IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals Nos.252 and 253 of 2004 Judgment reserved on: 21.8.2007 Decided on : 12.10.2007 ________________________________________________________ Criminal Appeal No.252 of 2004 Deep Ram @ Vinod Kumar Vs. State of Himachal Pradesh Criminal Appeal No.253 of 2004 Reddy Shyamal Rao @ Akash Vs. State of Himachal Pradesh Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : M/s B.R. Kashyap and Ajay Baluja, Advocates (in both the appeals). For respondent(s) : Mr. Som Dutt Vasudeva, Additional Advocate General, with Mr. D.S. Nainta, Deputy Advocate General. Surjit Singh, Judge Both these appeals are directed against the same judgment (of the trial Court), whereby the appellants have been convicted and sentenced as follows:- 1. Appellant Reddy Shyamal Rao @ Akash (Cr. Appeal No.253 of 2004). Whether reporters of the local papers may be allowed to see the judgment? Sr.No. Offence of which punished Sentence Awarded 1 U/s 302 and U/s 302 read with Section 34 I.P.C. for committing murders of Sandeep Sood and Pushpa Sood Death Sentence …2… 2. Appellant Deep Ram (Cr. Appeal No.252 of 2004) Sr.No. Offence of which punished Sentence Awarded 1. Under Section 302 read with section 34 I.P.C. for murder of Sandeep Sood Life imprisonment and a fine of Rs.5000/- 2. Under Section 302 read with Section 34 I.P.C. for murder of Pushpa Sood Life imprisonment and a fine of Rs.5000/-. 3. Under Section 394 I.P.C. read with Section 397 I.P.C. Rigorous imprisonment for 10 years and to pay a fine of Rs.5000/-; in default of payment of fine to undergo rigorous imprisonment for 2 years 4. Under Section 342 read with Section 34 I.P.C. Imprisonment for 2 years. 2. Prosecution version may be noticed first. There is a double storeyed building by the side of the Cart Road towards Longwood in Shimla Town. The building has a basement also. The basement of the building is occupied by the tenants of deceased Sandeep Sood and his mother Pushpa Sood, also deceased. The ground floor of the building was occupied by Sandeep Sood and his mother Pushpa Sood (both deceased) as their residence. In the first floor of the building, a hotel was run by Sandeep Sood, deceased. The hotel was known as Oaks Land Hotel. Appellant Reddy Shyamal Rao alias Akash (hereinafter referred to as ‘A-1’) was employed as a Manager in the hotel about 20 days, while appellant Deep Ram 2. Under Section 394 I.P.C. read with Section 397 I.PC. Rigorous imprisonment for 10 years and a fine of Rs.5000/-; in default of payment of fine, rigorous imprisonment for a period of 2 years 3. Under Section 342 read with Section 34 I.P.C. Rigorous imprisonment for 2 years. …3… (hereinafter referred to as ‘A-2’) was employed as a cook about 15 days, prior to the occurrence. PW-1 Satish Kumar was employed by deceased Sandeep Sood, both as a domestic help and as a worker in the hotel. Besides, PW-4 Des Raj was also employed as a worker in the hotel. PW-1 Satish Kumar and A-2 (Deep Ram) used to sleep in the kitchen of the hotel while A-1 (Reddy Shyamal Rao alias Akash) and PW-4 used to sleep in the STD booth set up in one of the small sized rooms of the hotel. On the morning of 15.11.2001, PW-1 Satish Kumar, immediately after waking up, went to the residential portion of the building to assist Pushpa Devi deceased in household chores. A-2 was still asleep in the kitchen at that time. Pushpa Devi deceased asked him to collect earthen lamps which had been lighted on the previous night on account of that being Diwali night. After collecting lamps from the kitchen of the hotel, PW-1 Satish Kumar went to the verandah of the hotel to collect the lamps. There he saw A-1 near room No.102 with a “Darat” (scythe) in his hand. His clothes were blood stained. On seeing PW1 Satish Kumar, A-1 proclaimed that he had already finished the owner of the hotel (Sandeep Sood) and was going to kill “Mataji” (deceased Pushpa Devi). A-1 then caught hold of PW-1 Satish Kumar, who at that time was only a lad of 16 years, and took him to room No.105 and tied his hands and feet with a telephone wire and shut him in the said room. The door of the room was bolted from outside. PW-1 Satish Kumar managed to free himself by cutting the cable with his teeth and escaped through the window of the toilet attached with that room. He went to PW-2 Gulab Singh, his cousin, who had got him employed at the hotel. Gulab Singh used to work as a coolie at Victory Tunnel, during those days. He apprised PW-2 Gulab Singh of what he had seen and what A-1 had proclaimed, and how he …4… managed to escape. PW-2 Gulab Singh then took PW-1 Satish Kumar to the bus stand where HC Krishan Chand (PW-7) met them. PW-1 Satish Kumar narrated the incident to him. HC Krishan Chand, in his turn, informed the Sadar Police telephonically. Information received at police station was entered in the Rojnamcha. PW-25 Jagdish Sharma, SHO, rushed to the spot in the company of A.S.I. Gulam Mohammad, HC Sita Ram and other police officials. He went to room No.102 and found that Sandeep Sood was lying dead with his neck half cut and several other chop wounds on various parts of his body. Thereafter he went to the residential portion of the building on the ground floor and saw the dead body of Pushpa Devi lying in a pool of blood with neck half cut and several other injuries caused by a sharp edged weapon. In the meanwhile, Satish Kumar PW-1 accompanied by PW-2 Gulab Singh and HC Krishan Chand (PW-7) also reached the hotel. PW-1 Satish Kumar made a statement, which was reduced into writing on the dictation of PW-25 Jagdish Sharma. Record of that statement is Ext. PA. It was forwarded to the Police Station for formal registration of the case. PW-25 Jagdish Sharma then conducted inquest in respect of both the dead bodies and prepared reports Exts. PB and PC. In the meanwhile, it was noticed that the car of deceased Sandeep Sood was not there and the two appellants had also disappeared. Jewellery, which was worn by deceased Pushpa Sood and the golden Kara and rings, which were worn by deceased Sandeep Sood, were also found missing. An almirah was found lying open. Container of coins kept in puja room was also found missing. It was suspected that the two appellants had escaped with the jewellery and other belongings of the deceased in the car of deceased Sandeep Sood. So, a red alert was sounded for intercepting the car and apprehending the appellants. …5… 3. PW-25 then conducted minute inspection of the hotel and the residence of the deceased. He found jacket, Ext.P-1, lying near the dead body of Sandeep Sood. It was stained with blood. PW-1 Satish Kumar identified the jacket to be that of A-1. Sweater Ext.P-2, shirt Ext. P-3 and trousers Ext.P-4 were found near the staff room between rooms No.102 and 103 of the hotel floor of the building. These were identified to be those of A-2. Dead body of Sandeep Sood was half naked. Underwear Ext.P-5 and Pyjama Ext.P-6 were lying on one side in room No.102. Two quilt covers Exts. P-7 and P-8, two pillow covers Exts. P-9 and P-10, two bed sheets Exts.P-11 and P-12 and one telephone wire Ext. P-13 stained with blood were there in room No.102. Spanner Ext.P-15, silver ring Ext.P-16, copper ring Ext.P-17, a wrist watch Ext.P-18 and two locks of hair Exts. P-14 and P-19 were also found in room No.102. All those items were taken into possession. In the room where dead body of Pushpa Sood lay, “Darat” Ext.P-20, stained with blood and knife with broken handle Ext.P-21, also stained with blood, were found and taken into possession. A jacket Ext.P-22, a piece of towel Ext.P-23, quilt covers Ext.P-24, Chunni Ext.P-25, all stained with human blood, were also found in that room and were taken into possession. Two pieces of telephone wires Exts.P-28 and P-29 were seized from room No.105. 4. PW-4 Des Raj, one of the workers employed in the hotel, had gone on leave on 14.11.2001 on account of Diwali. He returned to the hotel on 15.11.2001 and in his presence, the police took into possession a bag Ext.P-33, a digital diary Ext.P-34 and an album Ext.P-35, all belonging to A-1, from the STD booth. Police also took into possession one foot mat Ext. P-36 from outside the room where …6… dead body of Pushpa Devi was lying. The foot mat was stained with blood and it had a shoe print on it. 5. As a result of the red alert sounded by Shimla Police, as already noticed, messages were flashed to various police stations. One of those police stations was Nahan Sadar Police Station. The WHF message was received at the said Police Station at 11.35 AM and was entered in the Rojnamcha, per entry Ext. PCC. Immediately on receipt of this message, Inspector Probationer PW-24 Bhag Mal, organized a “Nakka” at Dosarka. Around 1 PM, car bearing No.CH- 03A-3235 reached the site of the “Nakka”. Since the number of the car was the same as was conveyed by the Shimla police through the message, copy Ext. PCC, it was got stopped. A-1 was in the driver seat and A-2 was sitting beside him on the front seat. Clothes of both the appellants were blood stained. They were also having some injuries on their faces and hands. Both of them were apprehended. PW-24 Bhag Mal then searched their persons. On search of the person of A-1, ear tops Ext.P-49, nose pin Ext.P-50, a golden Kara Ext.P-53, golden ring Ext.P-54, necklace Ext.P-55, Mangal Sutar Ext.P- 56, Bangle Ext.P-57, golden chain Ext.P-58, golden diamond ring Ext.P-59, silver ring Ext.P-60, golden ring without diamond Ext.P-61 and iron ring Ext.P-62, which were later on identified to belong to deceased Sandeep Sood and Pushpa Devi by PW-6 Punam, daughter of deceased Pushpa Sood, were recovered alongwith several other articles. From the search of the person of A-2, one golden coloured chain Ext.P-78, currency notes of Rs.120/- and coins of Rs.7/- were recovered. Thereafter car was searched and one multi coloured purse Ext.P-71 was recovered from the pocket of the seat of the car. It contained registration certificate Ext.P-65, insurance certificate Ext.P- …7… 66, cheque book Ext.P-67 and pass book Ext.P-68. Purse Ext.P-69 containing currency notes of Rs.4760/- in it was recovered from the rear seat. On container Ext.P-63 containing coins weighing 6-7 kgs. was also recovered from the car. 6. Both the appellants were taken to Nahan hospital for their medico legal examination. PW-5 Dr. Sushil P. Vermani conducted their medical examination. He also took into possession the wearing apparels and shoes of the appellants, which had stains of blood thereon. The same consisted of shirt Ext. P-41, pants Ext.P-42, leather shoes Ext. P-43, vest Ext.P-44 and leggings Ext.P-45 of A-1 and shirt Ext.P-46, blue jeans Ext.P-47 and shoes Ext.P-48 of A-2. 7. Ear tops Ext.P-49, nose pin Ext.P-50 and lock of hair Ext.P-51, recovered from the car, were got preserved from PW-5 Dr. Sushil P. Vermani by PW-24 Bhag Mal, Inspector for the purpose of chemical examination. Shimla police was informed telephonically of the apprehension of the two appellants and the recovery of various items from them around 1 PM. Police party headed by PW-22 ASI Gulam Mohammad was deputed from Shimla to take the custody of the two appellants as also the articles recovered from them. When he reached a place called Sarahan, he was informed telephonically that PW-4 Bhag Mal, Inspector was on way to Shimla from Nahan and he should wait for him at Police Station, Pachhad. Around 12 in the night PW-24 Bhag Mal reached Pachhad Police Station where PW-22 ASI Gulam Mohammad from Police Station, Shimla was already present. Custody of the two appellants was handed over by PW-24 Bhag Mal, Inspector to PW-22 ASI Gulam Mohammad. Various articles recovered from the two appellants and from inside the car, which had been sealed into eleven parcels, were also handed over. PW-22 Gulam …8… Mohammad handed over the custody of the two appellants to PW-25 Jagdish Sharma on 16.11.2001 at Shimla. A-2 (Deep Ram) was interrogated by PW-25 Jagdish Sharma, Inspector. He made a disclosure statement that he had purchased knife Ext.P-21 from PW-9 Gurnam Singh of Lower Bazar, Shimla and “Darat” Ext.P-20, from PW- 10 Nek Ram of Lakkar Bazar, Shimla. This statement was made in the presence of PW-8 Des Raj. 8. Eleven parcels containing various articles recovered from the appellants and the car by which they were travelling, were deposited by PW-22 SI Gulam Mohammad with Gopal Singh, MHC of Police Station Sadar, Shimla on the same day. Various blood stained articles including “Darat” and knife, which PW-25 Jagdish Sharma had seized from the spot, were also made into parcels and the parcels sealed. Those parcels were deposited with PW-19 Gopal Singh on 15.11.2001 itself. On 16.11.2001 spot was got inspected from a team of Forensic Science Laboratory. The team took photographs of the shoeprint on a mat and also inspected one Chatai. 9. Postmortem examination of the dead bodies was conducted by PW-16 Dr. H.S. Sekhon. On the dead body of Sandeep Sood, he noticed the following 25 injuries:- 1. Lacerated wound over forehead in the centre area 2x1x1/2 cms deep in size; 2. lacerated wound irregular left side of forehead 4x1x1/2 cms; 3. Chop wound 5x1x1/2 cms deep above the injury No.2 on left side; 4. Chop wound 4x1x1/2 cm. below injury No.2; 5. Two stab wounds on scalp 1/2x1/2x1 cm deep each left parietal area; …9… 6. Chop wound 3x1x1 cm left parietal area of scalp; 7. Chop wound 2x1x1/2 cm just on the right side of injury No.6; 8. Chop wound 4x4x1/2 cm over left parieto occipital area; 9. Chop wound 3x3x1/2 cm over right parieto occipital area; 10. lacerated wound 4x4x1/2 cm over back of skull; 11. lacerated wound 4x5x bone deep over right parieto occipital area; 12. Incised wound 2x1/2 cm skin deep below left eye; 13. lacerated wound 1x1/2 cm over upper lip; 14. Chop wound 9x1x1/2 cm over left cheek below left ear; 15. Multiple small chop wound 8 in number over chin; 16. Multiple scratch abrasions over right cheek 16(b) Chop wound 14 x 3 and half x 3 cm deep on right side of neck injuring vessels and neck structures except some part of right side; 17. Chop wound involving whole of neck front and back 31x6 cms vertebra deep with cut in cervical vertebra 5th and 6th trachea cut, thyroid cartilage cut in the cardial vessels and nerves as well as muscles; 18. Chop wound 8x3x1 cms over left upper arm linear oblique; 19. Multiple abrasion over back of left forearm; 20. Multiple chop wound of left hand partial severing of the fingers as well as palm (defence wound); 21. Multiple chop wound of right hand partial fingers as well as the palm (defence wound); 22. multiple stab chop wound six in number in the left gluteal region 23. Multiple chop wound on right lower limb; 24. Multiple chop wound on left lower limb; …10… 25. There was stab wound 3x3x4 cms over base of penis.” 10. He also noticed gross contusion of scalp over back of the skull, circular depressed fracture of skull 4 cms over right parieto occipital region and extra dural bleeding over right side of brain area. He opined that the cause of death was hemorrhagic shock resulting in the ante-mortem cut throat injury and the death appeared to have occurred instantaneously with the infliction of the said injury. Probable time gap between death and postmortem was opined 24 to 36 hours. Postmortem was conducted on 16.11.2001 at 12.45 PM, per postmortem report Ext. PKK. 11. On the dead body of Pushpa Devi, following injuries were noticed:- 1. Contusion 4 cms x 5 cms below right eye bluish red in colour; 2. Chop wound involving front of neck and right side of neck 23 cms x 4 cms vertebra deep with cutting of trachea, thyroid cartilage C5 and C6 vertebra and vessels of the neck. 3. Both lobules of both ear cut. 4. Left alae of the nose cut (2 cm in length); 5. Chop wound 5 cms x 3 cms muscle deep over dorsum of right wrist with multiple scratches over dorsal aspect of left hand over middle finger and transverse in direction; 6. Cranium, thorax and abdomen were normal; 7. Stomach was empty. No peculiar smell.” 12. The doctor opined that cause of death was hemorrhagic shock as a result of ante-mortem cut throat injury and the death took …11… place immediately after infliction of the said injury. Probable time gap between the death and the postmortem was 24 to 36 hours. Postmortem was conducted at 1.30 PM on 16.11.2001, per postmortem report Ext. PMM. 13. Various blood stained articles recovered from the appellants or the car they were travelling by when intercepted at Dosarka near Nahan and from the spot, were sent to the Chemical Examiner. As per report, Ext. PUU of the Chemical Examiner, jacket Ext.P-1, identified to be of A-1 by PW-1 Satish Kumar, which was recovered from room No.102, where dead body of Sandeep Sood lay, shirt and pants of A-2, pants and pyjama of A-1, which were taken into possession after their interception at Dosarka in the area of Nahan Police Station, were found to be stained with human blood of group “A”. As per said report, sample blood of Sandeep Sood, which was collected from the spot, was also of group “A”. On the nose pin and ear tops, recovered from A-1, human blood was noticed. Locks of hair recovered from room No.102, socks of A-1, sample of hair of A-1 and leggings of A-1, were found stained with blood. Locks of hair and flesh recovered from room No.102, hair found on jacket Ext.P-1 of A-1, hair found on sweater Ext.P-2 of A-2 tallied with the sample of hair taken from the hair of the dead body of Sandeep Sood. 14. On the completion of investigation, the two appellants were challaned in the Court of concerned Judicial Magistrate, who after complying with the requirements of Section 207 Cr. P.C, committed the case to the Sessions Court. After perusing the record and hearing the counsel for the appellants and the Public Prosecutor, the trial Court charged A-1 with the offences under Sections, 302, 302 read with Section 34, 379 read with Section 34, 394 read with Section 397 and …12… Section 342 read with Section 34 of the Indian Penal Code and A-2 with the offences, under Sections 302 read with Section 34, 379 read with Sections 34, 394 read with Section 397 and Section 342 read with Section 34 of the Indian Penal Code and on their pleading not guilty, put them on trial. On conclusion of the trial, the appellants were convicted and sentenced as aforesaid. 15. Trial Court has made a reference to this Court for confirmation of sentence of death imposed upon A-1, which we will hear and decide later on. In this judgment, we are dealing with the appeal of A-1 challenging his conviction (not the punishment part) and the appeal against his conviction and sentence filed by A-2. We will deal with the appeal of A-1 against the sentence part alongwith reference received from the trial Court for confirmation of penalty of death later on, after hearing the parties. 16. Trial Court has held that the following circumstances stand established against the appellants and these circumstances conclusively prove that it is the appellants who have committed the offences of murder, robbery and wrongful confinement:- (a) Appellants were employed in the hotel of deceased Sandeep Sood; (b) Appellants were present in the hotel on the morning of 15.11.2001 when the crime was committed; (c) Appellants absconded from the hotel of the deceased in deceased’s Car No.CH-03A-3235 and were intercepted at Dosarka in Nahan District at 1 P.M.; (d) Clothes and the shoes of the appellants were stained with blood when their car was intercepted at Dosarka in Nahan District; (e) Appellants were having injuries on their person when medically examined at Zonal Hospital, Nahan in the evening of 15.11.2001; …13… (f) Appellants when intercepted and apprehended at Dosarka were in possession of jewellery and other articles belonging to the deceased; (g) Ear tops and nose pin of deceased Pushpa Devi recovered from the appellants at the time of their apprehension at Dosarka, had human blood and flesh on them, which indicated that they themselves had removed those items of jewellery from the person/dead body of Pushpa Devi; (h) A-2 Deep Ram had purchased “Darat-20” from PW-10 Nek Ram and knife Ext.P-21 from PW-9 Gurnam Singh, 4- 5 days prior to the commission of the crime; (i) “Darat” Ext.P-20 and knife Ext.P-21 have been opined by PW-16 Dr. H.S. Sekhon, who conducted postmortem examination, to be the likely weapons of offence; (j) Shoe prints found on “Chatai” Ext.P-26 have been opined by Forensic Science Expert, vide report Ext. PTT, to match with the shoes of the appellants; (k) Foot mats of the car Exts. P-39 and P-40 and plastic covers of the seats of the car Exts. P-95 and P-96, had blood stains thereon; (l) On the jacket Ext. P-1 of A-1 and pants Ext.P-4 of A-2, hair were found which matched with the sample hair of deceased Sandeep Sood. 17. We have perused and analyzed the evidence adduced by the prosecution and find ourselves in full agreement with the trial Court that the evidence on record conclusively proves the aforesaid circumstances. 18. PW-1 Satish Kumar, in no uncertain terms, testified that the appellants were employees of deceased Sandeep Sood and that on the night immediately preceding the incident and also on the morning of incident, they were present in the hotel. This part of the testimony of PW-1 Satish Kumar was not subjected to cross- examination. A-1 in his statement, under Section 313 Cr. P.C., admitted that he was employed with deceased Sandeep Sood and that he was present in the hotel on the morning of 15.11.2001 when the …14… crime was committed and also on the preceding night. No doubt A-2 in his statement, under Section 313 Cr. P.C, stated that he had gone to his quarter on 14.11.2001 to celebrate Diwali and was not there on the night intervening 14/15-11-2001 and came to the hotel on the morning of 15.11.2001 when the police was standing at the gate, but this plea was not suggested to any of the witnesses of the prosecution, including PW-1 Satish Kumar, in the course of their cross-examination and also this plea is falsified by the fact that he was apprehended from the stolen car of deceased Sandeep Sood alongwith A-1 at Dosarka (Nahan). The evidence with respect to this fact is being discussed in the later part of this judgment. Therefore, no fault can be found with the findings of the trial Court that the appellants were employed with deceased Sandeep Sood in his hotel and they were present in the hotel on the morning of 15.11.2001. 19. It stands established by the testimony of PW-24 Bhag Mal, Inspector, Police Station, Nahan, PW-17 Anil Kumar, Constable, Police Station, Nahan, PW-5 Dr. Sushil P. Vermani, Medical Officer of Zonal Hospital, Nahan, PW-13 Balbir Singh, MHC, Police Station Nahan and PW-14 Daya Ram, H.C. Police Station, Pachhad, that the appellants were apprehended at Dosarka in Nahan District when travelling by car No. CH-03A-3235 belonging to deceased Sandeep Sood and various articles of jewellery and other belongings of the two deceased were recovered from them. PW-13 Balbir Singh proved the