sushil sharma death sentence was commuted in to life imprisonment = SUSHIL SHARMA Vs. STATE (NCT) OF DELHI published in judis.nic.in/supremecourt/filename=40866

sushil sharma death sentence was commuted in to life imprisonment  =
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
together and were married but unfortunately, it appears  that  the  deceased
was still in touch with PW-12 Matloob Karim. 
It appears that  the  appellant
was extremely possessive of the deceased. The evidence on record shows  that
the appellant suspected her fidelity and the murder was the result  of  this
possessiveness.   
We have noted that when the appellant was  taken  to  Lady
Hardinge Mortuary and when the dead  body  was  shown  to  him,  he  started
weeping.  It would be difficult, therefore, to say that he was  remorseless.

The fact that he absconded is undoubtedly a circumstance  which  will  have
to be taken against him, but the same, in  our  considered  view,  would  be
more relevant to the issue of culpability  of  the  accused  which  we  have
already decided against him rather than the question of what  would  be  the
appropriate sentence to be awarded which is presently  under  consideration.

The medical evidence does not establish that the dead body of  the  deceased
was cut.  
The second post-mortem report states  that  no  opinion  could  be
given as to whether the dead body was cut as dislocation  could  be  due  to
burning of the dead body.  
There is no recovery of any weapon  like  chopper
which could suggest that the  appellant  had  cut  the  dead  body.   
It  is
pertinent to note that no member of the family of the deceased came  forward
to depose against the  appellant.   
In  fact,  in  his  evidence,  PW-81  IO
Niranjan Singh stated that the brother and  sister-in-law  of  the  deceased
stated that they were under the obligation of the appellant and  they  would
not like to  depose  against  him.   
Murder  was  the  outcome  of  strained
personal relationship.  It was not an  offence  against  the  Society.   The
appellant has no criminal antecedents.  
He is not a confirmed  criminal  and
no evidence is led by the State to indicate that he is likely to  revert  to
such crimes in future.  
It is, therefore, not possible in the facts  of  the
case to say that there is no chance of  the  appellant  being  reformed  and
rehabilitated.  
We do not think that that option is closed.  Though  it  may
not be strictly relevant, we may mention that the appellant is the only  son
of his parents, who are old and infirm.  
As  of  today,  the  appellant  has
spent more than 10 years in death cell.  Undoubtedly, the offence is  brutal
but the brutality alone would not justify death sentence in this case.   The
above mitigating circumstances persuade us to commute the death sentence  to
life imprisonment.  
In several judgments, some of which,  we  have  referred
to hereinabove, this Court has made it clear that life sentence is  for  the
whole of remaining life subject to the remission granted by the  appropriate
Government under Section 432 of the Cr.P.C., which, in turn, is  subject  to
the  procedural  checks  mentioned  in  the  said  provision   and   further
substantive checks in Section 433-A of  the  Cr.P.C.   We  are  inclined  to
issue the same direction.

84.   We have already confirmed the conviction of the appellant for  offence
punishable under Section 302 of the IPC and  for  offence  punishable  under
Section 120-B read with Section 201 of  the  IPC. 
  In  view  of  the  above
discussion, we commute the death sentence  awarded  to  appellant  –  Sushil
Sharma to life sentence.  We make it clear that life  sentence  is  for  the
whole of remaining life of the appellant subject to  the  remission  granted
by the appropriate Government under 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.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.693 OF 2007


Sushil Sharma                                      …Appellant

                                   Versus


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


                                  JUDGMENT


(SMT.) RANJANA PRAKASH DESAI, J.


1.    In this appeal, by special leave,  appellant  -  Sushil  Sharma  (“the
appellant”) has challenged judgment and order  dated  19/02/2007  passed  by
the Delhi High Court in Criminal Appeal No.827 of 2003 confirming the  death
sentence awarded to him in Sessions Case No.88 of 1996.   He  was  tried  in
the said case along with A2-Keshav Kumar (“A2-Keshav”), A3-Jai Prakash,  A4-
Rishi Raj and A5-Ram Prakash.

2.    The appellant was tried for offences  punishable  under  Section  302,
Section 120-B read with Sections 302 and 201 of the Indian Penal Code  (“the
IPC”).  A2-Keshav was tried under Section 120-B read with Sections  302  and
201 of the IPC.  A3-Jai Prakash, A4-Rishi Raj and A5-Ram Prakash were  tried
under Section  212  of  the  IPC.   Learned  Additional  Sessions  Judge  by
judgment and order dated 3/11/2003 convicted  the  appellant  under  Section
302 of the IPC.   He convicted the appellant  and  A2-Keshav  under  Section
120-B read with Section 201 of the IPC. Since the charge under  Section  302
read with Section 120-B of the IPC was held not  proved  against  A2-Keshav,
he was acquitted of the said charge.  Charge under Section 212  of  the  IPC
was held not proved against A3-Jai Prakash, A4-Rishi Raj and A5-Ram  Prakash
and they were acquitted.  Learned Additional Sessions  Judge  forwarded  the
death reference to the Delhi High Court, as required under  Section  366  of
the Code of Criminal Procedure, 1973 (‘the  Cr.P.C.’).   A2-Keshav  did  not
file any appeal.  As stated above, by the impugned judgment, the Delhi  High
Court confirmed the death sentence awarded to the appellant.

PROSECUTION CASE:
3.    The appellant was the President of Delhi Youth Congress  (I),  at  the
relevant time.   Naina Sahni (‘the deceased’) was the General  Secretary  of
the Delhi Youth Congress (I) Girls Wing.  The  appellant  and  the  deceased
were working for Delhi Youth  Congress.   The  office  of  the  Delhi  Youth
Congress was earlier situated at 4, Bhai Veer Singh Marg, Gole  Market,  New
Delhi.  Later on, it was shifted to  2,  Talkatora  Road,  New  Delhi.   The
deceased used to visit the appellant at the office of Youth Congress at  the
above-mentioned places.  In the  year  1992,  the  appellant  obtained  Flat
No.8/2A situated at Mandir Marg, New Delhi  (“Flat  No.8/2A”  or  “the  said
flat”) from it’s allottee - Jagdish Prasad.  The deceased used to visit  the
appellant at  the said flat also.  At times, she used to stay there  in  the
night.  The appellant and the deceased got married secretly.  The  deceased,
therefore, continued to live in the said flat as the wife of  the  appellant
till she was murdered.

4.     The India Tourism Development Corporation  (‘the  ITDC’)   which  was
running its unit called Ashok Yatri Niwas at  Ashoka  Road  entered  into  a
licence agreement on 10/11/1994 with Lalit Kishore Sachdeva, Virendra  Kumar
Nagpal, Manoj Malik, R.P. Sachdeva and the  appellant  -  partners  of  M/s.
Excel Hotel & Restaurant Inc., situated at 159, Kamla  Market,  Delhi.   The
licence granted by the ITDC permitted the user of  park  in  front  of  main
gate of Ashok Yatri Niwas towards Ashoka Road by the said partners  of  M/s.
Excel Hotel & Restaurant Inc.  for  running  a  ‘Bar-be-Que’.   As  per  the
licence, Bar-be-Que was continuously run by the appellant at the said  park.
It was called ‘Bagia Bar-be-Que’.  There was a tandoor  in  the  said  park.
The park had fencing of bamboos called Jafri.

5.    On the night of 2-3/07/1995, PW-3 HC Kunju,  who  was  posted  at  the
P.S. Connaught Place and PW-4 Home Guard Chander Pal  of  Delhi  Home  Guard
were patrolling in the Ashoka Road, Western  Court  Area.   At  about  11.00
p.m., when they reached near Ashok Yatri Niwas they heard the cry  of   PW-7
Anaroo Devi saying ‘hotel main aag lag gayi’ (hotel  is  on  fire).   Having
heard the cry, PW-3 HC Kunju and PW-4 Home Guard Chander Pal rushed  towards
Janpath lane where Ashok  Yatri  Niwas  is  situated.   They  noticed  smoke
spiralling and flames leaping out of Bagia Bar-be-Que from the side  of  the
kitchen.  PW-3 HC Kunju rushed to the nearby telephone booth to  inform  the
control room.  However, the telephone booth was closed.  He, then, left  PW-
4 Home Guard Chander Pal at the site and rushed to the police  post  Western
Court situated nearby to inform the police station, on wireless,  about  the
fire.  On return, PW-3  HC  Kunju  noticed  that  the  smoke  and  fire  had
increased.  PW-3 HC Kunju and PW-4 Home Guard Chander Pal, in order to  find
out the cause of the same, entered the  Bar-be-Que  from  its  back.    They
found A2-Keshav standing near the tandoor.  They also  noticed  him  putting
wooden logs and small fire wood in the fire so as to increase  it  with  the
aid of a bamboo.  PW-3 HC Kunju told A2-Keshav that by this, the fire  would
spread and the entire hotel would be burnt.  A2-Keshav then  represented  to
PW-3 HC Kunju that he was a worker of the Congress Party and he was  burning
old banners, posters and waste papers of the party.


6.    Patrolling Officer SI Rajesh Kumar along with CW-5 HC  Majid  Khan  of
Police Control Room, PW-62 PC Ranbir Singh and security staff of  hotel  PW-
35 Mahesh Prasad reached the Bar-be-Que from the main gate  of  Ashok  Yatri
Niwas towards Ashoka Road.  The appellant was noticed by  them  standing  by
the side of the kanat at the gate  of  the  Bar-be-Que.   Foul  and  pungent
smell was  emitting  from  the  tandoor.   A2-Keshav  was  detained  out  of
suspicion by SI Rajesh Kumar and PW-3 HC  Kunju.    SI  Rajesh  Kumar  along
with security staff of the hotel and A2-Keshav then went  upstairs  to  find
out whether the fire had spread there.   They noticed  that  the  flames  in
the tandoor  had  flared-up  again.   SI  Rajesh  Kumar  and  others  rushed
downstairs.  By that time the appellant had run away from there.



7.    The fire was doused.  When they went near the tandoor they saw a  part
of human body inside it. Closer look revealed that it was a charred body  of
a female whose limbs had burnt.   Intestines  had  come  out  of  the  body.
Burnt bones were lying in the tandoor.  They also noticed near  the  tandoor
a black polythene sheet.  Investigating Officer PW-81 IO Niranjan Singh  and
senior officer of the hotel PW-5 K.K. Tuli also reached  there.   Then,  A2-
Keshav was handed over to PW-81 IO Niranjan Singh.  PW-81 IO Niranjan  Singh
inspected the site.  He found that the  burnt  body  was  of  a  woman.   He
recorded the statement of PW-3 HC Kunju which was treated as FIR.

8.     There  were  blood  stains  on  the  clothes  of  A2-Keshav.  He  was
arrested.  His blood stained clothes were seized.  PW-81  IO Niranjan  Singh
seized the polythene sheet,  besides  other  articles,  from  the  place  of
offence.  After holding the inquest proceedings,  PW-81  IO  Niranjan  Singh
sent the dead body to RML Hospital, where PW-85 Dr. Joginder Singh  prepared
the Medico Legal Report (Ex.PW-85/A).  PW-85 Dr. Joginder Singh noticed  the
following condition of the charred body.


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






9.    The  prosecution had made an application to the  hospital  authorities
to preserve the dead body  as  it  was  not  identified.   In  view  of  the
disclosure made by A2-Keshav,  the search for the appellant and  the  Maruti
Car in which he had come to the restaurant was started.   Since  both  could
not be traced out, the police obtained arrest warrant for the appellant.


10.   On 04/07/1995 the police got information  from  Chanakya  Puri  Police
Station that Maruti Car No.DL-2CA-1872 had been found  abandoned  at  Malcha
Marg near Gujarat Bhawan where the appellant had gone and  spent  the  night
of 2-3/07/1985 with PW-31 D.K. Rao after fleeing from his Bagia  Restaurant.
 The police team reached the said place and found the Maruti  Car  abandoned
there.  On inspection of the car, they found dried blood in  the  dicky  and
some hair stuck on the back of  the  left  front  seat.    On  4/7/1995  the
police  also  searched  Flat  No.8/2A  where  the  appellant  was  residing.
Certain articles were seized.  During the search, some  cartridges,  a  lead
bullet and a ply having a hole and an air pistol were seen in the said  flat
but they were not seized as Ballistic Expert was  not  present.   They  were
seized in the presence of Ballistic Expert on 5/7/1995  under  a  panchnama.
On enquiries made from the neighbourhood, the police came to know  that  the
deceased used to live in the said flat of the appellant as  his  wife.   One
Maruti Car No.DAC 3283 was parked below the flat, which was found to  be  in
the name of the deceased.  It was seized by the police.


11.   Parents of the deceased  were  contacted  for  identification  of  the
corpse.  On seeing the charred body kept in the mortuary, they  simply  wept
but they could not identify the dead body.  On 05/07/1995 the dead body  was
identified by PW-12 Matloob Karim, who was also a  worker  of  the  Congress
Party and was stated to be very  close  to  the  deceased.   Thereafter,  on
05/07/1995, the post-mortem examination was conducted  by  CW-6  Dr.  Murari
Prasad Sarangi. The condition of the burnt  body  as  noticed  by  CW-6  Dr.
Sarangi, in his Report, was as under:




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

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

      EXTERNAL EXAMINATION:-

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

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

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

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

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

      HEAD and NECK

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

      BRAIN, MENINGES and CEREBRAL BLOOD VESSELS:

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

      LARYNX, PHARYNX and OTHER NECK STRUCTURES

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

      THORAX

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

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

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

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

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

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

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



12.   CW-6 Dr. Sarangi opined provisionally that  the  cause  of  death  was
“hemorrhagic shock consequent to various ante-mortem injuries found  on  the
dead body”.  According to CW-6 Dr. Sarangi the burns  noticed  on  the  dead
body appeared to have been inflicted after death. Final  opinion  about  the
cause of death was kept pending by him till the receipt of the Report  about
histopathological examination as  well  as  the  Report  of  examination  of
viscera and blood sample.  Although PW-81 IO Niranjan Singh had  also  asked
for X-ray of the dead body to find out if there was any firearm  injury,  it
could not be conducted at that time because the X-ray machine was stated  to
be out of order.


13.   The appellant, in order to  avoid  his  arrest,  spent  the  night  of
2/7/1995 at Gujarat Bhawan, New Delhi with PW-31 D.K. Rao and from there  he
kept on going from one city to another. He  called  up  PW-31  D.K.  Rao  on
4/7/1995 from Bombay and told him that he  had  killed  his  wife  i.e.  the
deceased.  It may be mentioned here that the High Court has not relied  upon
this piece of evidence and, in  our  opinion,  rightly  so.   The  appellant
obtained anticipatory bail from the Sessions Court at Madras upon coming  to
know that the police were looking for him. The anticipatory bail granted  by
Sessions Court, Madras was later on cancelled by the Madras  High  Court  at
the instance of  the  Delhi  Police.   He  was  arrested  on  10/07/1995  at
Bangalore by the Bangalore Police under Section 41A of the Cr.P.C.  when  he
was  moving  around  in  a  suspicious  manner   with   his   advocate   Mr.
Anantanarain. Delhi Police upon coming to know about his  apprehension  went
to Bangalore and took over the custody of the  appellant on  11/7/1995  with
the  permission  of  the  concerned  court.  During  the  interrogation,  it
transpired that the appellant was staying in  one  hotel  called  Pai  Vihar
along with  advocate Mr. Anantanarain.  The  appellant  led  the  police  to
Room No.110 of the said hotel.  From the room he produced a briefcase  which
was found to contain one .32 bore revolver No.1277725 (make  Arminius)  with
its license in his name, four live  cartridges  and  some  other  documents.
All these articles were seized by PW-81 IO Niranjan Singh.

14.   The appellant was then  brought  to  Delhi.   Pursuant  to  disclosure
statements made by him one blood stained  kurta-pajama  was  recovered  from
the bushes near Gujarat Bhawan at Malcha Marg.   At  his  instance,  another
blood stained kurta was also recovered from Rangpuri area.


15.    The  investigating  agency  decided  to   get   another   post-mortem
examination conducted from a Board of Autopsy Surgeons. Accordingly,  second
post-mortem examination was done on 12/07/1995 by a team  of  three  doctors
headed by PW-44 Dr. Bharat Singh.  During the course  of  the  second  post-
mortem examination the dead body was subjected to X-ray examination and  the
X-ray Reports showed the presence of one metallic piece  in  the  skull  and
one in the neck region of the dead body. Those  metallic  pieces  were  then
extracted out and were found to be  lead  bullets.   The  Board  of  Doctors
opined that the cause of death was due  to  “coma  consequent  upon  firearm
injury on the head which was sufficient  to  cause  death  in  the  ordinary
course of nature”.


16.    The bullets recovered from the body, fired cartridge cases, one  lead
bullet which were recovered from  the said flat,  the  live  cartridges  and
Arminius  revolver  recovered  from  the  possession  of  the  appellant  at
Bangalore were sent to the Central Forensic Science Laboratory (“the  CFSL”)
for examination by a Ballistic Expert.  The Ballistic Expert  -  PW-70  Roop
Singh gave Report (Ex. PW-70/A) confirming that the  .32  Arminius  revolver
was a firearm in working condition and had been fired  through.  He  further
opined that the five .32 cartridge cases and one  lead  bullet,  which  were
recovered from the said flat and the two lead bullets which  were  extracted
from the skull and neck of the deceased had been fired  from  the  said  .32
Arminius revolver.  The piece of plywood seized from the said flat on  which
a bullet hole was noticed, was also forwarded to the CFSL.  The bullet  hole
was found to have been caused by the aforesaid  .32  lead  bullet  recovered
from the said flat. Blood stained articles seized from the Bagia  Restaurant
and those recovered from the said flat were  sent  to  the  CFSL  where,  on
examination, it was found that human blood  found on  these articles was  of
‘B' group, which was the blood group of the  deceased.


17.   DNA test was also got conducted  from  the  Centre  for  Cellular  and
Molecular Biology, Hyderabad for confirming the identity of  the  corpse  by
forwarding to it the blood samples of the parents of  the deceased  and  the
tissues (muscle) from the thigh, radius and ulna bones and two ribs  of  the
deceased. The DNA Report (Ex.PW-87/A) confirmed that  the  dead  body  which
was burnt at the Bagia Bar-be-Que tandoor was that of the deceased, who  was
the biological offspring of  CW-1  Smt.  Jaswant  Kaur  and  CW-2  Harbhajan
Singh.


18.   After  completion  of  investigation,  the  prosecution  came  to  the
conclusion that the deceased was  killed  by  the  appellant  since  he  was
suspecting that she was having some relationship with PW-12  Matloob  Karim.
The appellant also did not want to  make  his  marriage  with  the  deceased
public and the deceased was insisting  on  that.   After  killing  her,  the
appellant with the help of A2-Keshav  burnt her dead body in the tandoor  of
Bagia Bar-be-Que. The appellant was harboured to save  him  from  punishment
from the crime by three persons, namely, A3-Jai Prakash,  A4-Rishi  Raj  and
A5-Ram Prakash.  After  the  case  was  committed  to  the  Sessions  Court,
learned Additional Sessions Judge framed charges as  aforesaid  against  the
accused.

THE TRIAL:
19.   In support of its case, the prosecution examined 85 witnesses.   Seven
Court Witnesses were also  examined.    We  shall  refer  to  the  important
witnesses as we proceed further.  All the accused pleaded not guilty to  the
charges and claimed to be tried.  During  the  trial,  A2-Keshav  moved   an
application  confessing his guilt so  far  as  the   charges   against   him
under Section 201 read with Section 120-B of  the  IPC  are  concerned.   He
requested the court to dispose of his case in view of the  confession.   He,
inter  alia,  stated   that   he   had   not   conspired   to   murder   the
deceased.  He was serving in Bagia Restaurant  of  the  appellant  and,   at
his  command, he  put  the  dead  body of the deceased in the  tandoor.   At
the  trial,  A2-Keshav admitted the correctness of   the   contents  of  his
confessional application.  However, he added that it was moved  because  the
Special Public Prosecutor told him that he would be released  at  the  final
stage of the trial.


20.   The appellant in his statement  recorded  under  Section  313  of  the
Cr.P.C., inter alia, stated that from the evening of  1/7/1995  to  6/7/1995
he was at Tirupati Balaji and then he  went  to  Madras  on  7/7/1995.  From
Madras, he gave a telephone call at  his  residence  in  Maurya  Enclave  in
Delhi when he came  to  know  that  one  ACP  Alok  Kumar  had  visited  his
residence on 3/7/1995 and had  removed  from  there  his  vehicle,  licensed
revolver, license of the revolver and bullets. He, further, stated that  the
ACP had given his telephone number  and  had  left  a  message  for  him  to
contact him on phone and when the appellant contacted the ACP, he  told  him
to get anticipatory bail otherwise he would be arrested. He, then,  obtained
anticipatory bail from the Sessions Court at Madras.  On  8/7/1995,  he  was
called for enquiry at a police  station  at  Madras  and  that  day  in  the
evening some police officers from Delhi reached there  and  brought  him  to
Bangalore and showed his arrest there on 10/7/1995.  He  admitted  that  Car
No.DL-2CA-1872 belonged to him. He stated  that  it  was  removed  from  his
residence at MP-27, Maurya  Enclave,  Delhi  where  it  was  parked  by  his
driver.   At one stage, he admitted that he was living with the deceased  at
Mandir Marg.  However, as far as  his  relationship  with  the  deceased  is
concerned he stated as under:

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


21.   None of the accused persons adduced any evidence in defense.


22.   After considering the  evidence,  learned  Additional  Sessions  Judge
convicted the appellant as aforesaid.  The Reference  made  by  the  learned
Sessions Judge under Section 366 of the Cr.P.C. was heard by the High  Court
along with the appeal filed by the appellant challenging his conviction  and
sentence.   The High Court dismissed the appellant’s  appeal  and  confirmed
the death sentence awarded to him. Hence, this appeal by special leave.

23.   We have heard Mr.  Jaspal  Singh,  learned  Senior  Advocate  for  the
appellant and Mr. Amarjit  Singh  Chandhiok,  learned  Additional  Solicitor
General for the State of NCT  of  Delhi.   We  have  carefully  perused  the
written submissions filed by them.  Since death sentence is awarded  to  the
appellant, we have independently considered  the  evidence.   We  shall  now
give the gist of the submissions of the counsel.

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

      a)    This is a case  which  rests  on  circumstantial  evidence  and,
           therefore, motive assumes great significance.   The  prosecution
           case is that the deceased wanted to  make  public  her  marriage
           with the appellant and the appellant did not  want  to  do  that
           because that would have  affected  his  political  career.    To
           substantiate this case, PW-12 Matloob Karim has  been  examined,
           but, his conduct makes him a totally unreliable witness.  He  is
           a  married  man.  Despite  the  appellant’s  marriage  with  the
           deceased, he kept alive his relationship with the deceased.   He
           continued to assist the deceased in her attempt to go to  Bombay
           or migrate to  Australia.    All  this  indicates  that  he  was
           inimically  disposed  towards  the  appellant.   In  any   case,
           marriage  can  hardly  spoil   anyone’s   political   prospects.
           Besides, there is ample evidence on record to establish that the
           marriage was already known to everybody.   PW-12  Matloob  Karim
           knew about it.  Marriage was with the consent of the parents  of
           the deceased.  They used  to  visit  the  said  flat  where  the
           deceased was allegedly living with the appellant  as  his  wife.
           Thus, the alleged motive for the murder viz. that  the  deceased
           wanted to make the marriage between her and the appellant public
           is not proved.  Even otherwise, the prosecution  evidence  shows
           that the  appellant  was  deeply  in  love  with  the  deceased.
           Despite knowing her intimate relations with PW-12 Matloob Karim,
           he did not turn her out of the house.  He  only  restricted  her
           movements as he wanted to stop her from her wayward ways.  There
           is no evidence on record to show that there  were  any  constant
           quarrels between the appellant and  the  deceased.    The  story
           that the appellant suspected the fidelity of the  deceased  and,
           hence, he killed her is also not  borne  out  by  the  evidence.
           Therefore, the prosecution has failed to prove motive.




      b)    It is the prosecution case that empty cartridges were  recovered
           from the matrimonial house of the deceased  on 4th  and  5th  of
           July, 1995. According to PW-81 IO Niranjan Singh,  on  4/7/1995,
           he inspected the said flat in the presence  of  PW-14  Inspector
           Suraj Prakash and PW-13 Dhara Singh.  He found two bowls on  the
           cupboard containing empty cartridges  and  one  .32  bore  empty
           cartridge under a stool and one lead bullet under the  bed.   He
           further stated that he did not take them into possession as  the
           Ballistic Experts were not present.  According to him,  he  left
           the said  flat  under  surveillance  of  PW-14  Inspector  Suraj
           Prakash. This story is concocted because PW-13 Dhara Singh,  the
           panch witness has nowhere stated that empty cartridges and  lead
           bullet were found in the house on 4/7/1995. He visited the  said
           flat on 5/7/1995 along with  PW-70  Roop  Singh,  the  Ballistic
           Expert and took those cartridges and lead bullet into possession
           in his presence.  The lead bullet was stained with the blood  of
           the blood group of the deceased.  PW-14 Inspector Suraj  Prakash
           admitted that in his statement recorded under Section 161 of the
           Cr.P.C. there is no mention of those recoveries.   No  memo  was
           prepared that though empty cartridges and lead bullet  had  been
           found, they had not been taken into possession on account of the
           advise of persons from the CFSL. The Ballistic  Expert  -  PW-70
           Roop Singh does not say anything about the recoveries  allegedly
           effected on 5/7/1995.   There is a recovery  memo  of  4/7/1995.
           It does not speak  of  recovery  of  empty  cartridges  or  lead
           bullet.  Thus, the version of PW-81 IO Niranjan Singh about  the
           recovery of empty cartridges and lead bullet is falsified.


      c)    It is the case of the prosecution that the deceased had received
           two bullet injuries in the skull.   This  is  confirmed  by  the
           Report of the Board of  Doctors.  Any other firearm  injury  is,
           therefore, ruled out.  Therefore, the prosecution  must  explain
           the presence of a lead bullet having blood group of the deceased
           in the room.  This suggests that there  was  some  other  person
           also in the house having the same blood group  as  that  of  the
           deceased as the appellant has a different blood group from  that
           of the deceased.  Had the prosecution taken  the  finger  prints
           from the vodka bottle which  was  lying  there,  it  would  have
           provided answer to this as someone was consuming  vodka  in  the
           room.  The deceased was a teetotaler and so  is  the  appellant.
           Besides, the alleged recovery of empty cartridges,  lead  bullet
           and bullet hole in the plywood show that at least 10 rounds were
           fired (5 empty cartridges in the bowls, two recovered  from  the
           floor, one causing hole in  the  ply  and  two  found  from  the
           skull).  Surprisingly, the next door neighbours did  not  notice
           such firing.  Moreover, the police found no trail  of  blood  in
           the drawing room, on the stairs or on the road.   This  casts  a
           shadow of doubt on the prosecution story.


      d)    It is also doubtful whether the death was caused due to  firearm
           injuries.  PW-85 Dr. Joginder Pal, the Casualty Medical  Officer
           at RML Hospital, who was on duty on 3/7/1995, stated that he did
           not find any firearm injuries in the neck or in the head  or  in
           the nape of the deceased.  CW-6 Dr. Sarangi, who  had  conducted
           the post-mortem of the deceased on 5/7/1995 at 3.30 p.m. at Lady
           Hardinge Medical College stated that he had opened the skull and
           had not noticed any bullet mark or any bullet and that the brain
           matter was intact.   CW-6 Dr. Sarangi is MBBS and MD in forensic
           medicine and toxicology, having experience  in  the  field  and,
           therefore, his evidence cannot be lightly  brushed  aside.   The
           Board of Doctors allegedly extracted two bullets and opined that
           those two bullets caused the death.  Report dated  13/7/1995  of
           the Board headed by PW-44 Dr. Bharat Singh needs to be  rejected
           because as per PW-44 Dr. Bharat Singh, the Board first conducted
           post-mortem on 12/7/1995 at 12.00 noon at Lady Hardinge  Medical
           College which lasted upto 2.00 or 3.00  p.m.  and  it  was  only
           after 2.00 or 3.00 p.m. that the body was shifted to  the  Civil
           Hospital.  However, as per PW-57 SI Ombir Singh, on instructions
           of PW-81 IO Niranjan Singh, he  reached  the  mortuary  of  Lady
           Hardinge Medical College at 9.00 a.m.  on  12/7/1995,  took  the
           body from there at 9.30 a.m. and reached the Civil  Hospital  at
           11.30 a.m., where he entrusted the  body  to  PW-44  Dr.  Bharat
           Singh.  According to him, post-mortem started at Civil  Hospital
           at 12.30 p.m.  However, as per the Report of the Board, the post-
           mortem started at Lady Hardinge Medical College  at  12.00  noon
           and, thereafter, the body was shifted to the Civil Hospital.  PW-
           57 SI Ombir Singh has not been  declared  hostile  and,  if  his
           statement is accepted, the evidence of PW-44  Dr.  Bharat  Singh
           about the post-mortem becomes suspect.


      e)    There is no evidence on record  that  the  body  and  the  skull
           subjected to post-mortem by the Board were of the deceased.  PW-
           44 Dr. Bharat Singh stated that the body and the skull had  been
           identified by PW-57 SI Ombir Singh.   However,  PW-57  SI  Ombir
           Singh has nowhere stated that he had identified the body.  There
           is no evidence produced  from  the  mortuary  of  Lady  Hardinge
           Medical College that on 12/7/1995 the body and the skull of  the
           deceased were in its mortuary and no record has been produced to
           show that they were  removed  from  there  on  12/7/1995.   Lady
           Hardinge Hospital & Medical  College  is  one  of  the  top-most
           hospitals in Delhi.  It is unbelievable that  it  had  no  X-ray
           facility.  Therefore, the reason given for removal of  the  dead
           body and skull from Lady Hardinge  mortuary  to  Civil  Hospital
           that because X-ray facility was not available there, it  was  so
           removed, is not acceptable.


      f)    The entire evidence relating to the Board of Doctors deserves to
           be rejected because (a) there is no evidence that the skull sent
           for X-ray was that of the deceased; (b) assuming that the  skull
           was that of the  deceased,  the  prosecution  has  not  led  any
           evidence to assure  that  before  12/7/1995,  it  had  not  been
           tampered with; (c) the members of the Board have not proved  the
           sky grams which allegedly they had examined  on  12/7/1995;  (d)
           although PW-44 Dr. Bharat Singh has stated that  the  sky  grams
           and the Report  of  the  Radiologist  were   received  from  the
           Radiologist on 12/7/1995 at 2.00 p.m. or 3.00 p.m.,  the  Report
           of the Radiologist shows that X-rays were taken on 13/7/1995 and
           the Report was also prepared on 13/7/1995 and (e) as  the  X-ray
           films were developed and the Report was prepared  on  13/7/1995,
           recovery of bullets from the skull on 12/7/1995 allegedly on the
           basis of X-rays and the Report of CW-7 Dr. P.S. Kiran makes  the
           entire  version  regarding  recovery  of  bullets  unworthy   of
           reliance.   There is no evidence on record to establish that the
           members of the Board were experts  in  conducting  post-mortems.
           The answer given by CW-6 Dr. Sarangi to a court question,  which
           contains six reasons for rejecting the Report of the Board  have
           not been answered by the prosecution.   CW-6 Dr. Sarangi  stated
           that after the post-mortem was  conducted  on  5/7/1995  on  the
           request of PW-81 IO Niranjan Singh, he had handed over the skull
           bone, after separating the same  from  the  body,  to  PW-81  IO
           Niranjan Singh.  This is supported by endorsement dated 5/7/1995
           made by PW-81 IO Niranjan Singh on a letter  addressed  by  SHO,
           P.S. Connaught Place  to  the  Autopsy  Surgeon,  Lady  Hardinge
           Medical College.  If the skull  was  handed  over  to  PW-81  IO
           Niranjan Singh on 5/7/1995, then there is no  evidence  to  show
           where the skull was kept till 12/7/1995  when  it  was  produced
           before the Board headed by PW-44  Dr.  Bharat  Singh  for  post-
           mortem.  PW-44 Dr. Bharat Singh has stated that  “a  burnt  dead
           body with skull separated” was received  by  him  and  that  the
           skull was kept in a separate cardboard box.  Therefore, there is
           no evidence to establish that the skull was that of the deceased
           and assuming it to be the skull of the  deceased,  there  is  no
           guarantee that  between  5/7/1995  and  12/7/1995,  it  was  not
           tampered with.  From the evidence on record, it can be said that
           only one unidentified skull of a lady containing two bullets was
           handed over to the Board on 12/7/1995.   When  asked  whether  a
           bullet can be put inside the body after death at a  place  where
           it had been noticed by the Board, CW-6 Dr. Sarangi  stated  that
           such a possibility could not be absolutely ruled out  especially
           in the presence of multiple post-mortem cracks and separation of
           the skull bone from the neck for the purpose of superimposition.




      g)    Assuming that the skull produced before the Board  was  that  of
           the deceased and that two bullets were recovered from the skull,
           the prosecution has failed to prove that the bullets were  fired
           from the revolver of the appellant. It is the  prosecution  case
           that two bullets were put in two separate parcels and both  bore
           the seal of Civil Hospital and, they were handed over  to  PW-81
           IO Niranjan Singh by PW-57 SI Ombir Singh.   However,  PW-81  IO
           Niranjan Singh has nowhere stated that he had deposited the  two
           parcels  with  the  seal  of  Civil  Hospital  with  the  Mohrar
           Malkhana.  He has not stated that he had himself sent those  two
           parcels with the seal of the Civil Hospital to the CFSL.   PW-67
           HC Raj Kumar, who was in-charge of Mohrar  Malkhana  has  stated
           that no parcel was deposited with him  on  12/7/1995,  13/7/1995
           and 14/07/1995.  It was only on 15/7/1995 that two parcels  were
           deposited but they  bore  the  seal  of  N.S.   Thus,  from  his
           evidence, it cannot be concluded that the parcels with the  seal
           of Civil Hospital were ever sent to the CFSL.  If these  parcels
           were never sent to the CFSL, it cannot  be  said  that  the  two
           bullets which killed the deceased were fired from  the  revolver
           of  the  appellant.   Moreover,  the  two  bullets  which   were
           allegedly extracted by the Board from the skull  have  not  been
           identified by anyone.


      h)    The case that a revolver, a licence  and  four  live  cartridges
           were  recovered  from  Pai  Vihar  Hotel,  Bangalore  where  the
           appellant was staying is false because  on  10/7/1995  at  11.30
           p.m., the appellant was  brought  to  Delhi.   On  12/7/1995,  a
           remand application was made before the Metropolitan Magistrate’s
           Court.  In that application, it is stated that the  weapon  used
           in the crime is to be ascertained and recovered.   If the weapon
           was already recovered, such averment would not have been made in
           the application.  Moreover, the appellant  was  brought  on  the
           strength of a production warrant issued by a  Delhi  Court  and,
           therefore, he was  in  judicial  custody.   Section  27  of  the
           Evidence Act would not be, therefore, attracted.  In  any  case,
           no statement under Section 27 of the Evidence Act was  recorded.
           The alleged recoveries are, therefore, not admissible.  [Bahadul
            v.  State of Orissa.[1]]   Mr.  Anantnarayan,  the  appellant’s
           advocate  was  present  in  the  hotel  room  when  the  alleged
           recoveries were  made.   However,  he  has  not  been  examined.
           Similarly, PW-48 Srinivas Rao, the Manager of the hotel and  PW-
           50 Kancha, the waiter of the hotel were  given-up  after  having
           entered the witness box.   Recoveries  were  made  by  PW-81  IO
           Niranjan Singh of P.S. Connaught Place, New Delhi  in  Bangalore
           i.e.   outside   his   territorial   jurisdiction.    Therefore,
           provisions of sub-sections (4) and (5) of  Section  165  of  the
           Cr.P.C. ought to have  been  followed.  The  licence  which  was
           allegedly recovered from Pai Vihar Hotel, Bangalore had  expired
           on 18/1/1994 and its validity was extended only  on  15/10/1995.
           Therefore, at the  time  of  alleged  recovery  of  revolver  on
           11/7/1995, there was no valid licence.  Yet, no action was taken
           by the police.  To cover up this, the validity  of  the  license
           was extended later on. If the licence was deposited with  Mohrar
           Malkhana with the seal of N.S., it is  not  understood  how  the
           entry of extension was made on it on 15/10/1995.  This  suggests
           tampering of evidence.


      i)    Recovery of the appellant’s car  from  Malcha  Marg  is  suspect
           because no record of wireless message has been produced; no  one
           from P.S., Malcha Marg was examined; no record of  P.S.,  Malcha
           Marg has been produced, no information was given to the  nearest
           Magistrate; no record showing presence of PW-72 PC Mukesh  Kumar
           was produced.  According to the prosecution, the CFSL  team  was
           called and blood sample was taken from the blood stains  in  the
           dicky of the car.  However, no witness from the  CFSL  has  been
           examined; no photographs have been produced and  no  independent
           witness has been examined.  PW-72 PC Mukesh Kumar stated that PW-
           81 IO Niranjan Singh remained at the site for six hours.   PW-81
           IO Niranjan Singh stated that he had received  wireless  message
           about the car on 4/7/1995 at 9/10 a.m.  Even if he  had  reached
           the site at 10.00 a.m. he should have remained there  till  4.00
           p.m.   He, however, stated in his evidence that he  reached  the
           said flat at 11.30 a.m. or 12.00 noon on 4/7/1995.  The  seizure
           memo dated 4/7/1995 states that in the dicky of  the  car,  very
           little blood was detected.  The memo also states that  the  long
           hairs were found at the back of  the  front  seat  next  to  the
           driver’s seat.  If the prosecution case is true then  the  dicky
           ought to have a pool of blood and not very little blood and  the
           long hairs should have been found in the dicky and  not  on  the
           back of the front seat next to the driver’s seat.


      j)    To prove the presence of the appellant at  the  tandoor  in  the
           night of 2/7/1995, the prosecution has examined PW-1 Philips and
           PW-2 Mrs. Nisha.  They  stated  that  they  had  last  seen  the
           appellant at around 9.45 p.m. at the gate of Ashok  Yatri  Niwas
           in his Maruti car.   However,  PW-3  HC  Kunju  stated  that  he
           noticed the fire at 11.20 p.m.  Therefore, the presence  of  the
           appellant at around 10.00 p.m. at the tandoor  is  not  of  much
           importance.  To prove his presence at the tandoor at 11.30  p.m.
           the prosecution has also examined PW-4 Home  Guard  Chander  Pal
           and CW-5 HC Majid Khan.  It is apparent from the evidence of PW-
           3 HC Kunju that at the relevant time, the  light  at  the  Bagia
           Restaurant was switched off.  The appellant was not known to any
           of the witnesses. He was identified because PW-35 Mahesh  Prasad
           had allegedly told the  witnesses  about  him.   However,  PW-35
           Mahesh Prasad has stated that he had never  met  the  appellant.
           It is doubtful whether PW-3 HC Kunju, PW-4  Home  Guard  Chander
           Pal and CW-5 HC Majid Khan were actually present.  They are from
           P.S., Connaught Place.  No record of P.S., Connaught Place,  has
           been produced to show that they were on  duty  at  the  relevant
           time.  No record has been produced to show that  PW-3  HC  Kunju
           had sent wireless message about the incident.   In  fact,  PW-59
           ASI Sher Singh stated that the  message  was  actually  received
           from Constable Rattan Singh.  CW-5 HC Majid Khan of the PCR  was
           directed by the court to bring Log Book of the vehicle -  Victor
           20 in which he claimed to have gone to the restaurant.  However,
           the record is stated to have been destroyed.  Thus,  most  vital
           contemporaneous record was kept back  intentionally.    CW-5  HC
           Majid Khan also stated that PCR Van did not enter the hotel  and
           remained parked outside.  However, the  register  showing  entry
           and exit of vehicles indicates that  the  PCR  Van  entered  the
           hotel.  PW-35 Mahesh Prasad stated that all entries were made in
           the register by him as directed by  the  police  at  the  police
           station.  Thus, the prosecution story is shrouded in  suspicion.
           The prosecution has not been  able  to  prove  its  case  beyond
           reasonable doubt.  The appellant, therefore, be acquitted.


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

      a)    Unnecessary doubt is sought to be created as regards location of
           skull from 5/7/1995 till 12/7/1995.  During trial  no  questions
           were asked and no suggestions were put to the witnesses in  this
           regard.  Had that been done, the witnesses  would  have  offered
           explanation.   In  any  case,   there  is  reliable  and  cogent
           evidence on record that the skull was properly preserved and  it
           was the skull of the deceased.


      b)    At one stage, the stand of the appellant was that  there  was  a
           possibility of implanting bullets on 12/7/1995 itself  when  the
           body was being  taken  to  the  Civil  Hospital  for  X-ray.   A
           contrary stand is taken in this Court  that  two  bullets  might
           have been put  in  the  skull  during  the  period  5/7/1995  to
           12/7/1995.  This  submission  of  the  defence  deserves  to  be
           rejected.  There is no reason to disbelieve independent evidence
           of the doctors who were part of the Board of Doctors.


      c)    A revolver was recovered from the custody of the appellant  from
           Bangalore on 11/7/1995.  It was brought to New Delhi along  with
           the appellant on 12/7/1995. The Report of the  CFSL  shows  that
           the bullets found in the skull were from  the  revolver  of  the
           appellant.  There was no cross-examination on  the  veracity  of
           the said Report.  The defence has not stated what could  be  the
           motive for PW-81 IO Niranjan Singh or  anyone  else  to  falsely
           involve the appellant.  There was no enmity between them and the
           appellant.


      d)    The contention that the bullets recovered were not deposited  in
           the Malkhana must be rejected.  One lead bullet was deposited in
           the Malkahna on  5/7/1995  by  PW-81  IO  Niranjan  Singh.   Two
           bullets (Ex-36 and Ex-37) removed from the skull of the deceased
           were duly sealed and handed over to  the  police  by  PW-44  Dr.
           Bharat Singh immediately after the post-mortem  examination.  As
           per the Register of the Malkhana, the two bullets recovered from
           the skull of the deceased were deposited in the Malkhana by  PW-
           81 IO Niranjan Singh on 12/7/1995.  They were  received  in  the
           CFSL on 17/7/1995 in sealed condition, as is  evident  from  Ex-
           PW70/A1-A9.  The said bullets were also  examined  by  Dr.  G.D.
           Gupta, Serologist, who confirmed that the blood on  the  bullets
           was B+ve.


      e)    Only one lead bullet, five empty cartridges, one  piece  of  ply
           having one hole of bullet and one air pistol were  collected  on
           5/7/1995 after the site was inspected by PW-70 Roop  Singh,  the
           Ballistic Expert and also the Director of the CFSL -  PW-16  Dr.
           V.N. Sehgal.  From memo (Ex-PW-16/A) which bears  the  signature
           of PW-16 Dr. V.N. Sehgal and Inspector Ramesh, it is clear  that
           only one lead bullet (Ex-24) and five  cartridges  (Ex-25)  were
           found at the said flat.  It is not the case of  the  prosecution
           that bullet recovered from the said flat was stained with  human
           blood.


      f)    It is true that CW-6 Dr. Sarangi, who conducted the  post-mortem
           did not find any bullet injury but due to the condition  of  the
           dead body the bullet injuries might not have  been  detected  by
           naked eyes at the time of first post-mortem.  The  second  post-
           mortem Report clearly states that the firearm injuries were ante-
           mortem.  The evidence on record thus  clearly  establishes  that
           firearm injuries were found on the skull of the deceased.  It is
           true that the Security  Regulations  prohibit  the  carriage  of
           weapons in the passenger cabin but it was not impossible for the
           appellant to have flown from  Jaipur-Mumbai-Chennai  carrying  a
           revolver. There is no prohibition in carrying  the  revolver  in
           checked-in luggage. This plea is also raised  during  arguments.
           The witnesses were not confronted with it at the trial.


      g)    The appellant has not established the plea of alibi.   Since the
           appellant pleaded alibi the burden  was  on  him  to  prove  it.
           Since he has failed to prove alibi an adverse inference is drawn
           against him.  The appellant was noticed at or around 10.00  p.m.
           or 11.00 p.m. in the night intervening  2nd  and  3rd  at  Bagia
           Restaurant with Car bearing No.DL-2CA-1872. This is  established
           by leading evidence of reliable witnesses.   That  the  deceased
           and the appellant were last seen together  on  2/7/1995  at  the
           said Flat  No.8/2A   is  established  by  the  evidence  of  the
           neighbour of the appellant.  PW-11 Mrs.  R.K.  Chaudhary.  PW-12
           Matloob Karim and PW-82 R.N. Dubey, the servant of the appellant
           have established that the relations between  the  appellant  and
           the deceased were strained.  PW-81 IO Niranjan Singh who deposed
           about the condition of the said flat  and  the  recoveries  made
           from the said flat.  He stated that recoveries were effected  on
           4/7/1995  in  the  presence  of  PW-13  Dhara  Singh  and  PW-14
           Inspector Suraj Prakash  and,  thereafter,  the  said  flat  was
           locked and left under surveillance of SHO, Mandir  Marg  and  on
           5/7/1995 the recovery of one lead bullet, five  cartridges,  one
           ply with a hole, one air pistol was made in the presence of  the
           Ballistic Expert - PW-70 Roop Singh and PW-16 Dr.  V.N.  Sehgal,
           the Director of the CFSL.    The testimony of PW-13 Dhara  Singh
           is supported by the photos taken by PW-84 PC Balwan Singh.   The
           contention that  photos  taken  during  investigation  were  not
           placed on record is contrary to the facts.  Photographs  of  the
           burnt body are exhibited at Ex-PW-74/9-16  and  their  negatives
           are at Ex-PW-74/1-9, skull photographs are  at  Ex-PW-76/A15-A28
           and their negatives are at Ex-PW-76/A1-A31  and  photographs  of
           the said flat, female clothes etc. were placed on record at  Ex-
           PW-76/A1-A14.


      h)    The appellant absconded  from  Bagia  Restaurant  on  the  night
           intervening 2/7/1995 and 3/7/1995 and stayed at Gujarat  Bhawan.
           He absconded from Delhi to  Jaipur  by  taxi  on  3/7/1995.   On
           4/7/1995 he travelled by air from Jaipur-Bombay and from Bombay-
           Madras and, in the end, he went to Bangalore from where  he  was
           apprehended  by  the  Bangalore  Police  on  10/7/1995.  In  the
           presence of the DCP of Bangalore Police, search of the briefcase
           and shoulder bag produced by the  appellant  was  done  and  the
           revolver was recovered from his possession.   The Report of  the
           CFSL states that the damaged fired lead bullets  recovered  from
           the head and the neck of the deceased and the damaged fired lead
           bullet recovered from the carpet in the  said  flat  were  fired
           from the said revolver.  The hole in the ply was also caused  by
           the shot fired from the said revolver.   Though the incident  in
           question was widely published  the  appellant  never  sought  to
           contact any one. Abscondence of the appellant  is  an  important
           circumstance and lends support to the case of  the  prosecution.
           His conduct is relevant under Section 8 of the  Indian  Evidence
           Act. [Swamy Shraddananda alias Murali Manohar Mishra v. State of
           Karnataka[2]]




      i)    The car  of  the  appellant  bearing  No.DL-2CA-1872  was  found
           abandoned at Malcha Marg on 4/7/1995.  On  information  received
           by PW-81 IO Niranjan Singh, the same  was  seized.    Dry  human
           blood was found in the dicky of the said car.  The key  of  this
           car was recovered at the Pai Vihar Hotel  at  Bangalore  in  the
           presence of the appellant and his advocate.  The testimony of PW-
           81 IO Niranjan Singh about the recovery of  the  car  at  Malcha
           Marg has not been questioned in cross-examination. Thus, all the
           circumstances  clearly  establish  the  prosecution  case.   The
           conviction of the appellant deserves to be confirmed.

ANALYSIS OF EVIDENCE IN LIGHT OF SUBMISSIONS OF THE COUNSEL.
26.   We shall now consider the submissions  of  the  counsel  in  light  of
evidence  on  record.    Since  this  is  a  case  based  on  circumstantial
evidence, we must see whether chain of circumstances is complete and  points
unerringly to the guilt of the appellant.  It is first necessary to see  the
background of the case.  The fact that the appellant and the  deceased  were
staying at the said flat as husband and wife can hardly be disputed.   PW-12
Matloob Karim, who was known to the appellant and the deceased  stated  that
in the year 1989, he was the Organizing Secretary  of  Youth  Congress.   At
that time, the appellant was its President  and  the  deceased  was  General
Secretary of its Girls Wing.  He stated that he knew the deceased from  1984
when they were in the Students Union of  Delhi  University  and  because  of
their close association, they had fallen in love with each other.   However,
they could not marry because  they  belonged  to  different  religions.   He
stated that he got married in December, 1988.  The deceased got  married  to
the appellant in the year 1992  and  informed  him  about  it.   He  further
stated that after her marriage, she was staying with the  appellant  at  the
said flat.  CW-1 Mrs. Jaswant Kaur, the mother of the deceased, CW-2  Sardar
Harbhajan Singh, the father of the deceased and PW-82 Ram Niwas  Dubey,  who
was the  personal  servant  of  the  appellant  also  confirmed  this  fact.
Pertinently, no suggestion was put to them  in  the  cross-examination  that
what they were saying was false.  In this connection,  it  is  important  to
note that the DNA Report [Ex-PW-87/A] confirms that the dead body which  was
burnt at Bagia Restaurant was that of the deceased, who was  the  biological
offspring of CW-1 Mrs. Jaswant Kaur and CW-2 Sardar Harbhajan Singh.   PW-11
Mrs. Chaudhary, a retired Government servant, was  staying  along  with  her
husband in Flat No.8/2-B, which was in front of the appellant’s Flat No.8/2-
A.   She stated that the  appellant  was  living  with  his  wife  i.e.  the
deceased in the said flat.  Her husband  PW-9  M.L.  Chaudhary  corroborated
her evidence. According to PW-11 Mrs. Chaudhary, the deceased was last  seen
with the appellant in the evening of 2/7/1995 in the said flat.  Though  his
statement recorded under Section 313 of the Cr.P.C., in  answer  to  one  of
the questions, the appellant stated that he was  the  President  of  NSU(I);
that he knew the deceased since 1985; that the deceased was living with  his
parents at Gole Market and that he had  no  contact  with  her  after  1985,
while answering another question, he admitted that he was  living  with  the
deceased in the said flat.  PW-15 HC Amba Das  was  the  beat  constable  of
Mandir Marg Area at the relevant time.  According to him, once he  had  gone
to the house of the appellant for verification  of  the  quarters.  At  that
time, the appellant told him that he should take care  of  the  Car  bearing
No.DAC 3285 belonging to his wife and his Car bearing No.DL-2CA-1872 as  the
vehicles were increasingly being stolen.   According to him,  the  appellant
also told him that since during the day time they were out, he  should  take
care of their house.   Admittedly, Car bearing No.DAC 3285 belonged  to  the
deceased.   It may be noted here that on 5/7/1995, this car  was  seized  by
PW-81 IO Niranjan Singh when it was parked below the  said  flat.   We  are,
therefore, of the opinion that the prosecution has successfully proved  that
the appellant and the deceased were married and they  were  staying  in  the
said flat as husband and wife and that the deceased was  last  seen  in  the
company of the appellant in the said flat on the evening of 2/7/1995 by  PW-
11 Mrs. Chaudhary.

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

28.   From the evidence on record,  it  is  clear  that  all  was  not  well
between the appellant and the deceased.  PW-12 Matloob  Karim  has  admitted
that the deceased and he were in love with each other  but  they  could  not
marry because they belonged to different religions.  His evidence  indicates
that he got married to a Muslim girl in December, 1988.  According  to  him,
the deceased told him that she had married the appellant in the  year  1992.
He stated that even after his marriage, he and the  deceased  used  to  meet
and talk.  According to him, in August,  1989,  the  deceased  told  him  to
enquire about the antecedents of the  appellant.   She  told  him  that  the
appellant had proposed to her.  According to this witness, he had  told  her
that the  appellant  was  not  a  good  person.   The  deceased  phoned  him
sometimes in the year 1992 and stated that she  had  got  married  with  the
appellant  and  that  prior  to  the  marriage,  she  had  disclosed   their
friendship to the appellant.  Six months  thereafter,  he  received  a  call
from the deceased stating that she was trapped; that the appellant  was  not
a good man and that he used to abuse and  thrash  her  on  trivial  matters.
The deceased again phoned him and told him that  the  appellant  had  thrown
her out of their house.  On 2/7/1995 between 3.00 p.m.  to  4.00  p.m.,  the
deceased telephoned him and told him to help her to  migrate  to  Australia.
The evidence of this witness is criticized on the ground that he  is  not  a
person of good character because he admitted that even  after  marriage,  he
continued to have relationship with the deceased.   It is contended that  he
was inimically  disposed  towards  the  appellant  and,  therefore,  he  had
falsely implicated him.  We find no substance in this submission.   Assuming
this witness loved the deceased and he  continued  to  meet  her  after  her
marriage with the appellant that, in our opinion,  has  no  relevance.   His
evidence has a ring of truth.  By  falsely  implicating  the  appellant,  he
would not have gained anything.  In our opinion, this witness is  worthy  of
credence.  PW-82 Ram Niwas Dubey’s  testimony  also  throws  light  on  this
aspect.  His association with the appellant began in the year 1989 when  the
appellant was the President of Youth Congress (I). He was working as a  peon
with him till April, 1995.  He stated that the appellant obtained  the  said
flat in 1992.  The appellant lived with his wife i.e. the  deceased  in  the
said flat.  He  knew  the  deceased  since  1992  as  she  was  the  General
Secretary of Youth Congress and used to visit the appellant  at  his  office
at Talkatora.   After the appellant’s marriage with  the  deceased,  he  was
working with the appellant and was living in the said flat.  He stated  that
the appellant and the deceased used to quarrel on  the  topic  of  marriage.
The deceased used to ask the appellant  as  to  when  he  would  make  their
marriage public.  The appellant used to  tell  her  that  he  will  disclose
their marriage to the people at the appropriate  time.   According  to  him,
there used to be frequent quarrels between the two and  the  appellant  used
to beat the deceased with legs, fists and  dandaa.  He further deposed  that
as directed by the appellant, he used to accompany the deceased  to  keep  a
watch on her movements because the appellant suspected  her  fidelity.   The
defence has not elicited anything in the cross-examination of this  witness,
which can persuade us to discard his testimony. PW-11 Mrs.  R.K.  Chaudhary,
the neighbour of the appellant and the deceased, stated that once when  they
were watching T.V. in their house, they heard a noise coming  from  outside.
They opened the door of the drawing room and saw that scuffle was  going  on
between the appellant and the deceased.  The deceased wanted to  go  out  of
the house but the appellant was pulling her back  inside  the  house.   This
witness has no reason to concoct a  story.   She  appears  to  us  to  be  a
reliable witness.  Though the father and the mother  of  the  deceased,  the
neighbours of the appellant and the deceased and  their  servant  knew  that
the appellant and the deceased were staying together and the parents of  the
deceased stated in the court  that  the  appellant  and  the  deceased  were
married to each other, the marriage  was  not  made  public.   The  deceased
wanted the marriage to be made public.  The appellant was  reluctant  to  do
so and was suspecting her fidelity.  On account of this suspicion,  he  used
to quarrel with her and beat her.  He had asked PW-82  Ram  Niwas  Dubey  to
keep watch  over  her  movements  and  had  also  put  restrictions  on  her
movements.  On account of this, the deceased was  making  efforts  to  leave
him.  It appears that perhaps  the  appellant  did  not  want  to  make  the
marriage public because the deceased was continuing  her  relationship  with
PW-12 Matloob Karim even after marriage. These circumstances established  by
evidence adduced by the prosecution lead us to conclude  that  there  was  a
strong motive for the appellant to do away with the deceased.  It was  urged
that the appellant was deeply in love with the deceased and despite  knowing
her relationship with PW-12 Matloob Karim, he did not  drive  her  out.   He
only restricted her movements  because  he  wanted  to  stop  her  from  her
wayward ways.  He would have, therefore, never killed her. In  our  opinion,
the appellant’s love for the deceased does not dilute the  prosecution  case
on motive.  In fact, it strengthens it.

29.   That there was fire in the  Bagia  Restaurant  around  10.30  p.m.  on
2/7/1995 and that, at that time, the appellant was present  near  the  Bagia
Restaurant is established by the prosecution by leading  reliable  evidence.
PW-7 Mrs. Anaro Devi who was running  a  vegetable  shop  near  Ashok  Yatri
Niwas stated that two years back at about 11.30 p.m. on  2/7/1995  when  she
was present at her  shop,  a  fire  broke  out  in  Bagia  Restaurant.   One
constable and home guard came there.  She informed them about the fire.  PW-
3 HC Kunju stated that on 2/7/1995 he  was  posted  as  Constable  at  P.S.,
Connaught Place.  PW-4 Home Guard Chander  Pal  was  with  him.   When  they
reached near Ashok Yatri Niwas at about 11.20 p.m.,  they  found  that  fire
had broken out in the Bagia Restaurant.   He  rushed  to  the  Police  Post,
Western Court and gave information  to  the  police  through  wireless.   On
reaching the spot, he saw flames coming up from the  Bagia  Restaurant.   He
entered the restaurant along with PW-4 Home Guard Chander Pal  and  saw  A2-
Keshav standing near the tandoor.  He was putting pieces of  wood  into  the
tandoor and was shuffling the same with a long wooden  stick.   On  enquiry,
A2-Keshav told him that he was a Congress Party worker and  he  was  burning
the old banners, posters and waste papers, etc. of the Congress  Party.   In
the meantime, the patrolling officer SI Rajesh Kumar, the staff of  PCR  and
security officials Rajiv Thakur and PW-35 Mahesh  Prasad  also  came  there.
According to  him,  he  saw  the  appellant  near  the  gate  of  the  Bagia
Restaurant.  PW-35 Mahesh Prasad told him that the appellant was  the  owner
of the Bagia Restaurant.  PW-3 HC Kunju  identified  the  appellant  at  the
police station as the same person whom he had seen at the gate of the  Bagia
Restaurant.  PW-4 Home Guard Chander Pal stated that on  2/7/1995,  when  he
was on patrolling duty along with PW-3 HC Kunju, they  reached  Ashok  Yatri
Niwas at about 11.30 p.m.  They saw fire at the Bagia Restaurant.   PW-3  HC
Kunju went and phoned the police  station  and  came  back.   Both  of  them
scaled the wall and entered  the  Bagia  Restaurant  for  extinguishing  the
fire.  They saw A2-Kesahv trying to stoke  the  fire  with  the  help  of  a
wooden stick.  When asked, A2-Keshav told them that he was burning  the  old
banners and   posters of the Congress Party.  He  further  stated  that  the
appellant was standing there wearing white coloured kurta  pyjama.   He  was
so informed by PW-35 Mahesh Prasad.  He further stated  that  the  appellant
came near  the  tandoor  and  shuffled  the  fire  with  wooden  stick  and,
thereafter, he left from there.  He stated that he identified the  appellant
at the police station.   CW-5 HC Majid Khan deposed that  in  the  night  of
2/7/1995, he was on duty on PCR vehicle driven by Ranbir Singh.   They  went
to Ashok Yatri Niwas for drinking water and there they noticed the  fire  in
Bagia Restaurant.  They went towards the gate of  Bagia  Restaurant.   There
was a kanat fixed at the gate and one man was standing there.  The man  told
them that they were burning the old banners and waste papers  and  flags  of
Congress Party and that he was the leader of Youth Congress.   PW-35  Mahesh
Prasad then told them that that man was the owner of  Bagia  Restaurant  and
his name was ‘Sushil Sharma’.  According to him, A2-Keshav was  stoking  the
fire.   He  stated  that  A2-Keshav  was  apprehended  at  the  spot.   PW-1
Philips’s evidence is also important. He was working as a  Stage  Programmer
in Bagia Restaurant.  This fact is confirmed by PW-5 K.K. Tuli, the  General
Manager of Bagia Restaurant.  According to PW-1  Philips,  on  2/7/1995,  he
was on duty from 8.00 p.m. to 12.00 midnight.  He stated  that  he  and  his
wife PW-2 Mrs. Nisha were to stage a performance on  that  day.   One  guest
had come to see him.  He had gone to see off that  guest  at  9.30  p.m.  or
9.45 p.m.  When he came back, he saw the appellant coming  there  in  Maruti
Car No.1872.  After 5-7 minutes, A2-Keshav asked him to stop  the  programme
and go back to his house as his duty was over.  He obeyed and left  for  his
house along with his  wife  PW-2  Mrs.  Nisha.   While  going,  he  saw  the
appellant sitting in his Maruti car which was standing at  the  gate.   PW-2
Mrs. Nisha corroborated PW-1 Philips.  She stated  that  she  had  seen  the
appellant at about 10.15 p.m. at the gate of Bagia Restaurant in Maruti  Car
No.1872.  PW-5 K.K. Tuli, General Manager of Bagia  Restaurant  stated  that
around the time when the incident occurred, the appellant used to visit  the
Bagia Restaurant every day.  All these witnesses  have  stood  firm  in  the
cross-examination.

30.   PW-3 HC Kunju stated that since foul  smell  was  emanating  from  the
tandoor, he and SI Rajesh Kumar went near  the  tandoor  out  of  suspicion.
They saw a human body whose hands and feet were completely burnt  and  whose
intestines were protruding out from the stomach in the tandoor.  On a  close
look, they found that the dead body  was  of  a  female.   PW-4  Home  Guard
Chander Pal corroborated PW-3 HC Kunju on this aspect.   He  stated  that  a
body of a woman was found lying in the tandoor.  It’s  bones  were  cut  and
intestines were protruding.  PW-5 K.K. Tuli, the General  Manager  of  Ashok
Yatri Niwas  stated  that  on  receiving  telephonic  information  from  the
security staff, he went to the Bagia Restaurant and found a dead body  of  a
woman in burnt condition lying amongst the wood pieces  in  tandoor.   There
is no  challenge  to  these  statements  of  the  witnesses  in  the  cross-
examination.  On receiving information, senior police officers including PW-
81 IO Niranjan Singh reached the spot.  Photographs of the  dead  body  were
taken by PW-74 HC Hari Chand.  He produced the photographs of the dead  body
(Ex-PW-74/9  to  16)  and  negatives  thereof  (Ex-PW-74/1  to  8).    PW-75
Inspector Jagat Singh and PW-81 IO Niranjan Singh have  also  deposed  about
it. A2-Keshav was  handed  over  to  PW-81  IO  Niranjan  Singh.   PW-81  IO
Niranjan Singh recorded the statement of PW-3 HC Kunju,  which  was  treated
as FIR.  In the FIR, PW-3 HC Kunju narrated all the events which took  place
after he reached the Bagia Restaurant till his statement was  recorded.   It
is necessary to note here that he specifically mentioned about the  presence
of the appellant.   He  made  it  clear  that  he  was  informed  about  the
appellant’s presence by the Security Guard PW-35 Mahesh  Prasad.  He  stated
that the Security Guard PW-35 Mahesh Prasad told  him  that  the  appellant,
who is the owner of the Bagia Restaurant was standing there.  He  noted  the
presence of the appellant and  A2-Keshav.   He  stated  that  A2-Keshav  was
detained, however, the appellant had run away.  He  also  stated  about  the
finding of burnt body of an unknown lady in the tandoor.

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

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

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


34.   We shall now go to the search of the said  flat.   PW-81  IO  Niranjan
Singh stated that on 3/7/1995 at about 3.00 p.m., he went to the  said  flat
along with A2-Keshav, but it was found locked.  On 4/7/1995 at  about  11.30
a.m. / 12.00 noon, he reached the said flat.  The said flat  was  under  the
surveillance of PW-14 Inspector Suraj Prakash. It was forced  open  under  a
panchanama.  Certain bloodstained articles like  cloth  pieces,  chatai  and
piece of carpet were seized from the said flat under a panchnama.  He  found
five empty cartridges, a lead bullet, an air  pistol  and  a  ply  in  which
there was a hole caused by the bullet.  According to him, he  did  not  take
possession  of  these  articles  because  the  Ballistic  Experts  were  not
present.  On 5/7/1995, he visited  the  said  flat  along  with  PW-70  Roop
Singh, the Ballistic Expert, and PW-16 Dr.  V.N.  Sehgal,  Director  of  the
CFSL and in their presence five empty cartridges, one lead  bullet,  an  air
pistol and a ply having bullet hole were seized and  panchnama  (Ex-PW-16/A)
was drawn.  It was signed by PW-16 Dr.  V.N.  Sehgal  and  Inspector  Ramesh
Chander. PW-16 Dr. V.N. Sehgal has  confirmed  that  on  5/7/1995  at  about
12.00 noon, on a request made by the police, he visited the said flat  along
with PW-70 Roop Singh. He stated that he entered the said  flat  along  with
PW-70  Roop Singh and PW-81 IO Niranjan Singh.  PW-70 Roop  Singh  collected
five empty cartridges, one lead bullet, one piece of ply having  a  hole  in
it and one air pistol.  He further stated  that  the  seized  articles  were
sealed and the memo  was  prepared,  which  is  at  Ex-PW-16/A.    PW-81  IO
Niranjan Singh has also spoken about the seizure memo [Ex-PW-16/A] on  which
he obtained signatures  of  PW-16  Dr.  V.N.  Sehgal  and  Inspector  Ramesh
Chander.  PW-67 HC Raj Kumar, in-charge of Malkhana has  deposed  about  the
parcels of the seized articles received by him on 5/7/1995.  He stated  that
on 17/7/1995, SI Rakesh Ahuja took all  the  parcels  to  the  CFSL.   Thus,
seizure of five empty cartridges, one lead bullet, a ply with a hole  on  it
from the said flat on 5/7/1995 is proved.  It is also proved that  the  said
seized articles were deposited in Malkhana on 5/7/1995 and were sent to  the
CFSL on 17/7/1995.

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

36.   It is argued that in the recovery memo dated  4/7/1995,  there  is  no
mention of recovery of empty cartridges, lead bullet, etc.  and,  therefore,
PW-81 IO Niranjan Singh’s version regarding  recovery  of  empty  cartridges
and lead bullet is falsified.   This  submission  deserves  to  be  rejected
without hesitation because the  recovery  was  effected  on  5/7/1995  under
panchnama  (Ex-PW-16/A).   These  articles  were  not  seized  on  4/7/1995.
Therefore, they  cannot  find  mention  in  the  panchnama  dated  4/7/1995.
Recovery Memo dated 5/7/1995 clearly talks  about  recovery  of  cartridges,
lead bullet, a piece of ply having a hole of a bullet  and  an  air  pistol.
It is true that PW-13 Dhara Singh  has  not  stated  that  on  4/7/1995  any
cartridges or lead bullet were found  in  the  said  flat.   However,  PW-14
Inspector Suraj Prakash who had accompanied him and PW-81 IO Niranjan  Singh
have stated so. Therefore, non-mentioning of this fact by PW-13 Dhara  Singh
is of no consequence.  Both PW-14  Inspector  Suraj  Prakash  and  PW-81  IO
Niranjan Singh have stated that the said cartridges, etc.  were  not  seized
on 4/7/1995 because the Ballistic Expert was  not  present.   Therefore,  we
feel  that  absence  of  any  memo  in  this  regard  does  not  affect  the
prosecution case adversely.  It is stated in the  written  submissions  that
two lead bullets were recovered from  the  said  flat.   This  statement  is
factually incorrect.  All the witnesses  have  stated  that  only  one  lead
bullet was recovered from the  said  flat  and  that  is  confirmed  by  the
panchnama (Ex-PW-16/A).  We are also not impressed by the submission of  the
appellant’s counsel that at least ten rounds must have  been  fired  in  the
said room and the neighbours should have therefore spoken about  it.   That,
ten rounds must have been fired is  a  speculation  of  the  counsel.   But,
assuming that to be so, it is common  knowledge  that  neighbours  generally
would not want to get involved in such cases.  There is always an effort  to
disassociate oneself from such incidents for fear of  getting  entangled  in
court cases.  Not much can be made out of this conduct  of  the  neighbours.
It is pertinent to note that PW-81 IO Niranjan Singh  stated  that  when  he
asked the neighbours to become witnesses in the  proceedings  of  the  house
search, they refused and stated that it is not proper to give evidence in  a
murder case.  It appears that somehow two neighbours  agreed  to  depose  in
the court,  but  considering  the  general  apathy  of  the  people  towards
associating themselves with such  incidents,  their  not  referring  to  any
sound of firing cannot be taken against the prosecution.   Moreover,  it  is
quite possible that since the flats were closed, sound did not  travel  from
one flat to the neighbours’ flat.  We, therefore, reject this submission.

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

38.   PW-81 IO Niranjan Singh has stated that  on  4/7/1995  at  about  9.10
a.m., a wireless message was received by him  that  Car  bearing  No.DL-2CA-
1872 was parked at Malcha Marg.   He  along  with  the  staff  reached  near
Malcha Marg Market.  The said car was parked on the  road.   The  CFSL  team
was called for inspection of the car.  Car  was  then  inspected.   The  dry
blood lying in the dicky of the car  was  scratched,  kept  in  a  polythene
packet, converted into a parcel and sealed.   Many  long  hair  were  lifted
from the back of the front left seat of  the  car,  kept  in  a  parcel  and
sealed.  A memo being Ex-PW-60/B was prepared  which  bears  this  out.  The
recovery of the appellant’s car is attacked on the ground that no record  of
wireless message has been  produced;  no  one  from  P.S.  Malcha  Marg  was
examined; no record of P.S. Malcha Marg has been  produced;  no  information
was given to the nearest Magistrate and no record showing presence of  PW-72
PC Mukesh of P.S. Chanakyapuri was produced.  It  is  also  stated  that  no
witness from the CFSL has been examined; no photographs have  been  produced
and no independent witnesses have been examined.  In  our  opinion,  it  was
not necessary to produce the record showing presence  of  PW-72  PC  Mukesh.
We find him to be a truthful witness.  In  his  evidence,  PW-72  PC  Mukesh
clearly stated that on 4/7/1995, the  said  car  was  found  abandoned  near
Gujarat Bhavan.  He also deposed that before leaving the police station  for
patrolling duty, he was given number of the said car by SHO saying  that  it
was involved in the murder case of P.S. Connaught Place and he  should  look
for the said car.  In view of   the clear testimony of PW-72 PC Mukesh,   it
was not necessary to produce other record to support  seizure  of  the  car.
There is no reason to disbelieve him.  PW-81 IO Niranjan  Singh  has  stated
that the blood stains found in the dicky were scratched and  sample  thereof
was taken.  Therefore, even if no witness from the CFSL  has  been  examined
to depose about this or no photographs  have  been  produced,  that  has  no
adverse effect on the prosecution case.   Some advantage  is  sought  to  be
drawn from the discrepancies in the time  as  regards  receipt  of  wireless
message from PW-81 IO Niranjan Singh and the estimate of time given  by  PW-
72 PC Mukesh regarding PW-81 IO Niranjan Singh’s presence at  the  site  and
the time given by PW-81 IO Niranjan Singh as to when  he  reached  the  said
flat after taking samples from the appellant’s car.  The  estimate  of  time
given by the witnesses differ and may, at times, conflict.  When  there  are
telltale circumstances on record clearly supporting  the  prosecution  case,
assuming there are some  discrepancies  in  the  evidence  of  witnesses  as
regards time, it would not make any dent in  the  prosecution  story.    The
argument that in the dicky there ought to have been a pool  of  blood,  will
also have to be rejected.  PW-75  Inspector  Jagat  Singh  in  his  evidence
stated that from the spot, a polythene  sheet/tarpaulin  bearing  stains  of
blood on one side  and  scratch  marks  on  the  lower  side  was  taken  in
possession under seizure memo [Ex-PW-75/1].  The body must, therefore,  have
been well covered in polythene sheet to hide it and,  hence,  there  was  no
pool of blood in the dicky.   This also explains why there was no  trail  of
blood on the staircase or on the road.  Blood was,  however,  found  in  the
said flat.

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


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

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

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

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

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

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

46.   So far as PW-85 Dr. Joginder Pal is concerned, admittedly, he did  not
conduct the post-mortem.  He conducted superficial examination of  the  dead
body.  Obviously, therefore, he did not notice any  firearm  injury  in  the
neck or in the head or in the nape of the deceased.  It is  true  that  CW-6
Dr. Sarangi did not notice any evident bullet marks or the bullets  embedded
in the skull.  Possibly the bullets were so  embedded  that  they  were  not
visible to the naked eye.  In this connection, it is necessary  to  turn  to
PW-81 IO Niranjan Singh’s evidence.   He  stated  that  as  he  found  empty
cartridges, a lead bullet and a bullet hole on a ply in the  said  flat,  he
suspected that a firearm must have been used in this  incident.   Therefore,
he requested CW-6 Dr. Sarangi to  conduct  X-ray  examination  of  the  dead
body.  However, X-ray examination  was  not  conducted.   These  facts  were
mentioned by him in letter (Ex-PW-81/X-11).  Since no X-ray examination  was
done on 9/7/1995, he discussed the need of having a second post-mortem  with
the DCP, New Delhi and ACP, Connaught Place.  He wrote a  letter  containing
queries about re-post-mortem and handed it over to PW-57 SI Ombir Singh  and
directed him to hand over the same to the Board of  Doctors.   According  to
him, on 9/7/1995, he had requested Dr. Aditya Arya, DCP for constitution  of
Board of Doctors.  Copy of the letter to Dr. Arya is at Ex-PW-81/X-11.   The
Commissioner requested the Lt. Governor and by the order of Lt. Governor  of
New Delhi, the Board of Doctors was constituted.  PW-44  Dr.  Bharat  Singh,
PW-68 Dr. T.D. Dogra and Dr. S.K. Khanna were selected  as  members  of  the
Board.  On 12/7/1995, at about 10.30 a.m.,  the  members  of  the  Board  of
Doctors reached the Lady Hardinge Mortuary to  conduct  second  post-mortem.
CW-6 Dr. Sarangi was also  there  and  he  had  a  conversation  with  them.
Second  post-mortem  report  (Ex-PW-44/A)   indicates  that  it  was  partly
conducted at Lady Hardinge Mortuary and thereafter the body was  shifted  to
the Civil Hospital for  X-ray.   Skull  was  X-rayed.   X-ray  revealed  two
bullets embedded in the skull.

47.   In our opinion, when PW-81 IO Niranjan Singh had  requested  CW-6  Dr.
Sarangi to get  the  dead  body  X-rayed,  he  should  have  got  the  X-ray
examination done.   He gave an excuse that the  X-ray  examination  was  not
done because the portable X-ray machine available at Lady  Hardinge  Medical
College was not functioning.   Assuming this to be true, in a serious  crime
like this, he should have immediately taken  the  dead  body  to  the  Civil
Hospital for X-ray examination.  It is pertinent to note  that  to  a  court
question, he has stated that he was making sincere efforts to get  X-ray  of
the dead body done in the X-ray department in consultation with the  Medical
Superintendent of the hospital. However, before he could complete  any  such
endeavour, the body was taken away by PW-81 IO Niranjan  Singh  for  further
examination by some other doctors at some other hospital.  There is  nothing
on record to show that CW-6 Dr. Sarangi made any grievance about this  fact.
 In fact, he admitted that in the post-mortem report,  he  did  not  mention
these facts nor did he take any action  against  PW-81  IO  Niranjan  Singh.
When asked whether he had taken any action, CW-6  Dr.  Sarangi  changed  his
stand and stated that he thought that  what  PW-81  IO  Niranjan  Singh  was
doing was in the furtherance of “good justice”. He has  indeed  contradicted
himself.  If he thought that the dead body was  suddenly  withdrawn  and  he
was keen on X-raying it, then he ought to have  written  a  letter  to  that
effect to the Commissioner of Police and to the hospital authorities and  he
ought to have made complaint  against  PW-81  IO  Niranjan  Singh.   He  did
nothing.  In fact, at one stage  he  stated  that  the  necessity  of  X-ray
examination was not realized by him because he did  not  notice  any  bullet
marks and at another stage he suggested that he wanted to get the dead  body
X-rayed. When he was asked as to whether a bullet  can  be  put  inside  the
body after death at the place where it has been noticed  by  the  Board,  he
stated that the possibility could not be absolutely ruled out especially  in
the presence of multiple post-mortem cracks  and  separation  of  the  skull
bone from the neck for the  purpose  of  superimposition.   Thus,  CW-6  Dr.
Sarangi  in  his  evidence  has  tried  to  cast  a  doubt  on  the   entire
investigation and the Board of Doctors.  The trial court severely  commented
on the conduct of CW-6 Dr.  Sarangi.   The  High  Court,  however,  expunged
those remarks.  Since the High Court has expunged those  remarks,  we  would
not like to reopen the issue.  But we find it extremely difficult to  reject
the opinion of the Board of Doctors on the basis of his  evidence.   Eminent
doctors were members of the  Board  of  Doctors.   They  had  no  reason  to
falsely implicate the appellant.

48.   We would also like to make  it  clear  that  there  is  absolutely  no
reason to doubt the prosecution case that  the  skull  of  which  X-ray  was
taken was that of the  deceased.   CW-6  Dr.  Sarangi  stated  that  on  the
request of PW-81 IO  Niranjan  Singh,  the  skull  bone  was  separated  for
superimposition.  PW-81 IO Niranjan Singh stated that he received the  skull
on  5/7/1995.   He  stated  that  at  the  time  of  post-mortem,  he   gave
application dated 5/7/1995 to the Autopsy Surgeon for preserving  the  skull
for superimposition.  Thus, the skull was merely separated for  the  purpose
of superimposition but remained in the mortuary along with  the  dead  body.
The first post-mortem report dated  5/7/1995  records  that  the  skull  was
preserved for superimposition.  The skull along with the  body  remained  in
the mortuary of Lady Hardinge Medical College after  the  first  post-mortem
and was  not  sent  for  superimposition.   On  application  dated  9/7/1995
submitted by PW-81 IO Niranjan Singh, an order was  passed  for  the  second
post-mortem.  This application shows that though  a  request  was  made  for
skull superimposition test, the dead body with its head was still  preserved
in  the  Lady   Hardinge   Medical   College   mortuary   and   process   of
superimposition had not started till then.  The  second  post-mortem  report
records that the body was kept in the  mortuary  of  Lady  Hardinge  Medical
College in a plastic bag and was taken out from the same.   It  was  a  dead
body with  the  skull  separated.   The  evidence  clearly  shows  that  the
separated skull remained along with the body in the  mortuary  of  the  Lady
Hardinge Medical College from 5/7/1995 till  12/7/1995.   The  second  post-
mortem was conducted on 12/7/1995.  During the second post-mortem, the  dead
body was taken to Civil Hospital for X-ray and, thereafter, it  was  brought
back to the Lady Hardinge Mortuary. The body along with the skull was  later
taken to AIIMS for conducting superimposition.  The  defence  has  not  been
able to create any doubt in our minds that the skull was  not  that  of  the
deceased.  Minor discrepancies, if any, in the  evidence  of  witnesses  are
natural in a case of this type.  They will not have any  adverse  impact  on
the basic case of the prosecution which is borne out by cogent and  reliable
evidence.

49.   The second post-mortem report states that the body  was  kept  in  the
mortuary of Lady Hardinge Medical College in a plastic  bag  and  was  taken
out  from  the  same  in  the  presence  Board  of  Doctors.   On   external
examination, the body is  described  as  “a  burnt  dead  body,  with  skull
separated at upper cervical level  (kept  in  a  separate  cardboard  box)”.
After describing the state of upper limbs, lower  limbs,  left  lower  limb,
thoracic cavity, abdominal cavity, kidneys, back of  trunk,  spinal  column,
head, skull vault, cranial cavity, it is stated that at that  stage  it  was
decided to take X-rays of the body to detect any firearm  projectiles.   The
Report further notes that due to non-availability of the facility  of  X-ray
for the dead bodies at Lady Hardinge Medical  College,  it  was  decided  to
shift the body to the Civil Hospital for X-ray.   The body  was  shifted  to
the Civil Hospital in a police vehicle and X-ray  was  taken  in  the  Civil
Hospital.  From the evidence of CW-7 Dr. (Ms.) P.S. Kiran, the  Radiologist,
Civil Hospital, New Delhi, it appears that she took the necessary X-rays  of
the dead body.  X-ray plates were  shown  to  the  Board  of  Doctors.   The
doctors noted their observations in their report  after  viewing  the  X-ray
plates.  It is stated that the X-ray  plates  showed  the  presence  of  two
metal pieces, (i) in back of right ear (mastoid region) and (ii)  left  side
of neck, near the spine in soft tissues  of  cervical  stumps.   The  report
then indicates that thereafter the neck was dissected and a deformed  bullet
was located.  Thereafter, the right  mastoid  area  was  also  dissected  to
locate the bullet.  The outer table of the skull above mastoid  process  was
bulging  outwards  through  which  a  metal  piece  was  seen.   On  further
dissection, a deformed bullet was found embedded in the bone with  its  nose
portion pointing outwards and base towards medial  side.  Both  the  bullets
were removed.  The final opinion of the Board reads as under:

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


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

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

51.   It is also necessary to deal with the submission of  the  counsel  for
the appellant that the two parcels containing bullets which  were  extracted
from the skull of the deceased, bearing the  seal  of  Civil  Hospital  were
never sent to the CFSL.  This submission deserves to  be  rejected,  because
PW-44 Dr. Bharat Singh stated that after the second post-mortem,  he  handed
over the two bullets recovered from the skull of the deceased  to  PW-57  SI
Ombir Singh in a sealed cover with  the seal of Civil  Hospital.   PW-57  SI
Ombir Singh has confirmed this fact. He stated that he took   possession  of
the same vide Memo [Ex-PW57/A] and after depositing the dead  body  at  Lady
Hardinge Medical College, he came to the police station and handed over  the
said parcels to PW-81 IO Niranjan Singh along with  Memo  [Ex-PW-57/A].   It
was urged that PW-67 HC Raj Kumar, who is in-charge of Malkhana  has  stated
that  no  parcel  was  deposited  with  him  on  12/7/1995,  13/7/1995   and
14/7/1995.  This argument is misleading.   In  his  evidence  PW-67  HC  Raj
Kumar has nowhere stated that he had not received any parcel  on  12/7/1995,
13/7/1995 and 14/7/1995.  According to the  prosecution,  Entry  No.2146  of
the Malkhana  Register  shows  that  the  two  bullets  [Ex.Nos.36  and  37]
recovered from the skull of the deceased were deposited in  Malkhana.  PW-81
IO Niranjan Singh has stated that on 17/7/1995 he had sent  the  parcels  to
the CFSL through SI  Rakesh Ahuja.  PW-67  HC Raj Kumar has  confirmed  this
fact. PW-70 Roop Singh has stated that  he received  two  parcels  with  the
seal of Civil Hospital, Delhi from the  Malkhana  on  17/7/1995.   We  have,
therefore, no doubt that the two bullets recovered from  the  skull  of  the
deceased were sent to the CFSL. There is, therefore, no  substance  in  this
argument.



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



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

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

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

56.   In the ultimate analysis, therefore, we are of the  opinion  that  the
prosecution has successfully proved beyond reasonable  doubt  the  following
circumstances:

(a)   the appellant and the deceased were  married  and  they  were  staying
      together in the said flat being Flat No.8/2A situated at Mandir Marg;

(b)   the relations between the appellant and the  deceased  were  strained.
      The appellant was  suspecting  the  fidelity  of  the  deceased.   The
      deceased wanted to make their marriage public which the appellant  was
      not willing to do.  There was, thus, a strong motive to murder;

(c)   the appellant and the deceased were last seen together in the  evening
      of 2/7/1995 in the said flat;

(d)   on 2/7/1995, at about 11.00 p.m. there was a fire in Bagia  Restaurant
      and the  appellant  was  seen  at  around  10.15  p.m.  at  the  Bagia
      Restaurant in his Maruti Car bearing No.DL-2CA-1872;

(e)   A2-Keshav, who was an employee of the Bagia Restaurant  owned  by  the
      appellant, was seen shuffling the wood in the tandoor  with  a  wooden
      stick and he was apprehended at the  spot  in  the  night  intervening
      2/7/1995 and 3/7/1995;

(f)   charred corpse found in the tandoor was identified to be that  of  the
      deceased;

(g)   on 4/7/1995, certain blood stained articles were  recovered  from  the
      said flat where the appellant and the deceased were staying together;

(h)   on 4/7/1995, Car No.DL-2CA-1872 was found  abandoned  at  Malcha  Marg
      and the dicky of the car was found to contain dry blood.

(i)   on 5/7/1995, five empty  cartridges,  one  lead  bullet,  a  ply  with
      bullet hole and an air pistol were recovered from the said flat  where
      the appellant and the deceased were staying together;

(j)   from the evening of 2-3/7/1995, the appellant was on  the   run   till
      he  was arrested by the Bangalore Police at Bangalore  on  10/07/1995.
      On 11/07/1995, the appellant  was   handed    over    to   the   Delhi
      Police   and, inter  alia,   a  .32   Arminius   revolver   owned   by
      him was recovered by the police from his room at Pai  Vihar  Hotel  at
      Bangalore;

(k)   the second  post-mortem  report  prepared  after  studying  the  X-ray
      plates of the skull of the  deceased  revealed  that  there  were  two
      bullets embedded in it;

(l)   the CFSL report stated that the said two bullets  recovered  from  the
      skull of the deceased and the one lead bullet recovered from the  said
      flat were fired from the .32 Arminius revolver recovered by the police
      from Pai Vihar Hotel at Bangalore;

(m)   the death of the  deceased  was  homicidal  and  was  consequent  upon
      firearm injuries to the head of the deceased caused by  the  appellant
      alone with his .32 bore Arminius revolver;

(n)   as per the CFSL Report, blood found on various articles  seized   from
      the  said flat and from Bagia Restaurant and  the   blood   found   on
      the  bullets  recovered from the skull tallied.  It was of  the  blood
      group of the deceased.

(o)   the defence of alibi pleaded by the appellant was found to  be  false;
      and

(p)   the appellant and A2-Keshav conspired to cause  disappearance  of  the
      evidence of murder by burning the dead body of the deceased in tandoor
      of Bagia Restaurant.

57.   We have no  doubt  that  the  chain  of  the  above  circumstances  is
complete  and  unerringly  points  to  the  guilt  of  the  appellant.   The
established circumstances are capable of giving rise to inference  which  is
inconsistent with any other hypothesis except the guilt  of  the  appellant.
The  prosecution  has,  therefore,  proved  that  the  appellant  alone  has
committed the murder of the deceased in the  said  flat  on  2/7/1995.   The
appellant conspired with A2-Keshav to do away with  the  dead  body  of  the
deceased so as to cause disappearance of the evidence of murder and, at  the
instance of the appellant, A2-Keshav burnt the dead  body  in  the  tandoor.
The appellant has, therefore, rightly been convicted under  Section  302  of
the IPC and also for offence under Section 201 read with  Section  120-B  of
the IPC.  A2-Keshav has been acquitted of offence punishable  under  Section
302 read with Section 120-B of  the  IPC.   However,  he  has  been  rightly
convicted for offence punishable under Section 201 read with  Section  120-B
of the IPC.  As already stated, he has not appealed against the  said  order
of conviction.  In view of the above,  we  confirm  the  conviction  of  the
appellant for offence punishable under Section 302 of the IPC and  also  for
offence punishable under Section 201 read with Section  120-B  of  the  IPC.
Having confirmed the conviction, we must now  consider  as  to  whether  the
death sentence awarded by the trial court and confirmed by  the  High  Court
should be confirmed.

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

59.   Counsel relied on  the  judgments  of  this  Court  in  Santosh  Kumar
Satishbhushan Bariyar,  etc.  v.  State  of  Maharashtra,  etc.[4];   Ramdeo
Chauhan alias Raj Nath v.  State of Assam[5]; Swamy Shraddananda  (2)  alias
Murali Manohar Mishra  v.  State of Karnataka[6]; Aloke Nath  Dutta  &  Ors.
v.   State  of  West  Bengal[7];  Haresh  Mohandas  Rajput   v.   State   of
Maharashtra[8] and State  of  Punjab   v.   Manjit  Singh  and  Ors.[9]  and
submitted that  public  perception  is  extraneous  to  conviction  as  also
sentencing.  Age of the accused would be a  relevant  consideration.   In  a
case  of  circumstantial  evidence  the  courts  should  lean  towards  life
imprisonment.  Every murder is  brutal.  Brutality  alone  would  not  be  a
ground for judging whether the case is one of  the  rarest  of  rare  cases.
The court must consider whether the accused has a criminal history;  whether
he is a criminal or a professional killer and whether he will be  an  ardent
criminal and a menace to the society.  Counsel pointed out that despite  the
fact that the offences committed  by  the  accused  were  heinous  in  Mohd.
Chaman  v.   State (NCT of Delhi)[10];  Dilip  Premnarayan  Tiwari  &  Anr.,
etc. v. State of Maharashtra[11];  Sebastian alias  Chevithayan  v.    State
of Kerala[12]; Rajesh Kumar v. State through Government of NCT of  Delhi[13]
and  Amit  v.   State of Uttar Pradesh[14], the court  converted  the  death
sentence  into  life  sentence.   Counsel  submitted  that  probability   of
reformation and rehabilitation of the  accused  has  to  be  considered  and
burden is on  the  State  to  lead  evidence  to  prove  that  there  is  no
probability of  reformation  or  rehabilitation  of  the  accused.   Counsel
submitted that Machhi Singh  &  Ors.  v.    State  of  Punjab[15]  advocates
principle of proportionality which is old and archaic and,  hence,  we  must
fall back on Bachan Singh.  Counsel further submitted that there is  a  long
lapse of time since the imposition of capital sentence and consideration  of
sentence by this Court.  The offence was committed on 2/7/1995.   The  trial
court convicted and sentenced the appellant on 3/11/2003.   The  High  Court
confirmed the death sentence on 19/2/2007.  The appeal has been  pending  in
this Court for the last six years.  He  submitted  that  the  appellant  has
already undergone more than 18 years imprisonment in the jail.   This  delay
also  provides  a  valid  ground  for  commuting  death  sentence  to   life
imprisonment. In this  connection  he  relied  on  Piare  Dusadh   v.   King
Emperor[16];  Neti Sreeramulu   v.   State  of  Andhra  Pradesh[17];   Ediga
Anamma v. State of Andhra  Pradesh[18];   Ramesh  and  Ors.   v.   State  of
Rajasthan[19];   Mohd.  Farooq  Abdul  Gafur  &  Anr.  etc.   v.   State  of
Maharashtra,  etc.[20]  and   State  of  Uttar  Pradesh    v.    Munesh[21].
Counsel submitted that the instant case does not fall  in  the  category  of
rarest of rare cases.  The appellant has no criminal history.  He is  not  a
professional criminal.  Death was caused by bullet  injuries.   It  was  not
savage or brutal.  The State has not laid any  evidence  to  establish  that
the accused would commit criminal  acts  of  violence  as  would  constitute
continuing threat to  the  society.   Therefore,  the  principle  that  life
imprisonment is the rule and death sentence is an exception must be  applied
to this case.  Counsel submitted that body was burnt  to  destroy  evidence.
That would not bring this case in the  category  of  rarest  of  rare  cases
(Santosh  Kumar  Bariyar).   Counsel  submitted  that  evidence  on   record
establishes that the appellant loved the deceased.  He married  her  despite
the fact that she had an affair with PW-12 Matloob Karim.  She continued  to
have  relations  with  PW-12  Matloob  Karim  despite  his  objection  after
marriage.  The deceased was not a hapless woman.   She  was  an  independent
woman.  Since crime is  committed  in  such  circumstances,  death  sentence
should not be awarded to the appellant.

60.   On the other hand, relying on the judgments of  this  Court  in  Ediga
Anamma[22];  Mahesh  s/o.  Ram  Narain,  &  Ors.   v.    State   of   Madhya
Pradesh[23]; Machhi Singh; Molai  & Anr. v.  State  of  Madhya  Pradesh[24];
State of Rajasthan  v.  Kheraj Ram[25] and Dhananjoy Chatterjee alias  Dhana
v.  State of West Bengal[26]  Mr. Chandhiok,  learned  Additional  Solicitor
General, submitted that the  appellant  deserves  no  sympathy.   The  crime
committed by  the  appellant  is  horrendous  and  warrants  death  penalty.
Counsel submitted that the  deceased  was  a  hapless  lady;  qua  her,  the
appellant was in a dominating position;  the  appellant  always  ill-treated
her and refused to acknowledge her as his wife though she was residing  with
him; his plea was held to be false; he showed no remorse  after  the  murder
and he tried to destroy the evidence in  a  most  barbaric  manner.    Thus,
there are no mitigating circumstances, in this case.  A sentence other  than
the death sentence will not operate as a deterrent  and  may  send  a  wrong
signal to the society.  Counsel submitted that the object of  sentencing  is
to see that the crime does not go unpunished and  the  victim  of  crime  as
also the society has the satisfaction that justice has been  done.   Drawing
our attention to paragraphs 19, 22, 87 and  88  of  the  impugned  judgment,
counsel submitted that the High  Court  has  given  strong,  convincing  and
legally sound reasons for awarding death penalty, which do  not  deserve  to
be disturbed.  On the aspect of delay,  relying  on  the  judgment  of  this
Court in Smt. Triveniben, etc.  v.   State  of  Gujarat,  etc.[27],  counsel
submitted that in this case the  Constitution  Bench  has  held  that  while
considering whether the death sentence should be awarded or  not,  the  time
utilized in judicial proceedings upto final verdict  cannot  be  taken  into
account.  This is not a case  of  delay  in  disposing  of  mercy  petition.
Counsel submitted that while awarding  death  sentence,  perception  of  the
Society is one of the considerations.  Counsel submitted that this  case  is
one of the most widely published and infamous murder case.   It  is  a  case
where this Court must, by confirming  the  death  sentence,  send  a  strong
signal to the society which  will  operate  as  an  effective  deterrent  in
future.

ANALYSIS OF SUBMISSIONS ON SENTENCE AND CONCLUSION:
61.   Learned counsel have drawn our  attention  to  the  decisions  of  the
Constitution Bench of this Court in Bachan Singh and Machhi Singh.  We  must
begin with them. In Bachan Singh, after referring  to  Ediga  Anamma,  which
had, in turn, referred to Neti Sreeramulu, constitutional validity of  death
penalty for murder provided in Section 302 of the  IPC  and  the  sentencing
procedure embodied in sub-section  (3)  of  Section  354  of  the  Code  was
considered. The Constitution Bench observed that the  death  penalty  should
be imposed in rarest of rare/gravest  cases.  It  was  observed  that  while
considering the question of sentence relative weight must be  given  to  the
aggravating and mitigating circumstances.  The Constitution Bench noted  the
aggravating circumstances as under:

      “(a)  if the murder has been committed  after  previous  planning  and
      involves extreme brutality; or


      (b)   if the murder involves exceptional depravity; or


      (c)   if the murder is of a member of any of the armed forces  of  the
      Union or of a member of any police force or of any public servant  and
      was committed—


        (i)      while such member or public servant was on duty; or


        (ii)     in consequence of anything done or attempted to be done by
        such member or public servant in the lawful discharge of  his  duty
        as such member or public servant whether at the time of  murder  he
        was such member or public servant, as  the  case  may  be,  or  had
        ceased to be such member or public servant; or


      (d)   if the murder is of  a  person  who  had  acted  in  the  lawful
      discharge of his duty  under  Section  43  of  the  Code  of  Criminal
      Procedure, 1973, or who had rendered assistance to a Magistrate  or  a
      police officer demanding his aid or  requiring  his  assistance  under
      Section 37 and Section 129 of the said Code.”


The mitigating circumstances were noted as under:


      “(1)  That the offence was committed under the  influence  of  extreme
      mental or emotional disturbance.


      (2)   The age of the accused. If the accused is young or old, he shall
      not be sentenced to death.


      (3)   The probability that the accused would not commit criminal  acts
      of violence as would constitute a continuing threat to society.


      (4)    The  probability  that  the  accused  can   be   reformed   and
      rehabilitated. The State shall by evidence prove that the accused does
      not satisfy the conditions (3) and (4) above.


      (5)   That in the facts and circumstances  of  the  case  the  accused
      believed that he was morally justified in committing the offence.


      (6)   That the accused acted under the duress or domination of another
      person.


      (7)   That the condition of the accused showed that  he  was  mentally
      defective and that the said defect impaired his capacity to appreciate
      the criminality of his conduct.”



62.    The  Constitution  Bench  noted  that  there   are   numerous   other
circumstances justifying the passing of the lighter sentence  as  there  are
countervailing circumstances of aggravation.  It was further  observed  that
the  court  cannot  obviously  feed  into  a  judicial  computer  all   such
situations since they are astrological imponderables  in  an  imperfect  and
undulating society.  Nonetheless, it  cannot  be  over-emphasized  that  the
scope and concept of mitigating factors in the area of  death  penalty  must
receive a liberal and expansive construction by the courts  in  accord  with
the sentencing policy. It was further observed that Judges should  never  be
bloodthirsty. Relevant  observations  of  the  Constitution  Bench  read  as
under:

      “Judges should never be bloodthirsty. Hanging of murderers  has  never
      been  too  good  for  them.  Facts  and  figures,  albeit  incomplete,
      furnished by the Union of India, show that in the  past,  courts  have
      inflicted the extreme penalty with extreme infrequency — a fact  which
      attests to the caution and compassion which they have  always  brought
      to bear on the exercise of their sentencing discretion in so  grave  a
      matter. It is, therefore, imperative to voice the concern that courts,
      aided by the broad  illustrative  guidelines  indicated  by  us,  will
      discharge the onerous  function  with  evermore  scrupulous  care  and
      humane concern, directed along  the  highroad  of  legislative  policy
      outlined in Section 354(3) viz. that for persons convicted of  murder,
      life imprisonment is the rule and death sentence an exception. A  real
      and  abiding  concern  for  the  dignity  of  human  life   postulates
      resistance to taking a life through law’s instrumentality. That  ought
      not to be done save in the rarest of rare cases when  the  alternative
      option is unquestionably foreclosed.”

63.   In Machhi Singh, a three Judge Bench of this Court considered  whether
death sentence  awarded to the appellants  should  be  confirmed.   In  that
case as a result of a family feud the appellants with a motive of  reprisal,
committed 17 murders in five incidents occurring in the same night in  quick
succession in the five neighbouring villages.   Some  of  the  accused  were
sentenced  to  death.   This  Court  referred  to  the   judgment   of   the
Constitution  Bench  in  Bachan  Singh  and   culled   out   the   following
propositions as emerging from Bachan Singh’s case:

      “(i) The extreme penalty of death need  not  be  inflicted  except  in
      gravest cases of extreme culpability.


      (ii) Before opting for the death  penalty  the  circumstances  of  the
      ‘offender’ also require to be taken into consideration along with  the
      circumstances of the ‘crime’.


      (iii)  Life  imprisonment  is  the  rule  and  death  sentence  is  an
      exception. In other words death sentence must  be  imposed  only  when
      life imprisonment appears to be an  altogether  inadequate  punishment
      having  regard  to  the  relevant  circumstances  of  the  crime,  and
      provided,  and  only  provided,  the  option  to  impose  sentence  of
      imprisonment for  life  cannot  be  conscientiously  exercised  having
      regard to the nature and  circumstances  of  the  crime  and  all  the
      relevant circumstances.


      (iv) A balance sheet of aggravating and mitigating  circumstances  has
      to be drawn up and in doing so the mitigating circumstances have to be
      accorded full weightage and a just balance has to  be  struck  between
      the aggravating and the mitigating circumstances before the option  is
      exercised.”




      It was further observed that to apply these guidelines court must  ask
and answer the  following questions:


      “(a) Is  there  something  uncommon  about  the  crime  which  renders
      sentence of imprisonment for life inadequate and  calls  for  a  death
      sentence?


      (b) Are  the  circumstances  of  the  crime  such  that  there  is  no
      alternative but to impose death sentence even after according  maximum
      weightage to the mitigating circumstances which speak in favour of the
      offender?”

      In the facts of the case,  death  sentence  awarded  to  some  of  the
accused was confirmed.

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

JUDGMENTS RELIED ON BY THE APPELLANT:

65.   In Mohd. Chaman, the appellant had raped a 1½ year-old  girl.  In  the
process of committing rape, injuries were inflicted on liver which  resulted
in death of the child.  The trial court sentenced him to  death.   The  High
Court confirmed the death penalty.  This Court observed that the  crime  was
undoubtedly serious and  heinous  and  the  conduct  of  the  appellant  was
reprehensible.  It revealed a dirty and perverted mind of a human being  who
has no control over his carnal desires.  However, after  treating  the  case
on the touchstone of the guidelines laid down in  Bachan  Singh  and  Machhi
Singh, this Court was of  the  view  that  the  appellant  was  not  such  a
dangerous person that to spare his life will  endanger  the  community.   It
was further observed that the circumstances of the crime were not such  that
there was no alternative but to impose death sentence even  after  according
maximum  weightage  to  the  mitigating  circumstances  in  favour  of   the
offender.  It was observed  that  the  case  is  one  in  which  a  humanist
approach should be taken while awarding punishment.  The capital  punishment
imposed against the appellant was set aside and the appellant was  sentenced
to life imprisonment.

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

67.   In Manjit Singh, the case of the prosecution was  that  Bhinder  Kaur,
the wife of the deceased-Sewa Singh was  having  illicit  relationship  with
the accused, who  were  working  as  Sewadars  in  the  Gurdwara  where  the
deceased used to recite Kirtan.  Having come  to  know  this,  deceased-Sewa
Singh and his son used to beat Bhinder Kaur.  Enraged by this,  the  accused
came to the house of deceased-Sewa Singh and murdered him by assaulting  him
with Kirpan and Khanda.   The son of  deceased-Sewa  Singh  and  two  others
were killed in the Gurdwara by them.  The accused were  sentenced  to  death
by the trial court.  The High Court, however, commuted  the  death  sentence
to life imprisonment.  The State of Punjab appealed to this Court.   It  was
argued that the High Court was not right in converting  the  death  sentence
into life imprisonment.  This Court observed that whether the  case  is  one
of the rarest of rare cases is a question which has to be determined on  the
facts of each case.   Only where culpability  of  the  accused  has  assumed
depravity or where the accused is found to be an ardent criminal and  menace
to the society; where the crime is committed in an organized manner  and  is
gruesome, cold-blooded, heinous and atrocious; where  innocent  and  unarmed
persons are attacked and murdered without any  provocation,  death  sentence
should be awarded.  In the facts of the case  before  it,  this  Court  held
that being driven more by infatuation and also being devoid of their  senses
on coming to know about the ill-treatment meted out  to  Bhinder  Kaur,  the
accused committed the murders.  It was observed that though the act  of  the
accused was gruesome it was a result of human mind  going  astray.   In  the
circumstances, the High Court’s  order  commuting  death  sentence  to  life
imprisonment was confirmed.

68.   In Santosh Kumar Bariyar, all  the  accused  including  the  appellant
were unemployed young men  in  search  of  job.   In  execution  of  a  plan
proposed by the appellant and accepted by them, they kidnapped a  friend  of
theirs with the motive  of  procuring  ransom  from  his  family  but  later
murdered him and after cutting his body into pieces disposed of the same  at
different places.  One of the accused turned approver. The prosecution  case
was based exclusively on  his  evidence.   The  trial  court  awarded  death
sentence to the appellant.  The High Court  confirmed  the  death  sentence.
In appeal, this Court held that doctrine  of  proportionality  provides  for
justifiable reasoning for awarding death penalty.  However,  while  imposing
any sentence on the accused the court must also keep in  mind  the  doctrine
of rehabilitation. The court  cannot,  therefore,  determine  punishment  on
grounds of proportionality  alone.   This  Court  observed  that  there  was
nothing   to  show  that  the  appellant   could   not   be   reformed   and
rehabilitated.  It was further  observed  that  the  manner  and  method  of
disposal of the dead body of the deceased made the  case  a  most  foul  and
despicable case of murder.  However, mere mode of disposal of the dead  body
may not by itself be made the ground for inclusion of a case in  the  rarest
of care category for the purpose of imposition of death  sentence.   It  may
have to be considered along with several other factors. This  Court  was  of
the view that the fact that the prosecution case rested on the  evidence  of
the approver, will have to be kept in mind.  It was  further  observed  that
where the death sentence is to be imposed on  the  basis  of  circumstantial
evidence, the circumstantial  evidence  must  be  such  which  leads  to  an
exceptional case.  It was further observed that the discretion given to  the
court in such cases assumes onerous  importance  and  its  exercise  becomes
extremely difficult because of the irrevocable character of  death  penalty.
Where two views ordinarily could be  taken,  imposition  of  death  sentence
would not be appropriate, but where there is  no  other  option  and  it  is
shown that reformation is not possible, death sentence may be  imposed.   In
the circumstances, the death sentence was converted to life imprisonment.

69.   In Sebastian, the appellant  had  trespassed  into  the  complainant’s
house and kidnapped his two year-old daughter.  He  then  raped  and  killed
her.  The trial court sentenced  him  to  death.   The  death  sentence  was
confirmed by the High Court.   This  Court  considered  the  fact  that  the
appellant was a young man of 24 years of age at the  time  of  incident  and
that the case rested on circumstantial evidence, and substituted  the  death
sentence by life sentence.  It was, however,  directed  that  the  appellant
shall not be released from prison for the rest of his life.

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

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

72.   In Amit, the complainant lodged FIR alleging  that  while  his  mother
and wife were present in the house, the appellant came there, took away  his
3 year-old daughter  on  the  pretext  that  he  would  give  her  biscuits.
However, neither the appellant  nor  the  complainant’s  daughter  returned.
Investigation disclosed that the appellant had kidnapped the girl.  She  was
subjected to unnatural offence and rape.  She was hit on the  head  and  was
strangulated.  The trial court convicted the appellant,  inter  alia,  under
Section 302 of  the  IPC  and  sentenced  him  to  death.   The  High  Court
confirmed the death sentence.  On appeal, this Court  set  aside  the  death
sentence.   This Court observed that the appellant was a young  person  aged
about 28 years.  There was no evidence to show that he  had  committed  such
offences earlier.  There was nothing on record to show that  he  was  likely
to repeat similar crimes in future.   This  Court  expressed  that  given  a
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  Punjab[28],  where
the appellant, who was serving 12 years’ rigorous  imprisonment  for  having
raped his own  daughter  was  released  on  parole.   While  on  parole,  he
murdered his wife and the daughter, whom he had  raped  earlier,  by  giving
repeated axe-blows on their heads.  His  other  daughter  saved  herself  by
hiding in a room  and  bolting  the  same  from  inside.   The  trial  court
convicted him under Section 302 of the IPC and sentenced him to death.   The
High Court confirmed the death  sentence.   This  Court  observed  that  the
appellant was a poor man and was unable to earn his livelihood since he  was
driven out of his house by the deceased-wife.  It  was  his  grievance  that
the deceased-wife was adamant that he should live outside and that  was  the
reason  why  the  relations  were  strained.  The  appellant   was   feeling
frustrated because of the attitude of his wife  and  children.   This  Court
also took into consideration the fact that the appellant did  not  harm  his
other daughter who was there even though he had a good chance to  harm  her.
This Court observed that after  balancing  the  aggravating  and  mitigating
circumstances emerging from the evidence on record, it was not persuaded  to
accept that the case can appropriately be called the  rarest  of  rare  case
warranting death penalty.  This Court also expressed that it  was  difficult
to hold that the  appellant  was  such  a  dangerous  person  that  he  will
endanger  the  community  if  his  life  is  spared.   The  possibility   of
reformation of the appellant could not be ruled out.  In the  circumstances,
this Court converted the death sentence into  life  imprisonment.   However,
after  referring  to  its  judgment  in  Sangeet   &  Anr.   v.   State   of
Haryana,[29] this Court observed  that  there  is  a  misconception  that  a
prisoner serving life sentence has  an  indefeasible  right  to  release  on
completion of either  14  years’  or  20  years’  imprisonment.   A  convict
undergoing life imprisonment is expected to remain in custody till  the  end
of his life, subject to any remission granted by the appropriate  Government
under Section 432 of the Cr.P.C. which in turn is subject to the  procedural
checks mentioned in the said provision and  further  substantive  checks  in
Section  433-A  of  the  Cr.P.C.   This  Court,  therefore,  sentenced   the
appellant  to  undergo  rigorous  imprisonment  for  life,  meaning  thereby
imprisonment till the end of his life but subject to any  remission  granted
by the  appropriate  Government  satisfying  the  conditions  prescribed  in
Section 432 of the Cr.P.C. and further substantive checks under Section 433-
A of the Cr.P.C. by passing appropriate speaking order.

JUDGMENTS RELIED ON BY THE RESPONDENT-STATE.

74.   In Mahesh, five persons were murdered because of marriage  of  a  lady
of a higher caste with a Harijan  boy.   They  were  axed  to  death  in  an
extremely brutal manner.  After the murders,  the  accused  tried  to  break
open the door of the room  where  two  of  the  prosecution  witnesses  were
hiding to save themselves and they left the place only when the  door  could
not be opened.  The accused were convicted under Section 302 of the IPC  and
sentenced to  death  by  the  trial  court.    While  confirming  the  death
sentence, this Court observed as under:

      “It will be a mockery of justice to permit these appellants to  escape
      the extreme penalty of law when faced  with  such  evidence  and  such
      cruel acts. To give the lesser punishment for the appellants would  be
      to render the justicing system of this country suspect. The common man
      will  lose  faith  in  courts.  In  such  cases,  he  understands  and
      appreciates the language  of  deterrence  more  than  the  reformative
      jargon. But this does not mean that the Court ignore the  need  for  a
      reformative approach in the sentencing process. But here, there is  no
      alternative but to confirm the death sentence.”

75.   In Dhananjoy Chatterjee, the appellant had raped and murdered a  young
18 year-old girl in her flat  in  a  society  where  he  was  working  as  a
security guard.  The  trial  court  found  him  guilty,  inter  alia,  under
Sections 302 and 376 of the IPC.  The High Court confirmed the  sentence  of
death.  This Court also confirmed the death sentence by observing  that  the
case falls in the category of rarest of rare cases.  This Court observed  as
under:

        “The faith of the society by such a barbaric act of the guard, gets
        totally shaken and its cry for justice becomes loud and clear.  The
        offence was not only inhuman and barbaric  but  it  was  a  totally
        ruthless crime of rape followed  by  cold  blooded  murder  and  an
        affront to the human dignity of the society. The savage  nature  of
        the crime  has  shocked  our  judicial  conscience.  There  are  no
        extenuating or mitigating circumstances whatsoever in the case.  We
        agree that a real and abiding concern for the dignity of human life
        is required to be kept in mind by the courts while considering  the
        confirmation of the sentence of death but a cold blooded preplanned
        brutal murder, without any provocation, after committing rape on an
        innocent and defenceless young girl of 18 years,  by  the  security
        guard certainly makes this case a “rarest of the rare” cases  which
        calls for no punishment other than the capital  punishment  and  we
        accordingly  confirm  the  sentence  of  death  imposed  upon   the
        appellant for the offence under Section 302 IPC.”

76.   In Molai, a  16  year-old  girl  was  preparing  for  her  class  10th
examination at her house.  Both the accused  took  advantage  of  her  being
alone  in  the  house  and  committed  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  chilam  with  calmness,  which
indicated that he had no remorse and he  was  satisfied  with  what  he  had
done.  This Court observed that the victims were two innocent  children  and
a helpless woman. They were done to  death  in  an  extremely  gruesome  and
grotesque manner.  In the circumstances, this Court set aside the  order  of
acquittal and confirmed the death sentence awarded by the trial court.

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

79.   We notice from the above judgments that mere brutality of  the  murder
or the number of persons killed or the manner in which the body is  disposed
of has not always persuaded this Court to impose death penalty.   Similarly,
at times, in the peculiar factual matrix, this Court has not thought it  fit
to award death penalty in cases, which rested on circumstantial evidence  or
solely on approver’s evidence.  Where murder, though  brutal,  is  committed
driven by extreme emotional  disturbance  and  it  does  not  have  enormous
proportion, the option of life imprisonment has been  exercised  in  certain
cases.  Extreme poverty and social status has also been taken  into  account
amongst other circumstances for not awarding death sentence.  In few  cases,
time spent by the accused in death cell has been  taken  into  consideration
along  with  other  circumstances,  to  commute  death  sentence  into  life
imprisonment.  Where the accused had  no  criminal  antecedents;  where  the
State had  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  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 accused should be  awarded
death sentence or not. The core of a criminal case is  its  facts  and,  the
facts differ from case to case.  Therefore, the  various  factors  like  the
age of the criminal, his social status, his  background,  whether  he  is  a
confirmed criminal or not, whether he had any antecedents, whether there  is
any possibility of his reformation and rehabilitation or  whether  it  is  a
case where the reformation is  impossible  and  the  accused  is  likely  to
revert to such crimes in future and become  a  threat  to  the  society  are
factors which the criminal court will have to examine independently in  each
case.  Decision whether to impose death penalty or  not  must  be  taken  in
light  of  guiding   principles   laid   down   in   several   authoritative
pronouncements of this Court in the facts  and  attendant  circumstances  of
each case.

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

83.   We must now examine the present case in light of our  observations  in
the preceding paragraphs.
The appellant was  the  State  President  of  the
Youth Congress in Delhi.  The deceased was a qualified  pilot  and  she  was
also the State General Secretary of  Youth  Congress  (Girls  Wing),  Delhi.
She was an independent lady, who was capable of taking  her  own  decisions.
From the evidence on record, it cannot be said that she  was  not  in  touch
with people  residing  outside  the  four  walls  of  her  house.   Evidence
discloses that even on the date of incident at  around  4.00  p.m.  she  had
contacted PW-12 Matloob Karim.   She  was  not  a  poor  illiterate  hapless
woman.   Considering  the  social  status  of  the  deceased,  it  would  be
difficult to come to the conclusion that the appellant  was  in  a  dominant
position qua her.  The appellant was deeply in love with  the  deceased  and
knowing full well that the deceased was very close to PW-12  Matloob  Karim,
he married her hoping that the deceased would settle down with him and  lead
a happy life.  The evidence on record  establishes  that  they  were  living
together and were married but unfortunately, it appears  that  the  deceased
was still in touch with PW-12 Matloob Karim. It appears that  the  appellant
was extremely possessive of the deceased. The evidence on record shows  that
the appellant suspected her fidelity and the murder was the result  of  this
possessiveness.   We have noted that when the appellant was  taken  to  Lady
Hardinge Mortuary and when the dead  body  was  shown  to  him,  he  started
weeping.  It would be difficult, therefore, to say that he was  remorseless.
 The fact that he absconded is undoubtedly a circumstance  which  will  have
to be taken against him, but the same, in  our  considered  view,  would  be
more relevant to the issue of culpability  of  the  accused  which  we  have
already decided against him rather than the question of what  would  be  the
appropriate sentence to be awarded which is presently  under  consideration.
The medical evidence does not establish that the dead body of  the  deceased
was cut.  The second post-mortem report states  that  no  opinion  could  be
given as to whether the dead body was cut as dislocation  could  be  due  to
burning of the dead body.  There is no recovery of any weapon  like  chopper
which could suggest that the  appellant  had  cut  the  dead  body.   It  is
pertinent to note that no member of the family of the deceased came  forward
to depose against the  appellant.   In  fact,  in  his  evidence,  PW-81  IO
Niranjan Singh stated that the brother and  sister-in-law  of  the  deceased
stated that they were under the obligation of the appellant and  they  would
not like to  depose  against  him.   Murder  was  the  outcome  of  strained
personal relationship.  It was not an  offence  against  the  Society.   The
appellant has no criminal antecedents.  He is not a confirmed  criminal  and
no evidence is led by the State to indicate that he is likely to  revert  to
such crimes in future.  It is, therefore, not possible in the facts  of  the
case to say that there is no chance of  the  appellant  being  reformed  and
rehabilitated.  We do not think that that option is closed.  Though  it  may
not be strictly relevant, we may mention that the appellant is the only  son
of his parents, who are old and infirm.  As  of  today,  the  appellant  has
spent more than 10 years in death cell.  Undoubtedly, the offence is  brutal
but the brutality alone would not justify death sentence in this case.   The
above mitigating circumstances persuade us to commute the death sentence  to
life imprisonment.  In several judgments, some of which,  we  have  referred
to hereinabove, this Court has made it clear that life sentence is  for  the
whole of remaining life subject to the remission granted by the  appropriate
Government under Section 432 of the Cr.P.C., which, in turn, is  subject  to
the  procedural  checks  mentioned  in  the  said  provision   and   further
substantive checks in Section 433-A of  the  Cr.P.C.   We  are  inclined  to
issue the same direction.

84.   We have already confirmed the conviction of the appellant for  offence
punishable under Section 302 of the IPC and  for  offence  punishable  under
Section 120-B read with Section 201 of  the  IPC.   In  view  of  the  above
discussion, we commute the death sentence  awarded  to  appellant  –  Sushil
Sharma to life sentence.  We make it clear that life  sentence  is  for  the
whole of remaining life of the appellant subject to  the  remission  granted
by the appropriate Government under Section 432 of the  Cr.P.C.,  which,  in
turn, is subject to the procedural checks mentioned in  the  said  provision
and further substantive checks in Section 433-A of the Cr.P.C.

85.   Appeal is disposed of in the aforestated terms.

                                                       …………………………………………..CJI
                               (P. SATHASIVAM)




                                                       ……………………………………………..J.
                                                     (RANJANA PRAKASH DESAI)




                                                       ……………………………………………..J.
                               (RANJAN GOGOI)
NEW DELHI,
OCTOBER 8, 2013.

-----------------------
[1]    AIR 1979 SC 1262
[2]    (2007) 12 SCC 288
[3]    (1980) 2 SCC 684
[4]    (2009) 6 SCC 498
[5]    (2001) 5 SCC 714
[6]    (2008) 13 SCC 767
[7]    (2007) 12 SCC 230
[8]    (2011) 12 SCC 56
[9]    (2009) 14 SCC 31
[10]   (2001) 2 SCC 28
[11]   (2010) 1 SCC 775
[12]   (2010) 1 SCC 58
[13]   (2011) 13 SCC 706
[14]   (2012) 4 SCC 107
[15]   (1983) 3 SCC 470
[16]   AIR 1944 FC  1
[17]    (1974)  3 SCC 314
[18]   (1974) 4 SCC 443
[19]   (2011) 3 SCC 685
[20]   (2010) 14 SCC 641
[21]   (2012) 9 SCC 742
[22]   (1974) 4 SCC 443
[23]   (1987) 3 SCC 80
[24]   (1999) 9 SCC 581
[25]   (2003) 8 SCC 224
[26]   (1994) 2 SCC 220
[27]   (1989) 1 SCC 678
[28]   (2013) 3 SCC 294
[29]   (2013) 2 SCC 452

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