ASHOK, KUMARversusTHE STATE (DELHI ADMINISTRATION)

                            ASHOKKUMAR                                         A
                                     v.
              THE STATE (DELHI ADMINISTRATION)

                         SEPTEMBER 19, 1995

 [MADAN MOHAN PUNCHHI AND SUJATA V. MANOHAR, JJ.]                              B

      Criminal Law :

      Indian Penal Code, 1860:

       S.302-Murder-Husband killed by wife and her lover allegedly with a
                                                                               c
stone-Wife convicted and sentenced to life imprisonment and fine-Other
accused convicted and sentenced to death-Confinned by High Cowt-Ap-
peal prefe"ed by the main accused but not by the co-accused-Held, the act.
of the main accused was not so crnel, unusual or diabolical to wa"ant death
penalty-Sentence commuted to life imprisonment.                                D
      The accused as also his co-accused Smt. P. belong to the same village
in Rajasthan and had a long knit physical intimacy with each other. Smt.
P. was given in marriage to M. Out of the wedlock, two children were born.
However the passion between the accused continued and so both of them          E
drew a plan to kill M. According to the Prosecution accused, M, and his
two children moved from their respective residence and on their way to
Delhi, stayed in the house of PW. 33. Thereafter they reached Delhi and
stayed in a hotel, the co-accused and her family in one room and the
appellant in another room. At the hotel desk the appellant gave a fictitious
name and a false address.                                                      F
      Both the accused and the children left Delhi. After a couple of days,
the management of the hotel found some foul smell coming out of the room
occupied by M. They called the Police and in their presence broke open
the lock and found the dead body of M, some blood stains, a red stone, a       G
plastic roµe, s~me broken bangles and a tuft of hair. Post-mortem revealed
that it was a homicidal death.

      The accused were arrested after a few days and after investigation
sent up for trial before the Court of Session, which convicted the appellant
for the murder of M and sentenced him to death. The co-accused was H
                                     77T
    778                   SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.

A   convicted for an offence under S.302/34 IPC and was sentenced to life
    imprisonment and to pay of a fine of Rs. 1,00,000 in default of payment
    thereof, to undergo 31/2 years' rigorous imprisonment. The High Court
    confirmed the conviction and sentence. The appellant preferred the
    present appeal, through a jail petition on which leave was granted by the
    Court. The co-accused did not prefer any appeal.
B
         Allowing the appeal to the extent of commuting the sentence to life
    imprisonment, this Court

          HELD : 1. There is no reason to disbelieve the evidence of the
C Prosecution witnesses. The discovery ofE group blood on the stone, clothes
    of the deceased and the clothes of the appellant removed from his person
    on his arrest on 12.1.1988 also assume significance. This is indicative of
    the appellant's close proximity to the deceased when he was fatally
    wounded. And lastly is the statement of the co-accused which fixes the
D   appellant to be in the company of the deceased at or about the time when1
    he met his death, let alone what he said to his co-accused. Lastly ever'
    brooding to the occurrence is the motive of the crime. No animus is alleged
    against the prosecution. It has given the chain of events and the move-
    ments of the accused inter se and of their being seen together in the
    company of the deceased. The appellant has thus necessarily to be held
E   guilty of the crime, unless he had a plausible explanation to offer. But
    instantly, the appellant gave no explanation at all - what to say of a
    plausible one. The appellant, was thus .rightly convicted of the offence
    under Section 302 IPC. The appraisal of evidence of both courts was sound
    and this Court agrees with their verdict. [783-E-G] ·
F
          2. The Trial Judge fixed his attention more on the defiance and
    unrependent attitude of the appellant as observed by him while the appel-
    lant stood before him in dock as an accused. The High Court on the other
    hand was more on the moralistic aspect in the appellant having killed his
    mistress's husband for lust. Even if these two aspects are allowed to play
G   a part, all the more when there is no explanation by the appellant, still this
    is not the rarest of rare cases in which death penalty should be imposed
    on the appellant. It cannot be forgotten that two children were born to the
    co-accused. The appellant was intimate with his co-accused even prior to
    her marriage with the deceased, and kept on being so even after the birth
H   of the children. That was obviously a long durated steady connection, at
                  ASH OK KR. v. STATE [PUNCHHI, J.]                     779

least of 5 to 6 years, if not more. Since there was no time compulsion, the    A
appellant could have had plenty of other opportunities to kill the deceased
at another appropriate place in the wildness of Rajasthan rather than
bringing him to a hotel in Delhi, accompanied by children, signing hotel
papers even though with false name and address and yet killing the
deceased with barely a stone. It looks incredible that a stone be carried as   B
far from Rajasthan or to be gathered before hand to be handy for commit-
ting a calculated murder of such degree in the execution of which some-
thing satanic could be spelled out. It rather appears more probable that
the appellant having gone to room no. 30 in the early hours of the morning
to meet his mistress or to fetch her to his room was confronted in some
form by the deceased which led to the appellant striking the deceased with     C
a handy stone and bringing about the end of the deceased. The act of the
appellant therefore cannot be said to be so cruel, unusual or diabolic which
would warrant death penalty. Therefore, his sentence' is commuted to that
a life imprisonment. [783-H, 784-A-F]

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                     D
1094 of 1995.

      From the Judgment and Order dated 10.1.95 of the Delhi High Court
in Crl. A. No. 213/94 with Murder Ref. No. 2 of 1994.

                                   With
                                                                               E

      CRIMINAL MISCELLANEOUS PETITION NO. 1593 OF 1995.

     Ms. Ranjana Narayan, Dr. J.P. Verghese and S.P. Sharma, for the
Appellant.                                                                     F
     V.C. Mahajan, B.V.B. Das, S.N. Terdol and Binu Tamta, for the
Respondent.

      The Judgment of the Court was delivered by
                                                                               G
      PUNG:::n, J. Permission to file special leave petition sought by the
mother and brother of the petitioner, Ashok Kumar vide Criminal Miscel-
laneous Petition No. 1593 of 1995 is refused. Leave granted to Ashok
Kumar, Petitioner on his petition from jail.

     This appeal by Ashok Kumar is to challenge the judgment and order         H
    780                  SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A   of the Delhi High Court dated January 10, 1995, whereby he has been held
    guilty for the offence of murder under Section 302 IPC and sentenced to
    death. His co-accused Smt. Prem Kanwar stands convicted for offence
    under Section 302/34 IPC, for which she has been sentenced to life im-
    prisonment and to pay a fine a Rs. 1,00,00, in default of payment of which
    she has futher to undergo 3Vz years rigorous imprisonment. Smt. Prem
B
    Kanwar has not appealed against her conviction and sentence. So instantly
    we are only concerned with Ashok Kumar.

          The prosecution case is woven like this :

c        Both the accused, Ashok Kumar and Smt. Prem Kanwar belong to
  the same village in the State of Rajasthan. Both the accused had a long
  knit physical intimacy with each other. While so Smt. Prem Kanwar was
  given in marriage to Mahabir Singh, deceased. The marriage made no
  difference to the intimacy and their relationship continued. Out of the
D wedlock of Smt. Prem Kanwar, accused with Mahabir Singh deceased, two
  children were born. The passion between the two lovers, seemingly, did not
  subside. It is inferred that because of that relationship Ashok Kumar,
  appellant and his co-accused Smt. Prem Kanwar drew a plot to kill the
  deceased so that they could be with each other unobstacled. To fulfil that
  design, it is stated that they moved out of their respective places of
E residence and jointly came on December 27, 1987 to the house of P.K.
  Sharma, P.W. 33 at village Kotputli where both the accused persons, the
  deceased and the two minor children spent a night. Then it is said that this
  group of people came to Delhi and with the aid or Bajrangi Lal, Guide,
  P.W. 27 came at about 11.00 p.m. on 29-12-1987 to hotel Eagle in Katra
F Barian, Delhi to seek accommodation. Before-hand, the appellant Ashok
  Kumar, styling himself as Vijay Kumar had told Bajrangi Lal of their
  requirement of Having a room with three cots. The guide conveisely told
  him.that a room with a pair of cots and another with single cot would be
  made available. Accordingly, the appellant and his companions, on coming
  to the hotel, were allotted room nos. 30 and 33, after the appellant had
G duly signed the necessary papers and registers at the hotel desk, and having
  also paid Rs. 200 as advance, He gave out to the hotel management his
  name as Vijay Kumar and supplied an address which was false. Room No.
  30 was then occupied by the couple. The same was on the fourth floor of
  the hotel, Room No. 33 was occupied by the appellant. This was on the
H top floor. Both the rooms had no attached toilets. Common bathrooms and
                  ASHOKKR. v. STATE [PUNCHHI, J.]                        781

latrines were available for both the floors i.e. 4th and top floor at the third A
floor. The following morning at about 9.00 a.m., the appellant and his
co-accused Smt. Prem Kanwar were seen standing together in front of
room no. 30 and on their asking were served tea by Ram Kumar, P.W. 23,
At about 11.00 a.m. the appellants accompanied by his co-accused Smt.
Prem Kanwar and her two children left the hotel premises never to return
                                                                                B
back. It is futher traced that on that day itself they left Delhi so 1s to be
in Jaipur where they had checked in at Hotel Sital at about 7.00 p.m. There
again the appellant with a pseu io name gave a wrong address. On the new.
                               1


year day, i.e. 1.1.1988, both oft• ":m left together and stayed in a Dharam-
shala for two days at Kotputli, from where they were ultimately located at
Ahmedabad, whereat they were arrested on 12.1.1988.                            c
       The Hotel management on its part, on routine check, found that
room no. 33 lay open. The key and lock of that room lay inside the room.
Room No. 30 was however, locked by the private lock of the customer. On
January 4, 1988, some foul smell, as if of a dead rat, was sensed emanating D
from Room No. 30. This put Sunil Kumar, Hotel, Manager, P.W. 12 on the
alert. He informed his father Hari Om, P.W. 14. They approached Police
Station Hauz Qazi for help. S.I. Gurbax Singh, P.W. 29 arrived at the scene
at about midnight. In the presence of the police party, and others present,
lock of Room No. 30 was got broken and on opening was found the dead E
body of the deceased lying on a cot. Amongst many articles which were
recovered from the spot were the weapon of offence being a red-stone.
There were also a plastic rope, some broken bangles and a tuft of hair. The
clothes on the dead body were blood stained. As a part of the investigation,
the dead body was sent for post mortem. It was discovered that the
deceased met homicidal death on assault on his head being hit with a stone, F
such as the one as was Ex. P .13, recovered at the spot. Internally, it was
discovered that there were fractures of the frontal, parietal and occipital
bones. Death was opined to have taken place within the time suggested by
the prosecution i.e. on the night intervening 29th and 30th December, 1987.
                                                                               G
      On the arrest of the accused, identification parade was arranged,
whereat the appellant refused to participate in the same. Smt Prem Kan-
war, accused offered herself for identification and was identified by the
prosecution witnesses, who had occasion to see her accompanying the
appellant.                                                                     H
    782                   SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.

A          After completion of the investigation, both the accused were sent up,
    for trial before the Court of Session. The conduct of the appellant at the
    trial was far from normal. He was obstructive to the proceedings of the
    trial and somewhat defiant as observed by the learned Additional Sessions
    Judge. Apparently, he had a "Do'nt care" attitude, as seen by the learned
    Judge. He would at times stop communicating with his counsel and take
B   to silence. His co-accused Smt. Prem Kanwar, however, was different. She
    made a statement at the trial that she and her husband and her children
    had accompanied the appellant to Hotel Eagle on the day and at the time
    alleged by the prosecution and admitted having stayed and having slept in
    room no. 30 alongwith her husband when the appellant had stayed in room
c   no.33 This part of it is obviously separate and has nothing to do with the
    crime as such. Now about the crime she says that on the next day at about
    5.00 a.m. she got up to urinate and had to go down on the third floor to
    visit the toilet. Having gone there, she says she just as well had a bath, and
    when she returned to her room, she found the appellant standing there and
D   her husband lying covered with a bed-sheet. She removed the bed-sheet to
    find her husband profusely bleeding. She then asked the appellant as to
    why he had done this to her husband. At that juncture, the appellant is said
    to have asked her to keep quite and threatened her with dire consequences,
    and even of killing her children, if she did not cooperate. She alleges that
    the appellant gave her_ some drug by which she became semi-conscious.
E   Statedly, in that condition she left the hotel room with her children till
    finally after wandering from place to place, she was taken to Ahmedabad
    by the appellant where she was left in her uncles house, to whom she told
    about the occurrence, who in turn informed the police and this is how she
    claims to have been arrested.
F
          It is on the evidence as afore-described, and the incriminating cir-
    cumstances emerging from the sequence of events and the statement, of
    Smt. Prem Kanwar co-accused that the appellant stand convicted and
    sentenced as aforesaid. The High Court enumerated as many as 11 cir-
G   cumstances which appeared against the appellant. It has spelled out the
    appellant's case to be the rarest rare cases, deserving death penalty.


          On hearing learned counsel on both sides, we are of the view that
    the conviction of the appellant is well-based and the chain of circumstances
H   having tightened the ring of guilt around him successfully.
                  ASHOK KR. v. STATE [PUNCHHI, J.]                     783

       To begin with we have no reason to disbelieve P.W. 33 in whose A
house the appellant and his party stayed for the night on 27-12-1987. It is
true that the said witness could not positively identify the woman accom-
panying the appellant because according to him she was in parda. Still, it
cannot be doubted that the appellant had a female accompanying him and
had a man and two children alongwith him. Then there is no reason to
                                                                               B
disbelieve the evidence of Bajrangi Lal, Guide, P.W. 27 at whose suggestion
and behest they were lodged in Eagle hotel at an unearthly hour at about
11.00/11.20 p.m. Bajrangi Lal correctly identified Smt. Prem Kanwar at the
identification parade. Besides, he was the one in whose presence the
appellant had signed the hotel papers as Vijay Kumar and had paid Rs.
200 as advance. Bajrangi Lal had no axe to grind against the appellant and    c
his co-accused. Similarly, Raj Kumar, waiter, P.W. 23 who was responsible
for giving possession of the two rooms to the party of the appellant cannot
be doubted and equally of his having seen both the accused in the company
of each other at the time of his serving tea to them the following day at
about 9.00 a.m. In the same sequence the evidence of Sunil Kumar, P.W. D
12, the Hotel Manager also cannot be doubted, all the more when the
handwritings of the appellant have successfully been identified as his by the
handwriting expert, P.W. 30, on his obtaining and comparing the admitted
handwriting and signatures of the appellant. Another fact of importance is
the discovery of E group blood on the stone Ex. P. 30, the clothes of the
deceased and the clothes of the appellant removed from his person on his E
arrest on 12.1.1988. This is indicative of his being in close proximity of the
deceased when he was fatally wounded. And lastly is the statement of the
co- accused which fixes the appellant to be in the company of the deceased
at or about the time when he met his death, let alone what he said to his
co-accused. Lastly ever brooding to the occurrence is the motive of the F
crime. No animus is alleged against the prosecution. It has given the chain
of events and the movements of the accused inter se and of their being seen
together in the company of the deceased. The appellant has thus neces-
sarily to be held guilty of the crime, unless he had a plausible explanation
to offer. But instantly, the appellant gave no explanation at all what to say
of a plausible one. The appellant, in our view, was thus rightly convicted G
of the offence under Section 302 IPC. The appraisal of evidence of both
courts was sound and we entirely agree with their verdict.

      On the question of sentence, however, we differ from the view taken
by the courts below. The learned Trial Judge fixed his attention more on     H
    784                    SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A the defiant and unrepentent attitude of the appellant as observed by him
    while the appellant stood before him in dock as an accused. The High
    Court on the other hand was more on the moralistic aspect in the appellant
    having killed his mistress's husband for lust. Even if these two asp.ects are
    allowed to play a part, all the more when there is no explanation by the
    appellant, still we feel that this is not the rarest of rear cases in which death
B   penalty should be imposed on the appellant. It cannot be forgotten that
    two children had been born to Smt. Prem Kanwar. The appellant was
    intimate with his co-accused even prior to her marriage with the deceased
    and kept on being so when the children came. That was obviously a long
    durated steady connection, at least of 5 to 6 years, if not more. Since there
c   was no time compulsion, the appellant could have had plenty of other
    opportunities to kill the deceased at another appropriate place in the
    wilderness of Rajasthan rather than bringing him to the hotel to Delhi,
    accompanied by children, signing hotel papers under his signatures even
    though false and yet killing the deceased with barely a stone. The prosecu-
D   tion would have us believe that since the stone is not a normal object to
    be kept in a hotel room, it shall be presumed that was carried by the
    appellants to the hotel to accomplish the deed. It looks incre~ible that a
    stone be carried as far from Rajasthan or to be gathered before hand to
    be handy for committing a calculated murder of such degree in the execu-
    tion of which something satanic could be spelled out. It rather appears to
E   us more probable that the appellant having gone to room no. 30 in the early
    hours of the morning to meet his mistress or to fetch her to his room was
    confronted in some form by the deceased which led to the appellant
    striking the deceased with a handy stone and bringing about the end of the
    deceased. The act of the appellant therefore cannot be said to be so cruel,
    unusual or diabolic which would warrant the death penalty. We, therefore,
F
    commute his sentence to that of life imprisonment. The appeal is allowed
    to that extent only.

    G.N.                                                           Appeal allowed.