Om Prakash @ Raja Vs. State of
Uttaranchal  Insc 523 (5 December 2002)
Babu & P.Venkatarama Reddi. P. Venkatarama Reddi, J.
appellant-accused was working as a domestic servant in the house of retired
Brigadier Shyam Lal Khanna. According to the findings of the Sessions court and
the High Court, the accused put an end to the life of three members of the
family including Mr. Khanna and endeavoured to kill the informant Mrs. Khanna.
The ghastly incident occurred in the morning hours of 15.11.1994 in Vasant Vihar
area of Dehradun. The appellant was charged under Sections 302 and 307 IPC.
Another person by named Nitish with whose sister the appellant had illicit
intimacy was also charged under Section 120 B IPC. The learned additional Sessions
Judge, Dehradun, convicted the accused-appellant under Sections 302 and 307
IPC. For committing the offence of murder, death sentence was imposed. Under
Section 307 IPC, he was sentenced to undergo R.I. for 7 years. The other
accused was acquitted of the charge. The Sessions Judge made a reference under
Section 366 Cr.P.C. for confirmation of death sentence. The appellant also
preferred an appeal from jail. The High Court dismissed the appeal preferred by
the accused-appellant and confirmed the death sentence and other sentences
passed against him for the offences under Sections 302 and 307 IPC. It is
against this judgment of the High Court dated 19.9.2001, the present appeal has
been preferred by the accused through Jail authorities.
the victims a retired Brigadier working with ONGC at Dehradun was living in his
house with his wife Rama Khanna the informant, and his son Sarit Khanna who had
returned from U.K. after completing his studies two weeks earlier. The sister
of the informant by name Bishna Mathur was also staying in the house at the
relevant time. The appellant was engaged as servant at their house about six
to the prosecution, the day before the incident, it was decided to terminate
his services on account of his objectionable behaviour and he was informed of
their decision. A day later, he indulged in the ghastly attack against the
entire family. The crucial evidence on behalf of the prosecution is that of PW
1 Smt. Rama Khanna who gave the first information report to the police soon
after the occurrence. The prosecution case as unfolded by her deposition is this
accused was residing in the servant's quarter, he having been employed about
six months prior to the incident. There were instances in which the accused
proved to be unreliable. He had stolen money from the purse of her husband once
when she and her husband went to outstation. He killed her pet sparrow and also
put feathers inside the nose of her hen. She and her husband discussed about
the conduct and mentality of the accused and decided to dispense with his
service from 1st
December, 1994. To
this effect her husband informed the accused. On 14.11.1994, the accused served
bed tea at about 8 A.M. to her, her husband and her sister.
At that time her son was sleeping in the bed room. After the bed tea, her
husband left the house for a morning walk as usual. PW 1 and her sister went
into the bath rooms adjacent to each other. When she wanted to come out of the
bath room, PW 1 found it was bolted from outside. From the window of the bath
room, she communicated to her sister to open the bolt. As her sister just came
out of the bath room, PW 1 heard her cries for about five minutes and then
there was pin drop silence. At this PW 1 became suspicious that some untoward
incident had happened. Then, the accused himself opened the bath room door in
which PW 1 was confined; but, before fully opening the door and confronting the
accused, she noticed that the accused was holding chilly powder in one hand and
sword in another. The sword happened to be of her husband. As soon as the door
was opened, the accused threw chilly powder on her and attacked with the sword.
The sword luckily hit the golden bangle which she was wearing as a result of
which her left wrist was fractured and in this process, the bangle got dented.
She managed to get into the bathroom and bolted the door from inside. The
accused kept banging the bath room door. At that juncture, her husband returned
from morning walk and on hearing her panicky voice from the bathroom, he came
straight to the bed room to which the bathroom was attached. She pleaded with
her husband to open the door as the accused Raja (alias name of accused) was upto
some mischief. Her husband replied that Raja was not there, but immediately
thereafter, she heard the cries of her husband as the accused started attacking
him with sword after throwing chilly powder on his face. She heard her husband
remarking Raja "why are you doing this? We have not harmed you".
After sometime, the cries of her husband subsided. Thereafter, the accused
tried to injure her with the help of a danda from the window of the bathroom.
In the meanwhile, her husband gathered strength to open the bathroom door from
outside. Then PW 1 ran towards the main gate of the house and closed it from
inside to prevent re-entry of the accused inside the house as he was standing
outside at that time. At this, the accused started banging the main door
repeatedly and thereafter left the spot. When she came inside the bed room, she
found that her husband was lying injured with profuse bleeding and heavy
breathing. She noticed the injuries on his neck and chilly powder smeared on
his face. Then she rushed to the bed room of her son and found that he was
lying dead in a pool of blood with his neck severed from his body. A stone slab
was found on his legs. On entry into the room of her sister, PW 1 found that
chilly powder was spilled all over the room and her sister was dead with severe
injuries on her face and neck. On opening the drawing room window, she found Jamadar
Raju (PW 4) approaching the house. She cried out and asked him to open the main
gate and told him that the accused had murdered the inmates of the house. Then
the neighbours gathered and took her and her injured husband to ONGC hospital.
He was declared dead at the hospital. PW 1 was given first aid and then she was
dropped back at the house. PW 8 who was known to the family of PW 1 was in the
crowd and he scribed the complaint as per her dictation. She handed over the report
at Vasant Vihar Police post at about 10.30 A.M. The police then inspected the place of occurrence, took photographs and
sent the dead body for post-mortem. Again, PW 1 was taken to ONGC hospital and
x-ray of her wrist was taken and she was treated for her fracture.
photographs of various rooms in the house wherein the dead bodies lay and the
weapons and other incriminating material were shown to PW 1 and she testified
to the contents thereof. A khukri was found in the bed room of PW 1's son Sarit
Khanna. A stone slab was also visible in the same bed room. PW 1 had stated
that she had removed that slab from the legs of her son. A knife was found
lying on the floor of the drawing room.
bed room where her sister was lying dead the cover of the sword was found and
the sword was recovered from the curtains of Puja room. Chilly powder jar which
was kept in the kitchen was also found in the trolley used for serving the bed
tea. Blood stained clothes worn by the deceased and bed sheets were also identified
by her. The accused absconded and he was arrested nearly five years after the
incident. From the room of the accused, the photograph was found in which the
accused was in army Brigadier's uniform, which shows that he had stealthily
removed his master's dress for the purpose of photograph.
we have the evidence of PW 4 the Jamadar who used to come to the house of the
deceased for cleaning. When he reached the house at about 9 A.M., the main iron gate was locked from inside. He heard the
screams of PW 1 as she was crying aloud that the accused Raja had murdered all
inside the house. He entered the house by scaling the boundary wall. PW 4
stated that he had seen a person who was scaling the boundary wall and running
towards south. He further stated that he had a glimpse of the person running
away and it was the accused Raja. In the cross- examination, he deposed that he
had seen the accused from a distance of 70 'paces'.
to the medical evidence. PW 6 is the medical officer who conducted post-mortem
of the dead bodies in the evening of 15th November, 1994 :
injuries found on the body of Brig. Khanna two were incised wounds, six
lacerated wounds, one subconjuctrial haemorrhage on right eye and one traumatic
swelling over occipital region. One of the incised wounds was 7 cm x 3 cm. x
bone deep over left side of scalp-2 cm. above upper border of upper left ear
lobe. One of the lacerated wounds 6 cm x 3 cm. x bone deep was over mid scalp-2
cm. above injury no.1 with clotted blood. The rest of the injuries were on
different parts of the body. According to him, the death had occurred due to
shock and haemorrhage as a result of these ante mortem injuries.
he stated in the post-mortem report that death would have occurred about 12
hours back, he clarified that there was possibility of injuries being received
at about 9 A.M.
Sarit Khanna was aged about 27 years. Four lacerated wounds were found as ante
mortem injuries on his person. One lacerated wound 2 cm x 10 cm. was over
anterior aspect of neck. Muscle tissues were exposed on both the sides. On
internal examination, it was found that the wind pipe was lacerated and both
the vessels of the neck were cut. The right chamber of heart was full while the
left chamber was empty. The entire neck of the deceased was slit upto spinal
cord. He would have been attacked with a sword or khukri or any other sharp
edged weapon while the victim was sleeping, according to PW 6.
died due to shock and haemorrhage as a result of ante mortem injuries.
Smt. Bishna Mathur was aged about 65 years.
many as eight injuries had been inflicted on her person and amongst them, six
were incised wounds, one was punctured wound and the other was lacerated wound.
of the incised wounds were on the neck. She, too, died due to shock and haemorrhage
as a result of coma on account of ante mortem injuries.
the contention of the learned senior counsel who appeared as Amicus curiae that
the appellant was roped in on mere suspicion, that there was no reliable
evidence direct or circumstancial to connect the accused with the crime and
that the appellant had no compelling motive to kill his master and his kith and
kin and that it would be difficult to believe that the accused single handedly
had killed so many persons at three different places using several weapons. It
is further contended that more than one person would have been involved in
these serial killings and that the prosecution has apparently not come forward
with correct version of the incident.
it is submitted that in any case, death sentence is not warranted.
most important evidence in the present case is that of PW 1 Smt. Rama Khanna
whose husband, son and sister were brutally killed and who was also targeted
for attack by the accused.
doubt, she is not a direct witness in the sense that she had not witnessed the
actual attack on the three victims. In the cross- examination she made it clear
that she did not see the accusd killing her sister and her son. She further
clarified that she had not seen the accused attacking her husband but heard the
voice of her husband questioning the accused "Why are you doing so? We
have not harmed you". So also, she heard the cries of her sister soon
after she responded to PW 1's call to open the bolt of the bath room door and
they stopped all of a sudden. Soon thereafter, she peeped out of the bath room
door (after the bolt was opened by the accused) to find to her utter surprise
the accused holding chilly powder and sword. The appellant then attacked her
with the sword and she providentially escaped with an injury on the left wrist
as her bangle bore the impact of the sword. She then managed to get into the
bath room again and closed the door from inside. Even thereafter, the accused
kept the bath room door banging and then tried to injure her with the aid of a danda
from the bath room window. Thus, she was attacked by the accused with a deadly
weapon at that juncture when her sister and son were lying dead and when she
was questioning him about their safety.
follows from this sequence of events that there exists an inextricable nexus
between the accused and the murderous assault on the victims.
was no one else in the house and none other than the accused was seen by PW 1.
Who else other than the appellant would have killed the sister and son of PW 1?
- is a question which conspicuously stares at the face of the accused. The
circumstances do not err and they clinchingly point to the hand of the accused
in the murders.
instantaneous act of the appellant in attacking PW 1when she questioned him
about what was happening instead of saying a word about the victims establishes
beyond reasonable doubt that the appellant and the appellant alone had
committed the murders of the sister and son of PW 1 by the time her husband
Brig. Khanna arrived.
circumstances speak for themselves and they point unerringly to the
participation of the accused in the murders. True PW 1 did not hear the cries
nor did she have any indication of her son who was sleeping in the bed room
being attacked by anyone. But, the circumstances coupled with human
probabilities ought to be taken into account. PW 1 deposed that at the time the
accused served them bed tea, her son was sleeping. The occurrence had obviously
taken place thereafter i.e. after Brig. Khanna left for morning walk. No one
else entered the house excepting the accused who was actually seen by PW 1,
when he tried to make a fatal assault on her. It cannot be imagined that some
unknown person would have stealthily entered and killed Sarit Khanna in the
meanwhile and the appellant resorted to a killing spree in respect of others.
The argument sought to be advanced by the learned Amicus Curiae is highly
unrealistic and inconsistent with the telling circumstances of the case.
we come to the murder of Brig. Khanna, here again, the evidence of PW 1 is
sufficient to establish that the accused is the culprit and none else. Her
evidence reveals that the moment her husband returned home, she cried aloud to
open the bath-room door and that Raja (accused) was upto some mischief. Her
husband replied that Raja was not there but immediately thereafter she heard
the cries of her husband and her husband remarking "Raja, why are you
doing this? We have not harmed you". The cries subsided thereafter. Then,
the accused tried to injure her with a 'danda' from the window of the
bath-room. At that stage, her husband gathered strength to open the door from
outside. However, she was not sure, whether her husband opened the door or the
accused had opened it. Be that as it may, her evidence is clear that the bolt
was opened. As soon as she got out of the bath-room, she having noticed the
accused outside the main door of the house, acted with presence of mind in
bolting the main door from inside to prevent the re-entry of the accused. Then,
the accused started knocking at the door repeatedly. Even though PW-1 had not
seen the actual attack on the husband, that is, throwing chilly powder on his
face and attacking him with a dangerous weapon, the sequence of events noted
above would clinchingly and unerringly point to the fact that none other than
the accused would have killed the husband of PW-1.
circumstances and events unfolded by the evidence of PW-1 are incompatible with
the innocence of the accused. It is worthy of note that the accused-appellant
executed his plan to put an end to the lives of the entire family in a
calculated manner : first, he directed his attack towards the son of PW-1 who
was sleeping so that he will not be able to come to the rescue of others. It
was easy for him to kill that sleeping young man. The fact that a stone slab
was found on the body would lead to a reasonable inference that the accused
would have hit him on the head with that stone so as to prevent any resistance
being offered on hue and cry being raised.
he targeted the ladies who were in the bath-rooms. When Brig.
returned home, he became the next victim. In this scenario, it is difficult to
accept the contention of the learned counsel that it could not have been
possible for the appellant to single-handedly commit three murders one by one
by using different weapons. The doubt which is sought to be raised by the
learned counsel does not rest on firm hypothesis.
next contended by the learned amicus curiae that the version given by PW-1 in
her deposition is an improvement over the earliest version in the FIR. It is
pointed out that the alleged cries of her husband "Raja, why are you doing
this!" did not find mention in the FIR. Nor was it mentioned in the FIR
that the accused replied to PW-1 saying "you have lodged complaint against
me". These remarks attributed to the husband of PW-1 and the accused
cannot be true, according to the learned counsel because they were not mentioned
in the FIR. We find it difficult to accept this contention. It is axiomatic
that the FIR need not contain an exhaustive account of the incident. It is to
be noted that the report was given to the police within one and a half hours
after the incident. PW-8, a known person, had drafted the report that she
dictated. She had given all essential and relevant details of the incident
naming the accused as culprit. We cannot expect a person injured and overtaken
by grief to give better particulars. The possibility of PW-1 inventing a story
at that juncture trying to implicate the accused is absolutely ruled out. The
contents of the FIR, broadly and in material particulars, conform to the
version given by PW-1 in her deposition. Another corroborating factor is the
evidence of PW 4 - the sweeper who was regularly coming to the house for
cleaning in morning times. He heard the earliest version of the incident from
PW-1 and also noticed the accused running away after scaling the wall. His
evidence was believed by both the courts.
not think that the criticism of his evidence by the learned amicus curiae based
on the alleged improbabilities is justified.
circumstance to be borne in mind is that the appellant absconded and he was
apprehended only after five long years. There was no apparent explanation for
regards the motive for the crime, the High Court on an analysis of the evidence
found that it could either be a frustrated attempt to commit robbery or it
could be for taking revenge against the master and his family. It is in
evidence of PW-1 that the decision to dispense with his services was conveyed
to the accused on the previous day because the accused incurred the displeasure
of the family on account of his misbehaviour viz., suspected theft and his killing
or harming the pet birds. That apart, as stated by the accused in his statement
under Section 313 Cr.P.C., he was asked to quit the job for having illicit
intimacy with the sister of the co-accused and he was scolded on that account.
The accused would have been aggrieved for one or all of these reasons. We are
not concerned with the sufficiency or otherwise of the motive which would have
prompted the appellant to commit the crime. The correctness of conviction
cannot be tested on the touchstone of lack of sufficient motive, if the
evidence establishes beyond reasonable doubt that the accused committed the
crime. Such evidence is available in abundant measure in the instant case.
the age of the appellant, a contention has been raised that he was juvenile at
the time of commission of crime on 15.11.1994 because he gave the age as 20
years in his statement recorded under Section 313 Cr.P.C. on 07.03.2001. Apart
from the fact that on behalf of the appellant no proof was adduced regarding
his age, the High Court noted that he admittedly opened the bank account in
Punjab National Bank at Dehradun on 9.3.1994. Pass book and cheque book were
exhibited in trial . The High Court observed that the appellant would not have
been in a position to open the account unless he was a major and declared himself
to be so. That was also the view taken by the trial Court. The approach of the
Trial Court as well as the High Court on this aspect cannot be faulted.
view of the foregoing discussion, we affirm the conviction of the
appellant-accused under Section 302 IPC. The question then is about the
sentence. The trial court as well as the High Court categorized it as 'rarest
of the rare cases' which warranted the death sentence. After giving our anxious
consideration, we are in agreement with the High Court that the sentence of
death is the appropriate and proper sentence in this case. As rightly observed
by the High Court, the crime had been cleverly pre-planned and committed in a
brutal and diabolical manner. Three out of the four inmates of the house in
which he was employed, were eliminated. There was an attempt to kill the fourth
person (PW-1) also. The accused had inflicted injuries on the young Sarit Khanna
in such a cruel manner that his neck was practically severed from his body.
Multiple injuries were inflicted on the vital parts of other victims. The cruel
tendency of the appellant was writ large even in the manner of attack. His
antecedents also reveal a cruel and savage behaviour on his part. The evidence
on record reveals that he killed a pet bird and pierced feathers inside the
nose of the hen. He was determined to kill all the members of the Khanna family
to take revenge on a flimsy ground. Alternatively, he stooped to the ghastly
crime in order to take away the valuables in the house. His conduct and behaviour
is repulsive to the collective conscience of the society. It is fairly clear
that he does not value the lives of others in the least. The crime committed by
the appellant shocks the conscience of the society at large and of the Court
and the facts and circumstances unfolded in the case leave the Court with an
irresistible feeling that he is beyond reformation though young he is. As held
in Amrutlal Someshwar Joshi vs. State of Maharashtra (1994 (6) SCC, 197), mere
young age of the accused is not a ground to desist from imposing death penalty,
if it is otherwise warranted. Moreover, in the present case, none is dependant
on the appellant. There are no mitigating circumstances in his favour. The
accused is a menace to the society and it seems to us that the death sentence
is the most appropriate punishment in this case. On facts, the case on hand is
closest to Amrutlal Someshwar's case (supra) where the death sentence was
upheld. Accordingly, the sentence of death is confirmed. The appeal is
must place on record our appreciation of the valuable assistance rendered by
the learned senior counsel Dr. Syamala Pappu who appeared as amicus curiae.