law involved and no grounds for interference have been made out in special appeal.
34. Placing strong reliance on PW-5 who had stated that he had not seen Tika Ram since few days prior to the incident and PW-10 where he stated that although he had visited the flat of Sharma on 13th January, 1996, he did not see Tika Ram and also from the testimony of PW-1 wherein he did not specifically stated about the presence of accused Tika Ram soon before the incident, submission was that the prosecution was not able to prove the presence of Tika Ram at the time of incident and these witnesses, he argued, lent support and credence to the plea of alibi taken by Tika Ram. However, this aspect has already been dealt with while analysing the statements of these witnesses and we do not agree with the submission of learned Counsel for Tika Ram trying to draw sustenance from some utterances of these witnesses out of context. These statements when read as a whole, suggest otherwise. We may state at this stage that the learned defense Counsel was also conscious of the suggestions given to PW-6 which suggestion itself established his presence. He tried to overcome this handicap by arguing that such suggestion of defense Counsel, who was not an experienced lawyer and was appointed as an amices curiae by the Court, be discounted and be discarded as a folly committed by him. However, this plea does not convince us as detailed and penetrating cross-examination of various witnesses by the same very Counsel suggest otherwise. This specious plea of trying to wriggle out would, therefore, be impermissible.
35. There is no quarrel with the legal proposition that primary onus --which never shifts -- is on the prosecution to prove the presence of the accused and that he committed crime and further that prosecution cannot benefit from the weakness or non-proof of alibi. However, this would be of no avail as, as a matter of fact, prosecution has produced sufficient and satisfactory evidence to prove the presence of Tika Ram at the time of incident. For same reason, we have to brush aside his submission that if defense has been able to create some doubt in the prosecution case it is not to be believed. His submission was that creating such a doubt was sufficient as held in Sri Rabindra Kumar Dey v. State of Orissa reported as 1976 Supreme Court Cases (Cri) 566 and that if two views were possible one which favors the accused should be preferred as held in Harendra Narain Singh and Ors. v. State of Bihar reported as 1991 Supreme Court Cases (Cri) 905. Since we do not find any doubt, on the basis of the facts proved, that accused was present, these submissions are also of no avail and the judgments cited by the learned Counsel would not come to his aid in the instant case. Learned Counsel for Tika Ram also tried to take mileage from the the fact that in the statement of Tika Ram under Section 313 of Cr.P.C. no question was specifically put about his presence at the occurrence. However, when the statement is to be recorded under Section 313 of the Cr.P.C. the accused is put the main circumstances which have come against him in the prosecution evidence and not each and every piece of evidence. For this proposition, we may take shelter under the judgment of the Supreme Court in the case of Bakhshish Singh Dhaliwal v. The State of Punjab reported as and the following statement of law laid down therein:
Para 33: It was also submitted that these War Diaries were not put to the accused when he was examined under Section 342 of the Code of Criminal Procedure and consequently, their use to the prejudice of the appellant to record findings against him was not justified. This submission is clearly based on a misapprehension of the scope of Section 342, Cr.P.C. Under that provisions, questions are put to an accused to enable him to explain any circumstances appearing in the evidence against him, and for that purpose, the accused is also to be questioned generally on the case, after the witnesses for the prosecution have been examined and before he is called on for his defense. These War Diaries were not circumstances appearing in evidence against the appellant. They were, in fact, evidence of circumstances which were put to the accused when he was examined under Section 342, Cr.P.C. It was not at all necessary that each separate piece of evidence in support of a circumstance should be put to the accused and he should be questioned in respect of it under that Section; and consequently, the High Court committed no irregularity at all in treating these War Diaries as part of the evidence against the appellant.
36. False answer in statement under Section 313, Cr.P.C. will provide missing link to the prosecution. Questions 21, 22 and 25 are to the following effect:
Q.21 It is further in evidence against you that you were brought to Delhi on 9.4.96 and on your instance one key of the H.No. C/1396 was recovered from the roof of the house and same was kept in cloth pulanda and sealed with the seal of SKS and seized vide memo Ex.PW1/C. What have you to say?
Ans. I was brought to Delhi on 8.4.96.
Q.22. It is further in evidence against you that on your instance a polythene bag was recovered from the roof of a room in adjoining house No. C1/1396 and C1/1403, Vacant Kunj, New Delhi and that polythene bag contains your blood stained pant and shirt and one handkerchief of white colour and three bangles were also recovered from the back pocket of your pant. The gold bangles were kept in a cloth parcel sealed with the seal of SKS. The blood stained pant, shirt and handkerchief was kept in the same polythene bag and the same polythene bag was kept in the cloth pulanda and sealed with the seal of SKS and both the sealed pulands were seized vide memo Ex.PW1/B. What have you to say?
Ans. It is incorrect.
O.25. It is further in evidence against you that IO also obtained the result of the finger prints as he has sent the chance print of you accused Tika Rare, to Finger Print Bureau and the report is Ex.PW3/A. What have you to say?
Ans. I do not know.
37. In the case of Kuldeep Singh and Ors. v. State of Rajasthan reported as , the Supreme Court made following
Para 17: It must also be noted that in her statement under Section 313, Cr.P.C. Appellant 4 denies that she had left the Ramleela function. The evidence of witnesses clearly establishes that she had left the Ramleela programme.
Para 18: In the case of Swapan Patra v. State of W.B.  it, has been held that it is a well-settled
principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. The same principle is reiterated in the case of State of Maharashtra v. Suresh . In this case it has been held that a false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. It is held that in a situation like this a false answer can also be counted as providing a missing link for completing the chain.
38. In the present case questions 1, 2 and 3 put to Tika Ram were of the following nature:
Q. 1 Have you heard the prosecution evidence and understood the same?
Q.2 It is in evidence against you that in between the night of 13/ 14.1.1996 at Flat No. C-1396, Vasant Kunj, New Delhi, you committed murder of Satya Prakash Sharma, Smt. Shobha Sharma, Punit, Charu and Dinesh intentionally causing such bodily injuries with sharp /blunt objects which were sufficient in the ordinary course to cause the death of aforesaid persons. What have you to say?
Ans. It is incorrect.
Q.3 It is further in evidence against you that on 8.4.1996 at the time of arrest on bus stand Ruparia, Uttar Pradesh, you dishonestly were found in possession of a leather jacket and camera, belonging to the deceased Punit after having knowledge and belief that the aforesaid articles were removed by you Along with three gold bangles from the possession of the deceased persons Smt. Shobha Sharma and Punit, after committing the murder of the aforesaid deceased persons. What have you to say?
Ans. It is incorrect.
39. Further question 33 put to Tika Ram and answer thereto reads as follows:
Q.33 Do you want to say anything more?
Ans. I was with the service of deceased and was on leave from 5.1.96 and on the day of incident I was in my place and has no concerned with the alleged offence because I am falsely implicated.
40. Questions 1, 2 and 3 would clearly show that the prosecution is alleging that Tika Ram committed the offence meaning thereby he was, naturally, present at the scene of crime also when it was committed by him. From answer to question 33 it would be clear that Tika Ram understood that his presence is alleged at the time of occurrence and he is implicated for the said occurrence and therefore in his answer he replied that he was not there as he was on leave from 5th January, 1996 and on the date of incident he was in Nepal. Therefore, it cannot be said that any prejudice caused to the accused by not putting a specific question about his presence. When the prosecution is implicating Tika Ram in the crime committed it is more than obvious that allegation would be that he was present at that place as well. Therefore, this submission of Mr. Mahajan would also be of no avail.
41. The sequence established by the prosecution from testimony of the aforesaid witnesses would be somewhat like this:
PW-10 visits the house of Sharma at about 9 p.m. and remains till 10 p.m. It is Lohri day. At that time, no doubt, PW-10 does not see Tika Ram who may presumably be out somewhere. PW-10 leaves the house at 10 p.m. Family goes in the neighborhood to celebrate Lohri which is organized by the people of the localities at 10 p.m. and they came back at around 10.30 p.m. PW-6 visits the house of Sharma at that time and finds Tika Ram there. He leaves the house at 11 p.m. and at that time Tika Ram is sleeping. He is the last person who met the family members on the fateful day. Thereafter family members also go for sleep. In the morning all family members and domestic servant are found dead. However, Tika Ram is not present at the scene of crime.
42. With this, we come to the immediate conduct of Tika Ram, namely, that of:
43. Once we hold that Tika Ram was present on the fateful night i.e. 13th January, 1996 in the house of Sharma and was last seen by PW-6 sleeping in the house at 11 p.m. and when the killings were spotted on the next date, he was missing from the house, inevitable conclusion is that he absconded there from. This conduct of the accused would be relevant under Section 8 of the Indian Evidence Act which reads as under:
8. Motive, preparation and previous or subsequent conduct--Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any act in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, if relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
44. As noted above, many witnesses on first opportunity after spotting the murders quipped as to where was Tika Ram. His abscondence from scene, therefore, would create suspicion and point out an accusing finger. It was held by the Supreme Court in the case of State of U.P. v. Anil Singh reported as as under:
Para 6: The Investigating Officer then directed his officers to search and arrest the accused. But accused was not traceable in the town. The proceedings were initiated under Section 82/83, Criminal Procedure Code. On 17 November, 1977, he obtained warrant of arrest (Ex.Ka.17). The Sub-Inspector Sital Prasad was deputed to execute the warrant. On 21 November, 1977 proclamation and warrant of attachment (Exs.Ka.18 and Ka.19) were obtained and executed properly. The property of accused was attached under Memo Ex.Ka.20. It was only thereafter the accused appeared in the Police Station, Kotwali. On 26 November, 1977 he was arrested at Kotwali.
Para 26: The post crime conduct of the accused cannot also be lost sight of. The plea of alibi has not been pursued. It has been proved that the accused was not available in the town after the occurrence till 24 November, 1977. It is on record that the accused could not be traced and proceedings under Section 82/83, Cr.P.Code were initiated. The warrant of arrest issued against the accused returned unserved. Thereafter proclamation was made and his property was attached. That was on 23 November, 1977. He appeared on the next day in the Police Station, Kotwali. That has been proved by the general diary entry (Ex.Ka.22) of the said Police Station.
45. Legal position is restated in the case of State of Karnataka v. Lakshmanaiah, reported as in the following terms:
The Trial Court relying upon the testimony of P.W.14, P.W.20 and P.W.22 came to the conclusion that the circumstance relied upon by the prosecution to the effect that the respondent was going towards bus stand holding suit-case in his hand at about 6.30 p.m. on January 12, 1979 was proved. There is no discussion, not even mention, of this circumstance by the High Court. According to us, the Trial Court rightly relied upon this circumstance in connecting the respondent with the crime. The High Court has also not discussed the circumstance that the respondent was absconding till the night of January 16, 1979 when he was arrested which is surely a link in the chain of circumstances to establish that the respondent alone had committed the offence of murder of his wife. All the above discussed circumstances would prove that the respondent alone had killed his wife Nagarthnamma and the prosecution brought home the offence against the respondent beyond any shadow of doubt.
46. In Balwinder Singh v. State of Punjab, reported as , the Supreme Court held:
Para 8: Learned Counsel for the appellant strenuously contends that the only circumstance established against the appellant is proof of the fact that he was the person who hired the taxi i.e., the circumstance of being 'last seen together'. According to him, the incriminating circumstance of being 'last seen together' without more is not sufficient to raise an inference of guilt of the appellant. It is said that the Court could not discard the possibility of the appellant having left the taxi after reaching Batala. We are not at all impressed with this argument. It is not merely that the prosecution has proved the circumstances of the appellant being 'last seen together' but there are other circumstances as well. These circumstances may be briefly recalled. The testimony of Kashmira Singh, PW 3 clearly shows that the co-accused Balwinder Singh and Amar Singh who were apprehended by PW 5 were two of the three companions of the appellant when he came and hired the taxi of the deceased Santosh Singh. It is a matter of common knowledge that taxi-drivers are prone not to go long distances at the instance of a stranger. It is because of the appellant Balwinder Singh was the person known to the deceased Santosh Singh that he agreed to take the appellant and his three companions to Batala that evening. These two companions of the appellant were apprehended with the taxi on the outskirts of Malerkotla town armed with a loaded country-made 12 bore pistol. Further, the fact that the appellant absconded from his village Supariwind and could not be traced for about a week till he was apprehended near the District Court, Amritsar on August 2, 1973 along with the accused Balkar Singh. His false plea of alibi and denial of the fact of his arrest at the District Court, Amritsar are also incriminating circumstances giving rise to an inference of guilt. These circumstances, taken together with the fact that the appellant was the person who hired the taxi lead to no other inference than that of guilt of the appellant and they are wholly inconsistent, with his innocence.
47. This conduct of Tika Ram, fleeing from the scene of occurrence, coupled with his raising plea of alibi which is proved to be false and even denial of arrest (as we would see later) are the factors which would give rise to incriminating circumstances against him.
48. Learned Counsel for Tika Ram submitted that abscondence by itself, without any other evidence, is not an incriminating circumstance because even a innocent man on coming to know that police is on look out for him, may feel panic and try to evade his arrest which is a natural human conduct. For this proposition he relied upon the judgments of the Supreme Court in the cases of Matru @ Girish Chandra v. The State of Uttar Pradesh reported as 1971 Supreme Court Cases (Cri) 391; Thimma and Thimma Raju v. State of Mysore reported as 1970 Supreme Court Cases (Cri) 320; and Datar Singh v. State of Punjab reported as 1975 Supreme Court Cases (Cri) 530. No doubt if the prosecution rests its case only on abscondence, it may not be of much help to the prosecution and the prosecution is bound to prove the connectivity of the crime with accused by other cogent evidence. However, what is emphasised here is that when we examine other evidence, as led by the prosecution, the same would be examined in the light of aforesaid two facts proved, namely, presence of the accused in the house of Sharma on the night of 13/14th January, 1996 and his absence when the crime came to light and finding out that he was absconding. This would be relevant piece of evidence when other evidence accusing the convict is analysed.
49. Now we proceed to examine the evidence that is sought to be relied upon by the prosecution.
50. As mentioned above, entire evidence led is circumstantial whereby prosecution tried to prove the guilt of the accused and tried to connect Tika Ram with the commission of the crime. The evidence which is led is on the following aspects:
1. That accused was re-employed as a domestic servant and was present on 13.1.96 on the date of incident and pursuant thereto he absconded.
2. The fact that he made a disclosure statement leading to recovery of blood-stained clothes worn by the accused at the time of alleged murder.
3. The recovery of the key of the lock, which he used for locking the house before escaping.
4. Recovery of 3 bangles from the pocket of recovered pant and blood stained shirt was belonging to accused. The recovery was allegedly made at his instance from roof between H.No. 1403 and 1396.
5. The evidence from scene of occurrence-the recovery of hammer from the top of wood almirah, from the scene of crime.
6. Medical post mortem examination of the five deceased persons. The medical reports show death by head injuries by blunt force on head and face. As per opinion of post mortem doctor, injuries are possible with the hammer recovered from the spot.
7. Blood stains of 'AB' group on hammer. Blood-stains of A,B and AB group on the pan t, shirt and handkerchief recovered at the instance of the accused.
8. The finger prints of accused matching with the lifted chance prints from the broken almirah.
9. Witnesses of arrest.
51. (1). In so far as first aspect is concerned, we have already dealt with the same in some detail hereinabove and our conclusion is that the prosecution has been able to establish the presence of Tika Ram on 13th January, 1996 and further that he was absconding from the scene of crime.
52. (2). Tika Ram, after he was arrested, made a disclosure statement. There is some controversy regarding the manner of his arrest. According to the prosecution Tika Ram was apprehended near Indo-Nepal border on 8th April, 1996 at around 5.30 p.m. On personal search (Ex.PW 19/A) jeans pants, shirt, leather jacket and camera (Ex.PW19/B) were recovered. Constable Rupesh Kumar (PW 19) has testified to the aforesaid effect and has further stated that the accused disclosed that these articles belonged to deceased Punit. Ex. PW 19/C is the disclosure of Tika Ram. Inspector Surinder Kumar (PW 24) has also deposed that he had arrested Tika Ram from Ruparia near Indo-Nepal border. As per his statement, recovery was made pursuant to disclosure statement of Tika Ram which is Ex.PW19/C. These two witnesses have testified the arrest of Tika Ram from a particular place and the manner in which he was brought to Delhi and thereafter, he got the various articles recovered. Though a feeble attempt was made to contend that the arrest of Tika Ram was not at that place nothing could be pointed out to shake the aforesaid testimony. Therefore, we proceed on the basis that Tika Ram was arrested on 8th April, 1996 at Ruparia and thereafter brought to Delhi and from there he was taken to the scene of crime for recovery of the articles. In his disclosure statement, apart from narrating the incident as it took place, (of which we are not taking cognizance as that part would be impermissible in evidence because of provisions of the Section 25 of the Indian Evidence Act) he disclosed that he could point out the hammer, knife, screw driver, Punit's pant, shirts, envelope containing his blood stained clothes, all the three gold bangles and the key of the main gate of the flat and got the same recovered. Thereafter, he led the police party along with certain other persons to the site of incident and got the aforesaid articles recovered. Thus that part of the disclosure statement which led to recovery may become relevant and can be taken into account as relevant piece of evidence by virtue of Section 27 of the Indian Evidence Act. To this aspect, we shall revert to after a while, while discussing the recoveries made pursuant to the disclosure statement of Tika Ram.
53. (3). Recovery of key of the lock: According to the prosecution, the accused had made a statement that the key of the house was thrown on the Mumtee of the terrace. Pursuant to this disclosure statement the key was recovered from the said place. The evidence to this effect, which is led by the prosecution on which prosecution relied is the following:
(i) PW 1, Pradeep Sharma in his evidence has testified that accused Tika Ram in his presence has pointed out the place where he had thrown the keys of the house after committing the murders.
(ii) PW 19 has also corroborated statement of PW 1 that the key of the house was recovered from the roof.
(iii) PW 21 and PW 24 in their statements have also testified to the fact that one key was recovered pursuant to the disclosure statement of accused Tika Ram.
Learned Counsel for Tika Ram challenged the aforesaid testimony and the alleged recovery of key by submitting that as per the disclosure statement the accused disclosed that he could get the key of the flat recovered from the roof of the staircase. However, PW 1 Pradeep Sharma, the only independent witness to the recovery, stated that the accused led the police party to the Mumtee of the same flat and got recovered the key of the main door. He also testified and clarified that one constable had picked up the key from the Mumtee of the window of the flat at pointing out of accused. Constable Rupesh Kumar PW 19 gave a different version that the key was recovered from the Thaila where from clothes and bangles had been recovered. Another version that the keys were recovered from the roof of the flat comes from PW 21. The same witness changes the place to stairs roof. The IO stated that the key was recovered from the rooftop of house No. C 1/1396 which is the house of the deceased. Thus there are serious discrepancies with regard to the actual place of recovery of the key. The place of recovery varies from Mumtee of window to Thaila to roof of flat to roof of stairs and as such the said recovery cannot be relied upon and in fact shows that the said recovery is actually fabricated for which reason the witnesses could not give consistent version. [Refer: Kuldip Singh v. State of Punjab, 2002 (3) JCC 1645]. Thus his submission was that it is fabricated evidence by the IO.
However, this argument does not convince us. Evidence on record would show that except for the slight ambiguity in the statement of PW 19 regarding the place of recovery of the key, there is no contradiction in the statement of the witnesses that the key had been got recovered from the roof top or Mumtee. Importantly, the recovery of the key at the instance of the accused has not been denied in his statement under Section 313 in question No. 21. He just stated that he was brought to Delhi and there is no clarifications regarding recovery of key at his instance. With passage of time, if one witness has not been clear in his testimony, would not take away the credibility and consistent testimony of other three witnesses. The recovery of key is from the Mumtee of the top floor of the flat. The Mumtee is that portion of the roof top which is visited too infrequently. The Supreme Court in the case of State of Himachal Pradesh v. Jeet Singh, has held that it is a fallacious notion that when recovery of any incriminating article was made from a place which is open and accessible to others, it would violate the evidence under Section 27 of the Indian Evidence Act. An object can be concealed in places which are open or accessible to others. The crucial question is not whether the place was accessible to others or not, but whether it was ordinarily visible to others, If it is not, then it is immaterial that the concealed place is accessible to others. It is well-settled that the discovery of fact referred to in Section 27 is not the object recovered but the fact embraces the place from the which the object is recovered and the knowledge of the accused as to it. Therefore, recovery of key is established.
54(4). Recovery of three gold bangles: Prosecution further states that there was recovery of three gold bangles from the pocket of recovered pant and also the blood stained shirt pursuant to the disclosure statement of the accused. According to the prosecution Tika Ram had kept the pant with other clothes in the polythene bag and thrown the said bag on the house built in between his master's flat and flat No. 1403. He got the said bag recovered and from the bag blood stained pant, shirt and handkerchief were found. In the pocket of the pant three bangles were also found. Witness to these recoveries were PW1, PW 19 PW 21 and PW 24. This recovery is challenged by the defense on the ground that it does not appeal to reason that keeping in mind the planning that had gone into the murders, after the commission of the offence, the accused would have casually left his blood stained clothes on the roof of the house so that they could be easily recovered later by the police. Reliance is placed on Thulia Kali v. State of Tamil Nadu, 1972 SCC (Cri) 543 and it is suggested that this clearly speaks of fabrication of evidence in order to falsely implicate the accused. It is sought to be pleaded that had the clothes been his own and that too blood stained, would he not have also thrown them at a distant place or destroyed them like he allegedly did with two weapons of offence. It is also pointed out that it had come in the evidence of various witnesses that the roof of the flat in question had been visited earlier. It is also the case of the prosecution that dog squad was called on the spot. Had the clothes and bangles been lying on the roof as alleged, the dogs must have followed the smell of the blood of the deceased on the clothes or of the trail of the assailant and taken the investigating team to the roof to effect the recoveries. Reliance in this regard is placed upon in the case of Gambhir v. State of Maharashtra, 1982 SCC (Crl) 431.
55. Challenging the recovery of bangles, his submission was that these are planted and it was borne out from the testimony of PW1 wherein he states that a pair of bangles were also removed by the IO from the body of his sister-in-law Shobha Sharma. However, these bangles do not find any mention in the seizure memo Ex PW 15/A. He argued that alleged recovery should be suspected as a crucial note of caution has been sounded against such ingenuities of police officers while making use of recoveries allegedly affected in the garb of Section 27 of Evidence Act in the case of State of Haryana v. Rant Singh, He
also submitted that it was unbelievable that if a man who commits five murders in a meticulous manner, would forget the only jewellery item stolen. He thus emphasized that the fruits of the crime would not be forgotten or left by the assailant at the scene of crime itself so that it could be got recovered through him by the police three months later when the accused is apprehended. Reference was made to the Supreme Court judgment in Surender Pal Jain v. Delhi Administration, 50 (1993) DLT 51 (SC)=1993 SCC (Cri) 1096 wherein it is held that if evidence in support of recovery of ornaments is found to be not reliable, which is the most important circumstance, then the entire chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution case as a whole.
56. The submission of learned Counsel is based more on conjectures and hypothesis. Any person in place of the accused, after committing these murders, would not like to carry the blood stained clothes with him. Therefore, he wanted to dispose of the said clothes, and hide the same in some place in the building itself rather than carrying it with him even for some time outside the building. Therefore, it is possible that thought may have occurred to him to throw these clothes on the roof of Mum tee which is generally not visited. In any case, why Tika Ram chose that place could be known to him only. It may be that the place he chose was not very appropriate to suit his purpose. As against this hypothesis, we have tangible evidence with us, produced by the State which proves Ex.P-1/B.
(i) PW1 has stated that accused had got recovered a polythene bag containing some clothes belonging to him, in which one was pant of brown colour and a light green coloured shirt with a handkerchief, search of the pocket of the pant produced 3 gold bangles.
(ii) PW 19 has stated that the accused led the police party to the common roof of the stairs of flat Nos. 1396 and 1403 and got recovered a polythene of white colour in which a pant, shirt of green colour and gold bangles which were placed on the pocket of the pant.
(iii) PW 21 had confirmed that the accused had got recovered a polythene bag upon which Pal Bros. was written. The polythene bag contained a shirt, pant, handkerchief and 3 gold bangles were recovered from the polythene bag.
(iv) PW 24 stated that at the instance of accused a polythene bag was recovered from the roof of the room adjoining house Nos. C1/1396 and C1/1403. The polythene bag contained blood stained pant, shirt and while handkerchief and 3 gold bangles were recovered from pocket of the pant.
57. All the witnesses have established that the recovery has been made from the roof of the room in the adjoining house Nos. C1/1396 & C1/1403. It is pertinent to mention that though all the recoveries are from open place, they had been concealed and not accessible to all. The accused's contention that the recovery of bangles do not inspire any confidence is thoroughly misconceived. The recovery of bangles is from the pocket of the pant which had been put in a polythene bag and recovered pursuant to the disclosure statement made by the accused and this aspect has further been proved by the witness supra. With regard to the recovery of camera a suggestion was put to PW1 that Punit had exchanged his camera with the Japanese camera of Tika Ram and Rs. 500/-. This suggestion is denied. It would generally be unbelievable that a servant would have such a costly camera and he would be tempted to exchange his camera. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of Evidence Act is by way of confession made in police custody, which distinctly relates to fact discovered is admissible in evidence against the accused. The clothes have been recovered pursuant to the disclosure statement of the accused. In Pulukuri Kottaya v. Emperor, AIR 1947 PC 67, it has been held that the condition necessary to bring Section 27 into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be disposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. If a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence. The fact discovered embraces the place from which the object is produced and knowledge of accused as to this and information given must relate distinctly to this fact. Any information which served to connect the object discovered with the offence charged was admissible under Section 27 of Evidence Act. [Refer: Pershadi v. State of U.P., ]. In State of Maharashtra v. Damu,
, the Supreme Court held that the fact discovered
envisaged in Section 27 of Evidence Act embraces the place from which the object was produced and the knowledge of the accused as to it. In Bodhraj v. State of J.K., , the Supreme Court held
that 'facts discovered includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to that fact.
Therefore, recoveries, including that of bangles are proved by clinching evidence. The argument of learned Counsel for the defense that it may have been planted is far fetched and based on surmises.
58.(5). Evidence -- From the scene of occurrence: As per the statement of PW 14 Constable Om Prakash, finger prints had been lifted from the scene of occurrence and on searching, blood stained hammer was found from the room of Mr. Sharma, lying on top of a wooden almirah. A dog was roaming in house and lock of almirah had been found broken and articles lying scattered. To the same effect are the testimonies of PW 15/Head Constable Ved Prakash and PW 22/SI Sushil Kumar. Seizure memo of the hammer is proved as Ex.PW 15/B. It is also stated by PW 19 that Tika Ram had led the police party to the flat the deceased persons and had pointed out the almirah on which he had thrown the hammer. Thus what is sought to be proved by the prosecution from the aforesaid evidence is:
(a) recovery of hammer and (b) lifting of chance prints Q13 matching with the finger prints of the accused.
As far as recovery of hammer is concerned, this recovery is challenged by the defense by pointing out that this recovery is not free from doubt as in the seizure memo Ex. PW 15/B, the hammer is shown at item No 16 but the writing in the area is squeezed to make fit the contents of the four lines, which shows that this has been incorporated later by the I.O. It was also argued that the prosecution tried to show that on 10.4.96, the accused vide Ex. PW 19/D pointed to the wooden cupboard wherein the said hammer had been kept. But the memo regarding pointing out Ex. PW 19/D carries no legal value as pointing out by the accused of the place where the hammer was thrown amounts only to rediscovery of a fact which was already in the knowledge of the police earlier as the said hammer had already been recovered on 15.1.96. Such rediscovery is not a direct outcome of information given by the accused and as such is not admissible under Section 27 of the Indian Evidence Act. Reliance in this regard is placed on Vijender v. State of Delhi, . The learned Counsel also submitted that it was the duty of the prosecution to lift the fingerprints from the hammer. Failure to do so is a vital factor to be taken into account against the prosecution. It is fatal to the prosecution as has been held in Oswami v. Mahender Singh, 1998 SCC (Cri.) 984 and Datar Singh v. State of Punjab, 1975 SCC (Cri) 530.
59. With regard to chance prints, it was submitted that alleged matching of chance prints Q13 found on the outside of almirah with specimen SI taken from the accused was of no consequence as the accused was working as a servant in the same house and thus there was great possibility he might have opened the almirah for putting or taking out clothes of his masters. Therefore, it was argued, that it could not be an incriminating circumstance but only a neutral circumstance consistent with the innocence of the accused. Reliance was placed on the judgment in the case of Kuldeep Singh v. State of Delhi, 109 (2004) DLT 190 (SC)=2004 (1) Crimes (SC) 13. That apart, it was submitted that lifting of Q 13 itself was surrounded with suspicion and in fact points towards clear fabrication. This story of Q-13 crops up for the first time only in the evidence of PW-9 in the Court, but is conspicuously absent in all statements recorded by the police. The learned Counsel also argued that there were certain discrepancies in his statement. In Ex.PW9/DA, there is mention of taking only 12 chance prints. Witness has made improvement in his statement in the Court. This he tried to demonstrate by pointing out that PW 9 Shri K.N. Singh, Finger Print Expert stated that finger prints were lifted from the spot. This witness further deposed that thereafter the bulb of the Omni Print had fused, on which they informed their office to send other mini-laser i.e., Poly Light. Accordingly, Amar Pal Verma came to the spot Along with mini-laser and with them Constable Satyawan, Police Photographer had also come to the spot. Thereafter Constable Satyavan re-photographed that chance prints Q1 to Q5 and Q 8 to Q12 and also allegedly took the photographs of chance prints Q 13 and 14. This entire story of Omni Print bulb getting fused, and thereafter two more chance prints including Q-13 having been lifted/ taken is a complete afterthought and a material improvement by this witness with regard to his statement given to the Police under Section 161, Cr. P.C. with, which he has been duly confronted.
60. He also submitted that the report regarding lifting of Q13 has not been legally proved either. The report is allegedly prepared by Amar Pal Verma, who has not stepped into the witness box nor was cited as a witness. It was submitted that neither PW-9 nor PW 24 was competent to prove this report as they have no where stated in their evidence that the report was prepared in their presence or they identify the signatures of Amar Pal Verma as they have seen him writing or signing the report. In such a situation the only competent witness to prove this report was Amar Pal Verma himself, who has been withheld/not produced by the prosecution deliberately.
61. His submission was that once this report Mark A is considered to be legally not proved on record it cannot be looked into at all and as such there remains no evidence on record with regard to the alleged lifting of Q-13-the only chance print that has matched with the so called specimen of accused Section 1.
62. It was also the submission of learned Counsel for Tika Ram that even the alleged specimen finger print (S1) of Tika Ram was not proved through cogent evidence. There is no document worth the name proved on record to show as to when, in the presence of which witnesses, at which place and at what time the specimen finger print (S-1) of the accused were taken. Mere ipse dixit of the IO that he took the specimen finger prints of the accused is not enough in the absence of cogent evidence in support thereof. To dispel any suspicion as to its bona fides or to eliminate any possibility of fabrication of evidence, it was eminently desirable that the finger prints of the accused were taken before or under the orders of a Magistrate. Reliance is placed on Mohd. Aman v. Babu Khan, ; Mahmood v. State of U.P.,
; Rakesh Kumar v. State, 109 (2004) DLT 130. He also submitted that there is inordinate and unexplained delay in sending the chance prints and alleged specimen finger prints for comparison, for which delay there is no explanation forthcoming on record. The chance prints were allegedly taken on 15.1.96. The prints were sent for comparison only on 9.5.96 as disclosed from document Ex.PW3/A. The inordinate delay, without any explanation therefore, adds to the suspicion. [Refer: Santa Singh v. State of Punjab, , Baldev Singh v. State of Punjab, 1991 SCC (Cri) 61.
63. These submissions were refuted by learned Counsel for the State who extensively referred to the evidence led to prove taking of chance prints including Q13 as well as finger prints of the accused (S1). We may refer to this evidence at this stage. It has come on record that the finger print experts Were called at the spot and chance prints have been taken from wherever they were available. If no chance prints have been recovered from the hammer, it would not falsify the prosecution case, as it is not necessary that finger prints should be available on each and every item. The hammer is connected with the offence as it was recovered from the place of occurrence and because of the opinion of the post mortem doctor, Dr. Arvind Thergaonkar, who conducted post mortem of Punit, PW 17 who had opined that the injuries inflicted on the deceased persons were possible with the hammer. This witness has further opined that on the basis of nature of injury, the nature of weapon can be ascertained. This witness on being shown Ex. PW 18/1 (the hammer) has confirmed that this weapon could have caused injury Nos. 7, 8, 11, 13, 14 and 20 mentioned in the post mortem report. PW 18 Dr. A.K. Sharma, who conducted post mortem on deceased Shobha Sharma and deceased Dinesh has opined that the injuries on them which were caused by blunt object could be caused by the hammer. For finger prints a seizure memo is never prepared, the fact is mentioned in the case diaries, which has been duly done in the case at hand. Not only has the finger prints of the accused been taken, a total of 456 specimen signatures had been provided to PW 3, SI Avdesh Kumar, Finger Print Bureau. The chance prints of the case had been given to him for comparison, which were 14 in total. He had tallied the same with the specimen and had given report Ex. PW 3/A. PW 21, SI Diwan Chand Sharma has testified that the finger prints of the accused were taken and the same were deposited in the FSL, Malviya Nagar by him. He further states that so far as the specimen prints of the accused remained in his custody, nobody had tempered with the same.
64. PW 24, Inspr. Surinder Kumar Sharma has stated that he had sent the finger prints of the accused and also obtained them. Thus the defense had not disputed that they were not the specimen signatures of the accused or that the chance prints were already there. The prosecution would also be correct in pointing out that the accused in his statement under Section 313, Cf .P.C. had been put the question that it was in evidence against him that the IO had obtained the result of the finger prints and this chance print had been sent to the Finger Print Bureau. No explanation has been given by him. He simply answered by saying 'I do not know'. There has been no suggestion from the accused that these were not his specimen signatures. PW-3 has categorically stated that the chance print mark Q-13 was identical with the right thumb mark, specimen SI belonging to accused.
65. PW-9 K.N. Singh, Finger Print Expert, Finger Print Bureau has inspected the scene of crime and developed 12 chance prints. As the bulb of omni print had fused, Mr. Aman Pal Verma, Finger Print Expert came with mini laser and Ct. Satyawan re-photographed chance print mark as Q-1 to Q-5 and Q-8 to Q-12 and took photographs of chance prints Q-13 and Q-14 in his presence. His report and report of taking chance prints is Ex. PW9/A. Chance prints Q-13 and Q-14 have been developed by PW9. Report of Aman Pal Verma as exhibited by the IO as Ex. PW29/B . There is no ground to disbelieve these witnesses.
66. The contradiction in time is not material as all the witnesses have deposed that the Finger Print Experts were called. In Phool Kumar v. Delhi, , it was held that clinching evidence against the appellant was his thumb impression on the Kunda of the cash box. This judgment would be an answer to many of the submissions of learned Counsel. In that case report of Finger Print Expert was used as evidence by the prosecution without examining him in the Court. The report was otherwise proved. It was conclusively proved to be opinion of the expert. The report of the expert was used as evidence by the prosecution without examining him in Court. Neither the Court, nor the prosecution or the accused filed any application to summon and examine the expert as to the subject matter of his report. The Court was bound to summon the expert, if the accused would have filed any such application for his examination. Not having been done, the Supreme Court held that the grievance of the appellant apropos the report of the expert being used without his examination in Court, made in the High Court, has no substance. Again in Shakariya v. State of Rajasthan, AIR 1978 SC 1248, it was observed that police is competent under Section 4 of Identification of Prisoners Act to take specimen finger prints of accused and it is not necessary to obtain such order from the Magistrate. That is the legal position provided in Sections 4 and 5 of the Identification of Prisoners Act, 1920. Thus specimen finger prints of accused can be taken by police. The order need not be obtained from the Magistrate.
67. Ms. Gupta submitted, and rightly so, that for appreciation of evidence led by the prosecution one has to keep in mind the principles laid down by the Supreme Court in the case of State of U.P. v. Anil Singh reported as . Her submission was that it was not correct to reject prosecution version for want of corroboration of independent witnesses if the case made out is otherwise true and acceptable. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence, unless there is reason to believe that the inconsistencies or falsehoods are so glaring that they utterly destroy confidence in the witness. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is persecuted. A Judge also presides to see that a guilty man does not escape. One principle is as important as other. Both are public duties which the Judge has to perform.
68. In State of U.P. v. Ashok Kumar Srivastava, , it was held that prosecution evidence must not be rejected on the slight doubt because law permits rejection if the doubt is reasonable and not otherwise, if the circumstances relied upon must be found to have been fully established and cumulative effect of all facts so established, must be consistent with hypothesis of guilt. To same effect is the judgment in the case of State of Maharastra v. Krishnamurti Laxmipati Naidu, wherein it was observed that minor variations in examination-in-chief and cross-examination, does not affect credibility of witnesses.
Therefore, we do not agree with the defense Counsel that Q.13 chance print is not worthy of credence and cannot be relied upon.
69. We are also of the opinion that the prosecution has been able to prove that committing of five murders was the handiwork of Tika Ram. Relying upon the statements of PW 7/Dr. G.K. Choubay who conducted post mortem examination of Mr. S.P. Sharma and Ms. Charu, PW-17/ Dr. Arvind Thergaonkar who conducted post mortem of deceased Punit and PW-18/Dr. A.K. Sharma who conducted post mortem of Dinesh and Mrs. Shobha, the prosecution submitted that these post mortem reports and the medical evidence connected Tika Ram to the offence. Dr. G.K. Chobay onducted post mortem examination of deceased S.P. Sharma on 16.1.96 at 12 p.m. The report is Ex. PW 7/A. As per his report, there were 13 external injuries and all the clothes were blood stained. Injuries were ante-mortem in nature. Cause of death ascertained was : due to coma as a result of head injury and sufficient to cause death in ordinary course of nature. He stated that injury Nos. V, VI, IX, X could be produced by sharp edged weapon and injury No. IV could be produced by a pointed weapon. Rest of injuries could be produced by blunt object. Injuries 7 and 8 on deceased could produce individually as well as collectively the death. Injury 11 also could produce death individually. These injuries were such as were likely to cause instantaneous death. After receiving injury Nos. 7, 8 and 11, the patient could have become unconscious and passed into deep coma resulting into death. Each of the aforesaid individual injury is likely to cause instantaneous death. In view of the multiple injury suffered by the deceased it is highly unlikely that he could have produced any noise. The loss of blood in paratonial cavity was 1 ltr. This loss of blood was sufficient to cause shock. According to the statement of PW-7 Dr. G.K. Choubay who also conducted post mortem examination of deceased Charu, daughter of deceased S.P. Sharma on 16.1.96 at 2.00 p.m and proved the report as Ex. PW 7/B, there were 14 external injuries. The clothes were blood stained and were removed and duly preserved. The injuries were ante-mortem in nature. The post-mortem doctor opined the cause of death due to coma as a result of head injury and sufficient to cause death in the ordinary course of nature. Injuries 2, 3, 5, 9, 13 could be produced by sharp edged weapon. Injury No. 6 could be produced by pointed object. Rest of injuries could be produced by blunt weapon of offence. Similarly PW-17 Dr. Arvind Thergaonkar who conducted post mortem of deceased Punit, son of deceased Satya Prakash on 16.1.96 at 11.00 p.m opined that there were 20 external injuries. As per the opinion of this post mortem doctor, all injuries were ante mortem in nature. Cause of death was cranio, cerebral damages consequent upon, blunt sharp and penetrating weapon. Injury Nos. 1, 2, 3, 4, 5, 6, 7, 10, 12, 16 caused by sharp weapon. Injuries 7, 8, 11, 13, 14 and 20 were caused by blunt weapon. After receiving these injuries it would not have been possible for the deceased to raise alarm for help and could have caused loss of consciousness. Injuries 17 and 18 were caused by penetrating weapon. Injury Nos. 7, 8, 11, 13, 14 were sufficient to cause death in ordinary course of nature. The doctor also expressed that the injury could be caused by blunt weapon like hammer or a Danda with a club. On being shown hammer (Ex. PW 18/1) he was of the view that this weapon could have caused injuries 7, 8, 11, 13, 14 & 20. Likewise, PW 18 Dr. A.K. Sharma, CMO, Post mortem doctor who conducted post mortem examination of deceased Dinesh, servant of deceased S.P. Sharma has expressed his opinion that death was due to head injury following injury No. 4 which is sufficient to cause death in the ordinary course of nature. The injury caused by blunt object on Dinesh was injury No. 4. The deceased was in deep slumber at the time of incident and since there was less resistance, the injuries inflicted on him are few: He also conducted post mortem examination of deceased Mrs. Shobha Sharma, wife of deceased S.P. Sharma on 16.1.96 at 12.40 p.m and opined that injuries 1, 2, 7 were caused by blunt weapon. Injuries 3, 4, 5 were caused by sharp edged weapon. Cause of death was head injury following injury No. 7, which was sufficient to cause death in ordinary course of nature. The doctor also opined that the injuries on Dinesh and Mrs. Shobha which were caused by blunt object, could be caused by the hammer (Ex. PW 18/1). After receiving head injuries, person may die instantly or pass over. A single blow of the hammer on the head of the deceased would immediately lead to losing of consciousness, which provided him with further opportunities to cause more injuries on the person of the deceased. The blood-stains were of group 'AB' on the hammer and the blood groups of all the deceased were in the group of A, B and AB.
70. On the face of the aforesaid testimony the argument of the learned Counsel for the accused that it is highly unlikely that the accused has committed the offence in question as it does not appeal to reason that one man, all of 19 years and thin built, could by himself commit the murder of four fully grown people and a 9 year old servant without facing any resistance of anybody and without anyone being able to raise any alarm so as to invite the attention of the neighbours, does not hold any water. The judgments relied upon by him would not be applicable either.
71. Similarly reliance upon Modi's & Taylor's Medical Jurisprudence to contend that such an act on the part of one person is unlikely, would not be of any avail. The Supreme Court in Bhagwan Das v. State of Rajasthan, has held that it cannot be said that the opinions of the authors (in books on medical jurisprudence) were given in regard to circumstances exactly similar to those which arose in case now before us, nor is this a satisfactory way of disposing of evidence of an expert unless the passages which are sought to discredit his opinion are put to him.
72. We, therefore, agree with the findings of the learned Sessions Judge and uphold the conviction of the accused Tika Ram.
73. We now reach the stage where most vital and delicate question is to be decided, namely, the quantum of sentence. It is a case of life and death for Tika Ram. The learned Additional Sessions Judge has awarded death sentence to him and the prosecution wants to put him to gallows. He has appealed thereagainst. The law laid down by the Supreme Court in determining as to in what cases death penalty is to be inflicted is taken note of by the learned Additional Sessions Judge and has re-stated the proposition of law on this aspect adequately. He is right when he says that under Section 354(3) of Cr.P.C. the Court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is a general rule and only for special reason that is to say special facts and circumstances in the given case will warrant by passing of the death sentence. The Supreme Court has repeatedly held in a number of cases that it is not possible to make a catalogue of special reasons which may justify the passing of death sentence in a case (Balwant Singh v. State of Punjab, ). In deciding whether the case merits severe of the two penalties prescribed for murder, a history of relationship between the parties concerned, the background, the context, or the factual setting of the crime and the strength and the motives operating on the mind of the offender, are relevant circumstances. In the case of Machhi Singh v. State of Punjab, , it was held by the Supreme Court that a balance
sheet of aggravating and mitigating circumstances have to be given. However, weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised and it was also held that extreme penalty of death sentence can be inflicted only in gravest cases of extreme culpability and extreme brutality.
74. The learned Additional Sessions Judge then takes note of the judgment of the Supreme Court in the case of Om Prakash @ Raju v. State of Uttaranchal, IV (2002) CCR 352 wherein the Supreme Court upheld the death penalty which was given to a domestic servant who had eliminated three out of four inmates of the house in which he was employed and attempt was made to kill fourth person. The Supreme Court in that case also held that young age of the accused in itself was also not a relevant mitigating circumstance for opting lesser sentence unless the offender was a minor. He also noted the same treatment given to the accused by the Supreme Court in the case of Amrut Lal Someshwar Joshi v. State of Maharashtra, II (1995) CCR 3 (SC)=(1994) 6 SCC 1971. Thereafter learned Additional Sessions Judge drew the proverbial balance sheet of aggravating circumstances and mitigating circumstances. Aggravating circumstances were examined by him under the following indices: (1) preplanning; (b) brutality; and (c) facts shocking the collective conscience of the society whereas mitigating circumstances were to be examined under the heads: (a) motive; (b) provocation; and (c) some excuse and suddenness of the crime.
75. In so far as Aggravating circumstances are concerned under all the aforesaid heads, he found the case against Tika Ram. As he had left the job earlier and came for employment against with the same master second time, the learned Additional Sessions Judge inferred that he had come with a preplanned manner to execute the crime. He also concluded that Tika Ram planned the murders and chose a moment when all the family members were most defenseless as they were sleeping in assurance and comfort of their own house after celebrating the Lohri festival. He also came to the conclusion that the murders were committed in a most heinous and brutal fashion which should be clear from the multiple injuries on the bodies of those who died by enlisting in detail those injuries.
76. As far as mitigating factors are concerned, the learned Additional Sessions Judge could not find even a single such factor in favor of Tika Ram. According to him, on the day of incident there was no quarrel or insulting behavior or any even which could have provoked him into some kind of motive to attack the inmates; there was no dispute of wages or any property or any kind of any illicit relationship which normally provide a ground for crime; he had not shown such a mitigating circumstance even in his statement under Section 313 of Cr.P.C. From the learned Additional Sessions Judge concluded:
Para 12: The upshot of above discussion is that accused turned into a beast and I would rather say that he left behind, even the beast in his act. A beast would have satisfied its hunger, if it was hungry by eating blood and flesh of one of them and would have scared away the others. In the event of attack on it, the beast would have attacked by the instinct of self-preservation to save itself. In this case, the accused even left behind the beast as he attacked the deceased persons when they themselves were defenseless and there was no threat to the servant from any of them. He attacked those who provided food to satisfy his hunger. Perhaps this he did because he was a human being.
Para 13: The manner in which the entire family was eliminated indicates that the offence was deliberate and diabolical. It was pre-determined and cold blooded. It was especially devilish and drastedly. The innocent children, a servant and master of the house, his wife were done to a death with lethal weapons when they were fast asleep. The entire facts and circumstances of the killing are so diabolical coupled with extreme depravity and laced with extreme brutality that it has to be taken as rarest of the rare cases for purpose of inflicting death penalty. Nothing sort of this would satisfy the conscience of the Society which has been deeply shaken by conduct of the accused. The murders were cold blooded and brutal in which Shri Satya Prakash Sharma, the master of the house, who was working as Assistant Commissioner Manager in Greaves Cotton Company, his wife Smt. Shobha Sharma, who was working as Manager in Hindustan Vegetables Oil Limited, his daughter Ms. Charu Sharma aged about 21 years, her brother Master Punit aged about 15 years and servant Dinesh a young boy of 8 years have lost their lives. The extreme brutality with which the accused acted, shocks the judicial conscience.
77. He, thus, found that death sentence was the only punishment, and no lesser sentence than the death, which could meet the ends of justice in the present case.
78. Before commenting upon the approach adopted by the learned Additional Sessions Judge, giving death penalty to Tika Ram, it would be appropriate to take note of some more judgments of the Supreme Court to find out the judicial thinking at the apex level and the recent Court trends. The Supreme Court in the case of Bachan Singh v. State of Punjab reported as , which is still treated as a
milestone and starting point of what is needed to be discussed on this aspect, had considered the aggravating circumstances and mitigating circumstances for imposition of extreme penalty.
79. The Court also agreed that following were undoubtedly the relevant considerations and must be given great weight in determination of sentence:
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 be 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.
80. Over a period of time, the aforesaid principles are applied in the given facts situation coming up for consideration in individual cases. Underlying principle remains the same, namely, death penalty is the maximum punishment and it cannot be awarded irrationally, arbitrarily and must be awarded only in the 'rarest of rare cases'. Simply because, imposition of death sentence is the extreme punishment, which ends a human life. Therefore, restrictions have been imposed under the law to give special reasons for awarding the extreme punishment. The Supreme Court (per V.R. Krishana Iyer, J) in the case of Rajendra Prasad v. State of Uttar Pradesh observed these special reasons must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty.
81. However, a different stress was given by the Supreme Court in the case of Ravji @ Ram Chandra v. State of Rajasthan reported as I (1996) CCR 68 (SC)=1996 SCC (Cri) 225 when it held it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Harmonious approach can be adopted by choosing a mix of the two. While one should not altogether ignore the nature and gravity of crime, at the same time the convict is also to be kept in mind and it is to be seen as to whether he deserves death penalty. In Shankar Gauri Shankar v. State of Tamil Nadu, reported as II (1994) CCR 469 (SC)=(1994) 4 SCC 478 the Court held, the choice as to which one of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstances of that case and the Court has to exercise its discretion judicially and on well-regonised principles after balancing all the mitigating and aggravating circumstances of the crime. The Court should also see whether there is something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for death sentence. The nature of the crime and the circumstances of the offender should be so revealing that the criminal is a menace to the society and the sentence of imprisonment of life would be inadequate.
82. The scanner of various judgments of the Supreme Court down the line would show that among the aggravating circumstances, which call for increased severity of punishment are: the manner in which the offence is perpetrated; whether it be by forcible or fraudulent means, or by aid of accomplices or in the malicious motive by which the offender was actuated, or the consequences to the public or to individual sufferers, or the special necessity which exists in particular cases for counter-acting the temptation to offend, arising from the degree or expected gratification, or the facility of perpetration peculiar to the case.
83. Circumstances which are to be considered in alleviation of punishment are : (1) the minority of the offender; (2) the old age of the offender; the condition of the offender, e.g., wife, apprentice; (4) the carder of a superior military officer; (5) provocation; (6) when offence was committed under a combination of circumstances and influence of motives which are not likely to recur either with respect to the offender or to any other; (7) the state of health and the sex of the delinquent. (Irresistible impulse has also been accepted. (Gulab Sonba v. State of Maharashtra, 1972 SCC (Cri) 179; Nafe Singh and Anr. v. State of Haryana, 1972 SCC (Cri) 182 ). There may be some circumstances in mitigation of punishment which should be inflicted: (1) absence of bad intention; (2) provocation; (3) self-preservation; (4) preservation of some near friends; (5) transgression of the limit of self-defense; (6) submission to the menaces; (7) submission to authority; (8) drunkenness; (9) childhood. Indeed these are not the only aggravating or mitigating circumstances which should be considered when sentencing an offender.
84. The enormity of the crime warranting public abhorrence is also an aggravating circumstance. Though the number of persons killed by the accused is an aggravating circumstance, this alone cannot be made a ground for awarding extreme punishment of death.
85. No doubt in the case of Bachan Singh (supra), a constitutional Bench of the Supreme Court upheld the validity of death penalty and restricted its imposition to the 'rarest of rare' cases. Therefore, the penalty is to be awarded only in those cases where the conscious of the Judge is satisfied that it is rarest of rare cases. One cannot ignore the harsh reality that death penalty is irreversible in nature.
86. Examples are galore where the death punishment imposed by lower Courts are commuted to life imprisonment by the higher Courts including the Supreme Court. Some of the cases on point are the following.
87. In Manohar Lal alias Mannu and Anr. v. State (NCT) of Delhi reported as , the accused were found guilty of
dragging out all the four sons of PW, mother and setting them ablaze as an aftermath of assassination of Indira Gandhi, the then Prime Minister. Having regard to the mental condition of the appellants/ accused then prevailing and the fact that they had no personal animosity against deceased persons death sentence awarded to them was reduced to that of life imprisonment.
88. In Sheikh Ishaque and Ors. v. State of Bihar, reported as , the Supreme Court emphasized that number of victims and motive of crime are not the only considerations for imposing death penalty. It deprecated eye for an eye approach. That was a case where the accused had committed murder of three persons by burning them with the help of kerosene inside a shop. Still, the Court did not find this to be 'rarest of rare' case and awarded sentence of life imprisonment.
89. Similar approach was adopted in Prakash Dhawal Khawaria v. State of Maharashtra, , Ram Anup Singh v. State of Bihar, III (2002) CCR 131 (SC)=JT 2002 (5) 621, Sheikh Ayub v. State of Maharashtra, 2002 SCC (Cri) 526.
90. It may also be noted at this stage that no doubt in the case of Om Prakash @ Raju (supra), the Supreme Court held that young age of the accused in itself was not a relevant mitigating circumstance for opting lesser sentence unless the offender was a minor, in many other judgments the Supreme Court took into consideration young age of the convict and preferred awarding life sentence instead of death penalty. (Refer: Ediga Anamma v. State of Andhra Pradesh, 1974 SCC (Cri) 479; Ummilal v. State of M.P., 1981 SCC (Cri) 760 ; State of U.P. v. Summon Das, 1972 SCC (Cri) 275; Mohd. Aslam v. State, ;
Gyasuddin v. State of Bihar, 2003 (3) JCC 1952.
91. Thus no doubt the young age of the appellant by itself may not be the determining factor, along with other extenuating circumstance it becomes an important support factor for award of life sentence.
92. Learned Counsel for Tika Ram made a fervent appeal for commuting the death penalty into life sentence by referring the judgment of the Supreme Court in the case of Vithal v. State of Maharashtra, II (1994) CCR 338 (SC) 1994 SCC (Cri) 629 submitting that it could be done where the motive was not proved. He also relied upon the judgment of the Supreme Court in the case of Balraj v. State, 1994 SCC (Cri) 823 where the death sentence was commuted to the life imprisonment on the ground that there was no direct evidence in the case.
93. With this, we revert to the facts of the present case. No doubt we have held that there is strong evidence which proves the guilt of Tika Ram. However, at the same time it cannot be ignored that the motive provided by the prosecution is of weak nature. It is also clear that there is no direct evidence in this case. The manner of committing murders is also not very clear although various injuries inflicted on the deceased persons have been proved. In this background, the young age of the accused, who was 18-19 years of age at the time of commission of the crime, becomes very relevant. We cannot ignore that by today's standard [in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000], the accused would have been just at the verge of juvenile and age of juvenile is increased to 18 years and, therefore, this is yet another circumstance which compels us to take the decision that his life should not be snatched away. We have also to keep in mind that the occurrence is of January, 1996 and thus 9 years have passed. Ever since Tika Ram was apprehended on 8th April, 1996, he is in jail and no adverse comments are given against his conduct in the jail. There is every likelihood that he can be reformed. We had heard this case for many days. During this period we had gone into the entire record and testimony of various witnesses. No doubt the case against Tika Ram is proved beyond reasonable doubt, we have the uncanny feeling that something more may have happened which has not been revealed persuades us that death punishment is not warranted in this case. As far as quantum of sentence is concerned, we feel that it is a case where two views are possible and this is yet another reason which persuades us to take a view which favors the grant of life imprisonment in comparison with death penalty as the Supreme Court has held that when two views are possible life imprisonment would be better option. Influenced by all these factors, we are of the considered opinion that it is not a case where Tika Ram be deprived of his life. These are extenuating circumstances which the learned Additional Sessions Judge ignored. All these factors are not considered by the learned Additional Sessions Judge and he did not examine the matter from this angle. Thus we are not inclined to confirm the death sentence awarded by the Trial Court. Instead we deem it proper that ends of justice would be met by commuting the death penalty into life imprisonment. We order accordingly.
94. The reference is answered in these terms. The appeal of appellant-Tika Ram is allowed partially. While maintaining the conviction, the sentence is modified in the manner stated above.
95. The reference as well as appeal are disposed of accordingly.
96. Before we part with, it would be necessary to put on record our appreciation for the assistance rendered by Ms. Mukta Gupta with Ms. Rajdipa Behura for the State and Mr. Rajesh Mahajan with Mr. R.K. Sonkiya. The efforts of Mr. Rajesh Mahajan deserve special mention. The sincerity and the commitment with which he argued the case was exemplary and by the nature of the assistance rendered by him, he truly proved to be an amices Curiae-friend of the Court.