SUSHIL SHARMA versus THE STATE OF N.C.T. OF DELHI

26. We shall now consider the submissions of the counsel 2. (2007) 12 sec 288. A in light of evidence on record. Since this is a case based on circumstantial evidence, we must see whether chain of circumstances is complete and points unerringly to the guilt of the appellant. It is first necessary to see the background of the case. The fact that the appellant and the deceased were staying B at the said flat as husband and wife can hardly'be disputed. PW-12 Matloob Karim, who was known to the appellant and the deceased stated that in the year 1989, he was the Qrganizing Secretary of Youth Congress. At that time, the appellant was its President and the deceased was General c Secretary of its Girls Wing. He stated that he knew the deceased from 1984 when they were in the Students Union of Delhi University and because of their close association, they had fallen in love with each other. However, they could not marry because they belonged to different religions.

He stated that he D got married in December, 1988. The deceased got married to the appellant in the year 1992 and informed him about it. He further stated that after her marriage, she was staying with the appellant at the said flat. CW-1 Mrs. Jaswant Kaur, the mother .of the deceased, CW-2 Sardar Harbhajan Singh, the father of the deceased and PW-82 Ram Niwas Dubey, who was the E personal servant of the appellant also confirmed this fact. Pertinently, no suggestion was put to them in the cross- examination that what they were saying was false. In this connection, it is important to note that the DNA Report [Ex-PW- 87/A] confirms that the dead body which was burnt at Bagia F Restaurant was that of the deceased, who was the biological offspring of CW-1 Mrs. Jaswant Kaur and CW-2 Sardar Harbhajan Singh. PW-11 Mrs. Chaudhary, a retired Government servant, was staying along with her husband in Flat No.8/2-B, which was in front of the appellant's Flat No.8/2-A.

G She stated that the appellant was living with his wife i.e. the deceased in the said flat. Her husband PW-9 M.L. Chaudhary ·corroborated her evidence. According to PW-11 Mrs. Chaudhary, the deceased was last seen with the appellant in the evening of 2/7/1995 in the said flat. Though his statement H recorded under Section 313 of the Cr.P.C., in answer to one of the questions, the appellant stated that he was the President of NSU(I); that he knew the deceased since 1985; that the deceased was living with his parents at Gole Market and that he had no contact with her after 1985, while answering another question, he admitted that he was living with the deceased in the said flat. PW-15 HC Amba Das was the beat constable of Mandir Marg Area at the relevant time. According to him, once he had gone to the house of the appellant for verification of the quarters. At that time, the appellant told him that he should take care of the Car bearing No.DAC 3285 belonging to his wife and his Car bearing No.DL-2CA-1872 as the vehicles were c increasingly being stolen.

According to him, the appellant also told him that since during the day time they were out, he should take care of their house. Admittedly, Car bearing No.DAC 3285 belonged to the deceased. It may be noted here that on 5/7/ 1995, this car was seized by PW-81 10 Niranjan Singh when it was parked below the said flat. We are, therefore, of the opinion that the prosecution has successfully proved that the appellant and the deceased were married and they were staying in the said flat as husband and wife and that the deceased was last seen in the company of the appellant in the said flat on the evening of 2/7/1995 by PW-11 Mrs. ChaudhaiY.

27. The appellant's connection with the Bagia Restaurant is very crucial to the prosecution because the infamous tandoor was situated there. The appellant has not disputed that the Bagia Restaurant is run as per the agreement with the ITDC. In his statement recorded under Section 313 of the Cr.P .C., he stated that his Manager at Bagia Restaurant was one Mr. Handa and his Accountant was one Mr. Karan. He admitted that A2-Keshav was employed in Bagia Restaurant. A2-Keshav has also admitted this fact. Thus, the prosecution has successfully proved that the appellant was the owner of Bagia Restaurant.

28. From the evidence on record, it is clear that all was not well between the appellant and the deceased. PW-12 Matloob Karim has admitted that the deceased and he were A in love with each other but they could not marry because they belonged to different religions. His evidence indicates that he got married to a Muslim girl in December, 1988. According to him, the deceased told him that she had married the appellant in the year 1992. He stated that even after his marriage, he and B the deceased used to meet and talk. According to him, in August,· 1989, the deceased told him to enquire about the antecedents of the appellant. She told him that the appellant had proposed to her. According to this witness, he had told her that the appellant was not a good person. The deceased C phoned him sometimes in the year 1992 and stated that she had got married with the appellant and that prior to the marriage, she had disclosed their friendship to the appellant.

Six months t~ereafter, he received a call from the deceased stating that she was trapped; that the appellant was not a good 0 man and that he used to abuse and thrash her on trivial matters. The deceased again phoned him and told him that the appellant had thrown her out of their house. On 2/7 /1995 between 3.00 p.m. to 4.00 p.m., the deceased telephoned him and told him to help her to migrate to Australia. The evidence of this witness is criticized on the ground that he is not a person of good E character because he admitted that even after marriage, he continued to have relationship with the deceased. It is contended that he was inimically disposed towards the appellant and, therefore, he had falsely implicated him. We find no substance in this submission. Assuming this witness loved F the deceased and he continued to meet her after her marriage with the appellant that, in our opinion, has no relevance.

His evidence has a ring of truth. By falsely implicating the appellant, he would not have gained anything. In our opinion, this witness i~ worthy of credence. PW-82 Ram Niwas Dubey's testimony G also throws light on this aspect. His association with the appellant began in the year 1989 when the appellant was the President of Youth Congress (I). He was working as a peon with him till April, 1995. He stated that the appellant obtained the said flat in 1992. The appellant lived with his wife i.e. the deceased in the said flat. He knew the deceased since 1992 as she was the General Secretary of Youth Congress and used to visit the appellant at his office at Talkatora. After the appellant's marriage with the deceased, he was working with the appellant and was living in the said flat. He stated that the appellant and the deceased used to quarrel on the topic of marriage. The deceased used to ask the appellant as to when he would make their marriage public.

The appellant used to tell her that he will disclose their marriage to the people at the appropriate time. According to him, there used to be frequent quarrels between the two and the appellant used to beat the c deceased with legs, fists and dandaa. He further deposed that as directed by the appellant, he used to accompany the· deceased to keep a watch on her movements because the appellant suspected her fidelity. The defence has not elicited anything in the cross-examination of th.is witness, which can persuade us to discard his testimony. PW-11 Mrs. R.K. Chaudhary, the neighbour of the appellant and the deceased, stated that once when they were watching T.V .. in their house, they heard a noise coming from outside. They opened the door of the drawing room and saw that scuffle was going on between the appellant and the deceased. The deceased wanted to go out of the house but the appellant was pulling her back inside the house.

This witness has no reason to concoct a story. She appears to us to be a reliable witness. Though the father and the mother of the deceased, the neighbours of the appellant and the deceased and their servant knew that the appellant and the deceased were staying together and the parents of the deceased stated in the court that the appellant and the deceased were married to each other, the marriage was not made public. The deceased wanted the marriage to be made · public. The appellant was reluctant to do so and was suspecting her fidelity. On account of this suspicion, he used to quarrel with her and beat her. He had asked PW-82 Ram Niwas Dubey to keep watch over her movements and had also put restrictions on her movements. On account of this, the deceased was making efforts to leave him. It appears that perhaps the [2013) 16 S.C.R. A appellant did not want to make the marriage public because the deceas~d was continuing her relationship with PW-12 .

Matloob Karim even after marriage. These circumstances established by evidence adduced by the prosecution lead us to conclude that there was a strong motive for the appellant to B do away with the deceased. It was urged that the appellant was deeply in love with the deceased and despite knowing her relationship with PW-12 Matloob Karim, he did not drive her out. He only restricted her movements because he wanted to stop her from her wayward ways. He would have, therefore, c never killed her. In our opinion, the appellant's love for the deceased does not dilute the prosecution case on motive. In fact, it strengthens it.

29. That there was fire in the Bagia Restaurant around 10.30 p.m. on 2/7/1995 and that, at that time, the appellant was D present near the Bagia Restaurant is established by the prosecution by leading reliable evidence. PW-7 Mrs. Anaro Devi who was running a vegetable shop near Ashok Yatri Niwas stated that two years back at about 11.30 p.m. on 2171 1995 when she was present at her shop, a fire broke out in E Bagia Restaurant. One constable and home guard came there. She informed them about the fire. PW-3 HC Kunju stated that on 2/7/1995 he was posted as Constable at P.S., Connaught Place. PW-4 Home Guard Chander Pal was with him. When they reached near Ashok Yatri Niwas at about 11.20 p.m., they F found that fjre had broken out in the Bagia Restaurant. He rushed to the Police Post, Western Court and gave information to the police through wireless. On reaching the spot, he saw flames coming up from the Bagia Restaurant.

He entered the restaurant along with PW-4 Home Guard Chander Pal and saw G A2-Keshav standing near the tandoor. He was putting pieces of wood into the tandoor and was shuffling the same with a long wooden stick. On enquiry, A2-Keshav told him that he was a Congress Party worker and he was burning the old banners, posters and waste papers, etc. of the Congress Party. In the H meantime, the patrolling officer SI Rajesh Kumar, the staff of PCR and security officials Rajiv Thakur and PW-35 Mahesh Prasad also came there. According to him, he saw the appellant near the gate of the' Bagia Restaurant. PW-35 Mahesh Prasad told him that the appellant was the owner of the Bagia Restaurant. PW-3 HC Kunju identified the appellant at the police station as the same person whom he had seen at the gate of the Bagia Restaurant. PW-4 Home Guard Chander Pal stated that on 2/7/1995, when he was on patrolling duty along with PW-3 HC Kunju, they reached Ashok Yatri Niwas at about 11.30 p.m.

They saw fire at the Bagia Restaurant. PW-3 HC Kunju went and phoned th.e police station and came back. Both c of them scaled the wall and entered the Bagia Restaurant for extinguishing the fire. They saw A2-Kesahv trying to stoke the fire with the help of a wooden stick. When asked, A2-Keshav told them that he was burning the old banners and posters of the Congress Party. He further stated that the appellant was standing there wearing white coloured kurta pyjama. He was so informed by PW-35 Mahesh Prasad. He further stated that the appellant came near the tandoor and shuffled the fire with wooden stick and, thereafter, he left from there. He stated that he identified the appellant at the police station. CW-5 HC Majid Khan deposed that in the night of 2/7/1995, he was on duty on PCR vehicle driven by Raribir Singh. They went to Ashok Yatri Niwas for drinking Vl!ater and there theinoticed the fire in Bagia Restaurant.

They went towards the gate of Bagia Restaurant. There was a kanat fixed at the gate and one man was standing there. The man told them that they were burning the old banners and waste papers and flags of Congress Party and that he was . the leader of Youth Congress. PW-35 Mahesh Prasad then told them that that man was the owner of Bagia Restaurant and his name was 'Sushi! Sharma'. According to him, A2-Keshav was stoking the fire. He stated that A2-Keshav was apprehended at the spot. PW-1 Philips's evidence is also important. He was working as a Stage Programmer in Bagia Restaurant. This fact is confirmed by PW::5 K.K. Tuli, the General Manager of Bagia Restaurant. According to PW-1 Philips, on 2/7/1995,~he,.was on duty from 8.00 p.m. to 12.00 midnight. He stated that he and'<H A his wife PW-2 Mrs. Nisha were to stage a performance on that day. One guest had come to see him. He had gone to see off that guest at 9.30 p.m. or 9.45 p.m.

When he came back, he saw the appellant coming there in Maruti Car No.1872. After 5-7 minutes, A2-Keshav asked him to stop the programme and B go back to his house as his duty was over. He obeyed and left for his house along with his wife PW-2 Mrs. Nisha. While going, he saw the appellant sitting in his Maruti car which was standing at the gate. PW-2 Mrs. Nisha corroborat.:d PW-1 Philips. She stated that she had seen the appellant at about 10.15 p.m. at c the gate of Bagia Restaurant in Maruti Car No.1872. PW-5 K. K. Tuli, General Manager of Bagia Restaurant stated that around the time when the incident occurred, the appellant used to visit the Bagia Restaurant every day. All these witnesses have stood firm in the cross-examination.

30. PW-3 HC Kunju stated that since foul smell was emanating from the tandoor, he and SI Rajesh Kumar went near the tandoor out of suspicion. They saw a human body whose hands and feet were completely burnt and whose intestines were protruding out from the stomach in the tandoor. On a close E look, they found that the dead body was of a female. PW-4 Home Guard Chander Pal corroborated PW-3 HC Kunju on this aspect. He stated that a body of a woman was found lying in the tandoor. It's bones were cut and intestines were protruding. PW-5 K.K. Tuli, the General Manager of Ashok Yatri Niwas F stated that on receiving telephonic information from the security staff, he went to the Bagia Restaurant and found a dead body of a woman in burnt condition lying amongst the wood pieces in tandoor. There is no challenge to these statements of the witnesses in the cross-examination. On receiving information, G senior police officers including PW-81 10 Niranjan Singh reached the spot.

Photographs of the dead body were taken by PW-74 HC Hari Chand. He produced the photographs of the dead body (Ex-PW-74/9 to 16) and negatives thereof (Ex- PW-74/1 to 8). PW-75 Inspector Jagat Singh and PW-81 10 H Niranjan Singh have also deposed about it. A2-Keshav was handed over to PW-81 10 Niranjan Singh. PW-81 10 Niranjan A Singh recorded the statement of PW-3 HC Kunju, which was treated as FIR. In the FIR, PW-3 HC Kunju narrated all the events which took place after he reached the Bagia Restaurant till his statement was recorded. It is necessary to note here that he specifically mentioned about the presence of the appellant. He made it clear that he was informed about the appellant's presence by the Security Guard PW-35 Mahesh Prasad. He stated that the Security Guard PW-35 Mahesh Prasad told him that the appellant, who is the owner of the Bagia Restaurant was standing there. He noted the presence of the appellant and A2- c Keshav. He stated that A2-Keshav was detained, however, the appellant had run away. He also stated about the finding of burnt body of an unknown lady in the tandoor.

31. It must be mentioned here that PW-35 Mahesh Prasad has not supported the prosecution on this aspect. He stated that D he had not seen the appellant on that day at the Bagia Restaurant. It appears that he was won over by the defence. Tenor of his evidence suggests that he was hiding the truth and · favouring the appellant. The trial court has rightly commented on his demeanor and stated that his demeanor indicates that E he was won over by the appellant. In the circumstances, we see no reason to disbelieve PW-1 Philips, PW-2 Mrs. Nisha, PW- . 3 HC Kunju, PW-4 Home Guard Chander Pal and CW-5 HC Majid Khan. In any case, even if we leave the evidence of PW- 3 HC Kunju, PW-4 Home Guard Chander Pal and CW-5 HC Majid Khan out of consideration on this aspect, the evidence of PW-1 Philips and PW-2 Mrs. Nisha establishes the presence of the appellant at the Bagia Restaurant at the relevant time in the night of 2/7/1995 at around 10.15 p.m. Some controversy is sought to be created as to whether PCR Vehicle G entered the Bagia Restaurant or not because the log book of the PCR Vehicle was not produced. We have no manner of doubt that this discrepancy is created by PW-35 Mahesh Prasad, who was won over by the appellant. It needs to be ignored. In our opinion, whether the PCR vehicle entered the [2013) 16 S.C.R. Bagia Restaurant or was parked outside is not a material circumstance. The presence of the witnesses is well established. It is, therefore, not necessary to dwell on this point. On the basis of the evidence discussed above, we are satisfied that the prosecution has established the presence of the appellant at the Bagia Restaurant at around 10.30 p.m. on 2/ 7/1995. It has also established that a· dead body of a woman in burnt condition was found lying in the tandoor.

32. PW-81 10 Niranjan Singh started investigation and after holding inquest, sent the dead body to RML Hospital. We have already referred to PW-85 Dr. Joginder Pal, who stated that on 3/7/1995 an unknown female body was brought to the RML Hospital at 6.20 a.m. He examined the dead body. In his Report (Ex-PW-85/A) he noted the condition of the charred body. PW-12 Matloob Karim identified the dead body as that D of the deceased on 5/7/1995 at RML Hospital. DNA Report established that the dead body was of deceased Naina Sahni, who was the daughter of CW-1 Mrs. Jaswant Kaur and CW-2 Sardar Harbhajan Singh. Thus, the prosecution has successfully established that the dead body was of Naina Sahini, wife of the appellant.

33. Post-mortem of the dead body was conducted by CW- 6 Dr. Sarangi on 5/7/1995. We have reproduced the observations ·noted by CW-6 Dr. Sarangi in his post-mortem report, hereinabove. That the death was homicidal is established and is not disputed. In this case, the medical evidence assumes great importance. We shall discuss it, in detail, a little later.

34. We shall now go to the search of the said flat. PW-81 G 10 Niranjan Singh stated that on 3/7/1995 at about 3.00 p.m., he went to the said flat along with A2-Keshav, but it was found locked. On 4/7/1995 at about 11.30 a.m. / 12.00 noon, he reached the said flat. The said flat was under the surveillance of PW-14 Inspector Suraj Prakash. It was forced open under a H panchanama. Certain bloodstained articles like cloth pieces, chatai and piece of carpet were seized from the said flat under A a panchnama. He found five empty cartridges, a lead bullet, an air pistol and a ply in which there was a hole caused by the bullet. According to him, he did not take possession of these articles because the Ballistic Experts were ·not present. On 5/ 7/1995, he visited the said flat along with PW-70 Roop Singh, the Ballistic Expert, and PW-16 Dr. V.N. Sehgal, Director of the Cf SL and in their presence five empty cartridges, one lead bullet, an air pistol and a ply having bullet hole were seized and panchnama (Ex-PW-16/A) was drawn.

It was signed by PW- 16 Dr. V.N. Sehgal and Inspector Ramesh Chander. PW-16 c Dr. V.N. Sehgal has confirmed that on 5/7/1995 at about 12.00 noon, on a request made by the police, he visited the said flat along with PW-70 Roop Singh. He stated that he entered the said flat along with PW-70 Roop Singh and PW-81 10 Niranjan. Singh. PW-70 Roop Singti collected five empty cartridges, one D lead bullet, one piece of ply having a hole in it and one air pistol. He further stated that the seized articles were sealed and the memo was prepared, which is at Ex-PW-16/A. PW-81 10 Niranjan Singh has also spoken about the seizure memo [Ex- PW-16/A] on which he obtained signatures of PW-16 Dr. V.N. Sehgal and Inspector Ramesh Chander. PW-67 HC Raj Kumar, in-charge of Malkhana has deposed about the parcels of the seized articles received by him on 5/7/1995. He stated that on 17/7/1995, SI Rakesh Ahuja took all the parcels to the CFSL.

Thus, seizure of five empty cartridges,. one lead bullet, a ply with a hole on it from the said flat on 5/7/1995 is proved. It is also proved that the said seized articles were qeposited in Malkhana on 5/7/1995 and were sent to the CFSL on 17/7/ 1995.

35. PW-70 Roop Singh, the Ballistic Expert has stated G about receipt of the seized articles from SHO, P .S., Con naught Place on '17/7/1995. He has spoken about the examination of the said articles sent to his laboratory and the result thereof. It is true that in his evidence, he has not stated anything about his visit to the said flat on 5/7/1995 or the finding of cartridges, H lead bullet and ply with a hole in the said flat, which has been stated by PW-16 Dr. V.N. Sehgal and PW-81 10 Niranjan Singh. From this, it cannot be concluded that he was not present in the said flat on 5/7/1995. Obviously, being a Ballistic Expert, he has only concentrated on the result of examination conducted in his laboratory. No adverse inference can be drawn from his not mentioning finding of cartridges, lead bullet, etc. from the said flat on 5/7/1995. It is true that PW-14 Inspector Suraj Prakash has admitted that in his statement recorded under Section 161 of the Cr.P.C., he has not referred to the seizure c of cartridges, bullets, etc. However, his evidence makes it clear that his statement W?S recorded at the spot when the recoveries of other articles were made i.e. on 4/7/1995. He stated that his supplementary statement was not recorded. Since, the seizure of the said articles was made on 5/7/1995 that too in his absence, there was no question of his mentioning about the recoveries of cartridges, etc. in his statement recorded on 4/ 7/1995. He stated in his evidence that the said articles were there in the said flat but they were not seized because the Ballistic Expert was not there. The fact that statement of ·this witness was recorded on 4/7/1995 is also stated by PW-81 10 Niranjan Singh. Therefore, this circumstance cannot be taken against the prosecution.

36. It is argued that in the recovery memo dated 4/7/1995, there is no mention of recovery·of empty cartridges, lead bullet, etc. and, therefore, PW-81 10 Niranjan Singh's version regarding recovery of empty cartridges and lead bullet is falsified. This submission deserves to be·rejected without hesitation because the recovery was effected on 517 /1995 under panchnama (Ex-PW-16/A). These articles were not G seized on 4/7/1995. Therefore, they cannot find mention in the panchnama dated 4/7/1995. Recovery Memo dated 5/7/1995 clearly talks about recovery of cartridges, lead bullet, a piece of ply having a hole of a bullet and an air pistol. It is true that PW-13 Ohara Singh has not stated that on 4/7/1995 any H cartridges or lead bullet were found in the said flat. However, PW-14 Inspector Suraj Prakash who had accompanied him and PW-81 10 Nira,njan Singh have stated so. Therefore, non- mentioning of this fact by PW-13 Ohara Singh is of no consequence.

Both PW-14 Inspector Suraj Prakash and PW- 81 10 Niranjan Singh have stated that the said cartridges, etc'. were not seized on 4/7/1995 because the Ballistic Expert was not present. Therefore, we feel that absence of any memo in this regard does not affect the prosecution case adversely. It is stated in the written submissions that two lead bullets were recovered from the said flat. This statement is factually incorrect. All the witnesses have stated that only one lead bullet was c recovered from the said flat and that is confirmed by the panchnama (Ex-PW-16/A). We are also not impressed by the submission of the appellant's counsel that at least ten rounds must have been fired in the said room and the neighbours should have therefore spoken about it. That, ten rounds must have been fired is a speculation of the counsel. But, assuming that to be so, it is common knowledge that neighbours generally would not want to get involved in such cases.

Th.ere is always an effort to disassociate oneself from such incidents for fear of getting entangled in court cases. Not much can be made out of this conduct of the neighbours. It is pertinent to note that PW-81 10 Niranjan Singh stated that when he asked the neighbours to become witnesses in the proceedings of the house search, they refused and stated that it is not proper to give evidence in a murder case. It appears that somehow two neighbours agreed to depose in the court, but considering the general apathy of the people towards associating themselves with such incidents, their not referring to any sound of firing cannot be taken against the prosecution. Moreover, it is quite possible that since the flats were closed, sound did not travel from one flat to the neighbours' flat. We, therefore, reject this submission.

37. It was argued that the lead bullet which was found in the said flat was blood stained. This is not correct. Seizure . Memo [Ex-PW-16/A] regarding the seizure of articles from the A said flat on 5/7/1995 states that one lead bullet was seized. It does not say that the said lead bullet was stained with blood. PW-81 10 Niranjan Singh stated that on 517/1995 he seized one lead bullet from the said flat. He makes no reference to any blood being found on it. PW-16 Dr. V.N. Sehgal, Director, B CFSL who was present when the articles were seized on 5171 1995 stated that one lead bullet was recovered from the said flat. He nowhere stated that it was blood stained. PW-70 Roop Singh, Ballistic Expert stated that he received one lead bullet among others for examination on 17/7/1995. He stated that the c lead bullet recovered from the said flat was fired through .32 revolver [W-2]. It is pertinent to note that this is the same revolver which was seized from the room of the appellant at Pai Vihar Hotel, Bangalore. He further stated that the hole on the ply was found to have been caused by the said lead bullet recovered 0 from the said flat. He however did not state that it was blood stained. CFSL Report dated 27/7/1995 also does not state that the said bullet was blood stained. Therefore, it is clear that it is not the case of the prosecution that the lead bullet seized from the said flat on 517 /1995 was stained with blood. Therefore, all the submissions based on the assumption that E bullet found in the said flat was blood stained are rejected.

38. PW-81 10 Niranjan Singh has stated that on 4/7/1995 at about 9.10 a.m., a wireless message was received by him that Car bearing No.DL-2CA-1872 was parked at Malcha F Marg. He along with the staff reached near Malcha Marg Market. The said car was parked on the road. The CFSL team was called for inspection of the car. Car was then inspected. The dry blood lying in the dicky of the car was scratched, kept in a polythene packet, converted into a parcel and sealed. G Many long hair were lifted from the back of the front left seat of the car, kept in a parcel and sealed. A memo being Ex-PW- 60/B was prepared which bears this out. The recovery of the appellant's car is a!tacked on the ground that no record of wireless message has been produced; no one from P.S. H Malcha Marg was examined; no record of P.S. Malcha Marg has been produced; no information was given to the nearest Magistrate and no record showing presence of PW-72 PC Mukesh of P.S.

Chanakyapuri was produced. It is also stated that no witness from the CFSL has been examined; no photographs have been produced and no independent witnesses have been examined. In our opinion, it was not necessary to produce the record showing presence of PW-72 PC Mukesh. We find_him to be a truthful witness. In his evidence, PW-72 PC Mukes-h clearly stated that on 4/7/1995, the said car was found abandoned near Gujarat Bhavan. He also deposed that before leaving the police station for patrolling duty, he was c given number of the said-car by SHO saying that it was involved in the murder case of P.S. Connaught Place and he should look for the said car. In view of the clear testimony of PW-72 PC Mukesh, it was not necessary to produce other record to support seizure of the car. There is no reason to disbelieve him. PW-81 10 Niranjan Singh has stated that the blood stains found in the dicky were scratched and sample thereof was taken.

Therefore, even if no witness from the c·FSL has been examined to depose about this or no photographs have been produced, that has no adverse effect on the prosecution case. Some advantage is sought to be drawn from the discrepancies in the time as regards receipt of wireless message from PW- 81 10 Niranjan Singh and the estimate of time given by PW-72 PC M~kesh regarding PW-81 10 Niranjan Singh's presence at · the site and the time given by PW-8.1 10 Niranjan Singh as to when he reached the said flat after taking samples from the appellant's car. The estimate of time given by the witnesses differ and may, at times, conflict. When there are telltale circumstances on record clearly supporting the prosecution case, assuming there are some discrepancies in the evidence of witnesses as regards time, it would not make any dent in the prosecution story. The argument that in the dicky there ought to have been a pool of blood, will also have to be rejected.

PW- 75 Inspector Jagat Siagh in his evidence stated that from the spot, a polythene sheet/tarpaulin bearing stains of blood on one side and scratch marks on the lower side was taken in possession under seizure memo [Ex-PW-75/1]. The body must, therefore, have been well covered in polythene sheet to hide it and, hence, there was no pool of blood in the dicky. This also explains why there was no trail of blood on the staircase or on the road. Blood was, however, found in the said flat.

39. The CFSL Report dated 27/7/1995 states that the hair recovered from the back of the left front seat of the said car were identified to be of human origin. However, no opinion could be given as to whether they were of the deceased. From the dicky, no human hair were recovered possibly because the C dead body was properly covered. This circumstance appears to us to be totally innocuous and no advantage can be drawn from it by the defence. So far as the sample of blood found in the dicky of the said car is concerned, the CFSL Report while confirming that it was blood, stated that the blood group could D not be analysed. There is no positive finding that the blood detected was not found to be 'human' blood. The submission that the blood detected in the dicky was found not to be 'human' blood is contrary to facts. Seizure of the appellant's car which was found abandoned at Malcha Marg with dry blood in the E dicky establishes the prosecution case that the said car was used by the appellant to carry the dead body to the Bagia Restaurant. It is further established that after leaving Bagia Restaurant on arrival of police, he came to Malcha Marg and parked the car there.

40. The evidence on record establishes that after committing the murder, the appellant spent the night at Gujarat Bhawan situated at Malcha Marg. Thereafter, the appellant was on the run. PW-81 10 Niranjan Singh's evidence throws light on G it. It appears that while in Madras, the appellant having come to know that the police were looking for him, obtained anticipatory bail. On an application filed by the prosecution, the anticipatory bail was cancelled. According to PW-81 10 Niranjan Singh, he learnt that on 10/7 /1995, the appellant was arrested by PW-46 Inspector Gangadhar of the Bangalore Police. PW-81 10 Niranjan Singh got the production warrant issued from the concerned Magistrate by filing Application [Ex- PW-81/X-6]. On 11/7/1995, he along with his colleague reached Bangalore and took custody of the appellant. The appellant led them to Room No.110 of Hotel Pai Vihar where he was staying along with his advocate Mr. Anantanarayan. From Room No.110, a briefcase was recovered. In the briefcase, there was a revolver of Arminius make of .32 bore. There were four live cartridges, arms licence, passport and other documents. A key of a Maruti Car was also found from the briefcase and the same was also taken charge of and marked Ex-PW-81/X-10. All the articles were seized and seizure memo [Ex-PW-47/A] was drawn. The appellant was then brought to New Delhi. PW-81 10 Niranjan Singh has clearly stated that he informed the security personnel at the airport about the recovered revolver and the cartridges, while bringing the appellant to New Delhi by air.

41. No advantage can be drawn by the appellant from the fact that in the remand application dated 12/7 /1995, it was stated that the weapon used in the crime had to be ascertained and recovered, though a revolver had been recovered on 10/ 7/1995. It must be borne in mind that the said remand application was made at an early stage of investigation. When the remand application was made, the police had not ascertained from the CFSL whether the revolver recovered at Bangalore was used by the appellant. Therefore, the said averment does not affect the veracity of recovery evidence. As regards the criticism that there is no statement of the. appellant recorded under Section 27 of the Evidence Act and, therefore, recoveries made at Bangalore become inadmissible is concerned, it must be stated that it is not the prosecution case that any statement of the appellant was recorded under Section 27 of the Evidence Act. The revolver was recovered during inve:;;tigation. Pertinently, the CFSL Report has established the link between the revolver recovered from the hotel room at Bangalore and the bullets found in the skull of the deceased. A Evidence of police witnesses on this aspect is cogent and reliable. We find no reason to discard it. We may add here that in his statement recorded under Section 313 of the Cr.P.C. the appellant admitted that he possessed .32 bore Arminius revolver. But he stated that police recovered it from his B residence at Maurya Enclave when he was at Tirupati. The appellant has not led any evidence to prove that he was staying at Maurya Enclave. His parents did not step in the witness box. This story is rightly disbelieved by the High Court. Thus, the appellant's admission that he possessed .32 bore Arminius C revolver goes a long way amongst other circumstances in establishing his guilt.

42. Alleged non-compliance with procedural requirements laid down in Cr.P.C. by PW-8f 10 Niranjan Singh who was conducting investigation outside his jurisdiction assuming to be D true, is an instance of irregularity in investigation which has no adverse impact on the prosecution case. It is true that Mr. Anantanarayan, the advocate was not examined. It is also true that PW-48 Srinivas Rao, the Manager of Pai Vihar Hotel and PW-50 Kancha, the waiter of the said hotel were given up by E the prosecution. Mr. Anantanarayan being advocate of the appellant was not expected to support the prosecution. It appears that, therefore, he was not examined. So far as PW- 48 Srinivas Rao is concerned, he was not examined by the prosecution because he was won over by the appellant. PW- F 50 Kancha was not examined by the prosecution because he had difficulty in understanding Hindi and English. These witnesses are therefore, of no use to the prosecution. However, the prosecution case is substantiated by the evidence of PW- 81 10 Niranjan Singh, PW-55 ACP Raj Mahinder Singh of Delhi G Crime Branch and PW-47 Cl Gowda of Hauze Kote Police Station, Bangalore. We find them to be truthful. There is no presumption that evidence of police witnesses is always tainted. No evidence has been brought on record to suggest that they bore any grudge against the appellant and, hence, wanted to H falsely involve him. In our opinion, recoveries made at Bangalore are proved beyond reasonable doubt.

43. So far as recoveries of bloodstained clothes at the instance of the appellant from bushes near Gujarat Bhawan and from Rangpuri area are concerned, the trial court has not relied upon the recovery made from the area near Gujrat Bhawan. The High Court has found no reason to discard the recovery made from Rangpuri area. In our opinion, even if these recoveries are kept out of consideration, there is enough other evidence on record which establishes the guilt of the appellant. It is therefore, not necessary to dwell on the said recoveries.

44. Counsel for the appellant has stated that according to ·the prosecution on 11/7/1995, a revolver and arms licence were recovered from the hotel room of the appellant at Pai Vihar, Bangalore. The same were put in a parcel sealed with the seal c of N.S. It is submitted that on 15/1011@95, the licence period D was extended to cover up the lacunae and an entry was made on the seized licence to that effect and this suggests tampering. We find no substance in this allegation. It appears from the evidence that the appellant had made an application for extension of licence on 18/1/1994 which was granted on 15/ E 10/1995 by PW-55A ACP Ram Narain. The evidence on record indicates that what was recovered on 11/7/1995.-ls licence (Ex-PW-47/E) and according to PW-55A, ACP Rar:n Narain, he made the entry of extension dated 15/10/1995 on the licence (Ex-PW-55/.h.). There is, therefore, no question of F tampering with the seized licence. Besides, no question was put to any of the officers about the co-relation betw~en the said two exhibits. In any case, expiry of arms licence has nothing to do with the core of the prosecution case. We reject this submission.

45. We shall now go to the medical evidence. We have already reproduced the observations made by PW-85 Dr. Joginder Pal in his Medico Legal Report after he received the dead body. We have also reproduced the relevant portions of the post-mortem notes and the cause of death given by CW-6 Dr. Sarangi. According to CW-6 Dr. Sarangi, the cause of death was hemorrhagic shock consequent to various ante- mortem injuries found on the dead body. He has opined that ·the burns present on the said body must be probably inflicted after the death. It was argued that it is doubtful whether the death B was caused due to firearm injuries. It was pointed out that PW- 85 Dr. Joginder Pal, the Casualty Medical Officer at RML Hospital has stated that he did not find any firearm injuries in the neck or in the head or in the nape of the deceased. Moreover, CW-6 Dr. Sarangi also did not notice any bullet mark c or bullet present in the dead body. In fact, he stated that the brain matter was intact. Doubt was cast on the opinion of the Board of Doctors, who extracted the two bullets and opined that those two bullets caused death. It was argued that the skull from which bullets were recovered was not the skull of the deceased. D We have no hesitation in rejecting all these submissions which are aimed at creating doubt about the Report of the Board of Doctors.

46. So far as PW-85 Dr. Joginder Pal is concerned, admittedly, he did not conduct the post-mortem. He conducted E superficial examination of the dead body. Obviously, therefore, . he did not notice any firearm injlJfY in the neck or in ttie head or in the nape of the deceased. It is true that CW-6 Dr. Sarangi did not notice any evident bullet marks or the bullets embedded in the skull. Possibly the bullets were so embedded that they were not visible to the naked eye. In this connection, it is necessary to turn to PW-81 10 Niranjan Singh's evidence. He stated that as he found empty cartridges, a lead bullet and a bullet hole on a ply in the said flat, he suspected that a firearm must have been used in this incident. Therefore, he requested G CW-6 Dr. Sarangi to conduct X-ray examination of the dead body. However, X-ray examination was not conducted. These facts were mentioned by him in letter (Ex-PW-81/X-11).

Since no X-ray examination was done on 9/7/1995, he discussed the need of having a second post-mortem with the DCP, New Delhi H and ACP, Connaught Place. He wrote a letter containing queries about re-post-mortem and handed it over to PW~57 SI Ombir 1 Singh and directed him to hand over the same-to the Board of Doctors. According to him, on 9/7/1995, he had requested Dr. Aditya Arya, DCP for constitution of Board of Doctors. Copy of the letter to Dr. Arya is at Ex-PW-81/X-11. The Commissioner requested the Lt. Governor and by the order Qf Lt. Governor of New Delhi, the Board of Doctors was constituted. PW-44 Dr. Bharat Singh, PW-68 Dr. T.D. Dogra and Dr. S.K. Khanna were selected as members of the Board. On 12/7/1995, at about 10.30 a.m., the members of the Board of Doctors reached the Lady Hardinge Mortuary to conduct c second post-mortem. CW-6 Dr. Sarangi was also there and he had a conversation with them. Second post-mortem report (Ex- PW-44/A) indicates that it ·Was partly conducted at Lady Hardinge Mortuary and thereafter the body was shifted to the Civil Hospital for X-ray. Skull was X-rayed. X-ray revealed two bullets embedded in the skull.

47. In our opinion, when PW-81 10 Niranjan Singh had requested CW-6 Dr. Sarangi to get the dead body X-rayed, he should have got the X-ray examination done. He gave an excuse that the X-ray examination was not done because the portable X-ray machine available at Lady Hardinge Medical College was not functioning. Assuming this to be true, in a serious crime like this, he should have immediately taken the dead body to the Civil Hospital for X-ray examination. It is pertinent to note that to a court question, he has stated that he was making sincere efforts to get X-ray of the dead body done in the X-ray department in consultation with the Medical Superintendent of the hospital. However, before he could complete any such endeavour, the body was taken away by PW-81 10 Niranjan Singh for further examination by some other doctors at some other hospital. There is nothing on record to show that CW-6 Or.

Sarangi made any .grievance about this fact. In fact, he admitted that in the post-mortem report, he did not mention these facts nor did he take any action against PW- 81 10 Niranjan Singh. When asked whether he had taken any (2013] 16 S.C.R. A action, CW-6 Dr. Sarangi changed his stand and stated that he thought that what PW-81 10 Niranjan Singh was doing was in the furtherance of "good justice". He has indeed contradicte9 himself. If he thought that the dead body was suddenly withdrawn and he was keen on X-raying it, then he ought to have B written a letter to that effect to the Commissioner of Police and to the hospital authorities and he ought to have made complaint against PW-81 10 Niranjan Singh. He did nothing. In fact, at one stage he stated that the necessity of X-ray examination was not realized by him because he did not notice any bullet marks and c at another stage he suggested that he wanted to get the dead body X-rayed.

When he was asked as to whether a bullet can be put inside the body after death at the place where it has been noticed by the Board, he stated that the possibility could not be absolutely ruled out especially in the presence of multiple D post-mortem cracks and separation of the skull bone from the neck for the purpose of superimposition. Thus, CW-6 Dr. Sarangi in his evidence has tried to cast a doubt on the entire investigation and the Board of Doctors. The trial court severely commented on the conduct of CW-6 Dr. Sarangi. The High E Court, however, expunged those remarks. Since the High Court has expunged those remarks, we would not like to reopen the issue. But we find it extremely difficult to reject the opinion of the Board of Doctors on the basis of his evidence. Eminent doctors were members of the Board of Doctors. They had no reason to falsely implicate the appellant.

48. We would also like to make it clear that there is absolutely no reason to doubt the prosecution case tha.t the skull of which X-ray was taken was that of the deceased. CW-6 Dr. Sarangi stated that on the request of PW-81 10 Niranjan Singh, G the skull bone was separated for superimposition. PW-81 10 Niranjan Singh stated that he received the skull on 5/7/1995. He stated that at the time of post-mortem, he gave application dated 5/7/1995-to the Autopsy Surgeon for preserving the skull for superimposition. Thus, the skull was merely separated for H the purpose of superimposition but remained in the mortuary along with the dead body. The first post-mortem report dated A 5/7 /1995 records that the skull was preserved for superimposition. The skull along with the body remained in the mortuary of Lady Hardinge Medical College after the first post- , mortem and was not sent for superimposition.

On application · dated 9/7/1995 submitted by PW-81 !0 Niranjan Singh, an order was passed for the second post-mortem. This application shows that though a request was made for· skull superimposition test, the dead body with its head was still preserved in the Lady Hardinge Medical College mortuary and process of superimposition had not started tilr then. The second c post-mortem report records that the body was kept in the mortuary of Lady Hardinge Medical College in a plastic bag and was taken out from the same. It was a dead body with the skull separated. The evidence clearly shows that the separated skull remained along with the body in the mortuary of the Lady . D Hardinge Medical College from 5/7/1995 till 12/7/1995. The second post-mortem was conducted on 12/771995. During the second post-mortem, the dead body was taken to Civil Hospital for X-ray and, thereafter, it was brought back to the Lady Hardinge Mortuary, Tt:ie body along with the skull was later taken to AllMS for conducting superimposition.

The defence has not been able to create any doubt in our minds that the skull was not that of the deceased. Minor discrepancies, if any, in the evidence of witnesses are natural in a case of this type. They will not have any adverse impact on the basic case of the prosecution which is borne out by cogent and relia?le evidence.

49. The second post-mortem report states that the body was kept in the mortuary of Lady Hardinge Medical College in a plastic bag and was taken out from the same in the presence Board of Doctors. On external examination, the body is G described as "a burnt dead body, with skull separated at upper cervical level (kept in a separate cardboard box)". After describing the state of upper limbs, lower limbs, left lower limb, thoracic cavity, abdominal cavity, kidneys, back of trunk, spinal column, head, skull vault, cranial cavity, it is stated that at that H stage it was decided to take X-rays of the body to detect any firearm projectiles. The Report further notes that due to non- availability of the facility of X-ray for the dead bodies at Lady Hardinge Medical College, it was decided to shift the body to the Civil Hospital for X-ray. The body was shifted to the Civil Hospital in a police vehicle and X-ray was taken in the Civil Hospital.

From the evidence of CW-7 Dr. (Ms.) P.S. Kiran, the Radiologist, Civii i :c:;pital, New Delhi, it arpears that she took the necessary X-rays cf the dead body. X-ray plates were shown to the Board of Doi:tors. The doctors noted their c observations in their report after viewing the X-ray plates. It is stated that the X-ray ·plates showed the presence of two metal pieces, (i) in back of right ear (mastoid region) and (ii) left side of neck, near the spine in soft tissues of cervical stumps. The report then indicates that thereafter the neck was dissected and a deformed bullet was located. Thereafter, the right mastoid area was also dissected to locate the bullet. The outer table of the skull above mastoid process was bulging outwards through which a metal piece was seen. On further dissection, a deformed bullet was found embedded in the bone with its nose · .. portion pointing outwards and base towards medial side.

Both the bullets were removed. The final opinion of the Board reads as under: "The burns are post-mortem in nature and are caus_ed by fire. The firearm injuries are ante-mortem in nature, caused by a firearm such as a revolver or pistol. In view of the extensive bums, it is not possible to give exact location of the entry wounds. However on the basis of the track and location of bullet, the entry wound on the head could be in the left temporal region and that in the neck could be in the right upper part of the neck. It is also not possif)le to comment upon the range of fire, because of extensive burns on probable site of entry. The firearm injury on the head is sufficient to cause death in ordinary course of nature. The death in this case was due to coma, conseqpent upon firearm injury to the head. It is not possible to comment whether the distal portions of the limbs were chopped off or were separated due to burns, in view of the burnt distal ends of the bones."

50. Thus, the second post-mortem report makes it clear that the burns were post-mortem and firearm injuries were ante- mortem and the death was due to coma, consequent upon firearm injury to head. It was, however, not possible to say whether the distal portions of the limbs were chopped off or were separated due to burns in view of the burnt distal ends of the bones. The report also shows how the body travelled from Lady Hardinge Medical College to the Civil Hospital. The body was lying in the mortuar>' of Lady Hardinge Medical College in a plastic bag and it was taken out from there in the presence of the Board of Doctors and the second post-mortem was conducted. When need for X-ray was realized, it was. shifted in police vehicle to the Civil Hospital and the X-rays were taken at the Civil Hospital. We have no hesitation in placing implicit reliance on the opinion expressed by the Board of Doctors after , the second post-mortem. 5·1.

It is also necessary to deal with the submission of the counsel for the appellant that the two parcels containing bullets which were extracted from the skull of the deceased, bearing the seal of Civil Hospital were never sent to the CFSL. This submission deserves to be rejected, because PW-44 Dr. Bharat Singh stated that after the second post-mortem, he handed over the two bullets recovered from the skull of the deceased to PW-57 SI Ombir Singh in a sealed cover with the seal of Civil Hospital. PW-57 SI Ombir Singh has confirmed this fact He stated that he took possession of the same vide Memo [Ex-PW57/A] and after depositing the dead body at Lady Hardinge Medical College, he came to the police station and handed over the said parcels to PW-81 10 Niranjan Singh along with Memo [Ex-PW-57/A]. It was urged that PW-67 HC Raj Kumar, who is in-charge of Malkhana has stated that no parcel was deposited with him on 12/7/1995, 13/7/1995 and 14/7/1995.

This argument is misleading. In his evidence PW- 67 HC Raj Kumar has nowhere stated that he had not received any parcel on 12/7/1995, 13/7/1995 and 14/7/1995. According to the prosecution, Entry No.2146 of the Malkhana Register shows that the two bullets [Ex.Nos.36 and 37] recovered from B the skull of the deceased were deposited in Malkhana. PW- .81 10 Niranjan Singh has stated that on 17/7/1995 he had sent the parcels to the CiSL through SI Rakesh Ahuja. PW-67 HC Raj Kumar has confirrr.ed this fact. PW-70 Roop Singh has stated that he received twc parcels with the seal of Civil c Hospital, Delhi from the Malkhana on 17/7/1995. We have, therefore, no doubt that the two bullets recovered from the skull of the deceased were sent to the CFSL. There is, therefore, no substance in this argument.

52. We may add here that the CFSL Report dated 27171 D 1995 states that the two bullets recovered from the skull of .the deceased were stained with blood of 'B' group. This establishes that the blood group of the deceased was 'B'. It is pertinent to note that the CFSL Report dated 17/7/1995 states that the various articles suchcas doth piece, carpet piece, chatai~ E etc. recovered on 4/7/1995 from the said flat were stained with the blood of 'B' group. Similarly, it states that the polythene sheet which was recovered from the Bagia Restaurant was also stained with the blood of 'B' group. It is pertinent to note that the CFSL Report dated 27/7/1995 also shows that in the dicky F of Car No.DL-2CA-1872, blood was detected. Therefore, the prosecuti9n case that the deceased.was murdered in the said flat by shooting her in the head by the appellant; that the body of the deceased was wrapped in the polythene sheet and carried by the appellant in his car bearing No.DL-2CA-1872 G to the Bagia Restau(ant and that it was burnt there in the tandoor, is proved.

53. Attempt has been made to create confusion and caste a doubt on the entire procedure of second post-mortem by H pointing out some discrepancies in the evidence of PW-44 Dr. SUSHIL SHARMA- 11. STATE OF N.C.T. OF DELHI ___ ,._ [RANJANA PRAKASH DESAI, J.] Bharat Singh and PW-57 SI Ombir Singh as regards the time when the second post-mortem was conducted. We repeat that the evidence. of tlfe doctors who were concerned with the second post-mortem and their report inspires confidence. It is reliable. Hence, we reject this submission. At the cost .of repetition, we must note that minor discrepancies in. the evidence of witnesses as regards dates and time cannot have any adverse impact on the prosecution case because in this case, it's substratum is firmly established by cogent and reliable evidence.

54. Certain minor procedural irregularities have also been highlighted. But it must be borne in mind that the investigation of this case was not restricted to New Delhi. The appellant travelled from one city to another. He reached Madras. From there he went to Bangalore where he was arrested. In a case of this type there is likelihood of some lapses on the part of D the investigating agency. It is well settled that such lapses, if they are minor, cannot be allowed to defeat the cause of justice. We have not noticed any major lacuna in the investigation from which adverse inference can be drawn against the prosecution. Attempt has been made to suggest that all witnesses including doctors, expert witnesses, and police officers have conspired against the appellant and he has been falsely implicated. We see no reason to draw such conclusion. It is impossible to believe that everyone would want to implicate the appellant in a false murder. case and in that attempt, go to the extent of implanting bullets in the skull. We reject all such submissions.

55. The evidence on record clearly establishes that the appellant has not been able to prove the defence of alibi. Adverse inference needs to be drawn from this fact. False defence of alibi indeed forms a vital link in the chain of G circumstances. It is also established by the prosecution that after the murder, the appellant made himself scarce. He stayed in the night of 2/7/1995 and 3/7/1995 at Gujarat Bhavan. He was on the run. He travelled from Delhi to Jaipur, from Jaipur to Bombay, from Bombay to Madras and from Madras to A Bangalore where he was arrested on 10/7/1995. These facts are successfully established by oral and documentary evidence. Thus, the fact that the appellant was absconding is established beyond doubt.

56. In the ultimate analysis, therefore, we are of the opinion that the prosecution has successfully proved beyond reasonable doubt the following circumstances: c (a) the appellant and the deceased were married and they were staying together in the said flat being Flat No.8/2A situated at Mandir Marg; (b) the relations between the appellant anq the deceased were strained. The appellant was suspecting the fidelity of the deceased. The deceased wanted to make their marriage public which the appellant was not willing to do .. There was, thus, a strong motive to murder; (c) the appellant and the deceased were last seen together in the evening of 2/7/1995 in the said flat; (d) on 2/7/1995, at about 11.00 p.m. there was a fire in Bagia Restaurant and the appellant was seen at around 10.15 p.m. at the Bagia Restaurant in his Maruti Car bearing No.DL-2CA-1872; (e) A2-Keshav, who was an employee of the Bagia Restaurant owned by the appellant, was seen shuffling the wood in the tandoor with a wooden stick and he was apprehended at the spot in the night intervening 2/7/1995 and 3/7/1995; (f) charred corpse found in the tandoorwas identified to be that of the deceased; (g) on 4/7/1995, certain blood stained articles were recovered from the said flat where the appellant and the deceased were staying together; (h) on 4/7/1995, Car No.DL-2CA-1872 was found abandoned at Malcha Marg and the dicky of the car was found to contain dry blood.

(i) on 5/7/1995, five empty cartridges, one lead bullet, a ply with bullet hole and an air pistol were recovered from the said flat where the appellant and the deceased were staying together; from the evening of 2-3/7/1995, the appellant was c on the run till ·he was arrested by the Bangalore Police at Bangalore on 10/07/1995. ·on 11/07/ 1995, the appellant was handed over to the Delhi Police and, inter alia, a .32 Arminius revolver owned by him was recovered by the police from his room at Pai Vihar Hotel at Bangalore; (k) the second post-mortem report prepared after studying the X-ray plates of the skull of the deceased revealed that there were two bullets embedded in it; (I) the CFSL report stated that the said two bullets recovered from the skull of the deceased and the one lead bullet recovered from the said flat were fired from the .32 Arminius revolver recovered by the police from Pai Vihar Hotel at Bangalore; (m) the death of the deceased was homicidal and was .. consequent upon firearm injuries to the head of the deceased caused by the appellant alone with his .32 bore Arminius revolver; (n). as per the CFSL Report, blood found on various articles seized from the said flat and from Bagia Restaurant and the blood found on the bullets recovered from the skull tallied.

It was of the blood group of the deceased. (o) the defe.nce of alibi pleaded by the appellant was found to be false; and (p) the appellant and A2-Keshav conspired to cause disappearance of the evidence of murder by burning the dead body of the deceased in tandoor of 8agia Restaurant. c 57. We have no doubt that the chain of the above circumstances is complete and unerringly points to the guilt of the appellant. The established circumstances are capable of giving rise to inference which is inconsistent with any other hypothesis except the guilt of the appellant. The prosecution 0 has, therefore, proved that the appellant alone has committed the murder of the deceased in the said flat on 2/7/1995. The appellant conspired with A2-Keshav to do away with the dead body of the deceased so as to cause disappearance of the evidence of murder and, at the instance of the appellant, A2- E Keshav burnt the dead body in the tandoor.

The appellant has, therefore, rightly been convicted under Section 302 of the IPC and also for offence under Section 201 read with Section 120- 8 of the IPC. A2-Keshav has been acquitted of offence punishable under Section 302 read with Section 120-8 of the IPC. However, he ha·s been rightly convicted for offence F punishable under Section 201 read with Section 120-8 of the IPC. As already stated, he has not appealed against the said order of conviction. In view of the above, we confirm the conviction of the appellant for offence punishable under Section 302 of the IPC and also for offence punishable under Section G 201 read with Section 120-8 of the IPC. Having confirmed the conviction, we must now consider as to whether the death sentence awarded by the trial court and confirmed by the High Court should be confirmed. SUBMISSIONS ON SENTENCE:

58. On the question of sentence, we have heard Mr. Jaspal Singh at great length. He first took us to the judgment of the ¢.Onstitution Bench of this Court in Bachan Singh, etc. v. State of Punjab, etc. 3, where the Constitution Bench has noted the aggravating circumstances and mitigating circumstances and observed that while considering the question of sentence relative weight must be given to them. Counsel laid stress on the observation of the Constitution Bench that apart from the mitigating circumstances noted by it there are numerous other circumstances justifying the passing of the lighter sentence; that the mitigating factors in the area of death penalty must .receive a liberal and expansive construction by the court and that judges should never be bloodthirsty.

59. Counsel relied on the judgments of this Court in Santosh Kumar Satishbhushan Bariyar, etc. v. State of Maharashtra, etc. 4; Ramdeo Chauhan alias Raj Nath v. State of Assam5; Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka6; Aloke Nath Dutta & Ors. v. State of West Benga/7; Haresh Mohandas Rajput v. State of E Maharashtra6 and. State of Punjab v. Manjit Singh and Ors9• and submitted that public perception is extraneous to conviction as also sentencing. Age of the accused would be a relevant consideration. In a case of circumstantial evidence the courts should lean towards life imprisonment. Every murder is brutal. · F Brutality alone would not be a grou~d for judging whether the case is one of the rarest of rare cases. The court must consider whether the accused has a criminal history; whether he is a 3. (1980) 2 sec 684. 4. (2009) 6 sec 498. 5. (2001) 5 sec 714. 6. c2008) 13 sec 767. 1.

(2001) 12 sec 230. 8. c2011) 12 sec 56. 9. c2009J 14 sec 31. A criminal or a professional killer and whether he will be an ardent criminal and a menace to the society. Counsel pointed out that despite the fact that the offences committed by the accused were heinous in Mohd. Chaman v. State (NCT of Delhi)1°; Dilip Premnarayan Tiwari & Anr., etc. v. State of B Maharashtra 11; Sebastian alias Chevithayan v. State of. Kera/a12; Rajesh Kumar v. State through Government of NCT of Delhi13 and Amit v. State of Uttar Pradesh 14, the court converted the death sentence into life sentence. Counsel submitted that probability of reformation and rehabilitation of c the accused has to be considered and burden is on the State to lead evidence to prove that there is no probability of reformation or rehabilitation of the accused. Counsel submitted that Machhi Singh & Ors. v. State of Punjab 15 advocates principle of proportionality which is old and archaic and, hence, 0 we must fall back on Bachan Singh. ·counsel further submitted that there is a long lapse of time since the imposition of capital sentence and consideration of sentence by this Court.

The offence was committed on 2/7/1995. The trial court convicted and sentenced the appellant on 3/11/2003. The High Court· confirmed the death sentence on 19/2/2007. The appeal has E been pending in this Court for the last six years. He submitted that the appellant has already undergone more than 18 years imprisonment in the jail. This delay also provides a valid ground for commuting death sentence to life imprisonment. In this connection he relied on Piare Dusadh v. King Emperor16; Neti F Sreeramulu v. State of Andhra Pradesh17; Ediga Anamma v. 10. c2001) 2 sec 28. 11. c201 o) 1 sec 775. 12. c2010) 1 sec 58. 13. c2011 l t3 .sec 106. 14. (2012) 4 sec 107. 1s. (1983) 3 sec 410. 16. AIR 1944 FC 1. H 11 (1974) 3 sec 314 State of Andhra Pradesh 16; Ramesh and Ors. v. State of A Rajasthan19; Mohd. Farooq Abdul Gafur & Anr. etc. v. State of Maharashtra, etc. 20 and State of Uttar Pradesh v. Munesh. 21 Counsel submitted that the instant case does not fall in the category of rarest of rare cases.

The appellant has no criminal history. He is not a professional criminal. Death was caused by bullet injuries. It was not savage or brutal. The State has not laid any evidence to establish that the accused would commit criminal acts of violence as would constitute continuing threat to the society. Therefore, the principle that life imprisonment is the rule and death sentence is an exception must be applied c to this case. Counsel submitted that body was burnt to destroy evidence. That would not bring this case in the category of rarest of rare cases (Santosh Kumar Bariyar). Counsel submitted that evidence on record establislies that the appellant loved the deceased. He married her despite the fact that she D had an affair with PW-12 Matloob Karim. She continued to have relations with PW-12 Matloob Karim despite his objection after marriage. The deceased was not a hapless woman. She was an independent woman. Since crime is committed in such circumstances, death sentence should not be awarded to the appellant.

60. On the other hand, relying on the judgments of this Court in Ediga Anamma22; Mahesh s/o. Ram Narain, & Ors. v. State of Madhya Pradesh23; Machhi Singh; Molai & Anr. v. State of Madhya Pradesh24; 'State of Rajasthan v. Kheraj F Ram25 ahd Dhananjoy Chatterjee alias Dhana v. State of 18 (1974) 4 sec 443. 19 (2011) 3 sec 685. 20. (2010) 14 sec 641. 21. (2012) 9 sec 742. 22. (1974) 4 sec 443. 23. (1987) 3 sec 80. 24. (1999) 9 sec 581. 25 (2003) 8 sec 224. West Benga/26 Mr. Chandhiok, learned Additional Solicitor General, submitted that the appellant deserves no sympathy. The crime committed by the appellant is horrendous and warrants death penalty. Counsel submitted that the deceased was a hapless lady; qua her, the appellant was in a dominating position; the appellant always ill-treated her and refused to acknowledge her as his wife though she was residing with him; his plea was held to be false; he showed no remorse after the murder and he tried to destroy the evidence in a most barbaric manner.

Thus, there are no mitigating circumstances, in this c case. A sentence other than the death sentence will not operate as a deterrent and may send a wrong signal to the society. Counsel submitted that the object of sentencing is to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done. Drawing our attention to paragraphs 19, 22, 87 and 88 of the impugned judgment, counsel submitted that the High Court has given strong, convincing and legally sound reasons for awarding death penalty, which do not deserve to be disturbed. On the aspect of delay, relying on the judgment of this Court in Smt. Triveniben, etc. v. State of Gujarat, etc. 27, E counsel submitted that in this case the Constitution Bench has held that while considering whether the death sentence should be awarded or not, the time utilized in judicial proceedings upto final verdict cannot be taken into account.

This 'is not a case of delay in disposing of mercy petition. Counsel submitted that F while awarding death sentence, perception of the Society is one of the considerations. Counsel submitted that this case is one of the most widely published and infamous murder case. It is a case where this Court must, by confirming the death sentence, send a strong signal to the society which will operate as an G effective deterrent in future. 26. (1994) 2 sec 220. H 27. (1989) 1 sec 678. ANALYSIS OF SUBMISSIONS ON SENTENCE AND CONCLUSION:

61. Learned counsel have drawn our attention to the decisions of the Constitution Bench of this Court in Bachan Singh and Machhi Singh. We must begin ·with them. In Bachan Singh, after referring to Ediga Anamma, which had, in turn, referred to Neti Sreeramulu, constitutional validity of death penalty for murder provided in Section 302 of the IPC and the sentencing procedure embodied in sub-section (3) of Section 354 of the Code was considered. The Constitution Bench observed that the death penalty should be imposed in rarest of rare/gravest cases. It was observed that while considering the question of sentence relative weight must be given to the aggravating and mitigating circumstances. The Constitution Bench noted th~ aggravating circumstances as under: "(a) if the murder· has been committed after previous planning and involves extreme brutality; or (b) if the mur\:ler involves exceptional" depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servantwas on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted. in the lawful c discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code." The mitigating circumstances were noted as under: "(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accusec;l is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in t.tie facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."

62. The Constitution Bench noted that there are numerous other circumstances justifying the passing of the lighter sentence as there are countervailing circ.umstances of SUSHIL SHARMA v .. STATE OF N.C.T. OF DELHI · [RANJANA PRAKASH DESAI, J.] aggravation. It was further observed that the court cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be over-emphasized that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy. It was further observed that Judges should never be bloodthirsty. Relevant observations of the Constitution Bench read as under: "Judges should never be bloodthirsty. Hanging of murderers has n~ver been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency – a fact which attests to c the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupu.lous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably· foreclosed."

63. In Machhi Singh, a three Judge Bench of this Court considered whether death sentence awarded to the appellants should be confirmed. In thaf case as a result of a family feud the appellants with a motive of reprisal, committed 17 murders . in five incidents occurring in the same night in quick succession in the five neighbouring villages: Some of the accused were sentenced to death. This Court referred to the judgment of the A Constitution Bench in Bachan Singh and culled out the following propositipns as emerging from Bachan Singh's case: "(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears t.o be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." It was further observed that to apply these guidelines court G must ask and answer the following questions: "(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" In the facts of the case, death sentence awarded to some of the accused was confirmed. .

64. We shall now go to some of the other judgments on which reliance is placed by the appellant and the respondent. It is not necessary to refer to all the judgments because they reiterate the same principles. JUDGMENTS RELIED ON BY THE APPELLANT:

65. In Mohd. <;haman, the appellant had raped a 1 Yi year- old girl. In the process ofcommitting rape, injuries were inflicted c on liver which resulted in-death of the child. The trial court sentenced him to death. The High Court confirmed the death penalty. This Court observed that the crime was undoubtedly serious and heinous and the conduct of the appellant was reprehensible. It revealed a dirty and perverted mind of a human being who has no control over his carnal desires. However, after treating the case on the touchstone of the guidelines laid down in Bachan Singh and Machhi Singh, this Court was of the view that the appellant was not such a dangerous person that to spare his life will endanger the community. It was further observed that the circumstances of the crime were not such that there was no alternative but to -impose ,death sentence even after according maximum weightage to the mitigating circumstances in favour of the offender. It was observed that the case is one in which a humanist approach should be taken while awarding punishment. The capital punishment imposed against the appellant was set aside and the appellant was sentenced to life imprisonment.

66. In Aloke Nath. Dutta, the appellant, who had many vices, was in need of money. Out of greed for money, he killed his brother. The trial court sentenced the appellant to death. The A High Court confirmed the death sentence. This Court held that though the offence was gruesome, the case was not one of the rarest of rare cases. This Court observed that though the deceased w~s killed while he was in deep slumber, the method applied cannot be said to be cruel. This Court noted that both 8 the brothers i.e. the deceased and the appellant were living in the same premises for a long time; they were looking after their parents and the other brothers had filed a :>uit against them and their mother apprehending that their mother would bequeath the property in favour of the appellant and the deceased. This Court C held that the prosecution had failed to prove the case of conspiracy and, in the circumstances, the case did not fall in the category of rarest of rare cases. The appellant's death penalty was commuted to life imprisonment.

67. In Manjit Singh, the case of the prosecution was that D Bhinder Kaur, the wife ef the deceased-Sewa Singh was having illicit relationship with the accused, who were working as Sewadars in the Gurdwara where the deceased used to recite Kirtan. Having come to know this, deceased-Sewa Singh and his son used to beat Bhinder Kaur .. Enraged by this, the E accused came to the house of deceased-Sewa Singh and murdered him by assaulting him with Kirpan and Khanda. The son of deceased-Sewa Singh and two others were killed in the Gurdwara by them. The accused were sentenced to death by the trial court. The High Court, however, commuted the death F sentence to life imprisonment. The State of Punjab appealed to this Court. It was argued that the High Court was not right in converting the death sentence into life imprisonment. This Court observed that whether the case is one of the rarest of rare cases is a question which has to be determined on the facts G of each case.

Only where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society; where the crime is committed in an organized manner and is gruesome, cold- blooded, heinous and atrocious; where innocent and unarmed H persons are attacked and murdered without any provocation, death sentence should be awarded. In the facts of the case before it, this Court held that being driven more by infatuation and also being devoid of their senses on coming to know about the ill-treatment meted out to Bhinder Katir, ·the accused committed the murders. It was observed that though the act of the accused was gruesome it was a result of human mind going astray. In the circumstances, the High Court's order commuting death sentence to life imprisonment was confirmed. 68 In ~antosh Kumar Bariyar, all the accused including the appellant were unemployed young men in search of job.

In execution of a plan proposed by the appellant and accepted by them, they kidnapped a friend of theirs with the motive of procuring ransom from his family but later murdered him and after cutting· his body into pieces disposed of the same at different places. One of the accused turned approver. The prosecution case wa.s based exclusively on his evidence. The trial .court awarded death sentence to the appellant. The High ~ourt confirmed the death sentence. In appeal, this Court held that doctrine of proportionality provides for justifiable reasoning for awarding death penalty. However, while imposing any sentence on the accused the court must also keep in mind the doctrine of rehabilitation. The court cannot, therefore, determine punishment on grounds ·of proportionality alone. This Court observed that there was nothing to show that the appellant could not be reformed and rehabilitated.

It was further observed that the manner and method of disposal of the dead body of the deceased made the case a most foul and despicabfe-ca5e of murder.· However, mere mode of disposal of the dead body may not by itself b-e made the ground for inclusion of~a case in the rarest of carJ category for the purpose of imposition of death sentence. It may have to be considered along with several other. factors. This Court was of the view that the fact that the prosecution case rested on the evidence of the approver, will have to be kept in mind. It was further observed that where the death sentence is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be A such which leads to an exceptional case. It was further observed that the discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult because of the irrevocable character of death penalty.

Where two views ordinarily could be taken, imposition B of death sentence would not be appropriate, but where there is no other option and it is shown that reformation is not possible, death c;entence may be imposed. In the circumstances, the death sentence was converted to life imprisonment c 69. In Sebastian, the appellant had trespassed into the complainant's house and kidnapped his two year-old daughter. He then raped and killed her. The trial court sentenced him to death. The death sentence was confirmed by the High Court. This Court considered the fact that the appellant was a young D man of 24 years of age at the time of incident and that the case rested on circumstantial evidence, and substituted the death sentence by life sentence. It was, however, directed that the appellant shall not be released from prison for the rest of his life.

70. In Rajesh Kumar, the appellant was convicted for killing two children aged four-and-a-half years, and eight months in a brutal and diabolical manner. He had held the legs of the infant and hit the child on the floor, and had slit the throat of the elder F son with a piece of glass which he had obtained by breaking the dressing table glass. The motive for crime was said to be the refusal by the father of the children to lend money to him. The trial court imposed death sentence on the appellant. The High Court confirmed the death sentence. On appeal, this Court G held that the State had failed to show that the appellant was a continuing threat to the society or that he was beyond reform and rehabilitation. It was observed that the High Court has taken a very narrow and a myopic view of the mitigating circumstances about the appellant. It was observed that the brutality of murder alone cannot justify infliction of death penalty. The death sentence was, in the circumstances, set aside and the appenant was sentenced to life imprisonment.

71. In Ramesh, Ramlal, who was doing business of money lending and his wife Shanti Devi were found lying dead in a pool of blood in their house-cum-shop. Pursuant to the FIR registered under Sections 302 and 457 of the IPC, the appellant was arrested along with others. The case of the prosecution was that the appellant and other accused had decided to commit robbery at the house-cum-shop of Ramlal. They trespassed into it; looted the house-cum-shop and decamped with the ornaments of silver, gold and cash. The murder weapon was C recovered from the appellant. The trial court convicted the appellant, inter alia, under Sections 120-B and 302 of the IPC. He was sentenced to death. The High Court confirmed the death sentence. On appeal, this Court observed that though the case was of double murder, it cannot be said to be a crime of D enormous proportion. The appellant could not be said to be a person in a dominating position as it was not a murder of an innocent child or a helpless woman or old or infirm person. Though it was the case of the prosecution that the appellant was having criminal record, this Court noticed that. it did not find any E previous conviction having been proved against him. The 'original intention was theft and on account of the deceased having been awakened, the accused took the extreme step of eliminating both of them for fear of being ·detected. This Court further observed that it cannot be said that the appellant alone had committed the murder because he discovered the murder weapon. It was not clear as to who was the actual author of the injuries. This Court noted that the appellant was languishing in death cell for more than six years. That would also be one of the mitigating circumstances. In the circumstances, death G sentence awarded to the appellant was converted into life imprisonment.

72. In Amit, the complainant lodged FIR alleging that while his mother and wife were present in the house, the appellant H came there, took away his 3 year-old daughter on the pretext that he would give her biscuits. However, neither the appellant nor the complainant's daughter returned. Investigation disclosed that the appellant had kidnapped the girl. She was subjected to unnatural offence and rape. She was hit on the head and was strangulated. The trial court convicted the appellant, inter alia, under Section 302 of the IPC and sentenced him to death. The High Court confirmed the death sentence. On appeal, this Court set aside the death sentence. This Court observed that the appellant was a young person aged about 28 years. There was no evidence to show that he had committed such offences earlier. There was nothing on record to show that he was likely to repeat similar crimes in future. This Court expressed that given a chance, the appellant may reform over a period of years. This Court sentenced the appellant to life imprisonment and observed that life imprisonment shall extend to the full life of the appellant, but subject to any remission or commutation at the instance of the Government for good and substantial reasons.

73. We may also refer to Mohinder Singh v. State of Punjab28, where the appellant, who was serving 12 years' rigorous imprisonment for having raped his own daughter was released on parole. While on parole, he murdered his wife and the daughter, whom he had raped earlier, by giving repeated axe-blows on their heads. His other daughter saved herself by hiding in a room and bolting the same from inside. The trial court convicted him under Section 302 of the IPC and sentenced him to death. The High Court confirmed the death sentence. This Court observed that the appellant was a poor man and was unable to earn his livelihood since he was driven G out of his house by the deceased-wife. It was his grievance that the deceased-wife was adamant that he should live outside and that was the reason why the relations were strained. The appellant was fe~ling frustrated because of the attitude of his 2a. (2013) 3 sec 294. wife and children.

This Court also took into consideration the A fact that the appellant did not harm his other daughter who was there even though he had a good chance to harm her. This Court observed that after balancing the aggravating and mitigating circumstances emerging from the evidence on record, it was not persuaded to accept that the case can B . appropriately be called the rarest of rare case warranting death penalty. This Court also expressed that it was difficult to hold that the appellant was such a dangerous person that he will endanger the community if his life is spared. The possibility of reformation of the appellant could not be ruled out. In the c circumstances, this Court converted the death sentence into life imprisonment. However, after referring to its judgment in Sangeet & An;. v. State of Haryana29, this Court observed that there is a misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 D years' or 20 years' imprisonment.

A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Cr.P.C. which in turn is subject to the procedural checks mentioned in the said provision and further substantive checks in Section 433-A of E the Cr.P.C., This Court, therefore, sentenced the appelfant to undergo rigorous imprisonment for life, meaning thereby imprisonment till the end of his life but subject to any remission granted by the appropriate Government satisfying the conditions prescribed in Section 432 of the Cr.P.C. and further F substantive checks under Section 433-A of the Cr.P.C. by passing appropriate speaking order. JUDGMENTS RELIED ON BY THE RESPONDENT- STATE.

74. In Mahesh, fiye persons were murdered because of marriage of a lady of a higher caste with a Harijan boy. They were axed to death in an extremely brutal manner. After the 29. (2013) 2 sec 452. murders, the accused tried to break open the door of the room where two of the prosecution witnesses were hiding to save themselves and they left the place only when the door could not be opened. The accused were convicted under Section 302 of the IPC and sentenced to death by the trial court. While confirming the death sentence, this Court observed as under: c "It will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. But this does not mean that the Court ignore the need for a reformative approach in the sentencing process. But here, there is no alternative but to confirm the death sentence."

75. In Dhananjoy Chatterjee, the appellant had raped and murdered a young 18 year-old girl in her flat in a society where he was working as a security guard. The trial court found him guilty, inter alia, under Sections 302 and 376 of the IPC. The High Court confirmed the sentence of death. This Court also confirmed the death. sentence by observing that the case falls in the category of rarest of rare cases. This Court observed as under: "The faith of the society by such a barbaric act of the guard, gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case. We agree that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a..-.cold blooded preplanned brutal murder, without any provocation, after committityg rape on an innocent and defenceless young girl of 18 years, by the security guard certainly makes this case a "rarest of the rare" cases which calls for no punishment other than the capital punishment and we accordingly confirm the ·sentence of death imposed upon the appellant for the offence ·under Section 302 /PC."

76. In Molai, a 16 year-old girl was preparing for her class 10th examination at her house. Both the accused took advantage of her being alone in the house and committed rape on her. Thereafter, they strangulated her by using her undergarment and took her to the septic tank along with the cycle and caused injuries with a sharp-edged weapon. Then, they threw the dead body into a septic tank. The trial court awarded death sentence to the accused which was confirmed by" the High Court. This Court confirmed the death sentence observing that there was no mitigating circumstance, which could justify the reduction of sentence of death penalty to life imprisonment.

77. In Kheraj Ram, suspecting infidelity on the part of his wife, the accused-Kheraj Ram killed her, his two children and brother-in-law. The trial court convicted him under Section 302 of the IPC and sentenced him to death. The High Court noted that the case rested on circumstantial evidence. The circumstances were not proved and, therefore, the accused was entitled to acquittal. On appeal, this Court held that the prosecution had established its case; that the murder was committed in a cruel and diabolic manner; the accused did not act"on any spur-of-the-moment provocation; the murder was deliberately planned and meticulously executed and after the incident, the accused smoke chi/am with calmness, which indicated that he had no remorse and he was satisfied with what he had done. This Court observed that the victims were two A innocent children and a helpless woman. They were done to death in an extremely gruesome and grotesque manner. In the circumstances, this Court set aside the order of acquittal and confirmed the death sentence awarded by the trial court.

78. In light of the above judgments, we would now ascertain what factors which we need to take into consideration while deciding the question of sentence. Undoubtedly, we must locate the aggravating and mitigating circumstances in this case and strike the right balance. We must also consider whether there is anything uncommon in this case which renders the sentence C to life imprisonment inadequate and calls for death sentence. It is also necessary to see whether the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender.

79. We notice from the above judgments that mere brutality of the murder or the number .of persons killed or the manner in which the body is disposed of has not always persuaded this Court to impose death penalty. Similarly, at times, in the peculiar E factual matrix, this Court has not thought it fit to award death penalty in cases, which rested on circumstantial evidence or solely on approver's evidence. Where murder, though brutal, is committed driven by extreme emotional disturbance and it does not have enormous proportion, the option of life imprisonment F has been exercised in certain cases. Extreme poverty and social status has also been taken into account amongst other circumstances for not awarding death sentence. In few cases, time spent by the accused in death cell has been taken into consideration along with other circumstances, to commute G death sentence into life imprisonment. Where the accused had no criminal antecedents; where the State had not led any evidence to show that the accused is beyond reformation and rehabilitation or that he would revert to similar crimes in future, this Court has leaned in favour of life imprisonment. In such cases, doctrine of proportionality and the theory of deterrence have taken a back seat. The theory of reformation and rehabilitation has prevailed over the idea of retribution.

80. On the other hand, rape followed by a cold-blooded murder of a minor girl and further followed by disrespect to the body of the victim has been often held to be an offence attracting death penalty. At times, cases exhibiting premeditation and meticulous execution of the plan to murder by levelling a calculated attack on the victim to annihilate him, have been held to be fit cases for imposing death penalty. Where innocent minor children, unarmed persons, hapless women and old and infirm persons have been killed in a brutal manner by persons in dominating position, and where after ghastly murder displaying depraved mentality, the accused have shown no remorse, death penalty has been imposed. Where it is established that the accused is a confirmed criminal and has committed murder in a diabolic manner and where it is felt that reformation and rehabilitation of such a person is impossible and if let free, he would be a menace to the society, this Court has not hesitated to confirm death sentence. Many a time, in cases of brutal murder, exhibiting depravity and sick mind, this Court has acknowledged the need to send a deterrent message to those who may embark on such crimes .in future. In some cases involving brutal murders, society's cry for justice has been taken note of by this court, amongst other relevant factors. But, one thing is certain that while deciding whether death penalty should be awarded or not, this Court has in each case realizing the irreversible nature of the sentence, pondered over the issue many times over. This Court has always kept in mind the caution sounded by the Constitution Bench in Bachan Singh that judges should never be bloodthirsty but has wherever necessary in the interest of G society located the rarest of rare case and exercised the tougher option of death penalty.

81. In the nature of things, there can be no hard and fast rules which the court can follow while considering whether an [2013) 16 S.C.R. A accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there B is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a thre~t to the society are factors which the criminal court will have to examine independently in each case. Decision whether c to impose death penalty or not must be taken in light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.

82. We must also bear in mind that though, the judicial D proceedings do take a long time in attaining finality, that would not be a ground for commuting the death sentence to life imprisonment. Law in this behalf has been well settled in Triveniben. The time taken by the courts till the final verdict is pronounced cannot come to the aid of the accused in E canvassing commutation of death sentence to life imprisonment. In Triveniben, the Constitution Bench made it clear that though ordinarily, it is expected that even in this Court, the matters where the capital punishment is involved, will be given top priority and shall be heard and disposed of as F expeditiously as possible but it could not be doubted that so long as the matter is pending in any court, before final adjudication, even the person who has been condemned or who has been sentenced to death has a ray of hope. It, therefore, could not be contended that he suffers that mental G torture which a person suffers when he knows that he is to be hanged but waits for the doomsday. Therefore, the appellant cannot draw any support from the fact that from the day of the crime till the final verdict, a long time has elapsed. It must be remembered that fair trial is the right of an accused. Fair trial H involves following the correct procedure and giving opportunity to the accused to probabalize his defence. In a matter such as this, hurried decision may not be in the interest of the appellant.

83. We must now examine the present case in ligtit of our observations in the preceding paragraphs. The appellant was the State President of the Youth Congress in Delhi. The deceased was a qualified pilot and she was also the State General Secretary of Youth Congress (Girls Wing), Delhi. She was an independent lady, who was capable of taking her own decisions. From the evidence on record, it cannot be said that she was not in touch with people residing outside the four walls of her house. Evidence discloses that even on the date of . incident at around 4.00 p.m. she had contacted PW-12 Matloob Karim. She was not a poor illiterate hapless woman. Considering the social status of the deceased, it would be difficult to come to the conclusion that the appellant was in a dominant position qua her. The appellant was deeply in love with the deceased and knowing full well that the deceased was very close to PW-12 Matloob Karim, he married her hoping that the deceased would settle down with him and lead a happy life.

The evidence on record establishes that they were living toge.ther and were married but unfortunately, it appears that the deceased was still in touch with PW-12 Matloob Karim. It appears that the appellant was extremely possessive of the deceased. The evidence on record shows that the appellant suspected her fidelity and the murder was the result of this possessiveness. We have noted that when the appellant was taken to Lady Hardinge Mortuary and when the dead body was shown to him, he started weeping. It would be difficult, therefore, to say that he was remorseless. The fact that he absconded is undoubtedly a circumstance which will have to be taken against him, but the same, in our considered view, would be more relevant to the issue of culpability of the accused which we have already decided against him rather than the question of what would be the appropriate sentence to be awarded which is presently under consideration.

The medical evidence does not establish that the dead body of the deceased was cut. The A second post-mortem report states that no opinion could be given as to whether the dead body was cut as dislocation could be due to burning of the dead body. There is no recovery of any weapon like chopper which could suggest that the appellant had cut the dead body. It is pertinent to note that no member B of the family of the deceased came forward to depose against the appellant. In fact, in his evidence, PW-81 10 Niranjan Singh stated that the brother and sister-in-law of the deceased stated that they were under the obligation of the appellant and they would not like to depose against him. Murder was the outcome c of strained personal relationship. It was not an offence against the Society. The appellant has no criminal antecedents. He is not a confirmed criminal and no evidence is led by the State to indicate that he is.likely to revert to such crimes in future.

It is, therefore, not possible in the facts of the case to say that 0 there is no chance of the appellant being reformed and rehabilitated. We do not think that that option is closed. Though it may not be strictly relevant, we may mention that the appellant is the only son of his parents, who are old and infirm. As of today, the appellant has spent more than 10 years in death cell. Undoubtedly, the offence is brutal but the brutality alone would E not justify death sentence in this case. The above mitigating circumstances persuade us to commute.the death sentence to life imprisonment. In several judgments, some of which, we have referred to hereinabove, this Court has made it clear that life sentence is for the whole of remaining life subject to the remission granted by the appropriate Government under Section 432 of the Cr.P.C., which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive checks in Section 433-A of the Cr.P.C. We are inclined to issue the same direction.

84. We have already confirmed the conviction of the appellant for offence punishable under Section 302 of the. I PC and for offence punishable under Section 120-B read with Section 201 of the IPC. In view of the above discussion, we H commute the death sentence awarded to appellant – Sushil SUSHIL SHARMA v, STATE OF N.C.T. OF DELHI [RANJANA PRAKASH DESAI, J.] Sharma to life sentence. We make it clear that life sentence is for the_whole of remaining life of the appellant subject to the remission granted by the appropriate Government under Section 432 of the Cr.P.C., which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive checks in Section 433-A of the Cr.P.C.

85. Appeal is disposed of in the aforestated terms. Bibhuti Bhushan Bose Appeal disposed of.