1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T STATE Vs. SUBHASH (1)MURDER REFERENCE No.1 of 2009 SUBHASH VS. STATE (2) CRIMINAL APPEAL NO. 72 of 2009 SUBHASH VS. STATE (3) CRIMINAL APPEAL NO. 73/2009 Date of judgment : 27th March,2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI C.M.TOTLA, Mr. K.R.BISHNOI, Public Prosecutor. Mr. V.K.BHADU, for the accused appellant. BY THE COURT: (Per Hon'ble N.P.GUPTA,J.) This murder reference has been made, by the learned Addl. Sessions Judge, Bhadra Dist. Hanumangarh, for confirmation of the death sentence, passed by him on the accused Subhash, vide his judgment dt. 22.12.2008, passed in Sessions Case No. 19/06, whereby he had convicted the accused for the offence under Section 302, 397 and 460 IPC, while awarding death sentence for the offence under Section 302 also imposed a fine of Rs. 2,000/-, in default to undergo one year's rigorous imprisonment in the event of death sentence being not confirmed, then, for offence under Section 397 sentenced to 7 years rigorous imprisonment, and under Section 460 IPC sentenced to imprisonment for life, and a fine of Rs. 1000/-, in default to undergo six months rigorous imprisonment. The accused has also filed appeals. Appeal No. 72/2009 being the represented appeal, while 2 Appeal No. 73/2009 has been sent from jail. In both those appeals conviction and sentences recorded against the accused have been assailed. Thus, all these three matters arise out of the same judgment, and are, therefore, being decided by this common judgment. Brief facts of the case are, that on 30.7.2006 at 11 A.M. Shyam Sunder, P.W.1 lodged a report at police station Bhadra, alleging that on that day at about 7-7.30 in the morning, while returning from Hanumanji temple after worshipping, when he reached the shop of Lalchand Mangaliwala, there police had come because there was a theft in the shop of Lalchand, and when the police people went upstairs in the process of investigation, he also followed them. It is then alleged, that adjoining Lalchand's shop there is house of his aunts, being Laxmi Devi and Sita Devi, wherein they were living all alone, and from the roof of Lalchand he happened to see towards his aunts' house, and saw that Laxmi Devi was lying on the roof. He then went near her, and found her dead. Then, he and police people came down from that roof, and found that in one room in the ground floor the house hold articles were lying helter-skelter, and found, that on the cot his other aunt was lying upside down, with face smeared with blood. Thus, some unknown persons have committed criminal trespass into the house of Laxmi Devi and Sita Devi, and has killed them, and has stolen away the goods. This report is Ex.P-1, formal F.I.R. whereof is Ex.P-2. Police, that very day commenced investigation, including got the post mortem examination of the two deceased conducted, collected one empty glass smelling alcohol, and having decipherable finger prints. Laxmi Devi was found tied with grey colour turban around the neck, which turban was taken into 3 possession. Rs. 125/- cash, and one laminated paper, whereon some Mantra was scribed, broken pieces of bangles, and burnt ends of Bidis, were also taken into possession. One button smeared with blood, lying on the right side of Laxmi Devi was also taken into possession. Blood smeared clothes of the deceased were also taken into possession, site inspection notes and site plans were prepared. Then, after further investigation, including arrest of the accused, effecting recovery of various incriminating articles, at his instance and pursuant to his information, obtaining Forensic Science Laboratory reports, and getting conducted test identification of the articles recovered, charge-sheet was submitted for the offence under Section 458, 459, 397, 398 and 302 IPC. The case was then committed to the learned trial court. After hearing learned counsel for the accused, learned trial court declined to frame charges for the offences under Section 348, 459 and 398, and instead framed charges for the offences under Section 460, 397 and 302 IPC. The accused obviously denied the charges. During trial, the prosecution examined 23 witnesses, and tendered in evidence 70 documents. In the statement under Section 313 Cr.P.C., the accused adopted stand of denial, and claimed to be innocent. He further stated, that he was arrested by the police only as a vagabond, and denied to have got recovered any article. However, no evidence was led in defence. The learned trial court after so completing the trial convicted and sentenced the accused as above. Thus, from the above narration this much is clear, that in the present case there is no eye witness, and the case rests on circumstantial evidence only. The 4 circumstances relied upon by the prosecution, and as have been found proved by the learned trial court, against the accused, are as under:- (1) The accused was seen near the place of incident in township of Bhadra while he is a resident of Suratgarh. (2) The articles of theft being golden chain, silver plate, silver bowl, aluminium box which belonged to Sita Devi and Laxmi Devi which were being seen with them by the daughters of Laxmi Devi, and has been identified by them, has been recovered at the instance of, and pursuant to the information furnished by the accused under Section 27 of the Evidence Act, and for which no satisfactory explanation was given. (3) The blouse of Sita Devi, and knife recovered from the accused, were having the same human blood group, for which also no satisfactory explanation was given. (4) The Gilas of glass smelling alcohol, which was recovered from the place of incident, was having decipherable finger prints, which finger prints were got compared with the finger prints of the accused, taken during investigation, and were found to be of the accused only, for which also no satisfactory explanation is given. 5 (5) The object of the accused was to commit robbery, and in that process to commit murder. Concluding from these circumstances, the learned trial court found the accused guilty of the aforesaid offences, and referring to the judgment of the Hon'ble Supreme Court in Dayanidhi Vishnoi Vs. State of Orissa, reported in AIR 2003 SC-3915, found it a case to be rarest of the rare one, and imposed sentences as above. We have heard learned counsel for the accused, and the learned Public Prosecutor, and have perused the record very closely. Before proceeding further we may straightway examine the material on record, to find out, as to whether/how many of the incriminating circumstances which have been found proved by the learned trial Court are proved from the material on record. Taking the first circumstance about the accused having been seen near the place of accident in the township of Bhadra before the incident, even though he is a resident of Suratgarh. This fact is deposed by P.W.7 and P.W.8. P.W.7 Deepak Sharma a resident of Ward No.14, Bhadra has deposed, that on 29.7.2006 at about 5-5.30 in the evening he and Sushil were sitting outside the house of witness, at that time, the accused Subhash was seen going towards Soni Bazar, whereupon Sushil asked as to how he is wondering here, and the accused responded, that he is going to see his uncles. Then after 15 to 20 minutes Subhash returned, and went to the lane, which leads to Hissar Bus Stand. The 6 witness then deposed, that father of the accused Subhash, being Daulat Ram, was earlier worshipping Ramdev Temple, situated near their house, and at that time also, the accused Subhash committed theft of silver Chhattar from the temple. Likewise some 4-5 years ago that he has committed theft in the shop of gold smith in Soni Bazar, and his father was removed from temple on account of theft. He has also deposed, that place of incident, being the house of Laxmi Devi and Sita Devi are also near Ramdev temple in Soni Bazar lane. In cross-examination he has maintained to have seen the accused at 5-5.30 in the evening of 29.7.2006, and to be knowing him from before, as his father was worshipping at Ramdev temple, where Subhash used to visit, and he also used to visit. He has also deposed, that earlier he had seen Subhash, whenever he came to Bhadra, but he never asked him anything. He has also deposed, that whole family of Subhash lives in Bhadra. Sita Devi and Laxmi Devi's house are in the backside of lane of his house, after their house there is Soni Bazar, towards which side, Subhash had gone. Then P.W.8 Sushil, also another resident of Ward No.14, Bhadra, has deposed on identical lines, corroborating the statement of Deepak Sharma. In our view, their evidence has not been successfully demolished in cross-examination. Thus, the learned trial court rightly found, that in the previous evening the accused Subhash was seen in the vicinity of the place of incident, in the township of Bhadra. From the charge sheet filed, and from the arrest memo Ex.P-55, it is clear, that the accused is a resident of Ward No. 4 behind Sub Jail, Suratgarh, Dist. Sri Ganganagar. The accused has not offered any explanation in this regard; except stating that he did not go to Bhadra. 7 Then, we come to the next circumstance, about recovery of stolen articles, being golden chain, silver plate, silver bowl, and aluminium box, which the deceased ladies used to keep, and were seen with them by the daughters P.W. 2 to P.W. 4, and which were identified by them. In this regard, we find on record, that accused was arrested vide Ex.P-55 on 30.7.2006 at 8.00 P.M. Then, on 5.8.2006 he gave information Ex.P-56, to the effect, that he has concealed one knife, the clothes which he was wearing at the time of incident, one aluminium box containing Rs. 5,000/-, one silver plate, one silver bowl (Katori), one golden chain having a pendant of Hanuman Ji, in his residential house at Ward No. 4, Suratgarh, which he is prepared to get recovered. This memo is signed by the accused at C to D, and has been proved by the Investigation Officer P.W. 21 Gajendra Singh, and accordingly he got recovered the aforesaid articles vide memos Ex. P-37 and P- 38. Vide Ex.P-37 the clothes of the accused, which he was wearing at the time of incident, and the knife, being weapon of offence, were recovered. From Ex.P-37 it is clear, that the length of knife was 32 cm. having wooden handle of 12 cm. length, and the length of blade was 20 cm., which was stained with blood. Likewise his shirt and blue jeans were also having blood stains. Then vide Ex.P-38 the accused got recovered one aluminium box, whereon name of Sita Devi Khadaria was scribed, and on opening, one silver bowl and one silver plate were found, and on both of which name of Sita Devi Khadaria was scribed, and the golden chain with golden pendant of Hanuman Ji was there, and Rs. 5,000/- were recovered in cash. These two memos 8 have been proved by the I.O. P.W. 21 Gajendra Singh, and P.W. 17 Mohan Lal and P.W. 18 Harish, who have fully supported the recovery. These witnesses were cross examined on the aspect of there being other inmates in the house, but then, they maintained that Kotha from which the articles have been recovered was locked, which lock was opened by the accused Subhash. Then, P.W. 2 to P.W. 4, being Rukmani, Santosh and Maya respectively, who are the daughters of deceased Laxmi Devi, have identified these articles to be of Laxmi Devi, which were being kept by her, and the golden chain was put for test identification parade, which was conducted by P.W. 23 Rameshwar Lal, the S.D.M., who has proved the identification memo Ex.P-22, and has deposed, that the chain was rightly identified by the three witnesses Rukmani, Maya and Santosh. Requisite number of similar articles were mixed therein. He has proved the memo Ex.P-22. We may recall, that the occurrence is of 29.7.2006, and the accused has been arrested on the next day, vide Ex.P-55 at 8.00 P.M. Since then he was in police custody, and the recoveries are affected on 5.8.2006. Thus, it can also be said, that he was found in possession of stolen articles, belonging to the deceased, soon after the occurrence of murder. Likewise, from Ex.P-37, the evidence of P.W. 21, and P.W. 17 and P.W.18, read with Ex.P-56, it is also established, that the knife being the weapon of offence, was recovered on the information, and at the instance of the accused, from his possession, and the report of Forensic Science Laboratory, being Ex.P-60, clearly reports that Article-1 from Packet-F and Article 2 from Packet-H was found to be stained with Human blood of Group-B. Similarly, the blouse of deceased Sita Devi taken into possession by the police vide Ex.P-8, which is proved by P.W.21 the Investigation Officer, which was marked by 9 figure “F”, was also found in Ex.P-60 to be stained with human blood, of the same group, as was found on the knife. These memos have also been proved by their respective Motbirs, being P.W. 9 and 10 Dayanand and Madan Lal. Linking evidence has also been led to prove that from the time of seizure till they reached Forensic Science Laboratory, their seals remained intact. Thus, in our view, this circumstance is also clearly established, that the golden chain, silver bowl, silver plate and aluminium box, containing Rs. 5000/- was robed away by the accused, which were recovered from the possession of the accused, pursuant to his information, and at the instance of the accused. Likewise, it is also established, that the goods got recovered, the weapon of offence being knife which was found stained with human blood, and the blouse which was found on the deceased Sita Devi was also found stained with human blood of Group-B, and in that regard also no satisfactory explanation has been offered. Now we come to the next circumstance, being recovery of Gilas of glass smelling alcohol and bearing decipherable finger-prints of the accused. In this regard P.W. 1 the informant has deposed, that the police had recovered one Gilas of glass, having decipherable finger prints, and duly sealed it vide Ex.P-14, which bears his signatures A to B. Then, P.W. 21 has also stated, that at the place of incident, on the domestic grinding mill one Gilas of glass was lying, which was smelling alcohol, and was containing decipherable finger prints of the suspicious person, which was recovered, and has proved his signatures 10 G to H on the memo Ex. P-14. This glass was safely picked up, with the help of frame made of plywood and nut-bolt, and was properly sealed. The Motbirs of this memo, P.W. 9 and 10 being Dayanand and Madanlal have also deposed on the same lines, whose evidence has not been demolished in cross examination at all on this aspect. They proved their signatures to be there on the memo Ex.P-14. Signatures C to D of P.W. 9 have been proved to be of Dayanand, and those of Madanlal being E to F have been proved. Then during investigation, after obtaining necessary permission, specimen finger prints of the accused were taken in presence of the Tehsildar P.W. 19 Inder Singh, on 9.8.2006, being Ex.P-41 to P-44, and the memo thereof had been prepared being Ex.P-40, and the original Gilas and the specimen finger prints were sent for Forensic examination. Linking evidence has also been led to prove that from the time of seizure till they reached Forensic Science Laboratory, their seals remained intact. It was reported by the Forensic Science Laboratory in the report being Ex.P-61, that the chance prints which were photographed are similar and identical with the specimen right thumb print photographs of Subhash, so also right index finger, right little finger and right ring finger have also been found similar to that of Subhash. Detailed reasons about identifying them to be similar have been given in Ex.P-61, and no explanation has been offered by the accused in this regard either, as to how his finger prints happened to be available at the house of the two deceased. Thus, in our view, this incriminating circumstance is also clearly established on record. Then, so far as 5th circumstance relied upon by 11 the learned trial court is concerned, being about the object of the accused to commit robbery, and in that process to commit death. We have gone through the entire record very closely, and find from the Inquest Report of the two deceased, being Ex.P-4 and Ex.P-5, and their post mortem reports being Ex.P-30 and 29 respectively, that the two deceased died homicidal death. The deceased Laxmi Devi was strangulated to death, while Sita Devi was killed, by causing knife injury on the neck. In Ex.P-29, it has been reported by the doctor, that there was an incised wound of 2 ½ to 3/4” Trachea deep which is cut above the level of cricoids cartilage, tail whereof was towards left side. On dissection the trachea ring and trachea was found cut upto lumen. Huge amount of blood was found in the trachea distal path. Likewise, clotted blood was present around neck region, Left carotid artery was found cut anteriorly, and this caused the death, due to haemorrhage, shock due to cut injury of left carotid artery. Likewise in Ex.P-30 it was found, that the deceased was having ligature mark of 2” broad on the front and sides of neck, pinkish in colour, situated in the mid neck region. On dissection, subcutaneous tissue were ecchymosed, muscle fibres torn, Trachea rings were fractured, and thus it was found, that the deceased died of asphyxia, due to strangulation, which was ante-mortem in nature. The knife with which the injury has been caused, as noticed above, was recovered from possession of the accused, soon after the incident, and the turban with which the deceased Laxmi Devi was strangulated, was also recovered from the spot, one end thereof was tied with cot, while other end was tied round the neck. This fact, and recovery, are proved from the evidence of P.W.1, and it was recovered vide Ex.P-7. This Ex.P-7 has been duly proved by P.W. 1 Shyam Sunder, P.W. 21 Investigation 12 Officer Gajendra Singh, Motbirs P.W. 9 and 10, being Dayanand and Madanlal, who have proved their signatures on Ex.P-7 at C to D and E to F. P.W. 1 Shyam Sunder has proved his signatures A to B, and the I.O. has proved his signatures G to H. Thus, the murder and robbery formed part of the same transaction. Obviously, it is not shown, in any way, that there was any previous enmity between the deceased on the one hand, and the accused on the other hand, nor any other motive has come on record. On the other hand, from the statement of P.W. 7 and P.W. 8, we get an indication, that the accused had committed theft on earlier occasion also, including that in the temple, and therefore, it is reasonable to infer, that finding the two old ladies to be soft target, he went there to commit theft, by committing trespass during night hours, and in that process also committed murder of both of them. Thus, it is established, that the accused had committed trespass in the house during night, in the circumstance which clearly bring it within the four corners of house breaking by night, and as a part of same transaction, at that time caused death of two persons, being Laxmi Devi and Sita Devi also. This circumstance is also thus clearly established. We are mindful of the fact, that in cases resting on circumstantial evidence, it is established law, that each circumstance sought to be established, should indicate towards the guilt of the accused, i.e. it should be an incriminating circumstance, secondly each such circumstance should be clearly established by legally admissible reliable evidence, thirdly all such circumstances so established should form a complete chain establishing the guilt of the accused, and lastly the chain so formed should 13 also negative innocence of the accused on all reasonable hypothesis. If present case were to be examined on above parameters, in our view, it is clearly established, that there is no reasonable hypothesis which can be conceived, to indicate innocence of the accused, where he was found near the place of incident in the previous evening, the articles belonging to the deceased have been recovered from his possession practically immediately after the occurrence, blood stained weapon of offence stained with the same group of blood as that of the deceased is also recovered from the possession of the accused soon after the incident, rather immediately after the incident, and the clothes which the accused was wearing at the time of incident were also recovered from the accused bearing blood stains, the finger prints on the Gilas of glass found at the place of incident tally with the finger prints of the accused, from this it is clearly established that the accused did go at the place of incident, caused the death of two victims, and committed robbery of the articles recovered from the possession of the accused, which were belonging to the deceased, and no explanation whatever has been offered on the side of the accused, with regard to any of these circumstances. Obviously, the articles could not have come into possession of the accused, otherwise then by his committing the aforesaid offences. Thus, in our view, the learned trial court was right in finding the accused guilty of the three offences as found. Then, comes the question of sentence. The learned 14 trial court has relied upon the judgment of Hon'ble the Supreme Court in Dayanidhi’s case and found it to be, rarest of the rare case. We may observe at this place, that the circumstances found in that case against the accused, were identical, as found in the present case. However, in that case, for finding that case to rarest of rare case, the Hon'ble Supreme Court noticed, that in that case the accused was related to the deceased, was on visiting terms with them, and on the evening he was in the company of Anirudha, one of the deceased therein, and was seen leaving the house of Anirudha in the morning, coupled with the fact, that he was not living in that village, he had taken dinner, and in the intervening night he committed homicidal death of the three persons. The accused was in the need of money, and the gold ornaments belonging to the deceased Lata and Puja were found in possession of the accused on 4.6.1998, and were sold to P.W. 17 for a sum of Rs. 7200/-, which money was recovered at the instance of the accused from his house. He was found to have committed murder of Anirudha, Lata and Puja, the three ladies. In those circumstances it was found, that the murder was committed in such a deliberate diabolic manner, while the victims were sleeping, without any provocation, and that too having enjoyed hospitality and kindness of the deceased, committed cold blooded, pre-meditated death of the victims, which included a child of three years, just to gain some monetary benefits. In the case in hand, many of these circumstances are not there, inasmuch as the accused had no relation with the deceased. It is not shown, that there was acquaintance with the deceased, or was on visiting terms, rather the accused is shown to be a resident of different place, being Suratgarh, and then, it is also significant to note, that as is clear from Ex.P-9, that after entering in the gate, 15 after going about 3 ft., Rs. 120 currency notes were found lying scattered on the floor, out of which one