Bhagat Singh Gurudutta Vs State of Chhattisgarh

Sandeep Jain S/o Late Rawalmal Jain Aged About 42 Years R/o Ganjpara, in front of Alokchand Trilokchand Jewelers, Durg, P.S. Durg, District Durg (C.G.)

¶10

---- Respondent /Accused

¶11

CRA No. 272 of 2023

¶12

Bhagat Singh Gurudutta S/o Satnam Singh Gurudutta Aged About 47 Years R/o Near Kali Badi, Police Station Mohan Nagar, Durg, District : Durg, Chhattisgarh

¶13

Shailendra Sagar S/o Avtar Singh Aged About 47 Years R/o Gurunanak Nagar, Police Station Mohan Nagar, Durg, District : Durg, Chhattisgarh

¶14

---- Appellants/Accused

¶15

Versus

¶16

State of Chhattisgarh through P.S. Durg Kotwali, District : Durg, Chhattisgarh

¶17

---- Respondent

¶18

CRA No. 507 of 2023

¶19

Sandeep Jain S/o Late Rawalmal Jain Aged About 42

¶20

2

¶21

Years R/o Ganjpara, in front of Alokchand Trilokchand Jewelers, Durg P.S. Durg, District : Durg, Chhattisgarh

¶22

---- Appellant/Accused

¶23

Versus

¶24

State of Chhattisgarh through P.S. Durg Kotwali, District : Durg, Chhattisgarh

¶25

---- Respondent

¶26

For Appellant in Cr.A. No. 507/2023 and respondent Sandeep Jain in Cr.Ref. No. 1/2023	Dr. N.K. Shukla, Senior Advocate with Mr. Sumit singh, Advocate
In Cr.A. No. 272/2023 for Appellant No. 1 Appellant No. 2	Mr. M.P.S. Bhatia, Adv. Mr. Amiyakant Tiwari, Adv.
For State	Mr. Chandresh Shrivastava, Additional Advocate General

¶27

Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Naresh Kumar Chandravanshi, Judge CAV Judgment

¶28

Per Naresh Kumar Chandravanshi, J.

¶29

Criminal appeal No. 507/2023 has been preferred by the

¶30

appellant/accused Sandeep Jain against the impugned judgment of conviction and order of Sentence passed by the Additional Sessions Judge, Durg in Sessions trial No. 56/2018 dated 23-01-2023, whereby he has been convicted and sentenced as under :-

¶31

Convic	tion Sentence	Default stipulation
Section	302 Death sentence and	Additional RI for 6
of the	IPC fine of 1,000/-(Two ₹	months.

¶32

3

¶33

(Twice)	counts). hanged by till he died.	He be the neck
25(1-B)(a) of the Arms Act	RI for 5 fine of Rs.	years and 1,000/-	Additional RI for 6 months
27(2) of the Arms Act	RI for 10 fine of Rs.	years and 1,000/-	Additional RI for 6 months.

¶34

1.a Criminal appeal No. 272/2023 has been preferred by the appellant/accused Bhagat Singh Gurudutta and Shailendra Sagar against the above judgment, whereby they have been convicted and sentenced as under :-

¶35

Conviction	Sentence	Default stipulation
25(1-B)(a) of	RI for 5 years and fine	Additional RI for 6
the Arms Act	of Rs. 1,000/-	months

¶36

The learned Additional Sessions Judge, Durg under the provisions of Section 366(1) of the Cr.P.C. after passing the sentence of death to Accused Sandeep Jain, submitted the proceedings to this Court for its confirmation and this is how this death reference No. 1/2023 is before us for consideration.

¶37

PROSECUTION STORY

¶38

The prosecution story in brief is as follows :-

¶39

3.1 Accused Sandeep Jain is the son of deceased Rawalmal Jain and Surji Bai, and other accused Bhagat Singh Gurudatta and Shailendra Sagar are associates of accused Sandeep Jain. Complaintant Saurabh Golchha on 01.01.2018 at 06:25 am,

¶40

4

¶41

informed the police of Police Station-Durg to the effect that, he received a call from Mobile No. 94064 19291 of his maternal grandmother/Nani Surjibai in his Mobile No. 70002 91510 at 05:54 am that something has happened to his maternal grandfather/ Nana, a sound has come, and she called him quickly to the house at Ganjpara, Durg then the complainant immediately went to Ganjpara, in his car. He reached his maternal grandmother's house, where he saw that the outside and inside doors were open. When the complainant went inside the house, he saw that his maternal grand father/Nana (hereinafter referred to as ‘Nana’) was shot dead lying at corridor near bathroom and his maternal grand mother / Nani (hereinafter referred to as ‘Nani’) was lying dead on the bed, she had also been shot dead by someone. Merg No. 1/2018 regarding death of Surji Bai was recorded vide Ex. P-28 and merg No. 2/2018 regarding death of Ravalmal Jain was recorded vide Ex. P-29 at 6.15 and 6.20 am respectively. FIR No. 1/2018 was registered at 6.25 am vide Ex. P-27 for offence under Section 302 of IPC. Inquest reports of the dead body of Surji Bai and Ravalmal Jain were prepared vide Ex. P-32 and P-33 respectively. As per inquest, it was found that Surji Bai and Rawalmal Jain were killed by bullet injuries. Rawalmal Jain's body was lying on the corridor near the bathroom and Surji Bai's body was lying in a pool of blood on the bed in the room.

¶42

5

¶43

Rawalmal Jain had bullet marks on his back and Surji Bai had bullet wounds on her left chest, near the elbow of her right hand and on the head. Both the dead bodies were sent to the District Hospital, Durg for post-mortem. After post-mortem, the bodies were handed over to brother of the deceased, Bhikhamchand Jain. Spot Map Ex. P-63 and site map vide Ex. P-64 have been prepared.

¶44

3.2 During the investigation, videography and photography of the residence of the deceased was done. During the inspection of the spot, empty bullet shells, cotton and blood soaked cotton found around the dead bodies of the deceased Surji Bai and Rawalmal Jain were seized in front of the witnesses. The seized material was sealed on the spot. One Blood stained bullet, two empty caps of cartridge, sample of blood spread on bed was collected in piece of cotton, one Samsung mobile, blood soaked piece and sample piece of bed sheet, were seized vide Ex. P- 50. Four empty cap of cartridges (Khokha), blood spread near the dead body of Ravalmal Jain was collected in a piece of cotton and part of plain soil of that place in cotton, were seized, vide Ex. P-51.

¶45

3.3 During the investigation, the dog squad inspected the place of occurrence. It is mentioned in Ex. P-11 that, the dog went to the room of the deceased's son Sandeep Jain

¶46

6

¶47

(appellant) and barked upon him. The Investigating Officer Bhavesh Sao (P.W. 15) inspected the entire incident site at 07.30 on 01.01.18 and prepared Spot Map vide Ex. P-48. The pistol used in the murder was thrown upon the Tata-Ace, which was parked below behind the balcony of room of accused Sandeep Jain. Photographs of spot were taken separately by the team of State Forensic Science Laboratory, Raipur, which conducted spot inspection of place of occurrence and prepared spot inspection report Ex. P-20.

¶48

3.4 It is further case of prosecution that during investigation, when accused Sandeep Jain was interrogated on the basis of circumstantial evidence, he told in his memorandum statement that he is a free and open-minded person and his father Rawalmal Jain was a person of old conservative ideology, he often used to interrupt him in every work. He used to scold him, his father also was forbidden to meet his female friends. He further stated that his father many times threatened to deprive him from his property, due to which he got upset and planned to kill his father, hence he bought a country-made pistol and cartridges through appellant Bhagat Singh Gurudatta from Shailendra Sagar, sent his wife and son to her parents' house at Dalli Rajhara and also forbidden the servant Rohit Deshmukh (Chowkidar), who used to come to the house every night to sleep, to come home in the night of 31-12-2017. In furtherance

¶49

7

¶50

of his plan, at 05.45 in the morning, he came down from upstairs and went to his mother's place, closed the door of her room from outside, at that time his father was in the corridor and coming back from the bathroom, his back was towards him, then he shot his father in the back. Hearing the sound of the bullet, when his mother screamed, he ran upstairs to his room. His mother started calling him on mobile, but he did not pick it up and when he came back down to his mother's room, she was calling Saurabh on the phone, then he opened the door of his mother's room and out of fear of his secret being revealed, he shot and killed her as well. While shooting, he wore black colored gloves, which are kept under the head of the bed in his room and the check sky-coloured half kurta wore at the time of the incident, which has blood stains on it, is kept hidden under the bed and the pistol with which he shot his parents, he threw down from the upper balcony behind the house, which fell into the Tata- Ace vehicle parked below, along with a loaded magazine and live cartridges. During the investigation, on the basis of the disclosure of the facts stated by accused Sandeep Jain, vide memorandum Ex. P-52, one country made pistol 7.65 caliber silver colour with empty magazine, from above the cabin of TATA Ace bearing registration No. CG 04 JA 8984, 14 nos. cartridge in a packet, 02 nos. empty cap of cartridge, 12 nos. cartridge, 01 megazine containing 06 cartridges from near the

¶51

8

¶52

back gate of Dala of above TATA vehicle, from behind the house of deceased Ravalmal Jain were seized vide Ex. P-53. On the memorandum statement of accused Sandeep Jain, 02 nos. black colour woolen hand gloves, 02 nos. nose mask cream colour, 01 sky colour Kurta stained with blood, 01 Oppo company mobile phone, 01 No. Lock and key were seized vide Ex. P-54. One packet containing 02 nos bullet, one packet containing blood stained saree and blouse wore by deceased Surji Devi, were seized vide Ex. P-65. 01 bullet taken out from body of deceased Ravalmal Jain during post mortem and clothes wore by him at the time of incident were seized vide Ex. P-66. Vide Ex. P-67, 45 photographs of the house of deceased & both the deceased were seized vide Ex. P-67. The blood stained Kurta produced by accused Sandeep Jain was sent to District Hospital, Durg vide Ex. P-7-A. During investigation, accused Sandeep Jain disclosed vide his memorandum statement Ex. P-52 that the pistol by which he committed murder of his mother and father was purchased from accused Bhagat Singh Gurudatta, on the basis of which, accused Bhagat Singh Gurudatta was taken into custody. In his statement vide Ex. P-56, accused Bhagat Singh Gurudatta disclosed that he provided one country made pistol and 38 round cartridges to accused Sandeep Jain, through co-accused Shailendra Sagar. On 3-1-2018, accused Shailendra Sagar

¶53

9

¶54

disclosed vide his memorandum statement Ex. P-57 that accused Bhagat Singh demanded from him one pistol to give to accused Sandeep Jain. The pistol by which Sandeep Jain has committed murder is the same pistol. Pahchan panchnama of the pistol was got done from accused Bhagat Singh Gurudatta vide Ex. P-58. Accused Sandeep Jain was arrested on 1-12018 vide arrest memo Ex. P-69, accused Bhagat Singh Gurudatta and accused Shailendra Sagar were arrested on 3-12018 vide arrest memo Ex. P-70 and Ex. P-71 respectively.

¶55

3.5 During investigation, the Investigating Officer purchased 4 cartridges from Maa Sharda Trades on 11-1-2018 for matching for ballistic testing of the cartridges fired from the point of view of evidence in this case. Call details and other informations were collected with regard to respective mobile numbers of Saurabh Golchha (P.W. 8), deceased Surji Bai and accused/appellant Sandeep Jain from their respective mobile companies along with certificate under Section 65B of the Evidence Act.

¶56

3.6 The seized articles were sent to FSL, Raipur for chemical examination vide Ex. P-81 and as per FSL report Ex. P-82, in Article cotton-A, piece of bedsheet- C, Cotton-E, Half Kurta-G, Saree-H1, Blouse H-2, Peticoat-H-3, Bra-H-4, underwear -I1, Baniyan I-2, Sweter-I-3, and Bullet J-1, human blood was reported to be found. Seized arms and ammunitions were also

¶57

10

¶58

sent to State Forensic Science Laboratory, Raipur for ballistic examination. Vide report Ex. P-23, Sr. Scientist and Asstt. Chemical Examiner, Material/Ballistic branch, CG State FSL, Raipur, along with other opinion, has also opined that bullets recovered from the dead body of both the deceased were fired from seized country made pistol 7.65 mm (Article A). During investigation, other necessary requirements were got done by the Investigating Officer.

¶59

3.7 After completion of investigation, the charge sheet was filed before the Chief Judicial Magistrate, Durg, who committed the case to the learned Sessions Judge, Durg, from where the case was received by the Additional Sessions Judge for trial, who conducted trial.

¶60

3.8 Charges were framed against accused Sandeep Jain under section 302 (twice) of the I.P.C. and sections 25 (1-B) (a) and 27 (2) of the Arms Act and against the accused Bhagat Singh Gurudutta and Shailendra Sagar, charge under Section 25(1-B)(a) of the Arms Act was framed. The charges were read out and explained to accused persons, which they denied.

¶61

In order to bring home the offence, the prosecution examined following witnesses :-

¶62

11

¶63

1	P.W. 1	Chhaganlal Sinha, Patwari
2	P.W. 2	Prabhat Kumar Verma, Police Photographer
3.	P.W. 3	Dr. B.N. Dewangan, conducted Post mortem of deceased
4	P.W. 4	Amit Kumar Kurre, Constable
5.	P.W. 5	Raju Sonwani, driver of accused Sandeep Jain
6.	P.W. 6	Dr. T.L. Chandra, Sr. Scientist, State FSL, Raipur
7.	P.W. 7	Rohit Kumar Deshmukh, Peon/ chowkidar of house of deceased
8.	P.W. 8	Saurabh Golchha, complainant
9.	P.W. 9	Surendra Sahu, Constable
10.	P.W. 10	Hussain M. Zaidi, Nodal Officer, Vodafone Idea ltd.
11.	P.W. 11	Kushal Prasad Dubey, Gun Dealer
12.	P.W. 12	Sanjeev Nema, Nodal Officer, Reliance Jio
13	P.W. 13 Sheikh Kaleem	Witness of memorandum and seizure etc.
14.	P.W. 14	Narsinh Rao, Clerk of Collectorate, Durg
15.	P.W. 15	Inspector, Bhavesh Sao, InvestigatingOfficer

¶64

Besides aforesaid ocular evidence, prosecution also

¶65

exhibited following documents :-

¶66

1	ExP-01	Site map
2	Ex. P-2	PM report of Ravalmal Jain
3	ExP-03	Letter for PM
4	ExP-04	PM report of Smt. Surji Bai
5	Ex. P-05	Application for PM
6	ExP-06A	Memo for query about distance of gun shot
7	ExP-06	Query report given by Dr. B.N. Dewangan statingdistance of 5 ft.
8	ExP-07 -A	Memo forqueryreport regardingKurta

¶67

12

¶68

9	Ex. P—7	Queryreport of the shirt
10	Ex. P-8-A	Memo for query of X-ray
11	Ex. P-8	Queryreport of X-ray
12	Ex. P-9	OPD slip/X rayreport of Rawalmal Jain
13	Ex. P-10	OPD slip/X rayreport of Surji Bai Jain
14	Ex. P-11	Crime investigation form
15	Ex. P-12	Police statement of Raju Sonwani
16	Ex. P-13 to 19	Photographs
17	Ex. P-20 & 21	Spot inspection report by a team of doctors
18	Ex. P-22	Memo for FSL report of gun, cartridge and handgloves
19	Ex. P-23	F.S.L. report of gun, cartridge and hand gloves
20	Ex. P-24	Coveringletter for FSL report
21	Ex. P-25 & 26	Drawing of main road, Ganjpara Durg
22	Ex. P-27-A & 27	FIR lodged by Saurabh Golchha
23	Ex. P-28 & 29	Merg intimation of death of Surji Bai and Ravalmal Jain respectively
24	Ex. P-30 & 31	Summons u/S. 175 of Cr.P.C.
25	Ex. P-32 & 33	Inquest report of respective deceased
26.	Ex. P-34	Panchnama regardingCCTV
27.	Ex. P-35	Subscriber detail record
28.	Ex. P-36	Call details
29.	Ex. P-37	Call details certificate
30.	Ex. P-38	Copyof address
31	Ex. P-39	Receipt of Maa Sharda Traders of cartridges
32.	Ex. P-40	Dailysales book
33.	Ex. P-41	Details of IMEI/MSISDN 7000291510
34.	Ex. P-42	Certificate u/S. 65B(4)(c)of Evidence Act

¶69

13

¶70

35.	Ex. P-43	Customer application form of Saurabh Golchha
36.	Ex. P-44	Adhar Card of Saurabh Golchha
37.	Ex. P-45	Letter to Nodal Officer, Railiance Jio
38.	Ex. P-46	Call details
39.	Ex. P-47	Call details
40	Ex. P-48	Naksha Panchayatnama
41.	Ex. P-49	Notice under S. 160, Cr.P.C.
42.	Ex. P-50	Seizure memo of articles of death of Surji Bai
43.	Ex. P-51	Seizure memo of articles of death of Ravalmal
44.	Ex. P-52	Memorandum statement of accused SandeepJain
45.	Ex. P-53	Seizure memorandum of pistol, cartridge, magazine etc. at the behest of Sandeep Jain
46.	Ex. P-54	Seizure memo
47.	Ex. P-55	Seizure memo of letter
48.	Ex. P-56	Memorandum of accused Bhagat Singh Gurudatta
49.	Ex. P-57	Memorandum of accused Shailendra Sagar
50.	Ex. P-58	Pahchanpanchnama ofpistol
51.	Ex. P-59	Order of District Magistrate forprosecution
52.	Ex. P-60-C	Memo for grant of permission for prosecution
53.	Ex. P-61	Shav supurdnama of Surji Bai
54.	Ex. P-62	Shav Supurdnama of Ravalmal Jain
55.	Ex. P-63	Spot map
56.	Ex. P-64	Site map
57.	Ex. P-65	Seizure memo of bullet, cloths of Surji Bai
58.	Ex. P-66	Seizure memo of bullet, clothes of Ravalmal Jain
59.	Ex. P-67	Seizure memo ofphotographs
60.	Ex. P-68	Letter to in-charge DogSquad

¶71

14

¶72

61.	Ex. P-69	Arrest memo of accused SandeepJain
62.	Ex. P-70	Arrest memo of accused Bhagat Singh Gurudatt
63.	Ex. P-71	Arrest memo of accused Shailendra Sagar
64.	Ex. P-72	Information of arrest of accused Sandeep Jain
65.	Ex. P-73	Information of arrest of accused Bhagat Singh Gurudatta
66.	Ex. P-74	Information of arrest of accused Shailendra Sagar
67.	Ex. P-75	Letter to Tahsildar for preparing Patwari map
68.	Ex. P-76	Letter seeking permission for purchasing cartridge
69	Ex. P-77	Letter giving information of purchase of cartridge
70.	Ex. P-78	Letter to Nodal officer, Reliance Jio
71.	Ex. P-79	Letter to Nodal Officer, IDEA Reliance
72.	Ex. P-80.	Letter to Nodal Officer, Reliance Communication
73.	Ex. P-81	Letter to FSL
74.	Ex. P-82	FSL report
75.	Ex. P-83	Letter written byaccused SandeepJain
76.	Ex. P-84	Job certificate
77.	Ex. P-84-C	Permission forpurchase of cartridge
78.	Ex. P-85	Police statement of complainant Saurabh Golchha
79.	Ex. P-85-A	Police statement of Santosh Jain

¶73

Apart from that, various things i.e. country made

¶74

pistol, magazine, cartridges etc., seized from the spot and other

¶75

ways, have been marked as Articles through respective

¶76

witnesses.

¶77

15

¶78

Thereafter, statements of the accused persons were recorded under Section 313 of the CrPC, in which, they claimed to be innocent and falsely implicated. Accused Bhagat Singh Gurudatta and Shailendra Sagar refused to examine any defence witness and accused Sandeep Jain got examined his wife Mrs. Santosh Jain (D.W. 1) in his defence and exhibited following documents in his defence :-

¶79

1.	Ex. D-1	Application for preparation of Patwari Naksha
2.	Ex. D-2	Police statement of Rohit Kumar Deshmukh (P.W.7)
3.	Ex. D-3	Letter to Sr. scientist, FSL
4.	Ex. D-4	Receipt
5.	Ex. D-5	Weapon inuqiryreport
6.	Ex. D-6 & 7	Photograph
7.	Ex. P-8	Paper cutting
8.	Article D-1	Memorychip

¶80

The trial Court upon appreciation of oral and documentary evidence available on record, by the impugned judgment, convicted and sentenced the accused persons as mentioned in paragraph 1, 1.a and 1.b of this judgment.

¶81

Dr. N.K. Shukla, learned Sr. counsel assisted by Mr. Sumit Singh, learned counsel appearing for accused Sandeep Jain would submit that :-

¶82

7.1 the alleged articles like cartridges, pistol, magazine and

¶83

16

¶84

other incriminating articles were already discovered before the memorandum statement of the appellant was recorded, hence he submitted that there is no nexus between the memorandum statement of appellant Sandeep Jain and discovery of those incriminating articles.

¶85

7.2 the name of the appellant is not mentioned either in the merg intimation or in the FIR.

¶86

7.3 the case of the prosecution suffers from supperisso veri because the Investigating Officer Bhavesh Sao (P.W. 15) has admitted in para No.41 of his statement that the information of the incident was recorded in Sanha No.14 before lodging of FIR, which has not been produced along with the charge sheet, hence the suppression of Sanha No.14 during the trial by the Investigating officer creates serious doubts in the case of prosecution.

¶87

7.4 the Investigating officer Bhavesh Sao (P.W. 15) has deposed in para No. 50 of his statement that the incident happened in dense locality, despite that, no independent witness could be examined.

¶88

7.5 the memorandum statement recorded u/S. 27 of the Evidence Act of the appellant Sandeep Jain was recorded on 01-01-2018 at 3.10 PM and two witnesses namely Shiva Kaushal and Sheikh Kaleem are witnesses of memorandum and

¶89

17

¶90

seizure. Out of two witnesses of memorandum and seizure, the prosecution could not examine Shiva Kaushal as witness, which is fatal for the prosecution, as second witness Sheikh Kaleem (P.W. 13) has stated in para No.1 that because of some accident, he reached to the Police Station, but in para No.24, he denied the same, hence it is submitted that Shekh Kaleem (PW13) is a chance witness and not trustworthy, because his testimony does not inspire confidence. It is further submitted that Sheikh Kaleem (PW-13 ) has stated in Para No.27 in his deposition that the police officers have projected him as witness in almost 20 to 25 cases and he is easily available to the police as their pocket witness. It is submitted that Shikh Kaleem (PW13) has stated in his statement in para No.46 that the appellant has not given memorandum statement and has also denied the seizure of the incriminating articles from the appellant. Further, this witness has deposed that all the incriminating articles like gun, magazine, bullets were already discovered before the memorandum statement was recorded. Thus, there is only one independent witness of memorandum and seizure examined by the prosecution who is pocket witness of the police, hence on the basis of his testimony, concerned memorandum and seizure memos cannot be held proved, rather making such person witness and not examining other witnesses of the proceedings, demolish the roots of the case of the prosecution.

¶91

18

¶92

7.6 Sourabh Golchha (P.W. 8) is the author of merg reports & FIR, he has not named the appellant Sandeep Jain either in the meg report or in the FIR, despite his presence at the scene of offence. Further, he himself has admitted in his crossexamination that when he went upstairs, he found that door bolt of room of accused Sandeep Jain was bolted from outside, which he (Saurabh Golchha) opened, thereafter, Sandeep Jain came out from his room. This fact itself shows innocence of accused Sandeep Jain in respect of instant crime. Saurabh Golchha (P.W. 8) in para No.17 has deposed that the factum of recovery of huge amount of cash was published in the news paper and the video of the news was viral. In para No.36, he has narrated the police that there was 74 lakhs cash at the scene of occurrence, which was seized and taken by the police party, but no seizure memo has been filed with the charge sheet. This version has also been narrated by Smt. Santosh Jain (D.W. 1) which can’t be disbelieved. This very fact creates serious doubts in the case of prosecution with regard to charges leveled against appellant Sandeep Jain.

¶93

7.7 Prabhat Kumar Verma (PW-2) in para No.1 has stated that he reached to scene of occurrence at 8.30 AM on the date of incident. In para No.8 of his deposition, he stated that he took photographs of all the incriminating articles. It means that all the incriminating articles were already discovered before the

¶94

19

¶95

memorandum statement of the appellant was recorded.

¶96

7.8 Rohit Deshmukh (PW-7) in para No.12 has stated that whenever the deceased Rawalmal Jain fell sick, it was the appellant Sandeep Jain who take care of the deceased Rawalmal Jain, thus the conduct of the appellant was very much cordial with his parents and others also.

¶97

7.9 the confessional part of the memorandum statement recorded under Section 27 of the Evidence Act has been relied by the learned trial court while convicting the appellant, which is not at all sustainable in the eyes of law.

¶98

7.10 the prosecution has failed to explain the circumstances that the seized articles were kept safely in Malkhana and after making the proper exit entry, the articles were sent for examination.

¶99

7.11 present is a case rests upon the circumstantial evidence, the chain of the circumstances against the appellant Sandeep Jain is not complete pointing towards the guilt of the appellant .

¶100

7.12 Learned Senior Advocate submits that in view of above, it is clear that the prosecution has failed to prove the case against the appellant Sandeep Jain beyond reasonable doubt, hence he may be acquitted of all the charges.

¶101

20

¶102

Mr. M.P.S. Bhatia and Mr. Amiyakant Tiwari, learned counsel appearing for the appellants Bhagat Singh Gurudatta and Shailendra Sagar respectively in Cr.A. No. 272/2023 argued that both the appellants have been implicated and convicted in instant case only on the basis of memorandum statement of accused Sandeep Jain and their own memorandum statements, but except this, nothing has been recovered from them or else to connect or convict them in instant case. Memorandum statement recorded under Section 27 of the Evidence Act without recovery cannot be based for conviction as the same is hit from provisions of Section 25 and 26 of the Evidence Act. Learned counsels further submitted that aforesaid appellants have been convicted for 5 years along with fine and default stipulation for offence under Section 25(1-B)(a) of the Arms Act, 1959, which was not provided in aforesaid Act at the time of commission of instant crime i.e. on 1-1-2018, as at that time, aforesaid offence was punishable for maximum 3 years sentence and vide amendment dated 14-12-2019, it has been extended to 5 years. Therefore, they prayed that both the appellants may be acquitted from the charges and alternatively, their sentence may be reduced.

¶103

We have heard learned counsel appearing for the parties, perused the impugned judgment and original record of the trial Court.

¶104

21

¶105

In the instant case, it is not in dispute that deceased Ravalmal Jain and Surji Bai were husband and wife and appellant Sandeep Jain is their only son. It is also not in dispute that Smt. Santosh Jain, who has been examined as defence witness, is wife of appellant Sandeep Jain and Saurabh Golchha (P.W. 8) is son of daughter of deceased persons Ravalmal Jain and Surji Bai and aforesaid persons are residents of Durg.

¶106

Saurabh Golchha (P.W. 8), who is Nati of deceased persons, has deposed in his Court statement that on 1-1-2018 at about 6.00 am, a mobile call on his mobile No. 70002 91510 came from Mobile No. 94064 19291 of his Nani Surji Bai and she told him that Nanaji (Ravalmal Jain) has fallen, come soon. He immediately went on his car to the house of deceased persons situated at Ganjpara, Durg, where he found his Nana and Nani both were shot dead. His Nana Ravalmal was lying in corridor and his Nani was lying on bed in pool of blood. This witness lodged merg report Ex. P-28 and P-29 with regard to unnatural death of Ravalmal Jain and Surji Bai. FIR Ex. P-27 was registered by Inspector Bhavesh Sao (P.W. 15) at 6.25 am. Aforesaid facts have also been proved by Inspector Bhavesh Sao (P.W. 15).

¶107

After lodging merg report and FIR, inquest reports of both the deceased were prepared and dead body of both the

¶108

22

¶109

deceased were sent to District Hospital, Durg where Dr. B.N. Dewangan (P.W. 3) conducted post mortem of both the deceased and has found following injuries :-

¶110

POST MORTEM OF RAVALMAL JAIN

¶111

In external examination, the doctor found following injures on the body :-

¶112

i. One entry wound with zigzag margin with abrasion present in upper part size 1.5 x 1 cm x deep chest, at left back of chest.

¶113

ii. One entry wound size 1.5 x 1 cm x deep right in right side of chest, swelling in front part of chest, metallic colour bullet found.

¶114

iii. Linear abrasion present , 2 cm in left forehand near wrist.

¶115

iv. Abrasion 1 x ½ x ½ cm at right axilla.

¶116

v. One abrasion ½ x ½ cm at upper part of right side of chest.

¶117

The doctor found that brain was pale, clotted blood present in right side of chest, right lung ruptured and swollen, collected blood present in right lung. Left lung also ruptured. Heart ruptured, big blood clot present, left ventricle ruptured, blood clot present at pericardial. Right

¶118

23

¶119

lob of liver ruptured.

¶120

All injuries were ante mortem in nature, duration within 2 hours from death. Entry wound and internal injuries caused by gun shot injury. Abrasion caused by hard and rough object.

¶121

The doctor opined that cause of death is shock and hemorrhage due to ante mortem injuries caused by gun shot on chest and the death was homicidal in nature.

¶122

POST MORTEM OF SURJI BAI

¶123

Following external injuries were found on the

¶124

body :-

¶125

I. One entry wound present in right side of head in temporal parital region, size 1.5 x .5 x deep to brain, right parietal bone was fractured and brain ruptured and clotted blood present with exit wound left side of head size 2 x 1 cm and ear was ruptured.

¶126

ii. Entry wound present size 1 x ½ cm x chest deep towards right side of back.

¶127

iii. Entry wound 1 x ½ cm x chest deep at back of right side of chest.

¶128

iv. Entry wound size 1.5 x ½ cm x right lower arm

¶129

24

¶130

v. Entry wound size 1.5 x ½ cm x lower part of right hand

¶131

On internal examination, doctor found that blood present in right side of chest, right lung ruptured, left lung pale. Liver, spleen and kidney pale. All the injuries were ante mortem, duration within 2 hours from death. All injuries caused by gun shot. One bullet was taken out from front side of chest and one bullet was taken out from back side of chest.

¶132

The doctor opined that cause of death is shock and hemorrhage due to ante mortem injuries on head and chest caused by gun shot and the death is homicidal in nature.”

¶133

Dr. B.N. Dewangan (P.W. 3) has proved the post mortem reports of both the deceased and has deposed in his Court statement that on post mortem, he found that both the deceased were killed by 3 gun shot to each and on X-ray, 3 bullets were found on the dead body of Ravalmal Jain, out of which, only one bullet could be taken out from his body. Two bullets were taken out from body of Surji Bai as one bullet came out of body making exit wound. He has opined that injury sustained by both the deceased were ante mortem caused by gun shot. He has further opined that cause of death is shock and hemorrhage,

¶134

25

¶135

time of death is between 6 to 12 hours prior to the post mortem. He has further opined that nature of death of both the deceased is homicidal.

¶136

Perusal of deposition of Dr. B.N. Devangan (P.W. 3) which is well supported by post mortem report of Ravalmal Jain (Ex. P-2) and post mortem report of Surji Bai (Ex. P-4), clearly shows that both the deceased were shot dead by 3 bullet injuries to each of them, that too, on vital part of body between 6 to 12 hours prior to post mortem. Aforesaid fact has also been proved by Dr. T.L. Chandra (P.W. 6), who reached on the spot at about 11.30 am along with his team comprising other 3 members and inspected the spot, in which, they not only found death of both the deceased by gun shot injury but they also found empty caps of bullet lying near dead bodies. This witness has opined that after minute inspection of the place of occurrence, he found that gun shot injuries were made from tattooing range upon Ravalmal Jain on his back and gun shot was also fired at Surji Bai on tattooing range. His statement is well supported by spot inspection report (Ex. P-20) prepared by his team of scientist, which has also been signed by him and his team members. Aforesaid facts have also been proved by Inspector Bhavesh Sao (P.W. 15), who has conducted all the investigation and prepared documents, as has been stated in proceeding paragraph.

¶137

26

¶138

Nothing has been brought in cross-examination of aforesaid witnesses to disbelieve the fact that in the morning of 1-1-2018, Ravalmal Jain and Surji Bai were shot dead in their house by bullet injuries. This fact is also proved from deposition of Smt. Santosh Jain (D.W. 1), who is wife of appellant Sandeep Jain and daughter-in-law of both the deceased persons, who has been examined as defence witness by her husband/appellant Sandeep Jain.

¶139

Thus, perusal of aforesaid oral and documentary evidence clearly proves that on 1-1-2018 prior to 6.00 am, both the deceased persons were shot 3 bullet injuries to each of them, on the vital part of their body, therefore, they succumed to the injuries. Learned trial Court has recorded the finding of fact based on evidence available on record. Hence, we uphold the finding of learned trial Court that nature of death of both the deceased is homicidal.

¶140

In the present case, there is no direct evidence, rather the case of the prosecution rests on circumstantial evidence. Learned trial Court has narrated as many as 12 circumstances in para 75 of its judgment and after considering evidence in respect of those circumstances, held that chain of circumstances appearing against the appellant Sandeep Jain are proved by the prosecution.

¶141

27

¶142

On going through the record of the case, we find that following are circumstances with regard to causing death of both the deceased persons :-

¶143

A. In the fateful night i.e. intervening night of 31-12-2017 and 1-1-2018, only both the deceased and appellant Sandeep Jain were present in the house, where incident occurred;

¶144

B. At about 5.54 am Surji Bai called through her mobile to her Nati Saurabh Golchha (P.W. 8) on his mobile and told him that something has happened to Nanaji (Ravalmal Jain) and sound has come;

¶145

C. Saurabh Golchha (P.W. 8) immediately reached to the house of Nanaji at 6.02.36 am i.e. within 8 – 9 minutes and found that main gate and other gates were opened. His Nanaji was lying on corridor near bathroom, he was shot dead and his Nani was also shot dead, she was lying on the bed;

¶146

D. Facts reveal that both the deceased were shot dead between 5.30.01 am to 6.02.20 hours;

¶147

E. Saurabh Golchha (P.W. 8)

¶148

28

¶149

immediately went to the room of appellant Sandeep Jain situated near the room of deceased on 1^st floor and told him about the incident, thereafter appellant Sandeep Jain came down;

¶150

F. No any proof of entry of any other person in the house of deceased has been found in investigation.

¶151

Sourabh Golchha (P.W. 8) who is Nati of deceased persons, is main witness in the instant case. He has stated in his deposition that on 1-1-2018 at about 6.00 hours, his Nani Surji Bai called him from her mobile No. 94064 19291 on his mobile 70002 91510 and told him that Nanaji has fallen, come soon. He immediately went in his car at Ganjpara, where deceased persons were residing. He has further stated that, on reaching inside the house, he saw that his Nana Ravalmal Jain had fallen in the corridor, he was shot dead, thereafter he went to the room of his Nani and saw that she was lying on bed in a pool of blood, as she was also shot dead by bullet injuries, a bullet was also lying beside her. Despite shacking, she also did not get up, thereafter he went to the room of his Mama Sandeep Jain, thereafter they both came down and appellant Sandeep Jain was crying clinging to the dead bodies of both

¶152

29

¶153

deceased persons. This witness has further deposed that on the fateful night, his Mami Smt. Santosh Jain (wife of appellant Sandeep Jain) and her son Sanyam Jain were not present in the house, as they had gone to Dalli Rajhara.

¶154

Raju Sonwani (P.W. 5) was working as driver of deceased family prior to the incident. This witness has deposed that on 26-12-2017, he along with appellant Sandeep Jain had dropped Smt. Santosh Jain and Sanyam at her parental home at Dalli Rajhara. He has further stated that on the fateful night, only appellant Sandeep Jain, his father Ravalmal Jain and mother Surji Bai were in the house. His aforesaid statement has not been rebutted in cross-examination.

¶155

Rohit Kumar Deshmukh (P.W. 7) has deposed in his deposition that for last 30 years, he is working in the office of deceased situated in his house and he also did work of watchman in the night. This witness has stated that prior to the incident, wife and son of appellant Saneeep Jain were dropped by appellant Sandeep Jain at Dalli Rajhara.

¶156

Appellant Sandeep Jain has admitted in his statement recorded under Section 313 of the Cr.P.C. that Raju Sonwani (P.W. 5) was working as their driver and Rohit Kumar Deshmukh (P.W. 7) was also a worker of their house. He has also admitted that prior to the incident, his wife Smt. Santosh Jain and son

¶157

30

¶158

Sanyam Jain had gone to Dalli Rajhara. On the fateful night, he and his father and mother were present in the house. These facts have also been supported by Smt. Santosh Jain, who has been examined as defence witness. Thus, it is proved that in the fateful night, only both the deceased and their son accused Sandeep Jain were present in their house, where present incident had occurred.

¶159

As per deposition of Saurabh Golchha (P.W. 8), on being called by his Nani, through her mobile No. 9406419291 on his mobile No. 70002 91510 that his Nanaji had fallen, come soon, he went to the house of deceased where he found dead bodies of both the deceased as a result of gun shot injuries. Aforesaid fact with regard to making call has been proved by Sanjeev Nema (P.W. 12), Nodal Officer of Reliance Jio. He has also proved in his deposition that Mobile No. 70002 91510 was issued to Saurabh Golchha, hence on 1-1-2018 at about 5.54.50 am, incoming call had come in mobile of Saurabh Golchha from mobile No. 94064 19291. He has also proved that as per CDR, in the morning at 5.54.50 hour, his tower location was at Rishabh heritage, where Saurabh Golchha resides and subsequently his tower location was at Ganjpara, Durg. His deposition is well supported by Ex. P-41 and Ex. P-43 to P-45 prepared in this regard, he has also proved issuance of certificate under section 65 B of the Indian Evidence Act.

¶160

31

¶161

Further, he has stated that contents of Ex. P-46 and Ex. P-47 have been saved in server. Nothing has been brought in his cross-examination to discredit the statement made by him in examination-in-chief. Hussain M. Zaidi (P.W. 10 ) who is Nodal Officer of Vodafone, has proved in his deposition that in the night of 31-12-2017, server location of mobile number 7697562121 CIM card of which was issued by their company in the name of Sandeep Jain, was found at Ganjpara, Durg. His aforesaid statement is well supported by document Ex. P-35 to Ex. P-38. He has also corroborated aforesaid facts in his crossexamination.

¶162

Thus, from aforesaid evidence of Sanjeev Nema (P.W. 12) and documents Ex. P-41 to Ex. P-45, deposition of Saurabh Golchha (P.W. 8) is found proved that at 5.54.50 am, on his mobile No. 70002 91510, a call of Mobile No. 9406419291 of his Nani was received and when he reached on the spot, he found that his Nana and Nani were shot dead by bullet injuries.

¶163

Dr. T.L. Chandra (P.W. 6) who is Sr. Scientist of State FSL, Raipur had visited with his team comprising Dr. Ravi Chandel, Sandeep Kumar and Dinesh Sahu at the place of occurrence at 11.30 am and they had inspected the spot minutely, they had also taken photographs of the crime scene along with other suspected places of near-about. On inspection of spot, they

¶164

32

¶165

found that dead body of Surji Bai was lying on bed, they found various entry wounds on the body of Surji Bai, out of which, one injury was also containing exit wound, that was on her head and that bullet was also found beside her head, this fact has also been proved by Saurabh Golchha (P.W. 8). This witness has further stated that dead body of Ravalmal was lying on the floor of corridor and he had sustained two bullet injuries on his upper back. During inspection, they also found empty caps of cartridge/ bullets at the place of occurrence.

¶166

Dr. T.L. Chandra (P.W. 6) has further deposed that at back side of house of deceased, they found one country made pistol 7.65 mm along with magazine, which was lying upon driver cabin of Tata Ace bearing registration No. CG 04 JA 8984 which was stationed near the backside wall of house of deceased. They also found one magazine containing six live cartridges of 7.65 mm caliber country made pistol, which was lying on trolley portion of aforesaid vehicle along with two polythene packets containing 12 and 14 live cartridges respectively along with two empty cap of cartridges. He has further stated in his Court statement that on minute observation of top of aforesaid vehicle, it was found that some portion of roof of the vehicle had some dent, which shows that aforesaid country made pistol and magazine were thrown upon the vehicle from balcony of first floor of Duggad Niwas i.e. residence of deceased persons. This

¶167

33

¶168

witness has opined that both the deceased were fired from tattooing range. His aforesaid deposition is well supported by report Ex. P-20 prepared by his team. This witness has also proved photographs taken by his team i.e. Ex. P – 13 to P – 19, total number of photographs 1 to 42.

¶169

Investigating Officer Bhavesh Sao (P.W. 15) has stated in his deposition that after inspection of spot and taking photograph by his photographer Prabhat Kumar Verma (P.W. 2), place of occurrence was kept safe till arrival of FSL team. After inspection of FSL team, this witness has seized one bullet lying near the head of Surji Bai, empty cap of cartridge, her mobile, blood stained bed sheet and other articles vide seizure memo Ex. P-50. He also seized empty cap of cartridges lying near gate and corridor, sample of blood spread near dead body of Ravalmal Jain vide seizure memo Ex. P-51. He has further stated that all aforesaid empty cap of cartridges were containing No. 7.65 KF . This witness has also supported deposition of Dr. T.L. Chandra (P.W. 6) that country made pistol, magazine and cartridges were seized from roof and trolley portion of Tata Ace vehicle standing behind the house of deceased and packets of live cartridges which were thrown in polythene packet and subsequently the same were seized by him. He has also proved the fact that one cartridge was taken out from dead body of Ravalmal Jain and two cartridges were

¶170

34

¶171

taken out from dead body of Surji Bai which has also been marked as article- EB-1, EB-2 and EB-3 during course of examination.

¶172

Investigating Officer Bhavesh Sao (P.W. 15) has further stated in his deposition that after calling witnesses at 7.30 a.m., he had inspected the place of occurrence and prepared Panchnama Ex. P-48 in this regard. He has further deposed that on inspection, he found that there was only one entry gate to enter into the house of deceased, which is closed from inside and in this situation, only the persons residing in the house can open the gate. He has further stated that, in back side of the house, iron grill is fixed, from where by putting hand outside, pistol, magazine, and cartridges etc. were found to be thrown upon Tata Ace vehicle and packet of cartridges were also thrown on the road, which is attached with the balcony of first floor/room of accused. He has further stated that one rusted lock was found on the grill which was not found to be opened since long. He has further stated that on spot inspection being done, it was found that there was no evidence of entry of outside person in the house from front or back of the house.

¶173

As per deposition of Bhavesh Sao (P.W. 15) and Dr. T.L. Chandra (P.W. 6) after seizure of country made pistol, cartridge and empty cap of cartridges, those articles were sent for

¶174

35

¶175

examination in FSL Raipur, which were examined by Dr. T.L. Chandra (P.W. 6). He has made detailed statement with regard to aforesaid articles received for examination and after examination, he has opined that seized 7.65 mm caliber country made pistol is on running condition, through which fire has been made, LR-1 to LR – 32 are live cartridges of 7.65 mm pistol, which have been manufactured in Indian Ordnance factfory, out of which LR-12, LR-17, LR 24 and LR-27 were used to test fire in FSL. He also opined that magazines and empty cap of cartridges were also of 7.65 mm country made pistol and EB-1, EB-2 and EB-3 cartridges (recovered from dead body of deceased persons ) had been fired from article ‘A’ 7.65 mm country made pistol seized in instant case. Aforesaid facts have also been supported from report Ex. P-23 prepared by Dr. T.L. Chandra.

¶176

Dr. T.L. Chandra (P.W. 6) has admitted in his crossexamination para 64 that on the body of aforesaid country made pistol, letter ‘USA’ had been written in English, but he has not written this fact in his report. In this regard, this witness has given explanation that since mark of Ordnance Factory of USA was not found on the pistol, therefore, he has not stated aforesaid fact in his report and due to this, he has opined that it was a country made pistol. He has further admitted the suggestion of learned Defence Counsel that aforesaid pistol

¶177

36

¶178

was manufactured in India but he has not stated this fact also in his report, but only non-disclosure of aforesaid fact in his report, cannot be a ground to discard his deposition or report prepared by him.

¶179

Shekh Kaleem (P.W. 13) is a witness of proceedings of investigation conducted by Bhavesh Sao ( P.W. 15) and documents prepared by him in this regard. This witness has supported inspection report ( Ex.P-48) prepared by Bhavesh Sao (P.W. 15) and has stated that no evidence was found of entry of outside person in the house of deceased except the persons residing in the house. This witness has also stated that the grill situated behind the house was having rusted lock, and it was found that the same has not been opened for many years. He has also stated that no any damage was found to be caused in backside of the house which would show entrance of any outside person in the house. Although the admission made by this witness in cross-examination shows that he is pocket witness of police as he himself has admitted that he has been made witness by the police in more than 20-25 cases, but on the other hand, I.O Bhavesh Sao has stated in his deposition that despite request made by him though, in oral, none of the persons present on the spot were ready to be a witness of the proceeding.

¶180

37

¶181

While dealing with the non-examination of independent witness, Hon’ble Supreme Court in the case of Sadhu Saran Singh v. State of U.P., (2016) 4 SCC 357 has observed in para 29 as under :-

¶182

“29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.”

¶183

Perusal of aforesaid ocular and documentary evidence clearly prove the fact that, in the fateful night/morning between 5.30 am to 6.02.20 am, both the deceased were shot dead by three bullet injuries to each of them, in that night, only both the deceased and their son appellant Sandeep Jain were present in

¶184

38

¶185

the house. It is also proved that on being called by Surji Bai (deceased) through her mobile to her nati Sourabh Golchha (P.W. 08) on his mobile at 5.54.50 hour, he reached in the house of deceased within 8-9 minutes, that is at 6.02.20 a.m. then he found that both the deceased were shot dead and dead body of deceased Ravalmal Jain was lying near the gate of bathroom, and dead body of Surji Bai was lying on the bed. It is also proved that looking to aforesaid situation, Saurabh Golchha (P.W. 8) went to the room of appellant Sandeep Jain situated on the first floor and thereafter he came down. More or less, the appellant Sandeep Jain has also admitted aforesaid fact in his statement recorded under Section 313 of Cr.P.C. He has further stated that on being called by Saurabh Golchha (P.W. 8), he came down from his room. It is also proved particularly from deposition of Saurabh Golchha (P.W. 8), I.O. Bhavesh Sao (P.W. 15) and Shekh Kaleem (P.W. 13) that no evidence was found to show entry of outside person in the house. Therefore, only fact remains that except appellant Sandeep Jain, no outside person had gone to the house of deceased.

¶186

Saurabh Golchha (P.W. 8) has admitted in his crossexamination para 20 that behind the house of deceased, there was a lane (gali) and from that side, anybody can enter in the house through the grill situated in the back of the house with the help of ladder. He has also admitted that there was a gate on

¶187

39

¶188

grill which remains opened and through which anybody can enter in the hall and ground floor of the house, where incident happened.

¶189

Smt. Santosh Jain (D.W.1), who is wife of appellant Sandeep Jain, has also stated in her deposition that upon railing/ grill situated in back side of their house, there are two gates, out of which, one gate usually remain opened. She has further stated that there is also other way to enter in the house from upper roof of the house.

¶190

Thus, Saurabh Golchha (P.W. 8) and Smt. Santosh Jain (DW1) have tried to demonstrate that there was other way to enter in the house, but their deposition does not inspire confidence of the Court, as Investigating Officer has clearly stated that no evidence was found on inspection of the spot to demonstrate the fact that any out side person had entered into the house. Further these facts were also not disclosed by Saurabh Golchha (P.W. 8) and Smt. Santosh Jain (D.W 1) in their statement recorded under Section 161 of the Cr.PC. They have also brought new fact in their deposition that police had taken Rs. 74 lacs from the house of deceased, but no seizure was made in this regard. These facts were not disclosed by them in their statement recorded under Section 161 of the Cr.P.C. which show that only to create doubt in the case of

¶191

40

¶192

prosecution, they have brought completely new fact in their court statement, hence statement of Investigating Officer Bhavesh Sao (P.W. 15) cannot be disbelieved that entry of any outside person was not found in the house of deceased persons in the fateful night/morning and, therefore, fact remains that 3 persons were present in the house, out of whom, two were shot dead by 3 bullet injuries to each of them. Hence, liability is on the person i.e. appellant Sandeep Jain in the instant case to explain, as to how those two persons, who were his father and mother, were shot dead and how their homicidal death were caused by such type of multiple bullet injuries.

¶193

37. Section 106 of the Evidence Act, states as under:-

¶194

“ 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

¶195

Illustration

¶196

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

¶197

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.”

¶198

Section 106 of the Evidence Act referred to above

¶199

41

¶200

provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the Accused. The ordinary Rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the Accused is not in any way modified by the Rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the Accused and which, he can prove without difficulty or inconvenience".

¶201

In Shambhu Nath Mehra v. The State of Ajmer reported in AIR 1956 SC 404, Hon’ble Supreme Court while considering the word "especially" employed in Section 106 of the Evidence Act observed as under:

¶202

“9. ... The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the

¶203

42

¶204

Section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the Accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that, that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an Accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R, 1936-3 All ER 36 at p. 49 (B).”

¶205

The aforesaid decision of Shambhu Nath Mehra Vs. State of Ajmer (AIR 1956 SC 404) has been referred to and relied upon in Nagendra Sah v. State of Bihar reported in [(2021) 10 SCC 725], wherein it has been observed as under:-

¶206

“22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the Accused. When the Accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

¶207

43

¶208

When a case is resting on circumstantial evidence, if the Accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the Accused to discharge the burden Under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the Accused.”

¶209

Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab [AIR 1956 SC 460], while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the

¶210

44

¶211

accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him.

¶212

The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar [AIR 1974 SC 778] and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence.

¶213

In Trimukh Maroti Kirkan v. State of Maharashtra , [(2006) 10 SCC 681], Hon’ble Supreme Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case:

¶214

“14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not

¶215

45

¶216

escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [[1944] A.C. 315 : [1944] 2 All ER 13 (HL)] — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

¶217

“(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.”

¶218

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was

¶219

46

¶220

committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

¶221

xxxxxxxxx

¶222

Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. …”

¶223

44. In Tulshiram Sahadu Suryawanshi v. State of

¶224

Maharashtra, [(2012) 10 SCC 373], it has been observed as under:

¶225

“23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in

¶226

47

¶227

view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 ]:

¶228

“38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned

¶229

48

¶230

Judge has stated the legal principle thus : (AIR p. 406, para 11)

¶231

‘11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.

¶232

The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.”

¶233

(Emphasis supplied)”

¶234

Complying with aforesaid principle in facts of instant case, we find that in view of aforesaid discussion, liability shift upon accused Sandeep Jain that, in the fateful night/morning, when he along with his father and mother only were in the house, then, how homicidal death of his mother and father were caused by three gun shot injuries to each of them ?

¶235

In this regard, following circumstances emerge against appellant Sandeep Jain :-

¶236

49

¶237

A) Appellant Sandeep Jain had forbidden Chokidar Rohit Kumar Deshmukh to come in fateful night on his duty, who otherwise had the duty of watchman (Chowkidari) at night in that house.

¶238

B) Conduct of appellant Sandeep Jain i.e. despite six gun shots caused to both the deceased, the appellant who was sleeping at first floor about 15 ft far from room of deceased, came down only when his Bhanja Saurabh Golchha (P.W. 8) went in his room.

¶239

C) Country made pistol and cartridges were seized at the behest of appellant Sandeep Jain from Tata Ace vehicle stationed in the lane behind the house of appellant Sandeep Jain, which he allegedly threw after the incident from his balcony of first floor.

¶240

D) Blood stained shirt/kurta, gloves, etc. of appellant were seized at his behest.

¶241

E) Police dog after sniffing place of occurrence went in the room of appellant Sandeep Jain and barked upon him.

¶242

50

¶243

Circumstance – A & B (Conduct)

¶244

Rohit Kumar Deshmukh (P.W. 7) has stated in his deposition that since 30 years, he is working in the house of deceased Ravalmal Jain as peon in his office situated in his house and, therefore, he has developed familiar relation with deceased family. He has further stated that in night he also used to perform duty of watchman (chowkidar) in the house of deceased. He has further stated that after performing duty on 3012-2017, in the house of deceased in evening, appellant Sandeep Jain had said him not to come on duty in night of 31-122017 (fateful night), therefore, he had not come in night to perform his duty. Although he has not stated in his police statement Ex. D-2 that appellant Sandeep Jain had forbidden him on 30-12-2017 to come in his duty in the night of 31-12-2017 and in this regard, omission with regard to the date has been taken by learned Defence counsel in his cross-examination, but his statement that appellant Sandeep Jain had forbidden him to come on his duty in the night of 31-12-2017 has not even been rebutted in cross-examination. Non-mentioning the date in police statement Ex. D-2 is not found to be so fatal to discard his aforesaid statement. After all, he has been employee of their house for such a long period of 30 years and, therefore, he has developed familiar relation with the deceased family, then why this witness will make false statement against appellant Sandeep

¶245

51

¶246

Jain. Therefore, on the basis of deposition of Rohit Kumar Deshmukh (P.W. 7), it is proved that appellant Sandeep Jain had forbidden him to come on duty of watchman in the fateful night.

¶247

It has been proved that both the deceased were shot dead by 3 bullet injuries to each of them, thus, six gun shots were fired at them, which naturally would have made loud sounds for six times. Hearing such sound, Surji Bai (deceased) had called her Nati Saurabh Golchha (P.W. 8), who reached at the place of occurrence within 8 – 9 minutes. Till then, Surji Bai was also shot dead. Thereafter, Saurabh Golchha went in the room of appellant, which is said to be on first floor situated after 10 – 12 ft. stairs. As per deposition of Saurab Golchha, if any sound would be made in the room of ground floor, the same could be heard in the room of appellant Sandeep Jain. As has been stated above that, six gun shot injuries were caused to both the deceased persons, which naturally would have produced loud repeated sound, despite that, not coming down of the appellant Sandeep Jain to know about such loud sound and to know well beings of his parents creates serious doubt about his conduct.

¶248

Although, Saurabh Golchha (P.W. 8) has admitted the suggestion of learned Defence Counsel in his cross-examination para 19 that when he went to the room of appellant Sandeep Jain and knocked the door, then he asked that who is he, in half

¶249

52

¶250

sleepy condition, then he told about the incident to him, thereafter despite every effort made by Sandeep Jain, door of his room did not open, because it was bolted from outside, therefore, he opened the bolt of the door, thereafter Sandeeop Jain came down, but this fact has been neither stated by him in his examination-in-chief nor he has stated aforesaid fact in both merg reports or FIR lodged by him, which has also been stated by IO Bhavesh Sao (P.W. 15) in his deposition that Saurabh Golchha had not disclosed aforesaid fact while lodging merg / FIR or making statement under Section 161 of the Cr.P.C. Earlier not disclosing such material fact by Saurabh Golchha prior to recording of his cross-examination would show that aforesaid admission/disclosure of fact has been made by him afterthought with intention to defend the appellant Sandeep Jain who is his maternal uncle (Mama), and therefore, it is not found reliable.

¶251

Circumstances C and D (Memorandum and Seizure )

¶252

Ex. P-52 is memorandum statement of appellant Saurabh Jain, which was recorded by IO Bhavesh Sao (P.W. 15). In aforesaid disclosure statement Ex. P-52 , appellant Sandeep Jain has stated that he has put his gloves under the pillow of his bed. He has also hidden Chekdar Aasmani Colour Half Kurta containing blood stains below his bed and he has thrown pistol, magazine, cartridges in the lane from balcony of his house, out

¶253

53

¶254

of which pistol has fallen upon Tata vehicle and after opening the door of corridor and main gate, he had hanged key in the main door. On the basis of his aforesaid disclosure statement, IO Bhavesh Sao (P.W. 15) had seized one 7.65 caliber country made pistol along with empty magazine which were lying on Tata Ace vehicle bearing CG 04 JA 8984, 14 cartridges along with two empty cap of cartridge containing 7.65 kf on its butt in polythene packet, 12 nos. cartridge containing 7.65 kf on its butt in another polythene packet, one silver colour magazine containing 6 nos. cartridge containing 7.65 kf lying on Dala of aforesaid vehicle behind the house of deceased on being pointed by the appellant Sandeep Jain vide seizure memo Ex. P-53 and vide seizure memo Ex. P-54, two nos. black colour wooken gloves, two nos. nose mask green colour, one Aasmani colour Kurta containing blood stains, one mobile of Oppo company No. 70008 31319, one lock and one key were seized on being produced by appellant Sandeep Jain from his House. Aforesaid memorandum and seizure has been proved by Investigating Officer Bhavesh Sao, which has also been supported by witness of aforesaid proceedings Sekh Kaleem (P.W. 13), although who has also been observed as pocket witness, but seeing/finding aforesaid country made pistol, magazine cartridges has also been proved by Dr. T.L. Chandra (P.W. 6), Sr. Scientist, who has inspected the spot and prepared spot inspection report Ex. P-20.

¶255

54

¶256

In FSL report Ex. P-82, apart from other articles seized from the place of occurrence, in half Kurta (G), human blood has been reported found.

¶257

During the course of argument, learned Senior Advocate Dr. N.K. Shukla drew our attention that alleged seizure of country made pistol and cartridges had been made from lane (Gali), which is a public place and further, alleged memorandum and seizure were made after about 3 p.m., till then being public place, various persons might have moved from that lane, hence it cannot be held proved that those arms and ammunitions were only in the knowledge of appellant Sandeep Jain and those were seized at his behest. We agree with the aforesaid submission of learned Senior counsel to some extent, but Investigating Officer Bhavesh Sao (P.W. 15) has clearly stated in his deposition that since officers of Forensic Science Laboratory team had been called for and they reached at 11.30 am and they inspected the place of occurrence till 3.00 pm and, therefore, he had kept protected the place of occurrence and surroundings, and after completion of work by FSL team, he had seized articles and other materials from the place of occurrence and surroundings. Further, considering the other evidences available on record, discrepancies, pointed out by learned Sr. defence counsel are not found to be so serious, which could be able to discredit the circumstances appearing

¶258

55

¶259

against appellant Sandeep Jain.

¶260

Circumstance – E ( Sniffing / tracker Dog)

¶261

Investigating Officer Bhavesh Sao (P.W. 15) has deposed in his deposition that during investigation, the tracker dog had been called for, which was brought by the dog master Constable Amit Kumar Kurre (P.W. 4). Dog Master Amit Kurre (P.W. 4) has stated in his deposition that after sniffing the place of occurrence and various article lying there, the tracker dog went in the room of appellant Sandeep Jain and barked upon him. In this regard, report Ex. P-11 had been prepared, which also get support from deposition of I.O. Bhavesh Sao (P.W. 15). Although there is some discrepancy with regard to place of preparation of Ex. P- 11 in the deposition of aforesaid witnesses, but except that discrepancy, nothing has been elicited in cross-examination of aforesaid witnesses to disbelieve the fact that sniffer/tracker dog had been called and it barked upon appellant, after going to his room. Thus, this circumstance is also found proved against appellant Sandeep Jain.

¶262

Saurabh Golchha (P.W. 8) has admitted in his crossexamination that one ‘jalidar topi’ was seized from drawing room which was also sniffed by the dog, at that time, Sonraj Golchha was also present there, but this fact has neither been disclosed by him in his examination-in-chief nor alleged Sonraj Golchha

¶263

56

¶264

has been examined by the appellant Sandeep Jain to support aforesaid suggestion. In re-examination para 34 and 35, this witness himself has stated his ignorance that allegedly after sniffing jalidar Topi, the tracker dog was standing there or not. Thus, this exaggeration made by Saurabh Golchha further shows that he has brought aforesaid new fact with intention to give benefit to his maternal uncle (Mama) Sandeep Jain.

¶265

Thus, on the basis of aforesaid discussion, we find that appellant Sandeep Jain was present along with her father and mother (deceased persons) in the house and in the down hours (Bhor) of fateful night, his father and mother were shot dead by six bullets, which of course, would have made loud repeated sound, despite that, his behaviour is not found to be normal and bonafide, as he came down from his room only when his Bhanja Saurabh Golchha (P.W. 8) came in his room. Further, it has also been proved that appellant Sandeep Jain had forbidden Chokidar Rohit Kumar Deshmukh (P.W. 7) to come in fateful night in the duty of wachman ( Chokidari ) in their house and at his behest, country made pistol, cartridges, gloves and blood stained Checkdar Aasmani colour Kurta has been seized and tracker dog also barked upon him. Thus all the aforesaid chain of circumstances mentioned in para 46 of this judgment are found proved against the appellant Sandeep Jain.

¶266

57

¶267

Hon’ble Supreme Court in the case of Balvir Singh Vs. State of Uttarakhand (2023 SCC OnLine SC 1261), has held in para 44 as under:-

¶268

“….What lies at the bottom of the various Rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the Accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same Rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an Accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the Accused had a different intention that is a fact especially within his knowledge and which he must prove….”

¶269

We would like to note here that appellant Sandeep Jain

¶270

has not explained in any manner as to what had actually happened to his father and mother, more particularly, when it is

¶271

58

¶272

not in dispute that except those three persons, none was present in the house, and interference of outside persons is also not found in the house, rather, conduct of appellant that he had forbidden Chokidar Rohit Kumar Deshmukh (P.W. 7) to come in his duty of Watchman in the fateful night and despite firing at his father and mother six gun shots which would have made loud repeated sound, his conduct is not found to be bonafide. Other circumstances, as discussed above, are also found proved against the appellant.

¶273

As regards motive, it was contended by learned Senior Counsel, Dr. N.K. Shukla that prosecution has failed to prove motive on the part of appellant Sandeep Jain to commit murder of his own father and mother and in case of circumstantial evidence, motive to commit crime plays vital role. On the basis of deposition of defence witness Smt. Santosh Jain (D.W. 1) and workers of house of appellant Sandeep Jain namely Raju Sonwani (P.W. 5) and Rohit Kumar Deshmukh (P.W. 7), it is contended that being only son of deceased persons, appellant Sandeep Jain always took care of his parents whenever they need help, therefore, only on the basis of circumstantial evidence, appellant cannot be convicted.

¶274

We are not impressed from aforesaid submission of learned Sr. counsel. It is well settled and trite law that absence

¶275

59

¶276

of motive could be a missing link of incriminating circumstances, but once the prosecution has established the other incriminating circumstances to its entirety, absence of motive will not give any benefit to the accused. { See State of Gujarat Vs . Anirudhsing and another’ case [(1997) 6 SCC 514], Suresh Chandra Bahri Vs. State of Bihar [(1995) Supp. (1) SCC 80] and Ramesh Kumar alias Rameshwar Vs. State [(2010 Cri.L.J. 85 (Delhi High Court)).} As such, mere absence of motive would not be fatal to the prosecution case.

¶277

However, in the instant case, prosecution has alleged that due to lack of ideological harmony between father and son, the deceased father get scolding the appellant Sandeep Jain for reasons like, deceased Ravalmal Jain used to bring water from Shivnath river for Puja through his servant Rohit Kumar Deshmukh (P.W. 7) and others, which was used to be objected by appellant Sandeep Jain. Being father, Ravalmal Jain also disliked and criticized various activities and even he also used to threaten appellant Sandeep Jain that he will deprive him from his property. Due to all this, appellant Sandeep Jain was fed up of his father. Rohit Kumar Deshmukh (P.W. 7) has supported aforesaid fact upto some extent in his deposition in para 6 with regard to Ravalmal Jain regarding bringing water from Shivnath river. Driver Raju Sonwani (P.W. 5) has also admitted the suggestion of learned Special Public Prosecutor in his

¶278

60

¶279

deposition para 8 that deceased Ravalmal Jain was a short tempered person, hence everyone was afraid of him and appellant Sandeep Jain talked less to him and whatever talks have to be done, he talked with his father through his mother deceased Surji Bai. Thus, motive brought by prosecution is also found proved in the instant case. Hence, we are not impressed by the contention raised in this regard.

¶280

Thus, after appreciating the entire ocular, documentary, medical and scientific evidence, available on record, we do not find any illegality in appreciation of aforesaid evidence and arriving at a conclusion by learned trial Court as to the guilt of the appellant Sandeep Jain, convicting him for murder, by multiple gun shot injuries, of his father and mother Ravalmal Jain and Surji Bai respectively, warranting interference by this Court. Accordingly, we hereby confirm the conviction of the appellant Sandeep Jain recorded by learned Trial Court under Section 302 (Twice) of the Indian Penal Code and Section 25(1B)(a) and Section 27(2) of the Arms Act, 1959.

¶281

So far as conviction of appellant Bhagat Singh Gurudatta and appellant Shailendra Sagar is concerned, appellant Bhagat Singh Gurugatta has been implicated and convicted in the instant case only on the basis of memorandum statement of appellant Sandeep Jain, as he has stated in his memorandum

¶282

61

¶283

statement Ex. P-52 that he had purchased alleged seized country made pistol and cartridges from Bhagat Singh Gurudatta and other co-accused Shailendra Sagar has been implicated on the basis of memorandum statement Ex. P-56 of appellant Bhagat Singh Gurudatta, as he has stated that he had provided alleged country made pistol and cartridges to Sandeep Jain from Shailendra Sagar. In this regard, appellant Shailendra Sagar has also made his alleged memorandum statement Ex. P-57. Except such memorandum, no other evidence has been adduced by the prosecution to convict them in instant case.

¶284

Section 27 of the Evidence Act is an exception of Section 25 and 26 of the Evidence Act, which provides that confession made to police officer shall not be proved against an accused of any offence. The information given by the accused at the time of recording statement under Section 27 of the Evidence Act is not admissible against other co-accused person, even under Section 10 of the Evidence Act. It has been held by the Apex Court in the case of Sardul Singh Vs. State of Bombay [AIR 1957 SC 747]. Further, relying on the aforesaid judgment, in the case of State of Gujrat Vs. Mohd. Atik [(1998) 4 SCC 351], it has been held that “ Thus, the principle is no longer res integra that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act.” Therefore, it is not admissible

¶285

62

¶286

against other accused persons even in the case of charge of criminal conspiracy. This view has further been followed by the Apex Court in the case of Kehar Singh and others Vs. State (Delhi Administration) [(1988) 3 SCC 609].

¶287

Thus, the memorandum statement of accused implicating co-accused persons, is hit by provisions of Section 25 and 26 of the Evidence Act, and except that memorandum statement, nothing has been proved by prosecution to connect or to hold guilty to the appellant Bhagat Singh Gurudatta and Shailendra Sagar. Therefore, we set aside conviction and sentence of appellant Bhagat Singh Gurudatta and Shailendra Sagar for the offence under Section 25 (1-B)(a) of the Arms Act, imposed by learned trial Court.

¶288

Death Sentence

¶289

Now, the next question for consideration before us is the death sentence awarded by learned Upper Sessions Judge to the appellant Sandeep Jain directing that he should be hanged till his death and it has been sent to us for confirmation in accordance with Section 366 of the Cr.P.C.

¶290

To substantiate aforesaid issue, question arise as to whether this case falls under the category of ‘rarest of rare cases’ justifying capital punishment . Their Lordships of

¶291

63

¶292

Supreme Court in catena of judgments have laid down principles for awarding capital punishment, for which balance between aggravating circumstances and mitigating circumstances have to be struck. It has also been held that, 7 other circumstances like, age of accused, possibility of reformation and lack of intention of murder have also to be gone into the judicial mind.

¶293

In the case of conviction under Section 302 of the IPC or any conviction for an offence punishable with death or in the alternative imprisonment for life, the Court is required to assign special reasons for awarding such penalty and the special reason for awarding death sentence in accordance with subsection (3) of Section 354 of the CrPC. Sub-section (3) of Section 354 of the CrPC reads as under:-

¶294

“S. 354 (3) : When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”

¶295

The language of Section 354(3) of the CrPC demonstrates the legislative concern and the conditions which need to be satisfied prior to imposition of death penalty. The words, 'in the

¶296

64

¶297

case of sentence of death, the special reasons for such sentence' unambiguously demonstrate the command of the legislature that such reasons have to be recorded for imposing the punishment of death sentence i.e. the Court is required to hold that it is a case of ‘rarest of rare’ warranting imposition of only death sentence.

¶298

While dealing with the question of imposing death penalty, in the matter of Sushil Murmu v. State of Jharkhand (2003 AIR SCW 6782) , the Supreme Court after relying on Bachan Singh Vs. State of Punjab (AIR 1980 SC 898) has summarized the law with regard to imposition of death sentence on the basis of guidelines emerges from the case of Bachan Singh (supra). Brutal, grotesque, diabolical, revolting or dastardly manner in which murder committed has been considered as rarest of rare case for imposition of death penalty. Multiple murders of almost all the members of a family or a member of particular caste, community or locality has also been considered as rarest of rare case for imposing death penalty. While dealing with the imposition of death penalty in the aforesaid cases, the Supreme Court has also considered it to be a rarest of rare case in case of murder of a innocent child or a helpless woman or old or infirm person or a person vis-à-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community and for such commission of

¶299

65

¶300

murders, death penalty can be imposed.

¶301

While dealing with the question of imposition of death penalty for commission of murder, the Supreme Court in Bachan Singh (supra) held that provision of death penalty as an alternative punishment for murder is not violative of Article 19 of the Constitution of India. Paragraph 132 of the report is relevant and reads as under:

¶302

“132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioner’s argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If notwithstanding the view of the Abolitionists

¶303

66

¶304

to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people’s representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilized countries in the world, if the framers of the Indian Constitution were fully aware as we shall presently show they were of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35^th Report and subsequent Reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235 (2) and 354 (3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 19721973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal

¶305

67

¶306

Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter or the ethos of Article 19.”

¶307

After considering Bachhan Singh (supra), in the matter of

¶308

Machhi Singh v. State of Punjab [(1983) 3 SCC 470] , the Supreme Court has summarized the instances of imposition of death sentence in paragraph 38 which reads thus:

¶309

“38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh's case:-

¶310

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;

¶311

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.

¶312

(iii) Life Imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances

¶313

68

¶314

of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;

¶315

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

¶316

As held by the Supreme Court in the matters of Panchhi and others v. State of U.P [(1998) 7 SCC 177] , Jai Kumar v. State of M.P. [(1999) 5 SCC 1) and State of U.P. v. Satish [(2005) 3 SCC 114) imposition of life imprisonment is normal rule and imposition of death sentence is exception. In case of imposing death sentence, the prosecution is required to prove that it was a case of rarest of rare and no other sentence except death sentence is adequate.

¶317

While dealing with the question of brutality in the matter of Ashrafi Lal and Sons v. State of U.P. (AIR 1987 SC 1721) , the Supreme Court has held that it is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment. In case of gruesome murder of two innocent girls to wreak their personal vengeance over the dispute, the death sentence awarded to the

¶318

69

¶319

appellants was confirmed. Paragraph 3 reads as under:

¶320

“3. We have heard learned counsel for the appellants mainly on the question of sentence but we are not impressed with his submission. The two appellants Ashrafi Lal and Babu were guilty of a heinous crime out of greed and personal vengeance and deserve the extreme penalty. This case falls within the test ‘rarest of of rare cases’ as laid down by this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684 : (AIR 1980 SC 898) as elaborated in the later case of Machhi Singh v. State of Punjab (1983) 3 SCC 470 : (AIR 1983 SC 957). The punishment must fit the crime. These were cold-blooded brutal murders in which two innocent girls lost their lives. The extreme brutality with which the appellants acted shocks the judicial conscience. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided by S. 302 of the Penal Code. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment. The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of the two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother Smt. Bulakan is nothing but death. As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants Asharfi Lal and Babu is confirmed.”

¶321

While dealing with the question of brutality, in the case of

¶322

Subhash Ramkumar Bind @ Vakil and another v. State of

¶323

70

¶324

Maharashtra (AIR 2003 SC 269) , the Supreme Court has held that in every incident of murder brutality is involved but that brutality by itself will not bring it within the ambit of rarest of rare cases for imposition of death penalty. The requirement to prove the fact that brutality in the present case was exceptional and rarest of rare also to show that there is something uncommon about the crime which renders the sentence of imprisonment of life inadequate and called for death sentence.

¶325

While dealing with the question of imposition of death sentence affirmed by the Supreme Court, the Supreme Court in the matter of Sonu Sardar v. State of Chhattisgarh [(2012) 4 SCC 97) , in which case death sentence upon young male has been imposed, has held that the appellant though young but having no consideration for human lives and his criminal propensities being beyond reform, is a menace to the society, death sentence is proper being a case of rarest of rare, and observed in paragraphs 18 to 22 as follows: -

¶326

“18. As against these aggravating circumstances, the trial court did not find any mitigating circumstance in favour of the appellant to avoid the death penalty. This is, therefore, not one of those cases in which the trial court has not recorded elaborate reasons for awarding death sentence to the appellant as contended by the learned counsel for the appellant.

¶327

Regarding the role of the appellant in the commission of the offence of dacoity and murder,

¶328

71

¶329

we have already found that the turban and T-shirt of the appellant, which were seized and sent for examination to the Forensic Science Laboratory, had presence of human blood. We have also found that the axe and the iron rod, which were recovered pursuant to the statement of the appellant, had also bloodstains. We have also found from the evidence of PW-1 that when her mother was cooking food and came out on hearing the commotion, the appellant was demanding money from her father and her father gave to the appellant all the money which he was having in his pocket.

¶330

There is, therefore, clear and definite evidence in this case to show that the appellant not only participated in the crime, but also played the lead role in the offence under Section 396 IPC. This is, therefore, not a case where it can be held that the role of the appellant was not such as to warrant death sentence under Section 396 IPC.

¶331

In a recent judgment in Sunder Singh v. State of Uttaranchal [(2010) 10 SCC 611)] this Court found that the accused had poured petrol in the room and set it to fire and closed the door of the room when all the members of the family were having their food inside the room and, as a result, five members of the family lost their lives and the sixth member of the family, a helpless lady, survived. This Court held that the accused had committed the crime with premeditation and in a cold-blooded manner without any immediate provocation from the deceased and all this was done on account of enmity going on in respect of the family lands and this was one of those rarest of rare cases in which death sentence should be imposed.

¶332

The facts in the present case are no different. Five members of a family including two minor children and the driver were ruthlessly killed by the use of a knife, an axe and an iron rod and with the

¶333

72

¶334

help of four others. The crime was obviously committed after premeditation with absolutely no consideration for human lives and for money. Even though the appellant is young, his criminal propensities are beyond reform and he is a menace to the society. The trial court and the High Court were therefore right in coming to the conclusion that this is one of those rarest of rare cases in which death sentence is the appropriate punishment.”

¶335

On the basis of law enunciated by the Supreme Court on the subject i.e. for imposition of death sentence, the Supreme Court in the matter of Ramnaresh and others v. State of Chhattisgarh [(2012) 4 SCC 257) has summarized the instances for imposition of death sentence in which the sentence other than death sentence would not be adequate or meaningful, and has observed in paragraph 76 as follows: -

¶336

“76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh (supra) and thereafter, in Machhi Singh (supra). The aforesaid judgments, primarily dissect these principles into two different compartments—one being the “aggravating circumstances” while the other being the “mitigating circumstances”. The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final

¶337

73

¶338

conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354(3) CrPC.

¶339

Aggravating Circumstances :

¶340

(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.

¶341

(2) The offence was committed while the offender was engaged in the commission of another serious offence.

¶342

(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.

¶343

(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.

¶344

(5) Hired killings.

¶345

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

¶346

(7) The offence was committed by a person while in lawful custody.

¶347

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance,

¶348

74

¶349

murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC.

¶350

(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

¶351

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

¶352

(11) When murder is committed for a motive which evidences total depravity and meanness.

¶353

(12) When there is a cold-blooded murder without provocation.

¶354

(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

¶355

Mitigating Circumstances :

¶356

(1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

¶357

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

¶358

The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

¶359

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of

¶360

75

¶361

his criminal conduct.

¶362

(5) The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

¶363

(6) Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

¶364

(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.”

¶365

The Supreme Court has summarized following principles for consideration for imposition of capital

¶366

sentence: -

¶367

(1) The Court has to apply the test to determine, if it was the “rarest of rare” case for imposition of a death sentence.

¶368

(2) In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice.

¶369

(3) Life imprisonment is the rule and death sentence is an exception.

¶370

76

¶371

(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.

¶372

(5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.”

¶373

Thereafter, the Supreme Court in the matter of Mofil Khan and another v. State of Jharkhand [(2021 SCC OnLine SC 1136) relying upon its earlier judgment in Rajendra Pralhadrao Wasnik Vs. State of Maharashtra [(2019) 12 SCC 460] and Mohd. Mannan v. State of Bihar [(2019) 16 SCC 584] held that the possibility of reformation and rehabilitation of the convict is an important factor which has to be taken into account as a mitigating circumstance before sentencing him to death and observed as under:-

¶374

“10. It is well-settled law that the possibility of reformation and rehabilitation of the convict is an important factor which has to be taken into account as a mitigating circumstance before sentencing him to death. There is a bounden duty cast on the Courts to elicit information of all the relevant factors and consider those regarding the possibility of reformation, even if the accused remains silent. A scrutiny of the judgments of the trial court, the High Court and this Court would indicate that the sentence of death is imposed by taking into account the brutality of the crime. There is no reference to

¶375

77

¶376

the possibility of reformation of the Petitioners, nor has the State procured any evidence to prove that there is no such possibility with respect to the Petitioners. We have examined the socio-economic background of the Petitioners, the absence of any criminal antecedents, affidavits filed by their family and community members with whom they continue to share emotional ties and the certificate issued by the Jail Superintendent on their conduct during their long incarceration of 14 years. Considering all of the above, it cannot be said that there is no possibility of reformation of the Petitioners, foreclosing the alternative option of a lesser sentence and making the imposition of death sentence imperative. Therefore, we convert the sentence imposed on the Petitioners from death to life. However, keeping in mind the gruesome murder of the entire family of their sibling in a pre-planned manner without provocation due to a property dispute, we are of the opinion that the Petitioners deserve a sentence of a period of 30 years.”

¶377

The Supreme Court in the matter of Manoj and others v.

¶378

State of Madhya Pradesh [(2023) 2 SCC 353] reviewing the entire case laws on the point beginning from Bachan Singh (supra) held in paragraph 237 as under: -

¶379

“237. Mitigating factors in general, rather than excuse or validate the crime committed, seek to explain the surrounding circumstances of the criminal to enable the judge to decide between the death penalty or life imprisonment. An illustrative list of indicators first recognised in Bachan Singh (supra) itself:

¶380

78

¶381

“Mitigating circumstances.—In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

¶382

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

¶383

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

¶384

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

¶385

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

¶386

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

¶387

(6) That the accused acted under the duress or domination of another person.

¶388

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

¶389

These are hardly exhaustive; subsequently, this court in several judgments has recognised, and considered commutation to life imprisonment, on grounds such as young age (Mahesh Dhanaji Shinde v. State of Maharashtra (2014) 4 SCC 292, Gurvail Singh v. State of Punjab (2013) 2 SCC 713, etc.), socio-economic conditions (Mulla and another v. State of U.P. [(2010) 3 SCC 508]; Kamleshwar Paswan v. U.T. Chandigarh [(2011) 11 SCC 564];

¶390

79

¶391

Sunil Gaikwad v. State of Maharashtra [(2014) 1 SCC 129] , mental illness (Shatrughan Chauhan v. Union of India [(2014) 3 SCC 1], criminal antecedents (Dilip Premnarayan Tiwari v. State of Maharashtra, [(2010) 1 SCC 775)], as relevant indicators on the questions of sentence. Many of these factors reflect demonstrable ability or merely the possibility even, of the accused to reform (i.e. (3) and (4) of the Bachan Singh list), which make them important indicators when it comes to sentencing.”

¶392

Their Lordships further emphasised the need for presentence hearing – opportunity and obligation to provide material on the accused and in paragraphs 246 and 247 held as

¶393

under: -

¶394

“246. However, this too, is too little, too late and only offers a peek into the circumstances of the accused after conviction. The unfortunate reality is that in the absence of well-documented mitigating circumstances at the trial level, the aggravating circumstances seem far more compelling, or overwhelming, rendering the sentencing court prone to imposing the death penalty, on the basis of an incomplete, and hence, incorrect application of the Bachan Singh test.

¶395

The goal of reformation is ideal, and what society must strive towards – there are many references to it peppered in this court’s jurisprudence across the decades – but what is lacking is a concrete framework that can measure and evaluate it. Unfortunately, this is mirrored by the failure to implement prison reforms of a meaningful kind, which has left the process of incarceration and prisons in general, to be a space of limited potential for systemic reformation. The goal of reformative

¶396

80

¶397

punishment requires systems that actively enable reformation and rehabilitation, as a result of nuanced policy making. As a small step to correct these skewed results and facilitate better evaluation of whether there is a possibility for the accused to be reformed (beyond vague references to conduct, family background, etc.), this court deems it necessary to frame practical guidelines for the courts to adopt and implement, till the legislature and executive, formulate a coherent framework through legislation. These guidelines may also offer guidance or ideas, that such a legislative framework could benefit from, to systematically collect and evaluate information on mitigating circumstances.”

¶398

Thereafter, their Lordships issued practical guidelines to collect mitigating circumstances and observed in paragraphs 248 to 252 as under: -

¶399

“248. There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage.

¶400

To do this, the trial court must elicit information from the accused and the state, both. The state, must – for an offence carrying capital punishment – at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person’s frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors

¶401

81

¶402

(1), (5), (6) and (7) spelled out in Bachan Singh . Even for the other factors of (3) and (4) – an onus placed squarely on the state – conducting this form of psychiatric and psychological evaluation close on the heels of commission of the offence, will provide a baseline for the appellate courts to use for comparison, i.e., to evaluate the progress of the accused towards reformation, achieved during the incarceration period.

¶403

Next, the State, must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows:

¶404

a) Age

¶405

b) Early family background (siblings, protection of parents, any history of violence or neglect)

¶406

c) Present family background (surviving family members, whether married, has children, etc.)

¶407

d) Type and level of education

¶408

e) Socio-economic background (including conditions of poverty or deprivation, if any)

¶409

f) Criminal antecedents (details of offence and whether convicted, sentence served, if any)

¶410

g) Income and the kind of employment (whether none, or temporary or permanent etc);

¶411

h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc.

¶412

This information should mandatorily be available to the trial court, at the sentencing stage. The accused too, should be given the

¶413

82

¶414

same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances.

¶415

Lastly, information regarding the accused’s jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e., probation and welfare officer, superintendent of jail, etc.). If the appeal is heard after a long hiatus from the trial court’s conviction, or High Court’s confirmation, as the case may be – a fresh report (rather than the one used by the previous court) from the jail authorities is recommended, for an more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress, and reveal post-conviction mental illness, if any.

¶416

It is pertinent to point out that this court, in Anil v. State of Maharashtra [(2014) 4 SCC 69] has in fact directed criminal courts, to call for additional material:

¶417

“Many a times, while determining the sentence, the courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation, while it is the duty of the court to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. The facts, which the courts deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as

¶418

83

¶419

already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with the offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case.”

¶420

(emphasis supplied)

¶421

We hereby fully endorse and direct that this should be implemented uniformly, as further elaborated above, for conviction of offences that carry the possibility of death sentence.”

¶422

In the light of aforesaid principle of law, if we scrutinize instant case in the light of aggravating circumstances and mitigating circumstances of the present case to decide whether present case falls within the category of rarest of rare case, whether there is no chance of reformation of the appellant Sandeep Jain, whether imprisonment for life which is rule, would not be adequate and would not meet the ends of justice and further whether imprisonment of death penalty would be the only appropriate and right sentence, as has been discussed above, to impose capital punishment, the law requires the Court to record special reasons for awarding such extreme sentence, therefore, it is required to be considered the matter like nature of offence, how and under what circumstances, the death was committed, the extent of brutality, with which, the offence was committed, the motive of the offence, any provocation or

¶423

84

¶424

aggravating circumstances at the time of commission of crime, possibility of reform or rehabilitation of the convict, adequacy of sentence of life imprisonment and other attending circumstances. It is also required to be considered, whether the State has brought any evidence to establish that the concerned appellant accused cannot be reformed or, rehabilitated or as to whether effective opportunity of hearing was provided to the appellant prior to awarding such punishment.

¶425

In instant case, learned Additional Sessions Judge after considering aggravating and mitigating circumstances described in para 239 of its judgment, while awarding capital punishment to the appellant Sandeep Jain, has mentioned following special reasons in para 244 of the impugned judgment :-

¶426

“1. अपराधएकपूर्व�नि�योजि�तएर्वंसमा�र्वपरिरर्वारकेसदस्योंका

¶427

रोंगटेखड़ाकरदे�ेर्वालाहै।

¶428

इस घट�ा से समा� र्व आम ��ता के मध्य रिरश्तों के प्रतित एक अनिर्वश्वास र्व भय का र्वातार्वरण नि�र् म ित हुआ है।

¶429

असहाय एर्वं प्रतितरक्षा कर�े में असमर्थ� र्वृद्ध माता-निपता की हत्या की गई है।

¶430

भुक्तभोनिगयों व्दारा घट�ा का कोई प्रतितरोध �हीं निकया �ा सका है।

¶431

सम्पूण� घट�ा में निकसी भी मृतक का कोई दोष �हीं र्था।

¶432

85

¶433

इस अमा�ुनिषक बब�रतापूण� की गई हत्यायें अत्यतिधक पाशनिर्वक, निर्वकृत, पैशाति>क, निर्वभत्स र्व कायरतापूण� है �ो सम्पत्ति@ प्रानिA के हेतुक भी की गई है, �ो आरोपी सन्दीप �ै� की सह� दुष्टता तर्था �ी>ता का साक्ष्य देता है और इससे समुदाय की सामूनिहक >ेत�ा को आघात पहुं>ता है।

¶434

मृतकों�ेआरोपीकेप्रतित�तोकोईअत्या>ारनिकयाहैऔर�ही उसेनिकसीप्रकारकीशारीरिरकअर्थर्वाआर्थिर्थकक्षतितपहुं>ायाहै।

¶435

ऐसी भी कोई परिरस्थिस्र्थतित प्रकट �हीं हुई है जि�ससे यह उपदर्थिशत हो निक, आरोपी को कोई पश्चाताप हो।

¶436

ऐसी कोई परिरशम�कारी परिरस्र्थतित �हीं पाई �ाती जि�ससे आरोपी को मृत्युदंड का दंडादेश � निदया �ार्वे ।"

¶437

Perusal of impugned judgment of conviction and order of sentence passed by learned trial Court would show that, trial Court has convicted appellant Sandeep Jain and imposed death penalty on very same day. Considering that it has been committed in a very cruel and inhuman manner, which is an extremely brutal, grotesque, diabolical, revolting or dastardly manner, that too, of his own father and mother and therefore, such offence of appellant affects the entire moral fibre of the society, hence instant case falls under rarest of rare cases and therefore, the appellant Sandeep Jain has been awarded capital punishment.

¶438

86

¶439

In instant case, appellant Sandeep Jain is a son of both the deceased and he committed murder of his father and mother mainly because there was lack of ideological harmony between them, as has been stated in preceding paragraphs. Murder was committed by him by 3 gun shot injuries to each of them, hence no doubt, such henious crime should be depricated and no amount of criticism can be given to such grusome act, that too, of his own father and mother. But perusal of impugned judgment would show that the trial Court has not taken into consideration the probability of the appellant being reformed and rehabilitated, appellant has also not been given effective opportunity of hearing on the question of sentence, as held by Hon’ble Supreme Court in case of Mohd. Mannan (supra). Similarly, no evidence was brought on record on behalf of prosecution to prove before the Court that the appellant Sandeep Jain would be menace to the society or he has criminal antecedent or he cannot be reformed or rehabilitated by producing material about his negative conduct in jail and no opportunity was given to the accused to adduce evidence in this regard, as held by Supreme Court in the case of Rajendra Pralhadrao Wasnik (supra) and Manoj (supra) . Although in the instant case, appellant Sandeep Jain has caused brutal murder of his father and mother, hence his act shocks the conscience of the Court as well as the society at large, but, yet, motive of crime is not found so

¶440

87

¶441

grievous in nature i.e. only because deceased father did not like his accused son’s various conduct / attitude and, therefore, he used to scold him. Thus, due to such trivial issues instant crime of double murder, has been committed by accused Sandeep Jain. Considering fact and circumstances of the instant case, more particularly, in view of the law laid down by Hon’ble Apex Court, upon thoughtful consideration, we are of the view that extreme sentence of capital punishment is not warranted in the instant case and this case does not fall in the category of ‘rarest of rare case’. However, considering the fact that firstly, appellant Sandeep Jain shot his father in the corridor near washroom, hearing noise when his mother deceased Surji Bai was calling her Nati Saurabh Golchha on mobile phone, then appellant fearing disclosure of his crime, shot his innocent mother Surji Bai also. Therefore, in our considered view, imprisonment for life to the extend of remainder of natural life of the appellant Sandeep Jain would be complete and adequate to meet the ends of justice. Therefore, we direct commutation of death sentence into imprisonment for life to the extent for remainder of natural life of appellant Sandeep Jain.

¶442

Consequently, Cr. Ref No. 1/2023 made by the Additional Sessions Judge, Durg to the extent of confirmation of imposition of death sentence to appellant Sandeep Jain is rejected accordingly.

¶443

88

¶444

Cr. A. No. 272/2023 filed by appellants Bhagat Singh Gurudatta and Shailendra Sagar is allowed. Their conviction and sentence imposed by the impugned judgment is set aside/ quashed. They are acquitted of the charge leveled against them.

¶445

Appellants Bhagat Singh Gurudatta and Shailendra Sagar are on bail. They need not surrender. They are directed to file personal bond and two sureties in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Cr.P.C.

¶446

However, Cr.A. No. 507/2023 filed on behalf of appellant Sandeep Jain is partly allowed. His conviction under Section 302 of the IPC is maintained, but, sentence of death imposed upon him is commuted to life imprisonment by maintaining the fine amount. We further direct that life sentence must extend to the imprisonment for remainder of natural life of the appellant/ accused Sandeep Jain. His conviction under Section 25(1-B)(a) and Section 27(2) of the Arms Act is also affirmed. However, since he has been sentenced for 5 years for the offence under Section 25(1-B)(a) of the Arms Act, which was not provided in the Act, at the time of incident, as amendment for such punishment was made effective from 14-12-2019, therefore, we reduce aforesaid sentence for 3 years. In the result, Appellant/accused Sandeep Jain is convicted and sentenced as

¶447

89

¶448

under :-

¶449

APPELLANT SANDEEP JAIN

¶450

Conviction		Sentence	Default stipulation
Section 302 (Twice) of the IPC	Imprison to the remaind natural fine of (twice)	ment for life extent for er of his life, and pay Rs. 1,000/-	Additional RI for 6 months for each fine sentence.
25(1-B)(a) of the Arms Act	RI for fine of (twice)	3 years and Rs. 1,000/-	Additional RI for 6 months
27(2) of the Arms Act	RI for fine of (twice)	10 years and Rs. 1,000/-	Additional RI for 6 months.

¶451

All the substantive jail sentences are directed to run concurrently. Other stipulations of impugned judgment shall remain intact.

¶452

Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.

¶453

(Naresh Kumar Chandravanshi) (Ramesh Sinha) Judge Chief Justice

¶454

Order date : 01, December, 2023

¶455

Pathak/-

Bhagat Singh Gurudutta v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Bhagat Singh Gurudutta v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ruppi Resources Pvt. Ltd. Vs Girish Tikariha

Deep Ram Sao Vs Shri Abhay Kumar Jaisawal

Shrawan Sonjhari Vs State of Chhattisgarh

Khilawan Das Manikpuri Vs State of Chhattisgarh

Shiv Balak Ram Yadav Vs Deleted a.N.Upadhayaya

In Referance of State of Chhattisgarh Vs Sandeep Jain