Rajesh Kumar vs State Th:Govt Of Nct Of Delhi

3. This Court had issued notice on the limited question of quantum of sentence. The facts and circumstances, which are relevant to these appeals, are as under.

4. According to the prosecution, the duty officer in the Police Control Room received a call from number 20056630 at 15:38 hours on 28.7.2003 informing him that a man had entered a house in Subhash Nagar and had assaulted two children and had locked the door of a room from inside. Another call was made to the Police Control Room from mobile No. 9810458303 noting that the informant had informed that a man 3 had murdered two children inside House No. 2/129 Subhash Nagar near Arya Samaj Temple.

5. Each time the duty officer at the police control room, on receipt of afore-noted information, relayed the information to the concerned police station i.e. P.S. Rajouri Garden, where the duty constable recorded the said information by way of entries in the daily diary register, being DD No. 11, Ex.PW-

16/A at 3:35 PM and DD No. 12, Ex.PW-16/B at 3:50 PM.

6. ASI Jagpal PW-22 was handed over a copy of both the DD entries and was deputed to investigate. He took along with him HC Naresh PW-19 and Const. Sukhbir PW-24. The three police officers reached House No. 2/129 Subhash Nagar. A crowd had gathered outside the house. Mr. Bahadur Singh PW-4 a resident of House No. 2/130 Subhash Nagar i.e. the immediate neighbour and one Mr. Negi (not examined as a 4 witness) were present in the gathering and told the police officers that the assailant had locked himself in a room on the second floor of House No. 2/129 Subhash Nagar. The officers climbed up the staircase and reached the second floor and knocked the door. The man inside did not oblige. The three police officers had a peep inside through the ventilator above the door and saw the body of a male child, smeared with blood and the neck badly cut.

7. Inspector Ram Chander PW-32, the SHO of P.S. Rajouri Garden, was given the information about a man killing two children on the second floor of House No. 2/129 Subhash Nagar. He reached the house and by that time the appellant had been apprehended by ASI Jagpal Singh, HC Naresh and Const. Sukhbir.

10. After the incident, Swanchetan, a Society for Mental Health was informed by the police and they were requested to counsel the family. Dr. Rajat Mitra (P.W.-7), Director of Swanchetan Society for Mental Health found the mother of the children in a state of total shock and she was unable to speak.

11. The investigation being complete, the police personnel left for the police station. The appellant was formally arrested as recorded in the arrest memo Ex.PW-32/F at 10:00 PM from the place of occurrence.

14. At the trial, Sangeeta PW-1, the mother of the two children, deposed that she was a housewife and was living on the second floor of house No. 2/129, Subhash Nagar at the time of the occurrence. Her elder son was named Anshul and the younger one was named Harshit. Their age was 4= years and 8 months respectively. The incident took place at around 3:00 PM on 28.7.2003 when she was present in her house and her sons were sleeping in the bed room.

Suddenly the cries died down. By that time her neighbour Pritam Singh and Bahadur as also a few other persons gathered. The police arrived and a police person climbed a table and through a ventilator saw the dead body of her son and the appellant standing nearby. They pushed and opened the door. She saw her son with his throat slit. A piece of glass, stained with blood, was lying on the chest of her son. The dressing table glass was broken. The walls were stained with blood.

15. PW-1 was cross-examined and she admitted that there was no quarrel between her husband and the appellant qua the demand of any money, but volunteered that the appellant used to demand money from her husband.

16. Mukesh Sethi PW-2, the husband of PW-1, deposed that on the day of the incident i.e. 28.7.2003, he was residing with his wife and children on the 2nd floor of house No. 2/219, Subhash Nagar, and the appellant was the husband of his sister Alka, and was unemployed for the last 2= to 3 years and during this period the appellant used to demand money for setting up business and that he gave him Rs.15,000/-

and Rs.20,000/- on two occasions. 15-20 days prior to the date of the incident the appellant had demanded more money, which he refused because he did not have money to spare. On 28.7.2003 at around 4- 4:15 PM he was sitting in his other house at Rohini and received a call from his wife who rang up from a 10 neighbour's house at 4:45 PM. He reached his house and saw a crowd and the police. His wife was crying that her children had been killed. His younger son had been removed to the hospital and the other son was lying dead inside the house.

17. PW-2 was cross-examined and he admitted that relations between him and the appellant were normal.

19. After the appreciation of evidence, the Trial Court observed that the prosecution established the charges against the appellant beyond reasonable doubt. Consequently, the Trial Court vide order-

26. The learned Additional Solicitor General referred to the report from Swanchetan, which is a society for mental health. The said report reflects the 14 opinion of Dr. Rajat Mitra (PW-7), Director of Swanchetan, who examined the appellant after the incident.

64. This Court is of the opinion that special reasons can only be validly recorded if an effective opportunity of hearing contemplated under section 235(2) of Cr.P.C. is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence.

The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

(Para 20, page 695 of the report)

[Quoted in The Death Penalty: Roger Hood and Hoyle, 4th Edition Oxford, Page 285]

[The Death Penalty: Roger Hood and Hoyle, 4th Edition, Oxford, Page 281] 65

105. Taking an overall view of the facts in these appeals and for the reasons discussed above, we hold that death sentence cannot be inflicted on the appellant since the dictum of Constitution Bench in Bachan Singh (supra) is that the legislative policy in Section 354(3) of 1973 Code is that for person convicted of murder, life imprisonment is the rule and death sentence, an exception, and the mitigating circumstances must be given due consideration.

106. For the reasons discussed above, we are of the view that in the facts of this case the death 66 sentence imposed by the High Court cannot be sustained and the death sentence imposed upon the appellant is substituted by the sentence of imprisonment for life.

107. The appeals are allowed to the extent indicated above. The conviction of the appellant is upheld and he is to serve out the life sentence.