IMPORTANT POINT
While Apex Court in an appeal under Art. 136 of Constitution will not reopen concurrent findings relating to the appreciation of evidence, but that does not preclude it from re-appraisal of evidence in the interest of justice in the event of there being some winks of doubt, as in this case, as to the reliability of evidence of the prosecution.

Headnote:(i) State s appeal against High Court s order converting death penalty into life imprisonment-Gruesome murder of four-Accused menace to family -Left members may also be murdered if death penalty not imposed-Guilt of accused not proved by available independent evidence-State s anxiety not leading to any credence-Result-All four appeals of State are dismissed.
       Held : The issue thus for our consideration is whether the evidence available on record only leads to one conclusion - that is the guilt of the accused. Incidentally, the prosecution involved both the father and the son -whereas the father has to wait outside, the son was completing his part of duty in a most heinous killing of four persons. The Sessions Court, however in the absence of iota of evidence of even his presence outside the door acquitted the father though convicted the son under Section 302 and the High Court converts the sentence of death penalty to that of life imprisonment but the State has also appealed against the High court s finding and as noticed above Mr. Sushil Kumar appearing for the State in no uncertain terms submitted that State s appeal is by reason of the fact that a social evil ought not to be allowed to be in the midst of the society since the accused Ravi is not only an evil but a social menace. State s anxiety to put a man in the gallows is however not very plainly understandable neither it is understandable as to the State s attitude being eye for an eye and tooth for a tooth - it is true that it is the responsibility to maintain law and order but the State on the other hand also maintains reformatory schools and if the State is failed to bring the accused to books in a court of law can the State s failure be countenanced by the apex Court? Why was not Sukhdayal examined? Why there were nt any independent witness? Mr. Sushil Kumar had no answer. Obviously erudite as he is, only contended that the records otherwise would be sufficient to bring home the charge and the penalty imposed by the Sessions Court. We are however not in a position to lend any credence to the submissions of Mr. Sushil Kumar that the death penalty ought not to have been transformed to that of life imprisonment as is sought to be done by the High Court. On the wake of the aforesaid, the four Appeals preferred by the State and Deepak Kumar (Crl. A. Nos. 927-928 and 929-930 of 2000) stand dismissed. (Para 33)
       (ii) Constitution of India-Art. 136 -Appeal against concurrent conviction by two courts-I.P.C. 1860-Sections 302, 452 and 324-Conviction of Ravi Virmani by Sessions Court for causing gruesome murders of four (father, mother, wife and brother) and causing injuries to two (Deepak & Sanjay)-Affirmed by High Court-Appeal against to Supreme Court-Supreme Court finding independent witness available not examined-Court over-awed by killing of four persons-Medical evidence differently looked into-Discovery of weapon and way of killing doubtful-Demand of ransom introduced-Whether concurrent conviction be set aside? (Yes)-Appeals of Ravi Virmani allowed (See paras 28 to 33).
       Held : While it is true that in the normal course of events in an appeal under Article 136 of the Constitution, the Apex Court would not reopen the concurrent findings relating to the appreciation of evidence, but this does not preclude this Court from reappraisal of the evidence in the interest of justice in the event of there being some winks of doubt as to the reliability of the evidence of the prosecution. It is thus not a rule steadfast but depend on the concept of justice and the question of availability of acceptable evidence on record. The observations of this Court in Malempati Pattabhi Narendra vs. Ghattamaneni Maruthi Prasad and others [(2000) 5 SCC 226] lend concurrence to the view expressed above. No doubt, both the Courts did accept the evidence but that acceptance was without raising even an eyebrow as to why no independent witness has been examined in respect of the presence of so many people at the entrance door as noticed herein before. Availability or non-availability of independent witness has not even been referred to neither there is available on record any explanation as to the reason of not examining even Sukh Dayal before the court. This aspect of the matter has been dealt with in detail hereinbefore in this Judgment and in the absence of any justifiable reason a doubt creeps in the mind of the Court as to whether appropriate justice has been made available to an accused in the justice delivery system of the country. It is on this score that this Court found it essential to have a re-look or a further scrutiny of the available evidence on record before recording its concurrence with the findings, which stand challenged in this appeal. Ravi Virmani is the appellant here charged with gruesome murder of four persons as detailed more fully herein before but on a short recapitulation of the events at this juncture it appears that four adult persons were killed - none of them were ill or feeble or was of very advance in age: an elderly gentleman of 50 years or so was murdered in the drawing room: In the adjoining bed room a young lady with a three month old child along with the wife of the elderly gentleman in the drawing room and a young boy were available and three of them were murdered in the same room - would not there be any effort on the part of any one of these four to resist unless they were totally thunderstruck -and in fact rendered themselves over awed and stone faced : an outsider unknown to the family enters the bed room with a hacksaw blade and kills three persons without there being any sign of any protest or resistance - this raises undoubtedly an eyebrow and thus a doubt in the available evidence. Motive has been stated as noticed more fully herein before but that cannot be termed to be a motive to kill four persons of the same family. The elderly person was murdered in the drawing room outside the bedroom: the instrument used for murder is a hacksaw blade which has to be fitted with bolts in the steel cutting machine being operated by electrical power : sharpening of the blunt edge of the hacksaw blade on a piece of stone has been the evidence by reason wherefor the hacksaw blade looked like a knife: if the intent was to kill why not bring a chopper so as to get rid of the persons in one go and why a blunt edged weapon like hacksaw blade would be used - assuming that being so the 50 year old man, who happened to be otherwise well built would not raise a cry or even an alarm? Is this an acceptable piece of evidence that a man is being murdered with a hacksaw blade, which stands sharpened through a sharpening stone, will not raise an alarm or cry before the death -it is not a gun shot injury but a blade: it is neither the case that there were more than one person in the room where these killings took place. One of the persons, who was seriously injured and thereafter died in the hospital, had been the classmate of Ravi Virmani, the accused -obviously of the same or near about the age of the accused - would the person of the same age accept a situation seeing his father, the mother and the sister-in-law being killed without a demur or protest or even a fight to restrain the outsider from committing these gruesome acts of murder of three persons - there is total silence on this score in the evidence. The High court obviously was over-awed by the killings of four persons in one flat but by reason of the fact that there was no criminal history transformed the death sentence to a life term imprisonment under Section 302 IPC. The issue, therefore, is as to whether the High Court was otherwise right in coming to the conclusion on the basis of available evidence as regards the guilt of the accused. We once again remind ourselves the absence of any independent witness and the entire prosecution s case is based upon the evidence of these two brothers Deepak and Sanjay. Non-availability of independent witness thus creates an uncanny feeling as to why this avoidance - the reason did not see the light of the day at an earlier point of time nor the learned senior Advocates appearing in the matter in support of the prosecution could offer any explanation therefor. A pointed question to that effect was answered in silence only. It is undoubtedly true that commission of the crime in the manner as is framed by the prosecutor cannot but be ascribed to be brutal and most heinous and in the event of there being cogent available evidence, it would be a normal procedure to even award the maximum sentence prescribed under the law - but is there any cogent evidence pointing to the guilt of the accused or there happen to be some lacuna and some holes in the entire edifice of the prosecution case resulting in creeping of a doubt - does the evidence pointedly point towards the guilt of the accused and no other conclusion is possible? If the answer stands in the affirmative then without a least hesitation one cannot but lend concurrence to the view expressed by the High Court but the evidence on record, however, as detailed more fully herein before does not strictly pointedly point out to the guilt of the accused by reason wherefor the burden of the prosecution to prove beyond all reasonable doubts has not been discharged in a manner as it ought to have discharged - there are lacunas in the evidence and in totality of the circumstance, the prosecution case raises a definite doubt in the matter of involvement of Ravi Virmani. On a proper perusal of the evidence on record, we do feel it expedient to record that both the learned Sessions Court as also the High Court have not been able to appreciate the evidence in its proper perspective by reason wherefor they have in fact failed to appreciate evidence in its correct perspective and have thus committed a manifest error in coming to a finding, which stands challenged and impugned in this appeal (Para 34)
       Held consequently : The appeal of Ravi Virmani being Criminal Appeal No. 931 of 2000 thus stands allowed. The Order of the High Court stands set aside and Ravi Virmani stands acquitted of all charges. The appellant be let off immediately unless required in some other case. (Para 35)

JUDGMENT

Banerjee, J.-The appellant in Criminal Appeal No. 931/2000 faced trial along with his father Hari Chand before the learned Additional Sessions Judge, Faridabad under Sections 302, 452, 386 and 324 IPC in Sessions Case No. 3 of 1996. The learned Sessions Judge whereas recorded a finding of guilt as against Ravi Virmani under Sections 452, 324 and 302 IPC and sentenced him to death under Section 302 IPC and for a period of imprisonment already undergone by him under Sections 452 and 324 IPC. The learned Judge, however, acquitted Hari Chand, the father of the present appellant being, the other accused.

2. Subsequently, the death reference came up before the High Court for confirmation and by a detailed Judgment, the High Court, however, upon a consideration of the materials declined the death reference and modified it to life imprisonment under Section 302 IPC and the appellant herein (Ravi Virmani), however, aggrieved thereby moved this Court in appeal against the Order of conviction and sentence. Complainant, Deepak Kumar, has also moved this Court in appeal against the modification of sentence and thus is the appellant in Criminal Appeals No. 927 and 928 of 2000. State of Haryana has also preferred an appeal against the Order of acquittal of Hari Chand as also the modification of sentence in Criminal Appeals No. 929 and 930 of 2000. All these appeals, since directed against the same Judgment, stand consolidated and being disposed of by a common Judgment as more fully discussed herein after.

3. The facts depict the gruesome murder of four persons : the father aged 50 years, the mother aged 45-46 years, the wife aged 25-26 years and the brother aged 24-25 years of the appellant Deepak Kumar (in Criminal Appeals No. 927-928 of 2000) : the prosecutor alleged Ravi Virmani is the murderer : date of occurrence being 8th January, 1996 at about 8.15 p.m. and the place of occurrence being the residence of the victims. The prosecutor s definite evidence is that one part of hacksaw blade was used and the other part was recovered on the basis of a disclosure statement said to have been effected after three days. Fortunately, a three months old child, however, was safe. It has been the prosecutor s case throughout that whereas three persons, namely, the father, the mother and the wife had an instantaneous death, the brother survived for some time and died shortly thereafter. Mr. Sushil Kumar, the learned Senior Advocate appearing in support of the appeal of the State contended that two brothers, who were not in the house, namely, Deepak (being the appellant in the other appeal) and Sanjay had a providential escape and in the event the accused is let off, o Deepak and other members of the family-society cannot and ought not to be submitted. Mr. Sushil Kumar accept such an offender back into the society, therefore, the High Court was wrong in the modification of the sentence from death penalty to life imprisonment: we shall deal with the issue in detail in this Judgment but presently two other incidental facts may be noticed, the first being recovery of blood stained clothes from the body of the accused and secondly it is strong piece of evidence, which according to Mr. Sushil Kumar, stand un-contradicted to the effect that the accused left his car at a distance and came to the place of occurrence on a rickshaw - this piece of evidence stands highlighted to emphasis the deliberate motive and the intent to commit the offence of murder.

4. The narration above has given us the details of the persons, who suffered an unfortunate end in a very gruesome way: the body of the father was found in the drawing room in a pool of blood whereas that of the mother and wife were found in one of the bed rooms and that of the brother, though not dead at that point of time, was also found in the same room along with the mother and the sister-in-law and as noticed above a three months old child escaped the wrath of the murderer. The prosecution sought

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2002 Supreme(SC) 161

Cases Referred (1)