ALBER ORAONversusSTATE OF JHARKHAND

                         [2014] 9 S.C.R. 330


A                          ALBER ORAON
                                   v.
                      STATE OF JHARKHAND
             (Criminal Appeal Nos. 1868-1869 of 2012)
                           APRIL 23, 2014.
B
     [K.S. RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.]

        Penal Code, 1860: ss. 302, 201 - Murder- Appellant was
  assigned the construction of house by the deceased woman
C - They developed intimacy and appellant started living with
  her - Informant found that deceased woman and her children
  not seen for few days by neighbours - Their dead bodies
  exhumed from the soak pit next to the toilet of the house of
  deceased woman - Conviction and death sentence by courts
D below - Held: No interference with the conviction and sentence
  - The convict did not offer convincing explanation as to why
  he did not report prolonged absence of the deceased to the
  police - The convict was a mason and also a civil-works
  contractor, and was, therefore, competent to dig a soak-pit and
E dispose of the three bodies in that soak-pit and then make a
  brick covering thereon - There was not an iota of doubt as to
  his living with the deceased in the same house as her husband
  - The factum of his having executed documents indicative of
  his marriage to. the deceased as also her 'Declaration' to
F transfer her property to him, in the event of her death provided
  compelling motive for his having committed the crime of
  murdering her and her two minor children - The convict was
  logically. found, beyond reasonable doubt, to have committed
  the murder of the three deceased - Sentence uls.201 not
G interfered with -As regards offence uls.302, though the action
  of the convict was extremely brutal, grotesque diabolical and
  revolting, incarceration for a further period of 30 years, without
  remission, in addition to the sentence already undergone


H                                 330
    ALBER ORAON v. STATE OF JHARKHAND                331


would be appropriate punishment in the facts and A
circumstances of the case - Sentence/Sentencing.

     The prosecution case was that the deceased woman
assigned the work of construction of her house to the
appellant-convict. In the course of the construction of the
                                                            8
house the convict and the deceased woman developed
intimacy and the convict started living with her portraying
as her husband. The informant and his aunt were regular
visitor in the house of the deceased woman. On one such
visit the informant learnt from the neighbourhood that in C
the recent past only the convict was seen in the house.
On ehq~iry from the convict, no proper information
regarding the deceased woman and her two minor
children was obtained. The matter was reported to police.
On investigation, highly decomposed bodies of a woman
and two children were discovered and exhumed from the D
soak pit next to the toilet of the house of the deceased
woman.

    The trial court found the convict guilty for offence
under Sections 302 and 201 IPC and passed death E
sentence. The High court confirmed conviction and death
sentence. The instant appeal was filed challenging the
order of the High Court.

    Disposing of the appeal, the Court                     F .
     HELD: 1. In the instant case, the bodies of the three
deceased victims were exhumed after three to six weeks
of their unnatural death and no convincing explanation
was offered by the convict as to why he did not report
their prolonged absence to the police. The convict was G
a mason and also a civil-works contractor, and was,
therefore, competent to dig a soak-pit and dispose of the
three bodies in- that soak-pit and then make a brick
covering thereon. There was not an iota of doubt as to
his living with the deceased in the same house as her H
    332       SUPREME COURT REPORTS [2014] 9 S.C.R.


A   husband, even though he was already married. The
    factum of his having executed documents indicative of
    his marriage to the deceased as also her 'Declaration' to
    transfer her property to him, in the event of her death
    provide compelling motive for his having committed the
s   crime of murdering her and her two minor children. The
    convict was logically found, beyond reasonable doubt,
    to have committed the murder of the three deceased.
    [Para 7] [338-A-E]

       Trimukh vs State 2006 (10) SCC 681: 2006 (7) Suppl.
C SCR 156; Raj Kumar vs State (2007) (1) SCC 433; State vs
  Jaggu 2008 (12) SCC 51: 2008 AIR 982; Sushi/ Kumar vs
  State of Punjab 2009 (10) SCC 434: 2010 AIR 832; Swamy
  Shraddananda vs State of Karnataka 2008 (13) SCC 767:
  2008 (11) SCR 93 - referred to.
D
       2. The Sessions Judge found the convict guilty
  under Section 302, IPC and awarded him the death
  sentence; and Rigorous Imprisonment for seven years
  and a fine of Rs.5000/- under Section 201, IPC. In the
E impugned Judgment, both these sentences were
  confirmed. As regards the sentence under Section 201,
  IPC, there is no reason to interfere with it. Even though
  the action of the convict was extremely brutal, grotesque
  diabolical and revolting, incarceration for a further period
F of 30 years, without remission, in addition to the sentence
  already undergone, would be appropriate punishment in
  the facts and circumstances of the case. Accordingly, the
  death sentence concurrently imposed by the courts
  below is modified and the convict is sentenced to
G incarceration for a further period of 30 years without any
  remission. [Para 8] (338-F-G; 339-C-D, F]

         Sangeet vs State of Haryana 2013 (2) SCC 452: 2012
    (13) SCR 85; Gurvail Singh vs State of Punjab 2013 (10)
    SCC 631; Swamy Shraddananda and State of UP vs Sanjay
H
    ALBER ORAON v. STATE OF JHARKHAND                     333

Kumar 2012 (8) SCC 537: 2012 (7) SCR 359; Sahib Hussain         A
alias Sahib Jan vs State of Rajasthan 2013 (9) SCC 778:
2013 (2) SCR 1019; An if alias Antony vs State o,t
Maharashtra 2014 (2) SCALE 54 - relied on.
                    Case Law Reference:
                                                                8
  2006 (7) Suppl. SCR 156      Referred to       Para 6
                               I

  (2007) (1) sec 433         .··Referred to      Para 6
  2008 AIR 982                 Referred to       Para 6
                                                                c
  2010 AIR 832                 Referred to       Para 6
  2008 (11) SCR 93             Referred to       Para 6
  2012 (13). SCR 85            Relied on         Para 8
  2013 c10) sec 631            Relied on         Para 8         D

  2012 (7) SCR 359             Relied on         Para 8
  2013 (2) SCR 1019            Relied· on        Para 8
  2014 (2) SCALE 54            Relied on         Para 8         E
    CRlMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1868-1869 of 2012.

    From the Judgment and Order dated 22.11.2011 of the
High Court of Jharkhand at Ranchi in Criminql Appeal (D.S.)     F
No. 1048 of 2010.

    Sudhir Kulshreshtha, Sushma Singh for the Appellant.

    Jayesh Gaurav (for Anil K. Jha) for the Respondent.
                                                                G
    The Judgment of the Court was delivered by

      VIKRAMAJIT SEN, J. 1. The endeavour in these Appeals
is to set aside the impugned Judgment dated 22nd November,
2011 of the Division Bench of the Jharkhand High Court which    H
     334        SUPREME COURT REPORTS [2014) 9 S.C.R.


A had concludea that the facts of the case have brought to light
  the commission of the rarest of rare offence under Section 302
  of the Indian Penal Code warranting the passing of the death
  sentence. The impugned Judgment also upholds the sentence
  in the context .of the facts which we shall presently detail under
B Section 201 of the IPC. The Appeals attempt to dislodge
  concurrent findings of facts as well as of the sentence passed
  by both the Courts below.

          2. The case of the pr-osecution is to be found in fardbeyan
     recorded by Sunil Munda on 14.12.2008. It narrates that the
C    deceased Pushpa Devi along with her two children, Deepika
     Kumari then aged 8 years and Sudarshan Munda then aged 6
     years were living at village Kutmu on the death of her husband
     late Dilip Kumar Munda, who died while in the service of the
     Indian Army. Pushpa and her children were initially living as
D    tenants in the house of Sukru Oraon (PW-4). It appears that
     Pushpa had entrusted the construction of a house on a plot in
     her ownership to Alber Oraon (the Convict); they developed
     intimacy in the course of construction of the house and the
     Convict started living with the deceased masquerading as her
E    husband. The prosecution's case is that the Informant as well
     as his Aunt had been visiting Pushpa frequently, and on one
     such visit the Informant learnt from the neighbourhood that in
     the recent past only the Convict had been seen in the said
     house. When they visited the house of Pushpa no cogent
F.   information on the absence of the three deceased was
     forthcoming from the Convict, as he stated variously that
     Pushpa and her children had gone to her parents house and/
     or that she was visiting her maternal grandmother. Because of
     these evasive and inconsistent replies the Informant reported
G    the matter to the police. In the course of investigation the highly
     decomposed bodies of a woman and two children were
     discovered and exhumed from the soak-pit next to the toilet of
     the home of Pushpa and this exercise had been conducted
     under the supervision of the Executive Magistrate'. Further
H    enquires from the neighbourhood have revealed that the Convict
      ALBER ORAON v. STATE OF JHARKHAND                     335
              [VIKRAMAJIT SEN, J.]
and Pushpa were not on cordial relations since the Convict         A
wanted the land and house to be transferred by Pushpa to his
name.

       3. On the basis of this fardbeyan, the Convict was
  Chargesheeted under Section 302/34 and 201/34 of the IPC.
                                                                    8
 Twelve witnesses were examined by the prosecution; it is
  alleged that the Convict had confessed his guilt and, thereafter,
  lead to the recovery of incriminating documents. Dr. Binay
  Kumar, the autopsy Surgeon (PW-12), has deposed that ~here
  were ante mortem injuries on each of the three dead bodies,
  which had been caused by a hard and blunt substance. The C
  "hard and blunt substance" has not been found and it is not
  controverted that the entire case of the prosecution is
· predicated on circumstantial evidence.

     4. So far as .the defence of the Convict is concerned, the D
contention is that the chain of circumstantial evidence remains
incomplete; that the prosecution has failed to collect evidence
directly implicating the Convict; that Pushpa was not on cordial
terms with her in-laws subsequent to the death of her husband,
and that she had left her matrimonial home in those E
circumstances; that there was, therefore, a strong possibility .
that her in-laws had committed the heinous crimes in order to
grab the property. It has also been emphasized that no witness
has deposed that the Convict was seen concealipg the dead
bodies; and importantly the objecUimplement of the fatal assault F
has· not been found.

      5. The Sessions Judge has opined on the basis of the
 post mortem examination and the manner ih. which the dead
 bodies had been buried in the soak-pit that the death was
 homicidal. He has noted that the Convict was aiready in custody G
 in connection with his involvement in an alleged crime of
 kidnapping and it was at that time that he had made a
 confession leading to the recovery of an Agreement of Marriage
 between the deceased and the Convict, and a Declaration by
 the deceased purportedly transferring the property to the H
    336        SUPREME COURT REPORTS [2014} 9 S.C.R.


A Convict. The Sessions Judge took note of the deposition of
  PW-4 to the effect that he was acquainted with all the three
  deceased as he had previously let out a portion of his house
  to them. The Sessions Judge further noted that PW-1, Suguni
  Devi, the paternal aunt of the deceased Pushpa has deposed
B that the Convict had contracted with Pushpa to construct the
  house and started living along with the three deceased,
  subsequent to the completion of the house in 2007; that on her
  earlier visits to Pushpa the latter had confided to her that the
  Convict had previously assaulted her with a brick; that when she
c visited the house on 29.11.2008, she found Pushpa and her
  two children missing and instead the Convict was staying alone
  in the house; on being questioned by her he had stated that
  Pushpa and her children had gone to the house of one of her
  friends in Ranchi, but her search for Pushpa at Ranchi proved
D to be fruitless. On a subsequent·visit to Pushpa's home, she
  and her children were again not found there and Suguni Devi
  and Sunil Munda were told by neighbours that they had seen
  the Convict excavating a ditch and later covering it with soil.
  Even in cross-examination, her deposition as regards the
  Convict initially getting the contract to build the house,
E thereafter, living with Pushpa as her husband, has remained
  steadfast. The deposition of the Informant PW-3, Sun ii Munda
  is substantially the same, but he has additionally stated that
  deceased Pushpa had no enmity with anyone. The Sessions
  Judge was satisfied that the chain of circumstantial evidence
F was fully complete. He was convinced that the Convict having
  developed intimacy with late Pushpa was living with the
  deceased in the said house he representing himself to society
   as her husband. The Sessions Judge was satisfied that the
  bodies recovered from the site were those of Pushpa and her
G two minor children. Ext.I, Ext.111 and Ext.112, which came to be
  discovered pursuant to the disclosure statements of the
   Convict, not only reinforced the finding that the Convict was
  staying/living with the deceased at her house, but also
  manifests the motive. the motive leading to the three ghastly
H murders. The three Exhibits have been proved by PW-8, the
     ALBER ORAON v. STATE OF JHARKHAND                     337
             [VIKRAMAJIT SEN, J.]
Investigating Officer, PW-9, Motilal Agrawal, Notary Public and A
PW-10, Vikas Kumar Gupta, a Real Estate Agent. The
documents contain photograph as well as signatures of the
Convict and the deceased. The connection of the Convict with
the deceased Pushpa as well as the house in question is
unassailable. Significantly, the documents recite that the Convict B
had invested Rs.6,33,075/- towards the construction of the
house.

       6. Trimukh vs State 2006 (10) SCC 681 was justifiable
  and correctly relied upon inasmuch as this Court opined that -
  "Where an offence like murder is committed in secrecy inside C
  the 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 D
  character. In view of Section 106 of the Evidence Act there will
  be corresponding burden on the inmates of the house to give
  the cogent explanation as to how the crime was committed."
  Reliance has correctly been placed on the subsequent
  decisions of this Court in Raj Kumar vs State (2007) (1) SCC E
  433, State vs Jaggu 2008 (12) SCC 51, Sushil Kumar vs State
. of Punjab 2009 (10) SCC 434, and Swamy Shraddananda vs
  State of Karnataka 2008 (13) SCC 767. Convinced of the
  complicity of the Convict, he was sentenced to death for the
  offence under Section 302 IPC and further to rigorous F
  imprisonment of seven years and a fine of Rs.5,000/- for the
  offence under Section 201 of the IPC. In the impugned
  Judgment, the Division Bench of the High Court has considered
  the evidence threadbare before confirming the factual findings
  of the Sessions Judge and affirming the death sentence G
  passed in this regard.

     7. We have also carefully considered the conspectus of the
 case and we do not harbour any doubt as to the guilt of, the
 Convict. We reiterate the series of Judgments passed by this
                                                                  H
    338        SUPREME COURT REPORTS [2014] 9 S.C.R.


A   Court which effectively transfer the burden of proving innocence
    tQ.those accused who were living with the deceased within the
    confines of the home. In the present case, the bodies of the
    three deceased victims were exhumed after three to six weeks
    of their unnatural death and no convincing explanation has been
B   proffered by the Convict as to why he did not report their
    prolonged absence to the police. The Convict was a mason
    and also a civil-works contractdr, and was, therefore,
    accomplished and competent to dig a soak-pit and dispose of
    the three bodies in that soak-pit and then make a brick covering
c   thereon. There is not an iota of doubt as to his living with the
    deceased in the same house as tier husband·, even though he
    was already married. The factum of his having executed
    documents indicative of his marriage to the deceased Pushpa
    as- also ber 'Declaration' to transfer her property to him, in the
    event of her death provide compelling motive for his having
0
    committed the crime of ·murdering her and her two minor
    children. We are emphasizing these factors in addition to the
    finding and reasoning of the Sessions Court as well as the High
    Court. We also have had the advantage of perusing several
    previous decisions of this Court. We, therefore, conclude tliat
E   the Convict was logically found, beyond reasonable doubt, to
    have committed the murder of Pushpa, as well as her daughter
    Deepika Kumari and her son Sudarshan Munda.

         8. We must now consider the appropriateness of the Death
F   Sentence imposed by both the courts below. As has already
    been mentioned above, the Sessions Judge has found tile
    Convict guilty under Section 302 of the IPC and has awarded
    him the death sentence; and Rigorous Imprisonment for seven
    years and a fine of Rs.5000/- under Section 201 of the IPC. In
G   the impugned Judgment both these sentences have been
    confirmed. So far as the sentence under Section 201 of the IPC
    is concerned, we find no reason whatsoever justifying our
    interference. In Sangeet vs State of Haryana 2013 (2) SCC
    452, a two-Judge Bench had expressed a doubt about the
H   opinion vis-a-vis the legal propriety pf awarding sentences of ,
       ALBER ORAON v. STATE OF JHARKHAND                     339
               [VIKRAMAJIT SEN, J.]
20 years and above and additionally prescribing that no A
remission of this sentence would be permissible. That doubt
has now been interred in Gurvail Singh vs State of Punjab,
2013(10) sec 631 which after referring to the three-Judge
Bench in Swamy Shraddananda and State of UP vs Sanjay
Kumar 2012 (8) sec 537. as well as Sahib Hussain alias B
Sahib Jan vs State of Rajasthan 2013 (9) SCC 778 found no
scope for any reconsideration on this issue. In Anil alias
Antony vs State of Maharashtra 2014 (2) SCALE 54, we had
countenanced the gruesome murder by strangulation of a minor
boy aged 10 years after subjecting him to carnal intercourse. c
Even though we found the action of the Con·vict to be extremely
brutal, grotesque diabolical and revolting, it was our opinion that
incarceration for a further period of 30 years, without remission,
in addition to the sentence already undergone, would,be
appropriate punishment in the facts and circumstances
                                                                    0
obtaining in that case. The crime which we have unfortunately
encountered in the present appeals is also of similar
reprehensible nature justifying the use of the same adjectives
as we employed in Anil alias Antony. We think that the same
sentence should be imposed in the present case also.
Accordingly, modifying the death sentence concurrently E
imposed by the courts below, we sentence the Convict to
incarceration for a further period of 30 years without any
remission. We clarify that this shall be in addition to the
sentence already undergone.
                                                                     F
      9. The appeals are disposed of in the above terms, with
. no order as to costs.
 Devika Gujral                                Appeals disposed of.