Partly allowed

Lalchand S/O Shri Kaluram Mehra B/C Mehra v. State of Rajasthan through Pp

Rajasthan HC15 Mar 2019CRLAD/28/2019

Case brief

AI extract

What is this about?

High Court declined death reference under Section 302 IPC, holding the instant case does not qualify as 'rarest of rare'. Conviction upheld but death sentence commuted to life imprisonment due to procedural non-compliance regarding mitigation assessment and lack of antecedents.

What did the court decide?

Conviction upheld for Sections 302 and 460 IPC; death sentence commuted to life imprisonment; fines set aside on both counts.

Lalchand S/O Shri Kaluram Mehra B/C Mehra Vs… — Murder and Culpable Homicide | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

D.B. Criminal Death Reference No. 8/2018

¶3

State Of Rajasthan, Through P.p.

¶4

----Petitioner

¶5

Versus

¶6

Lalchand S/o Kaluram Mehra B/c Mehra, Aged About 38 Years, R/o Koli Mohalla Manohar Thana Distt. Jhalawar Raj.

¶7

----Respondent

¶8

Connected With

¶9

D.B. Criminal Appeal (Db) No. 28/2019

¶10

Lalchand S/o Shri Kaluram Mehra B/c Mehra, Aged About 38 Years, R/o Koli Mohalla Manoharthana Dist. Jhalawar At Present In Central Jail Kota

¶11

----Petitioner

¶12

Versus

¶13

State Of Rajasthan Through Pp, Raj.

¶14

----Respondent

¶15

DB Cr. Death	:
Reference No.8/2018
For the State For the Complainant	: : Ms. Rekha Madnani PP Mr. Ashving Garg for the complainant
For the Accused	: Mr. Biri Singh Sinsinwar Sr. Counsel with Mr. Harendra Singh Amicus Curiae for the appellant
D.B. Cr. Appeal No. 28/2019	:
For the Accused	: Mr. Biri Singh Sinsinwar Sr. Counsel with Mr. Harendra Singh Amicus Curiae for the appellant
For the State For the Complainant	: : Ms. Rekha Madnani PP Mr. Ashving Garg for the complainant

¶16

HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE G R MOOLCHANDANI

(2 of 13)

[CRLDR-8/2018]

-/Judgment/-

15/03/2019

Per: Kanwaljit Singh Ahluwalia, J (ORAL)

¶22

Lalchand son of Kaluram Mehra, before the date of occurrence was employed as Driver by Dipendra Gupta the complainant P.W.1. It has come in evidence that few days before the occurrence, the services of the Lalchand were dispensed with by Dipendra Gupta (P.W.1). Dipendra Gupta (P.W.1) in a car accident had suffered fracture of spine and his lower portion of the body became paralyzed. He used to remain on the wheel-chair.

¶23

The case of the prosecution, in nut-shell is that on 21.8.2015 between 9:00 to 9:20 PM, when Swati Gupta wife of complainant Dipendra Gupta had gone out of the house to park the car inside the main gate, Lalchand accused appellant came on Suzuki motorcycle and caused her many injuries with knife, resultantly, Swati Gupta died.

¶24

Dipendra Gupta (P.W.1) had presented written report (Exhibit-P/1) and on basis thereof, a formal FIR (Exhibit-P/2) bearing No.334/2015 was registered at Police Station R.K. Puram, Kota City. The above said FIR was investigated and report of investigation under Section 173 Cr.P.C. was submitted and the same was committed to the court of Sessions. Report of investigation (Challan) was entrusted for the trial to the court of Additional Sessions Judge No.4, Kota.

¶25

The trial court formulated charges, the same were denied by the accused Lalchand and he claimed trial. The said court vide impugned judgment dated 13.12.2018 held Lalchand accused guilty of offences under Section 302 and 460 IPC.

¶26

(3 of 13) [CRLDR-8/2018]

¶27

The trial Judge, vide a separate order of even date for the offence under Section 302 IPC awarded death sentence upon the accused Lalchand and a fine of Rs.20,000/- in default thereof to undergo one year S.I. For the offence under Section 460 IPC, the trial Judge awarded ten years RI and a fine of Rs.10,000/- in default thereof to further undergo six months SI.

¶28

To comply with Section 366 Cr.P.C., the trial Judge has sent Death Reference D.B. Criminal Death Reference No. 8/2018 to this Court. Lalchand aggrieved against his conviction and sentence has also filed D.B. Criminal Appeal (DB) No. 28/2019 before this Court. By this common judgment we shall decide Death Reference alongwith Criminal Appeal filed by the accused Lalchand.

¶29

In the present case, criminal proceedings were set into motion on the basis of written report (Exhibit-P/1) lodged by Dipendra Gupta (P.W.1). The written report (Exhibit-P/1) when translated into English, reads as under:-

¶30

Subject: Presentation of report for taking legal action.

¶31

Sir,

¶32

It is submitted that I am resident of E-103 Srinath Puram. Name of my wife is Swati Gupta. Today on 21.8.2015 between 9:00 to 9:20 PM my wife in car No. RJ 20 CA 9701 came inside the house through main gate and after locking the car when she went to close the main gate, at that time, our driver Lalchand came on a Suzuki motorcycle. He was armed with a weapon like knife. Immediately on coming, he started giving blows in quick succession on the lower portion of the body of my wife. He caused 8-10 blows. My wife fell on the gate in the pool of blood. I being handicapped could not help her. Upon raising noise by me and my wife, number of persons

¶33

(4 of 13)

¶34

[CRLDR-8/2018]

¶35

which included men and women gathered at the spot. They took my wife to the hospital. I am presenting report. Legal action be taken. He has caused injuries to my wife with an intention to kill her. My wife during treatment has died in the hospital.

¶36

Dipendra Gupta s/o Suresh Mohan Gupta by Caste Mahajan Age 37 years

¶37

R/- E103 Srinath Puram, Kota (Raj.)”

¶38

The above said written report (Exhibit-P/1) was presented on 21.8.2015 at 11:10 PM at the house of the complainant. On the basis of written report (Exhibit-P/1), formal FIR (Exhibit-P/2) on the same day at 11:30 PM was registered at Police Station R.K. Puram, Kota City.

¶39

We may notice here that in the present case, FIR was lodged promptly. In the version divulged by the complainant, within one hour of the occurrence, name of accused had surfaced.

¶40

In the present case to prove the case against the appellant, the prosecution examined thirty two witnesses namely Dipendra Gupta (P.W.1), Shivprasad Sharma (P.W.2), Pankaj Agarwal (P.W.3), Ashok Sharma (P.W.4), Himanshu Gupta (P.W.5), Manoj Kumar (P.W.6), Vinay (P.W.7), Mukesh Agarwal (P.W.8), Suresh Kumar (P.W.9), Nisar Ahmed (P.W.10), Arun Sharma (P.W.11), Satish Kumar (P.W.12), Abhikaran Shrangi (P.W.13), Mukesh Kumar (P.W.14), Dr. Surendra Meena (P.W.15), Dr. Vinod Garg (P.W.16), Amar Chand (P.W.17), Kalyan Sinh (P.W.18), Narendra Kumar Agarwal (P.W.19), Ashok Kumar (P.W.20), Prakahar Joshi (P.W.21), Vishal Gupta (P.W.22), Milan Chouhan (P.W.23), Pooranmal (P.W.24), Ashok Kumar Garg (P.W.25), Dr. Nilesh Jain (P.W.26), Suchidanand (P.W.27), Rekha Hingad

¶41

(5 of 13)

¶42

[CRLDR-8/2018]

¶43

(P.W.28), Phool Singh (P.W.29), Narendra Singh (P.W.30), Narain (P.W.31) and Jaiprakash (P.W.32).

¶44

Shri Biri Singh Sinsinwar Senior Advocate alongwith Shri Harendra Singh, who was appointed as Amicus Curiae has ably assisted us. We may notice that on 12.2.2019, a co-ordinate Bench of this Court had passed the following order:-

¶45

“Ms. Laxmi and Ms. Payal, daughters of accused along with maternal uncle – Mr. Heera Lal are present.

¶46

It is stated that after the conviction of their father, their mother is earning but it is not sufficient to carry on livelihood. In all, they are seven family members which includes four sisters, grand-father and grand-mother.

¶47

It is also stated that till date they have not paid fee to the Advocate so engaged by them.

¶48

Taking into consideration the financial condition of the accused, the counsel so engaged is ordered to be paid the fee by the Rajasthan State Legal Services Authority.

¶49

Copy of this order be sent to the Rajasthan State Legal Services Authority for the needful and to the counsel so appointed by the accused-appellant.

¶50

List on 27^th February, 2019.”

¶51

Shri Biri Singh Sinsinwar Sr. Advocate assisted by Shri Harendra Singh has informed us that besides the testimony of Dipendra Gupta (P.W.1), the CCTV footage copied in DVR, was played in the court in presence of the accused appellant and counsel for the parties. We are further informed that on the night of incident, appellant was arrested vide Exhibit-P/10 and an injury was found on his left knee (Exhibit-P/40). We are also informed that recovery of weapon was also affected from the accused alongwith blood stained T-shirt vide Exhibit-P/36 and Exhibit-P/17, respectively.

¶52

Learned counsel for the accused has submitted that grouping of blood remained inconclusive and therefore, same has

¶53

(6 of 13)

¶54

[CRLDR-8/2018]

¶55

not tallied with the blood on the clothes of the deceased Swati Gupta.

¶56

Having broadly noted the prosecution evidence. We proceed to evaluate the same by referring to the evidence of the witnesses.

¶57

The complainant Dipendra Gupta appeared in the court as P.W.1. He not only reiterated as to what was stated by him in the written report (Exhibit-P/1) but he also made certain improvements. In the court, for the first time he stated that when his wife had gone to close the doors, she said in the loud voice that ‘I am coming’ and Lalchand said ‘as to why he was removed from the service’. This witness stated that Lalchand was shouting in anger. He learnt from the neighbours that somebody has caused knife injury to his wife. It will be apposite here to reproduce relevant portion of his examination-in-chief as under:-

¶58

“esjh iRuh ?kj ds ckgj [kMh esjh dkj fMtk;j dkj dks vUnj [kMk djus ds fy, ckgj xsV ij xbZ esjh iRuh us xkMh ?kj ds vUnj ikdZ djds tSls gh og njoktk can djus xbZ rks mlds fpYykus dh vkokt vkbZ ykypan vkbZ&vkbZ] ykypan dh vkokt vkbZ fd eq>s vkSj fudkyksa ukSdjh ls] vkSj fudkyksa ukSdjh ls eq>s yxk fd ykypan us dqN gknlk fd;k gS og xqLls esa fpYyk jgk Fkk brus esa esjs fdjk;snkj nhid o feyu fdjk;snkj uhps mrj dj vk;s mUgksaus crk;k fd fdlh us HkkHkhth ds pkdw ekj fn;k gS] brus esa eSaus vius nksLrksa dks Qksu yxk;k ftlesa MkW0 fuys’k tSu o MkW0 ujsUnz jktkor o esjs llqj v’kksd dqekj xxZ dks yxk;k FkksMh nsj ckn MkW0 fuys’k tSu ,ao MkW0 uhyizHkk ukgj mudh iRuh vkbZ mUgksaus crk;k fd Hkxor flag fgaxM dh iRuh Lokfr HkkHkhth dks

¶59

(7 of 13) [CRLDR-8/2018]

¶60

iqfyl thi esa vLirky ys xbZ vkSj ge Hkh muds ihNs tk jgs gSA”

¶61

Thus, from the examination-in-chief, it has surfaced that Dipendra Gupta (P.W.1) was not an eyewitness of the occurrence but immediately he heard the voice of accused and his wife naming Lalchand.

¶62

On the observation made by us that above portion of the examination-in-chief of Dipendra Gupta (P.W.1) shall be admissible under Section 6 of the Indian Evidence Act, being res gestae evidence as an exception to hearsay evidence as the same is qualified by unity of time, space and action, learned counsel appearing for the accused has submitted that this fact has been stated for the first time by the witness in the court and same has not surfaced in the written report (Exhibit-P/1) and the statement made by witness before the police.

¶63

We may notice here that the witness has been confronted with his previous statement, where these facts have not been stated, to bring on record that above facts have not been stated by the witness in his previous statement made to the police or in the written report submitted to the police.

¶64

It is crucial for us, to note that in the house of the complainant, CCTV cameras were installed. We can understand that since the complainant was handicapped, it was his necessity to install the CCTV cameras. The complainant in the court has stated that the accused because of his bad conduct was removed from the service of Driver, and this he had taken as an affront. The complainant further stated that he had advanced about Rs. 13,000/- to 14,000/- to the accused and he was pressing him to return the same in installments.

¶65

(8 of 13)

¶66

[CRLDR-8/2018]

¶67

The complainant Dipendra Gupta (P.W.1) in the present case from the hard disc had given CCTV footage to the police in DVR. We reproduce the following portion from the examination-inchief of Dipendra Gupta (P.W.1) as under:-

¶68

“lhlhVhoh dSejs dh QqVst esjs Mhohvkj esa fjdkMZ gksrh gS] okjnkr ds tks QqVst gS mudks MhohMh cukdj iqfyl dks lqiqnZ fd, FksA QnZ tCrh MhohMh fjdkfMZax izn’kZ ih&4 gS ftl ij , ls ch esjs gLrk{kj gSA eSaus ?kVuk ls iwoZ dh fjdkfMZax dh MhohMh iqfyl dks nh Fkh ftlesa eqfYte ykypan }kjk ?kj [kkyh djus ds QqVst Hkh Fks ftlesa mldh eksVjlkbZfdy pykrs gq, ?kj ds vUnj ysrs gq, o ys tkrs gq, QqVst gSaA ftldh TkCrh cukbZ Fkh tks izn’kZih&5 gS ftl ij Hkh , ls ch esjs gLrk{kj gSaA”

¶69

Dipendra Gupta (P.W.1) the complainant further deposed in the court as under:-

¶70

“esjs edku ds Ý.V xsV ij o dejs esa] lhf<;ksa ij lhlhVhoh dSejs yxs gq, gSaA lhlhVhoh dSejs ns[kus ij okjnkr fLFkfr Li"V dSejs dSn gks xbZ Fkh mldh MhohMh eSaus gkMZ fMLd ls iqfyl dks nh Fkh] ,d MhohMh ?kVuk ds igys dh Hkh iqfyl okyksa dks nh FkhA ?kVuk lhMh ftl Mhohvkj lsV ls rS;kj dh xbZ Fkh Mhohvkj lsV ewy vkfVZdy&1 gSA ftlesa nh xbZ oDr ?kVuk dh MhohMh vkfVZdy 1&, gS ”

¶71

The DVR was played in the court by calling computer and technical experts in the presence of counsel for the parties and the accused. The court in the testimony of Dipendra Gupta (P.W.1) noted that accused is seen coming to house with knife. He has caused injuries to Swati Gupta the deceased.

¶72

(9 of 13)

¶73

[CRLDR-8/2018]

¶74

For us, what is material is that when the DVR was played in presence of the accused and his counsel, no objection was raised regarding the identity of the assailant. Thus, from the DVR footage played in the court, identity of the accused as assailant who caused injuries to deceased Swati Gupta stands proved. In the present case, counsel had raised no objection, that the DVR be not played because same is not accompanied by necessary certificate. The counsel in the presence of accused had not disputed the identity of the accused as an assailant, had the counsel done so, things would have been different.

¶75

In the present case, neither the objection was taken at the first instance regarding admissibility of the DVR nor regarding the identity of the appellant Lalchand. Thus, to us, this is a material circumstance which sealed the fate of the appellant Lalchand. Even though, there is no written certificate to comply with the Section 65B of Indian Evidence Act, we take the testimony of Dipendra Gupta (P.W.1) alongwith the seizure memo, in the facts and circumstances of the case as a relevant certificate. Exhibit-P/40 is the medico-legal report of accused Lalchand. A stitch wound having clean cut margins was found on his left knee. The medico-legal report was prepared on 22.8.2015 at 1:50 PM. The duration of the injury is sufficient to draw inference that Lalchand had suffered the injury at the spot. No explanation regarding injury has been furnished by Lalchand in his statement under Section 313 Cr.P.C.

¶76

The trial court had put the testimony of Dr. Surendra Meena (P.W.15) who examined the accused, in his statement recorded under Section 313 Cr.P.C. The accused Lalchand simply

¶77

(10 of 13)

¶78

[CRLDR-8/2018]

¶79

denied the same by saying “xyr gS”. He has furnished no explanation.

¶80

It is case of solitary accused. FIR has been lodged promptly and within one hour in the spontaneous version divulged, name of accused has surfaced. There is injury on the person of the accused. Recovery of knife has been affected from the accused Lalchand on the basis of information furnished under Section 27 of Indian Evidence Act vide Exhibit-P/54. Even if we don’t take into consideration the blood stained T-shirt as an incriminate circumstance, for us evidence led by the prosecution is sufficient to come to the conclusion that the appellant has caused the murder of Swati Gupta.

¶81

We have noted the gist of relevant evidence of the prosecution without referring to the medical evidence as it stands proved that injuries suffered by Swati Gupta proved fatal.

¶82

Now, it is time for us to ponder whether death sentence awarded by the trial court is to be affirmed or not.

¶83

The trial court noted that the accused Lalchand was employed as Driver. The complainant was a handicapped person. The accused caused injuries to a helpless woman. The trial Judge further noted that sixteen injuries were caused, therefore, the appellant had acted with cruelty. Above circumstances in totality were construed as aggravating circumstances.

¶84

We find that the trial Judge has noted aggravated circumstances but by not following the dictum of Supreme Court in case of Bachan Singh vs State of Punjab, (1980) 2 SCC 684 has failed to notice the mitigating circumstances.

¶85

In the present case, the trial Judge immediately after pronouncing the conviction passed the order of sentence. The

¶86

(11 of 13)

¶87

[CRLDR-8/2018]

¶88

provision of Section 235(2) Cr.P.C. has not been complied with. The case was not adjourned to enable the accused to lead the evidence to bring on record and to the notice of the court mitigating circumstances.

¶89

Taking the order dated 12.2.2019, passed by the coordinate Bench, which we have reproduced above, it is apparent that the appellant Lalchand is a sole bread earner of family. The learned counsel appearing for the appellant Lalchand has submitted that Lalchand is father of four daughters out of which two are unmarried. Learned counsel for the appellant Lalchand has submitted that in case the appellant is hanged, there will be nobody to look after two daughters and they may become victim of vagrancy.

¶90

We also find that the prosecution has not proved antecedents of the appellant Lalchand. Therefore, no criminal record of the appellant is available. He is not a previous convict. We cannot rule out that feeling humiliated upon certain allegations levelled against his character, the appellant Lalchand may have caused injuries by feeling disturbed.

¶91

Supreme Court of India in Santosh Kumar Satishbhushan Bariyar and Ors. vs. State of Maharashtra, (2009) 6 SCC 498 , observed as under:-

¶92

“157. The doctrine of proportionality, which appears to be the premise whereupon the learned trial judge as also the High Court laid its foundation for awarding death penalty on the appellant herein, provides for justifiable reasoning for awarding death penalty. However while imposing any sentence on the accused the court must also keep in mind the doctrine of rehabilitation. This, considering Section 354(3) of the Code, is especially so in the cases where the court is to determine whether the case at hand falls within the rarest of the rare case.

¶93

(12 of 13)

¶94

[CRLDR-8/2018]

¶95

The reasons assigned by the courts below, in our opinion, do not satisfy Bachan Singh Test. Section 354(3) of the Code provides for an exception. General rule of doctrine of proportionality, therefore, would not apply. We must read the said provision in the light of Article 21 of the Constitution of India. Law laid down by Bachan Singh (supra) and Machhi Singh (supra) interpreting Section 354(3) of the Code should be taken to be a part of our constitutional scheme.

¶96

Although the Constitutional Bench judgment of the Supreme Court in Bachan Singh (supra) did not lay down any guidelines on determining which cases fall within the `rarest of rare' category, yet the mitigating circumstances listed in and endorsed by the judgment gives reform and rehabilitation great importance, even requiring the state to prove that this would not be possible, as a precondition before the court awarded a death sentence. We cannot therefore determine punishment on grounds of proportionality alone. There is nothing before us that shows that the appellant cannot reform and be rehabilitated.”

¶97

We find that in the present case, the court has not considered various factors i.e. good conduct of the accused in custody, his age, social, emotional and mental condition. The order of sentence is totally silent whether the accused can be rehabilitated in the society or not. The trial Judge has not explored the possibility of reformation of the offender. The trial court has not applied its mind to the mitigating circumstances which were available on record.

¶98

Taking aggravated and mitigating circumstances, we are of the considered opinion that death sentence is not called for. The present case cannot be termed as one of the rarest of rare cases.

¶99

Consequently, by upholding the conviction of the appellant for the offences under Sections 302 and 460 IPC, we set aside the death sentence awarded upon the appellant Lalchand. For offence under Section 302 IPC, we convert the sentence of the

¶100

(13 of 13)

¶101

[CRLDR-8/2018]

¶102

death awarded upon the appellant to life imprisonment. Considering the financial condition of the appellant, we also set aside the sentence of fine. We are of the view that it is not a case where sentence of fine should be awarded, therefore, we uphold the sentence awarded upon the appellant Lalchand for offence under Section 460 IPC, without affirming sentence of fine.

¶103

Accordingly, Death Reference sent by the trial Judge is declined. We uphold the conviction of the appellant for offence under Section 302 IPC by converting the death sentence to life imprisonment, while maintaining the conviction for offence under Section 460 IPC. We set aside the sentence of fine awarded on both the counts upon the appellant Lalchand by the trial Judge.

¶104

(G R MOOLCHANDANI),J Mak/-

¶105

(KANWALJIT SINGH AHLUWALIA),J

Lalchand S/O Shri Kaluram Mehra B/C Mehra v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Lalchand S/O Shri Kaluram Mehra B/C Mehra v. State of Rajasthan through Pp

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

Global Alliance for Human Rights Vs Union of India and Ors.

State Vs Ranjeeta

State Vs Ramji Lal and Others

State of Rajasthan Vs Lalchand S/O Kaluram Mehra B/C Mehra

Pappu S/O Shri Devi Lal B/C Meena Vs State of Rajasthan

Nisar Khan Son of Shri Rajjak Khan Vs State of Rajasthan