Very Important Point
Where in a case like this (for offence of triple murders, robbery and rape etc.) it is not possible to say as to whose case falls within the rarest of the rare case, it would serve the ends of justice if the capital punishment is commuted into life imprisonment.

Headnote:robbery with common intention - Confirmed by High Court - Appeal to Supreme Court - Evidence Act, 1872 - Section 9 - Identification of appellants by P.W. 29, P.W. 34, P.W. 42 and P.W. 45 for the first time in court without participating in Test Identification Parade - Of illegal? - (No).
       Held : The identification of appellants by P.W. 29, P.W. 34, P.W. 42 and P.W. 45 in court for the first time without prior identification by them in the test identification parade has been the subject matter of comment. Insofar as the identification of appellants by P.W. 42 and P.W. 45 are concerned, the trial Court as well as the High Court had not accepted the same but the identification of appellants by P.W. 29 and P.W. 34 had been accepted by both the trial Court as well as by the High Court and in our view rightly. We have already laid down above that the identification of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material. From the above mentioned aspect, the evidence of P.W. 42 and P.W. 45 has been rightly rejected by the trial Court and the High Court as P.W. 42 is a rickshaw driver who had no opportunity to see closely the appellants whom he took to Rooman bungalow in the night. So also P.W. 45’s identification of A-1 in court without his participation in the TIP has also no probative value inasmuch as he went to the shop of the witness as one of the customers and there was no specific reason why he should watch A-1 closely. But the same is not the position with P.W. 29 and P.W. 34. They were talking to the deceased Rohan Ohal at the time when the appellants came to Rooman bungalow. Indeed A-1 wished the deceased Rohan who introduced A-1 as Nitin Anil Swargey. Thereafter, A-1 introduced A-2 and A-3 to Rohan Ohol and P.W. 29 and P.W. 34. They talked together for about 7-8 minutes and on Rohan Ohol’s saying them to sit inside the house, they left their soiled shoes in the verandah and entered the house. It can safely be presumed that had they not given the name and description of the appellants at the earliest when their statement was recorded by the police on 24th July, 1992, the defence in their searching and lengthy cross-examination would have brought on record omissions and contradictions with reference to their earlier statement given to the police. As such evidence of identification of the appellants a their trial by the said witnesses even without the corroboration of the identification parade, had been rightly relied upon by the trial Court as well as by the High Court. We, therefore, find no illegality in the judgment of the courts below in accepting their evidence of identification. (Para 24)
       (ii) Evidence Act, 1872 - Sections 27 r/w 9 - Recoveries of articles of common nature - Identification by brother and daughter of deceased - Whether can be attacked on ground of articles being of common nature? (No). (Para 25)
       (iii) Criminal Procedure Code, 1973 - Sections 100(4) and 166(3) and (4) - Search and seizure - Alleged non-compliance of statutory provisions by not calling local panch witnesses at the time of conducting recovery panchnama and not taking the help of local police - Whether vitiated the trial? (No).
       Held : If there is intrinsic merit in the evidence of the witness of search the same cannot be rejected solely on the ground that witness is not from the locality of search or that he was brought by the police with it. We are not persuaded to accept the contention that the evidence of Nandu Ambadas Jadhav (P.W. 6) cannot be accepted for the reasons that he was not a witness of the locality and that he was brought from Pune by the investigating officer to witness the search. He was one of the drivers of the cars in which the investigating team came to Bombay from Pune. For the sake of convenience, he was taken as a witness for search. We do not find any material in the cross-examination to discredit his testimony. The only ground of attack on the evidence of P.W. 6 that he was not from the locality as contemplated under sub-section (4) of Section 100 Cr.P.C. fails because in our view a witness of search other than the one from the locality even if he has been brought by the investigating agencies along with them cannot be disbelieved only on that ground and we do not find anything in his evidence to discredit his testimony. (Para 29)
       Section 166 is an enabling provision, which enables an officer in charge of a police station to require another to issue search warrant. Sub-section (3) of Section 166 provides that whenever there is a reason to believe that by requiring an officer in charge of another police station to cause a search to be made under sub-section (1) of that Section might occasion delay and result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for the investigating officer or team making investigation under Chapter XII to search or cause to search any place in the limits of another police station in accordance with the provisions of Section 165 Cr.P.C. as if such place were within the limits of his own police station. Sub-section (4) requires that after conducting the search as contemplated under sub-section (3), the officer shall forthwith sent a notice to the officer in charge of the police station within the limits of such place and a copy of the list, if any, prepared under Section 100 to that police station and to the nearest magistrate empowered to take cognizance of the offence along with the copies of the record referred to in sub-sections (1) and (3) of Section 165. When the investigating officer (P.W. 83) was questioned on this aspect, he replied that the wrote two letters to the police station in which the articles were seized. However, what is pointed out before us is that the copies of the letters sent to the other police station in whose jurisdiction the search and seizures were made, had not been produced. We find no substance in this submission. The witness stated that he has sent the letter to the concerned police station, therefore, the presumption under Illustration (e) of Section 114 of the Evidence Act would arise and the official acts would be deemed to have been performed regularly. There is thus no non-compliance of the aforementioned provisions of the Code of Criminal Procedure. (Para 30)
       Apropos the recovery of articles belonging to the Ohols family from the possession of the appellants soon after the robbery and the murder of the deceased (Mr. Mohan Ohol, Mrs. Ruhi Ohol and Mr. Rohan Ohol) which possession has remained unexplained by the appellants, so the presumption under Illustration (a) of Section 114 of the Evidence Act will be attracted. It needs no discussion to conclude that the murder and the robbery of the articles were found to be part of the same transaction. The irresistible conclusion would, therefore, be that the appellants and no one else had committed three murders and the robbery. (Para 31)
       (iv) Criminal Trial - Question of time of death - Rigor mortis age of injuries “as recent” - Whether inflicted at time of death? (Yes) - Evidence detected in connection with different crimes whether could have been used against third appellant? (Yes). (Paras 35 & 36)
       Held : In this case, the trial Court as well as the High Court have enumerated all those circumstances which have been established and which form a complete chain so as to bring home the guilt of the accused without giving room to any other hypothesis except the guilt of the accused and those circumstances are inconsistent with the innocence of the deceased. It may not be necessary to repeat them here as the thrust of the arguments is to break the chain of circumstances, if we may say so, with reference to the identification of the appellants by P.W. 29 and P.W. 34 and of the articles by P.W. 3 and P.W. 40 and by challenging the recovery of the articles on the ground of violation of Section 100(4) and Section 166(3) and (4) Cr.P.C. We have negatived the contentions on those aspects. We may observe here that this is not a case where a single fact forms a link in the chain of circumstances. It is a case where there are plethora of circumstances which are plenty and overlapping and are so twined to form a stout cord which rope in the appellants in such a way that the escape from the conclusion of their guilt becomes difficult, nay, impossible. However, we may observe that we find no material to confirm the sentence for offences under Sections 467 and 471 IPC, we, therefore, confirm the conviction of the accused recorded by the trial Court and confirmed by the High Court in respect of all other charges. (Para 37)
       (v) Indian Penal Code, 1860 - Section 376 - Rape - Conviction of appellants for murder and robbery upheld - Whether the change u/s. 376 against them has also been made out? - Post mortem certificate and evidence of Doctor - Multiply injuries found on private parts of female deceased - Opinion about sexual assault - Circumstantial evidence - Whether they prove change of rape by appellants? (Yes). (Paras 39 & 40)
       (vi) Indian Penal Code, 1860 - Sections 302/34, 449/34, 347/34, 394/34, 376(2)(g), 467/471 - Offences under - Murders, robbery and rape - Award of death penalty by trial Court, affirmed by High Court - Appeal to Supreme Court - Whether facts and circumstance of case justify award of death sentence to the appellants? (No). [Cr.P.C., 1973 - Section 354(3)].
       Held : Whether the case is one of the rarest of the rare case is a question which has to be determined on the facts of each case. Suffice it to mention that the choice of the death sentence has to be made only in the rarest of the rare case and that where culpability of the accused has assumed depravity or whether the accused is found to be an ardent criminal and menace to the society and; where the crime is committed in an organised manner and is gruesome, cold blooded, heinous and atrocious; where innocent and unarmed persons are attacked and murdered without any provocation, the case would present special reason for purposes of sub-section (3) of Section 354 of the Criminal Procedure Code. (Para 46)
       Now reverting to the facts of this case, the mitigating circumstances in favour of the appellants are that A-1 is a qualified civil engineer and a married person having a son of four years old, his parents are serving at Spiritual Life Centre, Narsapur for the last thirty six years: A-2 is ‘Thaneshri’ and ‘Vasaishri’ titles conferred on him for his body building; his marriage is a love marriage performed against the will of his parents as well as the volition of the parents of the wife and there is nobody of look after his wife and their two daughters and two sons of whom one is 1-1/2 years old; A-3 pleaded that he is having a sick father and that he is only 27 years’ old and an unmarried person. They are having no adverse antecedents in the sense of being habitual criminals. The aggravating circumstances are that A-1 is no other than the nephew (daughter’s son) of the deceased Mr. Mohan Ohol. Because of the relationship, he gained access inside the house for him and for his friends; they enjoyed the hospitability of Ohols’ family as it was found that there were five used plates in the sink which indicate that five had food; may be, all the three appellants and the couple or two of them. The victims were unarmed; the heinous crime was committed for gains, namely to rob the valuables of the Ohols family; to give effect to their nefarious plans the unholy alliance of the appellants not merely robbed and family of the valuables but killed all the three members of the family then in the house and above all committed sexual assault on Mrs. Ruhi Ohol. It cannot but be a destardly act for A-1 to commit rape of Mrs. Ohol, who is none other than the wife of his maternal uncle and perhaps as old as his mother. (Para 47)
       Considering the cumulative effect of all the factors, it cannot be said that the offences were committed under the influence of extreme mental or emotional disturbance for, the whole thing was done in a pre-planned way; having regard to the nature of offences and circumstances in which they were committed, it is not possible for the court to predict that the appellant would not commit criminal act of violence or would not be a threat to the society. A-1 is 35 years’ old, A-2 is 35 years’ old and A-3 is 25 years’ old. The appellants cannot be said to be too young or too old. The possibility of reform and rehabilitation, however, cannot be ruled out. From the facts and circumstances, it is not possible to predict as to who among the three played which part. It may be that role of one has been more culpable in degree than that of others and vice versa. Where in a case like this it is not possible to say as to whose case falls within the ‘rarest of the rare’ case, it would serve the ends of justice if the capital punishment is commuted into life imprisonment. Accordingly, we modify sentence awarded by courts below under Section 302 read with Section 34 from death to life imprisonment. The sentence for the offences for which the appellants are convicted, except under Section 376(2) (g) IPC, shall run concurrently; they shall serve sentence under Section 376(2)(g) IPC consecutively, after serving sentence for other offences. (Para 48)
       Held consequently : The appeals are allowed in part, as indicated above. (Para 49)
       Result : Appeals allowed in part accordingly.(i) Indian Penal Code, 1860 - Sections 302/34 etc. - Appellants (A1, A2, A3) found guilty of various offences, including, murder and

Judgment

Quadri, J. - The appellants [Nitin Anil Swargey (A-1), Ronny @ Ronald James Alwaris (A-2) and Santu @ Santosh Balkrishna Desai (A-3)], in these three appeals, have been found guilty of offences under Section 302 read with Section 34 IPC and are condemned to death; they are also awarded different punishments under various provisions of the Indian Penal Code on their trial by the learned Additional Sessions Judge, Pune in Sessions Case No. 574 of 1992 vide Judgment dated April 28/29, 1995. In regard to sentence of death awarded to the three appellants, the learned Additional Sessions Judge referred the case, Confirmation Case No. 1 of 1995, to the High Court of Bombay, which was heard along with three appeals filed by the above said three appellants. They were disposed of by the High Court by a common judgment dated March 27, 1996, confirming the conviction of and sentences awarded to the appellants. Against the said judgment, by special leave, these appeals are filed.

2. The case set up by the prosecution is as follows:

A new colony, Varsha Park Society, is situate at Baner Road near Pune. Among newly constructed houses are two bungalows, ‘Rooman Bungalow’ of Mr. Mohan Ohal, the President of, and ‘Rohini bungalow’ of Mr. Vyankat Krishnan, the Secretary of the Society, which are separated by a kutcha road. In Rooman bungalow a well placed family of Ohols was residing. The family comprised of four members, namely, Mr. Mohan Ohol, a Mechanical Engineer, who was working as Executive Officer in Kirloskar Pneumatic Company at Hadapsar, Pune; Mrs. Ruhi Ohol, Ph.D., a research scholar, who having worked as Head of the Department of Master Degree in Business Management (M.B.A.), had started working with the Tata Management Institute as visiting Professor and was organising seminars for M.B.A. students; a seventeen years old son Mr. Rohan Ohol, a student studying in the last year of the Computer Engineering course and a sixteen years old daughter, Ms. Reina Mohan Ohol, who was doing course of diploma of Hotel Management and Catering Technology. To undergo practical training programme of two months, on July 8, 1992, she left Pune for Bombay where she was staying in MLA Hostel. Out of the relations of Mr. Mohan Ohol, his brother, Mr. Vijay Ohol who was working as Assistant Commissioner Revenue, his sisters, Mrs. Mandakini Gaekwad and Mrs. Rajni, his nephews Viren S/o Mr. Vijay Ohol, Nitin Anil Swargey (A-1) S/o Mrs. Rajni and niece Rhoda D/o Mrs. Mandakini and Mrs. Viola Muzaffar (mother of Mrs. Ruhi Ohol) who was a cancer patient and was undergoing treatment in Ruby Hospital, need be mentioned.

3. Nitin Anil Swargey (A-1) and his two friends, Ronny and Santu, A-2 and A-3 respectively, are residents of Bombay; A-1 and A-3 reside at Borivili, Bombay, whereas A-2 resides at Vasai, Distt. Thane, Bombay. They went to Pune on July 18, 1992. There they contacted Tulsi Bhagwan Shetty (P.W. 46), a partner of Natraj Hotel for a room. For obtaining the room, A-1 signed, what is known as “A Form” (Article 98). They were given Room No. 16 in that hotel. It appears A-1 left the hotel but A-2 and A-3 stayed there till the morning of 20th July. Ramesh Madhavakar (P.W. 47), a room boy, took them to that room and looked after them during their stay. After A-1 joined them on 20th July, they left. They paid the charges of the hotel under receipt (Article 97). They asked P.W. 46 about tourist vehicle to go to Panchgani. He suggested them to approach Deccan Luxury Service, near Deccan Gymkhana, Pune. They went there and contacted Dadasaheb Bhagaji Dhumal (P.W. 69), Manager of the said Deccan Luxury Service. As no vehicle was available with Deccan Luxury Service, he arranged Maruti Van No. MH-15A-263 of Sri Babar, a sub-contractor, whose driver was paid Rupees two hundred. The name of the hirer was noted as “Sunil Desai of 1312, Shivaji Nagar, Pune” on that chit (Article 89) (Exhibit 258) for booking the vehicle, which was signed by A-1. They th

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Very Important PointWhere in a case like this (for offence of triple murders, robbery and rape etc.) it is not possible to say as to whose case falls within the rarest of the rare case, it would serve the ends of justice if the capital punishment is commuted into life imprisonment.

Cases Referred (14)

Very Important Point
Where in a case like this (for offence of triple murders, robbery and rape etc.) it is not possible to say as to whose case falls within the rarest of the rare case, it would serve the ends of justice if the capital punishment is commuted into life imprisonment.