Manoj Kumar vs State of U.P.

Imtiyaz Murtaza, J.—By means of the present appeal, the Appellant has assailed the judgment and order dated 30.4.2007, passed by Addl. District and Sessions Judge, Court No. 5, Saharanpur in S. T. No. 274 of 2004 and S.T. No. 275 of 2004, whereby he has been convicted u/s 302, I.P.C. and sentenced to death and a fine of Rs. 25,000 and in default of payment of fine six months further R.I. He has further been convicted u/s 25 of Arms Act and sentenced to 1 year''s R.I.

The abridged version of the prosecution case is that on 28.1.2004, a telephonic information was received from Rishi Pal, a native of village Kachrai district Saharanpur, at the police station Nanauta district Saharanpur to the effect that he heard Manoj son of Roopram raising alarm that the miscreants had intruded into his house and had committed murder of his wife Smt. Kiran and son Rajan and that he had been injured and further that the miscreants were still present in the house of Manoj. On the basis of this telephonic information, case at Case Crime No. 11 of 2004 was registered under Sections 302 and 307, I.P.C. against unknown persons same day at 2 a.m. S.O. Nanauta namely Girish Chand Tyagi, galvanised into action and after taking over the investigation of the case and making entry in the G.D., he rushed to the scene of occurrence. At the time the police had reached the place, knots of people had collected at the door of the house of Manoj. Upon reaching the scene of occurrence, the police surveyed the house and inspected the site. At that time, it is mentioned, the dead body of deceased Kiran was lying supine on a cot while the body of Rajan son of Manoj was lying deep inside the room. The finger of accused Manoj was bleeding on account of fire arm injury. The Investigating Officer sent Manoj for medical examination and thereafter, S.I. Shiv Lal prepared inquest report in the presence of police personnel and the village people on 28.1.2004 between 8 a.m. to 11.30 a.m. He also collected blood stained earth and blood stained bed sheet and thereafter, recorded the statement of Rishi Pal who had given telephonic information. Thereafter, he recorded the statement of Jai Prakash. The dead bodies thereafter were despatched for post mortem examination. The Investigating Officer also searched the house and recovered a live cartridge of .315 bore lying on the iron box adjacent to the room where murders have taken place. He also recovered one empty cartridge of .315 bore and prepared its recovery memo, which is Ext. Ka-3. He deposited the recovered articles at the police station on 29.4.2004 at 4.20 a.m. and made entry in the G. D. The live cartridge is Ext. Ka-1 and the cloth bearing the seal is Ext. Ka-2. The empty cartridge is Ext. Ka-3 and the cloth bearing its seal is Ext. Ka-4. In the course of investigation, Manoj was suspected to be behind the gruesome murder and when he was interrogated, it transpired that Manoj Kumar was involved in the commission of the offence and the story of miscreants having intruded his house and having committed the crime was fabricated to screen himself.

The autopsies on the dead bodies were done by Dr. A.C. Sharma, P.W. 5 and he noted following ante-mortem injuries on the person of Smt. Kiran:

One incised wound 6 cm. x 2 cm. x bone deep on left side of face just in front and below left ear, all tissues and mandible found cut, clots of blood present in and around wound.

One curved incised wound 11 cm. x 3 cm. x bone deep present on left side of skull just behind left ear, direction of the wound tangent from above downwards, part of skull bone found cut, blood clots present in and around wound.

One incised wound 6 cm. x 2.5 cm. x bone deep present on redial aspect of right forearm 3 cm. below elbow, situated longitudinally, part of bone found cut, blood clot present in and around wound.

One incised wound 7 cm. x 3 cm. x bone deep situated horizontally and back of right hand, bones under wound found cut, blood clots present in and around wound.

One curved incised wound 5 cm. x 2 cm. x bone deep present on outer aspect of left hand at base of thumb, bone found cut, blood clots present in and around wound.

One gun shot wound of entry 2 cm. x 2 cm. present on front of chest on left side on the left breast 2 cm. from nipple at 8 O''clock position, tattooing present around wound, margin inverted, lacerated, blood clots present in and around wound, on probing wound was found to be chest cavity deep.

One gun shot wound of entry 2.5 cm. x 2 cm. present on back chest on left side 5.5 cm. from middle, 9 cm. below lower angle of scapula. On probing this wound was found to be connected to the injury No. 6 through a track through chest cavity.

He also found uterus gravid which contained one male foetus of length 50 cm. weight 2800 gm. head circumference 32 cm. Feet was well developed, nails at tip of finger. In his opinion, the cause of death of the deceased was shock and haemorrhage as a result of ante mortem injuries.

He also conducted autopsy on the dead body of Rajan and noted following ante mortem injuries:

One gun shot wound of entry present on front of chest on right side measuring 4 cm. x 2.5 cm. x chest cavity deep, margins inverted, lacerated and abraded, wound situated 2 cm. above and medially to right nipple directly backwards and towards left.

One gun shot wound of exit 3 cm. x 1.5 cm. x chest cavity deep present on back of chest just towards left of spine, 8 cm. distal to base of neck, a metallic object found partly protruding from wound which was removed and was found to be a bullet.

The doctor opined that cause of death of the deceased was due to shock and haemorrhage as a result of ante mortem injuries.

After the investigation, charge-sheet was submitted and in due course, case was committed to the Court of Sessions. The Sessions Judge framed charges under Sections 302, I.P.C. and 25, Arms Act.

The prosecution in order to substantiate its case, examined as many as 11 witnesses. P.W. 1 is Rishi Pal who gave information to police on telephone. P.W. 2 Jai Pal is also a resident of the same village. He was declared hostile by the prosecution. P.W. 3 Manoj Kumar Tyagi a native of the same village aged about 24 years was also declared hostile. P.W. 5 is Dr. A.C. Sharma, who conducted autopsy on the dead body of the deceased. P.W. 6 is G.C. Tyagi, Investigating Officer. P.W. 7 is S.I. Shiv Lal who prepared the inquest report. P.W. 8 is H. C.P. Lal Chand. He was entrusted investigation relating to Case Crime No. 12 of 2004 u/s 25, Arms Act. P.W. 9 is Harendra Singh Tomar, who was then posted as Moharrir at the police station. P.W. 10 is C.P. Vinod Singh Moharrir who entered the telephonic message in the chik report.

The accused person in his statement recorded u/s 313, Code of Criminal Procedure denied the incriminating evidence appearing against him. He pleaded that he has been falsely implicated in the case and claimed to be innocent. No defence witness was produced or examined on his behalf.

The trial court on appraisal of the entire evidence on record held the accused guilty of the charges and convicted him accordingly as stated supra.

Feeling aggrieved and dissatisfied with the judgment of the court below, the above appeal has been preferred in this Court.

We have heard Shri V.P. Srivastava, learned Sr. counsel, Shri Lav Srivastava, counsel for the Appellants, Shri D.R. Choudhary, learned Government advocate and Shri Arunendra Singh, learned A.G.A. for the State.

We have considered the submissions of learned Counsel for the parties and also the evidence on record.

Learned Counsel appearing for the Appellant contended that the evidence produced in this case is not sufficient and convincing to warrant the conviction of the Appellant. He next contended that there is no ocular evidence on record and the entire case hinges on circumstantial evidence and regard being had to the facts and circumstances on record, no conclusion of guilt could be drawn and the facts are not consistent with the hypothesis of guilt of the accused. He also contended that the chain of evidence is not so complete as to leave any reasonable ground for the conclusion consistent with the innocence of the accused. Learned Counsel also submitted that the prosecution had not proved motive of the crime attended with submission that motive plays important role in a case of circumstantial evidence and the prosecution is absolutely silent about the motive and therefore, proceeds the submission that the chain of circumstances is also not complete. It is further submitted that it was a case where some unknown miscreants intruded into the house and committed the murder of the deceased persons with the avowed object of looting the house. The learned Counsel also submitted that the conduct of the accused from the facts on record would appear to be above-board inasmuch as he immediately raised alarm for help and informed the neighbours and the miscreants for fear of being caught, escaped without looting anything. It is further submitted that initially the prosecution has introduced evidence of extra judicial confession and had examined P.W. 2 Jaipal, P.W. 3 Manoj and P.W. 4 Jagdish but they did not support the prosecution case. He further challenged the findings of the trial court and submitted that the statement of the accused u/s 313, Code of Criminal Procedure cannot form the basis for conviction and lastly submitted that the Sessions Judge has wrongly awarded death sentence to the Appellant as it was not a case of rarest of rare category.

Per contra, learned A.G.A. canvassed for the correctness of the view taken by the trial Judge. He supported the findings recorded by the trial court and submitted that the prosecution has proved the presence of the Appellant inside the house and there was other incriminating circumstances to connect the Appellant with the crime and the Sessions Judge has rightly convicted the Appellant and recorded the findings of conviction.

In order to appreciate the rival contentions of the learned Counsel for the parties, we have independently scrutinised the oral and documentary evidence appearing on record.

P.W. 1 Rishipal deposed that he gave telephonic information at the police station upon being enjoined by the village people that the dacoits had raided the house of Manoj. He also recognised Manoj as an accused. He also deposed that the police had swung into action upon reaching the village. He also deposed that at the time of dacoity, hundreds of people had collected around the house of Manoj. He denied that he had seen or recognised the dacoits. The witness was not cross-examined despite opportunity being afforded to him.

P.W. 2 is a native of the same village. He is aged about 67 years. He denied that any occurrence relating to the accused having taken place in his presence. In cross-examination, he stated that he knows the topography of the house of Manoj. The house of accused, according to witness, has only one exit point. He further stated in cross-examination that the walls of the house of accused had not enough height and the same could be scaled over by the miscreants.

P.W. 3 Manoj Kumar Tyagi is also a native of the same village. In his statement, he denied that accused confessed to the crime in his presence. This witness was also declared hostile. It is stated that despite opportunity being afforded, the defence did not cross-examine the witness.

P.W. 4 Jagdish is also native of the same village. He deposed that he heard about the murder of the son and wife of accused Manoj in the morning. He denied that Manoj met him in the night or there was any discussion with him. This witness was also declared hostile. It is stated by the learned Sessions Judge that despite opportunity being afforded, the defence did not cross-examine the witness.

P.W. 5 Dr. A.C. Sharma conducted the autopsies on the dead bodies of the deceased.

P.W. 6 G.C. Tyagi is the Investigating Officer of the case.

P.W. 7 S.I. Shiv Lal deposed that on 28.1.2004 he was posted at police station Nanauta as Sub-Inspector. He also visited the place of crime of Case Crime No. 11 of 2004 under Sections 302 and 307, I.P.C. On the instructions of S.O. he prepared the inquest report. The inquest report of Smt. Kiran is Ext. Ka-4. Thereafter, he prepared the inquest on the dead body of Rajan which is Ext. Ka-5. He also prepared the relevant papers for post mortem examination of dead bodies, which are Exts. Ka-6 to 13. He also prepared recovery memo of blood stained bed sheet, which is Ext. Ka-14. He also recovered one pillow bed sheet, glass bangles and prepared its recovery memo which is Ext. Ka-15. He also prepared recovery memo of blood stained earth, which is Ext. Ka-16. After 30.1.2004 he was entrusted with the investigation of the case he recorded the statement of Jaipal, Manoj Tyagi and Jagdish. On 31.1.2004 he arrested Manoj and recorded his statement at 1.45 p.m. in which he confessed to have committed the crime and agreed to get recovered the balkati and country made pistol. He alongwith Manoj and other witnesses reached near the sugar cane field of Kalloo Prajapati and he got recovered a country made pistol and balkati from there. He prepared the recovery memo of pistol and balkati, which is Ext. Ka-17. He also prepared the site plan of the place of recovery, which is Ext. Ka-18. After conclusion of the investigation he submitted charge-sheet against the Appellant Manoj, which is Ext. Ka-19. He also sent the recovered country made pistol, balkati, blood stained earth and blood stained clothes to Scientific Laboratory, Agra for examination. The report of Scientific Laboratory, Agra is Ext. Ka-20.

P.W. 8 H.C.P. Dal Chand deposed that on 1.2.2004 he was posted as Head Constable. Case Crime No. 12 of 2004 u/s 25, Arms Act, was registered on 31.1.2004 against Manoj by S.I. Shiv Lal. He started investigation of the case and recorded the statement of informant Shiv Lal, S.I. and Manoj Kumar. On 2.2.2004, he recorded the statement of Mahendra Singh, Constable Ravindra Kumar, Constable Vikram Singh. He also prepared the site plan of the place of recovery, which is Ext. Ka-22. He recorded the statement of Prem Singh on 3.2.2004 and also recorded the statement of constable Rajesh, Rajneesh and Suresh. After conclusion of the investigation he submitted charge-sheet against Manoj u/s 25, Arms Act, which is Ext. Ka-23. The sanction for the prosecution of Manoj u/s 25, Arms Act was obtained, which is Ext. Ka-24.

P.W. 9 Constable Harendra Singh was posted as constable clerk on 31.3.2004. He deposed that on the basis of recovery memo Ext. Ka-17 he prepared the chik report No. 11 of 2004 and Case Crime No. 12 of 2004 u/s 25, Arms Act against Manoj was registered. Copy of the chik report is Ext. Ka-25. He also prepared G.D. entry which is Ext. Ka-26. On 31.1.2004 the accused was lodged in the custody and G.D. entry is Ext. Ka-27.

P.W. 10 Constable Vinod Singh deposed that on 28.1.2004 he was posted as constable clerk, at 2 p.m. Rishi Pal informed on telephone that Manoj raised alarm and informed that miscreants have committed murder of his wife and son and also caused injuries to him. He prepared the chik report on the basis of telephonic information, which is Ext. Ka-30 and Case Crime No. 11 of 2004 under Sections 302 and 307, I.P.C. against unknown accused was registered at 2 a.m. G.D. entry is Ext. Ka-3. On 29.1.2004, entry in the G.D. was made regarding the recovered articles from the place of occurrence, which is Ext. Ka-32.

P.W. 11 Junaid Khan deposed that on 28.1.2004 he had escorted the dead bodies for post mortem examination.

Before coming to grips with the factual aspects, it may as a prologue be stated that for a crime to be proved it is essential that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen it being committed. It is settled principle of law that the offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue which taken together form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.

The present case hinges on circumstantial evidence. The Apex Court in catena of decisions has propounded the law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

The first case relevant on the point which should be reckoned with is Padala Veera Reddy v. State of Andhra Pradesh 1991 SCC 407. In this case, the Apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The case at hand has to be appraised and tested in the anvil of the aforesaid principles. The Sessions Judge after reckoning with the entire evidence has converged to the conclusion that the deceased were wife and child of the accused and at the time of occurrence the Appellant and deceased were inside the house and there is not an iota of evidence or suggestion that some unknown person or persons sneaked into the house from outside. The presence of the Appellant is also proved by the fact that he had sustained injury in his hand and he was also referred to the doctor for his medical examination. The Appellant at no stage denied or suggested that he was not present inside the house. The Session Judge has also observed in his finding that it is not necessary to prove motive of the crime when incident took place within the four walls of the house. Another circumstance which weighed with the Sessions Judge is the recovery of weapons of the crime. A country made pistol and a balkati was recovered on the pointing out of the Appellant and the pistol was sent alongwith cartridge recovered from the place of crime for ballistic examination and the report shows that the cartridge was fired from the pistol recovered on the pointing out of the Appellant and further held that the Appellant failed to discharge the burden u/s 114 of Evidence Act.

We have traversed upon the entire record and scanned the decision from different angles. From scrutiny of the evidence on record, the circumstance is amply proved that at the time of occurrence only the Appellant was inside the house alongwith the deceased persons. It also finds mention that P.W. 1 Rishipal had informed the police on the basis of information given by the Appellant, i.e., the alarm raised by the Appellant which carried connotation that miscreants were present in the house and they were committing the crime. However, in his deposition, he stated that he had informed the police on the basis of information given by the villagers. This carries connotation that he was enjoined by the villagers to inform the police. This circumstance thus stands proved that the Appellant had raised alarm and conveyed to the villagers by his alarm that the some unknown persons were present in the house to commit the crime and this also proves the circumstance that he was present inside the house. The Appellant had also sustained fire arm injuries at about 4.20 a.m. on 28.1.2004 and he was medically examined at S.B.D. Hospital, Saharanpur and the doctor had noticed one lacerated wound over left hand index finger, exposed muscles and bone, fresh bleeding, blackening all around the wound. The injury report of Manoj is Ext. Kha-1. Thus, it is no gainsaying of the fact that the Appellant was present inside the house at the time of commission of the offence.

The next aspect to be considered is the recovery made on the pointing out of the Appellant. It is on the record that the Investigating Officer had recovered one live cartridge of .315 bore which was lying on a trunk in the presence of the witnesses namely Rajpal and Suresh Chand and prepared its recovery memo which is Ext. Ka-2. He also recovered one empty cartridge of .315 bore outside the main door and prepared recovery memo in the presence of the witnesses, which is Ext. Ka-3. P.W. 7 S.I. Shiv Lal had arrested the Appellant on 31.1.2004 and thereafter on the pointing out of the Appellant, one country made pistol of .315 bore and one balkati was recovered from a pit, and the same were sent to Forensic Laboratory at Agra for chemical analysis. The report of the Forensic Laboratory, Agra clearly indicates that the empty cartridge was fired from the country made pistol recovered on the pointing out of the Appellant. The Appellant did not explain the cause of death of the deceased and the only explanation regarding murder of his wife and son that was offered by him was that some unknown persons gained entry into the house and committed the murder of his wife and son. The said exculpatory plea is also not corroborated by any evidence. In his statement u/s 313, Code of Criminal Procedure his case was of one of simple denial. The murders have been committed inside the house of the Appellant and therefore, it brooks no dispute that the burden would lie on the shoulder of the Appellant to explain how the murder was committed. In connection with the above, we feel called to advert to the decision of the Apex Court in the case of State of Maharashtra and Others Vs. Ravi Prakash Babulalsing Parmar and Another, . The Apex in paragraphs 15, 21 and 22, has held as under:

Where an offence like murder is committed in secrecy inside a house the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.

Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for the commission of the crime.

The counsel for the Appellant has laid much emphasis that in a case of circumstantial evidence, it is essential to prove the motive for commission of the crime. The prosecution, it is submitted, did not suggest any motive for the crime. It is further submitted that there is no suggestion that the Appellant had strained relations with the deceased attended with submission that the absence of motive is an important link missing in the chain of circumstances to connect the Appellant with the crime.

We have considered the submission of the counsel for the Appellant that the prosecution failed to prove motive for the crime and the evidence should be discarded is not convincing and acceptable.

It is true that the prosecution did not prove any motive for the crime. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily end up in acquittal of the accused. The Apex Court in various decisions has laid down the principle that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it, as it is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In this connection, we would refer to the decision of the Apex Court in Mulakh Raj v. Satish Kumar 1992 SCC 482, wherein it was observed:

Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.

Looking to the facts on record and regard being had to the principles laid down by the Apex Court in the case supra, we are of the opinion that if the circumstantial evidence with regard to the offence is proved, the Appellant cannot escape his liability on the ground that there was no motive for committing the crime.

The next submission of the counsel for the Appellant is that in criminal cases the burden of proof is on prosecution to prove its case beyond reasonable doubt. He further submitted that three prosecution witnesses namely, P.W. 2 Jaipal, P.W. 3 Manoj Kumar Tyagi and P.W. 4 Jagdish did not lend support to the prosecution case.

We have considered the submission but we do not find the submission loaded with any substance. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. The case relevant on the point is Trimukh Maroti Kirkan (supra), in which it is observed that the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. The applicant did not offer any explanation as to how his wife and child died. He even did not explain his own injury. In his statement u/s 313, Code of Criminal Procedure he did not offer any explanation. It is true that the statement of accused u/s 313, Code of Criminal Procedure is not a substantive evidence but it can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution.

In a case based on circumstantial evidence where no eye-witness account is available, yet another principle of law that has to be kept in mind is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. The decision germane to the point Raj Kumar Prasad Tamarkar Vs. State of Bihar and Another, . The distillate of the said case is where the deceased and her husband were in the bedroom and the terrace connecting the same and there was no other person and the cause of death of the deceased Usha Devi, i.e., by a gun shot was not in dispute, the quintessence of what the Apex Court observed in paras 23, 24 and 25; is that "Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the Respondent to show under what circumstances death was caused to his wife. The onus was on him, He failed to discharge the same:

This legal position would appear from a decision of this Court in Nika Ram v. State of H.P. 1972 SCC 635, wherein it was held:

It is in the evidence of Girju P.W. that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (P.W. 8), who is the uncle of the accused, and Bhagat Ram, school teacher (P.W. 16). According to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence. Mani Ram (P.W. 8) saw the accused at his house at 3 p.m., while Poshu Ram (P.W. 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan P.M., consists of one residential room, one other small room and a verandah. The correctness of that plan is proved by A. R. Verma, Overseer (P.W. 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.

In Trimukh Maroti Kirkan v. State of Maharashtra 2007 SCC 80 : 2006 (3) ACR 3150 (SC),the law is stated in the following terms:

Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.

We have carefully scrutinised the evidence on record and considered the submissions of the counsel for the parties on the point. The prosecution has proved beyond reasonable doubt that the murder of the deceased took place in the house of the Appellant and the presence of the Appellant in the house is also not disputed. This is also not in dispute that the death of the deceased is homicidal. The Appellant also sustained one injury on his finger. He was also examined by the doctor and his injury report is on the record (Ex. Kha-1). There is nothing on the record to prove the presence of any outsider inside the house. The Investigating Officer did not find anything to buttress the plea that robbery or dacoity took place inside house. The Appellant has throughout maintained eerie silence as to how the deceased sustained the injuries. He even did not speak about his own injury. All these point to the guilt of the Appellant in the commission of the crime and in our opinion, the prosecution has proved its case beyond reasonable doubt. The Sessions Judge has rightly recorded findings of conviction which in our opinion are writ knit and there is nothing on record to differ from the view taken by the Sessions Judge. In our opinion, the view taken by the learned Sessions Judge is correctly oriented view.

Lastly, the question that arises for serious consideration is whether imposition of death sentence to the Appellant in the facts and circumstances of the case is justified?

Under the old Code of Criminal Procedure ample discretion was given to the Courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the Courts to record special reasons if ultimately death sentence is to be awarded. A Constitution Bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab, , while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.

Coming to the aspect whether penalties of death should be sustained in the facts and circumstances of the case, we feel called to advert to the guidelines laid down in stream of decisions commencing from Bachan Singh Vs. State of Punjab, and thereafter reiterated in subsequent decisions namely Machhi Singh and Others Vs. State of Punjab, and Devender Pal Singh Vs. State National Capital Territory of Delhi and Another, . The guidelines laid down in Bachan Singh''s case (supra) may be culled out as under:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In Machhi Singh and Others Vs. State of Punjab, , the Supreme Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community may be shocked. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances.

In Devender Pal Singh''s case (supra), the Apex Court regard being had to both the cases supra, expanded the formulation for imposing extreme penalty. The guidelines may be abstracted below as under:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness, e.g., murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride burning or dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons or a particular caste, community, or locality are committed.

(5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

We may advert to the reasons recorded by the Sessions Judge for awarding extreme penalty. The Sessions Judge observed that there was no evidence that Appellant was financially sound and there was no evidence of any kind of provocation and he had committed the cold blooded murder of his wife and child in a planned manner.

In the perspective of the above decision and regard being had that the reasons assigned for inflicting the extreme penalty do not constitute special reasons, we are of the view that the case does not fall in the category of rarest of rare cases.

In connection with the above, another decision on the point may be referred to. The Apex Court in the case of Ram Pal v. State of U.P. (XLVII)2003 ACC 567, for the reasons mentioned in paragraphs 8 and 9 of the judgment reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident.

Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance.

Considering the overall circumstances of the case this case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed and we are of the view that a sentence of imprisonment for life to the Appellants would meet the ends of justice.

We therefore, reduce the sentence of death of the Appellant to imprisonment for life.

Reference aforesaid is rejected. The appeal is partly allowed. In consequence the conviction recorded by the Sessions Judge is maintained but in the facts and circumstances and for reasons recorded above, the sentence of death awarded to the Appellant by the learned Sessions Judge, Saharanpur is commuted to imprisonment for life.