IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA DSR No.1/2007 & Cr.A No.393/2007 Reserved on : 31st March, 2008. Decided on : April 11, 2008 DSR No.1/2007 State of H.P. …Appellant. Versus Harish Kumar …Respondent. Cr.A No.393/2007 Harish Kumar …Appellant. Versus State of H.P. …Respondent. 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 Appellant : Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jawal, Deputy Advocate General, in DSR No.1/2007 and Mr. M.S. Guleria, Advocate in Cr.A. No.393/2007. For the Respondent : Mr. M.S. Guleria, Advocate in DSR No.1/2007 and Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jawal, Deputy Advocate General in Cr.A 393/2007. Surjit Singh, Judge The present appeal and the reference made by the Sessions Court for confirmation of the death sentence, awarded to the appellant, are being disposed of together by this judgment. Appellant has challenged his conviction and sentence for offences under Sections 302, 201 and 380 IPC. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Case of the prosecution, which has led to the conviction of the appellant for offences, under Sections 302, 201 and 380 IPC and award of sentence of death for offence, under Section 302 IPC, sentence of five years rigorous imprisonment and a fine of Rs.20,000/- for offence, under Section 201 IPC, and sentence of five years rigorous imprisonment and a fine of Rs.20,000/- in respect of offence, under Section 380 IPC, may be summed up thus. Deceased Vinod Kumar and PW-6 Vipan Kumar used to work together as Carpenters. In the year 2006, both of them went for Manimahesh Yatra in Bharmour Tehsil of Chamba District. The fair is held in July-August every year. On the way, at Pathankot appellant Harish Kumar met them. He disclosed his name as Hans Raj resident of Ludhiana and made friends with them. They started together from Pathankot for Manimahesh. They broke their journey at Hadsar, on the first day. On reaching Manimahesh they stayed in the same tent. They exchanged their telephone numbers with each other. After attending the fair, appellant went to his place, while the deceased and PW-6 Vipan Kumar returned to their villages in Kangra District. 3. In September, 2006, on Sair (first day of Asauj month of Indian calendar), appellant visited the deceased at his native place. On 27th September, appellant came to Panchrukhi Railway Station and made a telephonic call at the house of deceased Vinod Kumar. He was not at home when the call was made. His father PW-1 Prakam Singh attended the call. Appellant told him that he wanted to go to the house of Vinod Kumar. PW-1 Prakam Singh went to the Railway Station and brought the appellant to the …3… deceased’s house. In the evening, deceased Vinod Kumar also reached his house. Appellant stayed at deceased’s place on 27th and 28th September. On 28th deceased purchased meat and a bottle of Bagpiper Whisky. Meat was cooked at deceased’s place. Around 10.00 in the night, PW-1 Prakam Singh went to the house of the deceased to leave deceased’s small daughter, named Tabu, aged about 22 months, at his place. He saw the deceased and the appellant consuming liquor. 4. The aforesaid daughter of the deceased used to go to her grandparents, who lived in the upper storey of the same building in which the deceased had his residence on the ground floor, early in the morning, around 5, to take her milk feed. On 29th September, 2006, she did not go to her grandparents and, therefore, PW-1 Prakam Singh went to deceased’s place to find out why his daughter had not come that morning. On reaching the house of the deceased he found the dead body of the deceased lying on a bed-box. The appellant, who was there in the night, was missing. On seeing the dead body of his son, PW-1 Prakam Singh started crying. He called PW-2 Sanjeev Kumar Pradhan. PW-1 Prakam Singh did not see his daughter-in-law, i.e. the wife of the deceased, and his aforesaid small grand-daughter. He started searching for them in the house. He found the dead body of his daughter-in-law Meera in one bed-box. In the other bed-box on which the dead body of deceased Vinod Kumar lay, he found the dead body of his grand daughter, aged about 22 months, with her mouth gagged with a piece of cloth. Dead bodies of his son Vinod …4… Kumar and daughter-in-law Meera had pieces of cloth tightened and knotted around their necks. 5. Police was telephonically informed by PW-2 Sanjeev Kumar Pradhan. PW-33 Inspector Sanjeev Chauhan accompanied by other police officials rushed to the spot. In the meanwhile, Incharge, Police Post Panchrukhi, accompanied by his subordinates also reached there. Statement Ex. PW-1/A of PW-1 Prakam Singh, the father of the deceased, was recorded and sent to the Police Station for the formal registration of the case. Case was registered vide FIR Ex. PW-33/A. Scene was got photographed. Photographs are Ex. PW-4/A1 to Ex. PW-4/A30. Two tumblers of glass, one Pepsi bottle, one Bagpiper Whisky bottle, one steel Lota and one steel bowl containing meat, one plate containing some rice and another steel bowl containing mixture of rice and meat were found lying in the room. Inquest was conducted and the dead bodies were sent to the hospital for postmortem examination. 6. PW-25 Dr. Amit Gupta conducted postmortem of the dead body of Vinod Kumar and observed a ligature mark having circumference of 13 inches x .75 inch interrupted at places, dark red in colour with abrasion on the left side of the front neck. He opined that the cause of death was asphyxia caused by strangulation. Viscera was preserved and sent to the Chemical Examiner, who found diazepam and alcohol therein. Postmortem report is Ex. PW-25/C. 7. Postmortem of the dead body of the female child, named Tabu, the daughter of deceased Vinod Kumar, was also conducted by PW-25 Dr. Amit Gupta. He noticed an abrasion …5… around the mouth over upper and lower lips having circumference of 14 cm x ½ cm with interruption at some places. Tongue was depressed due to gagging material. Nail mark 2 mm x 2 mm in size, red in colour, was also noticed. Cause of death was opined to be asphyxia by gagging of oropharynx. 8. Autopsy on the dead body of Meera was conducted by PW-26 Dr. Veena Sharma, who noticed a ligature mark below thyroid cartilage, measuring 11 inch x ¾ inch. A small abrasion in front of neck was also observed. Cause of death was opined to be asphyxia due to strangulation. Viscera was sent to the Chemical Examiner. No liquor or poison was found. Vaginal swabs were taken. Slides of vaginal smear were also prepared. The same were sent to the Chemical Examiner and on the basis of the report of the Chemical Examiner it was reported that the possibility of rape could not be ruled out. However, no injury marks were found on genital organs. 9. The premises were locked and sealed and police Constables were posted outside to guard the scene. The scene was got inspected from PW-34 Dr. Gian Thakur. He noticed finger prints on Bagpiper Whisky bottle, Pepsi bottle and two glass tumblers and lifted the same. He also found two cigarette stubs Ex. P-20 and Ex. P-21 on the spot. The same were picked up and handed over to the Investigating Officer. 10. Appellant was arrested from a place called Ladwa in Kurukshetra District of Haryana. On verification, it was found that his real name was Harish Kumar and not Hans Raj as given by him to the deceased and PW-6 Vipan Kumar. At the time of his …6… statutory personal search, on arrest, among other things, a ring and a pair of earrings Ex. P-29 and Ex. P-30, respectively, were recovered, which PW-1 Prakam Singh identified to be those of his deceased daughter-in-law Meera. 11. Specimen finger prints of the appellant were taken in the presence of PW-32 Aneesh Garg, a Judicial Magistrate. Sample blood of the appellant was also taken by PW-27 Dr. Vinay Mahajan. Specimen finger prints, so taken, were sent to the Finger Prints Expert for comparison with the finger prints lifted from the Bagpiper Whisky bottle Ex. P-2, Pepsi bottle Ex. P-3, glass tumblers Ex. P-5 and Ex. P-6 and the Expert, vide report Ex. PD, found two finger prints lifted from the aforesaid articles to be similar to two specimen finger prints of the appellant. Sample blood of the appellant was sent to the Forensic Science Expert for DNA profile of the saliva on the cigarette stubs recovered from the spot and the said Expert, vide report Ex. PW-33/D, reported that the DNA profile generated from the two cigarette stubs Ex. P-20 and P-21 was consistent with the DNA profile generated from the sample blood of the appellant. 12. Trial Court initially charged the appellant with offences punishable, under Sections 302 and 201 IPC, on 17th July, 2007. Lateron, it amended the charge and offence of theft, punishable under Section 380 IPC, was added. We may state at the outset that even though the charge contains all the particulars of the offences allegedly committed by the appellant, technically the charge is defective. The defect cannot be said to have caused any prejudice to the appellant because, as already noticed, all the …7… particulars of the charge and the substance of accusation are mentioned in the chargesheet. The defect is that the chargesheet, instead of having two separate counts in respect of offences under Sections 302 and 201 IPC, has only one count in which the particulars of both the offences are mentioned and the charge reads that the appellant committed “an offence punishable under section 302/201 of IPC”. Trial Courts should see to it that there is a separate count of charge in the chargesheet in respect of every offence for which the accused is sought to be tried. The charge framed in this case, technically speaking, is not of offence of murder but destruction of evidence of murder. 13. On conclusion of the trial, the appellant was found guilty of all the three offences by the trial Court and convicted and sentenced, as aforesaid. 14. Appellant filed the appeal from jail. He also made a request for providing him with legal aid, expressing his inability to engage a counsel, owing to poor financial condition. We appointed Mr. M.S. Guleria, Advocate, a retired Deputy Advocate General, as counsel for the appellant. He argued both the appeal and the death reference very efficiently, which indicated that he had put in a great deal of labour and took a lot of pains. 15. Evidence by which the appellant was sought to be connected with the crime mainly consists of the testimony of PW-1 Prakam Singh, the father of deceased Vinod Kumar, PW-3 Amar Nath in whose presence finger prints from the Bagpiper Whisky bottle Ex. P-2, Pepsi bottle Ex. P-3, glass tumblers Ex. P-5 and Ex. P-6 were lifted and cigarette stubs Ex. P-20 and P-21 were taken …8… into possession by Forensic Science Expert PW-34 Dr. Gian Thakur, PW-6 Vipan Kumar, who travelled with deceased Vinod Kumar and the appellant to Manimahesh in July-August 2006, PW- 14 SI Onkar Singh, PW-23 HC Ravinder Kumar and PW-24 Dy.S.P. Kaushal Sharma, all of whom arrested the appellant at Ladwa in Kurukshetra District of Haryana, on 3rd October, 2006, PW-25 Dr. Amit Gupta, who conducted the postmortem examination on the dead bodies of deceased Vinod Kumar and child Tabu, PW-26 Dr. Veena Sharma, who conducted the postmortem examination of the dead body of Meera, PW-27 Dr. Vinay Mahajan, who took the blood sample of the appellant for DNA profile, PW-32 Aneesh Garg, Judicial Magistrate, in whose presence the specimen finger prints of the appellant were taken, PW-34 Dr. Gian Thakur, who inspected the spot, lifted the finger prints available on the liquor bottle, Pepsi bottle and two glass tumblers and also seized from the spot two cigarette stubs and handed over the same to the Investigating Officer and PW-33 Inspector Sanjeev Chauhan, who investigated the case. 16. Appellant did not deny that he made friends with deceased Vinod Kumar, while travelling in his company from Pathankot to Manimahesh in 2006. He also admitted that he had visited deceased Vinod Kumar at his native place in September, 2006, on the occasion of Sair festival. He denied that he again visited deceased Vinod Kumar on 27th September, 2006 and was with him on the night of 28th September, 2006. He stated that he did visit deceased Vinod Kumar after the Sair festival, but it was on 24th and 25th September, 2006 and not on 27th and 28th. He also …9… admitted having consumed liquor but stated that it was on 25th and not on 28th September and that he remained at the place of deceased Vinod Kumar only for 2-3 hours on 25th. He admitted that liquor was consumed from a Bagpiper Whisky bottle and there was also a bottle of Pepsi and two glass tumblers and that some quantity of liquor was still there in the Bagpiper bottle, when they finished the drinking bout. 17. Appellant’s plea that he was at the place of the deceased on 24th and 25th and not on 27th or on the fateful night of 28th September, 2006, cannot be accepted, in view of the overwhelming evidence led by the prosecution to the effect that the appellant was at the place of the deceased on 27th as also on 28th September, 2006. 18. PW-1 Prakam Singh, the father of deceased Vinod Kumar very categorically stated that on 27th September, 2006, he attended a call made by the appellant from Panchrukhi Railway Station and on his asking went to the said Railway Station to fetch the appellant, as he wanted to visit the house of the deceased. He stated that the appellant stayed with deceased Vinod Kumar on 27th and 28th and that on 28th when he went to leave his grand-daughter Tabu (deceased) with her parents, he saw the appellant and his son deceased Vinod Kumar consuming liquor and that at that time the television was switched on. No cross-examination was directed by the defence, qua this part of the testimony of PW-1 Prakam Singh, meaning thereby that the testimony of PW-1 Prakam Singh with regard to the aforesaid facts remains unchallenged. …10… 19. The aforesaid testimony of PW-1 Prakam Singh is corroborated by PW-3 Amar Nath, who testified that on 28th September, he saw the deceased and the appellant taking bath at a water source at 7 a.m. This part of the testimony of PW-3 Amar Nath was also not challenged in the cross-examination, as no cross-examination was directed qua the same. 20. Matching of two finger prints on the liquor bottle and glass tumblers with the specimen finger prints of the appellant, per report Ex. PD of the Finger Prints Expert, also corroborates the testimony of PW-1 Prakam Singh. Matching of the DNA profile of saliva on cigarette stubs with the DNA profile of sample blood of the appellant is another piece of evidence corroborating the testimony of PW-1 Prakam Singh. Admission by the appellant in his statement, under Section 313 of the Code of Criminal Procedure, that he had consumed liquor at the place of deceased Vinod Kumar from a Bagpiper Whisky bottle and that two glass tumblers were there, also serves as corroboration to the statement of PW-1 Prakam Singh. 21. Now, when the presence of the appellant at the residence of the deceased persons on the night of 28th September, 2006, is proved and admittedly he was not there on the morning of 29th September, 2006, at 5.00, when PW-1 Prakam Singh went to fetch his grand-daughter, deceased Tabu, which means that he had absconded, he owes an explanation how did the murder of the couple and their young child, aged 22 months, took place and who committed it. In the absence of explanation by him, there cannot …11… be any escape from the finding that it is he who committed the murders. 22. Another circumstance, which connects the appellant with the crime, is the recovery of a ring Ex. P-29 and earrings Ex. P-30 from him at the time of his arrest at Ladwa on 3rd October, 2006. PW-1 Prakam Singh testified that the aforesaid ornaments belonged to his deceased daughter-in-law. The appellant did not deny in his statement, under Section 313 of the Code of Criminal Procedure, that at the time of his arrest the aforesaid ring and earrings were recovered from him. He does not claim these ornaments to belong to him nor has he offered any explanation how the earrings Ex. P-30, which are supposed to be with the women, happened to be in his pocket, at the time of his arrest. 23. Learned counsel argued that the story about the appellant having made a call at the residence of deceased Vinod Kumar on 27th September, 2006, from Panchrukhi Railway Station is unbelievable, because when the appellant had visited the place of deceased Vinod Kumar earlier on Sair occasion, he was supposed to be knowing the location of his (deceased’s) house. The argument has been noticed only to be rejected. PW-1 Prakam Singh very categorically stated that he attended the call made by the appellant and then he went to fetch him from the aforesaid Railway Station. The appellant did not challenge this part of the testimony of PW-1 Prakam Singh. Moreover, the appellant had visited the deceased only once before his visit, in question. There is nothing on the record suggesting that on the earlier occasion also he came by train and, therefore, he was supposed to be …12… knowing the route that led to the house of deceased Vinod Kumar from the Railway Station. May be that he travelled by some other mode and came by different route. Also, some people are unable to remember the route followed by them only once or twice. 24. The above discussed evidence unequivocally points to the guilt of the appellant. Therefore, the appeal filed by the appellant seeking the reversal of the judgment of the trial Court convicting him of the offences of murder, theft and destruction of evidence is dismissed. 25. Coming to the reference received from the trial Court for confirmation of death penalty, it is well settled that death penalty is to be awarded very rarely. It is only in rarest of rare cases, in which the act of accused assumes the degree of extreme depravity that the penalty of death is imposed. Section 354, sub-section (3) of the Code of Criminal Procedure, mandates that special reasons are required to be given by the Court for awarding the extreme penalty of death. While finding out whether such ‘special reasons’ exist or not, the Courts are required to keep in mind both the crime and the criminal. 26. In the present case, trial Court has proceeded on the premise that the appellant visited the deceased with a pre-plan to eliminate him and his family members. This may not be true. No doubt, a hypnotic substance called diazepam was found in the viscera of deceased Vinod Kumar, which suggests that the said substance had been added to the drinks consumed by him (deceased Vinod Kumar), but there is no evidence on record suggesting that the said substance was, in fact, added by the …13… appellant and even if it be presumed that it was he who added it, a further presumption cannot be drawn that he added it to kill the deceased. Undoubtedly, the evidence on record suggests that the appellant went to the house of the deceased with a pre-planned evil design, but did that design include the commission of the offence of murder of deceased Vinod Kumar and all his family members, is a million dollar question. 27. We are of the view that his design did not include the killing of deceased Vinod Kumar and his family members. Probably his intention was only to steal and run away with the valuables and the money of the deceased, when they were asleep and to ensure that they did not wake up, he might have added diazepam to the drinks. Why have we said so is because the appellant went unarmed to the house of the deceased. The pieces of cloth used by him to strangulate the couple and to gag their child were arranged by him, on the spot, by tearing a piece of cloth used by him as a towel. Had he intended to kill the deceased, he would have brought some weapon with him or would have added some poisonous substance to the drinks of deceased Vinod Kumar, instead of diazepam, which is only a tranquilizer. 28. Another reason for our assumption against the killing being the part of the plan of the appellant is that probably he is an unemployed man with no fixed income. It is there in the evidence of the prosecution itself that the appellant sold one of his kidneys to PW-20 Piara Singh for a sum of Rs.1 lac, in December, 2005. He then assumed the name Raj Gurvinder Singh, one of the sons of said Piara Singh and stole his driving licence and affixed his own …14… photograph thereon to use the same as his identity card. He also obtained a mobile phone connection in the name of said Raj Gurvinder Singh affixing his own photograph on the application form. These facts are borne out from phone connection application form Ex. PW 13/E and copy of driving licence Ex. PW-13/F. He also assumed the name of one Hans Raj of Ludhiana who had died long back. These facts show that the appellant might have being committing acts of cheating and swindling etc. under the assumed names of Raj Gurvinder Singh son of Piara Singh and Hans Raj and may be some other names also, with a view to hiding his real identity. 29. No doubt, in the present case, the appellant committed three murders but, as noticed hereinabove, he probably did not pre- plan the same. It is quite likely that when he was trying to commit the theft of valuables and money etc. in the house of deceased Vinod Kumar, his wife woke up and tried to raise alarm, upon which he strangulated her. The same can be said to be the reason for gagging the child to death and strangulating deceased Vinod Kumar. Thus, the appellant appears to happen to kill the couple and their child, under the fear of being caught red-handed while trying to commit theft and on account of the deceased raising alarm and because of that the neighbours gathering and giving beating to him. True it is that three human lives were put to an end by the appellant, within a few hours, but the number of the persons killed can not be the determining factor for award of sentence. In this view of the matter, we find support from the judgment of the Hon’ble Supreme Court in Prithvi (Minor) versus Mam Raj and others, (2004) 13 Supreme Court Cases 279. …15… 30. Moreover, the conviction of the appellant is based on circumstantial evidence, even though such evidence is very strong and there is no reason to disbelieve the same. In a case based on circumstantial evidence, normally the extreme penalty of death is not awarded. This is what the Hon’ble Supreme Court has said in a recent judgment. The citation is Bishnu Prasad Sinha and another versus State of Assam, (2008) 1 Supreme Court cases (Cri) 766 (para 55 at page 782). 31. For the foregoing reasons, we are of the considered view that this is not a rarest of rare cases, warranting the imposition of extreme penalty of death. Therefore, we set aside the sentence of