Crl.A.Nos.1416-17/17 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1416-1417 OF 2017
Ishwari Lal Yadav …..Appellant
Versus
State of Chhattisgarh …..Respondent
W I T H
CRIMINAL APPEAL NOS.300-301 OF 2018
Nihaluddin @ Khanbaba & Ors. …..Appellants
Versus
State of Chhattisgarh …..Respondent
CRIMINAL APPEAL NOS.1418-1419 OF 2017
Kiran Bai …..Appellant
Versus
State of Chhattisgarh …..Respondent
AND
1
Crl.A.Nos.1416-17/17 etc.
CRIMINAL APPEAL NOS.298-299 OF 2018
Rajendra Kumar & Anr. …..Appellants
Versus
State of Chhattisgarh …..Respondent
J U D G M E N T
R. Subhash Reddy, J.
1. All these appeals are directed against the common judgment of the
High Court of Chhattisgarh at Bilaspur dated 01.12.2016 passed in Criminal
Reference No.1 of 2014 and Criminal Appeal No.511 of 2014, as such they
are disposed of by this common judgment and order.
2. All the appellants were charged for offence under Sections 364/34 read
with 120B; 302/34 read with 120B and 201, Indian Penal Code (IPC). Vide
judgment dated 27.03.2014 passed in Sessions Trial No.61 of 2011, the
learned Sessions Judge, Durg, has convicted and sentenced the appellants.
For the offence under Sections 364/34 read with 120B, IPC they were
convicted and sentenced for imprisonment for life and fine of Rs.5000/- each,
in default of payment of fine, to undergo further rigorous imprisonment for four
months. For the offence under Sections 302/34 read with 120B, IPC death
2
Crl.A.Nos.1416-17/17 etc.
penalty was imposed with a fine of Rs.5000/- each, in default of which, they
were sentenced to undergo further rigorous imprisonment for four months.
For the offence under Section 201, IPC, rigorous imprisonment for five years
and a fine of Rs.2000/- each was imposed, in default of payment of fine, they
were sentenced to undergo further rigorous imprisonment for two months.
3. In view of death penalty imposed on the appellants, a reference was
made to the High Court, as required under Section 366 of Cr.P.C. and further
appellants-accused have filed Criminal Appeal No.511 of 2014 before the High
Court. By a common judgment dated 01.12.2016, the High Court has
confirmed death sentence on the two main accused, namely, Ishwari Lal
Yadav and Smt. Kiran Bai and modified the sentence of other appellants to
one of imprisonment for life without any entitlement of remission or parole.
4. The deceased, a small two year old boy, by name, Chirag Rajput was
the son of Poshan Singh (PW-3) and Savitri Bai (PW-5). PW-5 works as a
domestic help whereas Poshan Singh (PW-3) was working in Bhilai. Smt.
Vandana Rajput (PW-21) is the sister of Savitri Bai (PW-5) and was at home
along with the minor child – Chirag – on fateful day, i.e., 23.11.2010. When
Vandana Rajput (PW-21) and deceased boy Chirag Rajput were at home on
23.11.2010, Chirag went outside the house to play while she was inside. After
sometime when she went out, she could not find Chirag and Chirag was
missing. She immediately rang her sister and brother-in-law, i.e., PW-5 and 3
respectively who came back to their house.
3
Crl.A.Nos.1416-17/17 etc.
5. It is the case of the prosecution that the two main accused, Smt. Kiran
Bai and her husband Ishwari Lal Yadav believed in tantrism. Smt. Kiran Bai
wanted to attain siddhi. She was also proclaimed as ‘gurumata’. To propitiate
the God, she asked her husband and disciples who are the other co-accused
along with them, to get a small child for human sacrifice. The main accused
were neighbours to PW-3 and 5. It is alleged that for the purpose of sacrifice
to God, the child Chirag was kidnapped and murdered in a gruesome manner,
inside the house of main accused Kiran Bai and Ishwari Lal Yadav. Thereafter
he was buried in the precincts of the house. To avoid sound of cries, music
system was played loudly.
6. After the information from Vandana Rajput (PW-21) to her sister Savitri
Bai (PW-5) and brother-in-law Poshan Singh (PW-3), all started searching for
Chirag. When the parents of the child, family members and other people of
the neighbourhood were searching for missing boy, they became suspicious
from the loud music, emanating from the house of two main accused.
Thereupon, some people have entered the house of Kiran Bai and Ishwari Lal
Yadav and found five mounds of freshly dug earth. It is alleged that there was
also a leaf bowl (Dona), one small bowl (Katori), one small round metal pot
(Lota), a trident (Trishul), idols and pictures of Gods and other items of puja
were lying there. There was blood on some of these items. It is alleged that
when the crowd asked the accused what had happened, Smt. Kiran Bai and
Ishwari Lal Yadav confessed that they had sacrificed Chirag with the help of
4
Crl.A.Nos.1416-17/17 etc.
other co-accused and begged for mercy. Immediately thereafter, the crowd
started digging the freshly dug earth and body of Chirag was taken out.
Thereafter police came to the site and report was lodged. The body of Chirag
was sent for post-mortem. All the accused were questioned on which they
made some disclosure statements. On the basis of such disclosure
statements, recoveries of certain incriminating articles were made. After
completing the investigation, the police filed final report under Section 173
Cr.P.C. against all the appellants and one other accused by name Krishna
Tambi. However, as he was absconding, his trial was separated. All the
accused have denied the guilt and claimed trial. They were tried for the
offences as referred above before the learned Sessions Judge, Durg and they
were convicted and sentenced vide judgment dated 27.03.2014. All the
appellants were imposed with the penalty of death. Reference was made to
the High Court under Section 366 of the Cr.P.C.
7. Appellants have also challenged their conviction and sentence imposed,
by way of criminal appeal. Both were considered by a common judgment.
While confirming the conviction under Section 302/34 read with Section 120B,
IPC and sentence of death penalty on the main accused, namely, Ishwari Lal
Yadav and Kiran Bai, the High Court has modified the punishment of other
accused to that of imprisonment for life.
8. We have heard Sri Siddhartha Dave, learned senior counsel appearing
for the appellants in Crl. Appeal Nos.1416-1417 of 2017 and 1418-1419 of
5
Crl.A.Nos.1416-17/17 etc.
2017; Sri Birendra Kumar Mishra, learned counsel for the appellants in Crl.
Appeal Nos.300-301 of 2018; Sri Rajeev Kumar Bansal, learned counsel
appearing for the appellants in Crl. Appeal Nos.298-299 of 2018 and Sri
Sumeer Sodhi, learned counsel appearing for the respondent-State of
Chhattisgarh.
9. In these appeals, mainly it is pleaded by the learned senior counsel Sri
Siddhartha Dave appearing for the appellants that except the alleged
confessional statement, there is no other evidence to prove the guilt of
accused for kidnapping and murder of deceased boy – Chirag. It is further
submitted that all the findings recorded by the trial court, as confirmed by the
High Court, for conviction of the appellants rest upon confessional statement
of the appellants which is barred under Sections 24, 25 and 26 of the Indian
Evidence Act, 1872. It is submitted that there are material contradictions in
the depositions of witnesses about the arrival of police to the place of
occurrence of the offence and on the alleged extra-judicial confessions, inspite
of the same, courts below have accepted such evidence on record and
passed the impugned judgments. It is submitted that, as the body of the
deceased was not found in exclusive possession of the main accused, courts
below have committed an error in taking assistance of Section 106 of the
Indian Evidence Act. It is submitted that body was discovered only after large
crowd had gathered. Further, it is submitted that the discovery of skeleton of
other person and also the theory of bad character, that is, appellants were
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Crl.A.Nos.1416-17/17 etc.
black magic practitioners, is barred under Sections 14, 15 and 54 of the Indian
Evidence Act. It is further submitted that the prosecution has not proved any
ingredient under Section 120B, IPC to prove conspiracy among the appellants
for committing the alleged offence.
10. It is the contention of the learned counsel appearing for the appellants
that there is absolutely no evidence on record to prove that there was a
common intention on the part of such appellants to commit the offence of
kidnapping and murder of the deceased child. So far as the appellants other
than the main accused, it is submitted that the findings of the courts below are
based on the alleged confessional statements and in the absence of any
corroboration, the courts below have committed an error in convicting the
appellants with the aid of Sections 34 and 120B, IPC. It is also the contention,
of the learned counsel for the appellants that there is no reason or justification
for imposing the death penalty on Ishwari Lal Yadav and Kiran Bai, while
modifying the punishment to that of life imprisonment to all other accused. It
is also submitted that the incident in question cannot be considered as the
“rarest of rare cases” so as to impose the capital punishment. The learned
counsel appearing for the appellants, in support of his arguments, has relied
on the following cases :
1. Aghnoo Nagesia v. State of Bihar1
2. Sahadevan & Anr. v. State of Tamil Nadu2
1
1966 (1) SCR 134 = AIR 1966 SC 119
2
(2012) 6 SCC 403
7
Crl.A.Nos.1416-17/17 etc.
3. Shambu Nath Mehra v. The State of Ajmer3
4. Firozuddin Basheeruddin & Ors. v. State of Kerala4
5. Ronny v. State of Maharashtra5
11. On the other hand, Sri Sumeer Sodhi, learned counsel appearing for the
State of Chhattisgarh, has submitted that the case relates to a gruesome
murder of small two year old boy as a human sacrifice and from the oral
evidence on record, the prosecution has proved the guilt of the accused
beyond reasonable doubt, as such there are no grounds to interfere with the
impugned judgment. It is submitted that, all the appellants were present in
the house of the main accused and the fact that the body of the deceased was
also recovered from the house of the main accused, is proved from the oral
evidence of PWs-2, 3, 5, 6, 9, 10, 12, 13 and 16. It is further submitted that
the contradictions referred to by the counsel for the appellants are minor and
they may not affect well reasoned findings and conclusions arrived by the trial
court, as confirmed by the High Court. The learned State Counsel has relied
on the judgment of this Court in the case of Sushil Murmu v. State of
Jharkhand6
to substantiate his arguments.
12. Having heard the learned counsels we have carefully perused the
impugned judgments and also the material on record.
13. To prove the guilt of the accused, prosecution has examined PW 1 to
PW 22. When it was reported by Vandana Rajput (PW-21), who is the sister
3
1956 SCR 199
4
(2001) 7 SCC 596
5
(1998) 3 SCC 625
6
(2004) 2 SCC 338
8
Crl.A.Nos.1416-17/17 etc.
of Savitri Bai (PW-5), Savitri Bai and Poshan Singh (PW-3) came back to their
house. In the evidence of Poshan Singh (PW-3) who is the father of the
deceased child, he has stated that the main accused Ishwari Lal Yadav and
Smt. Kiran Bai are his neighbours and he knows them. He also knows all
other accused because they regularly visit but he could not tell their names.
He further stated that during their search for the missing Chirag along with his
wife Smt. Kiran Bai and others, they heard loud music emanating from the
house of the main accused, which gave suspicion in the minds of the people
in the locality, therefore, they entered the house of Ishwari Lal and Kiran Bai
and noticed that the ground around the place of worship was wet and a knife
was also lying at that place. On digging up the wet place, body of Chirag was
found. The body was in two parts and head had been severed from the neck.
Both the cheeks had been cut. At the place of worship, pictures of Gods have
been placed. At the same time, he stated, he has come to know the names of
other accused after occurrence of the incident. In similar lines is also the oral
evidence of PW-5 who is the mother of the deceased child. In her deposition
she has stated that she works as a domestic help. On the day of occurrence,
when Vandana Rajput (PW-21) has informed the mother of the deceased
child, PW-5 Savitri Bai has come back to the house and it is stated that she
along with her husband and others, were searching for the missing boy, and
on hearing the loud music emanating from the house of Ishwari Lal Yadav they
entered the house. She has further stated that she knows accused Kiran Bai
9
Crl.A.Nos.1416-17/17 etc.
and Ishwari Lal Yadav, Nihaluddin @ Khanbaba, Hemant Sahu and Sukhdev.
She has also stated that all other accused were regularly going to the house
of Ishwari Lal Yadav and Kiran Bai. She too in clear terms has stated that
when they entered the house of Ishwari Lal Yadav and Kiran Bai, they
admitted the guilt of committing murder of Chirag in the form of human
sacrifice and begged for mercy. On suspicion from the members of the group,
the place of worship was dug and on digging, the body of Chirag was found.
His head was separated from the body, both the cheeks had deep cuts and
tongue was cut off. On seeing her child with such condition, she became
unconscious. In her deposition she has specifically stated that police had not
come with them inside the house of Ishwari Lal Yadav, they came later. The
brother of Poshan Singh, Sri Suraj Singh Rajput (PW-2) was also examined.
In his deposition he has stated that he knows all the accused because earlier
he was residing in Ruabandha area where all accused used to reside. In his
deposition he has stated that on call from his brother Poshan Singh (PW-3)
stating that Chirag was missing, he went to the house of his brother and along
with him the sister-in-law and other persons of the locality searched for
Chirag. Thereafter they went to police station, lodged a report and returned to
their locality and on hearing loud music in the house of the tantriks – Ishwari
Lal Yadav and Smt. Kiran Bai – and on getting suspicion, they went inside the
house along with others. He has also stated in his deposition that on
questioning, Ishwari Lal Yadav confessed that he has asked Hemant Sahu to
10
Crl.A.Nos.1416-17/17 etc.
kidnap Chirag for the purpose of human sacrifice. Thereafter puja was done
at the spot and Chirag was sacrificed and buried there. He has further stated
that at the time of human sacrifice, wife of Ishwari Lal Yadav, i.e., Smt. Kiran
Bai, their three children and all other accused were present. Sri Ram Avtar
Gada is also a neighbour of accused Ishwari Lal Yadav and Kiran Bai and
Savitri Bai and Poshan Singh, he was examined as PW-6. In his deposition,
he has stated that the accused Ishwari Lal Yadav and Smt. Kiran Bai were
known tantriks and other accused were their followers. On hearing the loud
music, he went to the house of the main accused, along with others and on
digging the puja area the body of Chirag was found which was in two parts –
severed at the neck and both cheeks were cut. Sri Parasnath Bhuarya who
was examined as PW-9 has stated that on the day of occurrence having come
to know that Chirag was missing, they all were searching for Chirag and on
hearing the loud music coming from the house of accused Ishwari Lal Yadav
and Kiran Bai, they entered their house and he could recognise accused
Ishwari Lal Yadav and since it was dark he could not recognise other accused.
He too stated that when they questioned the accused, the accused Ishwari Lal
Yadav and Kiran Bai confessed that they had sacrificed Chirag and begged for
mercy. Corporator of the area – Rajendra Rajak was examined as PW-10. In
his deposition, he has stated that Chirag’s grandmother has come to his
house and informed about the missing of her grandson Chirag. Thereafter he
has given a suggestion that an announcement be got made from loudspeaker
11
Crl.A.Nos.1416-17/17 etc.
of the mosque. Thereafter the announcement was made. All the people of
the locality were searching for Chirag. He too stated that the house of Poshan
Singh (PW-3) adjoins the house of accused Ishwari Lal Yadav. In his
deposition he has also stated that when the whereabouts of the child were not
known even after the announcement was made and the main accused were
continuously playing music, he along with other persons went inside the house
of accused Ishwari Lal Yadav and Kiran Bai. In his deposition he has also
stated that the main accused have stated that Chirag had been sacrificed in
pursuance of their tantrik activities and had been buried inside the house. At
the same time he stated, he cannot identify the other accused but stated that
some people were present there. The evidence of PW-12 – Dilip Thakur is
also on similar lines stating that after hearing the announcement about the
missing of Chirag he started searching for Chirag along with others. The
evidence of PW-13 – Arvind Singh is also to the same effect. One Sri Shiv
Kumar Rajak was examined as PW-16. In his deposition he has stated that
after hearing the announcement made about the missing of Chirag, son of
Poshan Singh, he joined others. After hearing loud music from the house of
Ishwari Lal Yadav and Kiran Bai he also entered along with others. He has
further stated that after digging the puja area, body of Chirag was found which
was in two parts. Some ash has been smeared on the head of Chirag and
both the cheeks had been cut and tongue was missing. Only thereafter police
was informed. He further stated that when accused Ishwari Lal Yadav was
12
Crl.A.Nos.1416-17/17 etc.
questioned, he confessed that he has asked Hemant Sahu to kidnap the child
and thereafter they had worshipped the child, put tilak, touched the feet then
sacrificed the child. He has also stated that on questioning, the accused
confessed that about six months earlier they had sacrificed one girl child also.
14. From the oral evidence on record of all the persons who have joined the
parents of the deceased child, i.e., Poshan Singh (PW-3) and Savitri Bai (PW5), it is clear that they have stated in one voice, that when they entered the
house of the main accused, they have found some area which was wet and
some puja articles were there. When they have noticed fresh mounds of
earth, they have removed the same and found the body of the deceased child
in two parts. All the witnesses have consistently stated that the body was in
two parts, its cheeks were cut and tongue was missing.
15. The first information with the police was recorded by PW-19 – Domar
Singh Thakur. The constable who took the application for post mortem was
examined as PW-1. The doctor who conducted the post mortem on the body
of Chirag was Dr. Lal Mohammad was examined as PW-14. One Patiram
Bareth was examined as PW-11. He was the Patwari of the area and in his
statement he has clearly stated that the house from which the body of the
child was recovered belongs to Ishwari Lal Yadav. PW-18 is the Assistant Sub
Inspector who took accused Ishwari Lal Yadav into custody and recorded his
statement under Ex.P21. The recovery of incriminating articles was
disbelieved by the High Court. From the evidence on record it is also clear
13
Crl.A.Nos.1416-17/17 etc.
that several independent witnesses who were examined on behalf of the
prosecution were in the group of search along with parents of the deceased
and they have entered the house of the main accused on hearing the loud
music. It is also equally clear from the evidence that police have come to the
scene of occurrence only afterwards, when PW-10 – Corporator has informed
the police.
16. From the above evidence on record, it is clear that the parents of the
deceased boy along with others were searching for the boy, on hearing the
loud music from the house of Ishwari Lal Yadav and Kiran Bai, they got
suspicious and entered the house. It is consistently, deposed by the
independent witnesses mentioned above, that when they entered the house of
the main accused, namely, Ishwari Lal Yadav and Kiran Bai, they have
confessed that they have committed murder of the deceased child for the
purpose of sacrifice. There is nothing on record to show that such
confessions are caused by inducement, threat or promise. When such
confessions are corroborated by other evidence on record, the trial court as
well as the High Court, rightly relied on such confessions. From the evidence,
it is proved that the place where the body of deceased Chirag was traced
belongs to Ishwari Lal Yadav and Kiran Bai and in absence of any explanation
from their side, there is no error committed by the trial court in accepting such
evidence on record. It is true that the extra judicial confession is a weak piece
14
Crl.A.Nos.1416-17/17 etc.
of evidence, but at the same time if the same is corroborated by other
evidence on record, same can be accepted.
17. To prove the charge of kidnapping and conspiracy, there is no
acceptable evidence on record. In absence of any corroborative evidence for
kidnapping of the deceased boy by Hemant Sahu and another, the evidence
on record cannot be accepted. Even to prove the common intention to attract
the provision under Section 34, IPC, it requires a pre-arranged plan and prior
concert. Therefore, there must be prior meeting of minds. The common
intention must exist prior to the commission of the act in a point of time. The
burden lies on the prosecution to prove that participation of more than one
person for commission of criminal act was done in furtherance of common
intention. If we closely analyse the evidence on record the common intention
stands proved between Ishwari Lal Yadav and Kiran Bai who are main
accused but at the same time there is no acceptable evidence against all
others to prove their guilt that they have committed the offence with the
common intention. Prosecution has failed to prove the common intention of all
other appellants than the main accused, namely, Ishwari Lal Yadav and Kiran
Bai, either to kidnap or to murder the deceased child on the day of
occurrence. It is borne out from the evidence on record that all other accused
were disciples of self-claimed gurumata, namely, Kiran Bai and they were
regularly visiting the house of the main accused offering fruits and flowers.
There is no consistency of the persons named by the witnesses in the house
15
Crl.A.Nos.1416-17/17 etc.
of Ishwari Lal Yadav and Kiran Bai, when they all entered their house. Even
PW-5 Savitri Bai, in her deposition has clearly stated that all other accused
used to come regularly to the house of Ishwari Lal Yadav and Kiran Bai, along
with the fruits and flowers. The father of the child PW-3 Poshan Singh, in
cross-examination has stated that he knew the names of Ishwari Lal Yadav
and Kiran Bai earlier and he has come to know the names of all other
accused, after the occurrence of the incident. PW-6 Ram Avtar Gada, also
stated in her deposition that the accused Ishwari Lal Yadav and Kiran Bai
were known tantriks and other accused were their followers. Further PW-9
Parasnath Bhuarya, in his deposition has stated that he entered the house
along with the others and he could only recognise Ishwari Lal Yadav and as it
was dark he could not recognise all others. In absence of any consistent
definite evidence regarding presence of all other accused, along with the main
accused, namely, Ishwari Lal Yadav and Kiran Bai and further when the
prosecution has failed to prove either the common intention or the conspiracy
on their part along with the main accused, it is difficult to accept the case of
the prosecution as such they are entitled for the benefit of doubt. In view of
the evidence on record the prosecution has proved the guilt of the main
accused, namely, Ishwari Lal Yadav and Kiran Bai for the offence under
Section 302 read with Section 34 of the IPC. The common intention is to be
restricted only to the main accused Ishwari Lal Yadav and Kiran Bai but same
cannot be applied to others.
16
Crl.A.Nos.1416-17/17 etc.
18. Learned counsel for the appellants has relied on a judgment of this
Court in the case of Aghnoo Nagesia1
to buttress his contention that the courts
below have committed error in recording a finding of guilt of the appellants
based on confession. But same is a case where the appellant therein was
charged under Section 302 IPC for murdering his aunt and others and there
were no eye witnesses to the murder. The principal evidence against the
appellant was First Information Report which contains a full confession of guilt
by the appellant himself. The said confession was made to a police officer
and the same is not provable having regard to Section 25 of the Indian
Evidence Act. Further reliance is also placed on a judgment of this Court in
the case of Sahadevan2
. In the aforesaid judgment of two-Judge Bench of
this Court it is held that the extra judicial confession is a weak piece of
evidence and court must ensure that same inspires confidence and is
corroborated by other prosecution evidence. If the totality of oral evidence on
record is considered in the case on hand, it is consistent and inspires
confidence of the case of the prosecution to prove the guilt of the main
accused. We are of the view that the aforesaid judgments would not render
any assistance to support the case of the appellants.
19. Learned counsel also relied on the judgment of this Court in the case of
Shambu Nath Mehra3
. In the aforesaid judgment this Court has held that in a
criminal case burden of proof is on the prosecution and Section 106 is
certainly not intended to relieve it of that duty. It is held that on the contrary, it
17
Crl.A.Nos.1416-17/17 etc.
is designed to meet certain exceptional cases in which it would be impossible,
or at any rate disproportionately difficult, for the prosecution to establish facts
which are “especially” within the knowledge of the accused and which he
could prove without difficulty or inconvenience. In this case on hand it is
proved by cogent evidence that the body of Chirag was found in the house of
Ishwari Lal Yadav. By applying the provision under Section 106 of the Indian
Evidence Act definitely it is the burden of the accused to explain the fact within
the knowledge of them how the body of Chirag came to be buried in their
house. The judgment relied on in the case of Shambu Nath Mehra3
also
would not be helpful for the appellants. In the case of Firozuddin
Basheeruddin4
this Court has discussed the ingredients which constitute
criminal conspiracy within the meaning of Section 120B of the IPC. As we are
of the view that the evidence on record is not sufficient to prove the guilt of the
appellants under Section 120B of IPC, as such it is not necessary to elaborate
any further.
20. Vide impugned judgment, the High Court has confirmed the death
sentence imposed on appellants Ishwari Lal Yadav and Kiran Bai. Learned
counsel for the appellants relied on the judgment in the case of Ronny5
wherein this Court has held, in a case of multiple accused, where the
culpability of each accused is not clear to examine whose case falls within the
“rarest of rare cases”, it would serve the ends of justice, if the capital
punishment is commuted into life imprisonment. On the other hand, learned
18
Crl.A.Nos.1416-17/17 etc.
counsel appearing for the State of Chhattisgarh has submitted that the High
Court has considered the aggravating and mitigating circumstances and
confirmed the death sentence so far as main accused, namely, Ishwari Lal
Yadav and Kiran Bai are concerned and there are no grounds to modify the
same. Learned counsel for the State also relied on judgment of this Court in
the case of Sushil Murmu6
. In the above said case in similar set of facts
where killing of a nine year old boy as a sacrifice to the deity was dealt with,
this Court has upheld the death sentence imposed on the appellant therein.
21. It is clearly well settled that normal punishment for the offence under
Section 302 IPC is life imprisonment but in a case where incident is of “rarest
of rare cases” death sentence is to be imposed. It is equally well settled that
only special facts and circumstances will warrant passing of death sentence
and a just balance has to be struck between aggravating and mitigating
circumstances, before the option is exercised. While referring to the earlier
cases in the case of Bachan Singh v. State of Punjab7
and Machhi Singh v.
State of Punjab8
further guidelines are summarised in the judgment in the
case of Sushil Murmu6. Paragraphs 15 and 16 of the judgment read as under :
“15. The following guidelines which emerge from Bachan Singh
case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] will have to be
applied to the facts of each individual case where the question
of imposition of death sentence arises: (Machhi Singh
case [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] SCC p. 489,
para 38)
7
(1980) 2 SCC 684
8
(1983) 3 SCC 470
19
Crl.A.Nos.1416-17/17 etc.
(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. 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.
16. In rarest of rare cases when the collective conscience of the
community is so shocked that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death
penalty, death sentence can be awarded. The community may
entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the
community.
(2) When the murder is committed for a motive which
evinces total depravity and meanness e.g. murder by a
hired assassin for money or reward or a cold-blooded
murder for gains of a person vis-à-vis whom the murderer
is in a dominating position or in a position of trust, or
murder is committed in the course of betrayal of the
motherland.
20
Crl.A.Nos.1416-17/17 etc.
(3) When murder of a member of a Scheduled Caste or
minority community etc. is committed not for personal
reasons but in circumstances which arouse social wrath,
or in cases of “bride-burning” or “dowry deaths” or when
murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman
on account of infatuation.
(4) When the crime is enormous in proportion. For
instance when multiple murders, say of all or almost all
the members of a family or a large number of persons of
a particular caste, community, or locality, are committed.
(5) When the victim of the murder is an innocent child, or
a helpless woman or an old or infirm person or a person
vis-à-vis whom the murderer is in a dominating position or
a public figure generally loved and respected by the
community.”
22. It is clear from the above judgment that this Court has laid down the
guidelines, which are to be considered, in a given case whether capital
punishment should be imposed or not. There cannot be any hard and fast
rule for balancing the aggravating and mitigating circumstances. Each case
has to be decided on its own merits. In a “rarest of rare case” capital
punishment is to be imposed. To come to conclusion in each case
aggravating and mitigating circumstances are to be considered. Further
factors like, age of the accused, possibility of reformation, gravity of the
offence etc. are also to be kept in mind.
23. In this case it clear from the evidence on record, the main accused,
namely, Ishwari Lal Yadav and Kiran Bai have committed the murder of the
two year old child Chirag as a sacrifice to the God. It is to be noticed, they
21
Crl.A.Nos.1416-17/17 etc.
were having three minor children at that time. Inspite of the same, they
committed the murder of the deceased, a child of two years of age brutally.
The head of the helpless child was severed, his tongue and cheeks were also
cut. Having regard to age of the accused, they were not possessed of the
basic humanness, they completely lacked the psyche or mindset which can be
amenable for any reformation. It is a planned murder committed by the
aforesaid two appellants. The appellants herein who are the main accused,
namely, Ishwari Lal Yadav and Kiran Bai were also convicted on an earlier
occasion for the offence under Section 302/34 and Section 201 of IPC in
Sessions Trial No.98/2011 by the learned Sessions Judge, Durg, for similar
murder of a 6 year old girl for which they were convicted and sentenced to
death, but such sentence was modified on appeal in Criminal Appeal No.1068
of 2014 by the High Court of Chhattisgarh at Bilaspur and they were
sentenced to undergo life imprisonment without any remission or parole. On
appeal to this Court, the order of the High Court is. Such conviction for similar
offence can be considered as aggravating factor. By following the guidelines
as mentioned in the case of Sushil Murmu6
we are of the view that this is a
case of “rarest of rare cases” where death sentence imposed by the trial court
is rightly confirmed by the High Court. As the case is proved beyond any
reasonable doubt so far as the main accused are concerned, the judgment
relied on by the learned counsel for the appellants in the case of Ronny5
also
is not helpful to them.
22
Crl.A.Nos.1416-17/17 etc.
24. For the aforesaid reasons the appeals filed in Criminal Appeal Nos.300-
301 of 2018 and Criminal Appeal Nos.298-299 of 2018 are allowed and
conviction recorded and sentence imposed upon the appellants therein is set
aside. They shall be released forthwith if their custody is not required for any
other case. Criminal Appeal Nos.1416-1417 of 2017 and Criminal Appeal
No.1418-1419 of 2017 filed by Ishwari Lal Yadav and Kiran Bai respectively
are partly allowed, setting aside the conviction recorded and sentence
imposed for the offence under Section 364/34 and 120B of the IPC. However,
their conviction under Section 302/34 and 201, IPC is confirmed, confirming
the death sentence imposed on them for the offence under Section 302/34
IPC. The sentence imposed on them under Section 201 IPC is also
confirmed.
….……………………………….J.
[ROHINTON FALI NARIMAN]
….……………………………….J.
[R. SUBHASH REDDY]
….……………………………….J.
[SURYA KANT]
New Delhi.
October 03, 2019.
23
Crl.A.Nos.1416-17/17 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1522 OF 2019
(Arising out of S.L.P.(Crl.)No.7947 of 2017)
Ishwari Lal Yadav & Anr. …..Appellants
vs.
State of Chhattisgarh ...Respondent
J U D G M E N T
R.Subhash Reddy,J.
1. Leave granted.
2. This appeal is filed by appellant Nos. 1 and
2 in Criminal Appeal No.1068 of 2014 filed
before the High Court of Chhattisgarh, Bilaspur,
aggrieved by the common judgment in Criminal
24
Crl.A.Nos.1416-17/17 etc.
Reference No.4 of 2014 and Criminal Appeal No.1068 of
2014. The appellants herein were charged for
offences punishable under Sections 364/34 read with
120B IPC, Sections 302/34 read with 120B IPC and Section
201 IPC. On the aforesaid charges they were tried in
Sessions Trial No.98 of 2011 by the learned
Sessions Judge, Durg, and they were convicted for the
offences charged and sentenced for imprisonment for life
and a fine of Rs.5,000/- was imposed for the offence
under Sections 364/34 read with 120B IPC, sentence of
death and a fine of Rs.5,000/- for the offence under
Sections 302/34 read with 120B IPC, rigorous imprisonment
for five years and a fine of Rs.2,000/- for the offence
under Section 201 IPC. In view of the death sentence
imposed, the learned Sessions Judge made a reference to
the High Court in Criminal Reference No.4 of 2014.
Challenging the conviction recorded and the sentence
imposed on them, appellants have filed Criminal Appeal
No.1068 of 2014. Vide impugned judgment dated 30.11.2016,
the High Court has confirmed the conviction recorded
against appellants. However, the death sentence imposed
by the Trial Court is modified to imprisonment for life.
It was further observed that appellants-accused are not
25
Crl.A.Nos.1416-17/17 etc.
entitled to any remission or parole. Aggrieved by the
said judgment this appeal is filed.
3. On 04.03.2010, Beeru Dewar (PW-2) had lodged a
complaint with the Police Station, Bhilai Nagar,
stating that his six year old daughter Ku. Manisha
is missing.
4. On 23.11.2010, a child by name Chiraj Rajput was
found missing from his house. A missing report was
given in Police Station, Bhilai Nagar, District
Durg. Thereafter, the parents were searching for
their child. On hearing loud music being played in the
house of appellants i.e. Ishwari Lal Yadav (A1) and Smt. Kiran Yadav (A-2), they entered their
house. When they entered the house they found
freshly dug mound of earth and appellants
herein who were claiming as “tantriks”, have admitted
that they had killed Chirag and buried him there to
attain “siddhi”. Further, it is the case of the
prosecution that during the investigation in the said
case, Mahanand Yadav (A-4), made a statement to the
police that about seven/eight months earlier, he had
kidnapped one small girl on the asking of A-1 and A-2.
26
Crl.A. @ SLP(Crl.) No. 7947 of 2017 27
5. The said girl had been killed by way of human
sacrifice and her body was buried in the compound of
the appellants herein. On 24.11.2010, one constable of
Bhilai Nagar Police Station made ‘O’ entry to the
effect, that an information has been received about
the kidnapped girl who had been killed by way of human
sacrifice and her skeletal remains were recovered
along with the cloths which she was wearing. On the
said date a statement was recorded under Ext.P-15.
On the basis of the aforesaid statement, investigation
was done and skeletal remains of the child were
recovered.
6. After recovery of the skeletal remains, DNA test
was conducted and it was determined that skeletal
remains found in the house of Ishwari Lal Yadav (A-1)
and Smt. Kiran Yadav (A-2) were of Ku.Manisha who was
also reported to be missing. After completing
investigation, the appellants herein were charged
for the offences alleged against them.
7. On behalf of the prosecution, PW-1 to PW-21 were
examined to prove the guilt of accused. The Trial
Court on appreciation of evidence on record has held
27
Crl.A. @ SLP(Crl.) No. 7947 of 2017 28
that the appellants and two other accused are guilty
for the charges framed against them, convicted and
sentenced the appellants as follows :
Accused Conviction
U/s.
Sentence
Ishwari Lal Yadav 364/34 and
120B IPC
Imprisonment for life and
fine of Rs.5000/-. In default
of payment of fine, further
rigorous imprisonment for
four months.
302/34 and
120B IPC
Death sentence and fine of
Rs.5000/-. In default of
payment of fine, further
rigorous imprisonment for
four months.
201 IPC Rigorous imprisonment for
five years and fine of
Rs.2000/-. In default of
payment of fine, two months
rigorous imprisonment.
Smt. Kiran Yadav @
Gurumata
364/34 and
120B IPC
Imprisonment for life and
fine of Rs.5000/-. In default
of payment of fine, further
rigorous imprisonment for
four months.
302/34 and
120B IPC
Death sentence and fine of
Rs.5000/-. In default of
payment of fine, further
rigorous imprisonment for
four months.
201 IPC Rigorous imprisonment for
five years and fine of
Rs.2000/-. In default of
payment of fine, two months
rigorous imprisonment.
28
Crl.A. @ SLP(Crl.) No. 7947 of 2017 29
8. On appeal, High Court has acquitted accused nos.3
and 4, namely, Rajendra Kumar Mahar and Mahanand Yadav
respectively. So far as appellants are concerned
their conviction is confirmed, the death sentence
imposed on them is modified to one of imprisonment for
life for offence under Section 302/34 and 120B, IPC.
At the same time their conviction and sentence is
confirmed for the offence under Section 364/34 and
120B IPC and 201 IPC.
9. We have heard Sri Siddhartha Dave learned senior
counsel appearing for the appellants and Sri Sumeer
Sodhi,learned counsel appearing for the respondentState of Chhattisgarh.
10. It is contended by the learned senior counsel for
the appellants that the prosecution has failed to
prove the guilt of accused beyond reasonable doubt and
inspite of the same they were convicted and sentenced
for the offences alleged. It is submitted that the
confessional statements ought not to have been relied
on in absence of any corroborative evidence to prove
29
Crl.A. @ SLP(Crl.) No. 7947 of 2017 30
the guilt of the accused. It is further contended that
there are material contradictions among the witnesses,
as such the evidence is unreliable. It is further
submitted that the femur bone that was preserved, was
sent to CDFC Hyderabad for DNA analysis, and in fact
the report relied upon by the prosecution was the FSL
Report, Sagar. Even the FSL Report does not
conclusively draw to the fact that PW-3 is the mother,
but, states that she is a biological relative. There
are also discrepancies with regard to the cloths found
on her. Further, it is submitted that appellants were
in custody from 23.11.2010 and recoveries were made on
24.11.2010 but disclosure statements were recorded
thereafter.
11. As such, it is submitted that, same raises a
strong probability that these weapons have been
planted by the police. It is further submitted that
even the blood which was found on the weapons,
there is no proof that it was human blood. In
support of his arguments, learned counsel has relied
on the judgments of this Court in the case of Aghnoo
30
Crl.A. @ SLP(Crl.) No. 7947 of 2017 31
Nagesia vs. State of Bihar9, Sahadevan & Anr. vs.
State of Tamil Nadu10, Shambu Nath Mehra vs. The State
of Ajmer11, Ronny vs. State of Maharashtra12, State of
Goa vs. Sanjay Thakran13, Prakash vs. State of
Karnataka14 and Firozuddin Basheeruddin & Ors. vs.
State of Kerala15.
12. To buttress the submission that as there is
strong probability that the weapons seized have been
planted by the police, as such recoveries cannot be
relied on, learned counsel relied on the judgment in
the case of Sanjay Thakran5. Further, reliance is
also placed on the judgment in the case of Prakash6.
In support of his submission that as the blood on the
weapon used in crime is not shown to be that of the
deceased, it raises a grave suspicion that
investigation was not fair and benefit of doubt is to
be given to the accused.
13. On the other hand Sri Sumeer Sodhi, learned
counsel appearing for the respondent-State has
9AIR 1966 SC 119
10(2012) 6 SCC 403,
111956 SCR 199
12(1998) 3 SCC 625,
13(2007) 3 SCC 755
14(2014) 12 SCC 133.
15(2001) 7 SCC 596
31
Crl.A. @ SLP(Crl.) No. 7947 of 2017 32
submitted that as the case relates to the gruesome
murder of a minor girl of six years, for the purpose
of human sacrifice and from the oral evidence on
record, the prosecution has proved the guilt of the
accused beyond reasonable doubt, as such there are no
grounds to interfere with the impugned judgment. It is
submitted that when a child of two years by name
Chirag was missing, his parents were on search for
missing child along with family members and residents
of locality, on hearing the loud music emanating from
the house of the appellants, they got suspicious and
entered the house. It is submitted that at that point
of time both the appellants-accused have confessed
their guilt of committing the act of murder of Chirag
and burying the body in the precinct of the house. It
is submitted that looking at the fresh mound of mud,
same was excavated and the body of Chirag was found in
two parts. At that time one of the accused in the
said case also revealed committing of similar offence
of a girl child. It is submitted that there was
already a complaint of missing child of six year old
daughter of Beeru Dewar (PW-2), lodged on 04.03.2010,
32
Crl.A. @ SLP(Crl.) No. 7947 of 2017 33
investigation was made. Further investigation of the
police revealed that they have kidnapped and committed
murder of minor girl by name Km.Manisha. She was also
buried near to the place of Chirag. As such by
excavating skeletal remains along with cloths were
taken out. It is submitted that from the evidence on
record it is clearly proved by confession of several
independent witnesses, which is corroborated by other
evidence on record to prove that Manisha was murdered
for the purpose of human sacrifice by appellants, as
such they were rightly convicted and sentenced by the
Trial Court and their sentence of death was modified
by the High Court to that of imprisonment for life
without any remission or parole. As such, it is
submitted that there are no grounds to interfere with
the same. Learned counsel has also relied on the
judgment in the case of Sushil Murmu vs. State of
Jharkhand16.
14. Having heard the learned counsels on both the
sides, we have perused the impugned judgment and also
the other material on record.
16(2004) 2 SCC 338.
33
Crl.A. @ SLP(Crl.) No. 7947 of 2017 34
15. To prove the guilt of appellants-accused, several
independent witnesses were examined. From the evidence
on record it is clear that on 23.11.2010 when there
was search by the parents of the deceased Chirag
Rajput for their missing child along with others of
the locality, on hearing the loud music from the house
of the appellants, they got suspicious and entered the
house. Upon entering the house a freshly dug mound of
earth was found in the house of the appellants and on
confession made by the appellants body of Chirag was
traced. Further, as it was disclosed by one of the
accused that about 7/8 months earlier, they have
kidnapped one small girl on the asking of A-1 and A-2
and they have handed over the girl to Ishwari Lal
Yadav and Kiran Yadav, further investigation was made
in view of the complaint lodged by Beeru Dewar (PW-2)
on 04.03.2010. On 04.03.2010, Beeru Dewar (PW-2)
filed a report to the effect that his six year old
daughter Ku.Manisha was missing. On further
investigation, the skeletal remains were also
recovered from the house of the appellants from the
place adjoining from where body of Chirag was taken
34
Crl.A. @ SLP(Crl.) No. 7947 of 2017 35
out. In oral evidence Beeru Dewar (PW-2), father of
the deceased stated that when they went to the house
of Ishwari Lal Yadav (A-1), they found the skeletal
remains and they have also identified the cloths of
his daughter Ku. Manisha.
16. Mother of the deceased Smt. Durga Bai was
examined as PW-3. In her deposition, she has stated
that about 1½ years earlier to the date of statement,
she had gone to Kasaridih at about 06.00 pm for
begging. Her daughter was wearing one red coloured
two piece set and at about 8.00 pm when pooja was over
in the temple, her daughter Ku. Manisha stated that
she wanted to defecate. She also stated in her
deposition that after sometime when she went back to
the place of electric pole where her daughter was
defecating, she did not find her there. It is stated
that at the instance of police officials they went to
the house of appellants at Ruabandha and in her
presence a grave was dug which was inside the house of
the appellants and cloths of her daughter were lying
there along with some pieces of bones. She identified
the cloths to be that of her daughter Ku.Manisha.
35
Crl.A. @ SLP(Crl.) No. 7947 of 2017 36
17. Dilip Thakur was examined as PW-11, who was one
amongst the persons who went inside the house of the
appellants in search of other child Chirag. He has, in
clear terms, stated that at that time both the
appellants Ishwari Lal Yadav and Smt. Kiran Yadav
confessed that earlier they had sacrificed one small
girl child whom they had brought from Kasaridih and
that she had been buried in their house.
18. PW-13 Shrikant Gawander stated that on pointing
out by Ishwari Lal Yadav, some mound in the courtyard
was dug up and inside the same skeletal remains were
found along with red coloured frock and red coloured
underwear.
19. PW-16 is the Assistant Sub Inspector, who has
recorded the merg intimation (Exhibit P-28) and
(Exhibit P-29).
20. One Khuman Singh Sahu was examined as PW-21. In
his deposition he has stated that he knows accused
Ishwari Lal Yadav and his wife Smt. Kiran Yadav,
appellants herein, who are his neighbours. He has
stated that both the accused A-1 and A-2 were engaged
36
Crl.A. @ SLP(Crl.) No. 7947 of 2017 37
in witchcraft. Rajendra Kumar (A-3) and Mahanand Yadav
(A-4) are the disciples of (A-1) and (A-2). He was
also one of the members in the team in search of
missing boy Chirag earlier. He too stated in his
deposition that the appellants have admitted that one
girl by name Ku. Manisha who had been kidnapped
earlier, had been sacrificed by them. A confession is
also to the effect that they have buried the girl next
to the place where Chirag’s body has been buried.
21. From the evidence on record, it is clearly
established beyond reasonable doubt that Km.Manisha is
the daughter of PW-2 and PW-3 and was missing since
04.03.2010. Though, the said complaint was recorded
in the Police Out Post Padmanabhpur, Durg, on
04.03.2010 but there was no breakthrough. Only after
Chirag’s case has come to light, based on admissions
by the appellants and two others, further
investigation revealed that the appellants earlier
also committed similar offence of murder of Km.Manisha
for their tantrik activities and buried the body of
minor girl in their house.
37
Crl.A. @ SLP(Crl.) No. 7947 of 2017 38
22. The confessional statements made to the police by
the appellants, cannot be the basis to prove the guilt
of the accused but at the same time there is no reason
to discard the confessions made to the independent
witnesses at the time when Chirag’s body was found,
prior to the arrival of police. It is true that extra
judicial confession, is a weak piece of evidence but
at the same time if the same is corroborated by other
evidences on record, such confession can be taken into
consideration to prove the guilt of the accused. In
the case on hand, the evidence from independent
witnesses is in one voice and consistent. The medical
evidence on record also substantiated the case of the
prosecution. In addition to the same, PW-2 and PW-3
who are the parents of the deceased have identified
the cloths, which the deceased child was wearing on
the date of missing. It is also clear from the
evidence that the skeletal remains were removed. They
have also found the cloth pieces, attached to skeletal
remains. The colour of such cloth pieces was tallied
with the description in the missing report lodged by
PW-2 earlier on 04.03.2010. As such it is clearly
38
Crl.A. @ SLP(Crl.) No. 7947 of 2017 39
proved beyond any reasonable doubt that the appellants
are responsible for the offence alleged against them.
23. Learned counsel for the appellants has relied on
a judgment of this Court in the case of Aghnoo
Nagesia1 to buttress his contention that the courts
below have committed error in recording a finding of
guilt of the appellants based on confession. But same
is a case where the appellant therein was charged
under Section 302 IPC for murdering his aunt and
others and there were no eye witnesses to the murder.
The principal evidence against the appellant was First
Information Report which contains a full confession of
guilt by the appellant himself. The said confession
was made to a police officer and the same is not
provable having regard to Section 25 of the Indian
Evidence Act. Further reliance is also placed on a
judgment of this Court in the case of Sahadevan2. In
the aforesaid judgment of two-Judge Bench of this
Court it is held that the extra judicial confession is
a weak piece of evidence and court must ensure that
same inspires confidence and is corroborated by other
prosecution evidence. If the totality of oral
39
Crl.A. @ SLP(Crl.) No. 7947 of 2017 40
evidence on record is considered in the case on hand,
it is consistent and inspires confidence of the case
of the prosecution to prove the guilt of the main
accused. We are of the view that the aforesaid
judgments would not render any assistance to support
the case of the appellants.
24. Learned counsel also relied on the judgment of
this Court in the case of Shambu Nath Mehra3. In the
aforesaid judgment this Court has held that in a
criminal case burden of proof is on the prosecution
and Section 106 is certainly not intended to relieve
it of that duty. It is held that on the contrary, it
is designed to meet certain exceptional cases in which
it would be impossible, or at any rate
disproportionately difficult, for the prosecution to
establish facts which are “especially” within the
knowledge of the accused and which he could prove
without difficulty or inconvenience. In this case on
hand it is proved by cogent evidence that the body of
Chirag was found in the house of Ishwari Lal Yadav.
By applying the provision under Section 106 of the
Indian Evidence Act definitely it is the burden of
40
Crl.A. @ SLP(Crl.) No. 7947 of 2017 41
the accused to explain the fact within the knowledge
of them how the body of Chirag came to be buried in
their house. The judgment relied on in the case of
Shambu Nath Mehra3 also would not be helpful for the
appellants. In the case of Firozuddin Basheeruddin7
this Court has discussed the ingredients which
constitute criminal conspiracy within the meaning of
Section 120B of the IPC. As we are of the view that
the evidence on record is not sufficient to prove the
guilt of the appellants under Section 120B of IPC, as
such it is not necessary to elaborate any further.
25. The other judgments relied on by the learned
counsel for the appellants in the case of Sanjay
Thakran5 and the judgment in the case of Prakash6 also
would not render any assistance to the case of the
appellants having regard to facts and circumstances of
the present case. Apart from the recoveries there is
a strong and consistent evidence of independent
witnesses to prove the guilt of the accused. The FSL
Report, Sagar, conclusively establishes that PW-3 is
the biological relative of the deceased. The said
evidence if considered along with other oral evidence
41
Crl.A. @ SLP(Crl.) No. 7947 of 2017 42
of PW-2 and PW-3, it is proved beyond reasonable doubt
that the skeletal remains of the body removed from the
house of the appellants was only that of their
daughter Ku.Manisha. It is also proved from the
evidence on record that the house belonged to the
appellants where skeletal remains were removed.
26. Further, as there is no acceptable evidence on
record except the alleged confession to prove the
offence under Sections 364/34 read with 120B IPC, the
appellants are entitled for acquittal for offences
punishable under Sections 364/34 and 120B IPC. At the
same time, by burying the dead body of the deceased
caused disappearance of evidence of offence, they are
rightly convicted for offence under Section 201 IPC.
27. Having regard to gruesome nature of murder, the
Trial Court has imposed the punishment of death for
offence under Sections 302/34 read with 120B IPC but
on appeal the High Court has modified the sentence to
that of imprisonment for life without any remission or
parole. Considering the gruesome nature of murder the
sentence imposed by the High Court is to be confirmed.
42
Crl.A. @ SLP(Crl.) No. 7947 of 2017 43
28. For the aforesaid reasons, this Criminal Appeal
is partly allowed, setting aside the conviction
recorded and sentence imposed for the offence under
Sections 364/34 read with 120B IPC. However, we
confirm the conviction recorded and sentence imposed
for the offence under Sections 302/34 and Section 201
IPC.
.....................J.
[ROHINTON FALI NARIMAN]
.....................J.
[R. SUBHASH REDDY]
.....................J.
[SURYA KANT]
New Delhi,
October 03,2019
43
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1416-1417 OF 2017
Ishwari Lal Yadav …..Appellant
Versus
State of Chhattisgarh …..Respondent
W I T H
CRIMINAL APPEAL NOS.300-301 OF 2018
Nihaluddin @ Khanbaba & Ors. …..Appellants
Versus
State of Chhattisgarh …..Respondent
CRIMINAL APPEAL NOS.1418-1419 OF 2017
Kiran Bai …..Appellant
Versus
State of Chhattisgarh …..Respondent
AND
1
Crl.A.Nos.1416-17/17 etc.
CRIMINAL APPEAL NOS.298-299 OF 2018
Rajendra Kumar & Anr. …..Appellants
Versus
State of Chhattisgarh …..Respondent
J U D G M E N T
R. Subhash Reddy, J.
1. All these appeals are directed against the common judgment of the
High Court of Chhattisgarh at Bilaspur dated 01.12.2016 passed in Criminal
Reference No.1 of 2014 and Criminal Appeal No.511 of 2014, as such they
are disposed of by this common judgment and order.
2. All the appellants were charged for offence under Sections 364/34 read
with 120B; 302/34 read with 120B and 201, Indian Penal Code (IPC). Vide
judgment dated 27.03.2014 passed in Sessions Trial No.61 of 2011, the
learned Sessions Judge, Durg, has convicted and sentenced the appellants.
For the offence under Sections 364/34 read with 120B, IPC they were
convicted and sentenced for imprisonment for life and fine of Rs.5000/- each,
in default of payment of fine, to undergo further rigorous imprisonment for four
months. For the offence under Sections 302/34 read with 120B, IPC death
2
Crl.A.Nos.1416-17/17 etc.
penalty was imposed with a fine of Rs.5000/- each, in default of which, they
were sentenced to undergo further rigorous imprisonment for four months.
For the offence under Section 201, IPC, rigorous imprisonment for five years
and a fine of Rs.2000/- each was imposed, in default of payment of fine, they
were sentenced to undergo further rigorous imprisonment for two months.
3. In view of death penalty imposed on the appellants, a reference was
made to the High Court, as required under Section 366 of Cr.P.C. and further
appellants-accused have filed Criminal Appeal No.511 of 2014 before the High
Court. By a common judgment dated 01.12.2016, the High Court has
confirmed death sentence on the two main accused, namely, Ishwari Lal
Yadav and Smt. Kiran Bai and modified the sentence of other appellants to
one of imprisonment for life without any entitlement of remission or parole.
4. The deceased, a small two year old boy, by name, Chirag Rajput was
the son of Poshan Singh (PW-3) and Savitri Bai (PW-5). PW-5 works as a
domestic help whereas Poshan Singh (PW-3) was working in Bhilai. Smt.
Vandana Rajput (PW-21) is the sister of Savitri Bai (PW-5) and was at home
along with the minor child – Chirag – on fateful day, i.e., 23.11.2010. When
Vandana Rajput (PW-21) and deceased boy Chirag Rajput were at home on
23.11.2010, Chirag went outside the house to play while she was inside. After
sometime when she went out, she could not find Chirag and Chirag was
missing. She immediately rang her sister and brother-in-law, i.e., PW-5 and 3
respectively who came back to their house.
3
Crl.A.Nos.1416-17/17 etc.
5. It is the case of the prosecution that the two main accused, Smt. Kiran
Bai and her husband Ishwari Lal Yadav believed in tantrism. Smt. Kiran Bai
wanted to attain siddhi. She was also proclaimed as ‘gurumata’. To propitiate
the God, she asked her husband and disciples who are the other co-accused
along with them, to get a small child for human sacrifice. The main accused
were neighbours to PW-3 and 5. It is alleged that for the purpose of sacrifice
to God, the child Chirag was kidnapped and murdered in a gruesome manner,
inside the house of main accused Kiran Bai and Ishwari Lal Yadav. Thereafter
he was buried in the precincts of the house. To avoid sound of cries, music
system was played loudly.
6. After the information from Vandana Rajput (PW-21) to her sister Savitri
Bai (PW-5) and brother-in-law Poshan Singh (PW-3), all started searching for
Chirag. When the parents of the child, family members and other people of
the neighbourhood were searching for missing boy, they became suspicious
from the loud music, emanating from the house of two main accused.
Thereupon, some people have entered the house of Kiran Bai and Ishwari Lal
Yadav and found five mounds of freshly dug earth. It is alleged that there was
also a leaf bowl (Dona), one small bowl (Katori), one small round metal pot
(Lota), a trident (Trishul), idols and pictures of Gods and other items of puja
were lying there. There was blood on some of these items. It is alleged that
when the crowd asked the accused what had happened, Smt. Kiran Bai and
Ishwari Lal Yadav confessed that they had sacrificed Chirag with the help of
4
Crl.A.Nos.1416-17/17 etc.
other co-accused and begged for mercy. Immediately thereafter, the crowd
started digging the freshly dug earth and body of Chirag was taken out.
Thereafter police came to the site and report was lodged. The body of Chirag
was sent for post-mortem. All the accused were questioned on which they
made some disclosure statements. On the basis of such disclosure
statements, recoveries of certain incriminating articles were made. After
completing the investigation, the police filed final report under Section 173
Cr.P.C. against all the appellants and one other accused by name Krishna
Tambi. However, as he was absconding, his trial was separated. All the
accused have denied the guilt and claimed trial. They were tried for the
offences as referred above before the learned Sessions Judge, Durg and they
were convicted and sentenced vide judgment dated 27.03.2014. All the
appellants were imposed with the penalty of death. Reference was made to
the High Court under Section 366 of the Cr.P.C.
7. Appellants have also challenged their conviction and sentence imposed,
by way of criminal appeal. Both were considered by a common judgment.
While confirming the conviction under Section 302/34 read with Section 120B,
IPC and sentence of death penalty on the main accused, namely, Ishwari Lal
Yadav and Kiran Bai, the High Court has modified the punishment of other
accused to that of imprisonment for life.
8. We have heard Sri Siddhartha Dave, learned senior counsel appearing
for the appellants in Crl. Appeal Nos.1416-1417 of 2017 and 1418-1419 of
5
Crl.A.Nos.1416-17/17 etc.
2017; Sri Birendra Kumar Mishra, learned counsel for the appellants in Crl.
Appeal Nos.300-301 of 2018; Sri Rajeev Kumar Bansal, learned counsel
appearing for the appellants in Crl. Appeal Nos.298-299 of 2018 and Sri
Sumeer Sodhi, learned counsel appearing for the respondent-State of
Chhattisgarh.
9. In these appeals, mainly it is pleaded by the learned senior counsel Sri
Siddhartha Dave appearing for the appellants that except the alleged
confessional statement, there is no other evidence to prove the guilt of
accused for kidnapping and murder of deceased boy – Chirag. It is further
submitted that all the findings recorded by the trial court, as confirmed by the
High Court, for conviction of the appellants rest upon confessional statement
of the appellants which is barred under Sections 24, 25 and 26 of the Indian
Evidence Act, 1872. It is submitted that there are material contradictions in
the depositions of witnesses about the arrival of police to the place of
occurrence of the offence and on the alleged extra-judicial confessions, inspite
of the same, courts below have accepted such evidence on record and
passed the impugned judgments. It is submitted that, as the body of the
deceased was not found in exclusive possession of the main accused, courts
below have committed an error in taking assistance of Section 106 of the
Indian Evidence Act. It is submitted that body was discovered only after large
crowd had gathered. Further, it is submitted that the discovery of skeleton of
other person and also the theory of bad character, that is, appellants were
6
Crl.A.Nos.1416-17/17 etc.
black magic practitioners, is barred under Sections 14, 15 and 54 of the Indian
Evidence Act. It is further submitted that the prosecution has not proved any
ingredient under Section 120B, IPC to prove conspiracy among the appellants
for committing the alleged offence.
10. It is the contention of the learned counsel appearing for the appellants
that there is absolutely no evidence on record to prove that there was a
common intention on the part of such appellants to commit the offence of
kidnapping and murder of the deceased child. So far as the appellants other
than the main accused, it is submitted that the findings of the courts below are
based on the alleged confessional statements and in the absence of any
corroboration, the courts below have committed an error in convicting the
appellants with the aid of Sections 34 and 120B, IPC. It is also the contention,
of the learned counsel for the appellants that there is no reason or justification
for imposing the death penalty on Ishwari Lal Yadav and Kiran Bai, while
modifying the punishment to that of life imprisonment to all other accused. It
is also submitted that the incident in question cannot be considered as the
“rarest of rare cases” so as to impose the capital punishment. The learned
counsel appearing for the appellants, in support of his arguments, has relied
on the following cases :
1. Aghnoo Nagesia v. State of Bihar1
2. Sahadevan & Anr. v. State of Tamil Nadu2
1
1966 (1) SCR 134 = AIR 1966 SC 119
2
(2012) 6 SCC 403
7
Crl.A.Nos.1416-17/17 etc.
3. Shambu Nath Mehra v. The State of Ajmer3
4. Firozuddin Basheeruddin & Ors. v. State of Kerala4
5. Ronny v. State of Maharashtra5
11. On the other hand, Sri Sumeer Sodhi, learned counsel appearing for the
State of Chhattisgarh, has submitted that the case relates to a gruesome
murder of small two year old boy as a human sacrifice and from the oral
evidence on record, the prosecution has proved the guilt of the accused
beyond reasonable doubt, as such there are no grounds to interfere with the
impugned judgment. It is submitted that, all the appellants were present in
the house of the main accused and the fact that the body of the deceased was
also recovered from the house of the main accused, is proved from the oral
evidence of PWs-2, 3, 5, 6, 9, 10, 12, 13 and 16. It is further submitted that
the contradictions referred to by the counsel for the appellants are minor and
they may not affect well reasoned findings and conclusions arrived by the trial
court, as confirmed by the High Court. The learned State Counsel has relied
on the judgment of this Court in the case of Sushil Murmu v. State of
Jharkhand6
to substantiate his arguments.
12. Having heard the learned counsels we have carefully perused the
impugned judgments and also the material on record.
13. To prove the guilt of the accused, prosecution has examined PW 1 to
PW 22. When it was reported by Vandana Rajput (PW-21), who is the sister
3
1956 SCR 199
4
(2001) 7 SCC 596
5
(1998) 3 SCC 625
6
(2004) 2 SCC 338
8
Crl.A.Nos.1416-17/17 etc.
of Savitri Bai (PW-5), Savitri Bai and Poshan Singh (PW-3) came back to their
house. In the evidence of Poshan Singh (PW-3) who is the father of the
deceased child, he has stated that the main accused Ishwari Lal Yadav and
Smt. Kiran Bai are his neighbours and he knows them. He also knows all
other accused because they regularly visit but he could not tell their names.
He further stated that during their search for the missing Chirag along with his
wife Smt. Kiran Bai and others, they heard loud music emanating from the
house of the main accused, which gave suspicion in the minds of the people
in the locality, therefore, they entered the house of Ishwari Lal and Kiran Bai
and noticed that the ground around the place of worship was wet and a knife
was also lying at that place. On digging up the wet place, body of Chirag was
found. The body was in two parts and head had been severed from the neck.
Both the cheeks had been cut. At the place of worship, pictures of Gods have
been placed. At the same time, he stated, he has come to know the names of
other accused after occurrence of the incident. In similar lines is also the oral
evidence of PW-5 who is the mother of the deceased child. In her deposition
she has stated that she works as a domestic help. On the day of occurrence,
when Vandana Rajput (PW-21) has informed the mother of the deceased
child, PW-5 Savitri Bai has come back to the house and it is stated that she
along with her husband and others, were searching for the missing boy, and
on hearing the loud music emanating from the house of Ishwari Lal Yadav they
entered the house. She has further stated that she knows accused Kiran Bai
9
Crl.A.Nos.1416-17/17 etc.
and Ishwari Lal Yadav, Nihaluddin @ Khanbaba, Hemant Sahu and Sukhdev.
She has also stated that all other accused were regularly going to the house
of Ishwari Lal Yadav and Kiran Bai. She too in clear terms has stated that
when they entered the house of Ishwari Lal Yadav and Kiran Bai, they
admitted the guilt of committing murder of Chirag in the form of human
sacrifice and begged for mercy. On suspicion from the members of the group,
the place of worship was dug and on digging, the body of Chirag was found.
His head was separated from the body, both the cheeks had deep cuts and
tongue was cut off. On seeing her child with such condition, she became
unconscious. In her deposition she has specifically stated that police had not
come with them inside the house of Ishwari Lal Yadav, they came later. The
brother of Poshan Singh, Sri Suraj Singh Rajput (PW-2) was also examined.
In his deposition he has stated that he knows all the accused because earlier
he was residing in Ruabandha area where all accused used to reside. In his
deposition he has stated that on call from his brother Poshan Singh (PW-3)
stating that Chirag was missing, he went to the house of his brother and along
with him the sister-in-law and other persons of the locality searched for
Chirag. Thereafter they went to police station, lodged a report and returned to
their locality and on hearing loud music in the house of the tantriks – Ishwari
Lal Yadav and Smt. Kiran Bai – and on getting suspicion, they went inside the
house along with others. He has also stated in his deposition that on
questioning, Ishwari Lal Yadav confessed that he has asked Hemant Sahu to
10
Crl.A.Nos.1416-17/17 etc.
kidnap Chirag for the purpose of human sacrifice. Thereafter puja was done
at the spot and Chirag was sacrificed and buried there. He has further stated
that at the time of human sacrifice, wife of Ishwari Lal Yadav, i.e., Smt. Kiran
Bai, their three children and all other accused were present. Sri Ram Avtar
Gada is also a neighbour of accused Ishwari Lal Yadav and Kiran Bai and
Savitri Bai and Poshan Singh, he was examined as PW-6. In his deposition,
he has stated that the accused Ishwari Lal Yadav and Smt. Kiran Bai were
known tantriks and other accused were their followers. On hearing the loud
music, he went to the house of the main accused, along with others and on
digging the puja area the body of Chirag was found which was in two parts –
severed at the neck and both cheeks were cut. Sri Parasnath Bhuarya who
was examined as PW-9 has stated that on the day of occurrence having come
to know that Chirag was missing, they all were searching for Chirag and on
hearing the loud music coming from the house of accused Ishwari Lal Yadav
and Kiran Bai, they entered their house and he could recognise accused
Ishwari Lal Yadav and since it was dark he could not recognise other accused.
He too stated that when they questioned the accused, the accused Ishwari Lal
Yadav and Kiran Bai confessed that they had sacrificed Chirag and begged for
mercy. Corporator of the area – Rajendra Rajak was examined as PW-10. In
his deposition, he has stated that Chirag’s grandmother has come to his
house and informed about the missing of her grandson Chirag. Thereafter he
has given a suggestion that an announcement be got made from loudspeaker
11
Crl.A.Nos.1416-17/17 etc.
of the mosque. Thereafter the announcement was made. All the people of
the locality were searching for Chirag. He too stated that the house of Poshan
Singh (PW-3) adjoins the house of accused Ishwari Lal Yadav. In his
deposition he has also stated that when the whereabouts of the child were not
known even after the announcement was made and the main accused were
continuously playing music, he along with other persons went inside the house
of accused Ishwari Lal Yadav and Kiran Bai. In his deposition he has also
stated that the main accused have stated that Chirag had been sacrificed in
pursuance of their tantrik activities and had been buried inside the house. At
the same time he stated, he cannot identify the other accused but stated that
some people were present there. The evidence of PW-12 – Dilip Thakur is
also on similar lines stating that after hearing the announcement about the
missing of Chirag he started searching for Chirag along with others. The
evidence of PW-13 – Arvind Singh is also to the same effect. One Sri Shiv
Kumar Rajak was examined as PW-16. In his deposition he has stated that
after hearing the announcement made about the missing of Chirag, son of
Poshan Singh, he joined others. After hearing loud music from the house of
Ishwari Lal Yadav and Kiran Bai he also entered along with others. He has
further stated that after digging the puja area, body of Chirag was found which
was in two parts. Some ash has been smeared on the head of Chirag and
both the cheeks had been cut and tongue was missing. Only thereafter police
was informed. He further stated that when accused Ishwari Lal Yadav was
12
Crl.A.Nos.1416-17/17 etc.
questioned, he confessed that he has asked Hemant Sahu to kidnap the child
and thereafter they had worshipped the child, put tilak, touched the feet then
sacrificed the child. He has also stated that on questioning, the accused
confessed that about six months earlier they had sacrificed one girl child also.
14. From the oral evidence on record of all the persons who have joined the
parents of the deceased child, i.e., Poshan Singh (PW-3) and Savitri Bai (PW5), it is clear that they have stated in one voice, that when they entered the
house of the main accused, they have found some area which was wet and
some puja articles were there. When they have noticed fresh mounds of
earth, they have removed the same and found the body of the deceased child
in two parts. All the witnesses have consistently stated that the body was in
two parts, its cheeks were cut and tongue was missing.
15. The first information with the police was recorded by PW-19 – Domar
Singh Thakur. The constable who took the application for post mortem was
examined as PW-1. The doctor who conducted the post mortem on the body
of Chirag was Dr. Lal Mohammad was examined as PW-14. One Patiram
Bareth was examined as PW-11. He was the Patwari of the area and in his
statement he has clearly stated that the house from which the body of the
child was recovered belongs to Ishwari Lal Yadav. PW-18 is the Assistant Sub
Inspector who took accused Ishwari Lal Yadav into custody and recorded his
statement under Ex.P21. The recovery of incriminating articles was
disbelieved by the High Court. From the evidence on record it is also clear
13
Crl.A.Nos.1416-17/17 etc.
that several independent witnesses who were examined on behalf of the
prosecution were in the group of search along with parents of the deceased
and they have entered the house of the main accused on hearing the loud
music. It is also equally clear from the evidence that police have come to the
scene of occurrence only afterwards, when PW-10 – Corporator has informed
the police.
16. From the above evidence on record, it is clear that the parents of the
deceased boy along with others were searching for the boy, on hearing the
loud music from the house of Ishwari Lal Yadav and Kiran Bai, they got
suspicious and entered the house. It is consistently, deposed by the
independent witnesses mentioned above, that when they entered the house of
the main accused, namely, Ishwari Lal Yadav and Kiran Bai, they have
confessed that they have committed murder of the deceased child for the
purpose of sacrifice. There is nothing on record to show that such
confessions are caused by inducement, threat or promise. When such
confessions are corroborated by other evidence on record, the trial court as
well as the High Court, rightly relied on such confessions. From the evidence,
it is proved that the place where the body of deceased Chirag was traced
belongs to Ishwari Lal Yadav and Kiran Bai and in absence of any explanation
from their side, there is no error committed by the trial court in accepting such
evidence on record. It is true that the extra judicial confession is a weak piece
14
Crl.A.Nos.1416-17/17 etc.
of evidence, but at the same time if the same is corroborated by other
evidence on record, same can be accepted.
17. To prove the charge of kidnapping and conspiracy, there is no
acceptable evidence on record. In absence of any corroborative evidence for
kidnapping of the deceased boy by Hemant Sahu and another, the evidence
on record cannot be accepted. Even to prove the common intention to attract
the provision under Section 34, IPC, it requires a pre-arranged plan and prior
concert. Therefore, there must be prior meeting of minds. The common
intention must exist prior to the commission of the act in a point of time. The
burden lies on the prosecution to prove that participation of more than one
person for commission of criminal act was done in furtherance of common
intention. If we closely analyse the evidence on record the common intention
stands proved between Ishwari Lal Yadav and Kiran Bai who are main
accused but at the same time there is no acceptable evidence against all
others to prove their guilt that they have committed the offence with the
common intention. Prosecution has failed to prove the common intention of all
other appellants than the main accused, namely, Ishwari Lal Yadav and Kiran
Bai, either to kidnap or to murder the deceased child on the day of
occurrence. It is borne out from the evidence on record that all other accused
were disciples of self-claimed gurumata, namely, Kiran Bai and they were
regularly visiting the house of the main accused offering fruits and flowers.
There is no consistency of the persons named by the witnesses in the house
15
Crl.A.Nos.1416-17/17 etc.
of Ishwari Lal Yadav and Kiran Bai, when they all entered their house. Even
PW-5 Savitri Bai, in her deposition has clearly stated that all other accused
used to come regularly to the house of Ishwari Lal Yadav and Kiran Bai, along
with the fruits and flowers. The father of the child PW-3 Poshan Singh, in
cross-examination has stated that he knew the names of Ishwari Lal Yadav
and Kiran Bai earlier and he has come to know the names of all other
accused, after the occurrence of the incident. PW-6 Ram Avtar Gada, also
stated in her deposition that the accused Ishwari Lal Yadav and Kiran Bai
were known tantriks and other accused were their followers. Further PW-9
Parasnath Bhuarya, in his deposition has stated that he entered the house
along with the others and he could only recognise Ishwari Lal Yadav and as it
was dark he could not recognise all others. In absence of any consistent
definite evidence regarding presence of all other accused, along with the main
accused, namely, Ishwari Lal Yadav and Kiran Bai and further when the
prosecution has failed to prove either the common intention or the conspiracy
on their part along with the main accused, it is difficult to accept the case of
the prosecution as such they are entitled for the benefit of doubt. In view of
the evidence on record the prosecution has proved the guilt of the main
accused, namely, Ishwari Lal Yadav and Kiran Bai for the offence under
Section 302 read with Section 34 of the IPC. The common intention is to be
restricted only to the main accused Ishwari Lal Yadav and Kiran Bai but same
cannot be applied to others.
16
Crl.A.Nos.1416-17/17 etc.
18. Learned counsel for the appellants has relied on a judgment of this
Court in the case of Aghnoo Nagesia1
to buttress his contention that the courts
below have committed error in recording a finding of guilt of the appellants
based on confession. But same is a case where the appellant therein was
charged under Section 302 IPC for murdering his aunt and others and there
were no eye witnesses to the murder. The principal evidence against the
appellant was First Information Report which contains a full confession of guilt
by the appellant himself. The said confession was made to a police officer
and the same is not provable having regard to Section 25 of the Indian
Evidence Act. Further reliance is also placed on a judgment of this Court in
the case of Sahadevan2
. In the aforesaid judgment of two-Judge Bench of
this Court it is held that the extra judicial confession is a weak piece of
evidence and court must ensure that same inspires confidence and is
corroborated by other prosecution evidence. If the totality of oral evidence on
record is considered in the case on hand, it is consistent and inspires
confidence of the case of the prosecution to prove the guilt of the main
accused. We are of the view that the aforesaid judgments would not render
any assistance to support the case of the appellants.
19. Learned counsel also relied on the judgment of this Court in the case of
Shambu Nath Mehra3
. In the aforesaid judgment this Court has held that in a
criminal case burden of proof is on the prosecution and Section 106 is
certainly not intended to relieve it of that duty. It is held that on the contrary, it
17
Crl.A.Nos.1416-17/17 etc.
is designed to meet certain exceptional cases in which it would be impossible,
or at any rate disproportionately difficult, for the prosecution to establish facts
which are “especially” within the knowledge of the accused and which he
could prove without difficulty or inconvenience. In this case on hand it is
proved by cogent evidence that the body of Chirag was found in the house of
Ishwari Lal Yadav. By applying the provision under Section 106 of the Indian
Evidence Act definitely it is the burden of the accused to explain the fact within
the knowledge of them how the body of Chirag came to be buried in their
house. The judgment relied on in the case of Shambu Nath Mehra3
also
would not be helpful for the appellants. In the case of Firozuddin
Basheeruddin4
this Court has discussed the ingredients which constitute
criminal conspiracy within the meaning of Section 120B of the IPC. As we are
of the view that the evidence on record is not sufficient to prove the guilt of the
appellants under Section 120B of IPC, as such it is not necessary to elaborate
any further.
20. Vide impugned judgment, the High Court has confirmed the death
sentence imposed on appellants Ishwari Lal Yadav and Kiran Bai. Learned
counsel for the appellants relied on the judgment in the case of Ronny5
wherein this Court has held, in a case of multiple accused, where the
culpability of each accused is not clear to examine whose case falls within the
“rarest of rare cases”, it would serve the ends of justice, if the capital
punishment is commuted into life imprisonment. On the other hand, learned
18
Crl.A.Nos.1416-17/17 etc.
counsel appearing for the State of Chhattisgarh has submitted that the High
Court has considered the aggravating and mitigating circumstances and
confirmed the death sentence so far as main accused, namely, Ishwari Lal
Yadav and Kiran Bai are concerned and there are no grounds to modify the
same. Learned counsel for the State also relied on judgment of this Court in
the case of Sushil Murmu6
. In the above said case in similar set of facts
where killing of a nine year old boy as a sacrifice to the deity was dealt with,
this Court has upheld the death sentence imposed on the appellant therein.
21. It is clearly well settled that normal punishment for the offence under
Section 302 IPC is life imprisonment but in a case where incident is of “rarest
of rare cases” death sentence is to be imposed. It is equally well settled that
only special facts and circumstances will warrant passing of death sentence
and a just balance has to be struck between aggravating and mitigating
circumstances, before the option is exercised. While referring to the earlier
cases in the case of Bachan Singh v. State of Punjab7
and Machhi Singh v.
State of Punjab8
further guidelines are summarised in the judgment in the
case of Sushil Murmu6. Paragraphs 15 and 16 of the judgment read as under :
“15. The following guidelines which emerge from Bachan Singh
case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] will have to be
applied to the facts of each individual case where the question
of imposition of death sentence arises: (Machhi Singh
case [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] SCC p. 489,
para 38)
7
(1980) 2 SCC 684
8
(1983) 3 SCC 470
19
Crl.A.Nos.1416-17/17 etc.
(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. 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.
16. In rarest of rare cases when the collective conscience of the
community is so shocked that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death
penalty, death sentence can be awarded. The community may
entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the
community.
(2) When the murder is committed for a motive which
evinces total depravity and meanness e.g. murder by a
hired assassin for money or reward or a cold-blooded
murder for gains of a person vis-à-vis whom the murderer
is in a dominating position or in a position of trust, or
murder is committed in the course of betrayal of the
motherland.
20
Crl.A.Nos.1416-17/17 etc.
(3) When murder of a member of a Scheduled Caste or
minority community etc. is committed not for personal
reasons but in circumstances which arouse social wrath,
or in cases of “bride-burning” or “dowry deaths” or when
murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman
on account of infatuation.
(4) When the crime is enormous in proportion. For
instance when multiple murders, say of all or almost all
the members of a family or a large number of persons of
a particular caste, community, or locality, are committed.
(5) When the victim of the murder is an innocent child, or
a helpless woman or an old or infirm person or a person
vis-à-vis whom the murderer is in a dominating position or
a public figure generally loved and respected by the
community.”
22. It is clear from the above judgment that this Court has laid down the
guidelines, which are to be considered, in a given case whether capital
punishment should be imposed or not. There cannot be any hard and fast
rule for balancing the aggravating and mitigating circumstances. Each case
has to be decided on its own merits. In a “rarest of rare case” capital
punishment is to be imposed. To come to conclusion in each case
aggravating and mitigating circumstances are to be considered. Further
factors like, age of the accused, possibility of reformation, gravity of the
offence etc. are also to be kept in mind.
23. In this case it clear from the evidence on record, the main accused,
namely, Ishwari Lal Yadav and Kiran Bai have committed the murder of the
two year old child Chirag as a sacrifice to the God. It is to be noticed, they
21
Crl.A.Nos.1416-17/17 etc.
were having three minor children at that time. Inspite of the same, they
committed the murder of the deceased, a child of two years of age brutally.
The head of the helpless child was severed, his tongue and cheeks were also
cut. Having regard to age of the accused, they were not possessed of the
basic humanness, they completely lacked the psyche or mindset which can be
amenable for any reformation. It is a planned murder committed by the
aforesaid two appellants. The appellants herein who are the main accused,
namely, Ishwari Lal Yadav and Kiran Bai were also convicted on an earlier
occasion for the offence under Section 302/34 and Section 201 of IPC in
Sessions Trial No.98/2011 by the learned Sessions Judge, Durg, for similar
murder of a 6 year old girl for which they were convicted and sentenced to
death, but such sentence was modified on appeal in Criminal Appeal No.1068
of 2014 by the High Court of Chhattisgarh at Bilaspur and they were
sentenced to undergo life imprisonment without any remission or parole. On
appeal to this Court, the order of the High Court is. Such conviction for similar
offence can be considered as aggravating factor. By following the guidelines
as mentioned in the case of Sushil Murmu6
we are of the view that this is a
case of “rarest of rare cases” where death sentence imposed by the trial court
is rightly confirmed by the High Court. As the case is proved beyond any
reasonable doubt so far as the main accused are concerned, the judgment
relied on by the learned counsel for the appellants in the case of Ronny5
also
is not helpful to them.
22
Crl.A.Nos.1416-17/17 etc.
24. For the aforesaid reasons the appeals filed in Criminal Appeal Nos.300-
301 of 2018 and Criminal Appeal Nos.298-299 of 2018 are allowed and
conviction recorded and sentence imposed upon the appellants therein is set
aside. They shall be released forthwith if their custody is not required for any
other case. Criminal Appeal Nos.1416-1417 of 2017 and Criminal Appeal
No.1418-1419 of 2017 filed by Ishwari Lal Yadav and Kiran Bai respectively
are partly allowed, setting aside the conviction recorded and sentence
imposed for the offence under Section 364/34 and 120B of the IPC. However,
their conviction under Section 302/34 and 201, IPC is confirmed, confirming
the death sentence imposed on them for the offence under Section 302/34
IPC. The sentence imposed on them under Section 201 IPC is also
confirmed.
….……………………………….J.
[ROHINTON FALI NARIMAN]
….……………………………….J.
[R. SUBHASH REDDY]
….……………………………….J.
[SURYA KANT]
New Delhi.
October 03, 2019.
23
Crl.A.Nos.1416-17/17 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1522 OF 2019
(Arising out of S.L.P.(Crl.)No.7947 of 2017)
Ishwari Lal Yadav & Anr. …..Appellants
vs.
State of Chhattisgarh ...Respondent
J U D G M E N T
R.Subhash Reddy,J.
1. Leave granted.
2. This appeal is filed by appellant Nos. 1 and
2 in Criminal Appeal No.1068 of 2014 filed
before the High Court of Chhattisgarh, Bilaspur,
aggrieved by the common judgment in Criminal
24
Crl.A.Nos.1416-17/17 etc.
Reference No.4 of 2014 and Criminal Appeal No.1068 of
2014. The appellants herein were charged for
offences punishable under Sections 364/34 read with
120B IPC, Sections 302/34 read with 120B IPC and Section
201 IPC. On the aforesaid charges they were tried in
Sessions Trial No.98 of 2011 by the learned
Sessions Judge, Durg, and they were convicted for the
offences charged and sentenced for imprisonment for life
and a fine of Rs.5,000/- was imposed for the offence
under Sections 364/34 read with 120B IPC, sentence of
death and a fine of Rs.5,000/- for the offence under
Sections 302/34 read with 120B IPC, rigorous imprisonment
for five years and a fine of Rs.2,000/- for the offence
under Section 201 IPC. In view of the death sentence
imposed, the learned Sessions Judge made a reference to
the High Court in Criminal Reference No.4 of 2014.
Challenging the conviction recorded and the sentence
imposed on them, appellants have filed Criminal Appeal
No.1068 of 2014. Vide impugned judgment dated 30.11.2016,
the High Court has confirmed the conviction recorded
against appellants. However, the death sentence imposed
by the Trial Court is modified to imprisonment for life.
It was further observed that appellants-accused are not
25
Crl.A.Nos.1416-17/17 etc.
entitled to any remission or parole. Aggrieved by the
said judgment this appeal is filed.
3. On 04.03.2010, Beeru Dewar (PW-2) had lodged a
complaint with the Police Station, Bhilai Nagar,
stating that his six year old daughter Ku. Manisha
is missing.
4. On 23.11.2010, a child by name Chiraj Rajput was
found missing from his house. A missing report was
given in Police Station, Bhilai Nagar, District
Durg. Thereafter, the parents were searching for
their child. On hearing loud music being played in the
house of appellants i.e. Ishwari Lal Yadav (A1) and Smt. Kiran Yadav (A-2), they entered their
house. When they entered the house they found
freshly dug mound of earth and appellants
herein who were claiming as “tantriks”, have admitted
that they had killed Chirag and buried him there to
attain “siddhi”. Further, it is the case of the
prosecution that during the investigation in the said
case, Mahanand Yadav (A-4), made a statement to the
police that about seven/eight months earlier, he had
kidnapped one small girl on the asking of A-1 and A-2.
26
Crl.A. @ SLP(Crl.) No. 7947 of 2017 27
5. The said girl had been killed by way of human
sacrifice and her body was buried in the compound of
the appellants herein. On 24.11.2010, one constable of
Bhilai Nagar Police Station made ‘O’ entry to the
effect, that an information has been received about
the kidnapped girl who had been killed by way of human
sacrifice and her skeletal remains were recovered
along with the cloths which she was wearing. On the
said date a statement was recorded under Ext.P-15.
On the basis of the aforesaid statement, investigation
was done and skeletal remains of the child were
recovered.
6. After recovery of the skeletal remains, DNA test
was conducted and it was determined that skeletal
remains found in the house of Ishwari Lal Yadav (A-1)
and Smt. Kiran Yadav (A-2) were of Ku.Manisha who was
also reported to be missing. After completing
investigation, the appellants herein were charged
for the offences alleged against them.
7. On behalf of the prosecution, PW-1 to PW-21 were
examined to prove the guilt of accused. The Trial
Court on appreciation of evidence on record has held
27
Crl.A. @ SLP(Crl.) No. 7947 of 2017 28
that the appellants and two other accused are guilty
for the charges framed against them, convicted and
sentenced the appellants as follows :
Accused Conviction
U/s.
Sentence
Ishwari Lal Yadav 364/34 and
120B IPC
Imprisonment for life and
fine of Rs.5000/-. In default
of payment of fine, further
rigorous imprisonment for
four months.
302/34 and
120B IPC
Death sentence and fine of
Rs.5000/-. In default of
payment of fine, further
rigorous imprisonment for
four months.
201 IPC Rigorous imprisonment for
five years and fine of
Rs.2000/-. In default of
payment of fine, two months
rigorous imprisonment.
Smt. Kiran Yadav @
Gurumata
364/34 and
120B IPC
Imprisonment for life and
fine of Rs.5000/-. In default
of payment of fine, further
rigorous imprisonment for
four months.
302/34 and
120B IPC
Death sentence and fine of
Rs.5000/-. In default of
payment of fine, further
rigorous imprisonment for
four months.
201 IPC Rigorous imprisonment for
five years and fine of
Rs.2000/-. In default of
payment of fine, two months
rigorous imprisonment.
28
Crl.A. @ SLP(Crl.) No. 7947 of 2017 29
8. On appeal, High Court has acquitted accused nos.3
and 4, namely, Rajendra Kumar Mahar and Mahanand Yadav
respectively. So far as appellants are concerned
their conviction is confirmed, the death sentence
imposed on them is modified to one of imprisonment for
life for offence under Section 302/34 and 120B, IPC.
At the same time their conviction and sentence is
confirmed for the offence under Section 364/34 and
120B IPC and 201 IPC.
9. We have heard Sri Siddhartha Dave learned senior
counsel appearing for the appellants and Sri Sumeer
Sodhi,learned counsel appearing for the respondentState of Chhattisgarh.
10. It is contended by the learned senior counsel for
the appellants that the prosecution has failed to
prove the guilt of accused beyond reasonable doubt and
inspite of the same they were convicted and sentenced
for the offences alleged. It is submitted that the
confessional statements ought not to have been relied
on in absence of any corroborative evidence to prove
29
Crl.A. @ SLP(Crl.) No. 7947 of 2017 30
the guilt of the accused. It is further contended that
there are material contradictions among the witnesses,
as such the evidence is unreliable. It is further
submitted that the femur bone that was preserved, was
sent to CDFC Hyderabad for DNA analysis, and in fact
the report relied upon by the prosecution was the FSL
Report, Sagar. Even the FSL Report does not
conclusively draw to the fact that PW-3 is the mother,
but, states that she is a biological relative. There
are also discrepancies with regard to the cloths found
on her. Further, it is submitted that appellants were
in custody from 23.11.2010 and recoveries were made on
24.11.2010 but disclosure statements were recorded
thereafter.
11. As such, it is submitted that, same raises a
strong probability that these weapons have been
planted by the police. It is further submitted that
even the blood which was found on the weapons,
there is no proof that it was human blood. In
support of his arguments, learned counsel has relied
on the judgments of this Court in the case of Aghnoo
30
Crl.A. @ SLP(Crl.) No. 7947 of 2017 31
Nagesia vs. State of Bihar9, Sahadevan & Anr. vs.
State of Tamil Nadu10, Shambu Nath Mehra vs. The State
of Ajmer11, Ronny vs. State of Maharashtra12, State of
Goa vs. Sanjay Thakran13, Prakash vs. State of
Karnataka14 and Firozuddin Basheeruddin & Ors. vs.
State of Kerala15.
12. To buttress the submission that as there is
strong probability that the weapons seized have been
planted by the police, as such recoveries cannot be
relied on, learned counsel relied on the judgment in
the case of Sanjay Thakran5. Further, reliance is
also placed on the judgment in the case of Prakash6.
In support of his submission that as the blood on the
weapon used in crime is not shown to be that of the
deceased, it raises a grave suspicion that
investigation was not fair and benefit of doubt is to
be given to the accused.
13. On the other hand Sri Sumeer Sodhi, learned
counsel appearing for the respondent-State has
9AIR 1966 SC 119
10(2012) 6 SCC 403,
111956 SCR 199
12(1998) 3 SCC 625,
13(2007) 3 SCC 755
14(2014) 12 SCC 133.
15(2001) 7 SCC 596
31
Crl.A. @ SLP(Crl.) No. 7947 of 2017 32
submitted that as the case relates to the gruesome
murder of a minor girl of six years, for the purpose
of human sacrifice and from the oral evidence on
record, the prosecution has proved the guilt of the
accused beyond reasonable doubt, as such there are no
grounds to interfere with the impugned judgment. It is
submitted that when a child of two years by name
Chirag was missing, his parents were on search for
missing child along with family members and residents
of locality, on hearing the loud music emanating from
the house of the appellants, they got suspicious and
entered the house. It is submitted that at that point
of time both the appellants-accused have confessed
their guilt of committing the act of murder of Chirag
and burying the body in the precinct of the house. It
is submitted that looking at the fresh mound of mud,
same was excavated and the body of Chirag was found in
two parts. At that time one of the accused in the
said case also revealed committing of similar offence
of a girl child. It is submitted that there was
already a complaint of missing child of six year old
daughter of Beeru Dewar (PW-2), lodged on 04.03.2010,
32
Crl.A. @ SLP(Crl.) No. 7947 of 2017 33
investigation was made. Further investigation of the
police revealed that they have kidnapped and committed
murder of minor girl by name Km.Manisha. She was also
buried near to the place of Chirag. As such by
excavating skeletal remains along with cloths were
taken out. It is submitted that from the evidence on
record it is clearly proved by confession of several
independent witnesses, which is corroborated by other
evidence on record to prove that Manisha was murdered
for the purpose of human sacrifice by appellants, as
such they were rightly convicted and sentenced by the
Trial Court and their sentence of death was modified
by the High Court to that of imprisonment for life
without any remission or parole. As such, it is
submitted that there are no grounds to interfere with
the same. Learned counsel has also relied on the
judgment in the case of Sushil Murmu vs. State of
Jharkhand16.
14. Having heard the learned counsels on both the
sides, we have perused the impugned judgment and also
the other material on record.
16(2004) 2 SCC 338.
33
Crl.A. @ SLP(Crl.) No. 7947 of 2017 34
15. To prove the guilt of appellants-accused, several
independent witnesses were examined. From the evidence
on record it is clear that on 23.11.2010 when there
was search by the parents of the deceased Chirag
Rajput for their missing child along with others of
the locality, on hearing the loud music from the house
of the appellants, they got suspicious and entered the
house. Upon entering the house a freshly dug mound of
earth was found in the house of the appellants and on
confession made by the appellants body of Chirag was
traced. Further, as it was disclosed by one of the
accused that about 7/8 months earlier, they have
kidnapped one small girl on the asking of A-1 and A-2
and they have handed over the girl to Ishwari Lal
Yadav and Kiran Yadav, further investigation was made
in view of the complaint lodged by Beeru Dewar (PW-2)
on 04.03.2010. On 04.03.2010, Beeru Dewar (PW-2)
filed a report to the effect that his six year old
daughter Ku.Manisha was missing. On further
investigation, the skeletal remains were also
recovered from the house of the appellants from the
place adjoining from where body of Chirag was taken
34
Crl.A. @ SLP(Crl.) No. 7947 of 2017 35
out. In oral evidence Beeru Dewar (PW-2), father of
the deceased stated that when they went to the house
of Ishwari Lal Yadav (A-1), they found the skeletal
remains and they have also identified the cloths of
his daughter Ku. Manisha.
16. Mother of the deceased Smt. Durga Bai was
examined as PW-3. In her deposition, she has stated
that about 1½ years earlier to the date of statement,
she had gone to Kasaridih at about 06.00 pm for
begging. Her daughter was wearing one red coloured
two piece set and at about 8.00 pm when pooja was over
in the temple, her daughter Ku. Manisha stated that
she wanted to defecate. She also stated in her
deposition that after sometime when she went back to
the place of electric pole where her daughter was
defecating, she did not find her there. It is stated
that at the instance of police officials they went to
the house of appellants at Ruabandha and in her
presence a grave was dug which was inside the house of
the appellants and cloths of her daughter were lying
there along with some pieces of bones. She identified
the cloths to be that of her daughter Ku.Manisha.
35
Crl.A. @ SLP(Crl.) No. 7947 of 2017 36
17. Dilip Thakur was examined as PW-11, who was one
amongst the persons who went inside the house of the
appellants in search of other child Chirag. He has, in
clear terms, stated that at that time both the
appellants Ishwari Lal Yadav and Smt. Kiran Yadav
confessed that earlier they had sacrificed one small
girl child whom they had brought from Kasaridih and
that she had been buried in their house.
18. PW-13 Shrikant Gawander stated that on pointing
out by Ishwari Lal Yadav, some mound in the courtyard
was dug up and inside the same skeletal remains were
found along with red coloured frock and red coloured
underwear.
19. PW-16 is the Assistant Sub Inspector, who has
recorded the merg intimation (Exhibit P-28) and
(Exhibit P-29).
20. One Khuman Singh Sahu was examined as PW-21. In
his deposition he has stated that he knows accused
Ishwari Lal Yadav and his wife Smt. Kiran Yadav,
appellants herein, who are his neighbours. He has
stated that both the accused A-1 and A-2 were engaged
36
Crl.A. @ SLP(Crl.) No. 7947 of 2017 37
in witchcraft. Rajendra Kumar (A-3) and Mahanand Yadav
(A-4) are the disciples of (A-1) and (A-2). He was
also one of the members in the team in search of
missing boy Chirag earlier. He too stated in his
deposition that the appellants have admitted that one
girl by name Ku. Manisha who had been kidnapped
earlier, had been sacrificed by them. A confession is
also to the effect that they have buried the girl next
to the place where Chirag’s body has been buried.
21. From the evidence on record, it is clearly
established beyond reasonable doubt that Km.Manisha is
the daughter of PW-2 and PW-3 and was missing since
04.03.2010. Though, the said complaint was recorded
in the Police Out Post Padmanabhpur, Durg, on
04.03.2010 but there was no breakthrough. Only after
Chirag’s case has come to light, based on admissions
by the appellants and two others, further
investigation revealed that the appellants earlier
also committed similar offence of murder of Km.Manisha
for their tantrik activities and buried the body of
minor girl in their house.
37
Crl.A. @ SLP(Crl.) No. 7947 of 2017 38
22. The confessional statements made to the police by
the appellants, cannot be the basis to prove the guilt
of the accused but at the same time there is no reason
to discard the confessions made to the independent
witnesses at the time when Chirag’s body was found,
prior to the arrival of police. It is true that extra
judicial confession, is a weak piece of evidence but
at the same time if the same is corroborated by other
evidences on record, such confession can be taken into
consideration to prove the guilt of the accused. In
the case on hand, the evidence from independent
witnesses is in one voice and consistent. The medical
evidence on record also substantiated the case of the
prosecution. In addition to the same, PW-2 and PW-3
who are the parents of the deceased have identified
the cloths, which the deceased child was wearing on
the date of missing. It is also clear from the
evidence that the skeletal remains were removed. They
have also found the cloth pieces, attached to skeletal
remains. The colour of such cloth pieces was tallied
with the description in the missing report lodged by
PW-2 earlier on 04.03.2010. As such it is clearly
38
Crl.A. @ SLP(Crl.) No. 7947 of 2017 39
proved beyond any reasonable doubt that the appellants
are responsible for the offence alleged against them.
23. Learned counsel for the appellants has relied on
a judgment of this Court in the case of Aghnoo
Nagesia1 to buttress his contention that the courts
below have committed error in recording a finding of
guilt of the appellants based on confession. But same
is a case where the appellant therein was charged
under Section 302 IPC for murdering his aunt and
others and there were no eye witnesses to the murder.
The principal evidence against the appellant was First
Information Report which contains a full confession of
guilt by the appellant himself. The said confession
was made to a police officer and the same is not
provable having regard to Section 25 of the Indian
Evidence Act. Further reliance is also placed on a
judgment of this Court in the case of Sahadevan2. In
the aforesaid judgment of two-Judge Bench of this
Court it is held that the extra judicial confession is
a weak piece of evidence and court must ensure that
same inspires confidence and is corroborated by other
prosecution evidence. If the totality of oral
39
Crl.A. @ SLP(Crl.) No. 7947 of 2017 40
evidence on record is considered in the case on hand,
it is consistent and inspires confidence of the case
of the prosecution to prove the guilt of the main
accused. We are of the view that the aforesaid
judgments would not render any assistance to support
the case of the appellants.
24. Learned counsel also relied on the judgment of
this Court in the case of Shambu Nath Mehra3. In the
aforesaid judgment this Court has held that in a
criminal case burden of proof is on the prosecution
and Section 106 is certainly not intended to relieve
it of that duty. It is held that on the contrary, it
is designed to meet certain exceptional cases in which
it would be impossible, or at any rate
disproportionately difficult, for the prosecution to
establish facts which are “especially” within the
knowledge of the accused and which he could prove
without difficulty or inconvenience. In this case on
hand it is proved by cogent evidence that the body of
Chirag was found in the house of Ishwari Lal Yadav.
By applying the provision under Section 106 of the
Indian Evidence Act definitely it is the burden of
40
Crl.A. @ SLP(Crl.) No. 7947 of 2017 41
the accused to explain the fact within the knowledge
of them how the body of Chirag came to be buried in
their house. The judgment relied on in the case of
Shambu Nath Mehra3 also would not be helpful for the
appellants. In the case of Firozuddin Basheeruddin7
this Court has discussed the ingredients which
constitute criminal conspiracy within the meaning of
Section 120B of the IPC. As we are of the view that
the evidence on record is not sufficient to prove the
guilt of the appellants under Section 120B of IPC, as
such it is not necessary to elaborate any further.
25. The other judgments relied on by the learned
counsel for the appellants in the case of Sanjay
Thakran5 and the judgment in the case of Prakash6 also
would not render any assistance to the case of the
appellants having regard to facts and circumstances of
the present case. Apart from the recoveries there is
a strong and consistent evidence of independent
witnesses to prove the guilt of the accused. The FSL
Report, Sagar, conclusively establishes that PW-3 is
the biological relative of the deceased. The said
evidence if considered along with other oral evidence
41
Crl.A. @ SLP(Crl.) No. 7947 of 2017 42
of PW-2 and PW-3, it is proved beyond reasonable doubt
that the skeletal remains of the body removed from the
house of the appellants was only that of their
daughter Ku.Manisha. It is also proved from the
evidence on record that the house belonged to the
appellants where skeletal remains were removed.
26. Further, as there is no acceptable evidence on
record except the alleged confession to prove the
offence under Sections 364/34 read with 120B IPC, the
appellants are entitled for acquittal for offences
punishable under Sections 364/34 and 120B IPC. At the
same time, by burying the dead body of the deceased
caused disappearance of evidence of offence, they are
rightly convicted for offence under Section 201 IPC.
27. Having regard to gruesome nature of murder, the
Trial Court has imposed the punishment of death for
offence under Sections 302/34 read with 120B IPC but
on appeal the High Court has modified the sentence to
that of imprisonment for life without any remission or
parole. Considering the gruesome nature of murder the
sentence imposed by the High Court is to be confirmed.
42
Crl.A. @ SLP(Crl.) No. 7947 of 2017 43
28. For the aforesaid reasons, this Criminal Appeal
is partly allowed, setting aside the conviction
recorded and sentence imposed for the offence under
Sections 364/34 read with 120B IPC. However, we
confirm the conviction recorded and sentence imposed
for the offence under Sections 302/34 and Section 201
IPC.
.....................J.
[ROHINTON FALI NARIMAN]
.....................J.
[R. SUBHASH REDDY]
.....................J.
[SURYA KANT]
New Delhi,
October 03,2019
43
