1994 Supreme(SC) 629

SUPREME COURT OF INDIA
Dr. A.S. ANAND AND FAIZAN-UDDIN, JJ.
Suresh Chandra Bahri, Appellant
Versus
State of Bihar, Respondent.
Criminal Appeals Nos. 329 with 159 and 160 of 1992,
D/- 13-7-1994.
WITH
Gurbachan Singh, Appellant
Versus
State of Bihar, Respondent.
AND
Raj Pal Sharma, Appellant
Versus
State of Bihar, Respondent.
Advocates appeared
Mr.Sushil Kumar and Mr. K.B. Sinha,Sr. Advocates, Mr. Ashok Kumar Sharma, Mr. J.P. Sharma, Advocates with them, for Appellant; Mr. A. Raghubir, Sr. Advocate,MR.Tara Chand Sharma and Ms. Neelam Sharma, Mr.B.B. Singh and Mr. P.Parmeshwaran, Advocates with him, for respondent.

Headnote:(i) Indian Penal Code, 1860 - Sections 302/120-B and 201 - Conviction under. Appeal - Murder of his wife and children. No eye witness - Strong motive. Strained relations and differences between the deceased and her husband - Evidence of approver duly corroborated and circumstantial evidence. Facts and circumstances established only consistent with the guilt of the accused - Evidence on record clearly establishing the conspiracy hatched by the appellant along with his two associates Disclosure statements - Recovery of incriminating articles - Convictions of appellants u/ss. 302, 302/120-B and 201 confirmed.

       Held. 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 promotes 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 added support to the finding of the Court that the accused was guilty for the offence charged with. But it has to be remembered that the absence of proof of motive docs not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances promoted him to a certain course of action leading to the commission of the crime. In the present case before us the prosecution has adduced evidence that the appellant Suresh Bahri had strong motive to eliminate his wife and two children from his way which evidence has been accepted by both the courts below.

       We shall, therefore, have a look to the said evidence to see whether the two courts are justified or not in taking the view that the appellant Suresh Bahri had a strong motive to hatch a conspiracy with the assistance of the other two appellants, namely, Raj Pal Sharma and Gurbachan Singh to commit the murder of his wife and the two children. (Para 21)

       Further Held: 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, P.W. 3 has received requisite corroboration on all material particulars and the totality of the surrounding circumstances, antecedents and subsequent conduct amongst other factors established against the three appellants prove beyond all reasonable doubt that at the instance of Suresh Bahri who master minded the plan, the other two appellants conjointly hatched a conspiracy to commit the murder of Urshia Bahri and that in prosecution of the common intention Suresh Bahri and Raj Pal Sharma did commit the murder of Urshia Bahri. Not only this but all the three appellants with a view to screen themselves from the commission of the offence made all out efforts for the disappear a rice of the dead body of Urshia. (Para 75)

       Consequently held, that the two children were withdrawn from the Delhi school on the pretext that they would be taken to Ranchi where they would stay with their mother and prosecute their further studies as is clear from the letters of Suresh written to his in-laws, but the two appellant Suresh and Raj Pal took them to Dhulli farm and after a short stay of one and a half day there both the appellants proceeded back to Delhi. No plausible reason is discernible as to what were the compelling reasons for the two appellants that after a long journey from Delhi to Dhulli farm, they thought of to return back to Delhi only after a very short stay at Dhulli and without even visiting his house at Ranchi at a short distance of about 40kms from Dhulli. But the reason is not far to seek, the purpose being to execute their plan to do away with the children in a lonely and secluded place so that their dastardly and unholy act may not come to light and be not detected or suspected by anyone. After their withdrawal from school from 5.12.1983 by the appellant Suresh he took them to his South Extension residence, Delhi and thereafter Suresh left Delhi along with the children on 8.12.1983 and reached Dhulli farm in the afternoon of 16.12.1983 via Basti, Varanasi and Daltonganj having their halts in the hotels at two places as already discussed earlier. The entries of the said hotels indicated that there were four persons - appellants Suresh and Raj Pal and the two children. The two children were accompanying these two appellants is fully established from the entries in Dahongani hotel which were made and signed by Richa and Saurab. 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. (Para 91)

       There is yet another circumstance which deserves notice. The two children were shown to be fast asleep in the rear seat of the car with their whole body covered except for a part of their legs which is something against the normal conduct of children of that age. The two appellants had resumed their return journey after a short stay at Dhulli at dawn on 18.12.1983 when the two children of the age they were, are not expected to sleep but would be excited to enjoy the trip in the company of their father. This leads to a legitimate conclusion that in fact they were, not alive but were dead whose throats were cutas noticed by Dr. Bhatnagar who conducted post mortem on the dead body of Saurabh. It is also surprising to note that Suresh Bahri and Raj Pal Sharma left Dhulli farm early in the morning of 18.12.1983 without any arrangement for the breakfast or tea even for the children while all there facilities were available at Dhulli farm but all this was not necessary because the children were no more alive. (Para 92)

       Finally Held: It is evidently clear from the series of circumstances established by the prosecution and discussed by us in the foregoing paras that the main brain behind the conspiracy who master minded the plan for the killings of the three innocent lives is the appellant Suresh Bahri, the unworthy husband of Urshia and a brute cruel father of the two unfortunate children; who approached the other appellants Gurbachan Singh and Raj Pal Sharma for help in the commission of the said ghastly crime by winning over their favour on account of his friendship and close association with them and as such it appears that they had no hesitation in extending their helping hands by constituting themselves as members of the criminal conspiracy hatches 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 appellant which have also been accepted by the High Court and in our opinion rightly so. The two Courts below have noticed the movements and activities of appellants Gurbachan Singh and Raj Pal Sharma at the instance of appellant Suresh right from the beginning and long before the murder of Urshia, their acts in arranging the preparation of a danda, sharpening of a dagger, preparation of batalies and wooden box, dumping of dead body of Urshia in sceptic tank and taking it out again and dumping it in a hillock at Khadgraha. The appellant Raj Pal arrives at Ranchi in the last week of September, 1983 and stayed in Ranchi house No. 936 of Suresh Bahri till arrival of Suresh and his deceased wife Urshia on 1.10.1983 and thereafter his movements at Ranchi itself till she was done to death on 11.10.1983 in one of the rooms of the house when appellant Raj Pal Sharma was also seen moving about from one room to another wearing only underwear and having a blood stained dagger in his hand. Raj Pal accompanied Suresh while he left Delhi in the ambassador car alongwith the two children for Dhulli farm where the party stayed on 16-17/12/83 and left Dhulli farm at dawn on 18.12.1983 with the dead bodies of the two children, throwing the dead bodies in Varuna river on their way back to Delhi. All these facts clearly borne out mainly from the statement of P.W. 1, P.W. 2, P.W. 4, P.W. 6, P.W. 11, P.W. 19, P.W. 29, P.W. 31 and P.W. 60 besides other evidence that there was not only an agreement to commit the alleged murders but the appellants in fact committed overt acts also for fulfilment of their object which is eloquently evident from the evidence discussed above. All these facts and circumstances without the least hesitation lead to the only irresistible conclusion that they were active members of the agreement who had hatched a conspiracy to eliminate all the three members of the family of Suresh and thus actually executed their plan. (Para 97)

       (ii) Sentence. Indian Penal Code, 1860 Sections 302, 302/120.B and 201- Convictions under - Conspiracy hatched by the appellant along with his two associates to kill his wife and two children - Strong motive to kill - Wifes murder committed in an extremely brutal, gruesome, diabolical, revolting and dastardly manner - Her body was truncated into two parts in a devilish style - Two innocent children were killed at farm house by inflicting severe injuries on neck and other parts of the body - Their dead bodies were thrown in the river - Case falls within the category of the rarest of rare cases - A ward of death sentence to appellant S, the main conspirator - Award of life sentences to his associates, appellants G and R.

       Held: The cold blooded cruel murder of the innocent children by none else but by their own real father shows the enormous proportion with which it was committed eliminating almost all members of the family. We have given our serious thoughts and consideration and posed the question to ourselves whether there could be still a worse case than this where a husband could hatch a conspiracy and kill his wife in a most callous and ghastly fashion as in the present case only on a triffling matter which could have sorted out in an amicable manner for which no effort appears to have been made by Suresh. Not only this but the appellant Suresh became thirsty of the blood of his own children for absolutely no fault of theirs. In the facts and circumstances discussed above, in our opinion, so far as Suresh Bahri is concerned, the rule of the rarest of rare cases has to be applied as the present case falls within the category of the rarest of rare cases and for the perpetration of the crime of the nature discussed above there could be no other proper and adequate sentence except the sentence of death as there are no mitigating circumstances whatsoever. Having regard to all the facts and circumstances of the present case as far as Suresh Bahri is concerned there is no cause for any interference in the view taken by the two Courts below in awarding the death sentence to him. We, therefore, affirm the conviction and sentence of death awarded to Suresh by the High Court. In the event of the execution of death sentence, the sentence awarded under Section 201 of the IPC shall remain only of academic interest. (para 105)

       Further Held: As far as the question of sentence to the appellants Gurbachan Singh and Raj Pal sharma is concerned, we may state that there is convincing and conclusive evidence for their involvement and active participation in the criminal conspiracy with Suresh to do away with the three members of his family. But from the evidence on record as discussed by us in the earlier part of this judgment it is clear that Gurbachan Singh had reached the house of Suresh at Ranchi in the fateful evening of 10th October, 1983 when Urshia was already done to death by the appellant Suresh Bahri and Raj Pal Sharma, when Raj Pal

       sharma was seen wearing an underwear holding a dagger in his hand and cleaning the blood in the room with cotton; From the evidence it is, therefore, clear that Gurbachan was not a party to the actual murder of Urshia although he was an active member of the party who hatched the conspiracy to kill her. Similarly it is also clear from the evidence that we have discussed in the earlier part of this judgment that though Gurbachan Singh rendered assistance in sending the cot and chairs to Dhulli farm and sharpening the dagger and batalies for the murder of two children but he in fact was not present on 17/18.12.1983 at Dhulli farm when the two children were done to death by the appellants Suresh and Raj Pal Sharma. In, these facts and circumstances, in our opinion, the appellant Gurbachan Singh does not deserve the extreme penalty of death but the adequate sentence for the part he played would be life sentence. We, therefore, commute his sentence of death into that of life sentence and modify the judgment of the two Courts below accordingly to that extent. This brings us to the question of sentence to be awarded to the appellant Raj Pal Sharma. There is no doubt that there is ample evidence for his active participation in the murder of Urshia as well as in the murder of two children but the prosecution evidence is silent about the actual part that he played in the two murders and the manner in which he acted in the said killings. It is difficult to take a definite view that the part he played in said killings was cruel and callous or it was the appellant Suresh alone who took the leading part and did the whole thing by himself while the appellant Raj Pal Sharma assisted him in one or the other manner. In such a situation, in our opinion, it would not be proper to inflict the, extreme penalty of death to Raj Pal Sharma also but in the facts and circumstances of the case the sentence of life imprisonment will be just and proper sentence. (paras 106 & 107)

       (iii) Criminal Procedure Code, 1973 - Section 306, Indian Evidence Act, 1872. Tender of pardon to accomplice. Examination of accomplice or an approver after accepting the tender of pardon, as a witness in the court of the Magistrate taking cognizance of the offence. Mandatory requirement. Non-compliance vitiates the trial. A duty on the court to keep the approver under detention till the termination of the trial- Release of an approver on bail may be illegal which can be set aside by a superior court. Such a release would not have any effect on the validity of the pardon once validly granted to an approver.

       Held: A bare reading of clause (a) of subsection (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case commit it for trial to anyone of the Courts mentioned in clauses (i) or (ii) of clause (a) of sub-section (5), as the case may be Section 209 of the Code deals with the commitment of cases to the Court of Session when offence is tried exclusively by that Court The examination of accomplice or an approver after accepting the tender of pardon, as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in sub-section (1) of Section 306, the tender of the pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the committing Magistrate would not only amount to breach of the mandatory provisions contained in clause (a) of Sub-section (4) of Section 306 but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages. Thus breach of the provisions contained in clause (a) of Sub-section (4) of Section 306 is of a mandatory nature and not merely directory and, therefore, non-compliance of the same would render committal order illegal. The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused in as-much-as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing Court itself at the very threshold so that he may take steps to show that the approvers evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the 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 approvers evidence as un-reliable. Further clause (b) of subsection (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. (Para 30)

       (iv) Indian Penal Code, 1860 - Sections 120-A and 120-B - Criminal conspiracy. Where the agreement is for accomplishment of an act which by itself constitutes an offence - No overt act is necessary to be proved by the prosecution.

       Held: A cursory look to the provisions contained in Section 120-A reveal that a criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such as agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120-B read with the proviso to sub-section (2) of Section 120-A of the I.P.C. then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by anyone 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 frustrate and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn. (Para 96)

       (v) Evidence. Identification of a stranger accused. Identification of accused by the witness soon after his arrest is of great importance - When the accused had been seen for quite a number of times. T.I. parade not necessary.

       Held: There can be no dispute with regard to the principles as to the evidence relating to identification of a stranger accused involved in any crime. It is well settled that substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the Investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards were effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned also who was a stranger to the accused because in that event the chances of his memory fading away are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of T.I. parade. In the present case as stated earlier the appellant Raj Pal Sharma approached Murari Lal, P.W.1 with a letter of Suresh in pursuance of which Murarilal had directed the bungalow gardener, Moolchand P.W.24 to open the house and permit Raj Pal Sharma to stay there. Raj Pal Sharma came and stayed in the Ranchi house in the last week of September and continued to live there till 1.10.1983 when Suresh alongwith Urshia arrived and stayed there. Thus Murari Lal, P.W.1 and Moolchand Mali, P.W.24 had an opportunity to see Raj Pal for several days and it was not for the first time that they saw him in the Court when they identified to be the one who took active part in the crime. Similarly Shambhu Nath Tiwari, P.W.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, P.W.1 that the dues would be cleared by Suresh Bahri as Raj Pal was a man of Suresh. Moolchand Mali, P.W.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 evid~nce should not be accepted. In the case of Kannan (supra) relied on by the learned counsel for the appellants the accused of that case was seen by the identifying witness only once in the Court and, therefore, in the absence of T.I. parade the evidence was not accepted which is not the case before us. Similar was the position in Mohanlal Ganga Singh Gehani (supra) wherein the witness who identified the accused for the first time in Court did not know him before and therefore in the absence of T.I. parade the evidence of that witness was held valueless and unreliable. In the present case and in the facts and circumstances discussed above T.I. parade was not necessary at all as the witnesses had seen the appellant Raj Pal Sharma continuously for several days and they had the opportunity of knowing and recognising him since before they made their statement in the Court. (Para 78)