Manmohan Sarin, J.:— Lust for two ‘Z's i.e Zar (wealth) and Zameen (Land) by the appellants led to the commission of this ghastly crime. The genesis lay in the second marriage of one of the appellant's father. Thus the third proverbial ‘Z’ i.e Zun (Woman) too played its own part.
2. This judgment would decide Crl. A. 805/2004 preferred by Appellant-Atbir as also Murder Reference No. 3/2004 moved by the State. Atbir challenges his conviction under Section 302 IPC by judgment dated 10th September, 2004 and order of sentence of death dated 27th September, 2004. Appellant-Ashok has preferred Crl.A.876/2004, against his conviction under Section 302 IPC and the sentence of life imprisonment awarded to him.
3. Appellant-Atbir son of Jaswant Singh, Ashok Kumar @ Ashok son of Nanhu Singh, Arvind son of Rajbir and Chandra, first wife of Jaswant Singh, all were charged for offences under Section 302 read with Section 34 IPC for the murder of Smt. Sheela Devi current wife of Jaswant Singh, Sonu @ Savita daughter of Jaswant Singh and Manish S/o Jaswant Singh from Smt. Sheela Devi. Chandra could not be arrested and brought to trial. She was declared a proclaimed offender.
4. The learned Additional Sessions Judge found Atbir and Ashok guilty of offences under Section 302/34 IPC and sentenced Atbir to death, while Ashok was sentenced to life imprisonment. Arvind was given benefit of doubt and acquitted.
5. The facts, as unveiled during the trial, may be briefly noted:—
Jaswant Singh had married accused Chandra @ Chandrawati and from the said wedlock three issues were born, Satbir, Atbir and Anju. Jaswant Singh deserted Chandra @ Chandrawati in 1993. He thereafter married Sheela Devi, the deceased. From the marriage with Sheela, daughter Sonu @ Savita and deceased son Manish @ Mannu were born. Prosecution's case is that Satbir, the elder son from Chandra and accused Atbir were demanding from Jaswant Singh share in his property i.e, transfer of agricultural land in Bulandsahar, measuring 25-26 bighas in their favour. They were also demanding that they be given share in the house at Mukherjee Nagar, where Jaswant Singh was residing with his present wife Sheela and children or in the alternative to buy for them a house in Mathura. Jaswant Singh is stated to have executed a Will in respect of agricultural land in Bulandsahar, admea-suring 25-26 bighas in their favour but Atbir and Satibir were insisting on a transfer through a registered document, which Jaswant Singh promised to do in future provided Chandra and Atbir did not visit and trouble the family at N-33, Mukherjee Nagar.
6. The prosecution case is that on the afternoon of 22nd January, 1996, Chandra along with her son Atbir, Ashok and one Arvind entered the house at Mukherjee Nagar and demanded money from Sheela, who refused. Accused persons bolted the doors from inside. Thereafter, Atbir stabbed Manish @ Mannu, who was held by Chandra, Ashok and Arvind. Thereafter Sheela Devi was held by them and Atbir stabbed her and inflicted injuries on her. Thereafter Sonu @ Savita was held by them and Atbir stabbed her. Sheela and Manish were found dead while Sonu @ Savita was removed to Hindu Rao Hospital in a PCR Gypsy, where she made a dying declaration. She succumbed to injuries on 24th January. 1996.
7. The prosecution case is essentially based on the dying declaration made by Sonu @ Savita, who named Atbir as the person who had stabbed her deceased brother, mother and herself after being held by Chandra, Ashok and the third person Arvind, whom she did not name. As noted earlier, Arvind had been given benefit of doubt. Chandra could not be arrested to face trial. She was declared a proclaimed offender.
The prosecution case is supported by statement of one Suresh Chauhan, as having last seen the accused person proceeding towards the house of the deceased persons in the afternoon of 22nd January, 1996. This is further supported by an oral statement purported to be made by deceased Sonu @ Savita to Constable Kulvinder Singh, after the incident.
Submission of Appellants
Deceased was not in a fit state to give statement-Attendant circusmtances make dying declaration suspect
8. Mr. Chetan Sharma, Sr. Advocate for the appellants submits that the conviction of appellants Atbir as also that of Ashok is based on the dying declaration of Sonu @ Savita. He submits that Sonu was not in a fit mental and physical condition to even give a statement much less a coherent dying declaration in her state of health as evidenced by the medical record. It is urged that the police singularly failed to call the SDM, for recording of the dying declaration. Sonu was rushed to the hospital at about 2.30 p.m and there was sufficient time, as her statement was recorded at 4.05 p.m, to request the SDM to record the statement. The hospital was well located and easily accessible and it was afternoon and there was no reason for not calling the SDM.
9. Let us consider the legal position regarding reliance to be placed on a dying declaration recorded by a Police Officer. Counsel for the appellant relied on Munnu Raja v. State of Madhya Pradesh AIR 1976 SC 2199, Dilip Singh & Ors v. State of Punjab AIR 1979 SC 1173 to urge that dying declaration recorded by the police officer ought to be kept aside until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or a Doctor. In Munnu Raja v. State of Madhya Pradesh (supra), the court observed that dying declaration by a police officer ought to be discouraged even though it may not always be untrustworthy. The court emphasised that when better and more reliable methods of recording a dying declaration of an injured person are available, they should be resorted to. Dying declaration by a police officer should be relied on if there was no time or facility available to get a Magistrate to record it.
10. Regarding scrutiny and tests to be applied for determining reliability of dying declaration, the Supreme Court in Harbans Singh & Anr v. State of Punjab 1962 SCR Supp. 104 held that a dying declaration should be subjected to close scrutiny and once the court reaches the conclusion that dying declaration was a truthful version, there was no question of further corroboration being required. However, on the other hand, if the court after examining the dying declaration in all aspects and testing its veracity, comes to the conclusion that it was not reliable by itself and suffers from infirmity, then without corroboration, it cannot form basis of conviction.
In Smt. Laxmi v. Om Prakash and ors AIR 2001 SC 2383, the court held that “One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. In case the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or it entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement, the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration, refuse to act on it.
Again in Joginder Singh & Anr v. State of Haryana JT 2002 (9) SC 429, the court questioned the reliability of the dying declaration where the victim was in a serious condition, Blood Pressure was not recordable, pulse was not palpable, statement was recorded by a subordinate police officer and the Doctor was not even aware of the language in which it was recorded. Patient's condition was such that he was prone to suggestions only. Death occurred within one to two hours. In these circumstances, the court held that there was every reason to doubt the veracity of the statement.
11. Having noted the manner of scrutiny and tests to be applied to determine the veracity and reliability of dying declaration, let us examine the dying declaration in the present case. The first plank of the appellants submission is that deceased Sonu was rushed to the hospital at 2.30 p.m and since her statement was recorded at 4.05 p.m, there was enough time to call a Magistrate and get her statement recorded. The basic premise itself is not correct as the time of admission at the hospital was 3.30 p.m and the dying declaration was recorded at 4.05 p.m Considering the nature of injuries sustained and the various steps taken in treatment, whereby deceased after initial emergency treatment on admission, was shifted to the emergency ward of surgery and orthopaedics and examined by different doctors, it can be safely concluded that there was hardly any time available to secure the presence of the Magistrate for recording the statement. Moreover, in this case, dying declaration is authenticated by an independent disinterested Doctor who had examined the deceased. There is no reason and in fact there is nothing on record to suggest any collusion between the Doctor and deceased's family. There is nothing to suggest that the Doctor was interested in manipulating or fabricating dying declaration. The authorities cited and relied on by the appellants counsel would, therefore, not advance his submission in the present facts. The submission regarding the deceased not being in a fit mental and/or physical state and other alleged doubtful circumstances are separately dealt with in the judgment.
12. Mr. Sharma urges that the attendant circumstances as also the certification regarding the patient being fit for statement by different doctors, raise suspicion. Besides, the firm manner in which signatures of Sonu are appended on the dying declaration raises a strong suspicion on the very authenticity and credibility of the dying declaration. He submits that there was no occasion of getting another certification from Dr. Sharat Chandra Jai Singh, when Dr. Tomar had so certified and given his opinion. The above factors coupled with police Constable Kulwinder Singh, not informing his immediate superior Addl. SHO Insp. V.S Chauhan of Sonu having allegedly told that Atbir stabbed her, her brother and mother, after being held by Ashok, Chandra and another person raise suspicion. Mr. Chetan Sharma submits that had the oral statement been made by Sonu to Const. Kulwinder, it would have been heard by Arvind Monga also. Arvind Monga deposed only as to the deceased having recognised him by calling him “uncle” and does not mention deceased naming Atbir as the assailant.
13. Let us consider the first submission of the appellant that deceased Sonu was not in a fit physical or mental condition to give any statement or dying declaration.
14. It is submitted on behalf of the appellants that the incident took place at 2.30 p.m The deceased was admitted in the Casualty of Hindu Rao Hospital at 3.30 p.m The dying declaration is purported to have been made at 4.05 p.m i.e, nearly one and a half hour after the incident. The deceased is alleged to have suffered 21 injuries and 5 major stab wounds. Both external jugular vein and facial artery were cut. Muscle of the neck had been cut. Based on the postmortem report, it is claimed that the right common carotid artery was cut. With these injuries, there would be sufficient loss of blood. The record shows that the deceased was bleeding profusely. In these circumstances, it is urged that supply of blood to the brain would be affected and it would not have been possible for the deceased to remain conscious and make a coherent dying declaration. The trachea had also been torn, which would affect the capacity to speak. Reference was also made by the appellants' counsel to Modi's Medical Jurisprudence to urge that with a cut carotid artery the injured succumbs quite fast. Appellants submit that Sonu's condition had deteriorated. She was being wheeled into the operation theatre for surgery. There was thus no occasion for Dr. Sharat Chandra to make the endorsement regarding her being in a fit medical condition when immediately preceding Dr. Tomar had made a similar endorsement. Appellants urged that while the dying declaration is stated to be signed by Sonu in a clear and firm manner, her consent for surgery taken almost contemporaneously carries only a thumb impression. Appellants submit that the aforesaid circumstances are sufficient to cast a cloud on the credibility of the dying declaration and this being the sole piece of evidence to link the appellants/accused with the crime, appellants would be entitled to benefit of doubt.
Evaluation of Dying Declaration - medical record and treatment of deceased
15. The Additional Sessions Judge has found the dying declaration credit worthy and has held the same to have been made by the deceased in a fit mental state to depose.
16. For facility of reference, the English translation of the dying declaration, as made by the deceased to Insp. V.S Chauhan, in the presence of Dr. Sharat Chandra Jai Singh and as recorded bv him. is rerproduced:—
“She resides at N-33, Mukherjee Nagar. The name of her father is Jaswant Singh and name of her mother Smt. Sheela. At about 2.30 p.m she along with her mother Sheela, her brother Mannu were present at home and were doing their work. In the meanwhile, her step mother Chandra along with her son Atbir, Ashok and one more person whose name she does not know had entered in their house. They asked her mother to pay money to which her mother replied “she has no money'. Thereafter, the doors of the house were bolted from inside by them. Atbir took out the knife. Her step mother Chandra, Ashok and third person had caught hold of her brother Manish @ Manu and Atbir gave stab blows to him and injured him badly. Thereafter, they caught hold her mother and Atbir had also inflicted injuries to her and thereafter, she was also caught hold by those persons and gave knife blows to her as a result of she was also badly injured. She had witnessed the incident with her own eyes and she was brought by the PCR van”.
17. The aforesaid dying declaration is signed by Sonu @ Savita. It carries an endorsement by Dr. Sharat Chandra to the effect that she was in a fit mental state. From the perusal of the dying declaration, it would be seen that there is total clarity in its contents. It is not a case, where the deceased was either rambling, unsure or had contradicted herself.
18. With a view to objectively consider the appellants' submission that due to the nature of injuries sustained and the profuse bleeding and the passage of time, resulting in loss of blood, it would not have been possible for the deceased to have made a coherent dying declaration, we have carefully gone through the medical record. The clinical and treatment notes, statements of doctors, namely, Dr. V. Tomar/PW-35, Dr. Sharat Chandra Jai Singh/PW-30, Dr. (Mrs) Ruma Jain and Dr. C.V Debas, Head of the Department, Forensic Department, Hindu Rao Hospital, Delhi, who conducted postmortem and submitted his report, have been perused. Reliance has been placed by the appellants on the Postmortem Report to urge that the right common carotid artery was partially cut along with both external jugular veins and left facial artery. Deceased had sustained 21 injuries in all.
19. An examination of the medical record shows that Sonu @ Savita was admitted on 22nd January, 1996 at 3.30 p.m with the history of assault. Her condition on admission, as recorded, was not satisfactory. The pulse was feeble. Blood Pressure was 90/56. The respiratory rate was 20. She was conscious but drowsy. She was responding to verbal commands. Nothing abnormal was found in chest or CVS. The pupils were having normal reaction. She was given tetanus injection, wounds were dressed. She was referred to emergency ward of surgery and Orthopaedics. The observations, as recorded by the Emergency Orthopaedic was also that the patient was conscious and oriented. In the meanwhile, the blood pressure had also improved. She was then seen by EMO Surgery, who found the patient to be conscious, restless but oriented, pulse 120 and BP 92/70. The pupils were normal. The neck injury was found to be bleeding massively and urgent blood transfusion and exploration of the wounds in emergency OT was advised. She was administered glucose with potassium.
20. The wounds were stitched and closed, as required. The deceased was then moved into the operation theatre for carrying out the surgery of lapratomy and trachea wound repair. The general condition was poor. Pulse was 76 per minute, BP was 92/70 and she was bleeding profusely. As per the notes of the anesthesiologist, the following surgical procedures were done.
Exploration of neck wounds and abdomen done.
1. Central neck wound i.e Trachea was torn. The wound was explored. Tracheal debridement and repair done.
2. Left Side neck wound in retro and infra mandibular area. Actively bleeding. Exploration done. Facial artery and external jugular were torn. Ligation of vessels done.
3. Right neck wound exploration, Ligation of external jugular vein done.
4. Abdomen—Two stab injuries were in lower abdomen one on each side. Peritoneum was torn on exploration a tear in mesentry was found and repaired. Massive haemo peritoneum and bowel injury.
5. Small stab injury in back stitched.
Abdomen closed with prolene (Mass Closing with peritoneal drain.) Two stab injuries were attended to and repaired.
21. After the above surgical procedures on 22.1.96, patient was sent to ICU. It may be noted that on 23rd January, 1996, hemoglobin had improved up to 12. Patient's condition thereafter deteriorated and she was put on a ventilator. She finally expired on 24th January, 1996 at 12.30 p.m
22. With the aforesaid record of medical condition and treatment of the deceased, as recorded, we need to consider, whether the deceased could have made the dying declaration before she was taken to the operation theatre for surgical procedure, as noted above. Reference may also be made to the postmortem report, where the doctor conducting the postmortem has reported that right common carotid artery was partially cut under injury No. 6 and has opined the cause of death to be due to shock and hemorrhage. Further, injuries mentioned at S.Nos 2, 4 and 6 of his statement, were sufficient in ordinary course of nature to cause death.
23. The carotid artery and jugular veins are the vessels supplying blood to the brain and face. Punctured carotid artery would result in diminished supply of blood to the brain and move the patient normally towards unconsciousness. However, an analysis of the aforesaid medical record reveals that the clinical and treatment notes by three doctors, who had examined the deceased, namely, Dr. V. Tomar, Dr. Sharat Chandra Jai Singh and Dr. (Mrs.) Ruma Jain had recorded their observations prior to the dying declaration and found the patient to be conscious and oriented and responding to verbal commands. Her condition was undoubtedly not satisfactory. The wounds had been dressed. Treatment such as tetanus, Glucose and IV fluids were administered in casualty itself. In view of the bleeding, even after the dressing of the wounds at casualty, she was referred to the Emergency Surgery and Orthopaedic Wards. There simple wounds were got stitched and repaired. Even at this stage she had sustained her vital parameters. However, the condition warranted surgical intervention. What is significant is that none of the doctors, who had examined her either at the time of admission or in the surgical or orthopedic wards or the doctors in the OT, who carried out the surgical procedures, noticed any damage to the right carotid artery. As per the detailed Operation Theatre notes, trachea was partially torn and repaired, facial artery and external jugular veins were torn and legation of these vessels done. Right neck wound and external jugular vein were attended to. There was no observation by any of these doctors, who examined her clinically or who carried the surgical procedures regarding the tearing of carotid vessel, which has been mentioned in the postmortem report.
24. The findings and observations of the treating physicians, operating surgeons has primacy over any observation in the postmortem report. It is not possible that a partially cut or ruptured carotid vessel would not be noticed either by the three doctors, who examined her, or those who carried out the dressing and stitching of wounds or by the surgeons who carried out surgical procedures in Operation Theatre.
25. Leaving that apart, doctors who had examined her remained steadfast in their testimony regarding her condition as a conscious and oriented person when they examined her and so certified. Even Dr. V. Tomar maintained that patient was speaking. He stated that he declared the patient fit after examination in presence of his seniors. Dr. Sharat Chandra has clearly maintained that patient was conscious, oriented and before being wheeled to the operation theatre made the dying declaration in his presence, which was recorded by Insp. V.S Chauhan and signed by him with an endorsement, regarding fit mental condition of the deceased. These are independent witnesses and there is no reason to suspect or view their testimony with any suspicion. Moreover, their findings and opinion gets support from the medical record, as maintained. Dr. Sharat Chandra had clearly deposed that the statement had been recorded in his presence and patient was in “composed mentis”. The endorsement bears his signatures. He further stated that Insp. Chauhan had read over the statement to the injured Sonu @ Savita, who signed in token of its correctness. In cross-examination, he confirmed that he heard her statement. He admitted that trachea was partially torn. He stated that when he examined the patient, he was of the opinion that surgical procedures for treating the injuries were necessary and, therefore, she was moved to the Operation Theatre. The dying declaration was recorded at 4.05 P.M on 22.1.96 She had been administered Glucose and also given blood transfusion. Her hemoglobin was recorded as 12 on 23.1.1996 She expired on 24.1.1996 at 12.30 P.M i.e nearly two days after recording of statement.
ATTENDANT CIRCUMSTANCES
26. Let us now consider the submission of the appellants, impugning the dying declaration on grounds of attendant circumstances propounded by the appellants, which according to them raise a doubt on the dying declaration.
27. Learned Senior counsel for appellant had urged that there was no occasion for Insp. V.S Chauhan to have contacted Dr. Sharat Chandra when Dr. V. Tomar had examined the deceased and given his endorsement regarding her being in a fit mental condition at 4.05 p.m on 22nd January, 1996. Dr. Tomar was the EMO, Surgery, while Dr. Sharat Chandra was the senior doctor, Incharge of Surgery. Once the condition of the patient warranted surgical intervention then in the normal course of things she had to be examined by Dr. Sharat Chandra, who was responsible for surgical procedures. After examining her, he decided tl at time was not to be lost and, therefore, directed that she be wheeled to Operation Theater. It would appear that Dr. Sharat Chandra had taken charge and it was in the natural course of things for Insp. V.S Chauhan to request Dr. Sharat Chandra for being permitted to take the dying declaration. Accordingly, certification and endorsement by Dr. Sharat Chandra stand duly explained.
28. Similarly the submission that Arvind Monga had deposed that all of them had returned to N-33 Mukherjee Nagar and hence there was no occasion for the Inspector to meet Dr. Sharat Chandra, is wholly mis-conceived. A perusal of the statement shows that Arvind Monga and others returned to N-33 Mukherjee Nagar after the deceased had been removed to Operation Threatre i.e, after the recording of the dying declaration.
29. In view of the foregoing discussion, we find that there is no merit in the appellants' submission that the deceased on account of her medical condition could not have made a dying declaration much less a coherent declaration and the same was not feasible. It is held that the prosecution has established beyond any doubt that the deceased made the dying declaration in a conscious and fit mental state and the same is beyond suspicion and can be relied on. The learned Additional Sessions Judge has correctly accepted and proceeded on the basis of the dying declaration.
CORROBORATION OF DYING DECLARATION
30. It is settled legal position that a conviction can be based solely on a dying declaration, which is accepted by the Court after scrutiny. However, in the instant case, the learned Additional Sessions Judge has found that the dying declaration made by the deceased as being corroborated by the oral statement made by the deceased to Constable Kulwinder Singh immediately after the incident, of injuries on herself, her mother and brother being inflicted by the accused persons. Learned Senior counsel for the appellant submits that no reliance could be placed on the alleged oral statement made to Constable Kulwinder Singh or for that matter on the statement of Arvind Monga. It is urged on behalf of the appellants that the testimony contains glaring contradictions, which raise doubts on its credibility. Plea being that Constable Kulwinder Singh was a set up witness. Learned counsel urges that as per the statement of Constable Kulwinder Singh, Arvind Monga gave him a lift on his scooter from Batra Cinema, where he was on duty and brought him to N-33 Mukherjee Nagar. As per Kulwinder Singh's version, both of them lifted the deceased and brought her to cot lying outside the house and the oral statement was made by her to both of them. He states that the deceased had injuries on her neck. On enquiry from her as to how she sustained the injuries, she replied that these were caused by her brother Atbir, step mother Chandra and maternal uncle Ashok. She was then taken to the hospital on a stretcher in a PCR Van.
31. Learned counsel submits that this version is at variance with the version of Arvind Monga. As per Arvind Monga, when they reached N-33 Mukherjee Nagar, lots of people had gathered there and she had been brought out and made to lie on the cot. Arvind Monga states he asked her whether she recognised him? She responded by calling him “uncle”. Arvind Monga further states that she was making a statement at that time, which he could not hear, as she was in the process of being removed to hospital. Learned counsel submits that while Constable Kulwinder Singh maintained that both of them lifted and brought the deceased out, Arvind Monga states that she had already been brought out and put oh the cot. Constable Kulwinder Singh claims that the statement regarding injuries being inflicted by the accused persons was made to both of them, Arvind Monga only deposes to the extent that she had recognized him thereby showing that she was conscious and well oriented.
32. We have carefully perused the depositions of Constable Kulwinder Singh as well as of Arvind Monga: It may be noted that Arvind Monga was permitted to be cross-examined by the prosecutor, as he was resiling from the statement made under section 161 Cr.P.C A careful analysis of his deposition shows that this witness had become a hesitant one and had adopted a course of minimum involvement, which resulted in some of the retractions with a view to avoid his involvement in the matter. This witness deposed that a carpenter had come to him telling him that the deceased Sheela/Aunti jee was not responding and, therefore, he went with him to their house and he found that water had been sprinkled from the wash basins. Therefore, he returned to Batra Cinema and apprised the PCR that he suspected foul play. The natural course would have been for this witness to go into the house and discover the bodies of the deceased. He maintained, that he did not see them and on seeing water sprinkled, he suspected foul play. It may be noted that Constable Kulwinder Singh had stated that when Arvind met him at Batra Cinema, he told him that a murder had taken place and the PCR was also so informed. Be that as it may, even with the retracted statement his deposition supports Constable Kulwinder Singh on material aspects, namely, that they both returned from Batra Cinema to the site, where the deceased Sonu was either made to lie down on the cot or was already so placed on the cot. She was conscious and well oriented since she recognized Arvind Monga by calling him “Uncle”. He further states that she was making a statement which he could not hear. Accordingly, the factum of her making a statement is re-affirmed by him also. It would, therefore, be seen that he re-affirms the statement of Constable Kulwinder Singh in material aspects and the retractions, such as, he did not lift the deceased from inside or he could not hear the statement, appear to be stemming out of the desire not to be involved or being won over by the accused, as suggested by the prosecution.
33. In view of the foregoing discussion, it is held that the learned Additional Sessions Judge was right in reaching the conclusion that dying declaration by the deceased Sonu made to Inspector Chauhan and endorsed by Dr. Sharat Chandra Jai Singh was true, consistent, trustworthy and could be acted upon. Further it finds corroboration from the oral declaration made by the deceased to Constable Kulwinder Singh which again finds support from the statement of Arvind Monga in material aspects as discussed. The learned Additional Sessions Judge has also rightly held that entire family barring Jaswant Singh had been murdered. Jaswant Singh husband of the deceased Sheela as well as father of the deceased Manish and Sonu had not even returned from the work, when the incident had taken place and the dying declaration was recorded. Thus, the names of the accused persons could not have even been known to either Inspector Chauhan and Dr. Sharat Chandra Jai Singh and as has been rightly held were disclosed by deceased Sonu only. In these circumstances, conviction of the accused persons is upheld and the appeals preferred by accused Atbir and Ashok being Crl.A.805/2004 and Crl.A.876/2004 respectively are liable to be dismissed.
Determination of sentence
34. Coming now to the question of imposition, determination and confirmation of sentence, it is a settled position that for the offence of murder, life sentence is the normal rule with death sentence an exception to be imposed in rarest of rare cases. The legal principle for determining whether a case warrants extreme penalty of death sentence or lesser punishment, can be conveniently culled out from among the following judgments of the Supreme Court:—
(i) Bachan Singh v. State Of Punjab. AIR 1980 SC 898.
(ii) Ediga Anamma v. State of Andhra Pradesh 1974 (4) SC 443.
(iii) Machhi Singh v. State of Punjab (1983) 4 SCC 470.
(iv) State Of Rajasthan v. Kheraj Ram (2003) 8 SCC 224.
(v) Ram Pal v. State of UP (2003) 7 SCC 141.
(vi) Amit Alias Ammu v. State Of Maharashtra. (2003) 8 SCC 1993.
(vii) Sushil Murmu v. State of Jharkhand 2004 SCC (Crl) 529.
(viii) Devatha Venkataswami @ Rangaiah v. Public Prosecutor, High Court of AP (2003) 10 SCC 700.
35. Before we consider whether the present case would fall in the category of rarest of rare cases warranting death sentence or not, it would be worthwhile to notice briefly some of the cases relied on by the counsel for the appellant.
In Bachan Singh v. State Of Punjab. (supra), the court noted that it was neither practicable nor desirable to imprison the sentencing discretion of a judge or a jury in the strait-jacket of exhaustive and rigid standards. Further, it was not impossible to lay down broad guidelines as distinguished from ironcased standards which will minimise the risk of arbitrary imposition of death penalty for murder and some other offences under the penal code. Noting the provisions of Sections 354 (3) and 235(2) of Cr.P.C, the court held that the extreme penalty can be inflicted only in gravest cases of extreme culpability and in making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also. The court noted in para. 197 that pre-planned, calculated, cold blooded murder has always been regarded as one of an aggravated kind. If a murder is “diabolically conceived and cruelly executed”, it would justify the imposition of the death penalty on the murderer.
In Ediga Anamma v. State of Andhra Pradesh (supra), the court observed that “The weapons used and the manner of their use, the horrendous features of the crime and hapless state of the victim, and the like, steel the heart of the law for a sterner sentence.”
36. The court struck a discordant note in Rajendra Prasad v. State of U.P (1979) 3 SCR 646 wherein after the enactment of Section 354 (.3) Cr.P.C, murder most foul' was not the test. The shocking nature of the crime or the number of murders committed was also not the criteria. It was held in Rajendra Prasad's case (supra) that focus had now completely shifted from the crime to the criminal. “Special reasons” necessary for imposing death penalty” must relate not to the crime as such but to the criminal.” The Supreme Court in Bachan Singh's case did not agree to the above view in Rajendra Prasad's case and held that “for making the choice of punishment or for ascertaining the existence or absence of “special reasons” in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ‘style is the man’. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that “special reasons” can legitimately be said to exist.”
37. In Bachan Singh's case, the court also noted the “Aggravating circumstances” and “Mitigating Circumstances” which ought to be considered for imposition of penalty of death in its discretion:—
AGGRAVATING CIRCUMSTANCES
“(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed—
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer after demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”
MITIGAGING CIRCUMSTANCES
“(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”
In Ram Pal v. State Of U.P (supra), the Supreme Court reproduced in the judgment the mitigating and aggravating circumstances as they appeared in Bachan Singh's case. It further went on to observe that these were broad guidelines laid down by the court in case of Bachan Singh's case.
38. Learned counsel for the appellants while relying on the young age of the appellant Atbir and the absence of any past criminal record and antecedents placed reliance on Ram Pal v. State Of U.P(supra) which was a case of multiple murder of 21 persons including young children. Death sentence has been confirmed by the High Court. The Supreme Court noting the facts and circumstances of the case observed that provocation for the commission of offence came from victim's side. It held it not to be a rarest of rare case and the death sentence of the appellant was altered to one of imprisonment for life. The Court held that the appellant had not led the others and his role was similar to others who had been awarded lesser punishment. Besides he had spent 17 years in custody. The court noted that number of deaths could not be the sole criteria. Even in case of one death, capital punishment could be awarded.
The cited case would not advance appellant's case since appellant-Atbir was the main perpetrator of the crime who had stabbed repeatedly the three accused. It could not be said that there was any provocation from the side of deceased. This was one of the important factors taken into consideration by the court while altering death sentence to life imprisonment.
39. State Of Rajasthan v. Kheraj Ram (supra), was a case where the accused suspected the fidelity of his wife and the parentage of his children. Accused was prosecuted for causing death to two of his innocent children, wife and brother-in-law. The trial court convicted the accused and considering brutal nature of killing, death sentence was imposed. The High Court heard the Death Reference and noted that case was based purely on circumstantial evidence. It held the circumstances not to have been proved sufficiently to bring home the guilt of the accused and directed acquittal. The Supreme Court traced the historical developments since 1955 and held that after considering entire chain of events and circumstances, the inevitable conclusion was that accused had acted in most cruel and inhuman manner and the murder was committed in an extremely brutal, grotesque, diabolical, revolting and dastardly manner. The victims were innocent children and a helpless woman. The court also disregarded the injuries said to have been sustained by him as the same could be self inflicted. The accused was last seen in the company of the deceased. It relied on extra judicial confession made by accused as also on recoveries of blood stained dhoti, weapon of offence at the instance of accused. The discovery of the shoes of one of the deceased. These all pointed to the guilt of the accused.
40. The court noted that 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 opinion is exercised. The questions to be asked and answered (a) is there something uncommon about the crime which renders sentence of 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 speaks in favour of the offender?
41. In Machi Singh v. State of Punjab (supra), the court held the following propositions for determination of rarest of rare cases which emerge from Bachan Singh's case:—
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g murder by hired assassin for money for reward or a cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position or trust, or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of “bride burning” or “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or helpless woman or an old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.
42. These have been aptly summed up by the Supreme Court in State Of Rajasthan v. Kheraj Ram (supra).
It was held that if upon taking an overall view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.
43. In the light of the principles elucidated in the aforesaid judgments, let us consider whether the present case would fall in the category of rarest of rare cases warranting death sentence?
44. According to the statement of Jaswant Singh, he had married Chandra in the year 1963. Three children namely Satbir, Anju and Atbir were born from the wedlock. In the year 1971, Jaswant Singh had deserted Chandra. In 1973, he had married deceased Sheela and from this alliance, daughter Sonu and son Manish were born. As per Jaswant Singh, Satbir, his son from the first wife Chandra, visited him and demanded transfer of agricultural land of 25-26 bighas in Bulandshar in Atbir's favour. Jaswant Singh claims that he agreed to the same and executed a Will sometime in 1995 i.e Exhibit PW 5.D bequeathing the said land to them. However, Satbir and Atbir were insisting on transfer by a registered document. Demand was also made for a residence i.e a house in Mathura or a share in House No. N-33, Mukherjee Nagar, Delhi. According to Jaswant Singh, there was quarrel over this. In January, 1996, he even promised to transfer the land in future while they were insisting upon payment of their share in money.
45. The factum of desertion of his mother by Jaswant Singh and leaving them without support for over decades could arouse a lot of resentment against Jaswant Singh in the mind of accused Atbir. The accused Atbir could easily have perceived Sheela and her family as usurpers who had deprived them and their mother of the property and assets which would have exclusively belonged to them. Mere execution of a Will obviously did not satisfy Atbir and his mother as the same could be changed any time and thus they they were insisting on transfer of land by registered document. It appears that mere promise of Jaswant Singh to transfer land in future may not have satisfied them and they were demanding money. It appears that in this background, accused persons felt that they would not be getting their legitimate share in the property as long as Sheela and her family was alive and therefore, they should be done away with. The above could provide a strong motive to the accused persons for the crime.
46. Learned counsel for the appellant in this regard submitted that accused Atbir was a young man of 25 years and in the prime of his youth when the crime was committed. He has already spent nearly 10 years of his life in incarceration and this period itself is sufficient punishment for the alleged crime. He submits that accused had no past history of any crime and has not displayed any propensity for the same. It could not be said in these circumstances that Atbir, who was a young man, had no possibility of being reformed. He criticized the judgment of the learned Addl. Sessions judge stating that while at one place, he held that accused Atbir was a person deeply disturbed and who had caused injuries. However, while imposing sentence, he conveniently forgot this. It was urged that alleged crime was committed at about 2.30 p.m or so. This would show that at best the accused persons had gone to victims home with a view to claim their share and reach a settlement. Based on the age of the victims/deceased, it could not be said that three of them were either indefensible or helpless. Counsel submitted that it was a straight jacket family crime stemming out of property disputes. He submits that Addl. Sessions Judge has grossly erred in holding that guidelines that the accused persons were capable of being reformed or not, was not relevant. He submits that Addl. Sessions Judge has failed to draw out a balance sheet of aggravating and mitigating circumstances. The mitigating circumstances stemming out of the resentment and grudge on account of desertion of his mother and deprivation of their legitimate rights were circumstances provocative enough to have led accused to crime. However, his young age without any past criminal record and the possibility of being reformed, there were strong mitigating circumstances which outweigh the aggravating circumstances.
47. Learned counsel for the appellants urged that the State had failed to lead evidence and prove that the appellants did not satisfy conditions/mitigating circumstances (3) and (4), as laid down in Bachan Singh's case and approved in Ram Pal v. State Of U.P (supra). Hence death sentence could not be imposed. For facility of reference, conditions/mitigating circumstances (3) and (4) are reproduced:
(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.
Learned counsel urged that State had miserably failed to prove that Atbir did not satisfy conditions (3) and (4).
48. On the first flush, the argument appears to be an attractive and a plausible one. However, on perusal of the judgment in Bachan Singh's case, it is noticed that the 7 circumstances were suggestions given by the appellants' counsel therein late Dr. Y.S Chitley. These were not 7 conditions laid down by the Court, as required to be satisfied for imposition of death sentence. Rather in Bachan Singh's case Supreme Court itself observed, “We find that the aforesaid circumstances are relevant factors and circumstances which should be taken into consideration.” The Supreme Court in Ram Pal v. State Of U.P (Supra) while noticing and reproducing the aggravating and mitigating circumstances, as given in Bachan Singh's case reproduced the suggestions with regard to the State being required to prove non-satisfaction of conditions (3) and (4). We are of the view that the Supreme Court only intended these to be enumerated as relevant considerations and factors and not conditions precedent. It does not appear plausible for the State to always lead affirmative evidence to prove that an accused does not satisfy the probability that he would not commit criminal acts as would constitute a continuing threat to society or that the accused cannot be reformed.
49. Having noticed the legal position, the relevant factors to be considered, let us analyse the present case i.e motive, act and manner of crime. This was obviously not a case of any sudden provocation. Accused Atbir is a matured young man of 25 years. Desertion of his mother and family by Jaswant Singh had occurred far back in 1971. The demand for share in property had emanated since 1992 while Satbir, brother of the accused was on visiting terms with Jaswant Singh and the deceased. The motive for the crime appears to be desertion of his mother by Jaswant Singh, non-settlement of their claims in property and deceased persons being perceived as the stumbling block and cause of their miseries and troubles. It was thus the lust for wealth and property coupled with the factum of their desertion by Jaswant Singh on account of Sheela and her family because of which the accused commited this ghastly crime. The accused came prepared for the crime which was executed in cold blooded brutal manner where the accused persons had decided to wipe out the entire family. Firstly, the young helpless boy, a student of 10th class was caught hold of and stabbed repeatedly on the neck. And 11 cut throat injuries were inflicted on helpless Manish by Atbir when held by other accused. After stabbing Manish, five grievous injuries were inflicted on deceased Sheela in a similar fashion. Thereafter, 21 injuries were inflicted on the deceased Sonu. The manner in which Atbir first stabbed Manish followed by Sheela and then Sonu showed that he was acting like a demon with a determination to finish the entire family and not leaving anyone. The manner, intensity and force with which stabbing was done left no possibility of any person being saved. Again the crime had been committed after closing of doors with all the deceased being left helpless being unarmed. The bolting of doors demonstrates the determination to perpetuate and complete the crime. The magnitude of the crime is a triple murder completed in a most diabolic, cruel and ghastly manner. Two of the deceased who were in the youth and prime of their life have been deprived of their life without any fault of theirs. There was no provocation or instigation by them. The time had been carefully chosen when the father was in office and victims at their residence. This was not a case where there was any sudden or immediate extreme mental or an emotional disturbance which was caused. In any case, the passage of time which is the greatest healer, had come into play. This was a case where due to sheer greed and lust for property, this ghastly, well planned and timed crime murders were committed.
50. From the facts as recapitulated above, it would be seen that the present case falls in the category of rarest of rare cases, it meets four out of five circumstances as set out in Machi Singh's case for determining rarest of rare cases which may be taken as shocking collective conscience of the community justifying infliction of death penalty. The murders had been committed in an extremely brutal, diabolical, revolting and dastardly manner with 9, 4 and 21 stab injuries being inflicted by the appellant one after the another in succession on the three deceased. The second circumstance being the motive for crime which evinces total depravity and meanness. This was a cold blooded murder for money and for gains in the property without any immediate provocation. The third circumstance does not get attracted as it deals with Scheduled Caste or minority community. The fourth condition is satisfied inasmuch as crime is an enormous one as all the members of the deceased family have been wiped out. The fifth condition is also satisfied inasmuch as victims of the murder were an innocent girl of 18 years and a boy in his teens with a mother who was helpless before the appellant-Atbir who was armed and other accused. The brutality of the act as noted earlier is amplified by repeated stab wounds inflicted on the three deceased persons one after another in succession. These demonstrate that appellant does not possess basic humaness and lacks the psyche or mind set which may be amenable for any reform. Counsel for the appellants assailed the judgment of the trial Judge holding that the appellants had failed to urge any mitigating circumstances. In our view, even if the accused fails to urge any mitigating circumstance the Court itself should on the available facts on record consider the same. In the present case, this is not of any consequence as the Court has duly taken into account the main plank of the appellants submission being young age and the absence of any past criminal record.
51. Reference may also be made to the recent judgment of the Division Bench of this court in State v. Tika Ram 2005 III AD (Delhi) 633 wherein the Division Bench while confirming the conviction altered death sentence to life imprisonment in a case where all the four members of the family along with servant had been murdered.
52. The Division Bench noting numerous pronouncements of the Supreme Court as also law on the subject appears to have been influenced inter alia by motive being of a weak nature and the absence of direct evidence. Further, it held that the manner of infliction of injuries was not clear. The assailant was aged 18-19 years, who was on the verge of being a juvenile. The age limit now stands increased to 18 years. Besides the Division Bench noticed that “we have the uncanny feeling that something more may have happened which has not been revealed persuades us that death punishment is not warranted in this case.” There is no such apprehension of any concealment to warrant a similar feeling.
In the present case, we have dying declaration of the deceased which has been held to be credible, which also finds corroboration from oral evidence. Moreover, the appellant was not a boy in his teens rather a matured man of 25 years of age. We find therefore that the present case is distinguishable from the judgment relied on by the learned counsel for the appellant.
53. We are of the view that accused was not of such a young age that he could not fully comprehend his actions. He was not a person in his teens but a matured young man of 25 years. He had not acted on sudden provocation or on being suddenly emotionally disturbed. The absence of any past criminal record and the young age of the accused, in our view, are not such mitigating factors as could overweigh and diminish the aggravating circumstances noted earlier in a manner so as to call for lesser punishment being imposed. In the present case, two of the deceased were also in their teens.
We are of the view that the present case falls in the category or rarest of rare cases, calling for the extreme punishment. We, accordingly, in exercise of our powers under Section 368 of Cr.P.C, confirm and maintain the death sentence of Atbir, imposed by the Additional Sessions Judge, vide his judgment dated 10th September, 2004 and order of sentence dated 27th September, 2004. Murder Ref. No. 3/2004 is disposed of accordingly. Crl.A.No 805/2004, preferred by appellant Atbir and Crl.A.No 876/2004, preferred by appellant Ashok are dismissed.
One of the accused, Chandra, mother of Atbir, continues to be a proclaimed offender till date. It appears to us extremely unlikely that Chandra who apart from Atbir has one more son and his family and a daughter, would just disappear and not have any contact with her family. We find very often that being declared proclaimed offender in practice results in bringing the curtain down and closure of the file, leaving the proclaimed offender free to move around with impunity. We direct the State to report whether any steps, such as, surveillance of the residences of Satbir, Anju and other relations of the proclaimed offender Chandrawati have been carried out so as to apprehend the proclaimed offender and bring her to trial. Report be filed before the trial court with a copy in this case.
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