TaxTMI 
TaxTMI 
1994 (7) TMI 351
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....hri by the Additional Judicial Commissioner, anchi by judgment dated 27-7-1990 who awarded the sentence of death for the offences under Sections 302 and 302/120-B of the Penal Code and rigorous imprisonment to all the three appellants for a period of seven years for the offence under Section 201 of the Penal Code. The learned trial Judge made a reference to the High Court of Patna, Ranchi Bench under Section 366 of the Code of Criminal Procedure for confirmation of the sentence of death and at the same time the three appellants also preferred separate Criminal Appeal Nos. 142, 143 and 152 of 1990 challenging their convictions under Sections 302/120B and 201 of the IPC. The High Court of Patna (Ranchi Bench) dismissed the three appeals preferred by the three appellants affirming the sentences awarded to them and accepted the death reference by judgment dated 16-12-1991 against which these three appeals by leave of this Court have been preferred. Since all these appeals arise out of the common judgment of the High Court, they are being disposed of together. 2.It may be pointed out that along with the above named three appellants three other accused, namely, Y.D. Arya, the maternal u....
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.... that the parents of deceased Urshia Bahri have settled down in America and their deceased daughter Urshia used to write letters to her parents from time to time but they did not receive any letters from Urshia in America for quite some time and on the contrary they received two letters in America from the appellant Suresh Bahri, one dated 29-10-1983 and another dated 3-11- 1983 which are marked Exts. 23/6 and 23/7, intimating them that henceforth his wife Urshia will not be in a position to address to them any letter as she was engaged in urgent work and, therefore, in her place he himself would be writing letters to them. This gave rise to a serious suspicion in the mind of the parents of deceased Urshia and they suspected some foul play. Consequently, the parents of Urshia directed their son Bineet Singh Sarang, PW 69, working in Libya to proceed to India with a view to find out the welfare and whereabouts of Urshia and her children. 6.Further prosecution case is that acting on the advice of his parents Bineet Singh Sarang (hereinafter referred to as Bineet) landed in India on 16-1-1984 and reached the house of his brother-in-law, the appellant Suresh at Delhi. But to his utter....
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....he morning of 12-10-1983 the appellant Suresh Bahri told him that Urshia Bahri had left Ranchi for Delhi by aeroplane that very morning and Suresh remained at Ranchi till end of October 1983. Witness Murari Lal also told him that thereafter he did not see Urshia and her two children at Ranchi. The informant Bineet also met one B.N. Mishra, PW 2, another neighbour of appellant Suresh at Ranchi who told him that his sister Urshia Bahri was known to him because he was negotiating with her for purchase of the House No. 936, Station Road, Ranchi and the sale would have completed but for the sudden disappearance of Urshia Bahri, the sale could not take place. B.N. Mishra, PW 2, also told him that he had gone to the house of Suresh Bahri at Ranchi in the evening of 11-10-1983 to meet Urshia Bahri but he did not find her there. He, however, met Suresh Bahri there who was sitting in the verandah of the house and there was no electric light in the house of Suresh Bahri though there was light in the other neighbouring houses. The witness Mishra also told to Bineet that when he was ascending the verandah of the house the appellant Suresh Bahri caught hold of him and led him away from the house....
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....ght of 11-10-1983 in a room of the said house. The head of Urshia Bahri was truncated and severed from her body. At or about the same time the appellant Gurbachan Singh also arrived along with his servant Ram Sagar Vishwakarma who was also arrayed as an accused but later turned approver and was examined as PW 3. It is said that the headless body of Urshia Bahri was wrapped in a blanket and saree piece and tied with rope was dumped in a sceptic tank situated within the compound of the said house. Later on in the morning of 13-10-1983 it is said that the appellant Raj Pal Sharma and Suresh Bahri took the head of Urshia Bahri and threw the same under a bush in the forest on the Ranchi-Patratru Road. It is also alleged that sometime in the month of January 1984 the appellant Suresh Bahri and Gurbachan Singh managed to take out the body of Urshia from the sceptic tank and took the body in Truck No. BHM 5879 driven by the acquitted accused Mohd. Suhail and threw it in a dumping pit known as Madhukam dump. 10.Further prosecution case with regard to the murder of the two children Richa Bahri and Saurabh Bahri is that they were studying in Father Agnel School, South Extension-II, New Delhi....
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....edsheet were lying at the dumping place of Panchkoshi-Varanasi Road. The Police Officer, Atma Nand Singh, PW 46 seized the said articles by seizure memo Ext. 5/9 as also two bedsheets which were also found on the same road near the Forest Department Nursery vide seizure memo Ext. 5/ 10. 12.Dr B.K. Bhatnagar, PW 27, District Hospital, Varanasi performed an autopsy on the dead body of the boy on 21-12- 1983 at about 4.15 p.m. He found that it was a dead body of a male child aged about 12 years. The doctor noticed two incised wounds in the neck. The trachea and blood vessels and larynx were cut. There was also a contusion on the chest. There were various other injuries found on his person which were ante-mortem in nature caused by sharp object. 13.Police Officer, Sarnath, Atma Nand Singh, PW 46 got the photographs of the dead body taken by the photographer Ashok Kumar PW 48 and published the same in newspapers to collect information about the identity of the dead child but as nobody claimed the dead body he disposed of the same after preparing a panchnama to that effect. Consequently, the Police Officer, Sarnath closed the investigation of P.S. Case No. 100/83 by making a final repo....
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....kam dump known as "Khad gaddha". On digging of the said dumping pit no dead body was recovered but a piece of blanket, saree and rope were recovered from there which were seized as per seizure memo Ext. 5/12. These articles were put on the test identification parade on 6-3-1984 in which the witnesses Murari Lal Sharma PW 1 and B.N. Mishra PW 2 had identified the said articles of piece of blanket, saree and rope to be the materials used in wrapping the dead body of Urshia Bahri on 11-10-1983. 17.The appellant Suresh Bahri was absconding but he was arrested on 31-7-1984 at Delhi. The appellant Raj Pal Sharma was arrested at Delhi by CBI Officer on 8-8-1984. He was produced before the Metropolitan Magistrate, New Delhi on 8-8-1984 and police remand for 10 days was obtained. On 12-8-1984 while in police custody, Raj Pal Sharma made a disclosure statement, Ext. 32 to the CBI Investigating Officer Madanlal, PW 85. In pursuance of the disclosure statement the appellant Raj Pal Sharma took the Investigating Officer and witnesses to the said forest on Ranchi-Patratru Road. The skull, some hairs and pieces of cotton were recovered from the bushes of the forest at the instance of t....
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....ution has failed to bring home the guilt against any of the appellants for alleged murders and they have been implicated only on the basis of suspicion. 20.On evaluation of the evidence adduced by the prosecution and relying on various circumstances found to be established against the three appellants which according to the learned trial Judge are of conclusive nature and consistent only with the hypothesis of the guilt of the appellants convicted and sentenced them as said above. The said conclusions and findings found favour with the High Court also in appeals and, therefore, the High Court dismissed all the three appeals affirming the conviction and sentence awarded by the trial court. 21.At the very outset we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords....
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....in the family matters but in the business affairs also by reason of which Suresh had suffered great setback and loss to his property and business assets at Calcutta. Consequently Urshia had developed a dislike towards Y.D. Arya and ultimately Arya was made to leave Delhi house at the instance of the deceased. It is also said that the acquitted accused Smt Santosh Bahri mother-in-law of deceased Urshia had no love and affection either for Urshia or for her two children, namely, Richa and Saurabh and for that reason she never kept the children with her. According to the prosecution it is in this background that the deceased Urshia was forced to take the decision in her own interest and to fulfil her dreams of a better future of her two children, to dispose of the Ranchi house and migrate to America along with her two children with the sale proceeds of the property and settle down there. But the idea of migration with the sale proceeds of the house entertained by late Urshia could not be cherished by appellant Suresh Bahri and, therefore, the appellant Suresh Bahri hatched a conspiracy with the two convicted associates Raj Pal Sharma and Sardar Gurbachan Singh to eliminate his wife an....
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....other-in-law and the maternal uncle of her husband. According to the evidence of Badri Narayan Mishra PW 2 through whom Laxmi Narayan PW 21 had negotiated for purchase of the Ranchi house, it turns out that the deal was almost finalised for purchase of the house by him but for the sudden disappearance of Smt Urshia on 11-10-1983, the same could not take place. 25.Besides the aforementioned oral evidence the prosecution has produced documentary evidence also to support the allegation that the relations of the appellant Suresh, his mother and maternal uncle were not cordial with the deceased Urshia Babri and that the deceased Urshia was determined to sell out the Ranchi house and migrate to America with her children and the sale proceeds against the wishes of the appellant Suresh Bahri and his mother. The trial court has elaborately dealt with the documentary evidence in this behalf. The High Court has also in paragraphs 25 to 28 of its judgment not only discussed but has reproduced various letters written by deceased Urshia to her parents in America to show the sufferings and state of mind of Urshia on account of the behaviour meted out to her by her husband Suresh Bahri and her mo....
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....on of the crime in question. 26.Learned Senior Counsel Shri Sushil Kumar appearing for the appellant Raj Pal Sharma submitted that in view of the fact that no question relating to motive having been put to the appellants on the point of motive under Section 313 of the Code of Criminal Procedure, no motive for the commission of the crime can be attributed to the appellants nor the same can be reckoned as circumstance against the appellants. It is no doubt true that the underlying object behind Section 313 CrPC is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provisions in Section 313, therefore, make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or exam....
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....by reason of which the maternal uncle had to leave the house and that having regard to the future of her children Urshia Bahri not only wanted to manage the property but also to dispose of the same which was not liked by Suresh Bahri and with a view to remove Urshia Bahri from his way the appellant Suresh Bahri wanted to commit her murder. In view of these questions and examination of Suresh Bahri, it cannot be said that he was totally unaware of the substance of the accusation and charge against him or that he was not examined on the question of motive at all. In the facts and circumstances discussed above it cannot be said that any prejudice was caused to the appellant. The contention of the learned counsel for the appellants in this behalf therefore has no merit. 28.Learned counsel for the appellants strenuously urged that there was utter non-compliance of clauses (a) and (b) of sub-section (4) of Section 306 of the Code of Criminal Procedure inasmuch as that after recording the statement of the approver Ram Sagar Vishwakarma under Section 164 of the Code of Criminal Procedure and after tendering him pardon, the approver was not examined as witness by the learned Magistrate who....
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....ether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub-section (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (5)Where a person has accepted a tender of pardon made under subsection (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,- (a) commit it for trial- (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii)to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. 30. A bare reading of clause (a) of sub-s....
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....he trial. It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with, the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable. Further clause (b) of sub-section (4) of Section 306 of the Code will also go to show that it mandates that a person who has accepted a tender of pardon shall, unless he is already on bail be detained in custody until the termination of the trial. We have, therefore, also to see whether in the instant case these two mandatory provisions were complied with or not and if the same were not complied with, what is the effect of such a non- compliance on the trial? 31. It may be noted that the approver Ram Sagar Vishwakarma hereinafter referred to as Ram Sagar was arrested on 3-12- 1984 and was under police remand till 17-12-1984. He made an application Ext. 3 on 17-12-1984 for recording his confessional statement under Section 164 of the Code and his confessional statement Ext. 28/1 was recorded on 19-12-1984 to 21-12-19....
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....relied on by the learned counsel for appellants, wherein the learned Magistrate had committed the case for trial to the Court of Sessions without examining the approver as a witness in his court before committing the case. But Pandian, J. (as he then was) took the view that the action of the Magistrate in committing the case to the Court of Session without examining the approver was a clear violation of the mandatory provisions of Section 306 of sub-sections (4) and (5) of the new Code and as such he committed irregularity. The learned Judge, therefore, quashed the committal order and directed the Magistrate to comply with the provisions of Section 306 of the Code by examining the approver and then again pass fresh order of committal, if called for. In almost similar circumstances similar view was taken by the High Court of Andhra Pradesh in the case of U. Vijayaraj5 and in this case also the Magistrate was directed to examine the approver as required by sub-section (4) of Section 306 of the Code by giving an opportunity to the accused to cross-examine the approver and then pass the appropriate orders in accordance with law. 33. In Kalu Khoda3 similar question came for considerati....
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....d released from custody. It is for these reasons that clause (b) of Section 306(4) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior court, but such a release would not have any affect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar. 35.Learned counsel for the appellants next contended that the statement Ext. 28/1 of the co-accused Ram Sagar Vishwakarma who turned as an approver recorded under Section 164 of the Code after about 16 days of his arrest cannot be said to be voluntary confession particularly when the Magistrate did not inform him that he would not be remanded to police custody after the statement. It was furthe....
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....76, on the order passed by Chief Judicial Magistrate, Ranchi, recorded the confessional statement of Ram Sagar PW 3 as stated earlier from 19-12-1984 to 21-12-1984 which was marked as Ext. 28/1. Shri Bhuneshwar Ram deposed that before recording the statement of Ram Sagar under Section 164 he had given the necessary warning to him as required by law and this fact is borne out from the certificate Ext. 'A' appended to that effect in the confessional statement Ext. 28/1 before he proceeded to record the confession. This is indicative of the fact that he did caution Ram Sagar and sounded a note of warning that he is not bound to make the confessional statement and if he chooses to make any the same may be used against him and it was thereafter that he made the confession voluntarily on his own volition. He deposed that Ram Sagar did not tell him that he made his confessional statement under any threat or fear or on any promise. In view of this positive evidence on record it is difficult to accept that the confessional statement made by the approver Ram Sagar under Section 164 CrPC was not voluntary or under any fear or promise or assurance. On the contrary we find that the conf....
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....ay that in a case of murder in which the evidence that is available is only circumstantial in nature then in that event the facts and circumstances from which the conclusion of guilt is required to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused but they also must entirely be incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. 41.In order to meet the aforementioned arguments of the learned counsel for the appellants, we shall now proceed to state the law relating to the grant of pardon to an accomplice/approver, the value of his evidence and the extent of reliance that can be placed on his evidence. 42.We have already reproduced above Section 306 of the Code the provisions of which apply to any offence triable exclusively by the Court of Special Judge to any offence punishable with imprisonment extending to seven years or with a more serious sentence. Section 306 of the Code lays down a clear exception to the principle that no inducement shall be offered to a person to di....
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....n other 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 combined reading of the two provisions that is Section 133 and illustration (b) of Section 114 of Evidence Act goes 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 invit....
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.... is a competent witness and the conviction is not illegal merely because it proceeds on uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with illustration (b) to Section 114. The latter section empowers the court to presume the existence of certain facts and the illustrations elucidate what the court may presume and make clear by means of examples as to what facts the court shall have regard in considering whether or not the maxims illustrated apply to a given case before it. Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. The statute permits the conviction of an accused person on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) of Section 114 strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corrobor....
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.... and the conclusions of the High Court on questions of fact or appreciation of evidence are considered to be final. It is, therefore, not necessary for us to scrutinize the evidence of approver threadbare again. We shall, however, scrutinize his evidence on broad and material particulars to satisfy ourselves whether the two courts below were justified in recording conclusion that the testimony of the approver deserved credence. 47. The examination of the approver Ram Sagar Vishwakarma commenced in the trial court on 6-1-1986 as PW 3 and continued for several days in which he deposed that he worked in the furniture shop of the appellant S. Gurbachan Singh from 1979 to 1984, which covers the relevant period. He stated that the appellant Suresh Bahri was known to him as he used to visit the shop of S. Gurbachan Singh quite often and wife and the children of Suresh also visited the shop. He stated that on 4-10-1983 while he was going from the shop after the work was over the appellant Gurbachan Singh stopped him and said that he had some important work with him. Gurbachan Singh then took him into confidence and enquired of him whether he knew anyone who could commit the murder of the ....
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....he area. S. Gurbachan Singh also did not go to the house of Suresh that day as he too had to go to the hospital. Next day the appellant Suresh Bahri came to the shop of S. Gurbachan Singh and asked the reason for not reaching his house the previous day. According to the statement of Ram Sagar Suresh again approached Gurbachan Singh at his shop next day saying that the work has to be done urgently and if it could not be done that day 'Machhiwala' would come for registration of sale deed and then Gurbachan Singh took him on a scooter that very day i.e. 11-10-1983 at about 4.30 p.m. to a house in the Railway Colony, Ranchi for taking measurements for fixing doors and windows and while they were returning at about dusk on 11-10- 1983 Gurbachan Singh took him to the house of Suresh Bahri. Gurbachan Singh met Suresh in the verandah of his house. After having some talk in the verandah both Gurbachan Singh and Suresh Bahri went inside the house. But immediately Gurbachan Singh came out and called the witness Ram Sagar. On being asked by S. Gurbachan Singh he went inside but remained standing dumbfounded at the door of the small room connecting a big room. Gurbachan Singh called him....
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....which the dead body was laid and the witness Ram Sagar and Raj Pal Sharma lifted the dead body and placed it on the plastic sheet. Suresh Bahri then tore half of the saree already kept there and wrapped the dead body with it. S. Gurbachan Singh tore a piece of rope from the cot, Suresh Bahri brought a blackish blanket and then the witness Ram Sagar himself and the appellant Raj Pal Sharma wrapped the dead body in the blanket and tied it with the rope. 50. The approver Ram Sagar PW 3 further stated that appellant Suresh Bahri asked Gurbachan Singh to prepare a box with a view to put the dead body in the box and leave the box in any train. But later on changed the idea because of the risk involved in carrying the dead body in the wooden box and decided to dump the dead body in sceptic tank of the house itself and to throw the head in some jungle. Suresh asked Gurbachan Singh to come to his bungalow at about 7.30 p.m. same day for purposes of dropping the dead body in the sceptic tank. He, therefore, along with Gurbachan Singh went to the house of Suresh Bahri where Suresh Bahri and appellant Raj Pal were already present there. Suresh Bahri and Gurbachan Singh asked the witness Ram S....
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....h he identified to be the same. Ram Sagar goes on to state that he went to Dhulli farm along with Gurbachan Singh with the said attache and the bag in which chhuri and kataries and some papers were kept. The witness Ram Sagar was shown 13"-14" long knife which he identified as the one with which wife of Suresh Bahri was murdered. At Dhulli farm Gurbachan Singh gave that attache to the gardener of Suresh Bahri and asked him to keep the attache and give it to Suresh who was due to come within 3-4 days. Ram Sagar further stated that he had sent four chairs and one cot to Dhulli farm through the son of the gardener of Suresh. 53.Further approver Ram Sagar PW 3 deposed that one morning in the month of December appellant Raj Pal Sharma came to the shop of Gurbachan Singh and told him that the appellant Suresh had come to Dhulli farm with his children and he has called Gurbachan Singh. Thereafter Raj Pal Sharma and Gurbachan Singh went towards Dhulli on a motorcycle. A few days later Gurbachan Singh said to Ram Sagar PW 3 that the dead body has to be taken out from sceptic tank and in this connection he may take the help of John Linda PW 31 and Manohar the employees of his shop....
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....l Sharma. Murari Lal, therefore, directed the gardener Mool Chand Mali PW 24 to allow Raj Pal to stay in the house where Raj Pal stayed till 1-10-1983. Murari Lal also stated that on 1-10-1983 when Suresh came to Ranchi accompanied by his wife Urshia, Raj Pal Sharma could not be seen in the house thereafter and that he saw Raj Pal Sharma only after 5-6 days later on Chutia Road along with Suresh. When Murari Lal enquired about Raj Pal Sharma, Suresh told him that he had arranged a job to him in the shop of S. Gurbachan Singh. Murari Lal further stated that on 11-10-1983 at about 5.00 p.m. Suresh and his wife Urshia came to his shop when he was told by Urshia that both of them would be leaving next day for Delhi and, therefore, he should not give the bill of the articles purchased by them from his shop on credit. Murari Lal further deposed that Badri Narayan Mishra PW 2 also came to his shop at about 7.00 p.m. and told him that he had gone to the house of Suresh Bahri to meet Suresh and his wife but he could not meet his wife and was told by Suresh that his wife had gone in a party to the house of S. Gurbachan Singh and she would be going to Delhi next morning by air direct from his....
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.... Nath said that he would like to take neat and clean land to which Gurbachan Singh agreed but at the same time gave a threat that if he divulged these facts to anybody else he would kidnap the only son of Bhola Nath and blow him with a bomb. Murari Lal stated that same evening Gurbachan Singh brought truck load of soil in the compound of the house of Suresh Bahri and after half an hour the truck went back. He stated that same day at about 9.00 p.m. Gurbachan Singh again came to him and asked him to call Choubey. He called Bhola Nath Choubey when Gurbachan Singh told him that mall has been removed from the sceptic tank (meaning thereby that the dead body has been removed from the sceptic tank). When the witness Murari Lal PW1 enquired from Gurbachan Singh as to where has he disposed of the same the later replied that it has been thrown behind the hillock. 58.Badri Narayan, PW 2 is yet another neighbour of Suresh at Ranchi who is fully known to his family for the last several years. Badri Narayan worked as an intermediary in the deal of the house between Urshia Bahri and Laxmi Narayan, PW 21, who wanted to purchase Ranchi house from Urshia. He deposed that the deal was almost finali....
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.... a couple of days he returned the dagger to Gurbachan Singh after getting it sharpened. As said John Linda, PW 31, was also an employee of Gurbachan Singh in his furniture shop. Linda also stated that he was acquainted with Suresh Bahri who made frequent visits to his master's shop. He deposed that Gurbachan Singh called him along with Ram Sagar, PW 3, at the house of Suresh in the month of January 1984 for taking out soil from the sceptic tank but when he along with others after digging the sceptic tank noticed a bundle of dead body tied with blanket and rope, he became upset. He further deposed that when Gurbachan Singh asked them to take out the dead body, they refused to comply the direction and he as well as other workers went back to the shop. 60.Moolchand Mali PW 24 was the gardener at the relevant time in Ranchi House No. 936 of Suresh Bahri and lived in a servant quarter behind the bungalow. He knew the family of Suresh Bahri very well. Moolchand stated that there used to be frequent dispute between Suresh Bahri, his mother and the deceased wife of Suresh in connection with the sale of the bungalow, as Urshia insisted for sale but Suresh and his mother were opposed to....
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....PW 7 who at the relevant time was running a tea stall opposite Chutia Police Station, Ranchi stated that sometime towards the end of September 1983 Raj Pal Sharma had come to his tea shop for taking tea and continued to take tea twice or thrice a day for about 10-12 days but he had no money to make payment of tea for 5-6 days and when he demanded the money he told him that he was a man of Suresh and had come to Ranchi to look after the house of Suresh which was going to be sold. He further stated that Murari Lal PW1 confirmed that Raj Pal Sharma was a man of Suresh and that Suresh will make payment of his dues. Witness Tiwari PW 7 identified Suresh also. 63.In addition to what has been discussed above clearly establishing the conspiracy hatched by the appellant Suresh along with his two associates, namely, Raj Pal Sharma and S. Gurbachan Singh for the murder of Urshia and in pursuance of which Urshia was murdered, there is some other evidence also which connects the appellants with the crime in question. 64.Rohtas Sarang PW 79 is the mother of Urshia who deposed that she had received last letter from Urshia in America in the month of September 1983 as a result of which she was ve....
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....College, Bhopal for examination and report by its Director, Dr Harish Chander. Dr Harish Chander, the Director of the Institute-cum-Legal Advisor to the Government of M.P. sent big report Ext. 2/81 after examination with his opinion that the skull belonged to a female human being whose age was 33 years plus minus 5 years. Dr Harish in his report had also asked for some other information and photograph and clothings of the deceased in order to fix up the identity of the person to whom the skull belonged to but the prosecution could not furnish the required information. Dr Harish submitted another report giving his opinion that in the absence of the material required by him it cannot be said with certainty that identity was established though there is resemblance with the skull of the deceased. Dr Harish could not be examined by the prosecution as a witness due to his illness but an expert of his department Dr S.C. Jain PW 80 had appeared and stated that Prof. Harish Chander was suffering from paralysis and, therefore, could not appear as a witness. He further proved the aforesaid two reports sent by Prof. Harish Chander. He stated that he had examined the skull and other materials a....
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.... Rajeshwar Singh PW 59 was the Station House Officer, Police Station Chutia at the relevant time, stated that on the report of Bineet Singh PW 69 P.S. Case No. 27/84 with regard to murder of Urshia was registered in Lower Bazaar Police Station as at that time Chutia Police Station was under Lower Bazaar Police Station and the case was handed over to CBI by notifications of the Central and State Governments. Rajeshwar Singh PW 59 investigated the case. During the course of investigation as stated earlier PW 59 had arrested the appellant Gurbachan Singh. He deposed that during the course of investigation the appellant Gurbachan Singh took him near Khad gaddha hillock where the waste of Ranchi city is dumped. He deposed that at the instance of Gurbachan Singh he got the place unearthed by labourers to discover the dead body of Urshia which could not be found but a piece of blanket, piece of saree and a rope were found which were seized at the instance of Gurbachan Singh by seizure memo Ext. 5 dated 2-2-1984 which was prepared by ASI Rangnath Singh on his direction. These articles were put to test identification. Shri Atulya Kumar Bara PW 83 an Executive Magistrate on the orders of CJM....
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....f Gurbachan Singh who is said to have given information about the dumping of the dead body under the hillock of Khad gaddha dumping ground was recorded but there is positive statement of Rajeshwar Singh, PW 59, Station House Officer of Chutia Police Station who deposed that during the course of investigation Gurbachan Singh led him to Khad gaddha hillock along with an Inspector Rangnath Singh and on pointing out the place by Gurbachan Singh he got that place unearthed by labourers where a piece of blanket, pieces of saree and rassi were found which were seized as per seizure memo Ext. 5. He further deposed that he had taken two witnesses along with him to the place where these articles were found. Rajeshwar Singh PW 59 was cross- examined with regard to the identity of the witness Nand Kishore who is said to be present at the time of recovery and seizure of the articles as well as with regard to the identity of the articles seized vide paragraphs 18, 21 and 22 of his deposition but it may be pointed out that no cross-examination was directed with regard to the disclosure statement made by the appellant Gurbachan Singh or on the point that he led the police party and others to the h....
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....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 Santa9 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 Sattar10 also does not help the appellants in the present case. In the case of Abdul Sattar10 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 ....
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....se, 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 masterminded 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 all-out efforts for the disappearance of the dead body of Urshia. 76.The High Court affirming the findings recorded by the tr....
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....ts through letters to immediately arrange for her citizenship and to get over the monetary problems she decided to dispose of Ranchi House No. 936. (13)With a view to shift to America permanently she was even ready to take divorce from her husband Suresh as is evident from her letters addressed to parents. (14)The appellant Suresh was not happy with the decision of Urshia to shift to America with children specially with the sale proceeds of Ranchi house. (15)Being convinced that Urshia had finally decided to shift to America with children by disposing of Ranchi house, appellant Suresh decided to do away with her life at any cost and to meet this end he hatched a conspiracy with the appellants Raj Pal Sharma and Gurbachan Singh. (16)It was for this reason that he had first tried to take the assistance of his mali Moolchand PW 24 to commit her murder and when he declined to do so he was turned out from the outhouse. (17)Suresh also tried to persuade the approver Ram Sagar PW 3 through his employer Gurbachan Singh for murder of Urshia in pursuance of which appellant Gurbachan Singh gave him allurement in the presence of Suresh that not only the advance taken by him would be set....
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.... to Delhi on 12-10-1983. (28)The appellant Suresh purchased two railway tickets in the waiting list in his name and his wife Urshia for Delhi to give a colour that the couple would be leaving on 12- 10-1983 but in fact none of them travelled on 12-10-1983 as per the reservation chart and evidence of the then Chief Reservation Supervisor of Ranchi Railway Station. (29)On 10-11-1983 electric light of the house of Suresh was deliberately put off though there was light in the vicinity so that in the darkness murder of Urshia could be committed by Suresh and Raj Pal in a room of the house. (30)As per plan appellant Gurbachan and PW 3 also arrived at the house soon after the ghastly crime and as PW 3 became nervous on witnessing the ghastly crime, his employer Gurbachan Singh patted him and offered water. (31)Murari Lal PW1 also happened to come to the house soon after the murder with the bill of the articles purchased from his shop on credit as required by Urshia and found no electric light in the house but a kerosene lamp was lighted, appellant Gurbachan Singh and PW 3were sitting on a sofa, the appellant Suresh was in the drawing room and Raj Pal wearing an underwear was seen movi....
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...., Defence Colony though he had no house in Defence Colony (vide Exts. 2/9 and 4/12). (39)In the letters Suresh not only tried to impress upon his in-laws that they were leading a very happy life and at the same time also made attempts to explain the sudden silence of Urshia by a improbable story. The said letters also indicated the pre-planned idea of Suresh in committing the murder of his two issues subsequently by informing them that Urshia was staying at Ranchi for about one and a half years and the children were to shift there for studies. This unusual information given by Suresh created a serious suspicion in the mind of his in-laws and, therefore, they directed their son Bineet Singh PW 69 to go to India and find out the welfare and whereabouts of Urshia and her children. The conduct of Suresh and Gurbachan after the arrival of informant Bineet Singh PW 69 from Libya to make an enquiry about his sister and children was not only misleading but their activities at every stage were conflicting and suspicious which directly suggested that Suresh was deliberately avoiding to divulge the truth. The informant Bineet Singh PW 69 made frantic enquiries about his sister at Delhi, Ra....
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....ing Chutia police to move the CJM, Ranchi, on 23-8-1984 for issuance of warrant against him leading to his arrest on 28-8-1984 by CBI in a border village of Delhi and Haryana." 77. 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 there 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 there being any previous identification parade, their evidence should not have been accepted with regard to the factum that he was the person wh....
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.... till 1-10-1983 when Suresh along with Urshia arrived and stayed there. Thus Murari Lal PW1 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 him 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 Kanan 11 relied on by the learned counsel for the appellants the accused of that case was s....
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....e father and mother of the two children Saurabh and Richa in the photograph Ext. 1/2. Mrs George PW 34 a teacher of Father Agnel 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 halfheartedly 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 s....
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.... its Proprietor S. Gurbax Singh PW 19 who deposed that in 1983-1984 the hotel was known as Punjab Rest House but the name was subsequently changed as New Punjab Rest House. The witness stated that Suresh along with the two children and another person came and stayed in the hotel on 15-12-1983 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 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 Agnel 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 16-12-1983 as testified by caretaker Gopi Mistry, PW 29, of Suresh on his Dhulli farmhouse and his son Shiv Nandan Lohare PW 60. Bo....
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....ing 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 18-121983 by making entry Ext. 4/2 in his presence in the Guest Register Ext. 8/1 at SI. 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 18-12-1983 when on their return journey Suresh stayed in Hotel India at Varanasi on 18-121983 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 Samath, District Banaras who had gone to the bank of Varuna River on 20-12- 1983 at about 8.00 a.m. to ease him....
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....s after about 24 hours of the death but the same was not found at the time of postmortem which 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 of 17-12-1983 and 18-12-1983. Learned 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 of 17-12-1983. These 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 is overwhelming evidence to show 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....
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....so lying near a Nursery of the Forest Department at Asapur Road crossing.He, therefore, visited that place also and seized two bloodstained bedsheets in the presence of witnesses by seizure memo Ext. 5110. All these articles seized under seizure memo Exts. 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. 8/4 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 at during the investigation of the murder of Urshia and her children when the CBI Inspector Madan Lal PW 85 arrested Suresh Bahri on 31-7-1984 at Delhi who appears to have made disclo....
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....l 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 18-12-1983 tells a different story that though the two children were shown to be fast asleep in the rear 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 circumstance which deserv....
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.... with which he had gone to Nepal because Suresh thought that his ultimate apprehension would be unavoidable as the Chutia police had submitted a charge-sheet with 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 10-8-1984 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 17-12-1983 and 18-12-1983. 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 fa....
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....ed for commission of such a crime alone is enough to bring about a conviction under Section 120-B and 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 Section 120-B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may be frustrated 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. The observations made by this Court in Noor Mohd. Mohd Yus....
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....id 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 sub bom State (Delhi Admn.) v. VC Shukla, AIR 1980 SC 1382 sceptic tank and taking it out again and dumping it in a hillock at Khad gaddha. 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 Sures....
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....nd order itself dated 1-8-1982 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 CrPC as to the nature of that statement, when he was questioned whether he 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, or to PW 82 and Madanlal, PW 85, the CBI Inspectors or any other prosecution witnesses about the alleged statement. A mere mention in the remand order or....
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....prisonment 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, sub- section (3) of Section 354 lays down that in case of sentence of death the judgment shall state special reasons for such sentence. This gives an impression that in the new Code of Criminal Procedure the emphasis is that the life imprisonment for the offence of murder is the rule and death sentence an exception to be resorted to for special reasons to be recorded in the judgment. For these reasons, therefore, as far as the extreme penalty of death is concerned the sentencing discretion of the court is circumscribed within the parameters of a formula laid down by this Court in Bachan Singh case15 as well as in some other subsequent decisions that 15 Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580 the extreme penalty should not be inflicted except in rarest of the rare cases and on the four principles, namely, (1) the extreme penalty of death may not be inflicted except in cases of extreme culpability, (2) before opting for the death penalty the circumstances of ....
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....gating circumstances have also to be taken into consideration." In the said report it has been further observed in para 15 as follows: (SCC p. 239) "In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also rights of the victim of crime and the society at large while considering imposition of appropriate punishment." 104.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 u....
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....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 7 conspiracy and kill his wife in a most callous and ghastly fashion as in the present case only on a trifling 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 sent....