1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CONFIRMATION CASE NO.3 OF 2005 CONFIRMATION CASE NO.3 OF 2005 CONFIRMATION CASE NO.3 OF 2005 The State of Maharashtra : Appellant. versus Ajitsingh Harnamsingh Gujral : Respondent. WITH WITH WITH CRIMINAL APPEAL NO.518 OF 2005 CRIMINAL APPEAL NO.518 OF 2005 CRIMINAL APPEAL NO.518 OF 2005 Mr.Ajitsingh Harnamsingh Gujral ] (At present lodged at Yerawada ] Appellant. Central Prison, Pune,Maharashtra] (Original Aged about 50 years. ] Accused) versus The State ] (Meghwadi Police Station, Mumbai] In their C.R.No.54/03) ] Respondent. Mrs.A.S.Pai, APP, for the State. Mr.S.G.Abbas Kazmi for the original accused. 2 2 2 CORAM : D.G.DESHPANDE CORAM : D.G.DESHPANDE CORAM : D.G.DESHPANDE S.A.BOBDE, JJ. S.A.BOBDE, JJ. S.A.BOBDE, JJ. DATED : JUNE 26, 2006. DATED : JUNE 26, 2006. DATED : JUNE 26, 2006. JUDGMENT : [PER D.G.DESHPANDE,J.] JUDGMENT : [PER D.G.DESHPANDE,J.] JUDGMENT : [PER D.G.DESHPANDE,J.] 1. The Confirmation Case relates to the sole accused Ajitsingh Harnamsingh Gujral so also the Appeal which has been filed by him. The accused has been convicted by Additional Sessions Judge, Greater Bombay for the offence under Section 302 of the Indian Penal Code for murder of his wife Mrs.Kanwaljeet Kaur, his son Amandeepsingh and two daughters viz. Neeti and Taniya and, he was sentenced to death subject to confirmation of this Court. The accused has challenged his conviction by filing separate appeal. Both were, obviously, heard together by us. The Additional Sessions Judge has also passed an order relating to Muddemal Property with which we are not directly or immediately concerned. 2. The accused is a businessman. He was a married man having one son and two daughters. He was married with deceased Kanwaljeet Kaur about 3 3 3 25 to 27 years prior to the incident dated 10-04-2003. He had a son Amandeepsingh aged about 20 years and two daughters viz. Neeti and Taniya, aged about 22 years and 13 years respectively. All of them were killed by this accused in early hours of the morning on 10-04-2003 by pouring petrol on their persons and setting them on fire. 3. Earlier the accused belonged to Ludhiana. However, he was shifted to Mumbai with his family and started residing in Jyotsna Building. Initially he was doing business of catering in the same building and his son Amandeepsingh was assisting him in that business. After some time, the accused shifted his catering business in Kamlesh Building which is situated in the same locality of Shere-Punjab colony, Andheri. There were several employees of the accused to assist him in the business of catering. Those servants used to sleep in front of his flat in the varandah. The accused was having his Maruti Zen Car and his son was having motorcycle. 4. According to the prosecution, the accused was a hot tempered man. He was a dictator in the 4 4 4 family and his wife & children were resenting his dictatorship. There were frequent quarrels in the family on account of the attitude of accused. Further it is alleged by the prosecution that the accused was ill-treating his wife and at twice he had assaulted her with a leather belt. 5. On the night of 09-04-2003 the accused and all his family members were in their flat. All the servants were sleeping out side. The accused was seen coming to the flat between the night of 09-04-2003 and 10-04-2003. There were two bed rooms in the flat of accused. Ordinarily the accused and his wife used to sleep in one bed room and three children used to sleep in another bed room. There was quarrel on the night of 09-04-2003 between the accused and his wife after he returned back. Then between 4.00 and 4.30 a.m. some of the servants heard a big noise of something bursting followed by or preceded by crying in pain. The servants woke up and found that the flat of the accused was on fire. There was utter confusion and chaos. Somebody phoned to fire brigade and fire engine came. The police also followed. Door of the flat was opened. It was smoky . Strong smell of petrol was coming. 5 5 5 Fire was extinguished. Then only they entered the bed room, where four bodies of the members of the family of accused viz. his wife, his son and two daughters were found fully burnt and dead. The police made inquiry from the servants and then a report of murder was lodged by PSI Prakash Shivram Kamble. Investigation soon started. Inquest panchanama, spot panchanama were made. Bodies were sent for post mortem. 6. In their preliminary inquiry, the police found that the Maruti Zen Car of the accused was not there and the accused was also not there. Attempts were being made to trace and search him and, ultimately the accused was caught hold of on or near Kisangad, Madanganj in Ajmer District on 14-04-2003. The car which the accused was driving was seized so also an amount of 7,68,080/- was seized along with about 24 silver coins, 7 safari dresses and seven turbans. A police officer was deputed from Bombay and the accused was brought to Bombay. 7. Then statement of the accused was recorded under Section 27 of the Evidence Act and a red bucket from which he had thrown petrol on 6 6 6 the persons of all the four members of his family was recovered at his instance. 8. All the muddemal, recovered by the police from the spot viz. burned clothes, petrol can, bucket, broken glass pieces etc. were sent to the Chemical Analyser. 9. In the inquest, it was found that son Amandeepsingh had certain injuries on his body. Because of fire, the glass from windows was broken, the glass pieces were shattered in the room and one piece was removed from one of the injuries of stomach of the son. Expert electrician was called. He inspected the premises and opined that there was no short circuit. The Air-Conditioner’s compressor was intact. Post mortem of all the bodies was conducted and it was found that all the four persons died as a result of burning. 10. During the course of investigation the statements of relatives of the deceased, neighbours, and the servants of the accused were recorded. All the muddemal property was sent to the Chemical Analyser for opinion. Thereafter 7 7 7 charge sheet was filed. Separate charges under Section 302 of the Indian Penal Code was framed against the accused for committing murders of his wife Kanwaljeet Kaur, his son Amandeepsingh and two daughters Neeti and Taniya. The accused pleaded not guilty to the charges. Thereafter, the Additional Sessions Judge, recorded the evidence of the prosecution witnesses. In all 19 witnesses were examined as the prosecution witnesses. Thereafter statement of the accused under Section 313 of the Criminal Procedure Code was recorded. The accused expressed his desire to examine witnesses in defence of his plea of alibi and, accordingly four witnesses were examined by the accused. The Additional Sessions Judge heard the arguments and also took on record the written arguments submitted by the advocate for the accused and, ultimately came to the conclusion that the prosecution has proved beyond reasonable doubt that the accused has committed murders of all four members of his family and, so far as sentence is concerned, the Additional Sessions Judge came to the conclusion, after considering cases cited before him by both the sides, that this was a rarest of the rare case and imposed penalty of death upon the accused. 8 8 8 Hence this Reference and the Appeal by the accused. 11. The advocate for the accused before us was also the advocate for the accused before the trial Court. He attacked the judgment of the trial Court on the following grounds. . Firstly, according to him, the accused was leading a happy marital life for more than 25 to 26 years before the alleged offence and he had no motive to kill all the four inmates of his family, nor the prosecution was able to prove any motive. Secondly, according to him, though the witnesses had tried to create a picture that the accused was very hot tempered and/or short tempered person and was a dictator in the house, it was not so. According to the defence witnesses, the accused was treating all his family members equally with respect and love. Son Amandeepsingh was treated equally as he was made to look after the business and share responsibility of the family and, if the accused was a dictator, he would not allow his son to take part in conducting the business. Thirdly, none of the servants of the accused, two out of 9 9 9 them examined by the prosecution, has nowhere stated that the accused was a hot tempered and/or short tempered person. No one from them or any of the employee working under the accused complained against the accused about the ill-treatment. 12. The advocate for the accused further contended that the accused had no reason to kill all the four members of his family. His sister Gurdeep Kaur was suffering from cancer at Delhi. In March/April 2003 her condition was critical and therefore at about 2.00 a.m. on 10-04-2003 the accused left his house to see his ailing sister at Delhi. The accused stayed at Udaipur in a hotel in his own name. He had not changed number plate of his Maruti Zen. He had carried sufficient amount to meet the expenses of treatment of his sister, and therefore, it could not be said that the accused was absconding. Plea of alibi, as raised by the accused, according to his advocate, was successfully proved and, therefore, on that count itself, the accused was entitled for acquittal. 10 10 10 13. The advocate for the accused further contended that all this investigation done by the police was done at the behest of Phuldeepsingh Marva - the brother-in-law of deceased Kanwaljeet Kaur with the only aim of implicating the accused. It was contended by the advocate for the accused that because the accused was not found with his car in the morning of 10-04-2003, the police concluded that it must be accused who committed the murders and then shut their eyes to the other aspects of the matter and did not make any investigation to really find out as to who was culprit. 14. The advocate for the accused contended that if the evidence of two servants of the accused is taken into consideration, it will be clear that the fire broke out at about 4.00 or 4.30 a.m. on 10-04-2003. One of the servants heard some cries and, if that is so, it indicated that all the four persons died at about 4.00 a.m. or 4.30 a.m. and by that time the accused had already left his house at 2.00 a.m. Therefore, the accused could not be held responsible for these murders. 11 11 11 15. The advocate for the accused further contended that the accused was not permitted to cross examine the witnesses fully . Many of his important questions were disallowed by the trial court and that result in mis carriage of justice as there was no fair trial given to the accused. Regarding investigation, the advocate for the accused tried to contend that if Amandeepsingh had three incised wounds and, a chopper was recovered from the scene of offence, then in that case it indicated that the assailant had inflicted some injuries by chopper on Amandeepsingh & if that was so, the whole theory of the prosecution about burning of four persons by pouring petrol upon them becomes suspicious, because many questions remain unanswered. 16. The advocate for the accused also contended that the so called discovery statement made by the accused leading to the discovery of red bucket allegedly used by the accused for pouring or throwing petrol upon the four victims was a totally bogus theory. Because if house of the accused was searched fully in his absence on 10-04-2003, then nothing prevented the police from recovering the said bucket in the very first 12 12 12 instance i.e. in the panchanama of scene of offence carried on 10-04-2003 itself. Therefore, this was planting of incriminating articles by the police at the behest of brother-in-law of deceased Kanwaljeet Kaur. 17. Further according to the advocate for the accused, the theory of the prosecution that the accused was last seen entering the house at 12.00 mid night was not sufficient to connect the accused with murders. Because if the murders were committed at or around 4.00 ‘O’ Clock, there was a gap of four hours and that was not sufficient for the prosecution to connect the accused with the offence of murder. According to the advocate for the accused, there was no close proximity of the accused in the house at the time of murder and that theory was required to be rejected. The advocate for the accused also pointed out that 15 days before the incident, the accused had inaugurated a hotel which clearly shows that the accused was financially well of and there was no necessity for him to murder all the inmates of his family. He further contended that this could be a case of mass suicide because of frustration of the family members. In no 13 13 13 case, the accused could be convicted for murders and the entire judgment of the trial court was required to be quashed and set aside. 18. On the other hand, the learned APP Mrs.A.S.Pai contended that all these submissions were made before the trial Court by the defence and they were rightly rejected. She contended that it was proved beyond reasonable doubt that the accused was a hot tempered and/or short tempered person and he was a dictator in the family. Secondly, it has come on record, according to her, that on the night of 09-04-2003 when the accused returned, there was a quarrel between the accused and his wife. Thirdly, seizure of petrol can from the spot with some petrol in it and recovery of bucket used for throwing the petrol on the four victims were the strong circumstances leading to the conclusion about the guilt of the accused. The learned APP also contended that if the accused was seen at 12.00 in the midnight entering in the house and when the four persons were found dead in the house at 4.00 a.m. in burnt condition by petrol, then the prosecution has succeeded in proving the theory of last seen together and, the gap of four 14 14 14 hours did not matter because no out-sider was supposed to enter the house between the midnight and 4.00 a.m. 19. The learned APP for the State contended that even if it is proved that sister of the accused was suffering from cancer, nothing has come on record to suggest that she was in any way serious or was in such a critical condition that the accused was required to leave his house suddenly at 2.00 a.m. as alleged by him, for going to Delhi. The learned APP contended that finding of sum of Rs.7,68,080/- with the accused 24 silver coins, 7 turbans and 7 safari dresses clearly indicates that the accused had planned everything in advance and he wanted to leave Bombay permanently so as to not to return back after committing gruesome murders. 20. The learned APP further contended that there may or may not be motive but the fact, that four persons were killed by the accused, was proved beyond reasonable doubt because of the circumstantial evidence brought on record by examining mother-in-law and brother-in-law; two servants, recovery of cash and other things from 15 15 15 the accused at Kisangad Madanganj, Dist Ajmer Rajsthan, his abscontion from the scene of offence for four days & his arrest by police, at Kisangad Madanganj Dist.Ajmer Rajasthan by Meghwadi Police, Mumbai. Regarding red bucket, the learned APP contended that it is true that the police did search the house of the accused on the date of incident while carrying out panchanama dated 10-04-2003, but according to her, it is not that the police seized everything in the house, unless they get some information that a particular thing was used in the commission of offence and, therefore, when the accused voluntarily disclosed under section 27 of the Evidence Act about use of the bucket in splashing the petrol and when the bucket was found and it tested positive about petrol as per the report of the C.A. then it fully strengthened the case of the prosecution. The learned APP contended that investigation in this case was most impartial. It was not slipshod investigation as alleged by the advocate for the accused. All circumstances brought on record, pointed towards the accused and the accused alone and, therefore, even if the case was based on circumstantial evidence, the guilt of the accused 16 16 16 was proved beyond hilt. Therefore, there was no reason to interfere with the judgment of the Additional Sessions Judge. 21. After these submissions were made by both the sides on merits of the case, they also argued before us, whether this is rarest of the rare case. Both the advocates cited number of authorities before us. But that aspect of the matter will be considered after considering the case of the prosecution on merits, by us, with reference to the respective arguments advanced. 22. The admitted facts, as noted by the trial court in its judgment in this case, are that deceased Kanwaljeet Kaur was the wife of the accused, deceased Amandeepsingh Kaur was the son and deceased Neeti and Taniya were the daughters of the accused. The accused was married to said Kanwaljeet Kaur more than 25 years prior to the incident. They had shifted from Ludhiana to Bombay. That the accused was doing catering business in Bombay. That four persons died on 10-04-2003 in the morning. 23. Since the learned advocate for the 17 17 17 accused contended that this could be a case of mass suicide, we have to consider that aspect first, though we do not find any substance in the said submission. 24. Firstly nothing is brought on record by the defence to show that as to why the mother and her three children should commit suicide if everything was going on smoothly in their family. If the financial position of the accused is well; if he was not dictator, as alleged, and if the son Amandeepsingh was entrusted with the job of looking after the business of the family even at his young age of 20 years, there was no reason for four persons to commit suicide. The theory of suicide in this particular case is most difficult to believe, because a mother, unless she is pervert, insane or totally frustrated with life with no hope of bright prospects or future, would not allow her three children to die along with her and that too in such a ghastly and gruesome manner viz by pouring petrol upon themselves and undergoing deep anguish, sufferings and intent pain preceded by burning on account of petrol. Therefore, this theory of mass suicide, being advanced for the first time 18 18 18 before us without any basis in the evidence in the form of suggestion or any attempt to prove probability of their theory, has to be rejected out right. 25. So far as accidental death is concerned, nothing was brought on record to suggest how all the four persons died as a result of accident. There is positive evidence on record to show that there was no short circuit and there is an evidence of electrician, P.W.15 - Chandrakant Shiva Rawool, who was A.C. Mechanic, to the effect that there was no bursting of compressor. He has stated that he was running a shop namely "Saikripa Refrigeration" and used to repair the fridge and air conditioning units. He has further stated that on 16th April, 2003 he was called by Meghwadi Police Station in the flat of accused to check the air conditioning machine. He saw two AC machines in the flat i.e. two separate AC units in two bed rooms. In the first bed room the plug of the AC was not in working condition and in the second bed room the plastic material in the A.C. unit was found burnt. ; However, the compressor and other steel material and capacitor were not in burnt condition and, 19 19 19 there was no bursting of compressor. He had not noticed any short circuit in the flat. 26. Same is the evidence of P.W.12 Ganesh Anant Parab, who was a lineman at Meghwadi Electricity Receiving Station. He visited the spot, i.e. the house of accused, on 10th April 2003 at about 7 a.m. where the fire brigade and police personnel were present. He noticed that fuse (cut-out) of the electricity supply was taken out. But he noticed that there was no short circuit. There is no cross examination of this witness by the accused. 27. Third witness examined by the prosecution is P.W.13 - Chand Mohd. Ismail Shaikh, who was the Centre Officer in Fire Brigade at Marol, Mumbai. He has stated that he received message from control room about breaking out of fire in the house of the accused. He went there along with staff and fire engine and, before he started the operation, for safety purpose, he had taken out the fuse (cut-out) of the electricity. Nothing was brought out in the cross examination of this witness to show that the victims caught fire by any other reason. 20 20 20 28. It will be, therefore, clear that there is nothing on record, either in the evidence of prosecution witnesses or in their cross examination, from which it can be held that the four victims died as a result of accident. That theory has, therefore, to be totally and completely ruled out. 29. Therefore, the theories of mass suicide as well as death by accident are both required to be and are hereby rejected. So far as homicidal death is concerned, the inquest report, the post mortem report and, the manner in which the four persons died without any resistance clearly show that they died as a result of homicidal death. 30. At this juncture, it is necessary to reject the theory advanced by the advocate for the accused that Amandeepsingh - the son of the accused, was injured with knife or chopper. Firstly, there is no charge in that regard. The charge is very specific in respect of separate victim and that is by burning by petrol. However, merely because the charge is not framed in particular manner, cannot take away the right 21 21 21 of the defence to advance any other theory which is, according to the defence, is consistent or inconsistent with the prosecution case. The theory of use of knife is advanced by the advocate for the accused on the basis of post mortem report of Amandeepsingh. The prosecution has examined Dr.Prakash Maruti Shinde (P.W.2) who conducted the post mortem on all the four bodies. He has proved those four reports at Exhibits 21, 23, 25 and 27. So far as other three victims are concerned, i.e. excluding Amandeepsingh, there is no injury by any sharp object on their persons and nothing was noted in that regard by P.W.2. In fact the cause of death of all the four victims is given as shock due to 100% superficial to deep thermal burns. However, so far as Amandeepsingh is concerned, Dr.Shinde (PW 2) has stated in his evidence and also noted in his post mortem report of Amandeepsingh at Exhibit 21 that there was incised wound over left side lower abdomen 3 cms. medial to the anterior superior iliac