The learned trial court, while weighing the mitigating and aggravating circumstances and keeping in mind the principle of proportionality of sentence or what it termed as "just-desert" for the brutal and diabolical killing of three innocent family members, formed an opinion that the Court could not resist from concluding that the only sentence that could be awarded to the accused was death penalty. Thus, it directed that the accused Goraksha Ambaji 2 Adsul be hanged by the neck till he is dead in terms of Section 354(5) of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.'), subject to confirmation by the High Court in accordance with law. Aggrieved by this extreme punishment and the order of conviction, the accused challenged the judgment of the learned trial court dated 14th February, 2005 by filing an appeal before the High Court which vide its detailed judgment dated 30th September, 2005, declined to confirm the death sentence referred under Section 366 of the Cr.P.C. and held the said accused guilty of offence under Sections 302 and 201 of the Indian Penal Code (for short `IPC'), and sentenced him to undergo life imprisonment. In other words, the 3 High Court converted the death penalty into life imprisonment while sustaining the order of conviction.

          IN THE SUPREME COURT OF INDIA


         CRIMINAL APPELLATE JURISDICTION


          CRIMINAL APPEAL NO.999 OF 2007




STATE OF MAHARASHTRA                   ... Appellant


                         Versus





GORAKSHA AMBAJI ADSUL                  ... Respondent


                   AND


          CRIMINAL APPEAL NO.1623 OF 2007




GORAKSHA AMBAJI ADSUL                  ... Appellant


                         Versus





                           1


STATE OF MAHARASHTRA                                             ... Respondent




                               J U D G M E N T




Swatanter Kumar, J.




      The   learned   trial   court,   while   weighing   the   mitigating   and





aggravating   circumstances   and   keeping   in   mind   the   principle   of



proportionality of sentence or what it termed as "just-desert" for the



brutal   and   diabolical   killing   of   three   innocent   family   members,



formed an opinion that the Court could not resist from concluding



that   the   only   sentence   that   could   be   awarded   to   the   accused   was



death penalty.  Thus, it directed that the accused Goraksha Ambaji




                                          2


Adsul   be   hanged   by   the   neck   till   he   is   dead   in   terms   of   Section



354(5) of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.'),



subject to confirmation by the High Court in accordance with law.



Aggrieved by this extreme punishment and the order of conviction,



the   accused   challenged   the   judgment   of   the   learned   trial   court



dated 14th February, 2005 by filing an appeal before the High Court





which   vide   its   detailed   judgment   dated   30th  September,   2005,



declined to confirm the death sentence referred under Section 366



of   the   Cr.P.C.   and   held   the   said   accused   guilty   of   offence   under



Sections 302 and 201 of the Indian Penal Code (for short `IPC'), and



sentenced   him   to   undergo   life   imprisonment.     In   other   words,   the





                                            3


High Court converted the death penalty into life imprisonment while



sustaining the order of conviction.




      The   State   of   Maharashtra   has   preferred   the   present   appeal



bearing   Crl.A.   No.   999/2007,   before   this   Court   claiming   that   the



said   conversion   by   the   High   Court   is   not   appropriate   in   the   facts





and   circumstances   of   the   case.     The   State   further   avers   that   the



High   Court   in   its   judgment   has   fallen   in   error   of   law   as   well   as



failed   in   appreciation   of   evidence.     It  is   contended   that   this   Court



should   restore   the   judgment   of   the   trial   court   on   the   quantum   of



sentence   by   awarding   death   penalty.     The   accused   has   filed   a



separate appeal being Crl.A. No. 1623 of 2007 challenging the very




                                            4


same judgment of the High Court on the ground that the appellant



could not have  been held  guilty for an offence under Sections 302



and   201   of   the   IPC   and   the   appellant   was   entitled   to   judgment   of



acquittal.




      Thus, it will be appropriate for us to dispose of both the above





appeals by a common judgment.   For that purpose, we may briefly



notice the facts giving rise to the present appeals.




      Accused   no.1   Goraksha   Ambaji   Adsul   is   the   son   of   the



deceased,   Ambaji   Ahilaji   Adsul.       Accused   no.3   Sow.   Sunita



Goraksha   Adsul   is   the   wife   and   Accused   no.2   Mininath   Ambaji





                                           5


Adsul is the brother of the Accused no.1 Goraksha.   Accused no.1



was serving in the Indian Army and used to visit his village Hivare-



Korda   where   the   family   had   some   agricultural   land   and   other



properties.  The deceased, Ambaji Ahilaji Adsul was also married to



the   second   deceased,   Janabai   and   she   was   his   second   wife.     In



other words, Janabai was the stepmother of the Accused no.1 and 2





and     Reshma   (deceased)   was   their   stepsister.     All   these   persons



used to jointly reside in their house in the said village.  It has come



in   evidence   that   there   used   to   be   quarrels   between   the   Accused



no.1, his brother and wife on the one side and the deceased Ambaji



Ahilahi Adsul, his wife Janabai and daughter Reshma on the other.



The   accused   used   to   demand   partition   of   the   land   and   other




                                        6


property   and   allotment   of   share   to   the   accused   and   his   brother.



This persisted for a considerable time and is said to be the motive



for commission of the offence.




      One         Premchand         Rangarao         Jatav,         Deputy         Station



Superintendent,   Railway   Station,   Bhopal   (PW9),   received   a   memo





sent by Sh. R.K. Arora, Train Ticket Examiner (TTE), informing him



that a black coloured trunk was found in Bogie No.S-6 of Train No.



2779   (Goa-Nizamuddin   Express)   running   via   Ahmednagar   when   it



reached   Bhopal   Railway   Station   on   25th  October,   2002   at   about



7.00 p.m.  The black trunk was seized under panchnama and when



the same was opened in the presence of Dr. Harsh Sharma it was




                                         7


found that it contained a dead body which was later identified to be



that   of   Ambaji   Ahilaji   Adsul.     Mr.   Someshwari   Jogeshwari   Prasad



Mishra,   ASI,   G.R.P.   Bhopal   (PW11)   completed   the   formalities   of



inquest   and   post-mortem.     After   the   body   was   received   in   the



hospital   it   was   inspected   by   one   Dr.   Mrs.   Rajni   Armit   Arora,   the



then   Associate   Professor   at   the   Department   of   Forensic   Medicine,





Gandhi Medical College, Bhopal, (PW19).  It was noticed that a lace



was found to have been tied to the portion covering neck and throat



of the deceased.   Dr. Arora performed the autopsy on 26th  October,



2002.     She   noticed   ligature   mark   of   brownish   colour   and   ligature



material of khaki colour shoe lace, two in number, tied around the



neck   encircling   it   and   described   the   injuries   as   ante-mortem




                                          8


injuries.     According   to   the   said   doctor,   the   cause   of   death   was



strangulation and homicidal in nature and was caused two to three



days prior to the post-mortem examination.  As nobody had claimed



the body, the blood stained clothes of the deceased were seized and



the  body   was  cremated   at  Bhadbhada  Vishram   Ghat,  Bhopal.    An



FIR (exhibit-82) was registered with regard to the said crime.





      On 25th October, 2002 itself, another train, i.e. Train No. 7602-



UP (Nanded Pune Express) reached Ahmednagar Railway Station at



its scheduled time in the morning at about 6.15 a.m. and departed



at  6.30  a.m.   Enroute,  during   the  stop  at  Akolner   Railway  Station



for crossing of the train coming from opposite direction, Mr. Sanjay





                                         9


Bhujadi,   TTE,   found   one   white   tin   trunk   in   Bogie   No.   S-4   placed



between the two toilets of the Bogie No. S-4.   After arriving Kasthi



Railway   Station,   Mr.   Sanjay   Bhujadi   made   a   report   to   the   Station



Master,   Kashti,   informing   him   of   the   said   trunk.     This   memo   was



delivered to GRP, Daund Railway Station (Ex.132).   The trunk was



removed   from   the   bogie   and   a          panchnama         was   prepared.





Thereafter,  it  was opened   and two  dead bodies were  found  in  that



trunk.     These   were   later   identified   as   those   of   Janabai     and



Reshma.     Inquest   formalities   were   completed   and   an   FIR   (exhibit



125)   was   lodged   on   25th  October,   2002   as   Crime   No.   43/2002   for



offence punishable under Sections 302 and 201 of the IPC.





                                         10


      The   railway   police   investigating   officer,   Mr.   B.B.   Joshi,   (PW8)



conducted   investigation   and   registered   a   case   vide   Crime   No.



237/2002   on   17th  November,   2002   against   the   three   accused



namely, Goraksha Ambaji Adsul, Sow. Sunita Goraksha Adsul and



Mininath Ambaji Adsul.  On further investigation, it was found that



the   accused   persons   had   administered   sedative/poisonous





substance mixed in  pedas  and thereafter strangulated all the three



victims   with   shoe   laces.     Thereafter,   they   placed   the   bodies   of   the



these   victims     in   two   different   trunks   .     One   trunk   was   kept   near



the electricity board D.P. at nearby Village Malkop and the other at



the   house   of   one   Mr.   Sakharam   Thakaji   Nabge,   a   friend   of   the



accused   (PW7),   before   both   were   transported   to   the   Ahmednagar




                                           11


Railway   Station   by   the   accused   Goraksha   in   a   hired   maruti   van.



Thereafter,   as   afore-noticed,   these   trunks   were   placed   in   different



trains.




      Accused   nos.   2   and   3   were   arrested   on   14th  November,   2002



and Accused no.1 on 30th  November, 2002.   Their statements were





recorded under Section 164 of the Cr.P.C. by Mr. Sayyad, Judicial



Magistrate,   First   Class,   on   6th  February,   2003   and   7th  February,



2003   respectively.     Investigation   was   completed   and   the   accused



were sent to the court of Judicial Magistrate on 11th February, 2003



for committal to the Court of Sessions so that they could be tried in



accordance with law.   All the three accused had taken the defence




                                        12


of   total   denial   and   pleaded   false   implication.   Accused   no.   1   had



specifically taken up the plea that between 22nd  October, 2002 and



25th  October, 2002, he was present at his duty place i.e. the Army



Office   at   Patiala.     The   prosecution   has   examined   as   many   as   25



witnesses   to   bring   home   guilt   of   the   accused   persons   and   after



recording   the   statement   of   the   accused   under   Section   313   of   the





Cr.P.C.,   the   trial   court   after   discussing   the   entire   evidence   on



record had found Accused no.1 Goraksha Ambaji Adsul guilty of an



offence   under   Section   302   as   well   as   Section   201   of   the   IPC   and



awarded   the   sentence   of   death   to   him.     However,   Accused   Nos.   2



and 3 were acquitted as according to the trial court, the prosecution



had failed to prove its case beyond reasonable doubt against these




                                          13


accused.   The State did not prefer any appeal against the acquittal



of   the   said   two   accused   and   thus,   their   acquittal   has   already



attained   finality.     Resultantly,   in   the   present   appeal,   we   are   only



concerned with Accused no.1 Goraksha Ambaji Adsul, who has filed



an   independent   appeal   against   the   judgment   of   conviction   and



sentence.





      As would appear from the above narrated factual matrix, it is a



case of circumstantial evidence and there is no eye-witness or other



direct   evidence   in   regard   to   the   murder   of   the   three   deceased



persons.   As is clear from the above, Ambaji Ahilaji Adsul was the



real father of Accused nos.1 and 2 while Accused no.3 is the wife of





                                         14


Accused   no.1.     Deceased   Janabai   was   the   second   wife   of   Ambaji



and   therefore   the   step-mother   of   Accused   nos.1   and   2.     Deceased



Reshma   and   PW13   Sunil   are   the   children   born   to   Janabai   from



Ambaji,   thus,   they   are   the   step-sister   and   step-brother   of   the



Accused  nos.1  and   2.     It   is   the   case   of  the   prosecution   that   there



used   to   be   quarrels   and   the   accused   Goraksha   used   to   demand





partition   of   the   land   and   other   properties.     In  fact,   he  is  stated   to



have   assaulted   his   father   during   those   quarrels.     The   accused



Goraksha   had   returned   home   for   Diwali.     He   had   brought   sweets



(pedas)   with   him,   which   he   offered   to   all,   i.e.   Ambaji,   Janabai,



Sunita,   Reshma   and   Sunil   on   the   night   of   23rd  October,   2002.



These  pedas  contained   sedative/poisonous   substance   and   after




                                            15


supper   when   the   family   was   asleep,   Goraksha   killed   his   father,



stepmother   and   stepsister   by   strangulation   and   packed   the   dead



bodies  in  two  metallic   boxes.    One  of  the   boxes   was  loaded   in  the



train   2779   UP,   Goa-Nizammudin   Express   while   the   other   was



loaded in train 7602-UP, Nanded-Pune Express and the same were



recovered   at   Bhopal   and   Daund   Railway   Stations   respectively,   as





noticed   above.     Sunil   and   the   accused   Sunita   required   medical



assistance   on   the   next   day   as   they   suffered   from   vomiting   and



dysentery   presumably   because   of   food   poisoning   caused   by   the



sedative-infused pedas, which were offered to them by Accused no.1



Goraksha.  Another suspicious circumstance which led to the arrest



of the accused was that on enquiry by the brother of the deceased




                                        16


Ambaji,   the   accused   had   informed   him   that   Ambaji,   Janabai   and



Reshma   had   gone   to   Ahmednagar   for   medical   treatment   and



subsequently claimed that he had received a telephone call from his



father   stating   that   the   family   was   proceeding   to   the   holy   place   of



Pandharpur.    Still another circumstance which connected accused



no.1   with   the   commission   of   the   crime   was   that   he   had   hired   a





maruti   van   owned   by   PW14   Bapusaheb   Shinde   for   the   purpose   of



carrying   the   two   trunks   containing   the   three   dead   bodies   from



Village   Malkop   to   the   Railway   Station,   Ahmednagar.     PW-7



Sakharam Nabge, a friend of the accused had also deposed that the



trunk   was   kept   in   front   of   his   house   before   it   was   loaded   in   the



Maruti Van.  PW12, Baban Vishnu Thorat is a friend of Bapusaheb




                                           17


Shinde   and   both   of   them   were   together   when   Goraksha   contacted



Bapusaheb   for   hiring   of   Maruti   Van   on   24th  October,   2002.     They



were again together when two trunks were lifted in the early dawn



hours   on   25th  October,   2002.     Thus,   these   two   persons   were



material   witnesses  for   establishing   the   fact  that  these   trunks/iron



boxes   were   actually   carried   from   the   place   afore-indicated   to   the





Railway Station by the accused.   PW17, Pandurang Daobhat is the



brother of the deceased Janabai and had identified the dead bodies.



His statement is of significance in regard to the identification of the



dead   bodies   as   well   as   the   conduct   of   the   accused   subsequent   to



the recovery of the dead bodies.  He is the person who was provided



with   incorrect   information   by   the   accused   Goraksha   regarding




                                         18


whereabouts   of   the   deceased.     PW13   Sunil   is   another   material



witness as he was also administered the pedas laced with sedatives



and   the   same   was   served   in   his   presence   to   the   deceased   by   the



Accused   no.1   Goraksha.     Besides   this   evidence,   the   statement   of



Dr.   Sanjay   Pande,   PW10   also   helps   in   completing   the   chain   of



events   leading   to   the   commission   of  the   crime   and   its  subsequent





result.   According to this witness, he had treated Sunil (PW13) and



Sunita   (Accused   no.3)   on   24th  October,   2002   when   they   were



brought to him with the complaint of diarrhea.   When they went to



the doctor, Goraksha, the Accused no.1 had accompanied them.





                                         19


      PW23,   Ezaz   Ahmed,   Judicial   Magistrate,   First   Class   at



Sahabad   had   recorded   the   statements   of   PW12,   PW14,   PW17   and



Meerabai   Daobhat,   sister   of   the   deceased   Janabai   under   Section



164   of   the   Cr.P.C.     We   may   also   notice   that   some   of   the  panch



witnesses who had signed the panchnamas turned hostile and PW7



Sakharam, a personal friend of the accused Goraksha also did not





fully support the case of the prosecution.




      The   above   are   the   main   witnesses   on   whose   statement   the



entire   case   of   the   prosecution   rests,   of   course,   in   addition   to   the



statement of the Investigating  Officers and other  formal  witnesses.



Accused nos. 2 and 3 were acquitted by the trial court and the High





                                           20


Court noticed that it was not concerned with the merit or otherwise



of   their   acquittal   by   the   trial   court   as   the   State   had   not   preferred



any appeal against the judgment of acquittal.




       At   this   stage,   we   may   usefully   refer   to   the   circumstances



which   were   relied   upon   by   the   prosecution   before   the   courts   and





they were as follows:-



      i)          Motive   -   dispute   over   agricultural   land/partition.

             (Evidence of PW-13 Sunil and PW-17 Pandurang)



      i)     Last   seen   together   -   (togetherness   by   virtue   of   joint

             family).



      i)     Administration   of   sedative   through   sweets.     (Evidence   of

             PW-13 Sunil and PW-10 Dr. Pande).





                                            21


      i)     The disposal of dead bodies by Accused no.1 (Evidence of

             PW-12 Baban, PW-14 Bapusaheb).



      i)     Identification of Accused no.1 as person loading one trunk

             in Goa-Nizammuddin Express train (PW-15 Aradhana).



      i)     Homicidal death.



      i)     False   theory/explanation   propounded   by   accused   for

             absence of the victim.  (Evidence of PW-13 Sunil and PW-

             17 Pandurang).





       In   the   facts   and   circumstances   of   the   case,   the   High   Court



expressed   the   opinion   that   two   circumstances,   i.e.   the   last   seen



together and the homicidal death stands proved by themselves  and



do   not   require   further   evidence   to   prove   that   fact.     We   fully   agree





                                           22


with the view expressed by the High Court that, keeping in view the



photographs   of   the   dead   body   and   the   doctor's   statement,   it   was



proved to be a homicidal death.   The learned counsel appearing for



the Accused no.1 (appellant) argued with some vehemence that the



doctor   had   not   expressed   his   opinion   with   regard   to   the   cause   of



death particularly in relation to Reshma and Janabai, as is evident





from Exhibits 113 and 114.  But this argument does not impress us



at all inasmuch as the death of the two persons have been proved.



From   the   injury   report   on   the   body   of   the   deceased,   the



photographs   and   the   circumstances   attendant   thereto,   it   is   more



than clear  that this was a case  of homicidal  death.     The  bodies  of



the   deceased   were   duly   identified.     It   was   practically   an   admitted




                                         23


case that the deceased as well as the accused were living in a joint



family and had their last meals together, during which the accused



had offered pedas to the family including the deceased.  This is fully



substantiated by the statement of PW13 and PW10.  PW13, Sunil is



a   family   member.     He   had   also   suffered   the   consequences   of



consuming  the  pedas  and  was  treated  by   PW10,  Dr.  Pande.       The





factum of carrying of two boxes and loading them on the respective



trains has also been fully established by the prosecution as we have



above-discussed.  At this stage, we may refer to some extracts of the



High   Court   judgment   where   in   our   view   the   High   Court   has



correctly appreciated the evidence.   It disregarded the statement of



PW7 while fully relying upon and holding that there were witnesses




                                     24


who were truthful and can be safely relied upon, the Court held as



under: -




            "To   sum-up   the   assessment   of   evidence   of

            these   seven   vital   witnesses,   we   may   say   that,

            PW-7   Sakharam   Nabge   has   made   himself

            sufficiently   useless   for   the   prosecution.

            Evidence of PW-12 Baban Thorat is acceptable

            to establish that Accused No.1 had contracted





            with   PW-14   Bapusaheb   and   accordingly   two

            trunks   were   transported   from   Malkop   D.P.   to

            Ahmednagar Railway Station at the instance of

            Accused   No.1   (sic),   for   which   accused   no.1

            paid   hire   charges   of   Rs.200/-.     Evidence   of

            PW-14   Bapusaheb,   although   shaky,   can   be

            relied upon on the same point, to the extent it

            is in harmony with the evidence of PW-12.  We

            find PW-10 Dr. Pande, in the absence of case-

            papers   to   refresh   his   memory,   to   be   not

            reliable.     PW-15   Aradhana   also   cannot   be




                                        25


relied upon for the purpose of identification of

Accused No.1, although she can be believed to

the   extent   that   the   trunk   was   loaded   in   Goa-

Nizamuddin   Express,   at   Ahmednagar   Railway

Station.   PW-17 Pandurang can be relied upon

for identification of the victims and subsequent

conduct   of   Accused   No.1,   so   also   to   some

extent,   possible   motive   i.e.   quarrels   on   the

point   of   partition.     PW-13   Sunil,   although   a

child   witness,   can   certainly   be   believed

regarding   togetherness   on   the   fateful   night,





more so because that is an admitted position.

His evidence regarding quarrels on the point of

partition   can   also   be   accepted,   because   of

support from Pandurang and probability.   The

story   of   administration   of   Pedhas   containing

some   sedative/poisonous   substance   and

subsequent   admission   to   Mate   Hospital,   has

become   a   story   not   acceptable   without   risk,

more   so  when   such   story   is   not  supported  by

any case papers.





                            26


XXX         XXX          XXX          XXX          XXX



We   have   subjected   the   evidence   to   close

scrutiny   and   only   thereafter   arrived   at   our

conclusion   as   to   whether   witnesses   are   to   be

believed and if yes, to what extent.



By   relying   upon   Anthony   D.   Souza   -   Vs.   -

State   of   Kerala,   A.I.R.   2003   S.C.   258   and

Darshansingh   -Vs.-   State   of   Punjab,   1995

S.C.C.   (Crl.)   702,   learned   A.P.P.   has





propounded   that,   in   case   accused   makes   a

statement   under   section   313   of   Cr.P.C.

completely   denying   the   prosecution   case   and

established   facts   and   offers   false   answers   or

explanation, that can be counted as providing

missing   link   from   complete   chain   of   the

prosecution   evidence   and   circumstances,   in   a

case   based   on   circumstantial   evidence.

Relying on these cases, an argument that false

explanation can be utilized as one of the links

in   the   chain   of   circumstantial   evidence   was




                            27


advanced, in order to persuade this Court that

story narrated by accused Goraksha to PW-17

Pandurang   about   the   victims   having   gone   to

Pandharpur             should           be         taken         into

consideration   as   false   explanation,   although

not   to   the   Court,   to   the   relatives   and   others.

In fact, as already pointed out earlier, accused

have   persisted   in   sticking   to   this   explanation

even   during   the   curse   (sic)   of   their   statement

under   Section   313   Cr.P.C.,   1973,   without

demonstrating   to   the   Court   that   either   of   the





two   trains,   i.e.   Goa-Nizamuddin   Express   and

Nanded-Pune   Express   travel   via   Padharpur

(sic).     We   may   state   it   here   itself,   that

explanation   offered   by   the   accused   about   his

having   received   a   message   from   Balasaheb

Sinare   of   Village   Padali,   who   received

telephone of the deceased Ambaji, of the three

victims   having   gone   to   Pandharpur   cannot   be

said  to  have  been  probabilised   in  the  absence

of evidence of said Balasaheb Sinare.  The two

trains not having been demonstrate as passing




                             28


through Pandharpur gives another set back to

the said defence.



24.   In the light of acquittal of Accused Nos. 2

and   3  by   the   trial   court,   learned   Advocate   for

the   appellant   has   placed   reliance   upon   the

observations   of   the   Supreme   Court   in   the

matter   of   Suraj   Mal   -   Vs-   State   (Delhi

Administration),   A.I.R.   1979   S.C.   1408,   and

more particularly,  observation  to the  following

effect in para 2: -





      "where   witnesses   make   tow   (sic)

      inconsistent statements in their evidence,

      either   at   one   stage   or   at   two   stages,   the

      testimony   of   such   witnesses   becomes

      unreliable and unworthy of credence, and

      in   absence   of   special   circumstances,   no

      conviction   can   be   based   on   the   evidence

      of such witness."





                             29


This   was   a   case   under   Prevention   of

Corruption Act.  Three police officers were tried

for allegedly having accepted bribe.  PW No.s 6,

8   and   9,   Shiv   Naryan,   Prem   Nath   and   Sham

Sunder   resiled   from   their   statements   which

they made in their chief examination and all of

them stated that Ram Naryan (one of the three

accused)   refused   to   accept   the   bribe.     Ram

Naryan   was,   therefore,   acquitted   by   the   trial

Court.     Another   accused   Devender   Singh   was

acquitted   by   the   High   Court   on   the   ground





that the sanction was not valid.



We are unable to appreciate the applicability of

the   ratio   to   the   matter   at   hands.     As   can   be

seen   from   the   impugned   judgment,   in   the

present   matter,   Accused   No.s   2   and   3   are

acquitted   by   the   trial   Court   because   there   is

no evidence referring to them....."





                              30


      The   above   conclusion   of   the   High   Court   does   not   suffer   from



any legal infirmity.  It is in conformity with the settled principles of



law   and   is   based   on   proper   appreciation   of   evidence.     In   fact,



finding   of   guilt   by   both   the   Courts   is   concurrent.     However,   they



differ   only   on   the   question   of   quantum   of   sentence.     On   the



appreciation of evidence, we are also of the considered view that the





prosecution   has   been   able   to   prove   a   complete   chain   of   events



which points only towards the guilt of the accused.  Even in a case



of circumstantial evidence, if the prosecution is able to establish the



chain   of   events   to   satisfy   the   ingredients   of   commission   of   an



offence,   the   accused   would   be  liable   to  suffer   the   consequences  of



his proven guilt.  In the present case, right from the evidence of the




                                         31


entire   family   having   the   last   dinner   together   and   administering   of



pedas  with   sedatives   or   poisonous   substances   to   the   recovery   of



bodies   of   the   deceased   at   different   railway   stations   the   chain   of



events   stands   proved   beyond   reasonable   doubt.     In   fact,   the



statement of the accused  under  Section  313 of the Cr.P.C. further



supports   the   case   of   the   prosecution   and   demolishes   the   stand   of





the   defence   of   complete   denial.     Thus,   we   are   unable   to   find   any



error in the concurrent findings recorded by the Courts holding the



accused   guilty   of   an   offence   under   Sections   302   and   201   of   the



Cr.P.C.





                                          32


      Next,   we   are   concerned   with   whether   this   Court   should



exercise its judicial discretion to enhance his punishment from life



imprisonment  to death sentence, as contemplated  on behalf of the



State in its appeal.




      The   factual   matrix   of   the   case   as   well   as   the   evidence   which





has   been   led   by   the   prosecution   to   bring   home   the   guilt   of   the



accused,   we   have   already   discussed   in  some   detail.     Presently,   we



may   discuss   the   principles   which   have   been   long   settled   by   this



Court for imposition of death penalty.  The principles governing the



sentencing   policy   in   our   criminal   jurisprudence   have   more   or   less



been consistent, right from the pronouncement of the Constitution




                                          33


Bench judgment of this Court in the case of  Bachan Singh v. State



of Punjab [(1980) 2 SCC 684].  Awarding punishment is certainly an



onerous function in the dispensation of criminal justice.  The Court



is expected to keep in mind the facts and circumstances of a case,



the   principles   of   law   governing   award   of   sentence,   the   legislative



intent of special or general statute raised in the case and the impact





of awarding punishment.   These are the nuances which need to be



examined   by   the   Court   with   discernment   and   in   depth.     The



legislative   intent   behind   enacting   Section   354(3)   of   the   Cr.P.C.



clearly demonstrates the concern of the legislature for taking away



a   human   life   and   imposing   death   penalty   upon   the   accused.



Concern   for   the   dignity   of   the   human   life   postulates   resistance   to




                                         34


taking a life through law's  instrumentalities  and that ought not to



be   done,   save   in   the   rarest   of   rare   cases,   unless   the   alternative



option   is   unquestionably   foreclosed.     In   exercise   of   its   discretion,



the   Court   would   also   take   into   consideration   the   mitigating



circumstances   and   their   resultant   effects.     Language   of   Section



354(3)   demonstrates   the   legislative   concern   and   the   conditions





which need to be satisfied prior to imposition of death penalty.  The



words, `in the case of sentence of death the special reasons for such



sentence'     unambiguously   demonstrates   the   command   of   the



legislature that such reasons have to be recorded for imposing the



punishment of death sentence.  This is how the concept of rarest of



rare   cases   has   emerged  in   law.     Viewed   from   that   angle,   both   the




                                          35


legislative provisions and judicial pronouncements are at ad idem in



law.    The  death  penalty should  be  imposed   in  rarest   of rare  cases



and that too for special reasons to be recorded.  To put it simply, a



death sentence is not a rule but an exception.   Even the exception



must   satisfy   the   pre-requisites   contemplated   under   Section   354(3)



of   the   Cr.P.C.   in   light   of   the   dictum   of   the   Court   in   the   case   of





Bachan Singh (supra).




       The Constitution Bench judgment of this Court in the case of



Bachan Singh (supra) has been summarized in paragraph 38 in the



case of Machhi Singh vs.  State of Punjab (1983) 3 SCC 470  and the





                                             36


following   guidelines   have   been   stated   while   considering   the



possibility of awarding sentence of death:



           "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 required 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




                                           37


            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."





      The judgment in the case of Bachan Singh (supra), did not only



state   the   above   guidelines   in   some   elaboration,   but   also   specified



the   mitigating   circumstances   which   could   be   considered   by   the



Court   while   determining   such   serious   issues   and   they   are   as



follows:





                                         38


"Mitigating   circumstances.   -  In   the   exercise   of

its   discretion   in   the   above   cases,   the   court

shall   take   into   account   the   following

circumstances:



(1)   That the  offence  was  committed under   the

   influence   of   extreme   mental   or   emotional

   disturbance.





(1) The   age   of   the   accused.     If   the   accused   is

   young   or   old,   he   shall   not   be   sentenced   to

   death.



(1) The   probability   that   the   accused  would   not

   commit   criminal   acts   of   violence   as   would

   constitute a continuing threat to society.



(1) The   probability   that   the   accused   can   be

   reformed and rehabilitated.   The State shall





                              39


                by evidence prove that the accused does not

                satisfy the conditions (3) and (4) above.



             (1) That   in   the   facts   and   circumstances   of   the

                case   the   accused   believed   that   he   was

                morally justified in committing the offence.



             (1) That the accused acted under the duress or

                domination of another person.



             (1) That   the   condition   of   the   accused   showed





                that he was mentally defective and that the

                said   defect   impaired   his   capacity   to

                appreciate the criminality of his conduct."




      Now,   we   may   examine   certain   illustrations   arising   from   the



judicial pronouncements of this Court.  In the case of D.K. Basu  v.



State   of   West   Bengal  [(1997)   1   SCC   416]   this   Court   took   the   view





                                          40


that   custodial   torture   and   consequential   death   in   custody   was   an



offence   which   fell   in   the   category   of   rarest   of   rare   cases.     While



specifying   the   reasons   in   support   of   such   decision,   the   Court



awarded death penalty in that case.   In the case of  Santosh Kumar



Satishbhushan   Bariyar     vs.     State   of   Maharashtra  [(2009)   6   SCC



498],  this Court also spelt out in paragraphs 56 to 58 that nature,





motive,   impact   of   a   crime,   culpability,   quality   of   evidence,   socio-



economic   circumstances,     impossibility   of   rehabilitation   are   the



factors   which   the   court   may   take   into   consideration   while   dealing



with  such cases.     In that case  the  friends of the  victim  had called



him  to  see  a  movie   and  after   seeing   the   movie,   a  ransom  call  was



made, but with the fear of being caught, they murdered the victim.




                                           41


The Court felt that there was no evidence to show that the criminals



were incapable of reforming themselves, that it was not a rarest of



rare   case,   and   therefore,   declined   to   award   death   sentence   to   the



accused.     Interpersonal   circumstances   prevailing   between   the



deceased   and   the   accused   was   also   held   to   be   a   relevant



consideration in the case of Vashram Narshibhai Rajpara v.  State of





Gujarat  [AIR 2002 SC 2211] where constant nagging by family was



treated   as   the   mitigating   factor,   if   the   accused   is   mentally



unbalanced   and   as   a   result   murders   the   family   members.



Similarly,   the   intensity   of   bitterness   which   prevailed   and   the



escalation   of   simmering   thoughts   into   a   thirst   for   revenge   and





                                         42


retaliation were also considered to be a relevant factor by this Court



in different cases.




      This   Court   in   the   case   of  Satishbhushan   Bariyar  (supra)   also



considered various doctrines, principles and factors which would be



considered by the Courts while dealing with such cases.  The Court





discussed   in   some   elaboration   the   applicability   of   doctrine   of



rehabilitation   and   the   doctrine   of   prudence.   While   considering   the



application   of   the   doctrine   of   rehabilitation   and   the   extent   of



weightage to be given to the mitigating circumstances, it noticed the



nature   of   the   evidence   and   the   background   of   the   accused.     The



conviction in that case was entirely based upon the statement of the




                                        43


approver and was a case purely of circumstantial evidence.   Thus,



applying   the   doctrine   of   prudence,   it   noticed   the   fact   that   the



accused   were   unemployed,   young   men   in   search   of   job   and   they



were   not   criminals.     In   execution   of   a   plan   proposed   by   the



appellant and accepted by others, they kidnapped a friend of theirs.



The kidnapping was done with the motive of procuring ransom from





his   family   but   later   they   murdered   him   because   of   the   fear   of



getting caught, and later cut the body into pieces and disposed it off



at different places.  One of the accused had turned approver and as



already   noticed,   the   conviction   was   primarily   based   upon   the



statement of the approver.   Basing its reasoning on the application



of doctrine of prudence and the version put forward by the accused,




                                        44


the   Court,   while   declining   to   award   death   penalty   and   only



awarding life imprisonment, held as under: -




           "135.  Right to life, in its barest of connotation

           would   imply   right   to   mere   survival.   In   this

           form,   right   to   life   is   the   most   fundamental   of

           all   rights.   Consequently,   a   punishment   which

           aims   at   taking   away   life   is   the   gravest

           punishment.   Capital   punishment   imposes   a





           limitation   on   the   essential   content   of   the

           fundamental   right   to   life,   eliminating   it

           irretrievably. We realize the absolute nature of

           this right, in the sense that it is a source of all

           other rights. Other  rights may be limited, and

           may   even   be   withdrawn   and   then   granted

           again, but their ultimate limit is to be found in

           the preservation of the right to life. Right to life

           is the essential content of all rights under the

           Constitution.   If   life   is   taken   away,   all   other

           rights cease to exist.




                                        45


XXX          XXX           XXX           XXX           XXX




168.   We must, however, add that in a case of

this   nature   where   the   entire   prosecution   case

revolves round the statement of an approver or

dependant   upon   the   circumstantial   evidence,

the   prudence   doctrine   should   be   invoked.   For

the   aforementioned   purpose,   at   the   stage   of

sentencing evaluation of evidence would not be





permissible, the courts not only have to solely

depend   upon   the   findings   arrived   at   for   the

purpose of recording a judgment of conviction,

but also consider the matter keeping in view of

evidences   which   have   been  brought   on  record

on   behalf   of   the   parties   and   in   particular   the

accused for imposition of a lesser punishment.

A   statement   of   approver   in   regard   to   the

manner   in   which   crime   has   been   committed

vis-a-vis the role played by the accused, on the

one   hand,   and   that   of   the   approver,   on   the




                             46


other, must be tested on the touchstone of the

prudence doctrine




169. The accused persons were not criminals.

They   were   friends.   The   deceased   was   said   to

have   been   selected   because   his   father   was

rich.   The   motive,   if   any,   was   to   collect   some

money.   They   were   not   professional   killers.

They   have   no   criminal   history.   All   were

unemployed   and   were   searching   for   jobs.





Further   if   age   of   the   accused   was   a   relevant

factor   for   the   High   Court   for   not   imposing

death   penalty   on   Accused   No.   2   and   3,   the

same   standard   should   have   been   applied   to

the   case   of   the   appellant   also   who   was   only

two   years   older   and  still   a  young  man  in  age.

Accused Nos. 2 and 3 were as much a part of

the   crime   as   the   appellant.   Though   it   is   true,

that it was he who allegedly proposed the idea

of   kidnapping,   but   at   the   same   time   it   must

not   be   forgotten   that   the   said   plan   was   only




                             47


executed   when   all   the   persons   involved   gave

their consent thereto.




171.   Section  354(3)  of   the   Code   of   Criminal

Procedure requires that when the conviction is

for an offence punishable with death or in the

alternative   with   imprisonment   for   life   or

imprisonment   for   a   term   of   years,   the

judgment   shall   state   the   reasons   for   the

sentence awarded, and in the case of sentence





of   death,   the   special   reasons   thereof.   We   do

not   think   that   the   reasons   assigned   by   the

courts   below   disclose   any   special   reason   to

uphold   the   death   penalty.   The   discretion

granted   to   the   courts   must   be   exercised   very

cautiously especially because of the irrevocable

character   to   death   penalty.   Requirements   of

law   to   assign   special   reasons   should   not   be

construed to be an empty formality.





                            48


172. We have previously noted that the judicial

principles   for   imposition   of   death   penalty   are

far from being uniform. Without going into the

merits   and   demerits   of   such   discretion   and

subjectivity, we must nevertheless reiterate the

basic   principle,   stated   repeatedly   by   this

Court,   that   life   imprisonment   is   the   rule   and

death   penalty   an   exception.   Each   case   must

therefore be analyzed and the appropriateness

of   punishment   determined   on  a   case-by-   case

basis   with   death   sentence   not   to   be   awarded





save in the `rarest of rare' case where reform is

not   possible.   Keeping   in   mind   at   least   this

principle   we   do   not   think   that   any   of   the

factors   in   the   present   case   discussed   above

warrants the award of the death penalty. There

are   no   special   reasons   to   record   the   death

penalty   and   the   mitigating   factors   in   the

present case, discussed previously, are, in our

opinion, sufficient to place it out of the "rarest

of rare" category.





                            49


            173. For the reasons aforementioned, we are of

            the opinion that this is not a case where death

            penalty   should   be   imposed.   The   appellant,

            therefore,   instead   of   being   awarded   death

            penalty,   is   sentenced   to   undergo   rigorous

            imprisonment   for   life.   Subject   to   the

            modification   in   the   sentence   of   appellant   (A1)

            mentioned   hereinbefore,   both   the   appeals   of

            the   appellant   as   also   that   of   the   State   are

            dismissed."





      The above principle, as supported by case illustrations, clearly



depicts   the   various   precepts   which   would   govern   the   exercise   of



judicial   discretion   by   the   Courts   within   the   parameters   spelt   out



under   Section   354(3)   of   the   Cr.P.C.     Awarding   of   death   sentence



amounts to taking away the life of an individual, which is the most





                                        50


valuable   right   available,   whether   viewed   from   the   constitutional



point of view or from the human rights point of view.  The condition



of providing special reasons for awarding death penalty is not to be



construed   linguistically   but   it   is   to   satisfy   the   basic   features   of   a



reasoning   supporting   and   making   award   of   death   penalty



unquestionable.  The circumstances and the manner of committing





the   crime   should   be   such   that   it   pricks   the   judicial   conscience   of



the   Court   to   the   extent   that   the   only   and   inevitable   conclusion



should be awarding of death penalty.




       In the present case, the accused belonged to the armed forces,



his  father   had  married   for   the  second  time  and had  children  from





                                            51


the second wife.  There were continuous quarrels with regard to the



division of property and during these quarrels the accused is stated



to have even hit his father.   It was a pressure which had increased



with the passage of time and probably this frustration attained the



limit   of   commission   of   such   a   heinous   crime   by   the   accused.



Surely,   the   manner   in   which   the   crime   has   been   committed   is





deplorable   but   the   attendant   circumstances   and   the   fact   that   he



even         administered         the          sweets         (pedas)     containing



sedatives/poisonous   substance   to   his   own   wife   Sunita   Goraksha



Adsul, the Accused no.3, shows that  his frustration,  and probably



greed,   for   the   property   had   attained   volcanic   dimensions.     The



intensity   of   bitterness   between   the   members   of   the   family   had




                                              52


exacerbated   the   thoughts   of   revenge   and   retaliation   in   him.     The



constant   nagging   would   have   to   be   taken   as   a   mitigating



circumstance in the commission of this crime.  Resultantly, in view



of   the   above   factual   matrix   and   the   legal   analysis,   we   do   not   find



that the present case falls in the category of `rarest of rare cases'.





      For the reasons afore-recorded, we dismiss both the appeals.





                                                     ....................................J.

                                                     [Dr. B.S. Chauhan]





                                                     ....................................J.




                                           53


                        [Swatanter Kumar]

New Delhi;

July 7, 2011.





                 54

it is an undisputed fact that Jai Prakash alone at the knife point had taken away the prosecutrix across a distance of more than 15 km and it is only after he reached Gulab Nagar that he met the appellant. Except providing a space and cot and helping the accused in wrongfully detaining the prosecutrix, no further act or common intention is attributable. There is no evidence 36 that there was a common concert or common intention or meeting of minds prior to commission of the offence between the two accused. For the reasons afore-recorded, we partially accept the present appeal. The judgment of the trial court convicting the accused under Section 376(2)(g) of the IPC is set aside and he is acquitted of the said charge. However, his conviction under Section 368 of the IPC and the sentence awarded by the High Court is maintained. Therefore, the accused shall undergo rigorous imprisonment for five years with fine of ` 37 5000/-, in default of payment of fine to undergo rigorous imprisonment for four months.

                                               REPORTABLE


                    IN THE SUPREME COURT OF INDIA


          CRIMINAL APPELLATE JURISDICTION


           CRIMINAL APPEAL NO. 421 OF 2007





OM PRAKASH                                   ... Appellant





                          Versus


STATE OF HARYANA                              ... Respondents





                      J U D G M E N T





Swatanter Kumar J.



                             1


      The two accused Om Prakash (hereinafter referred as `the



appellant')   and   Jai   Prakash   were   committed   to   the   Court   of



Additional   Sessions   Judge   at   Jagadhri   vide   order   dated   30th



September, 1994 to face trial in the case of Jai Prakash under



Sections   363,   366   and   376(2)(g)   of   the   Indian   Penal   Code,





1860   (in   short   the   `IPC')   and   in   the   case   of   appellant   under



Sections  368   and   376(2)(g)   IPC.     Both   these   accused  pleaded



not guilty to the charge and faced trial.  The prosecution -



examined as many as nine witnesses to bring home the   guilt



of the accused in response to the questions posed by the Court



disclosing   incriminating   evidence   against   the   accused   under



                                        2


Section 313  of the Code of Criminal Procedure, 1973 (in short



the 'Code').  The appellant denied the incident and stated that



he had never known either Jai Prakash or the prosecutrix.  Jai



Prakash took the stand that he used to visit the house of one



Bhagwan Dass and there was enmity between Bhagwan Dass



and the father of the prosecutrix.  Fufa of the prosecutrix, Jeet





Ram,   was   posted   at   the   Yamuna   Nagar   police   station   and



because of personal animosity, he has been falsely implicated.



The  trial   court  vide  a  detailed   judgment   dated  30th   January,



1996   recorded   a   finding   that   all   the   essential   ingredients



constituting offence for which the accused were charged were



fully   proved   and   subsequently   convicted   both   the   accused   of



                                     3


the   said   offences.     After   hearing   them   on   the   quantum   of



sentence   and   noticing   the   antecedents   and   the   family



background of the accused, the trial court took a lenient view



and sentenced Jai Prakash to undergo rigorous imprisonment



for five years under Section 363 of the IPC and to pay a fine of



-





Rs.250/- and in default of payment of fine, to undergo further



rigorous   imprisonment   for   four   months.     The   Court   also



convicted him under Section 376 (2)(g) IPC with a sentence of



rigorous imprisonment for ten years and fine of Rs.500/- and



in   default   of   payment   of   fine   to   undergo   further   rigorous




                                     4


imprisonment   for   six   months.     However,   the   Court   awarded



sentence   of   five   years   rigorous   imprisonment   to   appellant



under Section 368 IPC and a fine of Rs.250/- and in default of



payment of fine to further undergo rigorous imprisonment for



four months and/or for the offence under Section 376(2)(g) of



the IPC awarded him R.I. for seven years and fine of Rs.500/-





and  to further  undergo,  in the  event  of  default  of payment  of



fine,   four   months   R.I.     Dissatisfied   with   the   judgment   of   the



trial   court,   Jai   Prakash   and   the   appellant   preferred   separate



appeals   before   the   High   Court   of   Punjab   and   Haryana   at



Chandigarh.     The   same   were   dismissed   and   the   judgment   of



conviction and order of sentence as awarded by the trial court,



                                       5


was upheld by the High Court vide its well reasoned judgment



dated   9th  August,   2005.     Against   this   judgment   of   the   High



Court,   the   appellant   alone   has   filed   the   present   appeal.



      Learned   counsel   appearing   for   the   appellant,   while



challenging the judgment of the High Court before this Court,



has   contended   that   there   was   an   inordinate   delay   in   lodging





the FIR, the appellant had been falsely implicated in the case



and   he   had   no   role   to   play   whatsoever   either   in   the   alleged



kidnapping   of  the  prosecutrix  or  in  raping  her.     According   to



him,   even   if   the   entire   evidence   is   read   in   its   correct



perspective,   the   appellant   would   be   entitled   to   the   benefit   of



doubt and consequent acquittal.  It is also contended that the



                                        6


basic ingredients of Section 376 (2)(g) IPC are not satisfied in



the present case.



          In order to examine the merit of these contentions, it will



be   important   for   us   to   notice   the   case   of   the   prosecution   in



brief.



          Complainant   Ram   Pal  (PW-6)   is   a   resident   of   House   No.





115   in   Vijay   Colony   and   is   a   labourer   in   paper   mill,



Yamunanagar.  He has five daughters and one son aged about



three years.   On the evening of 2nd  January, 1994, one of his



daughters   the   prosecutrix,   aged   about   14   years,   went   out   of



the   house   to   throw   rubbish   but   she   did   not   return.     The



complainant searched for her but she could not be traced.  On



                                         7


3rd    January,   1994,   his   son-in-law   -   Bali   Ram   (PW-7)   came



from   Village   Topra   and   told   him   that   Jai   Prakash   had   taken



the   prosecutrix   on   his   cycle   the   previous   night   and   then



dropped her to Bali Ram's House that morning. After receiving



this   information   he   brought   his   daughter   from   the   village



Topra;   she   did   not   tell   anything   to   the   complainant   at   that





time but after 2-3 days, she narrated the entire incident.  She



informed   that   she   had   been   taken   away   by   Jai   Prakash-



accused   at   knife   point   and   he   raped   her   in   the   house   of   the



appellant   in   his   presence.   Ram   Pal   (PW6),   father   of   the



prosecutrix   lodged   the   report   with   the   police   on   6th  January,



1994.     Thereafter,   as   already   noticed,   Jai   Prakash   and   the



                                         8


appellant were tried by the court of competent jurisdiction and



convicted.     In   terms   of   the   statement   of   the   prosecutrix,   Jai



Prakash,   accused   threatened   to   kill   her   if   she   did   not



accompany him.   She was taken on his cycle to Gulab Nagar



after crossing the railway line.  He took her to the house of the



appellant and talked secretly with him to arrange space and a





cot.     Both   the   accused   slept   in   the   same   room   in   which   she



was raped.  It has also come in evidence that Jai Prakash had



intercourse   with   her   twice   after   threatening   her   with   a   knife



and the appellant did not come to her rescue despite her cries



for help.   The appellant slept in that very room near the door



to   guard   against   entry   of   any   other   person   as   well   as   to



                                        9


prevent her from going out.  Jai Prakash threatened to kill the



prosecutrix with his knife if she raised alarm and at  about 3-4



A.M.,   Jai   Prakash-accused   took   her   away   to   village   Topra   on



cycle   and   left   her   at   the   house   of   her   brother   in   law   namely



Bali Ram.



       Dr. V.K. Sharma (PW8) had stated before the Court that





he   had   examined   Jai   Prakash   on   17th  January,   1994   and   in



his opinion, he was capable of performing intercourse and this



fact is proved by his report (Ex.PG).


             Dr.   Neeru   Ohri   (PW2)   had   medically   examined   the



prosecutrix on 6th  January, 1994 and had opined that the girl



had been subjected to coitus.  Besides medical experts and the



                                        10


investigating   officer,   there   are   three   material   witnesses-the



prosecutrix   (PW5),   Ram   Pal   (PW6)   and   Bali   Ram   (PW7).     All



these   witnesses   have   stated   what   they   were   told   by   the



prosecutrix.  Thus, the basic foundation for either acquittal or



holding   the   accused   guilty   primarily   depends   upon   the



statement of these witnesses.   According to her, the appellant





met Jai Prakash after he had taken her away at a knife point



to Gulab  Nagar and there they had talked for some time and



then   the   appellant   had   provided   a   cot   and   space   to   Jai



Prakash.     It   is   not   the   statement   of   the   prosecutrix   that   she



either over heard or was even certain as to what both of them



discussed   within  that  short  duration.     She   has  clearly   stated



                                        11


that   the   appellant   did   not   directly   or   indirectly   participate   in



the   act   of   rape.     We   are   not   concerned   with   the   offence



committed by Jai Prakash in the present appeal.  Statement of



PW6 is primarily based upon what was narrated to him by the



prosecutrix so is the statement of PW7.  They have no personal



knowledge   about   the   event   and   role,   if   any,   played   by   the





appellant.     The   entire   material   evidence   would   relate   to   the



medical   evidence   of   Jai   Prakash   for   performing   the   sexual



intercourse and that of the prosecutrix that she was subjected



to sexual inter course.   It is in no way even suggestive of the



role,   if   any,   which   has   been   played   by   the   appellant.     There



can   hardly   be   any   doubt   that   Jai   Prakash   raped   the



                                        12


prosecutrix.  As far as the appellant is concerned, according to



the   prosecutrix,   he   did   not   come   to   her   help   when   she   tried



out   to   him   and   thus   the   appellant   wrongly   ensured   her



confinement   in   the   room  where   Jai   Prakash   subjected   her   to



the assault of rape.   To put in a nutshell the prosecutrix was



threatened  at  knife point  and taken  away on the  pillion rider





on a  cycle  across  a  distance  of  15 to 20  km,   raped  and  then



dropped   to   her   brother   in   law-Bali   Ram's   house   the   next



morning.     In   this   entire   episode   no   role   is   attributed   to   the



appellant.     Even   according   to   Bali   Ram   (PW7),   Jai   Prakash



alone   came   to   drop   her   at   his   place.     In   the   words   of   the



prosecutrix " I asked Om Parkash accused to some (sic) to my



                                        13


help but he did not pay any heed.   Om Parkash accused has



slept in that very room. So that he may guard the entry  of any



other persons and so may guard my going out...."



      This  is   the   precise  role,   in  the   words   of  the   prosecutrix,



which   is   attributable   to   the   appellant.     Even   if   we   take   the



statement of the prosecutrix as gospel truth, nothing more can





be   attributed   to   the   appellant.     Of   course,   Gandhi   Prasad



(DW1), the defence witness stated that he had been a tenant in



Moti   Ram's   house   in   Gulab   Nagar   since   five   years.   His   room



was   situated   towards   the   eastern   side   of   the   house   and   Moti



Ram and his family were residing in the opposite room.   Moti



Ram   had   since   died.     The   appellant   was   stated   to   be   the



                                       14


nephew of Moti Ram but neither the owner of the house nor a



tenant.     The   appellant   was   married,   he   denied   that   any   girl



ever came to those premises.  The statement of DW1 does not



really   advance   the   case   of   the   defence   but   the   effect   of   the



matter remains that the appellant was stated to be neither the



owner   nor   tenant   of   the   premises   in   question.   Be   that   as   it





may, DW1's statement cannot be given greater weightage than



the statement of the prosecutrix. It is not even the statement



of DW 1 that he was there on that particular day.  He has only



stated   that   in   January,   1994,   he   was   in   his   room   which



obviously does not inspire confidence as it cannot be inferred



that he was staying in the room the entire month, day in and



                                        15


day   out.     His   statement   was   that   no   girl   came   to   those



premises on 2nd January, 1994.  He does not even say that for



the entire day and night of 2nd January, 1994, he was present



in the house.  For the above reasons and even otherwise, DW1



appears   to   be   an   interested   witness   being   a   friend   of   the



appellant as he is staying in the same premises and would be





interested in protecting the appellant.



            There   is   some   delay   in   lodging   the   FIR   but   that



delay   has   been   well   explained.     A   young   girl   who   has



undergone   the   trauma   of   rape   is   likely   to   be   reluctant   in



describing   those   events   to   any   body   including   her   family



members.     The   moment   she   told  her   parents,   the   report   was



                                     16


lodged   with the police  without any delay.    Once  a reasonable



explanation is rendered by the prosecution then mere delay in



lodging   of   a   first   information   report   would   not   necessarily



prove fatal to the case of the prosecution.



      The   learned   counsel   appearing   for   the   appellant   has



hardly   been   able   to   bring   to   our   notice   any   material





contradictions in the statements of the prosecution witnesses.



Every   small   discrepancy   or   minor   contradiction   which   may



erupt in the statements of a witness because of lapse of time,



keeping  in   view  the  educational  and   other   background  of  the



witness,   cannot   be   treated   as   fatal   to   the   case   of   the



prosecution.     The   court   must   examine   the   statement   in   its



                                    17


entirety,   correct   perspective   and   in   light   of   the   attendant



circumstances brought on record by the prosecution.



       The   High   Court   in   its   judgment   has   not   discussed



whether   the   ingredients   of   Section   376(2)(g)   of   the   IPC   are



satisfied   in   the   present   case.     It   will   be   useful   to   refer   the



provisions of Section 376(2) of the IPC at this stage which read





as under:



                     "376(1)         xxx              xxx

                     (2)  Whoever,-

                     (a)   being   a   police   officer

                     commits rape-

                     (i) within the limits of the police

                     station         to         which         he         is

                     appointed; or

                     (ii)   in   the   premises   of   any

                     station   house   whether   or   not



                                                18


situated  in  the  police  station  to

which he is appointed; or

(iii)   on   a   woman   in   his   custody

or   in   the   custody   of   a   police

officer subordinate to him; or

(b) being a public servant, takes

advantage of his official position

and   commits   rape   on   a   woman

in   his   custody   as   such   public

servant   or   in   the   custody   of   a

public   servant   subordinate   to





him; or

(c) being on the management or

on the staff of a jail, remand -

home   or   other   place   of   custody

established by or under any law

for the time being in force or of

a   women'   s   or   children'   s

institution   takes   advantage   of

his         official          position         and

commits   rape   on  any   inmate   of




                        19


such   jail,   remand   home,   place

or institution; or

(d) being on the management or

on the  staff  of a hospital,  takes

advantage of his official position

and   commits   rape   on   a   woman

in that hospital; or

(e)   commits   rape   on   a   woman

knowing her to be pregnant; or

(f)   commits   rape   on   a   woman

when she  is under  twelve years





of age; or

(g)   commits   gang  rape,   shall   be

punished             with          rigorous

imprisonment   for   a   term   which

shall not be less than ten years

but   which   may   be   for   life   and

shall   also   be   liable   to   fine:

Provided that the court may, for

adequate and special reasons to

be   mentioned   in   the   judgment,

impose          a          sentence         of



                     20


imprisonment              of         either

description   for   a   term   of   less

than ten years

 Explanation 1. Where a woman

is   raped   by   one   or   more   in   a

group   of   persons   acting   in

furtherance   of   their   common

intention,   each   of   the   persons

shall   be   deemed   to   have

committed gang rape within the

meaning of this sub- section.





  Explanation   2.-   "women's   or

children's institution" means an

institution,   whether   called   an

orphanage   or   a   home   for

neglected   women   or  children   or

a widows' home or by any other

name, which is established and

maintained   for   the   reception

and care of women or children.

     Explanation   3.-"   hospital"

means   the   precincts   of   the



                   21


                   hospital   and   includes   the

                   precincts   of   any   institution   for

                   the   reception   and   treatment   of

                   persons   during   convalescence

                   or   of   persons   requiring   medical

                   attention or rehabilitation."




      A   plain   reading   of   Section   376(2)(g)   with   Explanation   I



thereto shows that where a woman is raped by one or more of





a   group   of   persons   acting   in   furtherance   of   their   common



intention,   each   of   the   persons   shall   be   deemed   to   have



committed gang rape within the meaning of Section 376 (2)(g)



of the IPC.   In other words, the act of gang rape has to be in



furtherance   of   their   common   intention   before   the   deeming



fiction of law can be enforced against the accused.  This Court



                                     22


in the case of Ashok Kumar v.  State of Haryana, (2003) 2 SCC



-143   had   occasion   to   dwell   on   Explanation   1   to   Section



376(2)(g),   IPC   while   examining   whether   the   appellant   Ashok



Kumar   could   be   convicted   under   the   same   because   at   the



crucial time, he happened to be in the house of the co-accused



Anil   Kumar   in   whose   case   the   judgment   of   conviction   under





Section   376(2)(g)   had   attained   finality.   The   Court   observed



that the prosecution must adduce evidence to show that more



than one accused has acted in concert and in such an event, if



rape   had   been   committed  by   even   one   of   the   accused  all   will



be   guilty   irrespective   of   the   fact   that  she  has  not  been  raped



by   all   of   them.     Therefore,   it   may   not   be   necessary   for   the



                                        23


prosecution to adduce evidence of a completed act of rape by



each one of the accused.   The provision  embodies a  principle



of joint liability and the essence of that liability is existence of



common   intention.     That   common   intention   pre-supposes



prior   concert   as  there  must   be  meeting  of   minds,   which  may



be   determined   from   the   conduct   of   the   offenders   which   is





revealed   during   the   course   of   action.   After   examining   the



circumstances   relied   upon   by   the   prosecution   to   indicate



concert,   the   Court   in  Ashok   Kumar   (supra)  concluded   that



mere presence of the appellant could not establish that he had



shared   a   common   intention   with   the   co-accused   to   rape   the



prosecutrix.     A   similar   view   was   taken   in   the   case   of



                                    24


Bhupinder Sharma v. State of Himachal Pradesh [(2003) 8 SCC



551] in which the court held as under:




          "14.   In   cases   of   gang   rape   the   proof   of

          completed act of rape by each accused on

          the   victim   is   not   required.   The   statutory

          intention in introducing Explanation 1 in

          relation   to   Section   376(2)(g)   appears   to

          have been done with a view to  effectively





          deal   with   the   growing   menace   of   gang

          rape.   In   such   circumstances,   it   is   not

          necessary   that   the   prosecution   should

          adduce clinching proof of a completed act

          of rape by each one of the accused on the

          victim   or   on   each   one   of   the   victims

          where there are more than one in order to

          find   the   accused  guilty   of   gang  rape   and

          convict them under Section 376 IPC."





                                    25


      Another   Bench   of   this   Court   in   the   case   of  Pardeep



Kumar     v.    Union Administration,  Chandigarh, [(2006) 10 SCC



608]   after   noticing   the   judgment   of   this   Court   in   the   case   of



Ashok   Kumar   (supra),  Bhupinder   Sharma   (supra)  and  Priya



Patel     v.     State   of   M.P.  [(2006)   6   SCC   263],  while   elaborating



the   ingredients   of   the   offence   under   Section   376(2)(g)   of   the





I.P.C. stated the law as follows:




             "10.   To   bring   the   offence   of   rape   within

             the purview of Section 376(2)(g) IPC, read

             with   Explanation   1   to   this   section,   it   is

             necessary for the prosecution to prove:





                                        26


(i)   that   more   than   one   person   had   acted

in   concert   with   the   common   intention   to

commit rape on the victim;


(ii) that more that one accused had acted

in concert in commission of crime of rape

with   pre-arranged   plan,   prior   meeting   of

mind and with element of participation in

action.   Common   intention   would   be

action in concert in pre-arranged plan or





a   plan   formed   suddenly   at   the   time   of

commission   of   offence   which   is   reflected

by   the   element   of   participation   in   action

or   by   the   proof   of   the   fact   of   inaction

when the action would be necessary. The

prosecution   would   be   required   to   prove

pre-meeting   of   minds   of   the   accused

persons prior to commission of offence of





                          27


rape   by   substantial   evidence   or   by

circumstantial evidence; and


(iii)   that   in   furtherance   of   such   common

intention   one   or   more   persons   of   the

group  actually  committed offence   of  rape

on   victim   or   victims.   Prosecution   is   not

required to prove actual commission of -


rape   by   each   and   every   accused   forming





group.


11.  On  proof  of common  intention  of the

group of persons which would be of more

than   one,   to   commit   the   offence   of   rape,

actual act of rape by even one individual

forming   group,   would   fasten   the   guilt   on

other members of the group, although he

or   they   have   not   committed   rape   on   the

victim or victims.



                          28


            12.   It   is   settled   law   that   the   common

            intention   or   the   intention   of   the

            individual   concerned   in   furtherance   of

            the   common   intention   could   be   proved

            either   from   direct   evidence   or   by

            inference   from   the   acts   or   attending

            circumstances of the case and conduct of

            the   parties.   Direct   proof   of   common

            intention   is   seldom   available   and,





            therefore,   such   intention   can   only   be

            inferred         from         the         circumstances

            appearing   from   the   proved   facts   of   the

            case and the proved circumstances."





      It   must   be   noticed   that   in   the   case   of  Pardeep   Kumar



(supra),   the   Court   stated   the   above   principles   but   acquitted




                                          29


the accused. According to the statement of the prosecutrix in



that   case,   the   accused   had   reached   the   premises   after



commission   of   the   offence,   though   he   had   consumed   liquor



with the persons who had actually raped the prosecutrix.  The



Court   came   to   the   conclusion   that   there   was   no   common



intention   or  prior   concert   to   commit   the   offence   of   gang  rape





as mere presence would not be sufficient to find the appellant



guilty   by   taking   aid   of   Explanation   I.     The   present   case   is



slightly   similar   to   the   case   of  Pardeep   Kumar  (supra),   of



course, it is not in any way identical on facts.   In the case in



hand, the prosecutrix had not been gang-raped, as alleged by



the prosecution, and she had travelled all the way, i.e. nearly



                                       30


15-20   kms   on   a   cycle.     Thus,   the   intention   to   kidnap   and



commit rape or subject her to sexual assault was the intention



of  Jai  Prakash   alone.     There  was  no  prior   plan  or  meeting  of



minds   between   the   appellant   and   the   Jai   Prakash   to   either



kidnap or to rape the prosecutrix.  As per the statement of the



prosecutrix,   the   appellant   had   provided   a   room   to   both   Jai





Prakash   and   the   prosecutrix   and   remained   there   to   see   that



she   does   not   go   out   or   that   nobody   comes   in.     The   crucial



question   in   this   entire   sequence   of   events   is   whether   Jai



Prakash   told   the   appellant   that   he   had   kidnapped   the



prosecutrix or that the prosecutrix was known to him and had



accompanied   him   of   her   own   accord.     There   is   no   direct



                                       31


evidence   in   this   regard.     A   collective   reading   of   the   evidence



would   show   that   the   role   of   the   appellant   is   limited   to



wrongfully   confining   the   prosecutrix   and   not   rendering   help



when asked for.




      However,   it   would   have   been   an   entirely   different





situation   if   the   prosecutrix   had   stated   in   her   statement   that



the appellant had been told by Jai Prakash about her alleged



kidnapping   and   his   intention   to   rape   her,   during   the   short



conversation that they  are stated  to have had before entering



the   room.     It   is   clear   from   her   statement   that   she   does   not



even claim that she overheard the conversation.  Thus, it may



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not   be   possible   for   the   Court   to   draw   an   adverse   inference



against the appellant when the prosecution has not been able



to lead any definite evidence in that regard.




      In   the   case   of  Smt.   Saroj   Kumari     v.   The   State   of   U.P.



[(1973)   3   SCC   669],         this   Court   while   explaining   the





constituents of an offence under Section 368 of the IPC clearly



held   that   when   the   person   in   question   has   been   kidnapped,



the   accused   knew   that   the   said   person   had   been   kidnapped



and  the  accused  having such knowledge,  wrongfully conceals



or   confines   the   person   concerned   then  the   ingredients   of



Section   368   of   the   IPC   are   said   to   be   satisfied.       The



                                        33


prosecution   evidence   and   particularly   the   statement   of   the



prosecutrix   shows   that   the   act   of   kidnapping   with   the



intention   to   rape   and   actual   commission   of   rape   of   the



prosecutrix   were   completed   by   Jai   Prakash   himself.     The



appellant had rendered the help of providing a room but there



is   nothing   on   the   record,   including   the   statement   of   the





prosecutrix, to show that she overheard Jai Prakash telling the



appellant that he had kidnapped her and/or that the appellant



had   any  knowledge  of  the  fact  that  she   had  been   kidnapped.



The   possibility   of   the   appellant   being   informed   by   the   Jai



Prakash that she had come of her own will and had travelled a



long distance of 15-20 km without protest does not appear to



                                     34


be   unreasonable.   As   noticed,   according   to   the   prosecutrix,   it



was under threat but the prosecution was expected to produce



evidence   to   show   that   the   factum   of   kidnapping   as   well   as



intent   to   commit   a   rape   was   known   to   the   appellant   either



directly   or   at   least   by   circumstantial   evidence.     As   per   the



evidence   of   the   prosecution,   the   room   where   the   prosecutrix





was   raped   belonged   to   one   Sh.   Moti   Ram,   the   uncle   of   the



appellant   who   had   died.     Except   the   statement   of   DW1,   no



other defence had been led by the appellant to prove that he is



innocent   or   has   been   falsely   implicated.     Though   DW1   had



made a vague statement that on the date of occurrence, no girl





                                      35


had   come   to   that   room,   that   statement   cannot   be   said   to   be



truthful and it does not inspire confidence.



      Even   in   the   cases   where  the   statement   of  prosecutrix   is



accepted as truthful, it is expected of the prosecution to show



some   basic   evidence   of   common   intention   or   concert   prior   to



commission   of   the   offence.     In   the   present   case,   it   is   an





undisputed fact that Jai Prakash alone at the knife point had



taken away the prosecutrix across a distance of more than 15



km   and   it   is   only   after   he   reached   Gulab   Nagar   that   he   met



the appellant.   Except providing  a space  and cot and helping



the accused in wrongfully detaining the prosecutrix, no further



act or common intention is attributable.   There is no evidence



                                        36


that   there   was   a   common   concert   or   common   intention   or



meeting   of   minds   prior   to   commission   of   the   offence   between



the two accused.




               For the reasons afore-recorded, we partially accept



the present appeal.  The judgment of the trial court convicting





the accused under Section 376(2)(g) of the IPC is set aside and



he   is   acquitted   of   the   said   charge.     However,   his   conviction



under Section 368 of the IPC and the sentence awarded by the



High   Court   is   maintained.     Therefore,   the   accused   shall



undergo   rigorous   imprisonment   for   five   years   with   fine   of  `



                                      37


5000/-,   in   default   of   payment   of   fine   to   undergo   rigorous



imprisonment for four months.




       The appeal is accordingly dismissed.





                                          ...................................J.


                                              [Dr. B.S. Chauhan]





                                              ....................................J.

                                               [Swatanter Kumar]



New Delhi;

July 7, 2011





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