1995 Supreme(Del) 51

High Court Of Delhi
STATE - Appellant
Versus
ASHOK KUMAR - Respondent
MURDER REF. 2 of 1994
Decided On : 01/10/1995

Headnote:(i) Indian Penal Code, 1860 - Sections 302 and 302/34 - Conviction under - Appeals Circumstantial Evidence: Murder of husband of accused P - Homicidal Death - Deceased was last seen alive in company of appellants in a hotel- Dead body of deceased recovered from a room in that hotel - Appellants disappeared from hotel soon after death of deceased - Their subsequent conduct and movements were extremely strange and unnatural - Appellant A was promiscuous with appellant B - Recovery of blood stained pant from possession of A Pant stained with human blood of 'B' group which corresponded to blood group of deceased - Pre-plan of liquidating deceased - Motive to commit murder - Accused offering no explanation about incriminating circumstances proved against him - False defence - Totality of circumstances prove that appellants were perpetrators of crime of murder - Convictions recorded are legally sustainable.

       (Paras 19, 20, 22, 23, 24, 26 to 30, 33, 39)

       (ii) Sentence - Indian Penal Code, 1860 Section 302 - Conviction under - Death Sentence - Treacherous, cold blooded, premeditated and concerted murder - Rarest of rare case - Death sentence awarded confirmed.

       Held, that this was a treacherous murder of an innocent person by the appellants, the circumstances of which were so heartless and heinous. As demonstrated earlier, the appellant Ashok Kumar was promiscuous with the appellant Mst. Prem Kanwar and the appellants had strong motive to liquidate the deceased Mahabir Singh. Before a man can deliberately debauch the wife of the friend who confides in her he must have become utterly abandoned to every principle of virtue and be lost to every sentiment of manly honour. In the instant case, the circumstances indicated above do suggest that the appellant Ashok Kumar had not only invaded the marital rights of the deceased Mahabir Singh but he had made the appellant Mst. Prem Kanwar the prostitute of a base libertine's lust. The circumstances further go to show that the deceased Mahabir Singh had been lured to death by the appellant Ashok Kumar. Keeping in view the time and place chosen by the appellant Ashok Kumar to liquidate the deceased, it can safely be inferred that this was a murder by stealth. It was to be a secret assassination. It was not their purpose to have an open combat. On the contrary, the appellants were to approach their victim unawares, and silently give the fatal blow. Ultimately: the fatal blow was given, and the deceased passed without struggle or a motion, from the repose of the sleep to the repose of death. This bloody drama exhibited no suddenly excited, ungovernable rage. The actors in it were not surprised by any lion like temptation springing upon their virtue and overpowering it before resistance could bring. Nor did they do the deed to glut savage vengeance, or satiated long settled and deadly hate. It was a treacherous, cold blooded, premeditated and concerted murder.

       (Paras 45 & 46)

       (iii) Sentence - Indian Penal Code, 1860 Section 302/34 - Conviction under - Sentence of life imprisonment with fine of Rs. one lakh - No pecuniary gain by committing this offence - No justification for imposing a sentence of fine of Rs. one lakh over and above sentence of life imprisonment: Sentence of fine set aside Sentence of life imprisonment confirmed.

       Held: No doubt, the courts have powers under Section 357 (1) (c) Cr. P.C. to award compensation to compensate the heirs and dependents of the deceased for the loss resulting from the death. In the instant case, the learned Judge has imposed sentence of fine to defray the expenses incurred in the prosecution.

       In the instant case, there is nothing on record to show that the appellant Mst. Prem Kanwar has made or is likely to have made any pecuniary gain by committing the alleged offence. Learned tria! judge did not even attempt to consider whether the appellant Mst. Prem Kanwar has means to pay such a heavy fine imposed on her. In the circumstances, we do not think there was any justification to have imposed a sentence of fine of Rs. one lakh over and above the sentence of life imprisonment. Hence we set aside that part of the sentence and affirm only the sentence of life imprisonment awarded to the appellant Mr. Prem Kanwar. If the fine amount has been paid it will be refunded to the appellant Mr. Prem Kanwar.

       (paras 4? & 50)

       (iv) Evidence - Murder Case - Circumstantial Evidence - Principle relating to appreciation and evaluation of; - Sharad Birdhichand Sarda's Case, A.I.R. 1984 S.C. 1622: Relied On.

       (Para 12)

       (v) Evidence - Murder Case - Fact of absconding from scene of occurrence. Inference of guilty conscience can be drawn when.

       (Para 23)

       (vi) Evidence - Murder Case - Examination of accused u/s. 313 Cr. P.C. . Accused offered no explanation about incriminating circumstances proved against him - A circumstantial fact against him when;

       Held, that if the inference of guilt from the proved facts is as much a natural or probable hypothesis as any other, the onus of offering an, explanation for the incriminating facts lies upon the accused. If he does not offer any explanation, or falsely denies the very existence of the incriminating facts it is itself a circumstantial fact against him. In the present case: the appellant Ashok Kumar has not offered any explanation consistent with innocence regarding the incriminating facts proved against him and that by itself is a circumstantial fact against him. (paras 33)

       (vii) Evidence - Falsity of plea - Amounts to a pointer to culpability when.

       Held: On reading Mst. Prem Kanwar's statement as a whole, it appears that she was really trying to throw the main blame on the appellant Ashok Kumar, though she admitted that she had seen her deceased husband lying injured in room No. 30. She more or less tried to make out that she was an unwilling spectator of the crime committed by the appellant Ashok Kumar. It has come in the evidence of Ram Kumar waiter (P.W. 23) that on 30.12.1987 at about 9 a.m. he had served the tea to the appellant. It is also evident from the evidence of the hotel manager Sunil Kumar (P.W. 12) that on 30.12.1987 at about 11 a.m. he had seen the appellants along with two Children leaving the hotel. Nothing has been elicited in cross examination of the said witnesses to show that the appellant Mst. Prem Kanwar had exhibited any uneasy symptoms before leaving the hotel Eagle on 30.12.1987. On the contrary, circumstances proved in this case clearly indicate that after the alleged occurrence the appellant Mst. Prem Kanwar was found moving with the appellant Ashok Kumar who was not her husband.

       It is worth mentioning here that the appellant Mst. Prem Kanwar has stated in her examination under Section 313 Cr. P.C. that on the next morning she had seen her husband lying injured in the room. She wants us to believe that when she question the appellant Ashok Kumar as to why he had inflicted injury to her husband, he threatened her with dire consequences. Had it been so, one would have expected her to raise an alarm and come out of the room shouting for help and at least show some concern. But she did nothing. On the contrary, as deposed by the waiter Ram Kumar (P.W. 23) she took tea with the appellant Ashok Kumar at about 9 a.m. and, thereafter, she left the hotel with the appellant Ashok Kumar at about 11 a.m. Surely, this was not the normal conduct of the wife who did not even care to complain to anyone about the murder of her husband or show any emotion. It is evident from the evidence of Shri Prasad Yadav (P.W. 29) that on 30.12.1987 at about 7 p.m. she along with the appellant Ashok Kumar checked in Hotel Sital, Jaipur and stayed there till 1.1.1988. Thus the entire conduct of the appellant Mst. Prem Kanwar from the time the deceased was killed upto the time she was arrested by the Ahmedabad police is inconsistent with the fact that she was under the influence of some intoxicating drug or threat to her life. Thus, the subsequent conduct of the appellant Mst. Prem Kanwar is a definite pointer to her culpability, totally inconsistent with her innocence. Viewing the aforesaid circumstances, we are of the opinion that the plea taken by the appellant Mst. Prem Kanwar that she did not participate in commission of the alleged occurrence is too big a pill to be swallowed. This strange conduct of the appellant Mst. Prem Kanwar is also a factor which can be used for cementing the prosecution case. (Paras 36 & 37)

       Result: Ordered accordingly.