STATE vs. OM PRAKASH AND OTHERS

IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 24 March, 2014
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Decided on: 17 April, 2014

DEATH SENTENCE REF. No. 5 of 2012
STATE ..... Petitioner
Through: Mr. Lovkesh Sawhney, APP with
Inspector Rajesh Kumar, PS Swaroop
Nagar.
versus
OM PRAKASH AND OTHERS ..... Respondent
Through: Mr. Sumeet Verma, Advocate.
AND
CRL. APPEAL No. 288 of 2013
SURAJ ..... Appellant
Through: Mr. Sumeet Verma, Advocate.
versus
STATE ..... Respondent
Through: Mr. Lovkesh Sawhney, APP.
AND
CRL. APPEAL No. 274 of 2013
SANJEEV ..... Appellant
Through: Mr. Sumeet Verma, Advocate.
versus
STATE ..... Respondent
Through: Mr. Lovkesh Sawhney, APP.
AND
CRL. APPEAL No. 156 of 2013
MAYA ..... Appellant
Through: Mr. Joginder Tuli with Mr. Ashu
Kumar Sharma, Mr. Tarun Nanda and
DSR No. 5 of 2012, Crl.A. Nos. 105, 156, 274, 288 & 460 of 2013 Page 1 of 41




Mr. Vikhyat Bhagi, Advocates.
versus
STATE ..... Respondent
Through: Mr. Lovkesh Sawhney, APP.
AND
CRL. APPEAL No. 105 of 2013
KHUSHBOO @ INDERKALA ..... Appellant
Through: Mr. Sumeet Verma and Ms. Anu
Narula, Advocates.

versus
STATE ..... Respondent
Through: Mr. Lovkesh Sawhney, APP.
AND
CRL. APPEAL No. 460 of 2013
OM PRAKASH ..... Appellant
Through: Mr. Sumeet Verma, Advocate.
versus
STATE (G.N.C.T. OF DELHI) ..... Respondent
Through: Mr. Lovkesh Sawhney, APP.

CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
HON'BLE MS. JUSTICE MUKTA GUPTA
Mukta Gupta, J.
1. Criminal Appeals No. 105, 156, 274, 288 and 460 of 2013 arise out of the
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impugned judgment dated 1 October 2012 of the learned Additional Session
Judge in Sessions Case No. 56 of 2010 whereby all the five Appellants were
convicted for offences under Sections 302/323/34 IPC and the order on
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sentence dated 5 October, 2012 awarding each of the Appellants the death
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sentence. By the Death Reference No. 5/2012 the State has sought
confirmation of the death sentence.

2. The Appellants have been convicted for offence under Section 302 read
with Section 34 IPC for having murdered Yogesh and Asha in furtherance of
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their common intention on the 14 June, 2010 between 1 and 5 am at House
No. C-101, Gali No. 3 I.P. Colony, Delhi. The Appellants Suraj and Maya are
the parents of the deceased Asha. Appellant Om Prakash and Khushboo are
the uncle and aunt of Asha and Appellant Sanjeev, her cousin, son of Om
Prakash.

The testimony of Rakesh PW 4
3. PW4 Rakesh is the Complainant, maker of the FIR, and the prosecution
case unfolds from his complaint. He has stated that he was a tailor by
profession and his brother-in-law Yogesh @ Bhopu, the deceased used to
drive a Maruti Van No. DL 2CL 6133 which was owned by PW 4. Yogesh,
whose parents had passed away, was living in a house adjoining that of PW
4. Yogesh was having an affair with Asha, daughter of Appellants Suraj and
Maya, resident of C-409, 410, Gokul Puri. About 24-25 days prior to the day
of alleged incident Asha along with her mother Maya and maternal aunt
( mausi ) was passing in front of Yogesh‟s house, when Asha stated that she
would marry Yogesh @ Bhopu and live in his house. On this Maya is stated
to have scolded Asha. In the meantime PW4 Rakesh came out. Suraj, Asha‟s
father, also reached there. PW4 Rakesh also called Yogesh outside and asked
Asha whether she wanted to marry Yogesh. Asha then stated in the presence
of her parents and maternal aunt, “ Main Shaadi Karungi to Isi Se Karungi ”.
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On hearing this Suraj and Maya started beating Maya and the Appellant Suraj
threatened Yogesh that if he talked with Asha he would be killed.

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4. On 13 June, 2010 at around 10 to 10.30 pm when PW4 returned home
from his workplace, Yogesh @ Bhopu told him that he had received a
telephonic call from Asha asking him to come to the house of her uncle Om
Prakash Saini situated at Indra Prastha Colony, Gali No. 3, C-Block, House
No. 101 for talks of marriage. The two of them took dinner and thereafter at
around 11 to 11.30 pm left in the Maruti Van No. DL 2CL 6133. They
reached the house of Om Prakash at around 12 midnight to 12.30 am. The
door was opened by Om Prakash who called both of them inside. Inside the
house Suraj, Maya, Khushboo, Sanjeev s/o Om Prakash and Asha were also
present. They started talking and during the said conversation the other side
raised the issue of caste stating that they were Saini and Yogesh and PW4
were Jatavs. Thereafter, Om Prakash and Suraj started abusing and
manhandling Rakesh and Yogesh. After hearing the noise some neighbours
collected outside the house of Om Prakash. Thereafter, Yogesh and PW4 ran
out of the house. PW4 ran in the direction in which the van was parked
thinking that Yogesh would follow. However, Yogesh ran in the opposite
direction. The keys of the van were with Yogesh and PW4 did not know how
to drive. PW4 stopped at a distance from the van and waited for Yogesh.
After waiting for a considerable amount of time, when Yogesh did not arrive,
PW 4 thought that Yogesh might have returned home by another way.
Therefore, Rakesh PW 4 came to the main road, hired a TSR and reached
home. The next morning PW 4 woke up and went to Yogesh‟s house and
called him. Yogesh‟s aunt, who used to reside on the ground floor, stated that
Yogesh had not returned home the previous night. PW 4 noticed that
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Yogesh‟s van was also not parked outside the house. He immediately went
to the house of Om Prakash where he found a crowd in the street. He was
informed that in the night a boy and a girl had been murdered there. PW 4
has proved his statement Ex. PW4/A on the basis of which FIR was
registered.

5. Mr. Sumeet Verma, Mr. Joginder Tuli and Ms. Anu Narula, learned
counsels for the Appellants, have assailed the testimony of PW4 on the
ground that he was not an eye witness. If indeed PW 4 was with Yogesh it
was not natural for him to have left Yogesh and run away. There was
material improvement in the testimony of PW 4 in as much as in the FIR he
had not stated that the issue of caste was raised. However, before the trial
Court, PW 4 stated that during the conversation the other side had raised the
issue of caste. Thus the testimony of PW 4 could not be relied upon.

The testimony of Umesh PW 16
6. Besides PW4, another material prosecution witness is PW16 Umesh
Kumar. PW 16 deposed before the trial Court that he was residing at C
Block, Gali No. 3, Indraprastha Colony, Burari, Delhi along with his family
and engaged in the business of motor parts. On the intervening night of
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13 /14 April 2010, at around 12 midnight, PW 16 heard some noise coming
from the neighbouring house occupied by Om Prakash and his family. A
number of residents from the locality had gathered there and PW 16 also
reached there. The main door of the house was closed but not locked. PW 16
entered the house and saw that the Appellant Sanjeev and Suraj were giving
beatings to one boy. Sanjeev pushed PW 16 due to which his specs fell down.
Appellant Om Prakash stated “ Yeh Hamara Ghar Ka Mamala Hai, Aap Log
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Jaayen ”. As PW 16 came out of the house of the Appellants, he found that
two ladies, Khushboo and Maya, were sitting outside the house. PW 16
clarified that when he entered the house the said two ladies were standing
outside and one girl was thrown by Om Prakash on the hand pump. The girl
became unconscious. Nobody helped her and she remained lying there. The
Appellant Om Prakash again asked PW 16 to leave. After some time the
cries which were coming from that house subsided and PW 16 returned to his
house. In the morning PW 16 found that the house of Om Prakash was
locked from outside. His wife Satyawati (DW 8) informed him that all the
five persons who were there on the previous night had gone somewhere on
motorcycles and the whereabouts of that boy and girl were not known. PW
16 found an unclaimed red colour Maruti van parked outside the street on the
road. Someone informed the police. When the police was inquiring one
person named Rakesh (PW 4) met the police officials and informed them
about the incident. From PW 4, PW 16 came to know the name of the boy
who was beaten and that he was wearing black coloured clothes. When PW
16 entered the house with the police, in the internal room he found the dead
bodies of the boy, whom he had seen being beaten by Appellants Sanjeev and
Suraj, and of the girl whom he had seen being thrown on the hand pump by
the Appellant Om Prakash. PW 16 also stated that in his presence the police
lifted the electric wire, one danda in broken condition, one plastic pipe which
was about three feet in length, one piece of floor. PW 16 also identified his
signatures on the seizure memos.

Submissions of counsel for the Appellants
7. The testimony of PW 16 has been assailed by the Appellants on the
ground that he is an introduced witness. Even though PW 16 was an eye
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witness and available on the spot prior to Rakesh PW 4 reaching the spot, the
FIR was not recorded on his statement but on the statement of PW4 Rakesh.
Further, PW 16 was not a reliable witness as his wife DW8 has herself stated
that PW 16 was a drunkard. Moreover in his cross-examination, PW16
admitted that he did not witness the seizure of the blood stained underwear
and the keys of the Maruti van though he had signed the seizure memos.

8. Besides challenging the statements of PWs 4 and 16, learned counsel for
the Appellants have submitted that the Appellants‟ plea of alibi which has not
been duly considered by the learned trial Court. Their conviction was based
entirely on the testimonies of PWs 4 and 16 who were not reliable witnesses.
The weapons of offence were not recovered. The electric wires, sanitary pipe
and danda recovered at the spot were all planted. It is stated that the
Appellants Suraj and Om Prakash allegedly got recovered a pair of ropes
from Ashram. However, the present case was not one of strangulation of
either of the two deceased. Therefore, the said recovery did not relate to the
offence committed.

9. As regards the precise role of Appellants Khushboo and Maya, learned
counsel appearing for them pointed out that even according to PW16, they
were standing outside and did not participate in the alleged offence and thus
they could not been convicted with the aid of Section 34 IPC as no act in
furtherance of a common intention was done by them. Reliance was placed
on the decision in Rakesh v. State of U.P. 2001 SCC Crl. 601 . The finding of
the learned trial Court that the two ladies were standing on vigil was
unfounded as the two ladies did not make any effort to stop PW 16 or other
persons from entering the house.
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Submissions of the APP
10. Mr. Lovkesh Sawhney, learned Additional Public Prosecutor („APP‟) for
the State, on the other hand contended that the motive for the crime had been
explained by PW4 in the FIR itself wherein it was stated that when 20-25
days prior to the incident Asha expressed her desire to marry Yogesh, she
was beaten and Yogesh was threatened to be killed. The Appellant Om
Prakash in his statement under Section 313 Cr PC admitted that after the
incident Asha was shifted from Gokul Puri to his house at Swaroop Nagar.
Mr. Sawhney submitted that there was no material improvement in the
testimony of PW4. PW4 had narrated the events with reference to the
approximate time of their occurrence. The time of death given in the two
post-mortem reports, coincided with the time immediately after PW4 ran
away from the Appellant Om Prakash‟s house and did not meet Yogesh
thereafter.

11. Mr. Sawhney submitted that PW16 Umesh was a natural and reliable
witness. His version was supported by DW8, his wife. Though DW8 was
examined as a defence witness to discredit PW16, she corroborated the
version of PW16 that there was a commotion in the house of Om Prakash at
night and when PW16 entered the house of Appellant he was given a blow
due to which his specs broke. The post-mortem report showed the brutal and
barbaric manner in which both Yogesh and Asha were murdered. They were
tied with putting electric wires around their arms and were electrocuted.
Embedded electrical wires were found in the arms of both the deceased. PWs
14 and 19 also spoke about the commotion at the house of Appellant Om
Prakash. PW14 had called the Police by making a call at 100 number.
Relying upon the decision in Ratan Singh v. State of H.P. (1997) 4 SCC 161
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it was submitted by Mr. Sawhney that minor improvements in the testimony
of the witnesses do not affect their credibility. Further, the version of eye-
witness PW16 was corroborated by PW4 and DD No. 7A.

12. Commenting on the role of Maya and Khushboo, Mr. Sawhney submitted
that even an illegal omission would attract Section 34 IPC. From the
evidence on record it is apparent that Appellant Khushboo and Maya
deliberately refrained from saving the deceased and thus there is no illegality
in the order of learned Trial Court convicting both of them for offence under
Section 302 IPC read with Section 34 IPC. The doctor who conducted post-
mortem had given an opinion that the injuries were possible with the plastic
rod recovered from the spot. The gruesome manner in which the murders
were committed was evident from the fact that the accused tied a screw
driver in the salwar of the deceased Asha. Mr. Sawhney submitted that the
Appellants failed to discharge of proving their plea of alibi beyond
reasonable doubt. The testimony of the defence witnesses speaking about the
presence of Appellants Maya, Khushboo and Sanjeev at the sister-in-law‟s
house in relation to her grandson‟s birthday was wholly unbelievable. The
defence witness DW1 Jai Narain could not prove the alibi of Appellants Om
Prakash and Suraj. An adverse inference was required to be drawn against
the Appellants under Section 106 of the Evidence Act as the two dead bodies
were found in their house which was found locked. The key of the house was
recovered from Appellant Sanjeev.

Last Seen
13. In analyzing the evidence, the Court would first like to deal with the
various circumstances as sought to be established by the prosecution. The
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conduct of PW4 is assailed to be unnatural on the ground that he left his
brother-in-law Yogesh at the spot, came back alone and slept without
checking whether the deceased Yogesh had returned or not. It is stated that
PW4 is a planted witness and was not a witness who had seen the deceased
Yogesh and Asha last in the company of the Appellants.

14. A perusal of the testimony of PW4 demonstrates that while Om Prakash
and Suraj were abusing Rakesh and Yogesh, they started manhandling them
as well. On this, Rakesh and Yogesh ran out of the house. However, the two
ran in opposite directions. PW4 ran in the direction where the van was parked
and stopped at a distance from the van. However, Yogesh ran in a different
direction. Having waited for Yogesh for a considerable time, and when he did
not come, PW4 went home after reaching the main road and taking a TSR as
he thought that Yogesh would have reached his house from another direction.
PW 4 witness has given the sequence of events along with the approximate
time which would show that PW4 and the deceased Yogesh reached the
house of the Appellant Om Prakash at around 12 to 12.30 am and thereafter
had a discussion. It is thus apparent that PW4 reached his house a few hours
past midnight and obviously went off to sleep. He got up in the morning at
around 8 am. PW 4 has clarified that he slept till late. On waking up he found
that Yogesh had not reached his house. So PW 4 went to the house of Om
Prakash at Swaroop Nagar. It will be recalled that neither the keys of the van
were with PW 4, nor did he know driving. Therefore, in order to save
himself, PW 4 went outside and waited at a distance. There was nothing
unnatural or unbelievable in this conduct of PW4. Rather his version that he
was present at night with Yogesh at the house of Om Prakash is reinforced by
the fact that on coming to know that Yogesh had not reached home at night
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and finding that the van was also not there, PW 4 immediately rushed to
Swaroop Nagar to the house of Om Prakash where he found a crowd and the
dead bodies in the house of Om Prakash. Had PW 4 not gone to the house of
Om Prakash the previous night there was no way it would have occurred to
him to go the house of Om Prakash to find out about Yogesh. Nothing has
been elicited from PW 4 in his cross-examination that would throw any doubt
on the veracity of his version. The Court is of the view that evidence of PW 4
fully proves beyond reasonable doubt that on the night of the occurrence, the
deceased Asha and Yogesh were last seen in the company of the accused till
the time PW 4 left the spot.

Eye witnesses’ evidence
15. The evidence of last seen is also in the form of the eye witness PW16.
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He has stated that in the mid night of 13 /14 June 2010, there was noise in
the house of Om Prakash and on hearing this many people collected at the
spot. PW 16 found Maya and Khushboo standing outside. The door was
closed but not locked. He went inside and saw Om Prakash hitting Asha and
throwing her on the hand pump. He saw Suraj and Sanjeev beating Yogesh.
PW16 is a neighbor of Appellant Om Prakash, residing in the vicinity. It is
but natural that on hearing the noise in the house of Om Prakash, he was one
of the persons who reached Om Prakash‟s house.

16. Though the defence examined DW8, the wife of PW16, to discredit him
she, in fact, corroborated his version. In her testimony DW8 has stated that
her husband was a habitual drunkard and on the date of murder he had
consumed liquor at about 4 pm. He was kept inside the house. In the night
when PW 16 heard loud noise coming from the house of Om Prakash, he
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went outside and entered the house of Om Prakash along with 4-5 other
persons, but she did not know the names of those 4-5 persons. Somebody hit
PW 16 due to which his spectacles broke. Thereafter DW 8 took PW 16 from
the house of Om Prakash, bolted the door and went to sleep. Thus DW8
confirmed the presence of PW16 inside the house of Om Prakash after the
noise started coming.

17. The testimony of PW16 is also assailed on the ground that despite the
fact he was an alleged eye witness no FIR was registered at his instance.
PW14 on whose call to PCR DD No. 7B was recorded has stated that in the
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morning of 14 June, 2010 he was told by PW 16 and some other public
persons that a quarrel took place at night in the house of Om Prakash wherein
a boy and a girl were beaten. So PW14 informed the police by making a call
on the 100 number from his mobile No. 9582556631. While the police were
making inquiries, two witnesses i.e. PW4 Rakesh and PW16 Umesh were
available to them. PW16 Umesh was a witness to the beating of the girl and
boy at night whereas PW4 Rakesh knew about all the preceding facts. Thus
when two witnesses were available to the police, no error can be said to be
committed by the police in registering the FIR on the statement of one of
them, i.e., Rakesh and recording the statement of Umesh immediately
thereafter under Section 161 Cr PC. Further, the purpose of recording FIR is
only to set the investigation into motion. The non-recording of the FIR on the
statement of Umesh cannot lead to the inference that he was not an eye-
witness as his statement under Section 161 Cr PC was recorded on the same
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date, that is, 14 June, 2010. Further PW16 is also a witness to the seizures
done from the spot.
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18. PW16 has stated that he saw Om Prakash throwing the girl at the hand
pump. During the seizures done at the spot a bunch of hair were seized from
the hand pump and as per the FSL report the said bunch of hair matched with
the hair of deceased Asha thereby corroborating the version of PW16 that girl
Asha was thrown on the hand pump. Hence from the evidence on record the
prosecution has proved beyond reasonable doubt that the Appellants Om
Prakash, Suraj and Sanjeev were beating both the deceased Yogesh and Asha
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on the intervening night of 13 /14 June, 2010 when Maya and Khushboo
were standing outside.

Scene of Occurrence
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19. SI PW19 ASI Krishan Kumar has stated that on 14 June, 2010 at about
8.00 AM he received DD No. 7B to the effect that “IP Colony, Gali No. 20,
C Block, Kathia Baba Ashram Ke Paas Kal Raat Jhagda Huwa Tha .
Makaan Band Hai. Ghar Ke Saamne Ek Gaadi No. DL 2C M 6133 Laawaris
Khadi Hai ”. He reached at the spot, found a crowd there and was informed
that there was quarrel at House No. C-101, Gali No. 3, IP Colony. PW 19
was also informed that all the residents had gone to some unknown place
early morning after putting a lock on the house. A red colour Maruti van was
found parked at the junction of Gali No. 3 and Gali No. 20. The residents
stated that it did not belong to that area. PW 19 then called the SHO. On the
SHO reaching the spot, PW 19 was instructed to enter the house through the
roof. When he reached inside the House No. 101, in the last room he found
two dead bodies, one of a boy and other of a girl lying on the floor.
Thereafter, the lock of the house was broken open and the lock was seized.
Besides the two dead bodies, the police found some electrical wires lying
underneath the bed, one mobile phone near the dead body, one mobile phone
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on the top of the fridge, and one key ring having two keys was lying near the
male dead body. When they came outside Umesh met them and told them
about the scuffle on the previous night. In the meantime, Rakesh also came
and informed them about the entire incident of the previous night, of how he
had come with his brother-in-law Yogesh who had not reached home and
thus he had come back again to find out about Yogesh. Rakesh was taken
inside; he identified the body of the boy as that of Yogesh and the body of
girl as that of Asha.

Seizures from the Spot
20. PW14 ACP Pankaj Kumar Singh and PW19 ASI Krishan Kumar have
both stated that when they went inside the house they found two dead bodies
lying with their faces downwards, heads towards the wall and feet towards
bed. On inspection of dead bodies of the boy and the girl they found round
burnt marks above the left arm and above the ankle of the left leg. They also
found marks from beating on the bodies. At the spot two black coloured and
two yellow and red coloured electric wires, with some part of the rubber
insulation peeled off from the black wires, were seized. A Nokia mobile
phone was also lying near the dead body of Yogesh which was in a switched
off condition. It was identified by Rakesh to be that of Yogesh. One key ring
with two keys was also found near the dead body of Yogesh which Rakesh
identified to be the keys of Maruti van bearing No. DL 2C L-6133. One
blood soaked underwear was also lying at the spot. One screw driver having a
U shape bent on one side with yellow insulation was found entangled with
the string of the Salwar of Asha which was also seized. About 8-10 broken
pieces of dandas were lying in the gallery, which were also seized. Some
plastic sanitary pipes fitted with metallic sanitary fitting were also found
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lying in the gallery and were also seized. Some hair found entangled in the
base of hand pump installed just outside the house was also seized.

Medical Evidence
21. The postmortem of the body of the deceased Yogesh was conducted by
PW12 Dr. Sudesh Kumar. As per the postmortem report Ex.PW12/A injuries
1 to 3 were caused by electric current, injury no. 4 was caused by a blunt
cylindrical weapon and injuries No. 5 to 7 were caused by the impact of
blunt force. It was opined that electro thermal injuries were sufficient to
cause death in the ordinary course of nature. All injuries were consistent with
the beatings/assault. The cause of death was opined to be cardiac fibrillation
and respiratory failure, as a result of electrocution. All the injuries were ante
mortem in nature and the death was homicidal. PW12 also opined that the
time since death was 38 hours. The postmortem on the body of Yogesh was
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conducted on 15 June, 2010 at 4 pm. Thus as per this opinion, Yogesh died
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around 2 am on 14 June, 2010.

22. PW12 also opined that the injuries 1 and 2 could have been caused by
black wire in packet no. 2 and was consistent with fastening. Injury 3 could
have been caused by the yellow and red electric wire. Injury 4 was possible
by the PVC pipe in packet no. 3 or a similar such object. Injuries 5, 6 and 7
were possibly caused by the wooden pieces in Packet No. 1 or similar such
things. He exhibited his subsequent opinion as PW12/B.

23. In his cross-examination PW12 also stated that when a naked wire came
in contact with skin and is used for electrocution, the same would turn black
and in the present case he found that open ends of the wire which were in
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touch with the skin were black. During the postmortem he found the wire
wrapped on the right arm of the deceased. They were all black wires and one
double core wire of red and yellow with exposed ends which were removed
from the body before the postmortem.

24. Dr. V.K. Jha PW17 conducted the post-mortem on deceased Asha and
exhibited his report as Ex. PW17/A. He found the following injuries on Asha:
1. Lacerated punctured wound over inner aspect of right
forearm just below the elbow joint of size 1 CM X 1 CM,
margins were blackened and hard to palpate with dept of
wound was 0.5 CM creating a crater of grayish colour. No
blood was oozing from the wound (electric burn marks and
entry wound of the current).
2. Rail road pattern bruise 6 CM X 2 CM with two parallel
reddish line and intermediate skin was pale, placed over left
arm lower outer aspect. Two parallel reddish lines were
raised.
3. Lacerated perforated electric burn mark, margin were
irregular and everted 1.5 CM X 1 CM, colour brownish
black (exit wound of electric current). The injuries located
above outer aspect of left arm, just above the elbow joint.
4. Brownish coloured defused bruise over left thigh and left
leg.
5. Brownish coloured diffuse wound over right thigh and right
leg.
6. Circular bruise 1 CM in width surrounding the upper part
of wrist joint of left side.
7. Semicircular bruise with abrasion on outer aspect of right
forearm, just above the writ joint.
8. Circular bruise abrasion encircling the lower end of leg,
just above the ankle joint 1 CM in width and similar bruise
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with abrasion on right lower end of right leg, just above the
ankle joint.
9. Both lips were contused at muco-cutaneous junction.

25. PW 17 opined that the cause of death of Asha was a sudden cardiac
arrest and the cessation of respiration due to respiratory muscle paralysis
consequent to electric current, passing through the chest. He also opined that
Injuries 2, 4 and 5 were caused by a hard blunt object, in particular a straight
circular object like a lathi and danda. Injuries 6, 7 and 8 were caused by the
fastening of hand and feet with the help of a rope and wire. PW 17 further
opined that the injuries were ante mortem in nature and the time since death
was approximately 38 hours. Vide Ex.PW17/B he gave the subsequent
opinion that the injury 1 could have been caused by yellow colour electric
wire, injuries 2, 4 and 5 could have been caused by wooden piece in packet
No. 1, PVC pipe in packet no. 3 or similar such thing and injuries 6, 7 and 8
could have been caused by black wire in packet no. 2 and was consistent with
fastening.

26. It is thus evident from the testimony of these witnesses that Yogesh and
Asha died due to electrocution and were given blunt injuries before
electrocution. The time since death was 38 hours. Thus the death took place
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at around 2 am on 14 June, 2010. This also corroborates the version of PW4
that the incident happened after he left and the version of PW16 on the night
he saw Yogesh and Asha being beaten.

Recovery at the instance of the accused

27. PW13 ACP Pankaj Kumar Singh, the investigating officer has stated that
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he along with Inspector Satender Dhull PW24, SI Suresh PW26 and the
complainant Rakesh left for the search of the accused. On the pointing of
Rakesh at Swaroop Nagar, Burari Road, Suraj and Om Prakash were arrested.
After their arrest they made disclosure statements. On the pointing of both
the accused towards the bushes, beneath the Keekar tree, outside the Ashram,
a yellow polythene lying was taken out. The polythene contained a rope
made of jute measuring 13 meters. The same was seized, however this rope
was not shown to the post-mortem doctors and no opinion qua the same has
been taken whether any of the injuries was possible by the said rope. Thus,
the recovery of rope at the instance of the Appellant Suraj and Om Prakash
cannot be used in evidence as the same is not connected with the injuries
received by the two deceased.

Plea of Alibi of Maya, Khushboo and Sanjeev
28. All the 5 Appellants have pleaded alibi. The plea of alibi of Maya is
based on the evidence of DWs 4, 5 and 6 i.e. Shakuntala, Lokesh and Naresh.
DW4 Shakuntala has stated that Suraj and Om Prakash are her brothers and
Maya and Khushboo their wives. Sanjeev is the son of Om Prakash and her
th
nephew. She celebrated the birthday of her grandson on 13 June, 2010 when
Khushboo, Sanjeev and the children of Khushboo came to her residence on
th th
12 June, 2010 and remained there till 16 June, 2010. She further stated that
th
on 16 June, 2010 at about 12 Noon or 1pm she received a call from
Ramwati telling that Asha had died and asked Khushboo and Sanjeev to
th
reach there. According to DW 4, Maya had already left DW 4‟s house on 13
June, 2010 at about 7 pm after giving clothes to her grandson. Maya is stated
to have gone from there to Aurangabad to the house of her brother. This fact
is also reiterated by the DW5 Lokesh, nephew of Shakuntala and DW6
DSR No. 5 of 2012, Crl.A. Nos. 105, 156, 274, 288 & 460 of 2013 Page 18 of 41




Naresh, son of Shakuntala. Both have stated that she left within 10 to 15
minutes. No defense witness has been brought from Aurangabad, to show
that Maya went there from the house of Shakuntala. Even as per these
th
witnesses Maya had left at about 7 pm on 13 June, 2010. Thus there was
sufficient time for Maya to have reached Delhi, when the alleged incident
th
occurred after 12.30 am on 14 June, 2010. Thus, the plea of alibi of Maya
has not been proved.

29. DW4 has stated that Khushboo and Sanjeev along with the children of
th th
Khushboo stayed at her residence from 12 June, 2010 to 16 June, 2010. It
is highly unnatural that though Asha had died and the dead body was
received by the brother of Maya and Ramwati, the sister of Suraj and Om
th
Prakash on 15 June 2010, however the near relatives i.e. Khushboo and
th
Sanjeev were not informed on the same day and were informed only on 16
June, 2010. The families are close enough to be celebrating the birthday of
the outstation grandchildren together. It is inconceivable that they would not
get to know about the death of Asha. Further, none of the photographs show
the presence of Khushboo and even the presence of Sanjeev in the
photograph does not prove that the birthday of the child was celebrated on
th
the 13 June, 2010 as no birth certificate of the child was produced.
Moreover, the photographs have not been proved in accordance with law.
They do not have any date and time. Thus, there is no substance in the plea of
alibi of Appellants Khushboo and Sanjeev.

Plea of alibi of Om Prakash and Suraj
30. Om Prakash and Suraj have produced DW2 Satpal who stated that Om
Prakash and Suraj were working with him for the last 4 to 5 years. He sowed
DSR No. 5 of 2012, Crl.A. Nos. 105, 156, 274, 288 & 460 of 2013 Page 19 of 41




Pudina, Beetroot and radish. The work used to start at 10 pm or 10.30 pm
th
and used to continue up to 8 am. According to this witness on 14 June,
2010 in the morning, the police came to enquire about Om Prakash and took
them saying that some inquiry was to be conducted. DW 2 further stated that
th
on 13 June, 2010 Om Prakash and Suraj came to him at 11 pm. DW 2 is not
the seller of vegetables in the mandi but sows Pudina, Beetroot and Radish.
On cross-examination, DW 2 has stated that he has no license to sell
vegetables in the subzi mandi and according to him he started maintaining the
diary of the attendance of the workers from April 2010. In answer to the
Court‟s question DW 2 stated that Suraj and Om Prakash did not come to
their work place in the subzi mandi after he started maintaining the diary.
After seeing the diary this witness also stated that the diary was started from
May 2011. DW 2 has failed to prove the plea of Suraj and Om Prakash that
th th
they were not present at the place of occurrence on the night of 13 /14 June
th
2010. Though DW2 states that on 13 June, 2010 they came about 11 pm,
th
DW1 Jai Narain has stated that on 13 June, 2010 at 10 pm he had given
money to Suraj to buy potatoes for him which he brought. Thus, the
Appellants Suraj and Om Prakash have also not been able to prove the plea of
alibi.

Section 106 Evidence Act
31. Section 106 Evidence Act provides that if certain facts are established to
be in the knowledge of a party, the said party is required to prove the same.
In the present case two dead bodies were found lying in the house of Om
Prakash, Khushboo and Sanjeev. The house was locked from outside and the
lock was broken open by the police. The key of the house was got recovered
from the Appellant Sanjeev. Once the house was locked from outside and the
DSR No. 5 of 2012, Crl.A. Nos. 105, 156, 274, 288 & 460 of 2013 Page 20 of 41




keys were in possession of one of the Appellants, how two dead bodies were
there in the house has to be explained by the Appellants. In the statement
under Section 313 Cr PC, the Appellants have failed to give any explanation.
The plea of alibi set up by the defence has not been proved and hence the
non-explanation by the Appellants as to how the two dead bodies were found
in their house is an additional link in the chain of circumstances.

32. It has been proved beyond reasonable doubt by the prosecution that the
dead bodies of Yogesh and Asha were found in the house of Appellant Om
Prakash and Sanjeev and the house was locked from outside. The prosecution
has discharged its initial burden and since the incident happened in the house
at night and the house was locked from outside, the Appellants are required
to furnish an explanation under Section 106 of the Evidence Act. In
Tulshiram Sahadu Wanshi v. State of Maharashtra (2012) 10 SCC 373
while dealing with Section 106 of the Evidence Act, the Supreme Court
observed:
“A fact otherwise doubtful may be inferred from certain other
proved facts. When inferring the existence of a fact from other set
of proved facts, the court exercises a process of reasoning and
reaches a logical conclusion as to the most probable position. The
above position is strengthened in view of Section 114 of the
Evidence Act, 1872. It empowers the court to presume the
existence of any fact which it thinks likely to have happened. In
that process, the courts shall have regard to the common course of
natural events, human conduct, etc. in addition to the facts of the
case. In these circumstances, the principles embodied in Section
106 of the Evidence Act can also be utilized. Section 106 however
is not intended to relieve the prosecution of its burden to prove the
guilt of the accused beyond reasonable doubt, but it would apply to
cases where the prosecution has succeeded in proving facts from
which a reasonable inference can be drawn regarding the existence
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of certain other facts, unless the accused by virtue of his special
knowledge regarding such facts, has offered an explanation which
might drive the Court to draw a different inference.”

Motive
33. PW4 has deposed about the incident which occurred 20-25 days ago
th
prior to 14 June, 2010 when Asha expressed her desire to marry Yogesh by
stating “ Main Shaadi Karungi to Isi Se Karungi ” and how for saying that she
was beaten by her parents. The Appellant Suraj also threatened Yogesh that
he would kill him in case he talked to Asha. PW4 has deposed that on the
fateful night when he reached his home at around 10 to 10.30 pm his brother-
in-law Yogesh told Rakesh that he had been called by parents of Asha for his
marriage and after having dinner they left at around 11.30 pm and reached
the place of occurrence at around 12 to 12.30 am, i.e., past midnight. When
they reached there and were talking, the Appellants raised the issue of caste
that they were Sainis and the family of Yogesh was Jatav. The only objection
to this testimony by the defence is that in the FIR, PW4 did not mention that
the Appellants raised the issue of caste and thus the motive has been
introduced for the first time in the testimony before Court, which is a material
improvement. The fact regarding issue of caste being raised stated by PW4 in
his testimony before the Court is neither a contradiction nor a material
improvement. It is only an explanation of what transpired during the course
of conversation that took place at the residence of the Appellant Om Prakash
th th
on the late night hours of 13 and 14 June, 2010. In Ratan Singh (supra),
the Supreme Court held that the criminal Courts should not be fastidious with
mere omissions in the FIR. Such statements cannot be expected to be a
chronicle of every detail of what happened, or to contain an exhaustive
catalogue of the events that took place. The person who furnishes the first
DSR No. 5 of 2012, Crl.A. Nos. 105, 156, 274, 288 & 460 of 2013 Page 22 of 41




information report to authorities might be fresh with the facts but he need not
necessarily have the skill or ability to reproduce details of the entire story.
An FIR is a voluntary narrative of the informant without interrogation.
Hence any omission therein has to be considered along with the other
elements to determine whether the fact so omitted never happened at all.

34. The contention of learned counsel for the Appellants that in case of a
circumstantial evidence, motive assumes importance and since the issue of
caste is a material improvement which has been stated for the first time by
PW4 in the witness box, no motive could be attributed to the Appellants for
having murdered Asha and Yogesh deserves to be rejected. As noted above,
the issue of caste as stated by PW4 in his testimony before the Court is not a
material improvement but only an embellishment of what was stated in the
FIR. He was not required to state in the FIR each and every detail of the
discussion that took place. He has, however, stated that there were
discussions and thereafter Om Prakash and Suraj started abusing and
manhandling them and they ran away.

35. Further, the motive in the present case is that the Appellants were against
the marriage alliance between Yogesh and Asha, which fact has been
elucidated by the complainant in detail in the FIR itself. The different castes
of the two families was only a reason for their being opposed to the marriage.
Thus the issue of caste being stated for the first time in the Court is neither a
material improvement nor the introduction of the motive for the first time.
Hence, it cannot be stated that the prosecution has failed to prove the motive
behind the offence.

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Abscondence
36. The prosecution has proved beyond reasonable doubt that there was a
th th
commotion in the house of Appellant on the intervening night of 13 /14
June, 2010 and two dead bodies were lying in their house. The plea of alibi
set up by the Appellants has not been proved even on a preponderance of
probabilities. Rather the factum of abscondence has been proved. The
Appellants took no step to report the unnatural death of at least their daughter
Asha. It is highly unnatural that PW5 Smt. Ramwati, the aunt of deceased
Asha would take her dead body and inform her parents and cousin about the
th
death only on 16 June. The irresistible and inescapable conclusion from the
evidence proved by the prosecution is that the Appellants after committing
the offence of murder absconded from the place of occurrence.

Role of Maya and Khushboo
37. PW16 has already been held to be a trustworthy and reliable witness by
this Court. He has stated that when he entered the house Maya and Khushboo
were standing outside. When he came out of the house after being beaten by
Sanjeev and admonished by Om Prakash, he found Maya and Khushboo
sitting outside. However, PW 16 did not attribute any overt act to them.

38. PW4 Rakesh in his testimony has stated that when he went to the house,
all the 5 Appellants were present. However, he too has also not attributed any
overt act to Maya and Khushboo. It is, therefore, contended by the learned
counsel for the Appellants that in the absence of an overt act being attributed
to them, Khushboo and Maya cannot be convicted for offence under Section
302 IPC with the aid of Section 34 IPC.

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39. Section 34 IPC provides that when a criminal act is done by several
persons in furtherance of common intention, each such person is liable for the
act in the same manner as if it were done by him alone. However, an act
includes an illegal omission as well, as per Sections 32 and 33 IPC. The
omission has to be illegal denoting a participative role of the person.

40. In the present case the Appellants Khushboo and Maya cannot be said to
be standing outside the house to guard the same, as when PW16 and other
persons entered the house they made no efforts to stop them. The two ladies
could be thus at best be said to be spectators to what was being done by the
three men in the house. No doubt, as a mother and aunt there was an
omission on their part to have not saved at least Asha their daughter, however
the said omission does not qualify the test that they shared the common
intention with the three men to commit the murder of Yogesh and Asha, thus
attracting Section 34 IPC.

41. In Sumitra Banik v. State of West Bengal AIR 1999 SC 2594 , the
Supreme Court acquitted the Appellant therein as the only evidence against
her was that she was standing near the door of the room wherein the deceased
was killed. It was held that no inference of common intention could be drawn
only on the ground that she did not prevent other accused from beating her in
view of the relationship with her. In Kakko v. State of Haryana 1997 SCC
(Crl) 835 , the allegations against the Appellant therein were of being at the
spot armed with an axe. Since there was no evidence that she actually
participated in the crime, she was acquitted of the charge of murder with the
aid of Section 34 IPC.

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Conclusion as regards the guilt of the Appellants
42. From the evidence on record the prosecution has been able to prove
beyond reasonable doubt that Appellants Om Prakash, Suraj and Sanjeev
committed the murder of Yogesh and Asha in furtherance of their common
intention and caused injuries to Rakesh by manhandling him and thus the
judgment of conviction of the learned Trial Court to the extent it convicts the
Appellants Om Prakash, Suraj and Sanjeev for offences under Sections
302/323/34 IPC is upheld.

43. However, Appellants Maya and Khushboo they are entitled to the benefit
of doubt. Hence, the conviction of Appellants Maya and Khushboo for
offences under Section 302/323/34 IPC is set aside.

Sentence
44. The Appellants Om Prakash, Suraj and Sanjeev have been sentenced to
death by the learned trial Court subject to confirmation by this Court. The
learned trial Court relying on the decisions in Bachan Singh v. State of
Punjab AIR 1982 SC 1325; Machhi Singh v. State of Punjab AIR 1983 SC
957, Sushil Murmu v. State of Jharkhand AIR 2004 SC 394; Arumugam
Servai v. State of Tamil Nadu (2011) 6 SCC 405; Lata Singh v. State of
U.P. (2006) 5 SCC 475 and Bhagwan Das v. State of NCT Delhi (2011) 6
SCC 396 held that in view of the medical evidence and the state in which the
bodies of the deceased persons were found, it was obvious that most heinous
type of murders were committed in the present case. Both the deceased were
electrocuted after being tied with ropes. The offence was not only inhumane
and barbaric but was committed in a very cruel and brutal manner. The
savage nature of the crime had shocked the judicial conscience. According to
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the learned trial Court, there were no extenuating or mitigating
circumstances, whatsoever. Cold blooded, preplanned brutal murders,
through electrocution had been committed without provocation. The manner
in which the deceased Yogesh and Asha were electrocuted by the convicts
made the present case fall in the category of „rarest of rare‟ case which called
for no punishment other than the capital punishment.

45. Mr. Sawhney has relied upon the decisions in Bhagwan Dass v. State of
NCT Delhi (supra) and Arumugam Servai v. State of Tamil Nadu (supra ).
Relying upon Deepak Rai v. State of Bihar (2013) 10 SCC 421 he submits
that even if special reasons have not been adumbrated by the learned trial
Court and need further elaboration, this Court while confirming the sentence
can elaborate the same. It is submitted in the alternative that in case this
Court comes to the conclusion that the present is not a case for awarding then
death sentence, then as laid down in Sahib Hussain v. State of Rajasthan
(2013) 9 SCC 778 and Gurvail Singh v. State of Punjab (2013) 2 SCC 713
this Court should award the sentence of life imprisonment for a period
beyond 14 years actual, so that the same has a deterrent effect on the
Appellants.

46. Learned counsels for the Appellants on the other hand contend that in
Mahesh Dhanaji Shinde v. State of Maharashtra 2014 (3) SCALE 96 a
three Judge Bench of the Supreme Court, reaffirmed the decision in Shankar
Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 wherein it was
held that while awarding death sentence the „crime test‟ has to be fully
satisfied i.e. 100% and „criminal test‟ should be 0%. In other words, there
ought to be no mitigating circumstances favouring the accused. If there was
DSR No. 5 of 2012, Crl.A. Nos. 105, 156, 274, 288 & 460 of 2013 Page 27 of 41




any circumstance favouring the accused, like lack of intention to commit the
crime, possibility of reformation, young age of accused, not being a menace
to the society, no previous track record etc., then the „criminal test‟ may
favour the accused to avoid capital punishment. Even if both the tests were
satisfied i.e. aggravating circumstance to the fullest and no mitigating
circumstance favouring the accused, still the Court had to apply the Rarest of
Rare test (RR Test). The RR test depended upon the perception of the
society i.e. it is “Society centric” and not “Judge centric”. Thus the test is
whether the society will approve awarding of the death sentence for certain
types of crimes or not. Reliance is also placed on the decision in Ashok
Debbarma @ Achak Debbarma v. State of Tripura 2014 (3) SCALE 344 .
Referring to Gurvail Singh v. State of Punjab (2013) 2 SCC 713 , it is
submitted that a sentence of life imprisonment beyond 14 years can be
awarded only when the death sentence is commuted and not while awarding
the death sentence. Hence it is pleaded that the three Appellants be awarded
the sentence of life imprisonment.

47. Having heard learned counsel for the parties, before adverting to the
aggravating and mitigating circumstances, the legal position in regard to
award of capital punishment is required to be noted. In Machhi Singh
(supra ) the Supreme Court noted the principles culled out in Bachan Singh’s
case for awarding death sentence. It was held that the following propositions
emerged from Bachan Singh’s case:
“(i) the extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the
'offender' also require to be taken into consideration along with the
circumstances of the 'crime'.
DSR No. 5 of 2012, Crl.A. Nos. 105, 156, 274, 288 & 460 of 2013 Page 28 of 41




(iii) Life imprisonment is the rule and death sentence is an exception.
In other words death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and provided,
and only provided the option to impose sentence of imprisonment for
life cannot be conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has
to be drawn up and in doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option is
exercised.”

48. The three-Judge Bench in Machhi Singh further laid down that the Court
may award the extreme penalty of death sentence in the rarest of rare cases
when society‟s collective conscience is so shocked that it will expect the
holders of the judicial power to inflict the death penalty irrespective of their
personal opinion as regards the desirability or otherwise of retaining death
penalty. The following instances were noted:
“I Manner of Commission of Murder
When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting, or dastardly manner so as to
arouse intense and extreme indignation of the community. For
instance,
(i) When the house of the victim is set aflame with the end in
view to roast him alive in the house.
(ii) When the victim is subjected to inhuman acts of torture or
cruelty in order to bring about his or her death.
(iii) When the body of the victim is cut into pieces or his body
is dismembered in a fiendish manner.
II Motive for Commission of murder
When the murder is committed for a motive which evince total
depravity and meanness. For instance when (a) a hired assassin
commits murder for the sake of money or reward (b) a cold
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blooded murder is committed with a deliberate design in order to
inherit property or to gain control over property of a ward or a
person under the control of the murderer or vis-a-vis whom the
murderer is in a dominating position or in a position of trust, (c)
a murder is committed in the course for betrayal of the
motherland.
III Anti Social or socially abhorrent nature of the crime
(a) When murder of a Scheduled Caste or minority community
etc., is committed not for personal reasons but in circumstances
which arouse social wrath. For instance when such a crime is
committed in order to terrorize such persons and frighten them
into fleeing from a place or in order to deprive them of, or make
them with a view to reverse past injustices and in order to
restore the social balance.

(b) In cases of 'bride burning' and what are known as 'dowry-
deaths' or when murder is committed in order to remarry for the
sake of extracting dowry once again or to marry another woman
on account of infatuation.
IV Magnitude of Crime
When the crime is enormous in proportion. For instance when
multiple murders say of all or almost all the members of a
family or a large number of persons of a particular caste,
community, or locality, are committed.
V Personality of Victim of murder
When the victim of murder is (a) an innocent child who could
not have or has not provided even an excuse, much less a
provocation, for murder. (b) a helpless woman or a person
rendered helpless by old age or infirmity. (c) when the victim is
a person vis-a-vis whom the murderer is in a position of
domination or trust. (d) when the victim is a public figure
generally loved and respected by the community for the services
rendered by him and the murder is committed for political or
similar reasons other than personal reasons.

49. A two-Judge Bench in Sangeet v. State of Haryana (2013) 2 SCC 452
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held that despite Bachan Singh , primacy still appeared to be given to the
nature of crime. The circumstances of the criminal, referred to in Bachan
Singh appeared to have taken a bit of a backseat in the sentencing process. It
was observed:
“34. Despite Bachan Singh , primacy still seems to be given to the
nature of the crime. The circumstances of the criminal, referred to in
Bachan Singh appear to have taken a bit of a back seat in the
sentencing process. This was noticed in Bariyar with reference to Ravji
v. State of Rajasthan (1996) 2 SCC 175 . It was observed that
"curiously" only characteristics relating to the crime, to the exclusion
of the criminal were found relevant to sentencing. It was noted that
Ravji has been followed in several decisions of this Court where
primacy has been given to the crime and circumstances concerning the
criminal have not been considered. In paragraph 63 of the Report it is
noted that Ravji was rendered per incuriam and then it was observed
that:
“It is apparent that Ravji has not only been considered but also
relied upon as an authority on the point that in heinous crimes,
circumstances relating to [the] criminal are not pertinent.”
35. It is now generally accepted that Ravji was rendered per incuriam
(see, for example, Dilip Premnarayan Tiwari v. State of Maharashtra
(2010) 1 SCC 775 ). Unfortunately, however, it seems that in some
cases cited by learned Counsel the circumstances pertaining to the
criminal are still not given the importance they deserve.”

50. While considering the standardization and the categorization of the
crime, the Supreme Court in Sangeet further held:
“52. Despite Bachan Singh , the "particular crime" continues to play a
more important role than the "crime and criminal" as is apparent from
some of the cases mentioned above. Standardization and categorization
of crimes was attempted in Machhi Singh for the practical application
of the rarest of rare cases principle. This was discussed in Swamy
Shraddananda . It was pointed out in paragraph 33 of the Report that
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the Constitution Bench in Jagmohan Singh and Bachan Singh "had
firmly declined to be drawn into making any standardization or
categorization of cases for awarding death penalty". In fact, in Bachan
Singh the Constitution Bench gave over half a dozen reasons against
the argument for standardization or categorization of cases. Swamy
Shraddananda observed that Machhi Singh overlooked the fact that the
Constitution Bench in Jagmohan Singh and Bachan Singh had
"resolutely refrained" from such an attempt. Accordingly, it was held
that even though the five categories of crime (manner of commission
of murder, motive for commission of murder, anti-social or socially
abhorrent nature of the crime, magnitude of crime and personality of
victim of murder) delineated in Machhi Singh provide very useful
guidelines, nonetheless they could not be taken as inflexible, absolute
or immutable.
53. Indeed, in Swamy Shraddananda this Court went so far as to
note in paragraph 48 of the Report that in attempting to standardize
and categorize crimes, Machhi Singh "considerably enlarged the scope
for imposing death penalty" that was greatly restricted by Bachan
Singh .
54. It appears to us that the standardization and categorization of
crimes in Machhi Singh has not received further importance from this
Court, although it is referred to from time to time. This only
demonstrates that though Phase II in the development of a sound
sentencing policy is still alive, it is a little unsteady in its application,
despite Bachan Singh.”

51. These principles were again reiterated by a two Judge Bench in Shankar
Kisanrao Khade v. State of Maharashtra (supra) wherein the Supreme
Court held that while awarding the death sentence, the crime test, the
criminal test and the RR test have to be looked into and not the „balancing
test‟. It was held:
“28. Aggravating Circumstances as pointed out above, of course, are
not exhaustive so also the Mitigating Circumstances. In my considered
view the tests that we have to apply, while awarding death sentence,
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are " crime test ", " criminal test " and the R-R Test and not " balancing
test ". To award death sentence, the "crime test" has to be fully
satisfied, that is 100% and "criminal test" 0%, that is no Mitigating
Circumstance favouring the accused. If there is any circumstance
favouring the accused, like lack of intention to commit the crime,
possibility of reformation, young age of the accused, not a menace to
the society no previous track record etc., the "criminal test" may favour
the accused to avoid the capital punishment. Even, if both the tests are
satisfied that is the aggravating circumstances to the fullest extent and
no mitigating circumstances favouring the accused, still we have to
apply finally the Rarest of Rare Case test (R-R lest). R-R Test depends
upon the perception of the society that is "society centric" and not
"Judge centric" that is, whether the society will approve the awarding
of death sentence to certain types of crimes or not. While applying that
test, the Court has to look into variety of factors like society's
abhorrence, extreme indignation and antipathy to certain types of
crimes like sexual assault and murder of minor girls intellectually
challenged, suffering from physical disability, old and infirm women
with those disabilities etc. Examples are only illustrative and not
exhaustive. Courts award death sentence since situation demands so,
due to constitutional compulsion, reflected by the will of the people
and not the will of the judges.”

52. A three-Judge Bench in Mahesh Dhanaji Shinde v. State of
Maharashtra (supra) held that the 100 % crime test and the 0% criminal test
may create situations which may go well beyond what was laid down in
Bachan Singh (supra). It was observed:
“21. Death penalty jurisprudence in India has been widely debated
and differently perceived. To us, the essential principles in this sphere
of jurisprudence have been laid down by two Constitution Benches of
this Court in Jagmohan Singh v. The State of U.P. (1973) 1 SCC 20
which dealt with the law after deletion of Section 367(5) of the old
Code but prior to the enactment of Section 354(3) of the present Code
and the decision in Bachan Singh (supra). Subsequent opinions on the
subject indicate attempts to elaborate the principles of law laid down in
the aforesaid two decisions and to discern an objective basis to guide
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sentencing decisions so as to ensure that the same do not become judge
centric.
22. The impossibility of laying down standards to administer the
sentencing law in India was noted in Jagmohan Singh (supra) in the
following terms:
The impossibility of laying down standards is at the very core of
the criminal law as administered in India which invests the judge
with a very wide discretion in the manner of fixing the degree of
punishment. ... The exercise of judicial discretion on well-
recognized principles is, in the final analysis, the safest possible
safeguards for the accused. (Para 26)
23. Bachan Singh (supra) contained a reiteration of the aforesaid
principle which is to be found in para 197 of the report. The same was
made in the context of the need, expressed in the opinion of the
Constitution Bench, to balance the aggravating and mitigating
circumstances in any given case, an illustrative reference of which
circumstances are to be found in the report. Bachan Singh (supra), it
may be noted, saw a shift; from balancing the aggravating and
mitigating circumstances of the crime as laid down in Jagmohan Singh
(supra) to consideration of all relevant circumstances relating to the
crime as well as the criminal. The expanse of the death penalty
jurisprudence was clearly but firmly laid down in Bachan Singh
(supra) which can be summarized by culling out the following which
appear to be the core principles emerging therefrom.
(1) Life imprisonment is the rule and death penalty is the
exception. (para 209)
(2) Death sentence must be imposed only in the gravest cases of
extreme culpability, namely, in the "rarest of rare" where the
alternative option of life imprisonment is "unquestionably
foreclosed". (para 209)
(3) The sentence is a matter of judicial discretion to be exercised
by giving due consideration to the circumstances of the crime as
well as the offender. (para 197)
24. A reference to several other pronouncements made by this Court
at different points of time with regard to what could be considered as
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mitigating and aggravating circumstances and how they are to be
reconciled has already been detailed hereinabove. All that would be
necessary to say is that the Constitution Bench in Bachan Singh (supra)
had sounded a note of caution against treating the aggravating and
mitigating circumstances in separate water-tight compartments as in
many situations it may be impossible to isolate them and both sets of
circumstances will have to be considered to cull out the cumulative
effect thereof. Viewed in the aforesaid context the observations
contained in para 52 of Shankar Kisanrao Khade (supra) noted above,
namely, 100% crime test and 0% criminal test may create situations
which may well go beyond what was laid down in Bachan Singh
(supra).
25. We may also take note of the separate but concurring judgment
in Shankar Kisanrao Khade (supra) enumerating the circumstances
that had weighed in favour of commutation (Para 106) as well as the
principal reasons for confirming the death penalty (Para 122).
In para 123 of the aforesaid concurring opinion the cases/instances
where the principles earlier applied to the sentencing decision have
been departed from are also noticed. Though such departures may
appear to give the sentencing jurisprudence in the country a subjective
colour it is necessary to note that standardisation of cases for the
purposes of imposition of sentence was disapproved in Bachan Singh
(supra) holding that "it is neither practicable nor desirable to imprison
the sentencing discretion of a judge or jury in the strait-jacket of
exhaustive and rigid standards".(Para 195) In this regard, the
observations with regard to the impossibility of laying down standards
to regulate the exercise of the very wide discretion in matters of
sentencing made in Jagmohan Singh (supra), (Para 22 hereinabove)
may also be usefully recalled. In fact, the absence of any discretion in
the matter of sentencing has been the prime reason for the indictment
of Section 303 Indian Penal Code in Mithu v. State of Punjab AIR
1983 SC 473. The view of Justice Chinnappa Reddy in para 25 of the
report would be apt for reproduction hereinbelow:
„25. Judged in the light shed by Maneka Gandhi and Bachan
Singh , it is impossible to uphold Section 303 as valid. Section
303 excludes judicial discretion. The scales of justice are
removed from the hands of the Judge as soon as he pronounces
the accused guilty of the offence. So final, so irrevocable and so
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irresistible is the sentence of death that no law which provides
for it without involvement of the judicial mind can be said to be
fair, just and reasonable. Such a law must necessarily be
stigmatised as arbitrary and oppressive. Section 303 is such a
law and it must go the way of all bad laws. I agree with my Lord
Chief Justice that Section 303, Indian Penal Code, must be
struck down as unconstitutional.‟
26. In a recent pronouncement in Sunil Dutt Sharma v: State (Govt. of
NCT of Delhi) 2013 (12) SCALE 473 it has been observed by this
Court that the principles of sentencing in our country are fairly well
settled-the difficulty is not in identifying such principles but lies in the
application thereof. Such application, we may respectfully add, is a
matter of judicial expertise and experience where judicial wisdom must
search for an answer to the vexed question--whether the option of life
sentence is unquestionably foreclosed? The unbiased and trained
judicial mind free from all prejudices and notions is the only asset
which would guide the judge to reach the 'truth'.”

53. Turning to the case on hand, the Court finds that the aggravating
circumstances could be stated to be as under:
(i) the lives of two innocent and young persons have been taken
away in a barbaric, inhuman and cruel manner by mercilessly
beating them and thereafter electrocuting
(ii) the offence was preplanned and committed in furtherance of a
common intention shared by the three convicted Appellants.
iii) there was no provocation by the deceased.
iv) both the deceased persons were in the clutches of the three
convicted Appellants.
v) The convicted Appellants had a fiduciary relationship with
deceased Asha

54. In the considered view of the Court, the mitigating circumstances could
be stated to be as under:
i) there is no earlier criminal history of the convicted Appellants.
ii) the convicted Appellants belong to the lower middle class
families.
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iii) the Appellant Sanjeev is of a young age.

55. Thus in view of the larger Bench decisions of the Supreme Court
discussed hereinbefore, this Court is required to apply the „crime test, the
criminal test and the R-R test and determine whether in the present case the
option of life sentence is “unquestionably foreclosed”. Although there are
aggravating circumstances as noted above, there is no material placed on
record by the State to show that the Appellants Om Prakash, Suraj and
Sanjeev are persons who cannot be reformed or are a menace to the society.

56. Indubitably, even if no such material had been placed during the trial the
same could have been placed in the present proceedings. In Deepak Rai v.
State of Biha r (supra) the Supreme Court expressly held that it cannot be
accepted that the failure on the part of the Court which has convicted an
accused and heard on the question of sentence but failed to express the
“special reasons” in so many words must necessarily entail remand to that
Court for elaboration upon its conclusion in awarding the death sentence for
the reason that while exercising appellate jurisdiction, the superior Court
could have dealt into such reasons. Further the proceedings before this Court
are a continuation of the trial as the death sentence can be awarded only if
this Court answers the reference positively and confirms the death sentence.
Thus, even at this stage, the State or the accused is at liberty to place on
record material to show if any of the aggravating or mitigating factor has
been ignored. However, we find that there is no additional material on record
placed by the State in the present proceedings. In case the State fails to
produce any material, the Court could ascertain from the material on record if
there are any mitigating factors favouring the accused. From the material
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already on record in the form of the nominal rolls of the convicted
Appellants, it is evident that they are not a menace to the society. The
nominal rolls of the convicted Appellants Om Prakash, Suraj and Sanjeev
show that their overall conduct in jail is satisfactory and there are no
complaints against them. Thus, this Court is of the considered opinion that
the penalty to death cannot be awarded to the convicted Appellants, Om
Prakash, Suraj and Sanjeev.

57. The alternative submission of the learned APP is that in case the
sentence of death is not awarded, then this Court should award a sentence of
imprisonment without remission beyond a period of 14 years actual. In
Swamy Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767 a three-
Judge Bench of the Supreme Court discussed the power of the Court to direct
that an actual period of incarceration be undergone by the convict without
remissions/ commutations by the executive so that the convict serves out
imprisonment for the remainder of the natural term of his life. This
alternative was held to be a substitute for the death sentence and viewed
differently and segregated from the ordinary life imprisonment given as the
sentence of first choice. It was further held that formalization of a special
category of sentence though for an extremely few number of cases shall have
the great advantage of having the death penalty on the Statute book but to
actually use it as little as possible really in the rarest of rare cases. This was
held to be only a reassertion of the Constitution Bench decision in Bachan
Singh (supra ).

58. The observations in Sangeet v. State of Haryana (supra) , a two-Judge
Bench of the Supreme Court doubting the correctness of Swamy
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Shraddananda (2) ( supra ) have be held by a later Bench in Gurvail Singh v.
State of Punjab (2013) 10 SCALE 671 to be per incuriam. In Sahib Hussain
v. State of Rajasthan (supra) Supreme Court was called upon to decide, inter
alia, whether the High Court was justified in ordering that the Appellant
should be sentenced to twenty years of actual imprisonment without
remissions. Answering the said question in the affirmative, the Supreme
Court noted the earlier decisions on the point of alternative sentence and
observed that over a decade in many cases whenever death sentence has been
converted to life imprisonment where the offence alleged is serious in nature
while awarding life imprisonment, the Supreme Court has awarded minimum
years of imprisonment of 20, 25, 30 or 35 years. The Supreme Court in Sahib
Hussain took judicial notice of the fact that remission is allowed to life
convicts in the most mechanical manner without any sociological or
psychiatric appraisal of the convict and without any proper assessment as to
the effect of the earlier release of a particular convict on the society. The
Supreme Court further noted:
“92. The matter may be looked at from a slightly different angle.
The issue of sentencing has two aspects. A sentence may be
excessive and unduly harsh or it may be highly disproportionately
inadequate . When an appellant comes to this Court carrying a death
sentence awarded by the trial court and confirmed by the High
Court, this Court may find, as in the present appeal that the case just
falls short of the rarest of the rare category and may feel somewhat
reluctant in endorsing the death sentence. But at the same time,
having regard to the nature of the crime, the Court may strongly
feel that a sentence of life imprisonment subject to remission
normally works out to a term of 14 years would be grossly
disproportionate and inadequate. What then should the Court do? If
the Court's option is limited only to two punishments, one a
sentence of imprisonment, for all intents and purposes, of not more
than 14 years and the other death, the Court may feel tempted and
find itself nudged into endorsing the death penalty. Such a course
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would indeed be disastrous. A far more just, reasonable and proper
course would be to expand the options and to take over what, as a
matter of fact, lawfully belongs to the Court i.e. the vast hiatus
between 14 years' imprisonment and death. It needs to be
emphasised that the Court would take recourse to the expanded
option primarily because in the facts of the case, the sentence of 14
years' imprisonment would amount to no punishment at all.

93. Further, the formalisation of a special category of sentence,
though for an extremely few number of cases, shall have the great
advantage of having the death penalty on the statute book but to
actually use it as little as possible, really in the rarest of rare cases.
This would only be a reassertion of the Constitution Bench decision
in Bachan Singh [ Bachan Singh v. State of Punjab , (1980) 2 SCC
684: 1980 SCC (Cri) 580] besides being in accord with the modern
trends in penology.

94. In the light of the discussions made above we are clearly of the
view that there is a good and strong basis for the Court to substitute
a death sentence by life imprisonment or by a term in excess of
fourteen years and further to direct that the convict must not be
released from the prison for the rest of his life or for the actual term
as specified in the order, as the case may be.”

59. In Birju v. State of M.P. 2014 (2) SCALE 301 and Ashok Debbarma v.
State of Tripura (supra) though the Supreme Court reiterated the triple test,
i.e. the crime test, the criminal test and the R-R test, it followed the principle
laid down in Swamy Shraddananda and awarded the Appellants therein
imprisonment for a period of 20 years.

60. In light of the legal position discussed above, the Court is of the
considered opinion that the ends of justice would be met if the convicted
Appellants Om Prakash and Suraj are awarded the sentence of imprisonment
for life which will not be less than 20 years actual. Since Appellant Sanjeev
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is a young man who was not married, the Court considers it fit to sentence
him to imprisonment of life subject to remissions as available.

61. As a result, the death reference is declined and Criminal Appeal Nos. 288
of 2013, 274 of 2013 and 460 of 2013 are disposed off while upholding the
conviction of the concerned three Appellants Suraj, Om Prakash and Sanjeev
but modifying their sentences in the manner indicated in para 60 above.
Criminal Appeals Nos. 156 of 2013 and 105 of 2013 are allowed and
Appellants Maya and Khushboo are acquitted of the offences with which
they were charged.


(MUKTA GUPTA)
JUDGE





(S.MURALIDHAR)
JUDGE
APRIL 17, 2014
„vn‟

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