Supreme Court of India
RAMESHversusSTATE OF RAJASTHAN
- Citation
- 2011 INSC 148
- Decided
- 22 February 2011
- Disposal
- Dismissed
- Bench
- V S SIRPURKAR
Holding
The Supreme Court upheld the convictions of A‑1, A‑2 and A‑3, but modified A‑3's death sentence to life imprisonment, dismissing the appeals.
Summary
The case involved the murder of money‑lender RL and his wife during a robbery of their house‑cum‑shop, where the accused A‑1 (Gordhan Lal), A‑2 (Bharat Kumar) and A‑3 (Ramesh) were convicted of murder, robbery and related offences. The prosecution relied on a chain of circumstantial evidence, including blood‑stained clothing, a murder weapon with the victims' blood group, and the recovery of gold ornaments and cash from the accused. The trial and High Courts upheld the convictions and sentenced A‑3 to death, A‑1 and A‑2 to life imprisonment. On appeal, the Supreme Court affirmed the convictions but held that the death sentence was not justified under the "rarest of rare" doctrine, modifying it to life imprisonment. The Court also rejected the defence's claims of investigative irregularities and affirmed the admissibility of the recovered evidence.
Issues considered
- The adequacy of circumstantial evidence to sustain convictions under Sections 120‑B, 302, 457, 379, 404, 201 and 414 IPC.
- Whether the death sentence imposed on A‑3 satisfies the criteria of the 'rarest of rare' doctrine.
- Whether the investigation and recoveries were tainted or violated procedural safeguards.
- Whether A‑4's role as a receiver of stolen property establishes a conspiracy charge against the other accused.
- Whether life imprisonment is a sufficient alternative punishment for A‑3.
Legislation cited
- Arms Act, 1955s. 4/25
- Indian Evidence Act, 1872s. 114, s. 27
- Indian Penal Code, 1860s. 120-B, s. 201, s. 302, s. 34, s. 379, s. 404, s. 414, s. 457
Subjects
double murdercircumstantial evidencedeath penaltyrarest of rare doctrinesentencingrobberymoney lendinggold ornamentslife imprisonmentconviction
Judgment
• [2011] 4 S.C.R. 585
RAMESH A
V.
STATE OF RAJASTHAN
(Criminal Appeal No. 1236 of 2006)
FEBRUARY 22, 2011 B
[V.S SIRPURKAR AND T.S. THAKUR, JJ.]
Penal Code, 1860- ss. 120-B, 457, 302, 379, 404, 201,
414 and s. 34 - Double murder - RL and his wife were
engaged in the business of money lending by pledging gold C
and silver ornaments - Robbery committed at the house-cum-
shop of RL - RL and his wife found dead in the pool of blood
- Four accused arrested - Trial court convicted A 1 to A 3 u/
ss. 120·8, 457, 302, 379, 404 and 201 -A 1 awarded death
sentence whereas A2 and A3 sentenced to life imprisonment D
- Accused convicted on other counts also - A 4 convicted u/
ss. 201, 404 and 414 - High Court upheld the order passed
by the trial court- On appeal by A 1 to A 3, held: A 3 found
in possession of huge haul of gold weighing one kilo and cash
immediately after theft - Ornaments recovered from A 2 and E
A 1 - There was en effort to melt the ornaments - Recovery
of clothes and shoes of accused stained with human blood -
Recovery of blood stained murder weapon at the instance of
A 3 - Weapon was stained with human blood of blood group
A which was the blood group of deceased - Clothes of F
deceased found stained with his own blood of blood group A
- No explanation -offered by accused of this highly
incriminating circumstance - Theft of the articles, ornaments
more particularly, the melting apparatus machine and
Katordan and tiffin on which the name of the deceased was G
engraved fully established - Identification of the property also
established - Investigation not tainted - Though police was
not able to recover ornaments in one go, but merely because
recoveries were made from the same place which was already
585 H
586 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A visited by the police, would not dispel the evidence of
discovery and recovery - A4 was receiver of stolen property
and had helped in melting of some of the gold items with the
machines removed from the house of deceased - Conviction
of A 1 to A3 upheld, however, no evidence as to who was the
B actual author of the injuries on the deceased though all the
three were participants of the crime - Thus, death sentence
awarded to A 3 modified to life imprisonment and life
imprisonment imposed on A 1 and A2 upheld - Sentence/
Sentencing.
c
Sentence/Sentencing - Death sentence - Award of -
Commission of double murder - Award of death sentence to
A 3 by courts below - On appeal held: Though it was a double
murder, but it could not be said to be brutal, grotesque and
0 diabolical - Crime could not be said to be of enormous
proportion - A 3 was not in a dominating position - It was a
murder of gains - Case was purely based on circumstantial
evidence - No definite evidence about the acts on the part
of each of the accused - Difficult to say that A 3 alone was
author of injuries on the deceased - A 3 was young and this
E was his first proved offence - It could not be said that there
was no possibility of reformation of A 3 - It was not established
that alternative punishment of life imprisonment would be
futile and would serve no purpose - Also, it could not be
established that hairs in the hands of the deceased belonged
F to A 3 - A 3 languishing in death cell for more than 6 years
- Thus, death sentence is modified to life imprisonment.
'RL' alongwith his wife 'SD' were engaged in the
business of money lending by pledging gold and silver
G ornaments and were selling steel utensils. On the fateful
day, they were found lying dead in the pool of blood.
According to the prosecution, A-1 conspired with A-2, A-
3 and A-4 to commit a robbery at the place of 'RL'. They
trespassed into the house of 'RL' by night and looted the
H house and decamped with the looted ornaments, cash
• RAMESH v. STATE OF RAJASTHAN 587
and other articles. Both the deceased persons had human A
hair in their hands. A blood-stained needle and syringe
was found near the dead body of 'SD'. The clothes of the
deceased persons and some other materials were seized.
The accused persons as also accused No. 4 were
arrested. The murder weapon 'Jharbad' was recovered B
from A-3. The clothes and the shoes worn by the accused
at the time of incident as also the ornaments stolen from
the house of 'RL' were recovered. The stolen gold
ornaments were melted at the house of A-4 and converted
into a nugget (Dhalia). The instrument used for melting c
ornaments was found at the house of accused No. 4
which was allegedly stolen from the house of deceased
'RL'. The materials were sent for investigations and
reports were obtained. The trial court convicted A-1, A2
and A3 for the offences punishable under Sections 120- 0
B, 457, 302, 379, 404 and 201 IPC. A-3 was sentenced to
death, whereas A1 and A2 were awarded life
imprisonment. On appeal, the High Court upheld the order
of conviction and sentence of A-1, A2 and A3. A-4 was
convicted for the offence punishable u/ss. 201,404 and E
414 IPC and sentenced accordingly by the courts below.
Therefore, A1, A2 and A3 filed the instant appeals.
Dismissing the appeals, the Court
HELD: 1.1. The instant case depends upon F
circumstantial evidence and, as such every circumstance
would have to be proved beyond reasonable doubt and
further the chain of circumstances should be so complete
and perfect that the only inference of the guilt of the .
accused should emanate therefrom. At the same time, G
there should be no possibility whatsoever of the defence
version being true. Both the courts below have held that
such circumstances are proved by the prosecution and
that the only inference flowing therefrom would be that
of the guilt on the part of the three accused persons. The H
588 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A scope for interference in factual findings by this Court is
very limited. This Court would, under such
circumstances, examine whether the findings are pervert
or impossible. The instant case is not a case of a single
accused, and, therefore, the incriminating circumstances
B would have to be individually weighed vis-a-vis each
accused and it would have to be seen as to whether such
examination justifies the conviction of the accused as
ordered by the trial court and the appellate court. [Para
1O] (605-0-E]
c 1.2. The courts came to the conclusion that A4 knew
or had reason to know that the offence had been
committed. He not only tried to screen the offence by
melting the ornaments but was found in possession of
the stolen property like the ornaments and the gold
D ingots. It was on this basis that A4 was convicted for
offences under Sections 201 and 404 as also Section 414
IPC. There was a definite connection between A-4 and the
other accused A-1. Very surprisingly, the finding
regarding the ornaments received by A4 coming from A3
E and fellow accused has not been challenged in any of the
appeals. If the ornaments were found to be belonging to
'RL' as they were kept in the tiffin on which the name of
'RL' was engraved and further if A4 had given no
explanation, it was obvious that the ornaments
F proceeded from A3 and his fellow accused to A4 with the
sole objective of melting the ornaments. A4 knew that it
was stolen property and had accepted the same. In such
circumstances, it was incumbent upon the other accused
being A-1, A-2 and A-3 to challenge at least the finding
G against A4 even if A4 had not challenged his conviction.
The finding given against A4 regarding the stolen
property having been given to him by accused A3 ought
to have been challenged. There was no challenge on this
major circumstance with the result that it is now the
H
• RAMESH v. STATE OF RAJASTHAN 589
factual situation that the ornaments stolen from 'RL' A
house and the other connecting materials like tiffin were
passed on to A 4. [Para 11] [607-C·H; 608-A-B]
1.3. The submission that there was no theft or that
the prosecution had not proved that any theft was
8
committed at 'RL's house was not made even before the
trial court or the appellate court. However, the submission
fails on the simple ground that the ornaments found with
A4 were kept in a tiffin bearing the name of 'RL'; that A4
could not give any explanation of the huge amount of C
ornaments melted and other things found in his
possession; that there was also a Katordan which was
found by the Investigating Officer with A1 though there
is some controversy as to from which accused the said
Katordan bearing the name of 'RL' was found; that the
Katordan did belong to 'RL' and tht:re is no explanation D
whatsoever as to liow the Katordan came out of the
house of 'RL'; and that the huge amount of gold which
was found with A3 being 1347 gms. (some ornaments
being intact and some turned into gold ingots for which
there was virtually no explanation, as also the ornaments E
found with A1 and A2 without any reasonable
explanation). It does not stand to reason that the police
must have collected all these ornaments from the house
of 'RL' after the murder and planted the ornaments
without any purpose. [Para 13] [608-D-H; 609-A] F
1.4. Considering the case of A-3 whose complicity
has been held to be proved, the submission that there
were some minor contradiction with regard to the date,
time and place of the discoveries and recoveries are of G
no consequence. It is sufficiently proved by the
prosecution that when A-3 was arrested, he was having ·
a black bag containing huge amount of gold ornaments
and cash. This is all the more true as there is absolutely
H
590 SUPREME COURT REPORTS [2011] 4 S.C.R.
A no explanation by A-3 for the possession of the huge
haul of'gold. Therefore, the so-called contradictions in the
evidence of PW-10, PW-19 and PW-33 are not impressive.
The High Court and the trial court were correct in holding
that a huge haul of gold was found weighing 1347 gms.,
B which is more than a Kilo of gold. [Para 14) [609-A-H; 610-
A-D]
1.5. It is clear from the evidence that prosecution had
proved its case against A-3 that he was involved in the
C robbery which was clear from the human blood detected
on his clothes and shoes and the murder weapon which
was recovered at his instance. The murder weapon was
found stained with human blood and its blood group was
shown to be 'A'. The clothes of 'RL' were stained with his
own blood which was of group 'A'. This is a very weighty
D circumstance against A-3 and there is absolutely no
explanation offered by A-3 of this highly incriminating
circumstance. The courts below accepted the recoveries
and the discoveries. In addition, A-3 was found to be in
possession of huge amount of gold in form of ornaments
E and ingots and cash, for which he had no explanation.
The said articles were seized from his person. It is not
understood as to why the gold would be in the form of
ingots from the recovery of the gold melting apparatus
from A 4. It was clear that there was effort to melt the
F gold. The necessity of melting the gold and the fact that
the accused persons like A 4 made efforts to melt the gold
and further A3 being found in possession of gold ingots
which could not have been in that form lends support to
the theory that A3 was in possession of the stolen
G property. There is no explanation by A3 even for the huge
cash. He did not accept the cash belonging to him. He is
not shown to be a wealthy person so as to be in
possession of 1347 gms. of gold and a huge cash of
about Rs. 30,000/-. All this would clinch the case against
H A3. [Para 15) [611-E-H; 612-A-B]
• RAMESH v. STA:E OF RAJASTHAN 591
1.6. The High Court was absolutely correct in A
believing the recoveries and discoveries also, particularly,
as against the accused A3. There may be some
irregularities here and there or some casual investigation
by the police, however, the investigation was not tainted.
There was absolutely no reason for the police to falsely B
implicate A-3 and the other two accused persons.
Nothing has been brought in the cross-examination of
the police officers and, more particularly, the cross-
examination of PW-35, Investigating Officer. [Para 16)
[612-D-F]
c
1.7. The statement that A 1 was not participant in the
crime cannot be accepted. Human blood was found on
A1's shirt. His shoes were also found to be stained with
human blood. It is only his pant which seems to be
innocuous in the sense that no blood was found on the D
same. However, there is no explanation by A1 as to how
his T-shirt and shoes were found to be stained with
human blood. [Para 17] (612-G-H; 613-A]
1.8. The evidence of identification parade especially E
of PW-22-tehsildar and both the courts having accepted
the evidence about the identification of ornaments which
were recovered from A3, has been gone through. There
is no reason to dis-believe that evidence. Therefore, it is
established that A3 was undoubtedly in possession of F
the ornaments which ornaments can be connected with
'RL'. [Para 18] (613-F-G]
1.9. PW 30-R was the nephew of deceased 'RL'. He
surfaced immediately after it was known that 'RL' and his
wife 'SD' were murdered. He claimed that he had seen his G
maternal uncle using the chain and two rings and his aunt
using four bangles and four rings and ear rings in· her
ears. He performed the last rites of 'RL' and 'SD'. He
correctly identified the chain of maternal uncle and also
the bangles of his maternal aunt. The four gold bangles H
592 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A which were identified by 'R' were seized from A-2 while
the chain which was identified by him was seized from
A-1. PW-22 specifically stated that these ornaments were
correctly identified. There is hardly any cross-
examination which is worthy and can be relied upon and
s accepted. The cross-examination only consists of some
futile suggestions. This witness had no interest against
the accused or in favour of the prosecution. He was
doing his duty. His evidence connects A-1 and A-2 with
the crime. Therefore, the identification is accepted. The
C finding of the High Court that the recoveries from A-1 and
A-2 of the ornaments including the identified bangles and
the chain were fully proved, is accepted. There is hardly
any explanation by A-1 and A-2. (Para 18] (613-G-H; 619-
A-H; 615-A-D]
D 1.10. As regards, the submission that the police have
seized the gold chain on 19.2.2003 even when they had
visited the same place on 09.02.2003 for recovering the
cloths on 13.02.2003 for recovering the other ornaments
including the Katordan, it is quite possible that the police
E were not able to recover all the ornaments in one go. The
High Court gave good reasons to set aside the finding of
the trial court to the effect that this recovery was not
proved. There is clear cut evidence on record that the
ornaments which were recovered on 13.02.2003 were kept
F in a Katordan. The full name of deceased 'RL' was
engraved on the Katordan. The recovery of Katordan
would clinch the issue insofar as the identification of the
ornaments is concerned. A1 had no explanation
whatsoever for these ornaments or for the Katordan. A1
G was also in possession of the stolen property almost
immediately after the theft and was directly connected
with the crime. Therefore, the prosecution has been able
to prove the guilt of A1 who was not only a participant in
the crime but was also found in possession of the gold
H ornaments including the gold chain which was clearly
• RAMESH v. STATE OF RAJASTHAN 593
identified py witness PW-30. Therefore, the finding of the A
High Court is upheld in that behalf and the High Court
was right in dismissing the appeal of A1. Considering the
oral evidence of PW-6 as also PW-35 further considering
Exhibit P-35, the Katordan on which name of deceased
'RL' was engraved was undoubtedly seized from A1. B
[Para 19] [615-E-H; 616-A-D]
1.11. As per Exhibit P-126, A 2's T-shirt as well as
pant as also his shoes were stained with human blood
and further his pant and shirt were found to be stained
with blood group A which was the blood group of 'RL'. C
This circumstance alone is sufficient to clinch the issue
against A 2. Also, gold ornaments were recovered from
A2 which was supported by the evidence of PW-13.
However, the trial court rejected this recovery. The High
Court set aside that finding and held that the recovery D
was fully proved. It cannot be forgotten that A2 gave no
explanation about the huge amount of silver ornaments
found with him. It cannot be said as to how the silver
ingots weighing 205 gms. could be found unless the
silver ornaments were turned into the shape of ingots. E
Four gold bangles were found by way of this discovery
which was proved by PW-11, and in the identification
proceedings bangles were correctly identified by PW-30.
PW~30 and PW-22 held the identification parade. This in
fact clinches the issue. The discovery made by the F
accused and the recovery of the ornaments in pursuance
of that are completely credible, seen in the light of other
evidence of his blood stained T-shirt and shoes. The
counsel could not explain the finding of the blood as also
the clinching evidence of the recovery of ornaments in G
pursuance of the discovery statement made by the
accused. Therefore, even A2 would be held liable and
would be held guilty for the offence alleged against him.
[Para 20] [616-F-H; 617-A-G]
H
594 SUPREME COURT REPORTS (2011) 4 S.C.R.
•
A 1.12. The theft of the articles, more particularly, the
melting apparatus machine and the ornaments was fully
established. The identification of the property was also
established. It is not only the gold which connects the
accused with the crime but also the articles like Katordan
B and tiffin on which the name of the deceased was
engraved. The evidence clearly showed that the
Katordan was seized with the ornaments in it. Further,
some of the ornaments like gold bangles and the chain
were actually identified and the identification evidence is
C accepted. [Para 22) [619-8-F]
Chandmal and Anr. v. State of Rajasthan 1976 (1) SCC
621; Mohd. Aman and Anr. v. State of Rajasthan etc. etc.,
1997 (10) SCC 44; Mahabir Sao alias Mahadeo Sao v. The
State of Bihar 1972 (1) SCC 505; Inspector of Police, Tamil
D Nadu v. Bala Prasanna 2008 (11) SCC 645; State of
Rajasthan v. Raja Ram 2003 (8) SCC 180; Yeshv.ailt and
Ors. v. The State of Maharashtra. etc. etc. 1972 (3) SCC 639;
Raghunath v. State of Haryana and Anr. etc. etc. 2003 (1) SCC
398; Hardyal Prem v. State of Rajasthan 1991 Supp. (1)
E SCC 148; Manish Dixit and Ors. v. State of Rajasthan etc.
etc. 2001 (1) SCC 596; Subhash Chand v. State of Rajasthan
2002 (1) sec 702 - distinguished.
State of M.P. v. Nisar 2007 (5) SCC 658 - referred to.
F 1.13. There is no question of the principles regarding
Section 27, Evidence Act. However, on facts it is found
that the discoveries of all the three accused persons to
be reliable in the peculiar facts of the instant case. [Para
23) [621-G-H]
G
Pu/ukari Kottaiah v. King Emperor AIR 1947 PC 67;
Mohd. lnayatullah v. State of Maharashtra 1976 (1) SCC 828;
Pohalya Motya Va/vi v. State of Maharashtra 1980 (1) SCC
530; Mohd;Abdul Hafeez v. State of Andhra Pradesh 1983
H
• RAMESH v. ·STATE OF RAJASTHAN 595
(1) SCC 143; Ram Pal Pithwa Rah id as v. State of A
Maharashtra 1994 Suppl. (2) SCC 73 - referred to.
1.14. There is no reason to differ on the principle of
honesty and fair investigation. However, there is no
reason to hold that the investigation was in any way
8
unfair. Merely because the recoveries were made from
the same place which was already visited by the police,
that would itself not dispel the evidence of discovery and
recovery, on the basis of the peculiar evidence led in the
instant case. It is true that the investigation officer should C
have thoroughly searched the premises of A-1 and A-2
on 09.02.2003 itself. However, if the accused agreed to
discover different things on different dates and those
things were actually found in pursuance of the
information given by the accused, the discoveries cannot
be faulted for only that reason. Thus, the conviction and D
sentence of A-1 and A-2 is upheld. [Paras 24 and 25) [622-
F-H; 623-A-B]
2.1. The conviction of A-3 is confirmed. As regards
his sentence, both the courts below have unanimously E
awarded death sentence to A-3 treating this to be a rarest
of the rare case. The trial court held that it was A-3 who
inflicted injuries on both the deceased 'RL' and 'SD'. It is
only on that ground that A-3 alone was condemned to
death. The reasoning given by the trial court is not F
satisfactory. Before awarding the death sentence, the trial
court was expected to give elaborate reasons. [Paras 25
and 26) [623-8-E]
Shri Bhagwan v. State of Rajasthan 2001 (6) SCC 296;
Suhil Murmu v. State of Jharkhand AIR 2004 SC 394 - G
referred to.
2.2. In the instant case, none of the four
circumstances relevant in awarding the death sentence
are available. It is true that the murder of 'RL' and 'SD' was H
596 SUPREME COURT REPORTS [2011] 4 S.C.R.
A cruel. However, it cannot be said to be brutal, grotesque
and diabolical nor could it be said that the murder was
committed in a revolting manner so as to arise intense
and extreme indignation. This was not a case where A-3
was in a dominating position or in a position of trust nor
B could it be said to be a murder for personal reasons. This
is also not a case of bride burning or dowry death which
is committed in order to remarry for extracting dowry
once again. Though this is a double murder, it cannot be
said to be a crime of enormous proportion. A-3 could not
c be said to be a person in a dominating position as this is
not a murder of an innocent child or a helpless woman
or old or infirm person. This was undoubtedly a murder
for gains. The High Court held that A 3 was having
criminal record. However, no previous conviction has
been proved against A-3 by the prosecution. It is apparent
0
that the original intention was theft and on account of the
deceased having been awakened, the accused persons
took the extreme step of eliminating both the inmates of
the house for the fear of being detected. It cannot be said
E that it was A-3 alone who committed the murder only
because he was the one who discovered the murder
weapon Jharbad. It is not clear from the evidence as to
who was the actual author of the injuries on 'RL' and 'SD'
though all the three were participants of the crime. There
is no definite evidence about the acts on the part of each
F of the accused. Therefore, it would be difficult to say that
A 3 alone was the author of injuries on 'RL' as well as
'SD'. Money was the motive. The accused person did not
come from a wealthy background. On the other hand, they
could not justify the possession of ornaments found with
G them; and they were unlikely to own the ornaments on
account of their financial position. [Paras 27, 28 and 30]
[624-F-H; 625-A-D; 626-D-E]
Dilip Premnarayan Tiwari v. State of Maharashtra 2010
H (1) sec 775; Mui/a v. State of U.P. 2010 (3) sec 508;
• RAMESH v. STATE OF RAJASTHAN 597
Santosh Kumar Shantibhushan Beriyar v. State of A
Maharashtra 2009 (6) SCC 498 - referred to.
2.3. The instant case is purely on the circumstantial
evidence. It should not be understood that in all cases
of circumstantial evidence, the death sentence cannot be
8
given. The case _being dependent upon circumstantial
evidence is one of the relevant considerations. It is one
of the circumstances in formulating the sentencing
policy. [Para 31] [627-A-D]
Santosh Kumar Shantibhushan Beriyar v. State of C
Maharashtra 2009 (6) SCC 498; Shivaji @ Dadya Shankar
A/hat v. State of Maharashtra 2008 (15) SC 269 - relied on.
2.4. Considering the principles emanating from
Bachan Singh's case, it cannot be said that there was no 0
possibility of reformation of the accused persons. It is true
that the accused were driven by their avarice for wealth
but given a chance there is every possibility of their being
reformed. In the instant case, it is not established that
alternative punishment of life imprisonment would be E
futile and would serve no purpose. In Santosh Kumar's
case it was held that the life imprisonment can be said
to be completely futile only when the sentencing aim of
reformation can be said to be unachievable. "Therefore,
being satisfied the second explanation of rarest of rare
doctrine the court would have to provide clear evidence F
as to why the convict is not fit for any kind of reformative
and rehabilitation scheme. In the instant case, there has
been no such exercise taken either by the trial court or
appellate court nor any discussion is found about the life
imprisonment being rendered futile and serving no G
purpose. [Paras 31, 32 and 33] [627-C-H; 628-A-C]
Bachan Singh v. State of Punjab 1980 (2) SCC 684;
Santosh Kumar Shantibhushan Beriyar v. State of
Maharashtra 2009 (6) SCC 498 - relied on. H
598 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 2.5. A 3 is a young person. It must also be taken into
consideration that this was the first proved offence of A
3. No other conviction has been proved against him by
the prosecution. There is no reason as to why he cannot
be reformed and rehabilitated. Further, this is not seen to
B be an offence by the organized criminals so as to affect
the society as a whole. Also if the deceased 'RL' and 'SD'
had not been awakened, the ghastly incident might not
have occurred. [Paras 34, 35 and 36] [628-D-F-H; 629-A]
2.6. It has come in evidence that the deceased 'RL'
C and 'SD' had hair in their hands. The prosecution wanted
to point out that it must be during the scuffle that the two
dying persons might have pulled the hair of the assailants
and this is how hair came in the hands of the deceased
persons. It is significant to note that on scientific
D examination, it could not be established that hair in the
hands of the deceased belonged to A 3. Though there are
other clinching circumstances also to hold that A 3 and
the two accused were undoubtedly the assailants. This
circumstance would be considered in not confirming the
E death sentence. A 3 who was convicted and awarded the
death sentence by the Sessions Judge in 2004 is
languishing in death cell for more than six years. This
also would be one of the mitigating circumstances. Thus,
the death sentence awarded to A 3 would not be justified
F and instead is modified to life imprisonment. However,
conviction for the other offences as also sentences
awarded are upheld. [Paras 37, 38 and 39] [629-C-G]
Santosh Kumar Shantibhushan Beriyar v. State of
G Maharashtra 2009 (6) SCC 498 - relied on.
Case Law Reference:
2001 (5) sec 658 Distinguished. Para 21
1976 (1) sec 621 Distinguished. Para 22
H
• . RAMESH v. STATE OF RAJASTHAN 599
1997 (1 O) sec 44 Distinguished. Para 22 A
1972 (1) sec 505 Distinguished. Para 22
2008 (11) sec 645 Distinguished. Para 22
2003 (8) sec 180 Distinguished. Para 23
B
1912 (3) sec 639 Distinguished. Para 23
2003 (1) sec 398 Distinguished. Para 23
1991 Supp. (1) sec 148 Distinguished. Para 23
2001 (1) sec 596 Distinguished. Para 23
c
2002 (1) sec 102 Distinguished. Para 23
AIR 1947 PC 67 Referred to Para 23
1976 (1) sec 828 Referred to Para 23 D
1980 (1) sec 530 Referred to Para 23
1983 (1) sec 143 Referred tC1 Para 23
1994 Suppl. (2) sec 73 Referred to Para 23 E
2001 (6) sec 296 Referred to. Para 26
AIR 2004 SC 394 Referred to. Para 26
2010 (1) sec 775 Referred to. Para 29 and
36 F
201 o (3) sec 508 Referred to. · Para 29
2009 (6) sec 498 Relied on. Paras 31, 32,
36, 37
G
2008 (15) SC 269 Relied on. Para 31
1980 (2) sec 684 · Relied on. Para 31
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1236 of 2006. H
600 SUPREME COURT REPORTS [2011] 4 S.C.R.
A From the Judgment & Order dated 19.1.2006 of the High
Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal
Appeal No. 625 of 2004.
WITH
B Crl. Appeal Nos. 1235 & 1237 of 2006.
Sushil Kumar Jain, Puneet Jain, Gopal, Trishna, Anis
Ahmed Khan, Shoaib, Ahmad Khan, M.L. Lahoty, Rana
Mukherjee, Sadharth Gautam, Ankita Mishra (for Goodwill
c lndeevar), Manish Singhvi, D.K. Devesh, Sahil S. Chauhan,
Milind Kumar, lmtiaz Ahmed, Naghma lmtiaz for the appearing
parties.
The Judgment of the Court was delivered by
D V.S. SIRPURKAR, J. 1. This judgment will dispose of
Criminal Appeal No. 1236 of 2006 filed by Ramesh@ Gaguda
(original accused No. 3), Criminal Appeal No. 1235 of 2006
filed by Bharat Kumar @ Bhatia (original accused No. 2) and
Criminal Appeal No. 1237 of 2006 filed by Gordhan Lal (original
E accused No. 1). We shall refer to the appellants as per their
position before the Trial Court. While Ramesh @ Guguda (A-
3) is sentenced to death by Trial and appellate Courts, the other
two accused being Bharat Kumar @ Bhatia (A-2) and Gordhan
Lal (A-1) are facing the life imprisonment alongwith fines on
F different counts. That is how the matters have come up before
us.
2. Human avarice has no limits nor does it know of any
emotions. The present case is the sordid saga of the crime
which emanated purely from human avarice.
G
3. Phalodi is a quiet Taluk place in the State of Rajasthan.
Ramlal Lunawat alongwith his wife Shanti Devi was doing
business of money lending by pledging gold and silver
ornaments and was selling steel utensils. On 5.2.2003, Anil
H (PW-1) telephoned to Police Station Phalodi that the door of
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
601
the house-cum-shop of Ramlal was lying suspiciously open and A
nobody from the house was responding to the calls. Kishan
Singh (PW-35) who was the Station House Officer of the Police
Station Phalodi, reached the house alongwith some other
police personnel. They found that Ramlal and his wife Shanti
Devi were lying dead in the pool of blood. The FIR by Anil (PW- B
1) was recorded and the investigation was commenced for
offences under Sections 302 and 457 of the Indian Penal Code
(hereinafter called "the IPC" for short). The necessary spot
panchnamas were executed and the Material Objects found on
the scene were seized. It was found that both the deceased c
persons had human hair in their hands. There was a blood-
stained needle and syringe found near the dead body of Shanti
Devi. Some other materials were collected from the spot to find
out the finger prints. The clothes of the deceased persons were
also seized. On suspicion, the accused persons were arrested. D
One other accused Rajesh (original accused No. 4) was also
arrested. He stands acquitted by the Courts below. The
accused persons gave information under Section 27 of the
Indian Evidence Act and the clothes that they were wearing at
the time of incident and their shoes were recovered. The E
ornaments stolen from the house of Ramlal were also
recovered. Their hair were also taken for comparing with the
sample of hairs founded at the scene of occurrence. The
instrument used for melting ornaments was found at the house
of Rajesh (A-4), which was allegedly stolen from the house of F
deceased Ramlal. The materials were sent to the Forensic
Science Laboratory (FSL), Jaipur/Jodhpur and the reports were
obtained. On the completion of investigation, the chargesheet
was filed against four persons.
4. Case of the prosecution is that Gordhan Lal (A-1) had G
some dealings with Ramlal (deceased) which was evident from
the diary found from the pocket of Ramlal. The prosecution
alleged that Gordhan Lal (A-1), therefore, decided to commit
a robbery at the place of Ramlal, who was a rich person, and
conspired with the other accused persons, namely, Bharat H
602 SUPREME COURT REPORTS [2011] 4 S.C.R.
A Kumar @ Bhatia (A-2), Ramesh @ Guguda (A-3) and Rajesh
(A-4). They trespassed into the house o(Ramlal by night and
looted the house and decamped with the looted ornaments of
silver and gold, cash and other articles. It is alleged by the
prosecution that certain stolen gold ornaments were melted at
B the house of Rajesh (A-4) and converted into a nugget (Dhalia).
Ramesh (A-3) and Bharat Kumar (A-2) had past criminal
background. They were involved in number of criminal cases
for offences such as attempt to murder, house trespass, looting
etc. The murder weapon 'Jharbad' was recovered from
c Ramesh (A-3). The chargesheet was filed for offences
punishable under Sections 120-B, 302, 201, 404, 414, 457,
460/34 of the IPC as also for the offence punishable under
Section 4/25 of the Arms Act against Ramesh (A-3). The
evidence was led and as many as 35 witnesses came to be
0 examined in support of the charge. Prosecution relied on 132
documents and also produced 105 articles (M.Os.).
5. The defence was that of denial and false implication. In
addition to that, accused Ramesh claimed that at the time of
incident, he was taking part in a Jagran in Pali. Four defence
E witnesses came to be examined by Ramesh (A-3) while
Gordhan Lal (A-1) produced one witness. The accused
persons also filed a few documents. The defence did not
prevail in case of the present appellants as also Rajesh (A-4).
Against Ramesh (A-3), the case was treated to be the rarest
F of rare case. Ramesh (A-3) was ordered to be hanged. He was
also convicted for other offences punishable under
Sections120-B, 457, 302, 379, 404, 201 of the IPC. On the first
two counts, he was awarded 5 years' rigorous imprisonment
and on the others, 1 year's rigorous imprisonment consecutively
G with fine of Rs.500/- on each count. He was also convicted for
the offence punishable under Section 5/25 of the Arms Act and
was sentenced with 1 year's rigorous imprisonment with fine
of Rs.500/-. Gordhan Lal (A-1) and Bharat Kumar@ Bhatia (A-
2) were convicted with the aid of Section 34, IPC but were
H spared by ordering them to suffer rigorous imprisonment for life.
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
603
On the other counts, the identical punishment, as was awarded A
to Ramesh (A-3), was awarded to them. Rajesh (A-4) was
convicted for the offence punishable under Sections 201, 404
and 414 of the IPC and was sentenced to undergo 5 years'
rigorous imprisonment on the first count and 1 year's rigorous
imprisonment on the other counts with fine of Rs.500/- on each B
count. Reference was made to the High Court for confirmation
of the death sentence of Ramesh (A-3) while the accused
persons also filed their appeals. The appeals filed by the
present three appellants and Rajesh (A-4) were dismissed by
the High Court and the sentences were also confirmed. The c
present appellants have challenged the judgment of the High
Court; however, Rajesh (A-4) has not come before us. The
reference was answered in affirmative and the High Court
confirmed the death sentence in case of Ramesh (A-3) and that
is how the matters have come up before us.
D
6. Shri Sushil Kumar Jain, learned counsel appearing on
behalf of Ramesh (A-~) submitted that, in the first place, there
was no evidence to establish theft at the house of the deceased
persons and, therefore, there was no question of any motive.
The learned counsel also urged that there was no evidence to E
show that the articles alleged to have been recovered from the
appellant Ramesh were belonging to or otherwise in
possession of the deceased persons before their death. The
learned counsel pointed out that the arrest and recoveries
made from the appellants are doubtful since there are F
discrepancies in respect of the date, time and place of the
arrest and recoveries made. The learned counsel also urged
that the prosecution also could not connect the accused
persons with the crime on the basis of FSL reports regarding
the blood. Even in respect of the weapon, the learned counsel G
pointed out that the recovery of the murder weapon itself was
doubtful. Lastly, the learned counsel urged that at any rate, it
was not the rarest of rare case and as such the death sentence
was not justified. Shri M.N. Krishnamani, learned senior counsel
and Shri Anis Ahmed Khan, learned counsel contended on H
604 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A behalf of Bharat Kumar @ Bhatia (A-2) that the evidence of
recovery of clothes and shoes of Bharat Kumar @ Bhatia (A-
2) was suspicious and discrepant. They also attacked the
alleged recovery of silver and gold ornaments at the instance
of this accused. They pointed out that the FSL report was of
B no consequence against this accused. Similar is the contention
raised by Shri M.L. Lahoty, learned counsel appearing on behalf
of Gordhan Lal (A-1). Shri Lahoty pointed out that there was
nothing incriminating found against this accused and that the
so-called recoveries were farcical and inconsequential. The
c learned counsel further pointed out that this accused could not
be booked on the basis of the FSL reports.
7. All the learned counsel pointed out that the quality of
investigation was extremely poor and it was a pre-determined
investigation. All the learned counsel, therefore, prayed for
D rebuttal.
8. As against this, learned counsel appearing on behalf of
the State, supported the judgment while p'ointing out that though
this was a case based on circumstantial evidence, the
E prosecution had fully proved the incriminating circumstances
like the recovery of ornaments stolen from the house of Ramlal,
their identification and the fact that the accused persons were
found in possession of the stolen articles almost immediately
after the crime and, therefore, the prosecution could use the
F presumption under Section 114 of the Indian Evidence Act. The
learned counsel also pointed out that the prosecution had
proved that Rajesh, the fourth conspirator, was a receiver of
stolen property and had helped in melting of some of the gold
items with the machines removed from the house of Ramlal
G (deceased). It was also pointed out that Gordhan Lal (A-1) was
aware of sound financial condition of Ramlal as he was dealing
with Ramlal which was clear from the diary found from the
pocket of Ramlal's body. The learned counsel also pointed out
that there were some clinching circumstances in the
prosecution evidence which established that all the four
H
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
605
accused persons were working hand-in-glove and had entered A
into conspiracy to commit robbery at Ramlal's place. The
learned counsel, therefore, urged that the accused would be
answerable to the charge of murder as they not only had
conspired, but had also developed a common intention to
commit that crime and had actually committed the crime of B
robbery and in that process had committed murder of two
innocent persons.
9. As regards the sentence, the learned counsel appearing
on behalf of the State urged that this was undoubtedly the rarest
of rare case, where the accused persons had committed the C
murder for their avarice with pre-planned mind and in cold
blood. The learned counsel, therefore, justified the death
sentence in case of Ramesh (A-3) and life imprisonment in
respect of other accused persons.
D
10. Beforewe proceed with the matter, it has to be borne
in mind that this case:depends upon circumstantial evidence
and, as such as, per,the settled law, every circumstance would
have to be proved beyond reasonable doubt and further the
chain of circumstances should be so complete and perfect that E
the only inference of the guilt of the accused should emanate
therefrom. At the same time, there should be no possibility
whatsoever of the defence version being true. Both the Courts
below have held that such circumstances are proved by the
prosecution and that the only inference flowing therefrom would
F
be that of the guilt on the part of the three accused persons.
The scope for interference in factual findings by this Court is
very limited. This Court would, under such circumstances,
.examine whether the findings are pervert or impossible. Again,
this is not a case of a single accused, and, therefore, the
incriminating circumstances would have to be individually G
weighed vis-a-vis each accused and it would have to be seen
as to whether such examination justifies the conviction of the
accused as ordered by the Trial Court and the appellate Court.
11. Initially, accused No.4, Rajesh was also tried with the H
606 SUPREME COURT REPORTS [2011) 4 S.C.R.•
A accused persons. He was charged with the offence under
Sections 201, 404 and 414, Indian Penal Code. While
convicting him, the Trial Court has recorded certain findings
convicting him of all the three offences stated above. Basically,
it was alleged against Rajesh (A-4) vide Exhibit P-31, that the
B stolen property of gold ornament was recovered from him.
Exhibit P-32 is the site plan of the recovery. Rajesh initially was
roped in as the conspirator also. However, it seems that he has
been absolved of the charge of conspiracy. In that behalf, it has
been held by the Trial Court that he cannot be booked for that
c offence since it was not proved that he had joined the
conspiracy to the house-breaking in the house of Ram Lal.
Recording this finding, the Sessions Judge also acquitted him
of the offence under Section 302 and Section 120B, IPC.
Indeed there could be no offence under Section 302, IPC
alleged against him as there was no evidence against him of
0
his having taken part in the actual act of house-breaking and
the assault on Ram Lal and Shanti Devi. It is only on the basis
of the discovery by him of ornaments and the machinery to melt
gold that he has been booked for the offence under Sections
201, 404 and 414, IPC. The Trial Court as well as the appellate
E Court have accepted that he voluntarily gave information vide
Exhibit P-106 after his arrest on 13.2.2003. Both the Courts
below have further held that in pursuance of that, he took the
Panchas and the Investigating Officer and discovered
ornaments substantial in number. The discovery was supported
F by the evidence of PW-5, Chandulal and PW-16, Madho Singh
while recovery of the ornaments was also supported by the
evidence of PW-35, Kishan Singh. The most significant of the
articles discovered by this accused is a steel tiffin on which the
name of Ramlal Lunawat was engraved. The other ornaments
G were weighing about 350 gms. of gold. The Courts below have
held that the appellant Rajesh was aware of the incident and
the circumstance as to how the steel tiffin belonging to Ramlal
Lunawat along with ornaments came to his possession was not
explained by him. Besides this, the High Court also noted that
H certain jewels coming out from the ornaments were stuck on
• RAMESH v. STATE OF RAJASTHAN.
[V.S SIRPURKAR, J.]
607
the melting apparatus. Therefore, the Courts came to the A
conclusion that the appellant knew or had reason to know that
the offence had been committed. He not only tried to screen
the offence by melting the ornaments but was found in
possession of the stolen property like the ornaments and the
gold ingots. It was on this basis that Rajesh was convicted for B
offehcef:I under Sections 201 and 404 as also Section 414, IPC.
The High Court wrote a finding "on the basis of the same set
of evidence, it can also be safely said that the appellant
Rajesh assisted other accused appellants in disposal of the
property". The High Court has specifically held that accused c
had not given any satisfactory explanation regarding this
recovery. He was an ordinary government employee but had
kept the gold ornaments in his possession knowing them to be
stolen property. The Trial Court, thereafter, gave a finding that
it were accused Ramesh and Rajesh together who had melted
0
gold ornaments and prepared dhalias with it, weighing 347
gms. which have been recovered from Ramesh and Rajesh and
three ladis ingots weighing 151 gms. Thus, Rajesh had
received the ornaments from none-else than Ramesh (A-3)
who himself was found in possession of very substantial number
of ornaments including 10 dhalias, weighing 1347 gms. It was, E
therefore, obvious that there was a definite connection between
Rajesh (A-4) and the other accused (A-1) Ramesh. Very
surprisingly, the finding regarding the ornaments received by
Rajesh coming from Ramesh and fellow accused has not been
challenged in any of the appeals. If the ornaments were found F
to be belonging to Ramlal as they were kept in the tiffin on which
the name of Ramlal was engraved and further if Rajesh had
given no explanation, it was obvious that the ornaments
proceeded from accused Ramesh and his fellow accused to
Rajesh with the sole objective of melting the ornaments. Rajesh G
knew that it was stolen property and had accepted the same.
In such circumstances, it was incumbent upon the other
accused being A-1, A-2 and A-3 to challenge at least the finding
against Rajesh even if Rajesh had not challenged his
conviction. The finding given against Rajesh regarding the H
608 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A stolen property having been given to him by accused Ramesh
ought to have been challenged. There was no challenge on this
major circumstance with the result that it is now the factual
situation that the ornaments stolen from Ramlal's house and the
other connecting materials like tiffin were passed on to Rajesh.
B
12. However, that by itself will not be a clinching
circumstance against the three appellants. The prosecution had
to prove beyond reasonable doubt that these three accused
persons entered the house-cum-shop of Ramlal and then
C committed the murder of the two and, thereafter, decamped with
the cash and substantial amount of ornaments.
13. A very strange argument was raised by Shri Sushi!
Kumar Jain. According to him, the prosecution had not proved
that there was any theft at all. This argument was not made even
D before the Trial Court or the appellate Court. However, the
argument must fail on the simple ground that the ornaments
found with Rajesh were kept in a tiffin bearing the name of
Ramlal. Rajesh could not give any explanation of the huge
amount of ornaments melted and other things found in his
E possession. Secondly, there was also a Katordan which was
found by the Investigating Officer with Gordhan (though there
is some controversy as to from which accused the said
Katordan bearing the name of Ramlal was found). Even if there
is such a controversy the fact of the matter is that the Katordan
F did belong to Ramlal and there is no explanation whatsoever
as to how the Katordan came out of the house of Ramlal.
Thirdly, the huge amount of gold which was found with Ramesh
being 1347 gms. (some ornaments being intact and some
turned into gold ingots for which there was virtually no
G explanation, as also the ornaments found with accused
Gordhan and accused Bharat without any reasonable
explanation), therefore, would completely destroy the argument
of learned counsel that there was no theft. It does not stand to
reason that the police must have collected all these ornaments
H from the house of Ramlal after the murder and planted the
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
609
ornaments without any purpose for the obvious weakness of the A
argument. Therefore, the first argument of Shri Jain on behalf
of Ramesh, (A-3) that there was no theft or that the prosecution
had not proved any theft having committed at Ramlal's house
must fall to the ground.
B
14. Considering the case of Ramesh (A-3) whose
complicity has been held to be proved, Shri Sushil Kumar Jain,
learned counsel for the said appellant submitted that there was
contradiction with regard to the date, time and place of the
discoveries and recoveries. Some minor contradictions were C
shown which are of no consequence. The learned counsel tried
to urge that though the accused was arrested on 9.2.2003 as
per Exhibit P-102A (Rojnamcha of the Police Station Phalodi),
according to lnder Singh (PW-10), he was arrested on
10.2.2003. We are not impressed by this argument at all,
particularly, in view of the evidence of lnder Singh (PW-10), D
Mahendra Pal Singh (PW-19) and Nagaram (PW-33). There
is nothing wrong if the said accused was arrested somewhere
and brought to the Police Station Kotwali. After all, he was
carrying the huge amount of ornaments and cash on his person.
If that was so, it could not have been weighed in the open E
market. For that, he was required to be brought to the Police
Station Kotwali. Therefore, this argument that there was some
contradiction in the versions, does not impress us. Similarly,
the learned counsel tried to argue that as per the evidence of
lnder Singh, SHO (PW-10), after arresting Ramesh (A-3), they F
had come straight to Nagorigate Police Station. We do not find
much substance in this argument as it is sufficiently proved by
the prosecution that when Ramesh (A-3) was arrested, he was
having a black bag containing huge amount of gold ornaments.
It does not really matter as to whether the proceedings were G
done at Adharshila or at Nagorigate or even at Kotwali Police
Station so long as it is proved that when apprehended, Ramesh
(A-3) was carrying the black bag full of ornaments and cash
which has been successfully proved by the prosecution. This
is all the more true as there is absolutely no explanation by H
610 SUPREME COURT REPORTS [2011} 4 S.C.R.
A Ramesh (A-3) for the possession of the huge haul of gold.
Therefore, the so-called contradictions in the evidence of lnder
Singh (PW-10), Mahendra Pal Singh (PW-19) and Nagaram
(PW-33) does not impress us at all. We have already observed
that it could not be possible for the police to collect all the gold
B and to put it against the three accused persons. The learned
counsel tried to argue that there is no mention in Exhibit P-44
(Memo of Arrest) of the black bags specifically. That is not
correct. A look at Exhibit P-44 is sufficient to show that there
was a black bag with Ramesh (A-3). After all, he was not going
c to carry all these instruments in his shirt pockets and pant
pockets. Even if it is not mentioned, that is of no consequence.
A good explanation has been given that since the bag was
empty, there was no necessity of its being sealed. We accept
the explanation. Therefore, we hold that the High Court and the
0 Trial Court were correct in holding that a huge haul of gold was
found weighing as much as 1347 gms., which is more than a
Kilo of gold. There was also no explanation for the cash. It is
also significant that Ramesh (A-3) did not claim these
ornaments as his ornaments. All that the accused is suggesting
E is that the ornaments were not seizeci from him. It is impossible
to accept this version of the accused.
15. This takes us to a very strong circumstance against
Ramesh (A-3) i.e. the presence of human blood on his
(Ramesh's) clothes. Recovery Memo (Exhibit P-41) is in
F respect of clothes and shoes of Ramesh (A-3). That was
effected on 15.2.2003. Exhibit P-42 is a site plan of the recovery
of clothes and shoes. True it is that Ramesh's house was
visited by Kishan Singh (PW-35), the Investigating Officer for
recovery of Jharbad. It may be that at that time the concerned
G police officer did not show the presence of mind by searching
the house for recovery of clothes and shoes. However, that by
itself will not demolish the prosecution case. It has to be borne
in mind that it was in pursuance of Exhibit P-108 that the
information was given by the accused regarding the clothes and
H shoes. While he had given the information about the weapon
• RAMESH v. STATE OF RAJASTHAN 611
[V.S SIRPURKAR, J.]
of offence 'Jharbad' vide Exhibit P-103 dated 12.2.2003, we A
do accept that the police officer on 12.3.2003 itself, when he
seized the murder weapon i.e. Jharbad, should have taken the
search of the whole house. But, failure on the part of the police
officer to do that would not by itself wipe out the prosecution
case, particularly, in view of the fact that the articles, namely, B
Jharbad, pant and the shoes were found to be stained with
human blood, which is clear from Exhibit P-126. We have
minutely seen and examined Exhibit P-126, where it is seen
that shirt and shoes of Ramesh (A-3) were stained with human
blood, though the blood group could not be detected. However, c
some explanation was bound to be offered by Ramesh (A-3)
as to how the human blood came on the shoes and on the shirt.
There is no explanation which is worthy. The murder weapon,
however, has been found stained with human blood and even
its blood group has been shown to be 'A'. It is to be seen that
0
the clothes of Ramlal were stained with his own blood which
was of group 'A'. This is a very weighty circumstance against
Ramesh (A-3) and there is absolutely no explanation offered
by Ramesh (A-3) of this highly incriminating circumstance. Thus,
it is clear from this evidence that prosecution had proved its E
case against Ramesh (A-3) that he was involved in the robbery
which was clear from the human blood detected on his clothes
and the murder weapon which was recovered at his instance.
Shri Jain, learned counsel tried to attack the recoveries and the
discoveries. However, both the Courts below have accepted
the same. In addition to this, Ramesh (A-3) was found to be in F
possession of huge amount of gold in form of ornaments and
ingots and cash, for which he had no explanation. The said
articles were seized from his person. It is not understood as to
why the gold would be in the form of ingots from the recovery
of the gold melting apparatus from Rajesh. It was clear that G
there was effort to melt the gold. The necessity of melting the
gold and the fact that the accused persons like Rajesh made
efforts to melt the gold and further accused Ramesh being
found in possession of gold ingots which could not have been
in that form lends support to the theory that Ramesh was in H
612 SUPREME COURT REPORTS [2011) 4 S.C.R.
A possession of the stolen property. There is no explanation by
Ramesh even for the huge cash. He did not accept the cash
belonging to him. He is not shown to be a wealthy person so
as to be in possession of 1347 gms. of gold and a huge cash
of about Rs. 30,000/-. All this and the further evidence that his
s clothes and shoes were stained in blood and the Jharbad
(weapon) recovered from him was also blood stained with A
group of blood would clinch the case against Ramesh. Shri Jain
also very earnestly suggested that discoveries and recoveries
were farcical and that in fact, some of the discoveries and
c recoveries were disbelieved by the Trial Court also but had
been accepted by the High Court.
16. We are of the clear opinion that the High Court was
absolutely correct in believing the recoveries and discoveries
also, particularly, as against the accused Ramesh. There may
D be some irregularities here and there or some casual
investigation by the police, however, we do not think that the
investigation in this case was tainted. There was absolutely no
reason for the police to falsely implicate Ramesh (A-3) and the
other two accused persons. True it is that Phalodi is a small
E place and there was great tension prevailing on account of the
robbery, however, that by itself will not be the reason for police
to falsely implicate Ramesh (A-3) and the other two accused
persons. Nothing has been brought in the cross-examination
of the police officers and, more particularly, the cross-
F examination of Kishan Singh (PW-35), the Investigating Officer.
Before going to the other cited cases, we would consider the
case of Gordhan Lal (A-1).
17. In so far as accused Gordhan is concerned, Shri
G Lahoti, learned counsel appearing for him, led much stress on
the fact that there was no blood found on Gordhan's pant and
T-shirt. The learned counsel further says that it is obvious that
Gordhan was not the participant in the crime. That statement
is clearly incorrect. Insofar as his T-shirt is concerned, Exhibit
H P-126 clearly speaks that human blood was found on his shirt.
• . RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
613
As if this was not sufficient, his shoes were also found to be A
stained with human blood. Therefore, Exhibit P-126 would
falsify. the claim on behalf of accused Gordhan that he was not
connected with the crime. It is only his pant which seems to be
innocuous in the sense that no blood was found on the same.
However, there is no explanation by Gordhan as to how his T- B
shirt and shoes were found to be stained with human blood. Shri
Lahoti attacked the recovery of clothes as well as the ornaments
on 9.2.2003. The prosecution has relied on PW-6, Mohan Lal,
PW-7, Dev Kumar and PW-11, Ajit Jain. The recovery of clothes
was on 9.2.2003, while the ornaments were recovered on c
13.2.2003 and 19.2.2003. It was only the gold chain which was
recovered on 19.2.2003 from him. Rest of the ornaments were
recovered from him and it was found at the time of recovery
that the ornaments were kept in a Katordan. It is specifically
mentioned therein that the name of Ramlal was engraved on
0
the said Katordan. The learned counsel very vehemently
attacked this so-called recovery which was made on 13.2.2003.
The recovery appears to have been made on 09.2.2003 vide
Exhibit P-38. It was only on that day that the clothes and the
shoes of Gordhan were seized. On 19.2.2003, Gordhan
produced the chain. It must be remembered that this was the E
gold chain which was identified by PW-30 Rajesh in the
identification parade by PW-22, Jitendra Kumar Pandey
Tehsildar, Phalodi.
18. We have gone through the evidence of identification F
parade especially of PW-22, Jitendra Kumar Pandey and both
the Courts having accepted the evidence about the
identification of ornaments which were recovered from Ramesh.
We do not find any reason to dis-believe that evidence.
Therefore, it is established that Ramesh was undoubtedly in G
possession of the ornaments which ornaments can be
connected with Ramlal. In this behalf, we must refer to the
eyidence of Rajesh who claimed in his evidence that he
identified the chain of his maternal uncle. It is to be seen that
Rajesh was the nephew of deceased Ramlal. He surfaced H
614 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A immediately after it was known that Ramlal and his wife Shanti
Devi were murdered. He claimed that he had seen his maternal
uncle using the chain and two rings and his Marni i.e. Shanti
Devi using four bangles and four rings and ear rings in her ears.
He was the one who performed the last rites of Ramlal and
B Shanti Devi. He also referred to the search taken by police on
8.2.2003 and the Fard prepared therein vide Exhibit P-22. He
described that the goods in the shop were lying scattered and
there were small Potlies containing Rs.17,000/- in cash and
some change. On 18.4.2003, he was called for identifying the
c ornaments. The identification proceedings are to be seen from
Exhibits P-24 and P-25. He correctly identified the chain of
maternal uncle and also the bangles of his maternal aunt. The
learned counsel assailed this evidence vehemently. The mother
of Rajesh was the first wife of his father and Ramlal was the
D brother of his mother who was 110 more. His claim that he used
to stay with deceased Ramlal whenever he was in Phalodi,
could not be demolished. It was urged that even Ramlal's first
wife had died and Shanti Devi was his second wife, for whose
marriage he was not invited. He corrected himself and claimed
that though he was invited, since there was a death of a close
E relative, he could not come for the marriage from Madras. Even
accepting that this witness was not called for the marriage, the
fact that he used to stay with the deceased persons whenever
he was in Phalodi could not be demolished. The tenor of his
evidence shows that he indeed was very closely connected with
F Ramlal. We are not impressed by the huge and long cross-
examination of this witness. Most of the cross-examination was
irrelevant. In fact, it is in his cross-examination that it has come
that there was a mark of flower and patia (leaves) on the gold
bangles of his maternal aunt. It cannot be expected that the
G witness would give a graphic description of the ornaments.
Much cross-examination was wasted in showing that he did not
know from where the other bangles and chains were brought
by the police for the identification purpose. That was absolutely
irrelevant. The evidence of Jitender Kumar (PW-22) is
H extremely important inasmuch as both Ramesh (A-3) and Bharat
• RAMESH v. STATE OF RAJASTHAN 615
[V.S SIRPURKAR, J.]
Kumar (A-2) are connected because of that evidence. The four A
gold bangles which were identified by Rajesh (A-4) were seized
from Bharat Kumar (A-2) while the chain which was identified
by him was seized from Gordhan Lal (A-1). This witness
specifically stated that these ornaments were correctly
identified. There is hardly any cross-examination which is B
worthy and can be relied upon and accepted. The cross-
examination only consists of some futile suggestions. This
witness had no interest against the accused or in favour of the
prosecution. He was doing his duty. His evidence connects
Gordhan (A-1) and Bharat Kumar (A-2) with the crime. We, C
therefore, accept the identification. We are also in agreement
with the High Court that the recoveries from Gordhan Lal (A-1)
and Bharat Kumar (A-2) of the ornaments including the
identified bangles and the chain were fully proved. There is
hardly any explanation by these two accused persons.
D
19. We are not impressed by the contention raised that
the police have seized the gold chain on 19.2.2003 even when
they had visited the same place on 9.2.2003 for recovering the
cloths on 13.2.2003 for recovering the other ornaments including
the Katordan. It is quite possible that the police were not able E
to recover all the ornaments in one go. The High Court has given
good reasons to set aside the finding of the Trial Court to the
effect that this recovery was not proved. In fact, there is clear
cut evidence on record that the ornaments which were
recovered on 13.2.2003 were kept in a Katordan. We have F
already commented that in Exhibit P35 itself, it is clearly
mentioned that full name of deceased Ramlal was engraved
on the Katordan. The recovery of Katordan would clinch the
issue insofar as the identification of the ornaments is
concerned. Gordhan had no explanation whatsoever for these G
ornaments or for the Katordan. Therefore, it is clear that
Gordhan was also in possession of the stolen property almost
immediately after the theft and was directly connected with the
crime since his shirt and shoes were stained with human blood
for which there was no explanation. We confirm the finding given H
616 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A by the High Court regarding the recoveries. We have already
pointed out earlier that the gold chain which was recovered from
accused Gordhan was clearly identified by PW-30, Rajesh. We
have closely seen the evidence of PW-7, Dev Kumar and PW-
35, Kishan Singh. We have also considered the evidence of
B DW-5, Chhel Singh. We are, therefore, of the clear opinion that
the prosecution has been able to prove the guilt of Gordhan who
was not only a participant in the crime but was also found in
possession of the gold ornaments including the gold chain
which was clearly identified by witness PW-30,Rajesh. We,
c therefore, confirm the finding of the High Court in that behalf
and hold that the High Court was right in dismissing the appeal
of Gordhan. There is some controversy in respect of the
Katordan as to whether it was seized from Gordhan or from
Bharat Kumar. Considering the oral evidence of PW-6, Mohan
0 Lal as also PW-35, Kishan Singh and further considering Exhibit
P-35, we are of the clear opinion that Katordan on which name
of deceased Ramlal was engraved was undoubtedly seized
from this accused. We are, therefore, of the clear opinion that
the High Court was right in dismissing the appeal of this
accused.
E
20. This leaves us with the case of Bharat which is no
better than Gordhan's case. It must be remembered that as per
Exhibit P-126, Bharat Kumar's T-shirt as well as pant as also
his shoes were stained with human blood and further his pant
F and shirt were found to be stained with blood group A which
was the blood group of Ramlal. This circumstance alone is
sufficient to clinch the issue against this accused. As if this is
not sufficient, there has been the recovery of gold ornaments
from Bharat Kumar. He was arrested on 7.2.2003 and vide
G Exhibit P-85, he agreed to produce the ornaments vide Exhibit
P-105. The ornaments were recovered vide recovery memo
being Exhibit P-53. The following ornaments were found with
him:
"Silver Badia weighing 295 gms;
H
• - RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
617
One pair of silver nevra weighing 270 gms; A
One pair of silver kadla weighing 430 gms;
Silver 'dhala' weighing 076 gms;
Silver ring, bichhudi, 17 pairs of pech, 14 pech weighing B
84 gms;
One silver ingot weighing 205 gms."
This recovery is supported by the evidence of PW-13,
Jalim Chand. However, the Trial Court rejected this recovery. C
The High Court has set aside that finding and has held that the
recovery was fully proved. It cannot be forgotten that Bharat
gave no explanation about the huge amount of silver ornaments
found with him. Again, we fail to follow as to how the silver ingots
weighing 205 gms. could be found unless the silver ornaments D
were turned into the shape of ingots. Secondly, four gold
bangles were found vide Exhibit P-114 by way of this discovery.
This discovery was proved by PW-11, Ajit Jain and in the
identification proceedings vide Exhibit 25, bangles were
correctly identified by PW-30, Rajesh. We have already E
commented about Rajesh and PW-22, Jitender Kumar who
held the identification parade. This in fact clinches the issue.
A strong argument was advanced by the learned counsel Shri
Krishnamani that this was a belated discovery and as such was
not liable to be believed. We have already held that the F
discovery made by the accused and the recovery of the
ornaments in pursuance of that are completely credible, seen
in the light of other evidence of his blood stained T-shirt and
shoes. Shri Krishnamani could not explain the finding of the
blood as also the clinching evidence of the recovery of G
ornaments in pursuance of the discovery statement made by
the accused. We are, therefore, of the clear opinion that even
this accused would be held liable and would be held guilty for
the offence alleged against him.
21. We shall now consider the case law relied upon by the H
618 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A learned counsel for the defence. Shri Jain, learned counsel
appearing on behalf of Ramesh (A-3). then relied on the
decisions in Chandtnal & Anr. Vs. State of Rajasthan [1976
(1) SCC 621], Mohd. Aman & Anr. Vs. State of Rajasthan etc.
etc., [1997 (10) SCC 44], Mahabir Sao alias Mahadeo Sao
B Vs. The State of Bihar [1972 (1) SCC 505] and Inspector of
Police, Tamil Nadu Vs. Bala Prasanna [2008 (11) SCC 645].
Even as regards the detection of human blood, the learned
counsel relied on the decisions in State of Rajasthan Vs. Raja
Ram [2003 (8) SCC 180], Yeshwant & Ors. Vs. The State of
c Maharashtra etc. etc. [1972 (3) SCC 639], Raghunath Vs.
State of Haryana & Anr. etc. etc. [2003 (1) SCC 398], State
of MP. Vs. Nisar [2007 (5) SCC 658] and Hardyal Prem Vs.
State of Rajasthan [1991 Supp. (1) SCC 148] to suggest that
mere presence of human blood would not constitute an
0 incriminating circumstance. The other two cases relied upon by
the learned counsel are Manish Dixit & Ors. Vs. State of
Rajasthan etc. etc. [2001 (1) SCC 596] and Subhash Chand
Vs. State of Rajasthan [2002 (1) SCC 702].
22. Insofar as the first group of cases is concerned, they
E are relating to the identification of the ornaments recovered
from Ramesh. In Chandmal & Anr. v. State of Rajasthan (cited
supra), this Court held that unless the property in possession
of the accused is proved to be a stolen property the
prosecution cannot benefit from mere possession of such
F property. That was a case where the property was recovered
after two years of the murder and the alleged theft and,
therefore, the Court held that presumption under Section 114
Illustration (a) of the Indian Evidence Act could not be applicable.
The case is quite different on facts. In Mohd. Aman & Anr. v.
G State of Rajasthan etc.etc. (cited supra) the question was of
the possession of the accused of four silver rings belonging to
the deceased's wife. On facts, it was held that the same could
not be stolen property as the prosecution had failed to prove
that the rings belonged to the deceased's wife. It was further
H held that even assuming that the rings belonged to the
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
619
.. deceased wife, it was not established by the prosecution that A
0 the said rings were stolen at the time of commission of murder
and not on earlier occasion. The Court had found, on
appreciation of evidence, that the recovery of the stolen articles
was not established. It was, therefore, that the Court left the said
evidence out of the consideration. However, that is not the case 8
here. We have already pointed out that the theft of the articles,
more particularly, the melting apparatus machine and the
ornaments was fully established. The identification of the
property was also established. Hence the ruling is of no
consequence.
c
In Inspector of Police, Tamil Nadu v. Bala Prasannas'
case (cited supra), the Court observed that though the accused
persons were found in possession of the gold ingots, the Court
went on to hold that because of that it would be hazardous to
come to the conclusion that in fact gold jewellery belonged to D
the deceased. That was a case where the earrings of the
deceased remained intact on the body. The case turns on its
own facts. In the present case, it is not only the gold which
connects the accused with the crime but also the articles like
Katordan and tiffin on which the name of the deceased was E
engraved. The evidence clearly showed that the Katordan was
seized with the ornaments in it. Further, some of the ornaments
like gold bangles and the chain were actually identified and we
have accepted the identification evidence. Such was not the
case in the reported decision. That decision·would, therefore, F
be of no consequence.
The last decision relied upon by the learned counsel Shri
Jain reported as Mahabir Sao @ Mahadeo Sao v. The State
of Bihar (cited supra) was again on different facts. In this case G
the description of the stolen property itself differed.
23. The learned counsel then urged, relying on State of
Rajasthan Vs. Raja Ram (cited supra), that merely because
the articles and weapons were found with human blood, that by
itself would not connect the accused. The contention was raised H
620 SUPREME COURT REPORTS [2011) 4 S.C.R. •
A in respect of the murder weapon Jharbad. The contention is
that mere recovery of weapon cann<;>t be a foundation of the
prosecution case and the conviction cannot be made merely
on the basis of such recovery. It must be stated at this juncture
that in this case the conviction of Ramesh is not being based
B merely on the recovery of weapon. It must be remembered that
not only were the clothes blood stained but the Jharbad
(weapon) was also found to be stained with blood of the blood
group A which was the blood group of deceased Ramlal. We
have nothing to say about the principles emanating from this
C ruling. However, the facts appear to be clearly different. The
existence of blood on the clothes was explained in that case
on the basis of the possibility of blood being that of the accused
himself. Such is not the case here. None of the accused has
pleaded that they were injured in any manner nor was any injury
found on their person. The ruling is, therefore, of no
D consequence.
In Yashwant's case, (cited supra) the facts are quite
different. That case turned on account of the identification
parade not having been believed. The Court proceeded to hold
E that though a blood stained dhoti was found at the accused's
residence, the blood group was not fixed. There was no
connection established. It is on that ground that the Court
proceeded to give the benefit of doubt. The Court has not held
that in all the cases where the blood group is not fixed, the
F existence of blood on the wearing apparel becomes
inconclusive. In this case, the existence of the blood is not the
only circumstance on the basis of which the accused has been
convicted. We, therefore, find no parity of reasoning in this case.
In Raghunath's case (cited supra) again, the Court was
G concerned with the blood stained earth, blood stained muffler
and lathis. Since the blood group was not proved, the Court
came to the conclusion that the mere fact that the blood was
human, was not conclusive evidence. Insofar as some of the
accused persons are concerned, even the blood group is fixed
H
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
621
and, therefore, this case would be of no consequence. A
In Hardayal Prem's case (cited supra), the prosecution
was not able. to fix the blood group of blood found on the
weapon. Under those circumstances, the prosecution case was
not accepted. Such is not the case here. The blood on Jharbad 8
was found to be a blood of blood group of A which was Ramlal's
blood group.
In Manish Dixit's case (cited supra) the only circumstance
was that the blood found on the motorcycle of the accused was
found to be of the blood group of the deceased. Under the C
circumstances, this Court declined to convict the accused on
that sole circumstance. It is very significant to note the
observations made in para 35 "if there were other
circumstances apart from the recovery of some jewellery
belonging to the deceased from the possession of this D
accused, perhaps the aforesaid circumstance (relating to the
. blood stained found on the motorcycle) would have lent
support to an inference against him." In fact the observations
are more helpful to the prosecution than to the defence.
E
The case of Subhash Chand (cited supra) is completely
different on facts. That was a case where the underwear which
was blood stained and on which the semen stain was not shown
to be belonging to the accused at all no connection was
established. It was on that basis that the matter was decided. F
Therefore, this case is also of no consequence.
Some other cases were cited like oft-quoted case of
Pu/ukari Kottaiah v. King Emperor [AIR 1947 PC 67), Mohd.
lnayatullah v. State of Maharashtra [1976 (1) 828), Poha/ya
Motya Va/vi v. State of Maharashtra [1980 (1) SCC 530) and G
Mohd. Abdul Hafeez v. State of Andhra Pradesh [1983 (1)
SCC 143). There is no question of the principles regarding
Section 27, Indian Evidence Act. However, on facts we have
found the discoveries of all the three accused persons in this·
case to be reliable in the peculiar facts of this case. Lastly, the H
622 SUPREME COURT REPORTS (2011] 4 S.C.R.
•
A learned counsel relied on Ram Pal Pithwa Rahidas v. State
of Maharashtra [1994 Suppl. (2) SCC 73] which speaks about
the necessity of a fair investigation. In para 37, the Court has
observed as under:
"37.The quality of a nation's civilization, it is said, can be
B
largely measured by the methods it uses in the
enforcement of the criminal law' and going by the manner
in which the investigating agency acted in this case
causes concern to us. In every civilized society the police
force is invested with the powers of investigation of the
c crime to secure punishment for the criminal and it is in the
interest of the society that the investigating agency must
act honestly and fairly and not resort to fabricating false
evidence or creating false clues only with a view to secure
conviction because such acts shake the confidence of the
D common man not only in the investigating agency but in
the ultimate analysis in the system of dispensation of
criminal justice. Let no guilty man go unpunished but let the
end not justify the means! The courts must remain ever
alive to this truism. Proper results must be obtained by
E recourse to proper means- otherwise it would be an
invitation to anarchy.·
24. We have absolutely no reason to differ on the principle
of honesty and fair investigation. However, we do not find any
F reason here in this case to hold that the investigation was in
any way unfair. We have already held that merely because the
recoveries were made from the same place which was already
visited by the police, that would itself not dispel the evidence
of discovery and recovery. This we have held on the basis of
G the peculiar evidence led in this case. True it is that the
investigation officer should have thoroughly searched the
premises of Gordhan and Bharat Kumar on 9.2.2003 itself.
However, if the accused agreed to discover different things on
different dates and those things were actually found in
H pursuance of the information given by the accused, the
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
623
discoveries cannot be faulted for only that reason. A
25. In short, we are of the opinion, that the appeals filed
by the accused persons, namely, Gordhan (A-1) and Bharat
Kumar (A-2) have to be dismissed and they are dismissed.
Even accused No.3, Ramesh has been convicted. We confirm B
the conviction of Ramesh. However, Ramesh has been
awarded death sentence. We would, at this juncture, consider
as to whether the death sentence is justified in the present
case.
26. Both the Courts below have unanimously awarded C
death sentence to accused Ramesh, treating this to be a rarest
of the rare case. The Trial Court has held that it was this
accused Ramesh who inflicted injuries on both the deceased
Ramlal and Shanti Devi. The Trial Court referred to the reported
decision in Shri Bhagwan v. State of Rajasthan [2001 (6) SCC D
296) and it is only on that ground that accused Ramesh alone
was condemned to death. We are not quite satisfied with the
reasoning given by the Trial Court. Before awarding the death
sentence, the Trial Court was expected to give elaborate
reasons. We have gone through the appellate Court's judgment. E
The appellate Court's judgment relied on the reported decision
in Suhil Murmu v. State of Jharkhand [AIR 2004 SC 394)
which observed that a balance-sheet of the aggravating and
mitigating circumstances has to be drawn up and further to
accord full weightage to the mitigating circumstances and then F
to strike just balance between the aggravating and mitigating
circumstances before the option is exercised. The appellate
Court has quoted paragraph 16 of that judgment and has given
four circumstances which may be relevant in awarding the death
sentence. They are as under:
G
"The following guidelines which emerge from Bachan Singh
case (supra) will have to be applied to the facts of each
individual case where the question of imposition of death
sentence arises: -
H
:.,-_.
624 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A (i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
(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'.
B
(iii) Life imprisonment is the rule and death sentence is an
exception. Death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of
c 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
c:ircumstances.
D
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before
E
the option is exercised.
27. In our opinion, none of the four circumstances
mentioned is available in the present case. It is no doubt true
that the murder of Ramlal and Shanti Devi was cruel. However,
F that cannot be said to be brutal, grotesque and diabolical nor
could it be said that the murder was committed in a revolting
manner so as to arise intense and extreme indignation. This
was not a case where accused Ramesh was in a dominating
position or in a position of trust nor could it be said to be a
G murder for personal reasons. This is also not a case of bride
burning or dowry death which is committed in order to remarry
for extracting dowry once again. Though this is a double
murder, it cannot be said to be a crime of enormous proportion.
Ramesh could not be said to be a person in a dominating
H position as this is not a murder of an innocent child or a helpless
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
625
woman or old or infirm person. This was undoubtedly a murder A
for gains. The High Court has come out with a case that
appellant Ramesh was having criminal record. However, we do
not find any previous conviction having been proved against
Ramesh by the prosecution. It is apparent that the original
intention was theft and on account of the deceased having been B
awakened, the accused persons took the extreme step of
eliminating both the inmates of the house for the fear of being
detected.
28. It cannot be said that it was Ramesh alone who has
committed the murder only because he was the one who C
discovered the murder weapon Jharbad. It is not clear from the
evidence as to who was the actual author of the injuries on
Ramlal and Shanti Devi though all the three were participants
of the crime. There is no definite evidence about the acts on
the part of each of the accused. It will be, therefore, difficult to D
say that Ramesh alone was the author of injuries on Ramlal as
well as Shanti Devi.
29. The learned counsel relied on two decision of this
Court, the first being Dilip Premnarayan Tiwari v. State of E
Maharashtra [2010 (1) SCC 775]. The other decisions relied
upon is Mui/a v. State of U.P. (2010 (3) SCC 508] as also
Santosh Kumar Shantibhushan Beriyar v. State of
Maharashtra (2009 (6) SCC 498]. In Mu/la's case in paragraph
80 and 81, the Court held as under: F
"SO.Another factor which unfortunately has been left
out in much judicial decision-making in sentencing is the
social-economic factors leading to crime. We at no stage
suggest that economic depravity justify moral depravity, but
we certainly recognize that in the real world, such factors G
may lead a person to crime. The 48th Report of the Law
Commission also reflected this concern. Therefore, we
believe, socio-economic factors might not dilute guilt, but
they may amount to mitigating factor i.e. the ability of the
guilty to reform. It may not be misplaced to note that a H
626 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A criminal who commits crimes due to his economic
backwardness is most likely to reform. This Court on many
previous occasions has held that his ability to reform
amounts to a mitigating factor in cases of death penalty.
81.ln the present case, the convicts belong to an
B
extremely poor background. With lack of knowledge, on the
background of the appellants, we may not be certain as to
their past, but one thing which is clear to us is that they have
committed these heinous crimes for want of money.
Though we are shocked by their deeds, we find no reason
c ~vhy they cannot be reformed over a period of time.•
The observations are extremely germane to the question
before us.
0 30. There can be no dispute that this was a case in which
money was the motive. We have already seen that the accused
person do not come from a wealthy background. On the other
hand, it has been held that they could not justify the possession
of ornaments found with them. It has also been held that they
E were unlikely to own the ornaments on account of their financial
position.
31. Practically, the whole law on death sentence was
referred to in Santosh Kumar's case. In paragraph 56, the Court
observed "the court must play a pro-active role to record all
F relevant information at this stage. Some of the information
relating to crime can be culled out from the phase prior to
sentencing hearing. This information would include aspects
relating to the nature, motive and impact of crime, culpability
of convict etc. Quality of evidence is also a relevant factor. For
G instance, extent of reliance on circumstantial evidence or child
witness plays an important role in the sentencing analysis. But
what is sorely Jacking, in most capital sentencing cases, is
information relating to characteristics and socio-economic
background of the offenders. This issue was also raised in 48th
H Report of the Law Commission. The Court, thus, has in a
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.]
627
guided manner referred to the quality of evidence and has A
sounded a note of caution that in a case where the reliance is
on circumstantial evidence, that factor has to be taken into
consideration while awarding the death sentence. This is also
a case purely on the circumstantial evidence. We should not
be understood to say that in all cases of circumstantial s
evidence, the death sentence cannot be given. In fact in Shivaji
@ Dadya Shankar A/hat v. State of Maharashtra [2008 (15)
, SC 269), this Court had awarded death sentence though the
evidence was of circumstantial nature. All that we say is that
the case being dependent upon circumstantial evidence is one c
of the relevant considerations. We have only noted it as one of
the circumstances in formulating the sentencing policy. Further
in that case the Court upheld the principles emanating from
Bachan Singh v. State of Punjab [1980 (2) SCC 684) where
the probability that the accused can be reformed and D
rehabilitated was held as one of the mitigating circumstances
and it was observed that the State should, by evidence prove
that the accused does not satisfy these conditions, meaning
thereby that the accused is not likely to be reformed. The Court
went on to hold that the rarest of rare dictum imposes a wide E
ranging embargo on the award of death punishment which can
only be revoked if the facts of the case successfully satisfy
double qualification :
(1) that the case belongs to rarest of the rare
category and; F
(2) alternative option of life imprisonment will not
suffice in the facts of the case.
32. The Court then observed that the rarest of the rare
dictum places an extraordinary burden on the Court. G
Considering these principles, we do not think that there was no
possibility of reformation of the accused persons. True it is that
the accused were driven by their avarice for wealth but given a
chance there is every possibility of their being reformed. We
are also of the clear opinion that in this case it is not established H
628 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A that alternative punishment of life imprisonment will be futile and
would serve no purpose. In paragraph 66 of Santosh Kumar's
case (cited supra), the Court observed that life imprisonment
can be said to be completely futile only when the sentencing
aim of reformation can be said to be unachievable. The Court
B further went on to say "therefore, being satisfied the second
explanation of rarest of rare doctrine the court will have to
provide clear evidence as to why the convict is not fit for any
kind of reformative and rehabilitation scheme.
33. In our opinion, there has been no such exercise taken
C either by the trial Court or appellate Court nor do we find any
discussion about the life imprisonment being rendered futile and
serving no purpose.
34. In Bachan Singh's case (cited supra) the age of
D accused was held to be one of the mitigation circumstances.
Accused Ramesh is a young person. We do not see any
reason as to why he cannot be reformed and rehabilitated.
35. We must also take into consideration that this was the
E first proved offence of accused Ramesh. No other conviction
has been proved against him by the prosecution. Since this is
his maiden conviction, we do not see as to how accused
Ramesh cannot be reformed. Further we do not see this to be
an offence by the organized criminals so as to affect the society
F as a whole.
36. Learned counsel also relied on Dilip Premnarayan
Tiwari v. State of Maharashtra (cited supra) where the accused,
who was guilty of three murders, was let off. That was also a
case of the accused being of young age. The Court also took
G into consideration the argument that the deaths in that case
were in reality not intended deaths but the dead persons
became the victims of the circumstances since the deceased
in that case tried to stop the assailants. The situation is
somewhat similar here though not identical. We have already
H mentioned that if the deceased Ramlal and his wife had not
• RAMESH v. STATE OF RAJASTHAN
[V.S SIRPURKAR, J.].
629
been awakened, the ghastly incident might not have occurred. A
There are number of other decisions which were relied upon
by the learned counsel. However, since we have referred to
Santosh Kumar's case (cited supra) which has considered the
whole law on the subject, we find it unnecessary to repeat the
same again. B
37. It has come in evidence in this case that the deceased
Ramlal and Shanti Devi had hair in their hands. The
prosecution wanted to point out that it must be during the scuffle
that the two dying persons might have pulled the hair of the C
assailants and this is how hair came in the hands of the
deceased persons. It is significant to note that on scientific
examination, it could not be established that hair in the hands
of the deceased belonged to accused Ramesh. Though there
are other clinching circumstances also to hold that Ra.mesh and
the two accused were undoubtedly the assailants. This D
circumstance would also weigh in our mind in not confirming
the death sentence. We say this particularly in the light of the
principles emanating from Santosh Kumar's case.
38. Lastly, we must take into consideration that Ramesh E
who was convicted and awarded the death sentence by the
learned Sessions Judge in 2004 is languishing in death cell for
more than six years. This also would be one of the mitigating
circumstances.
39. In short, we are of the opinion that the death sentence F
awarded to Ramesh would not be justified and instead we
would modify the same to life imprisonment. However,
conviction for the other offences as also sentences awarded
are confirmed. All the three appeals are accordingly dismissed
with the modifications of sentence in Criminal Appeal No.1236 G
of 2006 filed by Ramesh.
N.J. Appeals dismissed.
H
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