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2010 Supreme(UK) 147
2010 (2) N.C.C. 102
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice B.C. Kandpal and Hon’ble Mr. Justice Nirmal Yadav
Criminal Jail Appeal No. 248 of 2004
With Criminal Appeal No. 70 of 2005, Government Appeal No. 117 of 2005 and
Criminal Jail Appeal No. 316 of 2004
RAM MANOHAR – Appellant
Versus
STATE – Respondent
Decided on : 30.03.2010
In CRJA No. 248 of 2004 and 316 of 2004
For the Appellant : Mr. Ajay Singh Bisht, Amicus Curiae
In CRLA No. 70 of 2005
For the Appellant :Mr. Sandeep Tandon, Advocate
For the Respondent: Mr. Nandan Arya, A.G.A.
Headnote:Indian Penal Code, 1860, Sec. 396 — Death Penalty — Rarest of the rare cases — Ambit of — Instant case rests on circumstantial evidence — The important circumstances which lead to an inference pertaining to the guilt of the accused/appellants are the evidence of last seen; recovery of looted articles from the possession of accused/appellants; and finger print evidence — However, no evidence available on record that this case, shocked the collective conscience of the community — Also there is nothing uncommon which may suggest that sentence of life imprisonment awarded by the trial court appears to be inadequate — And this sentence calls for death sentence — Sentence awarded by the trial court appears to be justified and this case does not fall within the ambit of 'rarest or rare case'. (Paras 23 to 30)
Hkkjrh; n.M lafgrk] 1860] /kkjk 396 & t?kU; vijk/k ds ekeys esa izk.kn.M dk nk;jk & izLrqr dsl & ifjfLFkfrtU; lk{; ij vk/kkfjr gS & vfHk;qDr@vihykFkhZ ds nks"k ls lEcfU/kr egRoiw.kZ ifjfLFkfr;k¡ ftuls fu"d"kZ fudkyk tk ldrk gS] vafre le; esa ns[kk tkuk] vfHk;qDr@vihykFkhZ ds dCts ls ywVs x;s lkeku dh cjkenxh vkSj maxfy;ksa ds fu'kku dk lk{; gS rFkkfi ,slk dksbZ lk{; i=koyh esa miyC/k ugha Fkk fd bl dsl ds }kjk lekt dh lkewfgd var%dj.k izo`fRr dks /kDdk yxk Fkk & ,slk Hkh dqN vlk/kkj.k ugha gS ftlls voj U;k;ky; }kjk fn;k x;k vkthou dkjkokl dk n.M vuqi;qDr yxs vkSj ;g n.M] izk.kn.M esa ifjofrZr fd;k tk, & voj U;k;ky; }kjk nh xbZ ltk U;k;ksfpr yxrh gS vkSj ;g dsl t?kU; vijk/kksa dh ifjfèk esa ugha vkrk gSA ¼izLrj 23 ls 30½
[Per : Hon’ble B.C. Kandpal, J.]
Since all the above four appeals arise out of the same judgment and order and similar question of fact of law is involved, they are being decided by this common judgment.
2. All the appeals arise out against the common judgment and order 13.5.2004 passed by Additional Sessions Judge/F.T.C. VI Dehradun, in Sessions Trial No. 33 of 2003, State vs. Ramesh & others, whereby the learned Sessions Judge convicted accused/appellants Ramesh, Ram Manohar and Jai Chandra under Sections 396, 412, 201 I.P.C. The Sessions Judge while convicting the said accused/appellants under Section 396 I.P.C. sentenced them to undergo life imprisonment and fine of Rs. 10,000/- each and in default of payment of fine they were directed to further undergo rigorous imprisonment for one year each. The Sessions Judge while convicting the said accused/appellants under Section 412 I.P.C. sentenced them to undergo rigorous imprisonment for ten years and fine of Rs. 10,000/- each and in default of payment of fine they were directed to further undergo rigorous imprisonment for one year each. The Sessions Judge while convicting the said accused/appellants under Section 201 I.P.C. sentenced them to undergo rigorous imprisonment for three yeas and fine of Rs. 10,000/- each and in default of payment of fine they were directed to further undergo rigorous imprisonment for one year each. All the sentences were directed to be run concurrently.
3. Accused/appellants Ram Manohar and Jai Chandra have preferred Criminal Jail Appeal No. 248/2004 and Criminal Jail Appeal No. 316/2004 respectively through jail, accused/appellant Ramesh has preferred Criminal Appeal No. 70/2005, while State has preferred Government Appeal No. 117/2005 for enhancement of sentence.
4. Prosecution story in brief is that on 25.11.2002 complainant Saroj Bala lodged a report at P.S. Kotwali to this effect that on 25.11.2002 at 1.00 p.m. when she reached to the house of her brother Mukesh Kumar resident of 26, Arhat Bazar, she came to know that shop of his brother was closed since previous Friday. The complainant asked Surendra about the whereabouts of Mukesh, he told that he had seen her brother along with his family going in a marriage ceremony on Sunday at 8.00 p.m. The complainant also enquired from other persons and accompanied her brothers Raj Kumar and Anil Kumar from her aunt’s house. Then she took the key of shop from porter Ashapal and after opening the lock they entered into the shop where bad smell was coming out. On search, dead bodies of her brother Mukesh Kumar, brother’s wife Nilam and their two children Siddarth and Yash were found lying in decomposed condition in the backside room and household items were found scattering. On enquiry it came to know that two porters whose names were Phoolchand s/o Dujjsan and Viddan s/o unknown residents of Seervai P.S. Hussainganj, District Fatehpur, were also missing for the same day and it is sure that they along with others committed robbery in the house and committed murder of her brother, bhabhi and children. The F.I.R. of the said incident was lodged on 25.11.2002 at 3.20 p.m. under Section 302/394 at politce station, which was registered as Case Crime No. 752/2002. The autopsy on the dead body of the deceased persons was conducted on 26.11.2002 at District Hospital, Dehradun. During investigation accused Ramesh, Ram Manohar and Jai Chandra were arrested and looted cash and jewellery were recovered from their possession. From the possession of accused Ramesh, six silver coins, out of them five coins were having impression of Laxmi Ganesh at one side and one coin was having impression of Adverd VII at one side; two golden rings, one of them was having 2.6 gms. Weight and costing to Rs. 1200/-, while another ring was having 3.0 gms. Weight and costing to Rs. 1500/-, were recovered and recovery memo was prepared vide Ext. Ka.29. Further, from the possession of the accused Ram Manohar, four golden bangles we
