Sandeep Vs. State of
No.1651 of 2009]
Shashi Bhushan Vs.
State of U.P.
[With Criminal Appeal
Nos.1425-26 of 2011]
J U D G M E N T
Ibrahim Kalifulla, J.
appeals arise out of the common judgment of the Division Bench of the High
Court of Allahabad in Criminal Appeal No.4148/2007 along with Criminal
Reference No.19/2007 by which, the High Court while accepting the Criminal
Reference insofar as it related to appellant Sandeep in Criminal Appeal
No.1651/2009, rejected the same insofar as it related to appellant Shashi
Bhushan in Criminal Appeal Nos.1425-26/2011. In other words, while upholding
the sentence of death awarded to Sandeep, the appellant in Criminal Appeal No.1651/2009,
the Division Bench modified the sentence into one of life imprisonment insofar
as it related to Shashi Bhushan, the appellant in Criminal Appeal
of unnecessary facts, the case of the prosecution as projected before the trial
Court was that on 17.11.2004 I D.N. Verma (PW- 1) along with Sub-Inspector
Chander Pal Singh (PW-2), Constable Rambir Singh, Constable Sukhram, Constable
Ashok Kumar and Driver Yashvir Singh were on patrolling duty; that when they
reached ahead of Badsu on Khatoli Road leading towards Falut, they met
Constable Rajesh Kumar and another Constable Ramavtar who informed PW-1 and
other persons accompanying him that one Indica car took a turn for going
towards Falut road and that they heard some screaming noise from that vehicle. PW-1,
accompanied by the other personnel referred to above, proceeded towards Falut road
and after a distance saw an Indica car. They stated to have seen through the focus
light of the police jeep two young men trying to pull out a girl in an injured
condition by opening the rear door of the car.
is stated that it was around 21.30 hours. The police jeep in which PW-1 and
others were proceeding stopped ahead of the Indica car and caught hold of the two
young men and also noticed a girl, with injuries all over, on whom acid was
also sprinkled. The girl had also sustained injuries on the head as well as on
her right cheek.
On noticing the
above, according to PW-1, when he questioned her, she responded by stating that
her name was Jyoti and she is the daughter of one Baljeet Singh, R/o Lane
No.16, House No.56, Jagatpuri, P.S. Preet Vihar, New Delhi and that her
mother’s name was Varsha whose cell number was 9871020368. Inspector D.N. Verma
(PW-1) stated to have gathered information from her that she developed friendship
with the appellant Sandeep while she was working in a mobile shop. She also
stated to have revealed that she was pregnant.
According to the
information gathered from Jyoti, accused Sandeep had called her on that evening
and asked her to come to Laxmi Nagar market, Delhi, around 6 p.m. promising her
that he will marry her at Haridwar. Believing his words, she went to Laxmi
Nagar market from where she was taken in a car and that while they were moving
in the vehicle, accused Sandeep asked Jyoti to get the foetus aborted at
Meerut, to which she disagreed.
On this, he started
beating her inside the vehicle right from the point of Modinagar. She stated to
have further informed PW-1 and others that she told accused Sandeep that she would
reveal all facts to his family members as well as to the police and that when
the vehicle in which they were travelling turned towards an isolated place near
Khatoli, they tried to throw her into the sugarcane field at which point of time
PW-1 and other police members reached the spot.
According to her information
to PW-1, accused Sandeep and Shashi Bhushan caused the injuries on her with the
aid of a jack and pana (spanner) apart from cutting her with a blade and also
by pouring acid on her head. PW-1 stated that on noticing the condition of the
girl, he arranged for shifting her to Muzaffarnagar Government Hospital in the
police jeep along with Constable Rambir Singh and the driver of the jeep.
It was further stated
that accused Sandeep and Shashi Bhushan, on being apprehended, also revealed
their names and informed that accused Sandeep used to visit deceased Jyoti
while she was working in a mobile shop in Mayur Vihar Phase-I for the last six months
prior to the date of occurrence and developed friendship with her, and that in
course of time, deceased Jyoti pressurized him to marry her. On the date of
occurrence, around 6 p.m. he stated to have called her over phone to meet him
at Laxmi Nagar red light, that she responded to his call and came to Laxmi
Nagar red light where accused Sandeep was waiting along with his friend Shashi
Bhushan who drove the vehicle Indica car bearing registration No. DL 3CR 6666 which
belonged to his mother.
stated to have extended a promise to marry her at Haridwar. While the vehicle
started moving, accused Sandeep asked Jyoti to get the foetus aborted to which
she did not agree instead threatened him by saying that she will reveal all
facts to his parents as well as to the police and that as they reached
Modinagar, he started beating her. According to the version of accused Sandeep,
as told to PW-1, at Modinagar he purchased two bottles of acid and four shaving
blades, that when they reached Khatoli, on seeing an isolated place, they tried
to pull out the injured Jyoti from the vehicle and that at that point of time
they were apprehended by the police.
It is the case of the
prosecution that while both the accused were taken into custody, the vehicle in
which they were travelling was also seized along with the jack and pana, four
blades and two acid bottles. The articles, namely, blood stained floor mat,
empty bottles of acid, one pair of ladies footwear were stated to have been
seized after preparing a seizure memo. A copy of the seizure memo was stated to
have been handed over to the accused. It is the specific case of the
prosecution that since it was late in the night and it was a lonely place, there
were no independent witnesses other than the police personnel. The seizure memo
was marked as Exhibit K-1.
statement of PW-1 was registered as FIR No.Nil/2004 on the files of P.S.
Ratanpuri on 17.11.2004 against both the accused persons for offences under
Sections 307, 326, 324 and 328, Indian Penal Code (in short ‘IPC’) which came
to be subsequently altered later on as one under Sections 302/34 IPC after the
victim was declared dead by the hospital authorities. On the above set of
facts, District and Sessions Judge, Muzaffarnagar framed charges against both the
accused persons for offences under Section 302, IPC read with Section 34, IPC and
Section 316, IPC read with Section 34, IPC and proceeded with the trial. In support
of the prosecution as many as 10 witnesses were examined.
the accused persons were questioned under Section 313, Cr.P.C. for offences
under Section 304, IPC read with Section 34, IPC and Section 316 read with
Section 34, IPC, both the accused pleaded not guilty and also filed a written
statement to that effect.
The trial Court in
its judgment dated 02.06.2007 ultimately found the accused persons guilty of
offences under Section 302 read with Section 34, IPC and 316 read with Section
34, IPC and after hearing both the accused persons on the question of sentence,
took the view that having regard to the magnitude and the diabolic manner in which
the offences were committed by them and also having regard to the various principles
laid down in the decisions of this Court in relation to the award of death penalty
concluded that, the case on hand was one such case which fell under the
category of ‘rarest of rare case’ in which the accused deserved to be inflicted
with the capital punishment of death under Section 302, IPC read with Section
Ultimately, the trial
Court convicted and sentenced both the accused persons to death under Section
302 read with Section 34, IPC apart from imposing a fine of Rs.30,000/- each and
also sentenced them to undergo 10 years rigorous imprisonment and pay a fine of
Rs.10,000/- each for offences under Section 316 read with Section 34, IPC and
in default of payment of fine sentenced them to undergo further rigorous imprisonment
for one year. The sentences were to run concurrently. On realization of fine
from the accused persons, a sum of Rs.50,000/- was directed to be paid to the
parents of the deceased Jyoti as compensation.
hearing the Criminal Reference No.19/2007 as well as Criminal Appeal
No.4148/2007 preferred by the appellants, the High Court while confirming the
death penalty imposed on appellant Sandeep held that the case of accused Shashi
Bhushan was distinguishable and that the gravity of the offence did not warrant
infliction of extreme punishment of death and consequently altered the same
into one of imprisonment for life.
heard Mr. Sushil Kumar, learned senior counsel for the appellant in Criminal
Appeal No.1651/2009 assisted by Mr. Daya Krishan Sharma and Mr. D.P.
Chaturvedi, learned counsel for the appellant in Criminal Appeal
Nos.1425-26/2011 for appellant Shashi Bhushan. We also heard Mr. Ratnakar Dash,
learned senior counsel assisted by Mr. Rajeev Dubey, for the State.
Sushil Kumar, learned senior counsel in his elaborate submissions after
referring to the evidence of the prosecution witnesses and medical evidence as
well as expert witnesses submitted that the so called dying declaration of the
deceased Jyoti was not proved, that the confessional statement of the accused
cannot be relied upon, that there were very many missing links in the chain of
circumstances and therefore the guilt of the accused cannot be held to be made
out. According to the learned senior counsel there were discrepancies in the timing
of registration of the F.I.R., delay in sending of the report to the Magistrate
apart from vital contradictions in the evidence of the police witnesses.
senior counsel also contended that there were serious lacunae in the preservation
of foetus samples and, therefore, the ultimate D.N.A. test result cannot be
senior counsel further contended that non-examination of some of the cited
witnesses caused prejudice to the accused and on that ground also the case of
the prosecution should be faulted. He further contended that the case of the
accused about the theft of the Indica car was not properly appreciated by the
Courts below. It was also contended that there were infirmities in regard to
the recoveries which were not properly examined by the Courts below. Lastly, it
was contended that it was not a case for conviction and in any event not
‘rarest of rare case’ for imposition of capital punishment of death sentence.
D.P. Chaturvedi, learned counsel appearing for the accused –Shashi Bhushan
apart from adopting the arguments of Mr. Sushil Kumar, learned senior counsel
contended that out of 17 injuries alleged to have been sustained by the
deceased Jyoti, at least 7 to 8 injuries were serious and in such circumstances
there would not have been any scope for the deceased Jyoti to have made any statement
as claimed by the prosecution. According to him there was absolutely no overt act
attributed to the accused Shashi Bhushan in the matter of infliction of injuries
on the body of the deceased Jyoti and consequently even the imposition of life
sentence was not warranted.
against the above submission, Shri Ratnakar Dash, learned senior counsel
appearing for the State contended that evidence of the prosecution witnesses
who were all police personnel was fair, impartial and natural and there was no
reason to doubt their version. He would contend that when there was no
independent witness present at the place of occurrence, there was no question of
examining any such private witness.
According to him, the
deceased was alive at the time when the accused were apprehended by the police
on 17.11.2004 at 21.30 hrs. and the injuries noted by the doctor would show
that the deceased was capable of making a statement and, therefore, the
recording of such statement by PW-1 in his complaint was perfectly in order. He
further contended that even in the statements of the accused such of those
versions made by them which did not in any way implicate them in the offence was
admissible under Section 8 of the Evidence Act while the rest of the statements
which are likely to implicate them can be distinguished and eliminated from
senior counsel relied upon the decision of this Court in State of W.B. v. Mir
Mohammad Omar & Ors.- 2000 (8) SCC 382 and Somappa Vamanappa Madar &
Shankarappa Ravanappa Kaddi v. State of Mysore – (1980) 1 SCC 479] in support
of his submissions.
counsel also contended that no prejudice was demonstratively shown by the non examination
of the cited witnesses. Learned counsel contented that going by the version of the
expert witnesses, the preservation of the foetus was according to the
prescribed norms and the D.N.A. result having been proved in the manner known
to law cannot be doubted. He also contended that when the registration of the F.I.R.
was promptly made, simply because there was minor delay in the alteration of
the offence from Section 307, IPC to Section 302, IPC and the subsequent
forwarding of the express report to the Magistrate cannot be fatal to the case
of the prosecution.
counsel relied upon the decision in Sunil Kumar and Anr. Vs. State of Rajasthan
- (2005) 9 SCC 283, Ram Kumar v. State (NCT) of Delhi- [(1999) 9 SCC 149, Tej
Prakash v. The State of Haryana -(1995) 7 JT 561 in support of his submissions.
heard learned Senior counsel for the appellants and learned senior counsel for
the State and having perused the material papers, original records and the
judgments of the trial Court as well as the Division Bench of the High Court,
we wish to note the broad spectrum of the appellants’ challenge to the
conviction and sentence which can be noted as under: (I) The case of the
prosecution which was mainly based on the so-called dying declaration of the
deceased and the confessional statement of the accused cannot be accepted as
the same was not proved. (II) The accused were able to demonstrate that they
were not present at the time of the commission of the alleged offence on 17.11.2004,
as there were very many disruptions in the chain of circumstances to rope in
the submissions made on behalf of the appellants are analyzed, the following
facts were claimed to support their stand:-
a. The entire case of
the prosecution was dependent on the version of witnesses, majority of whom
were police personnel and there was no independent witness to support the
version of the police.
b. The source of the FIR
was the alleged dying declaration of the deceased which was not proved and the so-called
confession of the accused Sandeep was inadmissible under Section 25 of the Evidence
c. If the confession is
inadmissible, the whole case depended on circumstantial evidence. d) The case
which was originally registered under Section 307, IPC was altered into one
under Section 302, IPC belatedly.
d. There were very many missing
links in the chain of circumstances.
e. There were serious
infirmities in the tests conducted in the samples of the foetus which seriously
undermine the case of the prosecution.
f. Though the occurrence
took place in a public place near a crusher unit where number of labourers were
working, the absence of examination of independent witnesses was fatal to the
case of the prosecution.
g. Non-examination of
some of the key witnesses cited in the charge- sheet whose evidence would have
otherwise supported the case of the accused caused serious prejudice and on
that ground the case of the prosecution should fail.
h. The delay in sending
the express report was a serious violation of Section 157, Cr.P.C. which would
again vitiate the case of the prosecution.
i. The alleged seizure of
materials from the car was highly doubtful, having regard to certain vitiating
j. Accused Sandeep was
roped in falsely by creating a link with his mother’s car, which according to
Sandeep, was stolen on the date of occurrence, which was omitted to be
considered in the proper perspective.
k. When admittedly there
was a pending rape case relating to the deceased in which certain persons were accused
of having committed rape on the deceased on 17.04.2004 which was tacitly admittedly
by Baljeet Singh (PW-8), father of the deceased, there was every scope for the aggrieved
persons in the said criminal case to have involved in the crime against the deceased.
against the above, when the stand of the learned counsel for the State is
analyzed, the following points emerge for consideration:-
relationship of Sandeep (A-1) with the deceased and the carrying of the foetus
in the womb of the deceased was not in dispute.
because the key witnesses were police personnel, that by itself cannot be a
ground to eschew that evidence from consideration.
case of the prosecution based on the statement of the deceased as spoken to by
the witnesses cannot be doubted.
statement of the deceased to the police insofar as it related to the incident and
such of those admissions of the accused not implicating them to the offence was
admissible in evidence under Section 8 and not hit by Section 25 of the
there were no independent witnesses present at the place of occurrence, the grievance
of the accused on that score does not merit consideration.
medical evidence, in particular, injuries noted in the post-mortem certificate
show that the deceased was capable and did make the statement as demonstrated
by the prosecution.
forensic report established the presence of blood on the weapons used as well
as in the car which was one of the clinching circumstances to prove the guilt of
outcome of the DNA test established the link of the accused with the deceased to
prove the motive for the crime.
claim of theft of the car was not established before the trial Court in the
manner known to law.
presence of the accused at the time and place of occurrence was proved beyond
all reasonable doubts.
handling of the samples sent for chemical and forensic examination was carried
out in accordance with the prescribed procedure.
accused failed to show that the non-examination of any of the cited witnesses caused
prejudice to them before the trial Court and, therefore, the grievance now expressed
will not vitiate the case of the prosecution.
various other discrepancies alleged were all minor and the same do not in any
way affect the case of the prosecution.
the above respective submissions in mind, when we analyze the case in hand the
following facts are indisputable:-
a. The relationship of
Sandeep with deceased, prior to the date of occurrence, namely, 17.11.2004 as
b. The deceased was
carrying the foetus of six months old in her womb;
c. The Indica car in
which the deceased was found on the date and time of occurrence belonged to the
mother of accused Sandeep;
d. At the time when the
deceased was secured by the police on 17.11.2004 at 21.30 hours she was
seriously injured but was alive;
e. The death of the
deceased was ascertained by the Dr. B.S. Chaudhary (PW-6) at 10.55 p.m.
f. As per the
post-mortem certificate, there were as many as 17 injuries which were caused by
blunt weapons like jack and pana (spanner), shaving blades and also chemical acid.
g. Police witnesses were
all on patrol duty on the date of occurrence.
h. The DNA test disclosed
that accused Sandeep was the biological father of the foetus found in the womb of
i. The theory propounded
by the accused i.e. the car was stolen on 17.11.2004 was not established before
the trial Court in the manner known to law.
j. The statement of the
accused as stated to have been made to PW-1 contained various facts unconnected
to the crime and also the self incriminating facts which could be distinguished.
k. The absence of any
independent witness at the place of occurrence.
the above factors, the existence of which is borne out by acceptable legal
evidence, when we examine the submissions made on behalf of the appellants, in
the foremost, it was contended that the deceased could not have made a
statement as claimed by Inspector D.N. Verma (PW-1) since according to Constable
Ramavatar Singh (PW-3), he noticed acid injuries in the inner mouth of the deceased.
However forceful the above submissions may be, we find that such a submission merely
based on the version of PW-3 alone cannot be accepted.
sustained by the deceased were borne out by medical record, namely, post-mortem
certificate and the evidence of the doctor who issued the said certificate. As
many as 17 injuries were noted in the post- mortem certificate. According to
the version of PW-3, injury in the mouth was caused by acid. When we examine
such of those injuries caused by acid and as spoken to by PW-6, doctor, injury
Nos. 4 and 17 alone were stated to have been caused by acid. Injury Nos.4 and 17
have been described as under:-
“4. chemical burn injury
from all over head, hair were charring and skin burnt chemically. 17. Chemical
burn injury all over body ranging from 12cm x 8cm to 2cm x 4 cm except upper
part of chest.”
by the above description of the injuries, as noted by the doctor who conducted
the post-mortem, it is difficult to accept the statement of learned senior
counsel for the accused that the injury in the mouth was such as the deceased
could not have made any oral statement at all to the witnesses. It is true that
by the pouring of the acid, injury might have been caused on the head and other
parts of the body of the deceased but by no stretch of imagination, those
injuries appear to have caused any severe damage to the mouth of the deceased,
much less to the extent of preventing her from making any statement to the witnesses.
In this context, when
we peruse the evidence of the Doctor (PW-6), he has specifically expressed an
opinion that he was not in a position to state whether after receipt of injury
on the body of the deceased she would have been in a position to speak or not. In
other words, the doctor who had examined the injuries sustained by the deceased
did not rule out the possibility of the deceased making any statement
irrespective of injuries sustained by her.
In this context, when
we refer to the submission made on behalf of the appellants themselves before
the Division Bench of the High Court, we find that it was specifically
contended that the deceased sustained multiple injuries and except one injury, all
other injuries were simple in nature and none of the injuries were sufficient in
the ordinary course of nature to cause the death of the deceased. Therefore, even
going by the stand of the appellants, the condition of the deceased, even after
sustaining multiple injuries, was such that she was alive, conscious and her
death was not instantaneous.
regard to the above factors, we are convinced that the case of prosecution that
the deceased made a statement about the sequence of the occurrence was really
made as spelt out by the witnesses PW Nos. 1 to 5.
this, we come to the next submission of learned counsel for the appellants,
that in the absence of independent witnesses, no reliance can be placed upon PW
Nos.1 to 5, who were all police personnel. To deface the evidence of PW Nos. 1
to 5, it was contended that near the place of occurrence, a crusher unit was
existing, and at that point of time, the crusher unit was also working.
It was suggested to PW-1
that the crusher unit was around 100 yards away from the place of occurrence. It
was also suggested to PW-2 that the crusher unit was running at that point of
time which was 100 yards away from the place of occurrence. In another place,
it was stated by PW-3 that the crusher unit was around ½ KM away from the
bridge and it was working. It was also stated by him that at that point of
time, 3-4 persons were working in the crusher unit. From what has been stated
by the above witnesses, what all that can be inferred was that a crusher unit
was at least 100 yards away from the place of occurrence and that even at that
point of time, namely, at 21.30 hours, the unit was working with at least 3-4 labourers.
Beyond the above
fact, it was not the case of the appellant that any worker from the crusher
unit was present at the spot and yet he was neither shown as a witness nor examined
and thereby any prejudice was caused to the appellants. It is also not the case
of the appellants that apart from the labourers working in the crusher unit,
any other independent witness was present at the spot who was not cited nor examined
as a witness.
Therefore, when the
above facts are clear, we are at a loss to understand as to how the grievance
of the appellants as regards non-examination of any independent witness can be
taken as a factor to put the case against the prosecution and to hold that the
whole case of the prosecution should be set at naught. Apart from the above, no
other point was raised as regards the non-examination of any independent witness
as to the occurrence narrated by the prosecution.
other submission made by the learned senior counsel was that after finding out
the cause of the occurrence from the deceased and after noting that she was
seriously injured, the police party arranged for shifting her to the hospital
in the police jeep along with Rambir Singh and the driver of the jeep within
2-3 minutes and that there was no justifiable ground for not examining Rambir
Singh who was also cited as a witness but yet not examined and also for the non-examination
of the driver of the jeep.
The contention of the
learned senior counsel was that after shifting the deceased from the Indica car
to the jeep in a serious condition, the jeep would have travelled for at least
an hour or so to reach the hospital and Constable Rambir Singh who accompanied her
would have been in a better position to state as to what transpired during that
period and what was heard by him from the deceased which would have thrown much
light on the occurrence. The learned senior counsel, therefore, contended that
serious prejudice was caused to the accused by non-examination of the said
Rambir Singh as well as the driver whose version would have otherwise been
favourable to the appellants.
senior counsel appearing for the State, however, contended that in every
criminal case it is not a rule that all cited witnesses should be necessarily
examined. He also contended that the non- examination of a witness can be put against
the prosecution if non- examination would have caused any serious prejudice to
the defence. He also relied upon the decision reported in Tej Prakash (supra)
in support of his submission.
As far as the said
submission is concerned, when we examine the sequence of events, we find that after
gathering whatever information from the deceased, as regards the occurrence
implicating the accused, which were the required details for PW-1 to lodge the necessary
complaint, his immediate priority was to attend on the injured person in order
to save her life. Such a course adopted by PW-1 and other police personnel at
the place of occurrence was quite natural and appreciable. Visualizing what had
happened at the place of occurrence as narrated by the prosecution witnesses, it
was brought out that whatever basic information required to ascertain the cause
of occurrence was gathered by the prosecution witnesses as disclosed in the complaint,
which was registered as FIR and also as stated by the witnesses before the Court.
The contention that
the examination of Constable Rambir Singh and the driver of the jeep, who took
the injured deceased to the hospital, would have disclosed very many other
factors favourable to the accused was only a wishful thinking. In any case,
what those persons would have deposed as a witnesses and to what extent it
could have been advantageous to the appellants was not even highlighted before
us. We ourselves wonder what other evidence, much less, favourble to the accused
could have been spoken to by Constable Rambir Singh who was entrusted with the task
of admitting the injured victim in the hospital in order to give necessary treatment
for her injuries.
Since PW-1 thought it
fit to shift the injured to the hospital after noticing her serious condition, and
the further fact that by the time they reached the hospital around 10.55 p.m.,
doctor found that the deceased was dead, it can be safely held that nothing
worthwhile could have been drawn from the mouth of Constable Rambir Singh or
the driver of the jeep except stating that they dutifully carried out the task
of admitting the injured in the hospital as directed by their superiors.
We, therefore, hold
that the appellants could not demonstrate as to any prejudice that was caused
by the non-examination of Constable Rambir Singh and the jeep driver in order
to find fault with the case of the prosecution on that score. In this context, reliance
placed upon by the learned senior counsel for the State in Tej Prakash (supra)
can be usefully referred to. In para 18 of the said decision, this Court made
it clear that all the witnesses of the prosecution need not be called and it is
sufficient if witnesses who were essential to the unfolding of the narrative
are examined. Applying the said principle to the case, it can be safely held
that the witnesses who were examined were able to unfold the narration of events
in a cogent and convincing manner and the non-examination of Constable Rambir
Singh and the jeep driver was, therefore, not fatal to the case of the
senior counsel for the appellants then contended that the appellants were not present
at all at the time of occurrence, that the appellant Sandeep was called to the
police station in furtherance of the complaint lodged by him as regards the
theft of his mother’s car on 17.11.2004 and that for that purpose when he went
to the police station, he was falsely implicated into the offence. According to
the appellants, the deceased was already involved in a case of rape committed by
one Manoj on 17.04.2004.
In that case, the complaint
preferred by the deceased was at the stage of trial before the Court of Sessions
Judge. It was contended that by misusing the stolen car of the appellant’s (Sandeep)
mother, the crime could have been committed by somebody else but unfortunately
the appellants were implicated into the offence. In order to appreciate the
said submission of the appellant-Sandeep, in the first place, when we examine
the stand that his mother’s car was stolen on 17.11.2004, we find that except
the ipse dixit statement made in the written statement to the questioning made
under Section 313 Cr.P.C. and reference to an alleged report as regards the
theft of the car, there was no other fact placed before the trial Court.
The trial Court while
dealing with the said contention has noted as under:- “…………the accused Sandeep
filed a photo copy of the report which is neither proved nor it can be taken
into consideration. No FIR has been filed nor the same is proved by any police officials.
The accused has also not examined himself or any other person in support of his
above contention. The contention of the accused Sandeep that the car was stolen
on 17.11.2004 from Geeta Colony is totally false and frivolous. ADGC contended
that father of accused Sandeep is in police department posted as Sub-Inspector and
had tried to manipulate a false story. The recovery of Indica car, namely, DL
3CR 6666 on the spot along with accused persons by Inspector D.N. Verma (PW-1)
of PS Ratanpuri with the injured Jyoti is a very important factor which proved the
involvement of the accused person and strengthens the prosecution case.”
see no reason to differ from the above conclusion of the trial Court. If the
theory of theft of Indica car is ruled out and the presence of the car on the
spot was indisputable, it should automatically follow that the car could have
been brought at that place along with the deceased, driven by accused Shashi
Bhushan along with Sandeep only in the manner narrated by the prosecution. Apart
from merely suggesting that the Indica car was stolen which was not fully
supported by any legally admissible evidence, no other case was suggested by
the accused Sandeep took a positive stand that he was not present at the place
of occurrence by relying upon a fact situation, namely, he was not responsible
for bringing the Indica car belonging to his mother at the place of occurrence
along with the deceased, the burden was heavily upon him to establish the plea
that the car was stolen on that very date of occurrence, namely, 17.11.2004
and, therefore, he could not have brought the deceased in that car at that
merely making a sketchy reference to the alleged theft of the car in the
written statement and the so-called complaint said to have been filed with the
Geeta Colony police station nothing was brought out in evidence to support that
stand. In this situation, Section 106 of the Evidence Act gets attracted. When
according to the accused, they were not present at the place of occurrence, the
burden was on them to have established the said fact since it was within their special
knowledge. In this context, the recent decision of this Court reported in –
Prithipal Singh and Ors. Vs. State of Punjab and Anr.-(2012) 1 SCC 10 can be usefully
referred to where it has been held as under in para 53 :
“In State of W.B. v.
Mir Mohammad Omar, this Court held that if fact is especially in the knowledge
of any person, then burden of proving that fact is upon him. It is impossible for
the prosecution to prove certain facts particularly within the knowledge of the
accused. Section 106 is not intended to relieve the prosecution of its burden
to prove the guilt of the accused beyond reasonable doubt.
But the section would
apply to cases where the prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding the existence of certain other
facts, unless the accused by virtue of his special knowledge regarding such
facts, failed to offer any explanation which might drive the Court to draw a different
inference. Section 106 of the Evidence Act is designed to meet certain
exceptional cases, in which, it would be impossible for the prosecution to establish
certain facts which are particularly within the knowledge of the accused……” The
contention of accused Sandeep was, therefore, bound to fail and the said
defence taken was not proved to the satisfaction of the Court.
The failure of the
accused Sandeep in not having taken any steps to prove the said fact strikes at
the very root of the defence, namely, that he was not present at the place of
occurrence. As a sequel to it, the case of the prosecution as demonstrated before
the Court stood fully established.
regard to the above conclusion that the deceased did narrate the occurrence
right from the invitation made by the accused Sandeep to her over phone at 6
p.m. under the guise of taking her to Haridwar to marry her, that after she
responded to the said call and met him from where she was picked up by both the
accused in the Indica car belonging to the mother of accused Sandeep, and the other
sequence of events, namely, the threat posed to the deceased to get the foetus aborted
and her refusal ultimately enraged the appellants to cause the assault with the
weapon, namely, jack and pana, shaving blades and chemical acid was quite
convincing and there were no good grounds to dis- believe her statement.
No other motive or
any other basis was shown to disbelieve her statement. In that respect, when we
consider the reliance placed upon the admissible portion of the statement of the
accused, we are unable to reject outrightly the entirety of the statement by application
of Section 25 of the Evidence Act. According to learned senior counsel for the
appellants, the prosecution could not have relied upon the confessional
statement of the accused implicating themselves in the offence alleged against
them by virtue of Section 25 of the Evidence Act.
against the said submission, Mr. Ratnakar Dash, learned senior counsel
appearing for the State rightly pointed out that Section 25 of the Evidence Act
can be pressed into service only insofar as it related to such of the
statements that would implicate himself while the other part of the statement
not relating to the crime would be covered by Section 8 of the Evidence Act and
that a distinction can always be drawn in the statement of the accused by
carefully sifting the said statement in order to identify the admission part of
it as against the confession part of it.
counsel drew our attention to the evidence of PW-1 where the said witness narrated
the statement made by accused Sandeep which consisted of mixture of admission
as well as confession. In that learned senior counsel pointed out that the
accused Sandeep made certain statements, namely; that Jyoti was working in a mobile
shop in Mayur Vihar, Phase I where he used to visit; that during that period around
six months before he developed physical relations with her; that the deceased
Jyoti was applying pressure on him to marry her, and that around 6 p.m. on the
date of occurrence, he called her over telephone to meet him at Laxmi Nagar red
He further told the
witness that the Indica car bearing registration NO.DL 3CR 6666 was owned by his
mother and that promising to marry her at Haridwar, he took the deceased Jyoti along
with him. He also told the witness that while the car was moving he asked the
deceased Jyoti to get the foetus aborted to which she did not agree. According
to PW-1, Sandeep also told him that he purchased two bottles of acid and four
blades at Modinagar, that when they reached Khatoli, he saw a road free from
disturbance towards which the vehicle was driven and that in that place they
were apprehended by the police.
counsel also referred to certain other statements made by Sandeep to PW-1,
namely, that on that day he planned with his friend Shashi Bhushan to eliminate
Jyoti from his life and that when Jyoti told him that she was going to reveal
the fact of carrying his child in her womb to his family members and the
police, he started beating her along with his friend. Learned senior counsel
fairly stated that while the last part of the statement would fall under the
category of confession, which would be hit by Section 25 of the Evidence Act, the
former statements which do not in any way implicate the accused to the offence,
would be protected by Section 8 of the Evidence Act and consequently the said
part of the statement was fully admissible.
We find force in the submission
of learned senior counsel for the State. It is quite common that based on
admissible portion of the statement of accused whenever and wherever recoveries
are made, the same are admissible in evidence and it is for the accused in
those situations to explain to the satisfaction of the Court as to the nature
of recoveries and as to how they came into possession or for planting the same
at the places from where they were recovered. Similarly this part of the statement
which does not in any way implicate the accused but is mere statement of facts would
only amount to mere admissions which can be relied upon for ascertaining the other
facts which are intrinsically connected with the occurrence, while at the same time,
the same would not in any way result in implicating the accused into the
that view, when we examine the statements referred to by learned senior counsel
for the State which were stated to have been uttered by the accused to PW-1, we
find the first statement only reveals the fact of accused Sandeep’s friendship developed
with the deceased Jyoti six months prior to the occurrence and the physical relationship
developed by him with her.
Accepting the said
statement cannot be held to straightway implicate the accused into the crime
and consequently it cannot be construed as a confessional statement in order to
reject the same by applying Section 25 of the evidence Act. In this context the
reliance placed upon the decision of this Court reported in Bheru Singh S/o
Kalyan Singh v. State of Rajasthan – (1994) 2 SCC 467 is quite apposite. In the
said decision, this Court in paragraph 16 and 19 has held as under:- “16. A
confession or an admission is evidence against the maker of it so long as its admissibility
is not excluded by some provision of law.
Provisions of Sections
24 to 30 of the Evidence Act and of Section 164 of the Cr.P.C deal with confessions.
By virtue of the provisions of Section 25 of the Evidence Act, a confession made
to a police officer under no circumstance is admissible in evidence against an accused.
The section deals with confessions made not only when the accused was free and
not in police custody but also with the one made by such a person before any
investigation had begun.
The expression "accused
of any offence" in Section 25 would cover the case of an accused who has
since been put on trial, whether or not at the time when he made the
confessional statement, he was under arrest or in custody as an accused in that
case or not inadmissibility of a confessional statement made to a police officer
under Section 25 of the Evidence Act is based on the ground of public policy.
Section 25 of the
Evidence Act not only bars proof of admission of an offence by an accused to a police
officer or made by him while in the custody of a police officer but also the
admission contained in the confessional statement of all incriminating facts
relating to the commission of an offence. Section 26 of the Evidence Act deals
with partial ban to the admissibility of confessions made to a person other than
a police officer but we are not concerned with it in this case. Section 27 of
the Evidence Act is in the nature of a proviso or an exception, which partially
lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes
admissible so much of such information, whether it amounts to a confession or
not, as relates to the fact thereby discovered, when made by a person accused
of an offence while in police custody.
Under Section 164 Cr.P.C.
a statement or confession made in the course of an investigation, may be
recorded by a Magistrate, subject to the safeguards imposed by the section
itself and can be relied upon at the trial.(emphasis supplied) 19. From a
careful perusal of this first information report we find that it discloses the
motive for the murder and the manner in which the appellant committed the six
murders. The appellant produced the blood stained sword with which according to
him he committed the murders.
In our opinion the first
information report Ex. P-42, however is not a wholly confessional statement, but
only that part of it is admissible in evidence which does not amount to a
confession and is not hit by the provisions of Section 25 of the Evidence Act. The
relationship of the appellant with the deceased; the motive for commission of the
crime and the presence of his sister-in-law PW11 do not amount to the
confession of committing any crime. Those statements are non-confessional in
nature and can be used against the appellant as evidence under Section 8 of the
Evidence Act. The production and seizure of the sword by the appellant at the
police station, which was blood stained, is also saved by the provisions of the
statement that the sword had been used to commit the murders as well as the
manner of committing the crime is clearly inadmissible in evidence. Thus, to the
limited extent as we have noticed above and save to the extent only the other
portion of the first information report Ex. P-42 must be excluded from evidence
as the rest of the statement amounts to confession of committing the crime and is
not admissible in evidence. (Emphasis supplied)
submission made on behalf of the appellants was that there was inordinate delay
in sending the express report as well as in altering the offence. The crime was
initially registered as one under Section 307, IPC and subsequently altered as
one under Section 302, IPC. It was pointed out that immediately after
registration of the FIR based on the complaint of PW1 at 23.15 hours on 17.11.2004,
the crime was registered under Section 307, etc., the same came to be altered only
on 20.11.2004 even though the factum of the death of the deceased was intimated
by PW-6 on 19.11.2004 itself by 1 p.m.
It was further contended
that the registration of the complaint after its alteration on 20.11.2004, the
express report was forwarded to the Magistrate only on 25.11.2004 which was in derogation
of the prescription contained in Section 157, Cr.P.C. Based on the above
discrepancies, it was contended that the purported delay was only to antedate the
FIR to suit the convenience of the prosecution. The submission is on the
footing that the prosecution developed the case for implicating the accused while
the accused were not really involved in the offence and, therefore, they took their
own time to register the complaint.
In order to support the
said stand, learned counsel also went on to rely upon the statement of PW-1 as compared
to Soubir Singh (PW-5), that while PW-1 stated in his evidence that they
reached back the police station at around 23.45 hours, PW-5 in whose presence
the complaint was stated to have been registered mentioned the time as 23.15
hours. We do not find any serious infirmity based on the said statement.
When the preference
of the complaint by PW-1 and its registration cannot be doubted in the absence of
any flaw in its preference and registration, minor difference in the timing
mentioned by the witnesses cannot be taken so very seriously to hold that the very
registration of the complaint was doubtful. In fact PW-1 in his chief examination
in another place has also referred to the registration of the FIR at 23.15
hours though the appellants counsel wanted to rely on the statement of the said
witness to the effect that they all reached back the police station at around
Apparently, there appears
to be some mistake in recording the timing as stated by PW-1. Therefore, nothing
turns much on the said submission of learned counsel for the appellants. As far
as the contention that there was considerable delay in altering the offence
from Section 307, IPC to Section 302, IPC was concerned the said submission was
made by referring to the evidence of the Doctor (PW-6) who conducted the
post-mortem that by 10.55 p.m. on 17.11.2004 itself the death of the deceased
was confirmed when the victim was admitted to the hospital which was also known
to Constable Rambir Singh who accompanied the victim to the hospital.
It was also pointed out
that PW-6 sent the intimation about the death of the deceased to the police
station at 23.10 hours while keeping the body in the mortuary. To the above
submission, on behalf of the State, it was sought to be explained that even
though the death intimation was dated 17.11.2004 itself, since the post-mortem
was held only on 19.11.2004 and the post- mortem report was received on
20.11.2004 the offence came to be altered based on the post-mortem report on 20.11.2004.
Though the said explanation
cannot be said to be fully satisfactory, it will have to be stated that when
there was no serious infirmity in the registration of the FIR based on the
complaint on 17.11.2004 (i.e.) immediately after the occurrence and every
follow-up action was being taken meticulously, we hold that such a minor
discrepancy in the timing of alteration of the crime by itself cannot be held
to be so very serious to suspect the registration of the crime or go to the
extent of holding that there was any deliberate attempt on the part of the
prosecution to ante date the FIR for that purpose.
We have already held
that the accused miserably failed to substantiate the stand that he was not
present at the spot of occurrence whereas he was really apprehended on the spot
by the prosecution witnesses and was brought to the police station from whom other
recoveries were made. The submission by referring to certain insignificant
facts relating to the delay in the alteration of crime cannot be held to be so
very fatal to the case of the prosecution.
was also feebly contended on behalf of the appellants that the express report
was not forwarded to the Magistrate as stipulated under Section 157, Cr.P.C. instantaneously.
According to learned counsel FIR which was initially registered on 17.11.2004 was
given a number on 19.11.2004 as FIR No.116 of 2004 and it was altered on 20.11.2004
and was forwarded only on 25.11.2004 to the Magistrate.
As far as the said
contention is concerned, we only wish to refer to the reported decision of this
Court in Pala Singh and Another v. State of Punjab - AIR 1972 SC 2679 wherein
this Court has clearly held that where the FIR was actually recorded without
delay and the investigation started on the basis of that FIR and there is no
other infirmity brought to the notice of the Court then, however improper or
objectionable the delay in receipt of the report by the Magistrate concerned,
in the absence of any prejudice to the accused it cannot by itself justify the
conclusion that the investigation was tainted and prosecution insupportable.
Applying the above
ratio to the case on hand, while pointing out the delay in the forwarding of
the FIR to the Magistrate, no prejudice was said to have been caused to the
appellants by virtue of the said delay. As far as the commencement of the
investigation is concerned, our earlier detailed discussion discloses that
there was no dearth in that aspect. In such circumstances we do not find any
infirmity in the case of prosecution on that score. In fact the above decision was
subsequently followed in Ishwar Singh v. State of Uttar Pradesh-AIR 1976 SC 2423
and Subhash Chander etc. v. Krishan Lal & Ors. -AIR 2001 SC 1903.
submission made on behalf of the appellant was that there were serious
infirmities in preserving and testing of the sample of the foetus and the
consequent DNA report implicating the accused Sandeep to the destruction of the
foetus whose biological father was found to be the accused himself. The
infirmity pointed out was that the sample of the foetus of the child was taken
as early as on 17.11.2004 while it was sent for forensic lab only on 25.01.2005
and that since there was a long gap in between, the prosecution ought to have
disclosed as to how the samples were properly preserved in order to ensure proper
test to be conducted for ascertaining the correctness of its outcome.
Though such submission
was made with some emphasis, it was not pointed out as to what was the nature
of procedure to be followed in regard to the preservation of the samples taken
apart from what was followed in taking the samples by the prosecution. It is
not in dispute that at the time of post- mortem, when the foetus was
discovered, the same was preserved by taking two samples one in the Formalin solution
and the other one by ice preservation. It is borne out by record that there was
an FSL report dated 5.1.2005 as per which the SSP of Muzaffarnagar was informed
that the foetus which was preserved in Formalin solution was not accepted since
laboratory had no standard protocol for extracting the amplifiable DNA of
Formalin preserved tissues.
in the evidence of PW-10 Junior Scientific Officer of Central Forensic
Laboratory, Chandigarh, it was brought out that the blood samples of accused
Sandeep and the foetus received by him on 27.01.2005 and that necessary test
was conducted based on which a report on 13B/1, 13A/2 and 13C/3 were forwarded
which confirmed that the accused Sandeep was the biological father of the
foetus. He also confirmed in the cross examination that the earlier sample of foetus
preserved in Formalin solution received on 05.01.2005 was returned back without
opening the seal as the same was kept in Formalin solution and standard protocol
analysis was not available in the laboratory.
He further confirmed
that when the sample on second time was received along with the letter dated
25.1.2005, the same was preserved in ice separately which they were able to
test in their laboratory for finding out the result. It has also come in his evidence
that the collection of samples, preservation of samples and transportation of
samples if not carefully done, it may affect the result, but in the case on hand
the result reported by him was not based on wrong facts. In the light of the said
expert evidence of the Junior Scientific Officer it is too late in the day for
the appellant-Sandeep to contend that improper preservation of the foetus would
have resulted in a wrong report to the effect that the accused Sandeep was
found to be the biological father of the foetus received from the deceased Jyoti.
As the said submission
is not supported by any relevant material on record and as the appellant was
not able to substantiate the said argument with any other supporting material,
we do not find any substance in the said submission. The circumstance, namely,
the report of the DNA in having concluded that accused Sandeep was the
biological father of the recovered foetus of Jyoti was one other relevant
circumstance to prove the guilt of the said accused.
were certain other submissions made on behalf of the appellants, namely, the
seizure of materials from the car were highly doubtful etc. We do not find any
serious lacunae pointed out in support of the said submissions.
As rightly submitted
on behalf of the learned senior counsel for the State, the discrepancies were
minor in character and we do not find any serious infirmity based on the said discrepancies
argued on behalf of the accused/appellants. In the light of the above conclusion,
we find that the chain of circumstances alleged against the appellants was conclusively
proved without any missing link. We, therefore, do not find any scope to
interfere with the conviction arrived at against the appellants by the trial
Court as confirmed by the Division Bench of the High Court.
therefore, do not find any scope to interfere with the sentence of life and other
sentences imposed against accused Shashi Bhushan under Section 302, IPC read
with Section 34, IPC by the High Court and the other sentences under Section
316 read with Section 34 IPC.
we come to the question of sentence of death as imposed by learned Sessions
Judge, which was also confirmed by the Division Bench as against the accused
Sandeep, the same will have to be examined in the light of the principles laid
down in the various decisions of this Court right from Bachan Singh v. State of
Punjab [1980 (2) SCC 684], Machhi Singh v. State of Punjab [AIR 1983 SC 957],
Swamy Shraddananda v. State of Karnataka [2008 (13) SCC 767], Santosh Kumar Satishbushan
Bariyar v. State of Maharashtra [2009 (6) SCC 498], Mohd. Farooq Abdul Gafur v.
State of Maharashtra [2010 (14) SCC 641], Haresh Mohandas Rajput v. State of
Maharashtra [2011(12) SCC 56], State of Maharashtra v. Goraksha Ambaji Adsul
[AIR 2011 SC 2689]. The principle of ‘rarest of rare case’ enunciated in Bachan
Singh(supra) has been restated and emphasized time and again in the above
referred to decisions. In order to appreciate the principle in a nutshell, what
is stated in Haresh Mohandas Rajput (supra) can be usefully referred to which
reads as under:-
“20. The rarest of
rare case” comes when a convict would be a menace and threat to the harmonious
and peaceful coexistence of the society. The crime may be heinous or brutal but
may not be in the category of “the rarest of the rare case”. There must be no reason
to believe that the accused cannot be reformed or rehabilitated and that he is
likely to continue criminal acts of violence as would constitute a continuing
threat to the society.
The accused may be a menace
to the society and would continue to be so, threatening its peaceful and
harmonious coexistence. The manner in which the crime is committed must be such
that it may result in intense and extreme indignation of the community and shock
the collective conscience of the society. Where an accused does not act on any spur-of-the-
moment provocation and indulges himself in a deliberately planned crime and
meticulously executes it, the death sentence may be the most appropriate
punishment for such a ghastly crime.
The death sentence
may be warranted where the victims are innocent children and helpless women. Thus,
in case the crime is committed in a most cruel and inhuman manner which is an extremely
brutal, grotesque diabolical, revolting and dastardly manner, where his act affects
the entire moral fibre of the society e.g. crime committed for power of
political ambition or indulging in organized criminal activities, death
sentence should be awarded.”
It is, therefore,
well-settled that awarding of life sentence is the rule, death is an exception.
The application of the ‘rarest of rare case’ principle is dependant upon and differs
from case to case. However, the principles laid down earlier and restated in the
various decisions of this Court referred to above can be broadly stated that in
a deliberately planned crime, executed meticulously in a diabolic manner,
exhibiting inhuman conduct in a ghastly manner touching the conscience of
everyone and thereby disturb the moral fibre of the society would call for
imposition of capital punishment in order to ensure that it acts as a
While we are convinced
that the case of the prosecution based on the evidence displayed, confirmed the
commission of offence by the appellants, without any iota of doubt, we are of
the considered opinion, that still the case does not fall within the four
corners of the principle of the ‘rarest of the rare case’.
the plight of the hapless young lady, who fell a victim to the avaricious
conduct and lust of the appellant Sandeep, the manner in which the life of the
deceased was snatched away by causing multiple injuries all over the body with all
kinds of weapons, no leniency can be shown to the said appellant. In the
decision reported in Swamy Sharaddananda (supra) even while setting aside the
sentence of death penalty and awarding the life imprisonment, it was explained
that in order to serve ends of justice, the appellant therein should not be released
from the prison till the end of his life. Likewise, in Ramraj v. State of
Chhattisgarh [AIR 2010 SC 420] this Court, while setting aside the death
sentence, directed that the appellant therein should serve a minimum period of
20 years including the remissions and would not be released on completion of 14
years of imprisonment.
note of the above decision and also taking into account the facts and
circumstances of the case on hand, while holding that the imposition of death
sentence to the accused Sandeep was not warranted and while awarding life
imprisonment we hold that accused Sandeep must serve a minimum of 30 years in jail
without remissions before consideration of his case for premature release.
Appeal No.1651/2009 and the Criminal Reference No.19 of 2007 thus stand
disposed of modifying the punishments imposed on accused Sandeep as one for
life and he should undergo the said sentence of life for a fixed period of 30
years without any remission to be allowed. The Criminal Appeal Nos.1425-26/2011
of accused Shashi Bhushan stand dismissed.
[Dr. B.S. Chauhan]
[Fakkir Mohamed Ibrahim Kalifulla]