Case: Suresh Chandra Bahri Vs. State of Bihar

was to be executed. The evidence discussed above shows that her murder was committed in an extremely, brutal, gruesome, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation of the society. The victim was subjected to inhuman acts of torture and cruelty while causing her murder as her body was truncated into two parts in a devilish style evincing total depravity simply to gain control over the property. Having been not satisfied with the killing of his wife Suresh Bahri was further determined to kill his innocent two children at Dhulli farm making them believe that they were being taken on a pleasure trip to the farm and then after they were done to death by inflicting severe injuries on neck and other parts of the body threw their dead bodies in the Varuna river having no consideration for the human life and that too for his own flesh and blood. Suresh Bahri may be having some differences with his wife with regard to the sale of house and her idea about settlement with the children at America but he certainly had no grievance or even any remote cause against his innocent minor children who could never conceive that their father who was their guardian of the first degree was taking them to Dhulli farm for committing their gruesome murder.105. The cold blooded cruel murder of the innocent children by none else but by their own real father shows the enormous proportion with which it was committed eliminating almost all members of the family. We have given our serious thoughts and consideration and posed the question to ourselves whether there could be still a worse case than this where a husband could hatch a conspiracy and kill his wife in a most callous and ghastly fashion as in the present case only on a triffling matter which could have been sorted out in an amicable manner for which no effort appears to have been made by Suresh. Not only this but the appellant Suresh became thirsty of the blood of his own children for absolutely no fault of theirs. In the facts and circumstances discussed above, in our opinion, so far as Suresh Bahri is concerned, the rule of the rarest of rare cases has to be applied as the present case falls within the category of the rarest of rare cases and for the perpetration of the crime of the nature discussed above there could be no other proper and adequate sentence except the sentence of death as there are no mitigating circumstances whatsoever. Having regard to all the facts and circumstances of the present case as far as Suresh Bahri is concerned there is no cause for any interference in the view taken by the two Courts below in awarding the death sentence to him. We, therefore, affirm the conviction and sentence of death awarded to Suresh by the High Court. In the event of the execution of death sentence, the sentence awarded under Section 201 of the IPC shall remain only of academic interest.106. As far as the question of sentence to the appellants Gurbachan Singh and Raj Pal Sharma is concerned, we may state that there is convincing and conclusive evidence for their involvement and active participation in the criminal conspiracy with Suresh to do away with the three members of his family. But from the evidence on record as discussed by us in the earlier part of this judgment it is clear that Gurbachan Singh had reached the house of Suresh at Ranchi in the fateful evening of 10th October, 1983 when Urshia was already done to death by the appellant. Suresh Bahri and Raj Pal Sharma, when Raj Pal Sharma was seen wearing an underwear holding a dagger in his hand and cleaning the blood in the room with cotton. From the evidence it is, therefore, clear that Gurbachan was not a party to the actual murder of Urshia although he was an active member of the party who hatched the conspiracy to kill her. Similarly it is also clear from the evidence that we have discussed in the earlier part of this judgment that though Gurbachan Singh rendered assistance in sending the cot and chairs to Dhulli farm and sharpening the dagger and batalies for the murder of two children but he in fact was not present on 17/18.12.83 at Dhulli farm when the two children were done to death by the appellants Suresh and Raj Pal Sharma. In these facts and circumstances, in our opinion, the appellant Gurbachan Singh does not deserve the extreme penalty of death but the adequate sentence for the part he played would be life sentence. We, therefore, commute his sentence of death into that of life sentence and modify the judgment of the two Courts below accordingly to that extent.107. This brings us to the question of sentence to be awarded to the appellant Raj Pal Sharma. There is no doubt that there is ample evidence for his active participation in the murder of Urshia as well as in the murder of two children but the prosecution evidence is silent about the actual part that he played in the two murders and the manner in which he acted in the said killings. It is difficult to take a definite view that the part he played in said killings was cruel and callous or it was the appellant Suresh alone who took the leading part and did the whole thing by himself while the appellant Raj Pal Sharma assisted him in one or the other manner. In such a situation, in our opinion, it would not be proper to inflict the extreme penalty of death to Raj Pal Sharma also but in the facts and circumstances of the case the sentence of life imprisonment will be just and proper sentence. We, therefore, commute his sentence of death also into a sentence for life imprisonment and modify the judgments of the two Courts below accordingly.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]43. The evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. Consequently in the event the suspicion which is attached to the evidence of an accomplice is not removed his evidence could not be acted upon unless corroborated in material particulars. But where the suspicion is removed and the evidence of an approver is found to be trustworthy and acceptable then that evidence may be acted upon even without corroboration and the conviction may be founded on such a witness. Here in this connection it would be appropriate to make reference to the provisions of Section 133 of the Evidence Act which deal with the testimony of an accomplice. It contemplates that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part envisages that an accompliance, in othe words, a guilty companion in crime, shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But if we read Section 133 of the Evidence Act with illustration (b) of Section 114 of the Evidence Act it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in Section 133 illustration (b) to Section 114 of the Evidence Act lays down "that an accomplice is unworthy of credit, unless he is corroborated in material particulars". A combine reading of the two provisions that in Section 133 and illustration (b) of Section 114 of Evidence Act go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to Section 133 a conviction is "not illegal or in other words not unlawful" merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of Section 114 of the Evidence Act with a view to emphasis that the rule contained therein as well as in Section 133 are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature. However, the difficulty in understanding the combined effect of the aforementioned two provisions arises largely due to their placement at two different places of the same Act. It may be noticed that illustration (b) attached to Section 114 is placed in Chapter VII of Evidence Act while Section 133 in inserted in Chapter IX of the Act. The better course was to insert the illustration (b) of Section 114 as an explanation or in any case as a proviso to Section 133 of the Act instead of their insertion at two different places and that too in different chapters of Evidence Act. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to Section 114 provides a rule of caution to which the Courts should have regard. It is now well settled by a long series of decisions that except in circumstances of special nature it is the duty of the Court to raise the presumption in Section 114 illustration (b) and the Legislature requires that the Court should make the natural presumption in that Section as would be clear from the decisions which we shall discuss hereinafter.The two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbachan Singh led PW 59 and others to the hillock where according to him he had thrown the dead body of Urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmation by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence.72. In the light of the facts stated above we are afraid the two decisions mentioned above and relied on by the learned counsel for the appellants have no application to the facts of the present case and do not advance the case of the appellants challenging the discovery and seizure of the incriminating articles discussed above. In Nari Santa (supra) the accused of that case was charged for the theft and it is said that in the course of investigation the accused produced certain articles and thereafter made a confessional statement and it was in these facts and circumstances it was held that there was no disclosure statement within the meaning of Section 27 as the confessional statement was made only when the articles were already discovered having been produced by the accused. Similarly the decision rendered in Abdul Sattar (supra) also does not help the appellants in the present case. In the case of Abdul Sattar (supra) recovery of wearing apparels of the deceased is said to have been made at the instance of the accused of that case more than three weeks after the occurrence from a public place accessible to the people of the locality and, therefore, no reliance was placed on the disclosure statement and recovery of the wearing apparels of the deceased. But in the present case it was soon after the arrest of appellant Gurbachan Singh that he took the Police Officer while in custody to the place where according to him he had thrown the dead body of Urshia wrapped by the incriminating articles. Those articles were not found lying on the surface of the ground but they were found after unearthing the Khadgraha dumping ground under the hillock. Those articles were neither visible nor accessible to the people but were hidden under the ground. They were discovered only after the place was pointed out and it was unearthed by the labourers. No fault therefore could be found with regard to the discovery and seizure of the incriminating articles.73. Now we come to the evidence of the experts examined by the prosecution, and the expert opinion rendered by them touching upon the crime in question. K.K. Arora, PW 51 at the relevant time was working as the Senior Scientist in Chemistry branch of the Central Forensic Science Laboratory, Delhi having 24 years experience. He had examined the gunny bag which was used for carrying salt for dropping in the sceptic tank after the dead body of Urshia was thrown in the said tank. K.K. Arora in his report Ext. 20 found salt in the said bag. Dr. G.B. Gupta, PW 53 Senior Scientist had examined the wall scrappings of the blood from the room of the Ranchi house of Suresh and scrapings from the steel trunk seized from the room of the said house of Suresh and found human blood stains in the same. Dr. R.P. Bhatnagar another Senior Scientist, Head of SurgeryChemical Examiner to the Govt. of India (CBI) New Delhi had examined the scrapping of the blood taken from the Ranchi house of Suresh Bahri and he as per his report Ext. 20/40 found human blood of `B group in the same.74. The prosecution had also examined about 20 employees. Managers and Proprietors of different hotels which have been catalogued by the High Court in para 69 of its judgment in which the appellant Suresh Bahri and Raj Pal Sharma had stayed of different dates by concealing their real names and giving out different names and addresses under the fear of being apprehended as they had received intimation that the rumours were circulating about the murder of Urshia Bahri and had also learnt about the arrival of Bineet Sarang, PW 69 brother of Urshia in January, 1984 at Delhi who was searching and making enquiries about his sister and her children and had visited Delhi house, business premises and Ranchi house of the appellant Suresh Bahri and made reports to the Chutia Police Station.75. Thus on an overall independent consideration of the circumstantial and expert evidence as well as the evidence of the approver adduced by the prosecution and discussed by us in the foregoing paras it is abundantly clear and satisfactorily established that the evidence of the approver Ram Sagar Vishwakarma, PW 3 has received requisite corroboration on all material particulars and the totality of the surrounding circumstances, antecedents and subsequent conduct amongst other factors established against the three appellants prove beyond all reasonable doubt that at the instance of Suresh Bahri who master minded the plan, the other two appellants conjointly hatched a conspiracy to commit the murder of Urshia Bahri and that in prosecution of the common intention Suresh Bahri and Raj Pal Sharma did commit the murder of Urshia Bahri. Not only this but all the three appellants with a view to screen themselves from the commission of the offence made out all efforts for the disappearance of the dead body of Urshia.After going through the evidence and material on record we are also satisfied that the aforementioned facts and circumstances found to be established by the Trial Court as well as by the High Court are well founded and fully supportable by evidence on record. Since we find ourselves in agreement with the said conclusions the same do not call for any interference by this Court in exercise of our jurisdiction under Article 136 of the Constitution.78.Learned counsel for the appellants, however, contended that in a case where a witness identifies an accused who is not known to him, in the Court for the first time, his statement is not of any evidentiary value without their being a previous identification parade and as in the present case the appellant Raj Pal Sharma was quite stranger to the witnesses who for the first time identified him in the dock, without their being any previous identification parade, their evidence should not have been accepted with regard to the factum that he was the person who came and stayed in the house of Suresh Bahri and took part in the alleged murder of Urshia and her two children. While advancing these arguments support was sought to be taken from the decisions in Kannan v. State of Kerala, 1979(3) SCC 319 and Mohanlal Ganga Ram Gehani, 1982(1) SCC 700.There can be no dispute with regard to the principles as to the evidence relating to identification of a stranger accused involved in any crime. It is well settled that substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the Investigating Agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards were effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned also who was a stranger to the accused because in that event the chances of his memory fading away are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of T.I. parade. In the present case as stated earlier the appellant Raj Pal Sharma approached Murari Lal, PW 1 with a letter of Suresh in pursuance of which Murari Lal had directed the bungalow gardner, Moolchand, PW 24 to open the house and permit Raj Pal Sharma to stay there. Raj Pal Sharma came and stayed in the Ranchi house in the last week of September and continued to live there till 1.10.83 when Suresh along with Urshia arrived and stayed there. Thus Murari Lal, PW 1 and Moolchand Mali, PW 24 had an opportunity to see Raj Pal for several days and it was not for the first time that they saw him in the Court when they identified to be the one who took active part in the crime. Similarly Shambhu Nath Tiwari, PW 7 who was running a Tea Stall at Chutia where Raj Pal used to take tea and other eatable articles for a number of days and had no money to pay the charges but continued to serve him with tea, etc. on the assurance of Murari Lal, PW 1 that the dues would be cleared by Suresh Bahri as Raj Pal was a man of Suresh. Moolchand Mali, PW 24 also had an opportunity to see Raj Pal living in Chutia house, Ranchi for several days. Similar is the case with other witnesses who had identified Raj Pal to be the person who had stayed in the house of Suresh Bahri. Thus in view of this evidence it cannot be said that the witnesses who identified Raj Pal in the Court had seen him only once for a short while by reason of which their evidence should not be accepted. In the case of Kannan (supra) relied on by the learned counsel for the appellants the accused of that case was seen by the identifying witness only once in the Court and, therefore, in the absence of T.I. parade the evidence was not accepted which is not the case before us. Similar was the position in Mohanlal Ganga Singh Gehani (supra) wherein the witness who identified the accused for the first time in Court did not know him before and therefore in the absence of T.I. parade the evidence of that witness was held valueless and unreliable. In the present case in the facts and circumstances discussed above T.I. parade was not necessary at all as the witnesses had seen the appellant Raj Pal Sharma continuously for several days and they had the opportunity of knowing and recognising him since before they made their statement in the Court.79. This brings us to the second leg of the prosecution case relating to the murder of two children, namely, Richa and Saurabh who are alleged to be murdered in the intervening night of 17/18th December, 1983 at Dhulli farm house of Suresh Bahri in conspiracy with the other two appellants, namely, Raj Pal Sharma and S. Gurbachan Singh. This episode of their plan commenced with two applications Ext. 40 and Ext. 40/1 made by the appellant Suresh on 5.12.83 to the Principal, Father Agnels School, South Extension, New Delhi, stating that his children Richa and Saurabh will not be attending the classes from 5.12.83 till the end of February, 1984. To establish this fact the prosecution had examined the Principal of the said school Shri M. Cawlih, PW 33. He deposed that he knew well Richa and Saurabh who were the students of his school. Saurabh was in 4th standard and Richa was in 6th standard. He further deposed that the aforesaid two applications were made by Suresh Chandra Bahri, father of the two children named above. The application about Richa Bahri was received by her class teacher named Sonia and the other application relating to Saurabh Bahri was received by Mrs. Randhawa and he recognized the endorsement and signatures made by the two class teachers on the aforesaid two applications. The Principal of the school further deposed that both the applications were seized by CBI officials. A copy book Ext. 1/2 of Richa Bahri was also seized by the CBI in his presence and he had signed at pages 1, 2, 23 and 36 of the said copy book. He also identified Richa in the photograph Ext. 1 and Saurabh in the photograph Ext. 1/3. He also identified the father and mother of the two children Saurabh and Richa in the photograph Ext. 1/2. Mrs. George, PW 34 a teacher of Father Agnels School was also examined who was the class teacher of Richa when she was in 4th and 5th standard and claimed to be fully acquainted with her handwriting. She identified the handwriting of Richa in her copy book from pages 2 to 26 seized by CBI from the Principal of the school as she had seen the writings when the copy book was submitted to her for correction and she had signed the said copy book at pages 5, 16, 20 and 23. PW 34 also identified Saurabh in the photograph Ext. 1 and 1/3. She also identified Richa in the photograph Ext. 1/1. The evidence of these two witnesses was half heartedly sought to be challenged by the counsel for the appellants as unreliable, a mention of which is made only to be rejected as both of them are independent witnesses having no animus against any of the accused/appellants. Their evidence does not suffer from any infirmities and we find their version as fully truthful.80. The prosecution in order to establish further chain of circumstances in the murder of two children examined Dina Nath Sharma, PW 6 who knew Suresh Bahri since 1965 and both were classmates. He deposed that he frequently visited the Delhi house of Suresh Bahri and also used to stay with him. He knew all the family members of Suresh Bahri including his wife and children. Dina Nath stated that when he visited Delhi house of Suresh in the first week of December, 1983 he saw the two children of Suresh in Delhi house when Suresh had told him that he will take his children to Ranchi to get them admitted in any school there so that the children and their mother may live together. PW 6 further deposed that Suresh Bahri left for Ranchi house in the morning of 8.12.83 in the Ambassador car along with his mother Santosh Bahri and a maidservant and one more person (identifying Raj Pal in the court to be that person). Suresh told him that his mother andwould be going upto Basti (UP). On asking about the other man Suresh told him that he was a Motor Mechanic whom he had taken by way of precaution as he had to cover a long journey. He also stated that he had takenbeddings besides other articles in the car.81. Witness Gopi Krishna, PW 11 Manager of the Tourist Dak Bungalow, Varanasi added further link to the incident. He deposed that Suresh Bahri and Raj Pal Sharma along with the two children had stayed at his bungalow on two days i.e.The Guest House Register Ext. 8 contained the entry about their stay on the aforesaid dates. Gopi Krishna identified the appellants Suresh and Raj Pal Sharma in the Court and stated that Suresh had made the said entry in the Guest register. It was shown in the said entry that they were coming from Basti and were going to Ranchi which fact lend support to the statement of Dina Nath, PW 6 that his mother and the maid servant would travel only upto Basti and it was for this reason that only the appellants Suresh, Raj Pal and the two children had stayed in the Guest House onThe entries made by Suresh in his handwriting in the Guest House Register were compared with his admitted writings by the handwriting expert Shri S. C. Mittal, PW 65 who found both the writings to be in the hand of Suresh. After leaving Varanasi in the evening of 14.12.83 the appellant Suresh, Raj Pal alongwith the two children proceeded further by car to Ranchi and before reaching Ranchi stayed in New Punjab Rest House at Daltonganj, as testified by its Proprietor S. Gurbax Singh, PW 19 who deposed that inthe hotel was known as Punjab Rest House but the name was subsequently changed as New Punjab Rest House. The witness stated that Suresh alongwith the two children and another person came and stayed in the hotel on 15.12.83 in room No. 4 as per entry at Serial No. 576 of the Guest Register. The entries in the Guest Register were made by Richa Bahri which was also signed by Suresh. The number of passengers as given in the entry was shown as four coming from Delhi and going to Ranchi. CBI Inspector, Rajendra Singh, PW 82 seized the register of his hotel. The entries in the said register made in the writing of Richa Bahri and in her copy book were compared by the expert S. C. Mittal, PW 65 who opined that the writings and signature of Richa in the Guest House Register fully tallied with her writing in the copy book of Father Agnels School as proved by her class teacher, PW 34.82. The party of four i.e. Suresh, Raj Pal and the two children ultimately landed at Dhulli farm in the afternoon on 16.12.83 as testified by Caretaker, Gopi Mistry, PW 29 of Suresh on his Dhulli farm house and his son Shiv Nandan Lohare, PW 60. Both of them stated that their master Suresh along with Raj Pal and the two children had arrived at Dhulli farm house in the afternoon of 16.12.83 and stayed there till the morning of 18.12.83. Both the witnesses also stated that about a fortnight before the arrival of Suresh and party, the appellant Gurbachan Singh had also come to Dhulli farm to make arrangement for some cots and chairs which were sent by him from Ranchi in a bus. Gopi Mistry also deposed that Raj Pal Sharma and two children stayed at Dhulli in the night following 16.12.83 and next day on 17.12.83 Raj Pal went to Ranchi and came back with appellant Gurbachan Singh on a motorcycle but Gurbachan went away after about an hour. In the night of 17.12.83 all the four took food prepared by the wife of Gopi Mistry and then all the four slept in one room at Dhulli farm. Gopi Mistry proceeded further to state that on 11.12.83 at about dawn Suresh gave a call to him and on hearing the call he, his wife and his son Shiv Nandan woke up. He came out and noticed the two children in the rear seat of the car in the sleeping position fully covered with a quilt and only some parts of their legs along were visible. Suresh Bahri and Raj Pal were sitting in the front seat of the car and Suresh told him that they were going and if any one enquired about him they be told that he was not there and then left Dhulli farm. Shiv Nandan, PW 60 the son of Caretaker, Gopi Mistry also made similar statement but further added that when Suresh and party was ready to leave at dawn on 18.12.83 he came and tried to look inside the car through the glasses, but the appellant Raj Pal shouted at him commanding him to go away.83. The evidence of these two witnesses PW 29 and PW 60 was sought to be assailed by the learned counsel for the appellants by pointing out some minor and insignificant contradictions as also the statement of PW 60 that he tried to look inside the car through the glasses when he was shouted down and directed to be away by the appellant which statement has not been made by his father PW 29. We are not impressed at all by these arguments as the immaterial omissions and contradictions have hardly any bearing on the reliability of these two witnesses whose evidence is consistent on all material aspects and there is no reason at all to discredit their testimony.84. In the series of circumstances connecting the appellant Suresh Bahri and Raj Pal with the murder of the two children the prosecution has examined Vijay Kumar Asthana, PW 12 who was the Manager of Hotel India, Varanasi at the relevant time. Asthana deposed that Suresh had stayed in his hotel on 18.12.83 by making entry Ext. 4/2 in his presence in the Guest Register Ext. 8/1 at Sl. No. 1448 at page No. 25 in his handwriting in the name of Mahesh Chandra Gupta. The said handwriting was compared with the specimen writing and signature of Suresh by the expert S. C. Mittal, PW 65 who found the two writings having been made by the same person in other words by Suresh. The purpose of this evidence is to show that after leaving Dhulli farm at dawn on 18.12.83 when on their return journey Suresh stayed in Hotel India at Varanasi on 18.12.83 there were only 2 persons i.e. Suresh himself and the appellant Raj Pal Sharma and the two children were no longer in their company whose bodies were disposed of somewhere on the way which would be clear from the evidence discussed hereinafter.85. Hiralal, PW 36 is a businessman of Sarnath, District Banaras who had gone to the bank of Varuna river on 20.12.83 at about 8.00 a.m. to ease himself when he noticed crowd there. He went and saw a gunny bag was floating in the water of Varuna river which was taken out and opened in the presence of persons present there. In the said bag dead body of a Hindu boy aged about 12/13 years was found having incised wounds in the neck. In the meanwhile one Dr. Mahendra Prasad, PW 35 also arrived there who at his instance wrote a report which he took and lodged in Sarnath Police Station in respect of the dead body. On the basis of his report the First Information Report, Ext. 13 was recorded in the Police Station and Atma Nand Singh, PW 46, Incharge, P. S. Sarnath went to the bank of Varuna river, prepared the panchnama of the dead body Ext. 14 and seized the gunny bag as per seizure memo Ext. 12. Investigating Officer, PW 46 then called a photographer, Ashok Kapoor, PW 48 and took the photographs of the dead body of the boy for purpose of identification later. Dr. Bhargav, PW 27 performed an autopsy over the dead body of the boy on 21.12.83 and found two incised wounds on the neck. There was also contusion on the chest and various other injuries on his person which werein nature caused by sharp object.86. Here it may be mentioned that next door neighbour Murari Lal, PW 1, family friend Dina Nath Sharma, PW 6, Gopi Krishna Asthana, PW 11, Manager of Tourist Dak Bungalow, Varanasi, Gopi Mistry, PW 29, the Caretaker of Suresh at Dhulli farm, Mrs. George, PW 34, a teacher of Father Agnels School where the two children studied, Satvender Kaur, PW 41, a close relative of Urshia Bahri and the informant Bineet Singh, PW 69 the brother of the deceased have all identified from the photographs that were taken by the photographer Ashok Kapoor, PW 48 to be the photographs of none else but Saurabh and thus there is overwhelming evidence to establish that the dead body found floating in Varuna river was that of Saurabh.87. However, learned counsel for the appellants referring to the statement of Dr. Bhargav, PW 27 contended that the prosecution story that the two children were done to death in the intervening night ofat Dhulli farm is not consistent with the medical evidence and on the contrary it is falsified by the medical evidence inasmuch as the dead body was found at about 8.00 a.m. on 20.12.83 but without any sign of decomposition and only regourmortrous was present while putrefaction starts after about 24 hours of the death but the same was not found at the time ofwhich was performed after 60 hours of the alleged time of murder. On that basis, therefore, it was submitted that the dead body recovered was either not the dead body of Saurabh or the murder was not committed in the intervening night ofLearned counsel for the appellants further submitted that the doctor had found that the stomach of the deceased was empty while according to the evidence of Gopi Mistry, PW 29 and his son Shiv Nandan Lohare, PW 60 the two children had slept after taking their meals in the night ofThese arguments were advanced on the basis of some stray sentences here and there from the evidence of Dr. Bhargav in isolation. A reading of the full statement of Dr. Bhargav, PW 27 will go to show that there is absolutely no substance in the aforementioned submissions.88. So far as the identity of the dead body is concerned, we have already discussed above that there isoverwhelming evidence toshow that it was the dead body of Saurabh as stated by a large number of witnesses after seeing the photographs. So far as the question of putrefaction and decomposition of the dead body is concerned, it depends on various factors such as the season, place and the manner in which the dead body was kept besides other relative considerations. A perusal of evidence of Dr. Bhargav, PW 27 would reveal that he clearly stated that putrefaction may take place even after 3 to 5 days if the dead body remained submerged in water. Admittedly the dead body of Saurabh was found floating in Varuna river in the morning of 20.12.83. Consequently according to the evidence of Dr. Bhargav the progress of putrefaction or decomposition could not have commenced at the time when the dead body was recovered andwas conducted. This circumstance, therefore, does not render the prosecution story improbable or unreliable. The absence of food at the time ofof Saurabh is also not of much significance to render the prosecution story doubtful. The presence or absence of food at the time ofin relation to the time of death is based on various factors and circumstances such as the type and nature of the food consumed, the time of taking the meal, the age of the person concerned and power and capacity of the person to digest the food. In the present case there is no evidence about the exact time when the meals were taken by the children on the night of 17.12.83 nor about the type or nature of the food consumed by them. Saurabh was a young boy aged about 12 years and he being a young and energetic boy, his power of digestion must be assumed to be quick and strong, therefore, if the stomach at the time ofwas found to be empty it was but natural.89. The prosecution story with regard to the murder of the two children proceeds further by adding some more links to the circumstantial evidence against the appellants in the shape of recovery of some incriminating articles on Panchkoshi Road, near Nursery of Forest Deptt. and some other places. The Investigating Officer, Sarnath, Atma Nand Singh, PW 46 stated that in the evening of 27.12.83 he received information from some persons that some articles stained with blood were lying at Panchkoshi Road near Palghambarpur village where the refuse is dumped. PW 46, therefore, rushed there and in the presence of witnesses seizedand a gadda which looked like a quilt by seizure memo Ext./9. At the same time he also learnt that some articles were also lying near a Nursery of the Forest Department at Asapur Road crossing. He, therefore, visited that place also and seized two blood stainedin the presence of witnesses by seizure Memo Ext.5/10. All these articles seized under seizure Memo 5/9 and 5/10 were sent to the Central Forensic Science Laboratory, Delhi which were examined by Dr. G.D. Gupta, PW 53, a Senior Scientist who found human blood on the quilt and its cover. These articles were further sent for examination by Serologist Dr. P.K. Bhatnagar, PW 56 who as per his report Ext. B/4 found that the aforesaid articles contained blood group `B.90. It may be noticed that when Atma Nand Singh, PW 46 Police Officer, Sarnath could not succeed in finding out the identity of the dead body of the child he got his photographs published in police gazette as well as in various newspapers but still nobody came forward to claim the body or to identify the child and, therefore, he made a final report and closed the case but it appears that during the investigation of the murder of Urshia and her children when the CBI Inspector Madan Lal, PW 85 arrested Suresh Bahri on 31.7.84 at Delhi who appears to have made disclosure about his children also and it was thereafter that the Government of India entrusted the Sarnath case also to CBI by another notification dated 14.9.84 on the basis of which R.C. Case No. 5/84 was registered by CBI and the CBI Inspector Rajendra Singh, PW 82 was entrusted with its investigation by him, a large number of witnesses were examined by him who identified the photographs as that of Saurabh.91. Though no trace of the dead body of Richa could be made but in view of the overwhelming circumstantial evidence which we shall discuss hereinafter the same leads to the conclusion that she also met the same fate as that of her brother Saurabh at Dhulli farm in the intervening night of 17/18.12.83 at the hands of the appellants Suresh and Raj Pal Sharma. It has already been discussed that the two children were withdrawn from the Delhi school on the pretext that they would be taken to Ranchi where they would stay with their mother and prosecute their further studies as is clear from the letters of Suresh written to hisbut the two appellants Suresh and Raj Pal took them to Dhulli farm and after a short stay of one and a half day there both the appellants proceeded back to Delhi. No plausible reason is discernible as to what were the compelling reasons for the two appellants that after a long journey from Delhi to Dhulli farm, they thought of to return back to Delhi only after a very short stay at Dhulli and without even visiting his house at Ranchi at a short distance of about 40 kms from Dhulli. But the reason is not far to seek, the purpose being to execute their plan to do away with the children in a lonely and secluded place so that their dastardly and unholy act may not come to light and be not detected or suspected by anyone. After their withdrawal from school from 5.12.83 by the appellant Suresh he took them to his South Extension residence, Delhi and thereafter Suresh left Delhi along with the children on 8.12.83 and reached Dhulli farm in the afternoon of 16.12.83 via Basti, Varanasi and Daltonganj having their halts in the hotels at two places as already discussed earlier. The entries of the said hotels indicated that there were four personsappellants Suresh and Raj Pal and the two children. The two children were accompanying these two appellants is fully established from the entries in Daltonganj hotel which were made and signed by Richa and Saurabh. The said entries are proved by the opinion and evidence of the expert. The return journey of the appellants Suresh and Raj Pal which commenced on 18.12.83 tells a different story that though the two children were shown to be fast asleep in the near seat of the car but thereafter the two children were not found accompanying them either dead or alive on their onward journey as is evident from the entries made in different hotels in different names by these two appellants and entries indicated that only two persons had stayed in those hotels on the return journey and obviously so because the two children were already done to death and their bodies while proceeding to Delhi were thrown in Varuna river, the body of Saurabh having been found floating while that of Richa appears to have been swept away unnoticed to some unknown destination. The articles gadda, quilt and sheets stained with human blood which were also thrown on the way and the Serologist on examination found blood group B on the same the evidence in respect of which has already been discussed in detail earlier.92. There is yet another circumstances which deserves notice. The two children were shown to be fast asleep in the rear seat of the car with their whole body covered except for a part of their legs which is something against the normal conduct of children of that age. The two appellants had resumed their return journey after a short stay at Dhulli at dawn on 18.12.83 when the two children of the age they were, are not expected to sleep but would be excited to enjoy the trip in the company of their father. This leads to a legitimate conclusion that in fact they were not alive but were dead whose throats were cut as noticed by Dr. Bhatnagar who conductedon the dead body of Saurabh. It is also surprising to note that Suresh Bahri and Raj Pal Sharma left Dhulli farm early in the morning of 18.12.83 without any arrangement for the breakfast or tea even for the children while all these facilities were available at Dhulli farm but all this was not necessary because the children were no more alive.93. It may also be pointed out that after the murders of Urshia and thereafter the killings of the two children Suresh Bahri was running about place to place and staying in different hotels to avoid his apprehension. From 9.5.84 to 17.5.84 Suresh was staying in a hotel at Ghaziabad in the name of Mahesh Chand Gupta though Delhi is not even an hours run from Ghaziabad. When his mother withdrew an amount of Rs. 25,000/from the State Bank, Delhi and Travellers cheque worth Rs. 25,000/was taken in the name of his maternal uncle, Y.D. Arya which was encashed at Ghaziabad on 10.5.84 and this circuitous method was adopted to mislead the prosecution and at the same time provide money to Suresh who was wandering from place to place in different hotels and needed money to go to Nepal according to his plan and create false evidence in support of his defence plea which he hadin case he was apprehended by police. Here it may also be pointed out that the appellant Suresh went to Kathmandu (Nepal) and firstly he stayed in Kozy hotel from 8.4.84 to 29.4.84 vide Ext. 4/34 and thereafter from 15.5.84 to 22.5.84 vide Exts. 4.35 and 4/36. It is interesting to note that thereafter Suresh left the hotel Kozy of Kathmandu and lodged himself in a private house obtained on rent only with a view to create false evidence for suddenof his children at Kathmandu according to his plan with which he had gone to Nepal because Suresh thought that his ultimate apprehension would be unavoidable as the Chutia police had submitted awith regard to the murder of Urshia against him in which he was shown absconding accused. In furtherance of his plan to create evidence for his defence the appellant Suresh made a false report Ext. 25/1 to Nepal Police on 10.8.84 that his two children who came to Kathmandu (Nepal) with him were missing while in fact they were already done to death on the nights of 17/18th December, 1983. This report on enquiry was found to be totally unfounded and false as would be clear from the evidence of Basant Kumar Lama, PW 67, a Police Officer of Nepal. There could be no reason to doubt the testimony of Basant Kumar Lama, PW 67 as he is totally a stranger to the appellant Suresh having no axe to grind against him with a view to falsely implicate him. Though Suresh tried to be wiser by making the information with Kathmandu Police about the missing of his children only after shifting in a private house as giving such a false information from the hotel where the number of the guest/passenger is noted, would have exposed him because in fact the children had not gone with him to Kathmandu. But he proved himself only to be a wiser fool in doing so.94. The totality of all the aforementioned circumstances complete the chain which lead to the only irresistible conclusion that the three appellants before us had hatched the conspiracy to commit the murder of the two children also in the same way as their mother Urshia was killed and in prosecution of their said plan they executed it at Dhulli farm.95. Learned counsel appearing for the appellants Gurbachan Singh and Raj Pal Sharma contended that there is no direct and legal evidence against the appellants for their involvement in the alleged conspiracy and that in any case there is no factual evidence against the appellant Gurbachan Singh about his actual participation in the crime and, therefore, the conviction under Sectionof the Penal Code in his case is bad in law and unsustainable.96. In the above context we may refer to the provisions of Sectionof the Indian Penal Code which defines criminal conspiracy. It provides that when two or more persons agree to do, or cause to be done, (1) an illegal act or (2) an act which is not illegal by illegal means, such agreement is designated a criminal conspiracy, provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Thus, a cursory look to the provisions contained in Sectionreveal that a criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Sectionread with the proviso to(2) of Sectionof the I.P.C., then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Sectionand the proof of any overt act by the accused or by any one of them would not be necessary. The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in Sectionsince from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may frustrate and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn.Although we have already discussed the facts and circumstances appearing against the appellants Gurbachan Singh and Raj Pal Sharma indicating their direct involvement in the conspiracy of murder of Urshia and her two children yet at the risk of repetition we shall in briefthe same. It is evidently clear from the series of circumstances established by the prosecution and discussed by us in the foregoing paras that the main brain behind the conspiracy who master minded the plan for the killings of the three innocent lives is the appellant Suresh Bahri, the unworthy husband of Urshia and a brute cruel father of the two unfortunate children, who approached the other appellants Gurbachan Singh and Raj Pal Sharma for help in the commission of the said ghastly crime by winning over their favour on account of his friendship and close association with them and as such it appears that they had no hesitation in extending their helping hands by constituting themselves as members of the criminal conspiracy hatched by Suresh Bahri. No doubt there is no direct evidence about the conspiracy and as said earlier it is seldom available. But the trial Court has catalogued a large number of circumstances against the appellants which have also been accepted by the High Court and in our opinion rightly so. The two Courts below have noticed the movements and activities of appellants Gurbachan Singh and Raj Pal Sharma at the instance of appellant Suresh right from the beginning and long before the murder of Urshia, their acts in arranging the preparation of a danda, sharpening of a dagger, preparation of batalies and wooden box, dumping of dead body of Urshia in sceptic tank and taking it out again and dumping it in a hillock at Khadgraha. The appellant Raj Pal arrives at Ranchi in the last week of September, 1983 and stayed in Ranchi house No. 936 of Suresh Bahri till arrival of Suresh and his deceased wife Urshia on 1.10.83 and thereafter his movements at Ranchi itself till she was done to death on 11.10.83 in one of the rooms of the house when appellant Raj Pal Sharma was also seen moving about from one room to another wearing only underwear and having a blood stained dagger in his hand. Raj Pal accompanied suresh while he left Delhi in the Ambassador car along with the two children for Dhulli farm where the party stayed on 16.17.12.83 and left Dhulli farm at dawn on 18.12.83 with the dead bodies of the two children, throwing the dead bodies in Varuna river on their way back to Delhi. All these facts clearly borne out mainly from the statement of PW 1, PW 2, PW 4, PW 6, PW 11, PW 19, PW 29, PW 31 and PW 60 besides other evidence that there was not only an agreement to commit the alleged murders but the appellants in fact committed overt acts also for fulfilment of their object which is eloquently evident from the evidence discussed above. All these facts and circumstances without the least hesitation lead to the only irresistible conclusion that they were active members of the agreement who had hatched a conspiracy to eliminate all the three members of the family of Suresh and thus actually executed their plan.98. The aforementioned facts and circumstances fully establish the offence under Sectionof the Penal Code against the appellants Gurbachan Singh and Raj Pal Sharma also and there is hardly anything deserving interference with the view taken by the two courts below after a detailed and elaborate discussion of the evidence and material on record. We, therefore, confirm the conclusions recorded by the two courts below as well as the convictions of the appellants under Sections 302,and 201 of the Penal Code.99. Shri Sushil Kumar, learned counsel lastly contended that the prosecution kept away for reasons best known to it the disclosure statement running in 22 pages alleged to have been made by the appellant Suresh Bahri on 1.8.84 before Metropolitan Magistrate, Delhi for which not only the adverse inference has to be drawn against the prosecution but it vitiated the whole trial. He submitted that when the appellant Suresh Bahri was arrested on 31.7.84 and on 1.8.84 produced before the Metropolitan Magistrate he had made a statement running in 22 pages as mentioned in the remand order itself dated 1.8.82 and also in his application for grant of bail. That statement has not been produced by the prosecution for reasons best known to it. In our considered opinion there is no force in the argument. If actually appellant Suresh Bahri had made any disclosure statement it was within his special knowledge as to what he had stated in those alleged 22 pages but he did not divulge anything in this connection in his statement recorded under Section 313, Cr.P.C. as to the nature of that statement, when he was questioned whether had to say anything else. Yet learned counsel wants us to draw an adverse inference against the prosecution. Learned counsel did not elaborate as to what adverse inference ought to be drawn and how and in what manner withholding of the alleged statement could vitiate the trial. Not only this but the learned counsel appearing for the accused appellant Suresh at the trial did not put any question even to the Investigating Officer, Chutia Police Station, Raghuvir Singh, PW 59, Rajendra Singh, PW 82 and Madanlal, PW 85, the CBI Inspector or any other prosecution witnesses about the alleged statement. A mere mention in the remand order or bail application does not by itself prove the recording of any statement as alleged without any further evidence and material being placed on record in support of it. In these facts and circumstances it is difficult for us to hold that Suresh Bahri had made any disclosure statement or if it was so made it would result in vitiating the whole trial.100. Lastly all the learned counsel appearing for the three appellants made vigorous efforts to persuade us that the evidence and circumstances of the present case do not justify the extreme penalty of death sentence to the three appellants or any of them as there is no evidence as to the manner in which the three persons were done to death.101. It may be noticed that since about the last two decades there has been throughout the civilized world, a great deal of anguished concern about what sentences be given to those convicted of crimes. It is also felt that crime and punishment have a moral dimension of considerable complexity that must guide sentencing in any enlightened society. The criticism of judicial sentencing has raised its head in various forms that it is inequitable as evidenced by desperate sentences; that it is ineffective; or that it is unfair being either inadequate or in some cases harsh. It has been often expressed that there is a considerable disparity in sentencing an accused found to be guilty for some offence. This sentencing variation is bound to reflect because of the varying degrees of seriousness in the offence and/or varying characteristics of the offender himself. Moreover, since no two offences or offenders can be identical the charge or label of variation as disparity in sentencing necessarily involves a valuebased judgment, i.e., disparity to one person may be a simply justified variation to another. It is only when such a variation takes the form different sentences for similar offenders committing similar offences that it can be said to be desperate sentencing.102. It appears that it was to minimise these considerations indicating the areas of imposition of penalties including the extreme penalty of death that the Legislature introducedand (4) in Section 354 of the Code of Criminal Procedure in the new Code of 1973.(3) contemplated that when conviction is for an offence punishable with death or in the alternative, the imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded,and, in the case of sentence of death, the special reasons for such sentence (emphasis supplied). Thus,Having regard to the principles formulated by this Court discussed above, we have given our anxious consideration to the question of sentence to the appellants and have also examined in depth and with great concern the facts and circumstances of the present case and the reasons assigned by the two courts below for awarding the extreme penalty of death to the three appellants before us. At the cost of repetition we may recall that the appellant Suresh had strong motive and entertained some grievances against his wife Urshia because she had made up her mind to dispose of Ranchi house and migrate to America along with her children with the sale proceeds against the wishes of Suresh and, therefore, to put an end to her life, Suresh planned a long drawn plot and hatched a conspiracy with the appellants Gurbachan Singh and Raj Pal Sharma for execution of this plan. Urshia not even having an inkling of the evil designs and hidden unholy intentions of her husband accompanied him from Delhi to Ranchi on 1.10.83 with a view to finalise the deal of house and execute theBut according to theshe was done to death in the intervening night of 10th and 11th October, 1983 and she could not see the light of 11th October, 1983 when sale deed was to be executed. The evidence discussed above shows that her murder was committed in an extremely, brutal, gruesome, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation of the society. The victim was subjected to inhuman acts of torture and cruelty while causing her murder as her body was truncated into two parts in a devilish style evincing total depravity simply to gain control over the property. Having been not satisfied with the killing of his wife Suresh Bahri was further determined to kill his innocent two children at Dhulli farm making them believe that they were being taken on a pleasure trip to the farm and then after they were done to death by inflicting severe injuries on neck and other parts of the body threw their dead bodies in the Varuna river having no consideration for the human life and that too for his own flesh and blood. Suresh Bahri may be having some differences with his wife with regard to the sale of house and her idea about settlement with the children at America but he certainly had no grievance or even any remote cause against his innocent minor children who could never conceive that their father who was their guardian of the first degree was taking them to Dhulli farm for committing their gruesome murder.105. The cold blooded cruel murder of the innocent children by none else but by their own real father shows the enormous proportion with which it was committed eliminating almost all members of the family. We have given our serious thoughts and consideration and posed the question to ourselves whether there could be still a worse case than this where a husband could hatch a conspiracy and kill his wife in a most callous and ghastly fashion as in the present case only on a triffling matter which could have been sorted out in an amicable manner for which no effort appears to have been made by Suresh. Not only this but the appellant Suresh became thirsty of the blood of his own children for absolutely no fault of theirs. In the facts and circumstances discussed above, in our opinion, so far as Suresh Bahri is concerned, the rule of the rarest of rare cases has to be applied as the present case falls within the category of the rarest of rare cases and for the perpetration of the crime of the nature discussed above there could be no other proper and adequate sentence except the sentence of death as there are no mitigating circumstances whatsoever. Having regard to all the facts and circumstances of the present case as far as Suresh Bahri is concerned there is no cause for any interference in the view taken by the two Courts below in awarding the death sentence to him. We, therefore, affirm the conviction and sentence of death awarded to Suresh by the High Court. In the event of the execution of death sentence, the sentence awarded under Section 201 of the IPC shall remain only of academic interest.106. As far as the question of sentence to the appellants Gurbachan Singh and Raj Pal Sharma is concerned, we may state that there is convincing and conclusive evidence for their involvement and active participation in the criminal conspiracy with Suresh to do away with the three members of his family. But from the evidence on record as discussed by us in the earlier part of this judgment it is clear that Gurbachan Singh had reached the house of Suresh at Ranchi in the fateful evening of 10th October, 1983 when Urshia was already done to death by the appellant. Suresh Bahri and Raj Pal Sharma, when Raj Pal Sharma was seen wearing an underwear holding a dagger in his hand and cleaning the blood in the room with cotton. From the evidence it is, therefore, clear that Gurbachan was not a party to the actual murder of Urshia although he was an active member of the party who hatched the conspiracy to kill her. Similarly it is also clear from the evidence that we have discussed in the earlier part of this judgment that though Gurbachan Singh rendered assistance in sending the cot and chairs to Dhulli farm and sharpening the dagger and batalies for the murder of two children but he in fact was not present on 17/18.12.83 at Dhulli farm when the two children were done to death by the appellants Suresh and Raj Pal Sharma. In these facts and circumstances, in our opinion, the appellant Gurbachan Singh does not deserve the extreme penalty of death but the adequate sentence for the part he played would be life sentence. We, therefore, commute his sentence of death into that of life sentence and modify the judgment of the two Courts below accordingly to that extent.107. This brings us to the question of sentence to be awarded to the appellant Raj Pal Sharma. There is no doubt that there is ample evidence for his active participation in the murder of Urshia as well as in the murder of two children but the prosecution evidence is silent about the actual part that he played in the two murders and the manner in which he acted in the said killings. It is difficult to take a definite view that the part he played in said killings was cruel and callous or it was the appellant Suresh alone who took the leading part and did the whole thing by himself while the appellant Raj Pal Sharma assisted him in one or the other manner. In such a situation, in our opinion, it would not be proper to inflict the extreme penalty of death to Raj Pal Sharma also but in the facts and circumstances of the case the sentence of life imprisonment will be just and proper sentence. We, therefore, commute his sentence of death also into a sentence for life imprisonment and modify the judgments of the two Courts below accordingly.