Full Judgment Text
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CASE NO.:
Appeal (crl.) 824 of 2002
PETITIONER:
Om Prakash @ Raja
RESPONDENT:
State of Uttaranchal
DATE OF JUDGMENT: 05/12/2002
BENCH:
S. Rajendra Babu & P.Venkatarama Reddi.
JUDGMENT:
J U D G M E N T
P. Venkatarama Reddi, J.
The 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.
One of 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 months earlier.
According 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 :
The 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
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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.
The 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.
In the 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.
Then, 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
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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’.
Coming 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 :
Out of 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.
Though 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.
Deceased 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.
He died due to shock and haemorrhage as a result of ante
mortem injuries.
Deceased Smt. Bishna Mathur was aged about 65 years.
As 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.
Five 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.
It is 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.
Finally it is submitted that in any case, death sentence is not
warranted.
The 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.
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No 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.
It follows from this sequence of events that there exists an inextricable
nexus between the accused and the murderous assault on the victims.
There 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.
The 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.
The 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.
When 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
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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.
The 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.
Then, he targeted the ladies who were in the bath-rooms. When Brig.
Khanna 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.
It is 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.
We do not think that the criticism of his evidence by the learned
amicus curiae based on the alleged improbabilities is justified.
Another 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 this.
As 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
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committed the crime. Such evidence is available in abundant measure
in the instant case.
Regarding 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.
In 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 dismissed.
We must place on record our appreciation of the valuable assistance
rendered by the learned senior counsel Dr. Syamala Pappu who appeared as
amicus curiae.