2007 Supreme(SC) 186

2007(2) Supreme 86
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
B.N. Agrawal & P.P. Naolekar, JJ.
Ram Singh—Appellant
versus
Sonia & Ors.—Respondents
Criminal Appeal No. 895 of 2005
With
Criminal Appeal Nos. 894/2005 & 142 of 2006
Decided on 15-2-2007
Counsel for the Parties :
For the Appearing Parties : K.T.S. Tulsi, Sushil Kumar, U.U. Lalit, Sr. Advocates, Prem Malhotra, Rishi Malhotra, Manish K. Saryal, Gaurave Bhargava, Atriar Dey, Lal Bahadur, Vinay Arora, Adolf Mathew, Sudarshan Singh Rawat, Mukesh Kumar, Sanjay Jain, Aditya Kumar, Rajeev Gaur ‘Naseen’, Nitin Sangra and T.V. George, Advocates.

IMPORTANT POINT
Where the accused, along with her husband has not only put an end to the lives of her step brother and his whole family, which included three tiny tots of 45 days, 2½ years and 4 years, but also her own father, mother and sister in a very diabolic manner so as to deprive her father from giving property to her step brother and his family, there would be failure of justice in case death sentence is not awarded in the present case as the same undoubtedly falls within the category of rarest of rare cases.

Headnote:(i) Indian Penal Code, 1860—Sections 302/34 & 120-B—Murders of 7 persons of a family, all close relations—Death sentence—Circumstantial evidence—Prosecution case that A1 under a conspiracy with her husband A2, murdered her own father, mother and sister and also her step brother and his own family including nephew and niece of 45 days, 2½ years and 4 years—Whether the present case would come within the realm of the rarest of rare case—(Yes)—There would be failure of justice in case death sentence is not awarded in the present case—High Court was not justified in commuting death sentence into life imprisonment.

       Held : The instant case is one wherein accused Sonia, along with accused Sanjiv [her husband] has not only put an end to the lives of her step brother and his whole family, which included three tiny tots of 45 days, 2½ years and 4 years, but also her own father, mother and sister in a very diabolic manner so as to deprive her father from giving the property to her step brother and his family. The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims’ side indicates the cold-blooded and premeditated approach of the accused to cause death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of most superlative degree in conception and cruel in execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mind set which can be amenable for any reformation. If this act is not revolting or dastardly, it is beyond comprehension as to what other act can be so. In view of these facts we are of the view that there would be failure of justice in case death sentence is not awarded in the present case as the same undoubtedly falls within the category of rarest of rare cases and the High Court was not justified in commuting death sentence into life imprisonment.(Para 66)

       (ii) Indian Penal Code, 1860—Sections 302/34 & 120-B—Murders of father, mother, sister, step brother and his whole family—Circumstantial evidence—A1 along with her husband A2 entered into conspiracy to murder all family members—After killing family members while they were sleeping, A1 was found lying in porch with froth coming out of her mouth mumbling that she be saved and A2 be called—Circumstances establish the fact of presence of A2 at the place of occurrence and his having participated in the crime along with A1—A2’s clandestine exit from the place of occurrence—A1 had left place of occurrence in the morning to take A2 out therefrom—Recovery of ash of bloodstained clothes of A1 and A2 which were burnt by A2—Extra-judicial confession made by A2 to PW 48, revealing that he and his wife had killed the entire family with iron rod as father of A1 was not parting with her share in the property—Motive qua the crime stands proved—Whether courts below were justified in convicting both A1 and A2 for offence u/s. 302/34 and Section 120-B of the Code—(Yes).

       Held : The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for some times unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between ‘may be true’ and ‘must be true’ and the same divides conjectures from sure conclusions.(Para 39)

       Insofar as motive qua the crime committed is concerned, it is clearly borne out from the factual matrix of the case on hand that both the accused had an eye on the property of deceased, Relu Ram, which was in crores and in order to gain full control over the property and to deprive deceased Relu Ram from giving it to anybody else, both the accused persons have eliminated his whole family. We have been taken through the extra-judicial confession made by A-2 to PW48 wherein he has indicated that as deceased Relu Ram was not parting with the share of A-1 in the property, both A-1 and A-2 together have done to death his whole family. Therefore, the motive qua the crime committed stands proved in the present case.(Para 51)

       There is overwhelming evidence to show the presence of A-1 at the place of occurrence on the intervening night of 23rd and 24th August and in the early hours of 24th August, 2001. The trial court and the High Court have relied on the evidence of PW 57, PW 58, PW 46, PW 25 and PW 64 after close and careful scrutiny of the same. We have on our own considered the evidence on the point and we are satisfied that the view taken by the trial court and the High Court is correct one.(Para 12)

       (iii) Evidence Act, 1872—Section 26—Police custody—Whether one is or is not in police custody can be discerned from the facts and circumstances in each case—A1 was found lying in porch of house with froth coming out of his mouth—PW 57, one of the employees of the deceased saw dead bodies of 7 persons in different rooms and picked up a suicide note lying on bed of A1—PW 25 removed A1 to the hospital—Police party reached the place of occurrence and they made frequent visits to the hospital—It cannot be said that A1’s movements were restricted or she was kept in some sort of direct or indirect police surveillance and that she was in police custody for the purpose of Section 26 of the Act.(Para 17)

       (iv) Criminal Procedure Code, 1973—Sections 164, 281 and 463—Judicial confession—Procedure for recording of—Case of suspected poisoning—Accused was admitted to the hospital as a suspected case of poison, therefore, declared unfit to make any statement—PW62 was called for recording dying declaration—Statement of A1 was recorded when she volunteered to make the statement—There was neither any police officer nor anybody else within the hearing or sight when the statement was recorded—Judicial confession having been recorded according to the procedure set out in Section 164 rw/s 281 Cr.P.C.—Defect made while recording the same being curable by Section 463 Cr.P.C—It is admissible in evidence.(Para 23)

       (v) Evidence Act, 1872—Sections 24 to 26—Extra judicial confession made even to a stranger—Admissible if it is found to have been truthful and voluntarily made before a person who has no reason to state falsely.(Para 48)

       (vi) Evidence Act, 1872—Section 26—Extra judicial confession made while in police custody—A2 was arrested on 19-9-2001—He was taken for Lie Detection Test—He made extra judicial confession to PW17 at which point of time police personnel went away from the scene temporarily—Extra judicial confession hit by Section 26 of the Act, it having been made by A2 while in police custody.(Para 57)

       (vii) Evidence Act, 1872—Section 45—Polygraph (Lie Detection) Test—Admissibility of result of Polygraph Test—Court refrained from going into the question as there were other materials sufficient for upholding conviction of accused.(Para 58)