Supreme Court of India
SANDEEPversusSTATE OF U.P.
- Citation
- 2012 INSC 235
- Decided
- 11 May 2012
- Disposal
- Disposed off
- Bench
- B S CHAUHAN
Holding
The conviction of both accused was upheld, the death sentence for the main accused was commuted to life imprisonment with a 30‑year minimum, and the co‑accused's life sentence was affirmed.
Summary
The accused Sandeep and Shashi Bhushan were apprehended by police after a girl, Jyoti, reported that they had assaulted her, poured acid on her and attempted to abort her foetus. The victim later died, and the trial court convicted both under Sections 302 and 316 IPC, sentencing them to death. The High Court confirmed the death sentence for Sandeep but commuted Bhushan's to life imprisonment. On appeal, the Supreme Court held that the chain of circumstances was proved beyond doubt, the victim's dying statement was reliable, and the DNA evidence establishing Sandeep as the biological father of the foetus was admissible. While the Court upheld the life sentence for Bhushan, it commuted Sandeep's death sentence to life imprisonment with a mandatory minimum of 30 years without remission, finding the case did not satisfy the "rarest of rare" test for capital punishment.
Issues considered
- The admissibility of the victim's dying declaration and the accused's statements under Sections 8, 25 and 106 of the Evidence Act.
- Whether the delay in forwarding the FIR report to the magistrate under Section 157 CrPC vitiated the prosecution case.
- The relevance and reliability of DNA evidence linking the accused to the foetus.
- The applicability of the 'rarest of rare' doctrine to the death sentence imposed on the main accused.
- The burden of proof on the accused when alleging an alibi or theft of the vehicle.
Legislation cited
- Code of Criminal Procedure, 1973s. 157, s. 313
- Indian Evidence Act, 1872s. 106, s. 25, s. 8
- Indian Penal Code, 1860s. 154, s. 302, s. 307, s. 316, s. 324, s. 326, s. 328, s. 34
Subjects
murderdeath penaltylife imprisonmentrarest of rare doctrineevidence admissibilityDNA evidenceconfessionburden of proofFIR delay
Judgment
[2012] 5 S.C.R. 952
A SAN DEEP
v.
STATE OF U.P.
(Criminal Appeal No. 1651 of 2009 etc.)
MAY 11, 2012
B
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Penal Code, 1860 - ss. 302134 and 316154 - Murder -
C Prosecution for - Accused persons apprehended with the
victim who was in injured condition - By PWs police officials
while on patrolling duty - Victim implicating the accused -
Accused admitting the facts narrated by the victim and
confessing the guilt - Recoveries made - Subsequent death
D of the victim - Trial court convicting both the accused for
murder and sentencing them to death - High Court confirming
the conviction of both the accused - Death sentence of main
accused upheld while that of co-accused commuted to life
sentence - On appeal, held: The chain of circumstances
E alleged against the accused persons conclusively proved
without any missing link - Conviction of both the accused and
life sentence of co-accused affirmed - Death sentence of main
accused commuted to life sentence with order that he would
serve a minimum of 30 years in jail without remissions -
F Sentence/Sentencing.
Evidence Act, 1872:
s. 106 - Burden of proving fact specially within knowledge
- Accused taking plea of alibi - Held: Burden to establish the
G plea is on the accused since it was within his special
knowledge.
ss. 25 and 8 - Admission of facts and confession by
accused before police officials - Admissibility of - Held:
H 952
SANDEEP v. STATE OF U.P. 953
Statement of accused consisting mixture of admission and A
confession required to be sifted - Distinction required to be
drawn between admission and confession - Part of statement
which does not implicate the accused would amount to mere
admission and not confession and hence can be relied upon
and would be covered by s. 8 - s. 25 can be pressed into B
service only to the part of the statement that would implicate
the accused - When reliance is placed upon admissible
portion, the entirety of the statement cannot be rejected
outrightly by application of s. 25.
Evidence - Establishment of the fact that accused was C
biological father foetus - Plea that improper preservation of
the foetus sample resulted in wrong report - Two Samples of
foetus was preserved, one in formalin solution and the other
one by ice preservation - Sample preserved in formalin
solution was not accepted because standard protocol analysis D
was not available in the laboratory - However, Second sample
preserved in ice was tested which confirmed that the accused
was father of the foetus - Thus fatherhood of the accused with
the foetus was established.
E
Code of Criminal Procedure, 1973 - s. 157 - Delay in
forwarding the express report to Magistrate - Effect of, on
prosecution case - Held: Where FIR is recorded without delay
and investigation started on the basis of the FIR and no
infirmity brought out, mere delay in forwarding the express F
report to the Magistrate, in absence of any prejudice to the
accused, cannot be said to have tainted the investigation.
Appellants-accused were prosecuted for having
caused death of a girl. The prosecution case was that
when the police officials PW1 to PW-5 and were on G
patrolling duty, they were informed by two constables
that they heard some screaming noise from a moving car.
PW-1 alongwith others, when went in that direction, at a
distance saw a car. They saw two young men trying to
pull out a girl in injured condition by opening the rear H
954 SUPREME COURT REPORTS [2012] 5 S.C.R.
A door of the car. PW-1 and others caught hold of the two
young men and also noticed a girl with injuries all over
and on whom acid was also sprinkled. When PW-1
questioned her, she told her name, parents name and
address and also told that she had developed friendship
s with accused 'S' (main accused); that she got pregnant;
that on being told by the main accused that he would
marry her at Haridwar, she went with him; that while they
were moving in the vehicle driven by the co-accused, the
main accused asked her to get the foetus aborted; that
c when she disagreed, and told that she would reveal the
facts to his family members and the police, he started
beating her with jack and spanner and cut her with a
blade and also poured acid on her head; and that they
tried to throw her into field when PW-1 arrived here. The
accused persons, on being apprehended, admitted the
0
facts as revealed by the victim. They also admitted
having purchased two bottles of acid and four shaving
blades. They confessed that they caused injuries to the
deceased. The police party seized the vehicle, a jack, a
spanner, four blades and two empty bottles of acid. The
E victim was sent to the hospital. Statement of PW-1 was
registered as FIR against both the accused u/ss. 307, 326,
324 and 328 IPC. The same was later altered u/s. 302/34
after the victim was declared dead. The trial court charged
the accused u/ss. 302/34 and s. 316/34 IPC. Accused were
F found guilty of offences u/ss. 302/34 and 316/34 IPC and
capital punishment was inflicted on both the accused.
High Court upheld the conviction of both the accused.
However, while confirming the death sentence of the
main accused, altered the sentence of the co-accused
G into imprisonment for life. Hence the present appeals.
Partly allowing the appeal of the main accused and
dismissing the appeal of the co-accused, the Court
HELD: 1.1 The chain of circumstances alleged
H
SANDEEP v. STATE OF U.P. 955
against the appellants was conclusively proved without A
.any missing link. There is no scope to interfere with the
conviction arrived at against the appellants by the trial
court as confirmed by the Division Bench of the High
Court. [Para 35] [990-F-G]
B
State of WB. v. Mir Mohammad Omar and Ors.2000 (8)
SCC 382:2000 (2) Suppl. SCR 712; Somappa Vamanappa
Madar andShankarappa Ravanappa Kaddi v. State of
Mysore (1980) 1 SCC 479:Suni/ Kumar and Anr. vs. State of
Rajasthan (2005) 9 SCC 283: 2005 (1) SCR 612; Ram
Kumar v. State (NCT) of Delhi (1999) 9 SCC 149- referred C
to.
1.2 The case of prosecution that the deceased made
a statement about the sequence of the occurrence was
really made as spelt out by the witnesses PW Nos. 1 to D
5. In view of the description of the injuries, as noted by
the doctor who conducted the post-mortem, it cannot be
said that the injury in the mouth was such as the
deceased could not have made any oral statement at all
to the witnesses. The Doctor (PW-6) who had examined E
the injuries sustained by the deceased did not rule out
the possibility of the deceased making any statement
irrespective of injuries sustained by her. Accused
themselves, before the High Court, specifically
contended that the deceased sustained multiple injuries F
and except one injury, all other injuries were simple in
nature and none of the injuries were sufficient in the
ordinary course of nature to cause the death of the
deceased. Therefore, even going by the stand of the
accused, the condition of the deceased, even after G
.sustaining multiple injuries, was such that she was alive,
conscious and her death was not instantaneous. [Paras
20 and 21] [975-C-H; 976-A]
1.3 The grievance of the appellants as regards non-
examination of any independent witness cannot be taken H
956 SUPREME COURT REPORTS [2012J 5 S.C.R.
A as a factor to put the case against the prosecution and
to hold that the whole case. of the prosecution should be
set at naught. From the evidence of PWs 1 and 3 what
all that can be inferred was that a crusher unit was at least
100 yards away from the place of occurrence and that
B even at that point of time, the unit was working with at
least 3-4 labourers. Beyond the above fact, it was not the
case of the appellant that any worker from the crusher
unit was present at the spot and yet he was neither
shown as a witness nor examined and thereby any
c prejudice was caused to the appellants. It is also not the
case of the appellants that apart from the labourers
working in the crusher unit, any other independent
witness was present at the spot who was not cited nor
examined as a witness. Apart from the above, no other
point was raised as regards the non-examination of any
0
independent witness as to the occurrence narrated by
the prosecution. [Para 22] [977-C-H]
1.4 The witnesses who were examined were able to
unfold the narration of events in a cogent and convincing
E manner and the non-examination of the Constable and
the jeep driver was, therefore, not fatal to the case of the
prosecution. In examination of the sequence of events,
it is found that after gathering whatever information from
the deceased, as regards the occurrence implicating the
F accused, which were the required details for PW-1 to
lodge the necessary complaint, his immediate priority
was to attend on the injured person in order to save her
life. Such a course adopted by PW-1 and other police
personnel at the place of occurrence was quite natural
G and appreciable. The appellants could not demonstrate
as to any prejudice that was caused by the non-
examination of the Constable and the jeep driver in order
to find fault with the case of the prosecution on that
score. [Para 24] [977-F-H; 978-B-C, F-G]
H
SANDEEP v. STATE OF U.P. 957
Tej Prakash v. The State of Haryana (1995) 7 JT 561 - A
relied on.
1.5 When the main accused took a positive stand
that he was not present at the place of occurrence by
relying upon a fact situation, namely, he was not 8
responsible for bringing the lndica car belonging to his
mother at the place of occurrence along with the
deceased, the burden was heavily upon him to establish
the plea that the car was stolen on that very date of
occurrence, and, therefore, he could not have brought C
the deceased in that car at that place. Apart from merely
suggesting that the lndica car was stolen which was not
fully supported by any legally admissible evidence, no
other case was suggested by the appellants. By merely
making a sketchy reference to the alleged theft of the car
in the written statement and the so-called complaint said D
to have been filed with the police station nothing was
brought out in evidence to support that stand. In this
situation, Section 106 of the Evidence Act gets attracted.
When according to the accused, they were not present
at the place of occurrence, the burden was on them to E
have established the said fact since it was within their
special knowledge. The failure of the main accused in not
having taken any steps to prove the said fact strikes at
the very root of the defence, namely, that he was not
present at the place of occurrence. As a sequel to it, the F
case of the prosecution as demonstrated before the court
stood fully established. [Paras 26 and 27] [980-C-G; 981-
E-F]
Prithipal Singh and Ors. vs. State of Punjab and Anr. G
(2012) 1 sec 10 - relied on.
1.6 When there was no serious infirmity in the
registration of the FIR based on the complaint on
17 .11.2004 (i.e.) immediately after the occurrence and
every follow-up action was being taken meticulously, a H
958 SUPREME COURT REPORTS [2012] 5 S.C.R.
A minor discrepancy in the timing of alteration of the crime
by itself cannot be held to be so very serious to suspect
the registration of the crime or go to the extent of holding
that there was any deliberate attempt on the part of the
prosecution to ante date the FIR for that purpose. The
B accused miserably failed to substantiate the stand that
he was not present at the spot of occurrence whereas he
was really apprehended on the spot by the prosecution
witnesses and was brought to the police station from
whom other recoveries were made. The submission by
c referring to certain insignificant facts relating to the delay
in the alteration of crime cannot be held to be so very
fatal to the case of the prosecution. [Para 31] [987-F-H;
988-A-B]
Pala Singh and Anr. v. State of Punjab AIR 1972 SC
D 2679: 1973 (1) SCR 964 - relied on.
1.7 Where the FIR was actually recorded without
delay and the investigation started on the basis of that
FIR and there is no other infirmity brought to the notice
E of the court then, however improper or objectionable the
delay in receipt of the report by the Magistrate concerned
as stipulated u/s. 157 Cr.P.C. in the absence of any
prejudice to the accused, it cannot by itself justify the
conclusion that the investigation was tainted and
F prosecution insupportable. In the present case, while
pointing out the delay in the forwarding of the FIR to the
Magistrate, no prejudice was said to have been caused
to the appellants by virtue of the said delay. As far as the
commencement of the investigation is concerned, there
was no dearth in that aspect. In such circumstances,
G there is no infirmity in the case of prosecution on that
score. [Para 32] [988-D-G]
lshwar Singh v. State of Uttar Pradesh AIR 1976 SC
2423;Subhash Chander etc. v. Krishan Lal and Ors. AIR 2001
H SC 1903 - relied on.
SANDEEP v. STATE OF U.P. 959
1.8 There were no good grounds to dis-believe the A
statement of the deceased. No other motive or any other
basis was shown to disbelieve the statement. When the
reliance placed upon the admissible portion of the
statement of the accused is considered, the entirety of
the statement cannot be rejected outrightly by application B
of Section 25 of the Evidence Act. Section 25 can be
pressed into service only insofar as it related to such of
the statements that would implicate himself while the
other part of the statement not relating to the crime would
be covered by Section 8 of the Evidence Act and that a c
distinction can always be drawn in the statement of the
accused by carefully sifting the said statement in order
to identify the admission part of it as against the
confession part of it. The evidence of PW-1 where the said
witness narrated the statement made by the main
0
accused which consisted of mixture of admission as well
as confession. The part of the statement which does not
in any way implicate the accused but is mere statement
of facts would amount to mere admissions which can be
relied upon for ascertaining the other facts which are
intrinsically connected with the occurrence, while at the E
same time, the same would not in any way result in
implicating the accused into the offence directly. The first
statement only reveals the fact of the main accused's
friendship with the deceased and the physical
relationship developed by him with her. Acceptance of F
the said statement cannot be held to straightway implicate
the accused into the crime and consequently it cannot
be construed as a confessional statement in order to
reject the same by applying Section 25 of the Evidence
Act. [Paras 28, 29 and 30] [982-A-B; D-F; 983-F-G; 984-A- G
B]
Bheru Singh Sia Kalyan Singh v. State of Rajasthan
(1994) 2 SCC467: 1994 (1) SCR 559 - relied on.
1.9 The circumstance, namely, the report of the DNA H
960 SUPREME COURT REPORTS [2012) 5 S.C.R.
A in having concluded that the main accused was the
biological father of the recovered foetus of the deceased
was one other relevant circumstance to prove the guilt
of the main accused. In the light of the expert evidence,
it cannot be said that improper preservation of the foetus
B would have resulted in a wrong report to the effect that
the main accused was found to be the biological father
of the foetus received from the deceased. In the evidence
of Junior Scientific Officer of Central Forensic Laboratory
PW-10, it was brought out that the blood samples of the
c main accused and the foetus was received by him on
27 .01.2005 and that necessary test was conducted based
on which a report on 138/1, 13A/2 and 13C/3 were
forwarded which confirmed that the main accused was
the biological father of the foetus. It has also come in his
evidence that the collection of samples, preservation of
0
samples and transportation of samples if not carefully
done, it may affect the result, but in the case on hand the
result reported by him was not based on wrong facts.
The plea that the proper preservation of the foetus
resulted in wrong report is not supported by any relevant
E material on record and the appellant was not able to
substantiate the said argument with any other supporting
material. [Para 34] [989-E-F; 990-A-D]
2.1 There is no scope to interfere with the sentence
F of life and other sentences imposed against the co-
accused u/s. 302, IPC r/w. s. 34, IPC by the High Court
and the other sentences u/s. 316 r/w s. 34 IPC. [Para 36]
[990-H; 991-A]
2.2 It is well-settled that awarding of life sentence is
G the rule, death is an exception. The application of the
'rarest of rare case' principle is dependant upon and
differs from case to case. However, the principles laid
down earlier and restated in the various decisions of
Supreme Court can be broadly stated that in a
deliberately planned crime, executed meticulously in a
H diabolic manner, exhibiting inhuman conduct in a ghastly
SANDEEP v. STATE OF U.P. 961
manner touching the conscience of everyone and A
thereby disturb the moral fibre of the society would call
for imposition of capital punishment in order to ensure
that it acts as a deterrent. Though the case of the
prosecution based on the evidence displayed, confirmed
the commission of offence by the appellants, without any B
iota of doubt, still the case does not fall within the four
corners of the principle of the 'rarest of the rare case'.
However, considering the plight of the hapless young
lady, who fell a victim to the avaricious conduct and lust
of the main accused, the manner in which the life of the c
deceased was snatched away by causing multiple
injuries all over the body with all kinds of weapons, no
leniency can be shown to the main accused. [Para 37]
[992-C-G]
Bachan Singh v. State of Punjab 1980 (2) SCC 684; D
Machhi Singh v. State of Punjab AIR 1983 SC 957; Swamy
Shraddananda v. State of Kamataka 2008 (13) SCC 767:
2008 (11) SCR 93; Santosh KumarSatishbushan Bariyar v.
State of Maharashtra 2009 (6) SCC 498: 2009 (9) SCR 90;
Mohd. Farooq Abdul Gafur v. State of Maharashtra 2010 (14) E
SCC 641: 2009 (12) SCR 1093; Haresh Mohandas Rajput
v. State of Maharashtra 2011 (12) SCC 56; State of
Maharashtra v. Goraksha Ambaji Adsul AIR 2011 SC 2689 -
relied on.
F
2.3. In the facts and circumstances of the present
case, while holding that the imposition of death sentence
to the main accused was not warranted and while
awarding life imprisonment it is held that the main
accused must serve a minimum of 30 years in jail without G
remissions before consideration of his case for
premature release. [Para 38] [993-B-C]
Shraddananda v. State of Kamataka 2008 (13) SCC 767:
2008 (11) SCR 93; Ramaraj v. State of Chhattisgarh AIR
2010 SC 420: 2009 (16 ) SCR 367 - relied on. H
962 SUPREME COURT REPORTS [2012] 5 S.C.R.
A Case Law Reference:
2000 (2) Suppl. SCR 712 Referred to Para 12
Mysore (1980) 1 SCC 479 Referred to Para 12
2005 (1) SCR 612 Referred to Para 14
B
(1999) 9 sec 149 Referred to Para 14
(1995) 7 JT 561 Relied on Para 24
(2012) 1 sec 10 Relied on Para 27
c
1994 (1) SCR 559 Relied on Para 29
1973 (1) SCR 964 Relied on Para 32
AIR 1976 SC 2423 Relied on Para 32
D AIR 2001 SC 1903 Relied on Para 32
1980 (2) sec 684 Relied on Para 37
AIR 1983 SC 957 Relied on Para 37
E 2008 (11) SCR 93 Relied on Para 37
2009 (9) SCR 90 Relied on Para 37
2001 ( 2 ) SCR 864 Relied on Para 37
2011 (12) sec 56 Relied on Para 37
F
AIR 2011 SC 2689 Relied on Para 37
2009 (16) SCR 367 Relied on Para 37
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G No. 1651 of 2009 etc.
From the Judgment & Order dated 28.05.2009 of the High
Court of Uttar Pradesh at Allahabad in Criminal (Capital)
Appeal No. 4148 DB of 2007.
H WITH
SANDEEP v. STATE OF U.P. 963
Crl. A. No. 1425-1426 of 2011. A
Sushil Kumar, Vined Kumar, Aditya Kumar, Meenakshi,
S.K. Chaudhary, Harichand, Daya Krishan Sharma, Vinay
Arora, Debasis Misra, D.P. Chaturvedi for the Appellant.
B
Ratnakar Dash, Rajeev Dubey, Kamlendra Mishra for the
Respondent.
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. These C
appeals arise out of the common judgment of the Division
Bench of the High Court of Allahabad in Criminal Appeal
No.4148/2007 along with Criminal Reference No.19/2007 by
which, the High Court while accepting the Criminal Reference
insofar as it related to appellant Sandeep in Criminal Appeal D
No.1651/2009, rejected the same insofar as it related to
appellant Shashi Bhushan in Criminal Appeal Nos.1425-26/
2011. In other words, while upholding the sentence of death
awarded to Sandeep, the appellant in Criminal Appeal
No.1651/2009, the Division Bench modified the sentence into E
one of life imprisonment insofar as it related to Shashi Bhushan,
the appellant in Criminal Appeal Nos.1425-26/2011.
2. Shorn of unnecessary facts, the case of the prosecution
as projected before the trial Court was that on 17.11.2004 I
F
D.N. Verma (PW- 1) along with Sub-Inspector Chander Pal
Singh (PW-2), Constable Rambir Singh, Constable Sukhram,
Constable Ashok Kumar and Driver Yashvir Singh were on
patrolling duty; that when they reached ahead of Badsu on
Khatoli Road leading towards Falut, they met Constable Rajesh
Kumar and another Constable Ramavtar who informed PW-1 G
and other persons accompanying him that one lndica car took
a turn for going towards Falut road and that they heard some
screaming noise from that vehicle. PW-1, accompanied by the
other personnel referred to above, proceeded towards Falut
H
964 SUPREME COURT REPORTS [2012] 5 S.C.R.
A road and after a distance saw an lndica car. They stated to have
seen through the focus light of the police jeep two young men
trying to pull out a girl in an injured condition by opening the
rear door of the car. It is stated that it was around 21.30 hours.
The police jeep in which PW-1 and others were proceeding
B stopped ahead of the lndica car and caught hold of the two
young men and also noticed a girl, with injuries all over, on whom
acid was also sprinkled. The girl had also sustained injuries on
the head as well as on her right cheek. On noticing the above,
according to PW-1, when he questioned her, she responded
c by stating that her name was Jyoti and she is the daughter of
one Baljeet Singh, R/o Lane No.16, House No.56, Jagatpuri,
P.S. Preet Vihar, New Delhi and that her mother's name was
Varsha whose cell number was 9871020368. Inspector D.N.
Verma (PW-1) stated to have gathered information from her
D that she developed friendship with the appellant Sandeep while
she was working in a mobile shop. She also stated to have
revealed that she was pregnant. According to the information
gathered from Jyoti, accused Sandeep had called her on that
evening and asked her to come to Laxmi Nagar market, Delhi,
around 6 p.m. promising her that he will marry her at Haridwar.
E Believing his words, she went to Laxmi Nagar market from
where she was taken in a car and that while they were moving
in the vehicle, accused Sandeep asked Jyoti to get the foetus
aborted at Meerut, to which she disagreed. On this, he started
beating her inside the vehicle right from the point of Modinagar.
F She stated to have further informed PW-1 and others that she
told accused Sandeep that she would reveal all facts to his
family members as well as to the police and that when the
vehicle in which they were travelling turned towards an isolated
place near Khatoli, they tried to throw her into the sugarcane
G field at which point of time PW-1 and other police members
reached the spot. According to her information to PW-1,
accused Sandeep and Shashi Bhushan caused the injuries on
her with the aid of a jack and pana (spanner) apart from cutting
her with a blade and also by pouring acid on her head. PW-1
H stated that on noticing the condition of the girl, he arranged for
SANDEEP v. STATE OF U.P. 965
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
shifting her to Muzaffarnagar Government Hospital in the police A
jeep along with Constable Rambir Singh and the driver of the
jeep. It was further stated that accused Sandeep and Shashi
Bhushan, on being apprehended, also revealed their names
and informed that accused Sandeep used to visit deceased
Jyoti while she was working in a mobile shop in Mayur Vihar B
Phase-I for the last six months prior to the date of occurrence
and developed friendship with her, and that in course of time,
deceased Jyoti pressurized him to marry her. On the date of
occurrence, around 6 p.m. he stated to have called her over
phone to meet him at Laxmi Nagar red light, that she responded c
to his call and came to Laxmi Nagar red light where accused
Sandeep was waiting along with his friend Shashi Bhushan who
drove the vehicle lndica car bearing registration No. DL 3CR
6666 which belonged to his mother. Accused Sandeep stated
to have extended a promise to marry her at Haridwar. While
0
the vehicle started moving, accused Sandeep asked Jyoti to
get the foetus aborted to which she did not agree instead
threatened him by saying that she will reveal all facts to his
parents as well as to the police and that as they reached
Modinagar, he started beating her. According to the version of E
accused Sandeep, as told to PW-1, at Modinagar he
purchased two bottles of acid and four shaving blades, that
when they reached Khatoli, on seeing an isolated place, they
tried to pull out the injured Jyoti from the vehicle and that at that
point of time they were apprehended by the police. It is the case
of the prosecution that while both the accused were taken into F
custody, the vehicle in which they were travelling was also
seized along with the jack and pana, four blades and two acid
bottles. The articles, namely, blood stained floor mat, empty
bottles of acid, one pair of ladies footwear were stated to have
been seized after preparing a seizure memo. A copy of the G
seizure memo was stated to have been handed over to the
accused. It is the specific case of the prosecution that since it
was late in the night and it was a lonely place, there were no
independent witnesses other than the police personnel. The
seizure memo was marked as Exhibit K-1. H
966 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 3. The statement of PW-1 was registered as FIR No.Nil/
2004 on the files of P.S. Ratanpuri on 17 .11.2004 against both
the accused persons for offences under Sections 307, 326,
324 and 328, Indian Penal Code (in short 'IPC') which came
to be subsequently altered later on as one under Sections 302/
B 34 IPC after the victim was declared dead by the hospital
authorities. On the above set of facts, District and Sessions
Judge, Muzaffarnagar framed charges against both the
accused persons for offences under Section 302, IPC read with
Section 34, IPC and Section 316, IPC read with Section 34,
c IPC and proceeded with the trial. In support of the prosecution
as many as 10 witnesses were examined.
4. When the accused persons were questioned under
Section 313, Cr.P.C. for offences under Section 304, IPC read
with Section 34, IPC and Section 316 read with Section 34,
D IPC, both the accused pleaded not guilty and also filed a written
statement to that effect. The tria! Court in its judgment dated
02.06.2007 ultimately found the accused persons guilty of
offences under Section 302 read with Section 34, IPC and 316
read with Section 34, IPC and after hearing both the accused
E persons on the question of sentence, took the view that having
regard to the magnitude and the diabolic manner in which the
offences were committed by them and also having regard to
the various principles laid down in the decisions of this Court
in relation to the award of death penalty concluded that, the
F case on hand was one such case which fell under the category
of 'rarest of rare case' in which the accused deserved to be
inflicted with the capital punishment of death under Section 302,
IPC read with Section 34, IPC. Ultimately, the trial Court
convicted and sentenced both the accused persons to death
G under Section 302 read with Section 34, IPC apart from
imposing a fine of Rs.30,000/- each and also sentenced them
to undergo 10 years rigorous imprisonment and pay a fine of
Rs.10,000/- each for offences under Section 316 read with
Section 34, IPC and in default of payment of fine sentenced
H .them to undergo further rigorous imprisonment for one year. The
SANDEEP v. STATE OF U.P. 967
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
sentences were to run concurrently. On realization of fine from A
the accused persons, a sum of Rs.50,000/- was directed to be
paid to the parents of the deceased Jyoti as compensation.
5. While hearing the Criminal Reference No.19/2007 as
well as Criminal Appeal No.4148/2007 preferred by the
B
appellants, the High Court while confirming the death penalty
imposed on appellant Sandeep held that the case of accused
Shashi Bhushan was distinguishable and that the gravity of the
offence did not warrant infliction of extreme punishment of death
and consequently altered the same into one of imprisonment C
for life.
6. We heard Mr. Sushi! Kumar, learned senior counsel for
the appellant in Criminal Appeal No.1651/2009 assisted by Mr.
Daya Krishan Sharma and Mr. D.P. Chaturvedi, learned
counsel for the appellant in Criminal Appeal Nos.1425-26/2011 D
for appellant Shashi Bhushan. We also heard Mr. Ratnakar
Dash, learned senior counsel assisted by Mr. Rajeev Dubey,
for the State.
7. Mr. Sushi! Kumar, learned senior counsel in his E
elaborate submissions after referring to the evidence of the
prosecution witnesses and medical evidence as well as expert
witnesses submitted that the so called dying declaration of the
deceased Jyoti was not proved, that the confessional statement
of the accused cannot be relied upon, that there were very many
missing links in the chain of circumstances and therefore the F
guilt of the accused cannot be held to be made out. According
to the learned senior counsel there were discrepancies in the
timing of registration of the F.l.R., delay in sending of the report
to the Magistrate apart from vital contradictions in the evidence
of the police witnesses. G
8. Learned senior counsel also contended that there were
serious lacunae in the preservation of foetus samples and,
therefore, the ultimate D.N.A. test result cannot be accepted.
H
968 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 9. Learned senior counsel further contended that non-
examination of some of the cited witnesses caused prejudice
to the accused and on that ground also the case of the
prosecution should be faulted. He further contended that the
case of the accused about the theft of the lndica car was not
B properly appreciated by the Courts below. It was also contended
that there were infirmities in regard to the recoveries which
were not properly examined by the Courts below. Lastly, it was
contended that it was not a case for conviction and in any event
not 'rarest of rare case' for imposition of capital punishment of
c death sentence.
10. Mr. D.P. Chaturvedi, learned counsel appearing for the
accused -Shashi Bhushan apart from adopting the arguments
of Mr. Sushil Kumar, learned senior counsel contended that out
of 17 injuries alleged to have been sustained by the deceased
D Jyoti, at least 7 to 8 injuries were serious and in such
circumstances there would not have been any scope for the
deceased Jyoti to have made any statement as claimed by the
prosecution. According to him there was absolutely no overt act
attributed to the accused Shashi Bhushan in the matter of
E infliction of injuries on the body of the deceased Jyoti and
consequently even the imposition of life sentence was not
warranted.
11. As against the above submission, Shri Ratnakar Dash,
F learned senior counsel appearing for the State contended that
evidence of the prosecution witnesses who were all police
personnel was fair, impartial and natural and there was no
reason to doubt their version. He would contend that when there
was no independent witness present at the place of occurrence,
G there was no question of examining any such private witness.
According to him, the deceased was alive at the time when the
accused were apprehended by the police on 17.11.2004 at
21.30 hrs. and the injuries noted by the doctor would show that
the deceased was capable of making a statement and,
therefore, the recording of such statement by PW-1 in his
H
SANDEEP v. STATE OF U.P. 969
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
complaint was perfectly in order. He further contended that even A
in the statements of the accused such of those versions made
by them which did not in any way implicate them in the offence
was admissible under Section 8 of the Evidence Act while the
rest of the statements which are likely to implicate them can
be distinguished and eliminated from consideration. B
12. Learned senior counsel relied upon the decision of this
Court in State of WB. v. Mir Mohammad Omar & Ors.- 2000
(8) SCC 382 and Somappa Vamanappa Madar &
Shankarappa Ravanappa Kaddi v. State of Mysore - (1980) C
1 sec 479] in support of his submissions.
13. Learned counsel also contended that no prejudice was
demonstratively shown by the non examination of the cited
witnesses. Learned counsel contented that going by the version
of the expert witnesses, the preservation of the foetus was D
according to the prescribed norms and the D.N.A. result having
been proved in the manner known to law cannot be doubted.
He also contended that when the registration of the F.l.R. was
promptly made, simply because there was minor delay in the
alteration of the offence from Section 307, IPC to Section 302, E
IPC and the subsequent forwarding of the express report to the
Magistrate cannot be fatal to the case of the prosecution.
14. Learned counsel relied upon the decision in Sunil
Kumar and Anr. Vs. State of Rajasthan - (2005) 9 SCC 283,
Ram Kumar v. State (NCT) of Delhi- [(1999) 9 SCC 149, Tej F
Prakash v. The State of Haryana -(1995) 7 JT 561 in support
of his submissions.
15. Having heard learned Senior counsel for the appellants
and learned senior couns!'ll for the State and having perused G
the material papers, original records and the judgments of the
trial Court as well as the Division Bench of the High Court, we
wish to note the broad spectrum of the appellants' challenge
to the conviction and sentence which can be noted as under:
H
970 SUPREME COURT REPORTS [2012] 5 S.C.R.
A (I) The case of the prosecution which was mainly based
on the so-called dying declaration of the deceased and the
confessional statement of the accused cannot be
accepted as the same was not proved.
(II) The accused were able to demonstrate that they were
B
not present at the time of the commission of the alleged
offence on 17.11.2004, as there were very many
disruptions in the chain of circumstances to rope in the
appellants.
c 16. When the submissions made on behalf of the
appellants are analyzed, the following facts were claimed to
support their stand:-
a) The entire case of the prosecution was dependent
D on the version of witnesses, majority of whom were
police personnel and there was no independent
witness to support the version of the police.
b) The source of the FIR was the alleged dying
declaration of the deceased which was not proved
E and the so-called confession of the accused
Sandeep was inadmissible under Section 25 of the
Evidence Act.
c) If the confession is inadmissible, the whole case
F depended on circumstantial evidence.
d) The case which was originally registered under
Section 307, IPC was altered into one under
Section 302, IPC belatedly.
G e) There were very many missing links in the chain of
circumstances.
f) There were serious infirmities in the tests conducted
in the samples of the foetus which seriously
H undermine the case of the prosecution.
SANDEEP v. STATE OF U.P. 971
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
g) Though the· occurrence took place in a public place A
near a crusher unit where number of labourers were
working, the absence of examination of
independent witnesses was fatal to the case of the
prosecution.
B
h) Non-examination of some of the key witnesses cited
in the charge- sheet whose evidence would have
otherwise supported the case of the accused
caused serious prejudice and on that ground the
case of the prosecution should fail.
c
i) The delay in sending the express report was a
serious violation of Section 157, Cr.P.C. which
would again vitiate the case of the prosecution.
j) The alleged seizure of materials from the car was
0
highly doubtful, having regard to certain vitiating
circumstances.
k) Accused Sandeep was roped in falsely by creating
a link with his mother's car, which according to
Sandeep, was stolen on the date of occurrence, E
which was omitted to be considered in the proper
perspective.
I) When admittedly there was a pending rape case
relating to the deceased in which certain persons F
were accused of having committed rape on the
deceased on 17.04.2004 which was tacitly
admittedly by Baljeet Singh (PW-8), father of the
deceased, there was every scope for the aggrieved
persons in the said criminal case to have involved G
in the crime against the deceased.
17. As against the above, when the stand of the learned
counsel for the State is analyzed, the following points emerge
for consideration:-
H
972 SUPREME COURT REPORTS [2012] 5 S.C.R.
A i) The relationship of Sandeep (A-1) with the deceased
and the carrying of the foetus in the womb of the deceased
was not in dispute.
ii) Merely because the key witnesses were police
personnel, that by itself cannot be a ground to eschew that
B evidence from consideration.
iii) The case of the prosecution based on the statement
of the deceased as spoken to by the witnesses cannot be
doubted.
c iv) The statement of the deceased to the police insofar as
it related to the incident and such of those admissions of
the accused not implicating them to the offence was
admissible in evidence under Section 8 and not hit by
Section 25 of the Evidence Act.
D
v) when there were no independent witnesses present at
the place of occurrence, the grievance of the accused on
that score does not merit consideration.
E vi) The medical evidence, in particular, injuries noted in the
post-mortem certificate show that the deceased was
capable and did make the statement as demonstrated by ·
the prosecution.
vii) The forensic report established the presence of blood
F on the weapons used as well as in the car which was one
of the clinching circumstances to prove the guilt of the
accused.
viii) The outcome of the DNA test established the link of
G the accused with the deceased to prove the motive for the
crime.
ix) The claim of theft of the car was not established before
the trial Court in the manner known to law.
H
SANDEEP v. STATE OF U.P. 973
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
x) The presence of the accused at the time and place of A
occurrence was proved beyond all reasonable doubts.
xi) The handling of the samples sent for chemical and
forensic examination was carried out in accordance with
the prescribed procedure.
B
xii) The accused failed to show that the non-examination
of any of the cited witnesses caused prejudice to them
before the trial Court and, therefore, the grievance now
expressed will not vitiate the case of the prosecution.
c
xiii) The various other discrepancies alleged were all minor
and the same do not in any way affect the case of the
prosecution.
18. Keeping the above respective submissions in mind, D
when we analyze the case in hand the following facts are
indisputable:-
a. The relationship of Sandeep with deceased, prior
to the date of occurrence, namely, 17.11.2004 as
his girlfriend; E
b. The deceased was carrying the foetus of six months
old in her womb;
c. The lndica car in which the deceased was found on
the date and time of occurrence belonged to the F
mother of accused Sandeep;
d. At the time when the deceased was secured by the
police on 17.11.2004 at 21.30 hours she was
seriously injured but was alive; G
e. The death of the deceased was ascertained by the
Dr. S.S. Chaudhary (PW-6) at 10.55 p.m.
f. As per the post-mortem certificate, there were as
H
974 SUPREME COURT REPORTS [2012] 5 S.C.R.
A many as 17 injuries which were caused by blunt
weapons like jack and pana (spanner), shaving
blades and also chemical acid.
g. Police witnesses were all on patrol duty on the date
of occurrence.
B
h. The DNA test disclosed that accused Sandeep
was the biological father of the foetus found in the
womb of the deceased.
c i. The theory propounded by the accused i.e. the car
was stolen on 17 .11.2004 was not established
before the trial Court in the manner known to law.
j. The statement of the accused as stated to have
been made to PW-1 contained various facts
D unconnected to the crime and also the self
incriminating facts which could be distinguished.
k. The absence of any independent witness at the
place of occurrence.
E
19. Keeping the above factors, the existence of which is
borne out by acceptable legal evidence, when we examine the
submissions made on behalf of the appellants, in the foremost,
it was contended that the deceased could not have made a
F statement as claimed by Inspector D.N. Verma (PW-1) since
according to Constable Ramavatar Singh (PW-3), he noticed
acid injuries in the inner mouth of the deceased. Howeve.r
forceful the above submissions may be, we find that such a
submission merely based on the version of PW-3 alone cannot
G be accepted. Whatever injuries sustained by the deceased
were borne out by medical record, namely, post-mortem
certificate and the evidence of the doctor who issued the said
certificate. As many as 17 injuries were noted in the post-
mortem certificate. According to the version of PW-3, injury in
the mouth was caused by acid. When we examine such of those
H
SANDEEP v. STATE OF U.P. 975
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
injuries caused by acid and as spoken to by PW-6, doctor, injury A
Nos. 4 and 17 alone were stated to have been caused by acid.
Injury Nos.4 and 17 have been described as under:-
"4. chemical burn injury from all over head, hair were
charring and skin burnt chemically.
B
17. Chemical burn injury all over body ranging from 12cm
x 8cm to 2cm x 4 cm except upper part of chest."
20. Going by the above description of the injuries, as noted
by the doctor who conducted the post-mortem, it is difficult to c
accept the statement of learned senior counsel for the accused
that the injury in the mouth was such as the deceased could not
have made any oral statement at all to the witnesses. It is true
that by the pouring of the acid, injury might have been caused
on the head and other parts of the body of the deceased but D
by no stretch of imagination, those injuries appear to have
caused any severe damage to the mouth of the deceased,
much less to the extent of preventing her from making any
statement to the witnesses. In this context, when we peruse the
evidence of the Doctor (PW-6), he has specifically expressed E
an opinion that he was not in a position to state whether after
receipt of injury on the body of the deceased she would have
been in a position to speak or not. In other words, the doctor
who had examined the injuries sustained by the deceased did
not rule out the possibility of the deceased making any
statement irrespective of injuries sustained by her. In this F
context, when we refer to the submission made on behalf of the
appellants themselves before the Division Bench of the High
Court, we find that it was specifically contended that the
deceased sustained multiple injuries and except one injury, all
other injuries were simple in nature and none of the injuries were G
sufficient in the ordinary course of nature to cause the death of
the deceased. Therefore, even going by the stand of the
appellants, the condition of the deceased, even after sustaining
multiple injuries, was such that she was alive, conscious and
her death was not instantaneous. H
976 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 21. Having regard to the above factors, we are convinced
that the case of prosecution that the deceased made a
statement about the sequence of the occurrence was really
made as spelt out by the witnesses PW Nos. 1 to 5.
22. With this, we come to the next submission of learned
8
counsel for the appellants, that in the absence of independent
witnesses, no reliance can be placed upon PW Nos.1 to 5, who
were all police personnel. To deface the evidence of PW Nos.
1 to 5, it was contended that near the place of occurrence, a
crusher unit was existing, and at that point of time, the crusher
C unit was also working. It was suggested to PW-1 that the
crusher unit was around 100 yards away from the place of
occurrence. It was also suggested to PW-2 that the crusher unit
was running at that point of time which was 100 yards away
from the place of occurrence. In another place, it was stated
D by PW-3 that the crusher unit was around 1h KM away from the
bridge and it was working. It was also stated by him that at that
point of time, 3-4 persons were working in the crusher unit.
From what has been stated by the above witnesses, what all
that can be inferred was that a crusher unit was at least 100
E yards away from the place of occurrence and that even at that
point of time, namely, at 21.30 hours, the unit was working with
at least 3-4 labourers. Beyond the above fact, it was not the
case of the appe!lant that any worker from the crusher unit was
present at the spot and yet he was neither shown as a witness
F nor examined and thereby any prejudice was caused to the
appellants. It is also not the case of the appellants that apart
from the labourers working in the crusher unit, any other
independent witness was present at the spot who was not cited
nor examined as a witness. Therefore, when the above facts
G are clear, we are at a loss to understand as to how the
grievance of the appellants as regards non-examination of any
indepencfent witness can be taken as a factor to put the case
against the prosecution and to hold that the whole case of the
prosecution should be set at naught. Apart from the above, no
H other point was raised as regards the non-examination of any
SANDEEP v. STATE OF U.P. 977
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
independent witness as to the occurrence ~arrated by the A
prosecution.
23. One other submission made by the learned senior
counsel was that after finding out the cause of the occurrence
from the deceased and after noting. that she was seriously 8
injured, the police party arranged for shifting her to the hospital
in the police jeep along with Rambir Singh and the driver of the
jeep within 2-3 minutes and that there was no justifiable ground
for not examining Rambir Singh who was also cited as a
witness but yet not examined and also for the non-examination C
of the driver of the jeep. The contention of the learned senior
counsel was that after shifting the deceased from the lndica car
to the jeep in a serious condition, the jeep would have travelled
for at least an hour or so to reach the hospital and Constable
Rambir Singh who accompanied her would have been in a
better position to state as to what transpired during that period D
and what was heard by him from the deceased which would
have thrown much light on the occurrence. The learned senior
counsel, therefore, contended that serious prejudice was
caused to the accused by non-examination of the said Rambir
Singh as well as the driver whose version would have otherwise E
been favourable to the appellants.
24. Learned senior counsel appearing for the State,
however, contended that in every criminal case it is not a rule
that all cited witnesses should be necessarily examined. He also F
contended that the non- examination of a witness can be put
against the prosecution if non- examination would have caused
any serious prejudice to the defence. He also relied upon the
decision reported in Tej Prakash (supra) in support of his
submission. As far as the said submission is concerned, when G
we examine the sequence of events, we find that after gathering
whatever information from the deceased, as regards the
occurrence implicating the accused, which were the required
details for PW-1 to lodge the necessary complaint, his
immediate priority was to attend on the injured person in order H
978 SUPREME COURT REPORTS [2012] 5 S.C.R.
A to save her life. Such a course adopted by PW-1 and other
police personnel at the place of occurrence was quite natural
and appreciable. Visualizing what had happened at the place
of occurrence as narrated by the prosecution witnesses, it was
brought out that whatever basic information required to
B ascertain the cause of occurrence was gathered by the
prosecution witnesses as disclosed in the complaint, which was
registered as FIR and also as stated by the witnesses before
the Court. The contention that the examination of Constable
Rambir Singh and the driver of the jeep, who took the injured
C deceased to the hospital, would have disclosed very many other
factors favourable to the accused was only a wishful thinking.
In any case, what those persons would have deposed as a
witnesses and to what extent it could have been advantageous
to the appellants was not even highlighted before us. We
ourselves wonder what other evidence, much less, favourble to
0
the accused could have been spoken to by Constable Rambir
Singh who was entrusted with the task of admitting the injured
victim in the hospital in order to give necessary treatment for
her injuries. Since PW-1 thought it fit to shift the injured to the
hospital after noticing her serious condition, and the further fact
E that by the time they reached the hospital around 10.55 p.m.,
doctor found that the deceased was dead, it can be safely held
that nothing worthwhile could have been drawn from the mouth
of Constable Rambir Singh or the driver of the jeep except
stating that they dutifully carried out the task of admitting the
F injured in the hospital as directed by their superiors. We,
therefore, hold that the appellants could not demonstrate as to
any prejudice that was caused by the non-examination of
Constable Rambir Singh and the jeep driver in order to find fault
with the case of the prosecution on that score. In this context,
G reliance placed upon by the learned senior counsel for the State
in Tej Prakash (supra) can be usefully referred to. In para 18
of the said decision, this Court made it clear that all the
witnesses of the prosecution need not be called and it is
sufficient if witnesses who were essential to the unfolding of the
H narrative are examined. Applying the said principle to the case,
SANDEEP v. STATE OF U.P. 979
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
it can be safely held that the witnesses who were examined A
were able to unfold the narration of events in a cogent and
convincing manner and the non-examination of Constable
Rambir Singh and the jeep driver was, therefore, not fatal to
the case of the prosecution.
B
25. Learned senior counsel for the appellants then
contended that the appellants were not present at all at the time
of occurrence, that the appellant Sandeep was called to the
police station in furtherance of the complaint lodged by him as
regards the theft of his mother's car on 17.11.2004 and that C
for that purpose when he went to the police station, he was
falsely implicated into the offence. According to the appellants,
the deceased was already involved in a case of rape committed
by one Manoj on 17.04.2004. In that case, the complaint
preferred by the deceased was at the stage of trial before the
Court of Sessions Judge. It was contended that by misusing D
the stolen car of the appellant's (Sandeep) mother, the crime
could have been committed by somebody else but unfortunately
the appellants were implicated into the offence. In order to
appreciate the said submission of the appellant-Sandeep, in
the first place, when we examine the stand that his mother's E
car was stolen on 17.11.2004, we find that except the ipse dixit
statement made in the written statement to the questioning
made under Section 313 Cr.P.C. and reference to an alleged
report as regards the theft of the car, there was no other fact
placed before the trial Court. The trial Court while dealing with F
the said contention has noted as under:-
" ............ the accused Sandeep filed a photo copy of the
report which is neither proved nor it can be taken into
consideration. No FIR has been filed nor the same is G
proved by any police officials. The accused has also not
examined himself or any other person in support of his
above contention. The contention of the accused Sandeep
that the car was stolen on 17.11.2004 from Geeta Colony
is totally false and frivolous. ADGC contended that father H
980 SUPREME COURT REPORTS [2012] 5 S.C.R.
A of accused Sandeep is in police department posted as
Sub-Inspector and had tried to manipulate a false story.
The recovery of lndica car, namely, DL 3CR 6666 on the
spot along with accused persons by Inspector D.N. Verma
(PW-1) of PS Ratanpuri with the injured Jyoti is a very
B important factor which proved the involvement of the
accused person and strengthens the prosecution case."
26. We see no reason to differ from the above conclusion
of the trial Court. If the theory of theft of lndica car is ruled out
and the presence of the car on the spot was indisputable, it
C should automatically follow that the car could have been brought
at that place along with the deceased, driven by accused Shashi
Bhushan along with Sandeep only in the manner narrated by
the prosecution. Apart from merely suggesting that the lndica
car was stolen which was not fully supported by any legally
D admissible evidence, no other case was suggested by the
appellants.
27. When the accused Sandeep took a positive stand that
he was not present at the place of occurrence by relying upon
E a fact situation, namely, he was not responsible for bringing the
lndica car belonging to his mother at the place of occurrence
along with the deceased, the burden was heavily upon him to
establish the plea that the car was stolen on that very date of
occurrence, namely, 17.11.2004 and, therefore, he could not
F have brought the deceased in that car at that place.
Unfortunately, by merely making a sketchy reference to the
alleged theft of the car in the written statement and the so-called
complaint said to have been filed with the Geeta Colony police
station nothing was brought out in evidence to support that
G stand. In this situation, Section 106 of the Evidence Act gets
attracted. When according to the accused, they were not
present at the place of occurrence, the burden was on them to
have established the said fact since it was within their special
knowledge. In this context, the recent decision of this Court
reported in - Prithipal Singh and Ors. Vs. State of Punjab and
H
SANDEEP v. STATE OF U.P. 981
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Anr.-(2012) 1 SCC 10 can be usefully referred to where it has A
been held as under in para 53 :
"In State of WB. v. Mir Mohammad Omar, this Court
held that if fact is especially in the knowledge of any
person, then burden of proving that fact is upon him. It is 8
impossible for the prosecution to prove certain facts
particularly within the knowledge of the accused. Section
106 is not intended to relieve the prosecution of its burden
to prove the guilt of the accused beyond reasonable doubt.
But the section would apply to cases where the C
prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by
virtue of his special knowledge regarding such facts, failed
to offer any explanation which might drive the Court to
draw a different inference. Section 106 of the Evidence D
Act is designed to meet certain exceptional cases, in which,
it would be impossible for the prosecution to establish ·
certain facts which are particularly within the knowledge of
the accused ...... "
E
The contention of accused Sandeep was, therefore, bound
to fail and the· said defence taken was not proved to the
satisfaction of the Court. The failure of the accused Sandeep
in not having taken any steps to prove the said fact strikes at
the very root of the defence, namely, that he was not present F
at the place of occurrence. As a sequel to it, the case of the
prosecution as demonstrated before the Court stood fully
established.
28. Having regard to the above conclusion that the
deceased did narrate the occurrence right from the invitation G
made by the accused Sandeep to her over phone at 6 p.m.
under the guise of taking her to Haridwar to marry her, that after
she responded to the said call and met him from where she
was picked up by both the accused in the lndica car belonging
to the mother of accused Sandeep, and the other sequence of H
982 SUPREME COURT REPORTS [2012] 5 S.C.R. ·
A events, namely, the threat posed to the deceased to get the
foetus aborted and her refusal ultimately enraged the appellants
to cause the assault with the weapon, namely, jack and pana,
shaving blades and chemical acid was quite convincing and
there were no good grounds to dis- believe her statement. No
B other motive or any other basis was shown to disbelieve her
statement. In that respect, when we consider the reliance placed
upon the admissible portion of the statement of the accused,
we are .unable to reject outrightly the entirety of the statement
by application of Section 25 of the Evidence Act. According to
c learned senior counsel for the appellants, the prosecution could
not have relied upon the confessional statement of the accused
implicating themselves in the offence alleged against them by
virtue of Section 25 of the Evidence Act.
29. As against the said submission, Mr. Ratnakar Dash,
D learned senior counsel appearing for the State rightly pointed
. out that Section 25 of the Evidence Act can be pressed into
servict: only insofar as it related to such of the statements that
would implicate himself while the other part of the statement not
relating to the crime would be covered by Section 8 of the
E Evidence Act and that a distinction can always be drawn in the
statement of the accused by carefully sifting the said statement
in order to identify the admission part of it as against the
confession part of it. Learned senior counsel drew our attention
to the evidence of PW-1 where the said witness narrated the
F statement made by accused Sandeep which consisted of
mixture of admission as well as confession. In that learned
senior counsel pointed out that the accused Sandeep made
certain statements, namely; that Jyoti was working in a mobile
shop in Mayur Vihar, Phase I where he used to visit; that during
G that period around six months before he developed physical
relations with her; that the deceased Jyoti was applying
pressure on him to marry her, and that around 6 p.m. on the
date of occurrence, he called her over telephone to meet him
at Laxmi Nagar red light. He further told the witness that the
H lndica car bearing registration NO.DL 3CR 6666 was owned
SANDEEP v: STATE OF U.P. 983
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
by his mother and that promising to marry her at Haridwar, he A
took the deceased Jyoti along with him. He also told the
witness that while the car was moving he asked the deceased
Jyoti to get the foetus aborted to which she did not agree.
According to PW-1, Sandeep also told him that he purchased
two bottles of acid and four blades at Modinagar, that when they B
reached Khatoli, he saw a road free from disturbance towards
which the vehicle was driven and that in that place they were
apprehended by the police. Learned senior counsel a1s·o
referred to certain other statements made by Sandeep to PW-
1, namely, that on that day he planned with his friend Shashi c
Bhushan to eliminate Jyoti from his life and that when Jyoti told
him that she was going to reveal the fact of carrying his child
in her womb to his family members and the police, he started
beating her along with his friend. Learned senior counsel fairly
stated that while the last part of the statement would fall under 0
the category of confession, which would be hit by Section 25
of the Evidence Act, the former statements which do not in any
way implicate the accused to the offence, would be protected
by Section 8 of the Evidence Act and consequently the said
part of the statement was fully admissible. We find force in the
submission of learned senior counsel for the State. It is quite E
common that based on admissible portion of the statement of
accused whenever and wherever recoveries are made, the
same are admissible in evidence and it is for the accused ir
those situations to explain to the satisfaction of the Court as to
the nature of recoveries and as to how they came into F
possession or for planting the same at the places from where
they were recovered. Similarly this part of the statement which
does not in any way implicate the accused but is mere statement
of facts would only amount to mere admissions which can be
relied upon for ascertaining the other facts which are intrinsically G
connected with the occurrence, while at the same time, the same
would not in any way result in implicating the accused into the
offence directly.
30. In that view, when we examine the statements referred H
984 SUPREME COURT REPORTS [2012] 5 S.C.R.
A to by learned senior counsel for the State which were stated to
have been uttered by the accused to PW-1, we find the first
statement only reveals the fact of accused Sandeep's
friendship developed with the deceased Jyoti six months prior
to the occurrence and the physical relationship developed by
s him with her. Accepting the said statement cannot be held to
straightway implicate the accused into the crime and
consequently it cannot be construed as a confessional
statement in order to reject the same by applying Section 25
of the evidence Act. In this context the reliance placed upon the
c decision of this Court reported in Bheru Singh S/o Ka/yan
Singh v. State of Rajasthan - (1994) 2 SCC 467 is quite
apposite. In the said decision, this Court in paragraph 16 and
19 has held as under:-
"16. A confession or an admission is evidence against the
D maker of it so long as its admissibility is not excluded by
some provision of law. Provisions of Sections 24 to 30 of
the Evidence Act and of Section 164 of the Cr.P.C deal
with confessions. By virtue of the provisions of Section 25
of the Evidence Act, a confession made to a police officer
E under no circumstance is admissible in evidence against
an accused. The section deals with confessions made not
only when the accused was free and not in police custody
but also with the one made by such a person before any
investigation had begun. The expression "accused of any
F offence" in Section 25 would cover the case of an accused
who has since been put on trial, whether or not at the time
when he made the confessional statement, he was under
arrest or in custody as an accused in that case or not
inadmissibility of a confessional statement made to a police
G officer under Section 25 of the Evidence Act is based on
the ground of public policy. Section 25 of the Evidence Act
not only bars proof of admission of an offence by an
accused to a police officer or made by him while in the
custody of a police officer but also the admission
H contained in the confessional statement of all incriminating
SANDEEP v. STATE OF U.P. 985
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
facts relating to the commission of an offence. Section 26 A
of the Evidence Act deals with partial ban to the
admissibility of confessions made to a person other than
a police officer but we are not concerned with it in this
case. Section 27 of the Evidence Act is in the nature of
a proviso or an exception, which partially lifts the ban B
imposed by Sections 25 and 26 of the Evidence Act and
makes admissible so much of such information, whether
it amounts to a confession or not, as relates to the fact
thereby discovered, when made by a person accused of
an offence while in police custody. Under Section 164 c
Cr.P.C. a statement or confession made in the course of
an investigation, may be recorded by a Magistrate, subject
to the safeguards imposed by the section itself and can
be relied upon at the trial.(emphasis supplied)
19. From a careful perusal of this first information report D
we find that it discloses the motive for the murder and the
manner in which the appellant committed the six murders.
The appellant produced the blood stained sword with
which according to him he committed the murders. In our
opinion the first information report Ex. P-42, however is E
not a wholly confessional statement, but only that part of
it is admissible in evidence which does not amount to a
confession and is not hit by the provisions of Section 25
of the Evidence Act. The relationship of the appellant with
the deceased; the motive for commission of the crime F
and the presence of his sister-in-law PW11 do not
amount to the confession of committing any crime. Those
statements are non-confessional in nature and can be
used against the appellant as evidence under Section 8
of the Evidence Act. The production and seizure of the G
sword by the appellant at the police station, which was
blood stained, is also saved by the provisions of the
Evidence Act. However, the statement that the sword had
been used to commit the murders as well as the manner
of committing the crime is clearly inadmissible in H
986 SUPREME COURT REPORTS (2012] 5 S.C.R.
A evidence. Thus, to the limited extent as we have noticed
above and save to the extent only the other portion of the
first information report Ex. P-42 must be excluded from
evidence as the rest of the statement amounts to
confession of committing the crime and is not admissible
B in evidence. (Emphasis supplied)
31. Another submission made on behalf of the appellants
was that there was inordinate delay in sending the express
report as well as in altering the offence. The crime was initially
registered as one under Section 307, IPC and subsequently
C altered as one under Section 302, IPC. It was pointed out that
immediately after registration of the FIR based on the complaint
of PW1 at 23.15 hours on 17.11.2004, the crime was
registered under Section 307, etc., the same came to be
altered only on 20.11.2004 even though the factum of the death
D of the deceased was intimated by PW-6 on 19 .11.2004 itself
by 1 p.m. It was further contended that the registration of the
complaint after its alteration on 20.11.2004, the express report
was forwarded to the Magistrate only on 25.11.2004 which was
in derogation of the prescription contained in Section 157,
E Cr.P.C. Based on the above discrepancies, it was contended
that the purported delay was only to antedate the FIR to suit
the convenience of the prosecution. The submission is on the
footing that the prosecution developed the case for implicating
the accused while the accused were not really involved in the
F offence and, therefore, they took their own time to register the
complaint. In order to support the said stand, learned counsel
also went on to rely upon the statement of PW-1 as compared
to Soubir Singh (PW-5), that while PW-1 stated in his evidence
that they reached back the police station at around 23.45 hours,
G PW-5 in whose presence the complaint was stated to have
been registered mentioned the time as 23.15 hours. We do not
find any serious infirmity based on the said statement. When
the preference of the complaint by PW-1 and its registration
cannot be doubted in the absence of any flaw in its preference
H and registration, minor difference in the timing mentioned by
SANDEEP v. STATE OF U.P. 987
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the witnesses cannot be taken so very seriously to hold that the A
very registration of the complaint was doubtful. In fact PW-1 in
his chief examination in another place has also referred to the
registration of the FIR at 23.15 hours though the appellants
counsel wanted to rely on the statement of the said witness to
the effect that they all reached back the police station at around B
23.45 hours. Apparently, there appears to be some mistake in
recording the timing as stated by PW-1. Therefore, nothing turns
much on the said submission of learned counsel for the
appellants. As far as the contention that there was considerable
delay in altering the offence from Section 307, IPC to Section c
302, IPC was concerned the said submission was made by
referring to the evidence of the Doctor (PW-6) who conducted
the post-mortem that by 10.55 p.m. on 17.11.2004 itself the
death of the deceased was confirmed when the victim was
admitted to the hospital which was also kriown to Constable
0
Rambir Singh who accompanied the victim to the hospital. It
was also pointed out that PW-6 sent the intimation about the
death of the deceased to the police station at 23.10 hours while
keeping the body in the mortuary. To the above submission, on
behalf of the State, it was sought to be explained that even
E
though the death intimation was dated 17 .11.2004 itself, since
the post-mortem was held only on 19.11.2004 and the post-
mortem report was received on 20.11.2004 the offence came
to be altered based on the post-mortem report on 20.11.2004.
Though the said explanation cannot be said to be fully
satisfactory, it will have to be stated that when there was no F
serious infirmity in the registration of the FIR based on the
complaint on 17.11.2004 (i.e.) immediately after the occurrence
and every follow-up action was being taken meticulously, we
hold that such a minor discrepancy in the timing of alteration
of the crime by itself cannot be held to be so very serious to G
suspect the registration of the crime or go to the extent of
holding that there was any deliberate attempt on the part of the
prosecution to ante date the FIR for that purpose. We have
already held that the accused miserably failed to substantiate
the stand that he was not present at the spot of occurrence H
988 SUPREME COURT REPORTS [2012] 5 S.C.R.
A whereas he was really apprehended on the spot by the
prosecution witnesses and was brought to the police station
from whom other recoveries were made. The submission by
referring to certain insignificant facts relating to the delay in the
alteration of crime cannot be held to be so very fatal to the case
B of the prosecution.
32. It was also feebly contended on behalf of the appellants
that the express report was not forwarded to the Magistrate as
stipulated under Section 157, Cr.P.C. instantaneously.
C According to learned counsel FIR which was initially registered
on 17.11.2004 was given a number on 19.11.2004 as FIR
No.116 of 2004 and it was altered on 20.11.2004 and was
forwarded only on 25.11.2004 to the Magistrate. As far as the
said contention is concerned, we only wish to refer to the
reported decision of this Court in Pala Singh and Another v.
D State of Punjab - AIR 1972 SC 2679 wherein this Court has
clearly held that where the FIR was actually recorded without
delay and the investigation started on the basis of that FIR and
there is no other infirmity brought to the notice of the Court then,
however improper or objectionable the delay in receipt of the
E report by the Magistrate concerned, in the absence of any
prejudice to the accused it cannot by itself justify the conclusion
that the investigation was tainted and prosecution
insupportable. Applying the above ratio to the case on hand,
while pointing out the delay in the forwarding of the FIR to the
F Magistrate, no prejudice was said to have been caused to the
appellants by virtue of the said delay. As far as the
commencement of the investigation is concerned, our earlier
detailed discussion discloses that there was no dearth in that
aspect. In such circumstances we do not find any infirmity in
G the case of prosecution on that score. In fact the above decision
was subsequently followed in Sarwan Singh & Ors. Vs. State
of Punjab - (AIR 1976 SC 2304), Anil Rai Vs. State of Bihar
[2001] Supp. 1 SCR 298 and Aqee/ Ahmad Vs. State of UP.
[2008] 17 SCR 1330.
H
SANDEEP v. STATE OF U.P. 989
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
33. Another submission made on behalf of the appellant A
was that there were serious infirmities in preserving and testing
of the sample of the foetus and the consequent DNA report
implicating the accused Sandeep to the destruction of the foetus
whose biological father was found to be the accused himself.
The infirmity pointed out was that the sample of the foetus of B
the child was taken as early as on 17 .11.2004 while it was sent
for forensic lab only on 25.01.2005 and that since there was a
long gap in between, the prosecution ought to have disclosed
as to how the samples were properly preserved in order to
ensure proper test to be conducted for ascertaining the c
correctness of its outcome. Though such submission was made
with some emphasis, it was not pointed out as to what was the
nature of procedure to be followed in regard to the preservation
of the samples taken apart from what was followed in taking
the samples by the prosecution. It is not in dispute that at the D
time of post- mortem, when the foetus was discovered, the
same was preserved by taking two samples one in the Formalin
solution and the other one by ice preservation. It is borne out
by record that there was an FSL report dated 5.1.2005 as per
which the SSP of Muzaffarnagar was informed that the foetus
which was preserved in Formalin solution was not accepted E
since laboratory had no standard protocol for extracting the
amplifiable DNA of Formalin preserved tissues.
34. Therefore, in the evidence of PW-10 Junior Scientific
Officer of Central Forensic Laboratory, Chandigarh, it was F
brought out that the blood samples of accused Sandeep and
the foetus received by him on 27.01.2005 and that necessary
test was conducted based on which a report on 138/1, 13A/2
and 13C/3 were forwarded which confirmed that the accused
Sandeep was the biological father of the foetus. He also G
confirmed in the cross examination that the earlier sample of
foetus preserved in Formalin solution received on 05.01.2005
was returned back without opening the seal as the same was
kept in Formalin solution and standard protocol analysis was
not available in the laboratory. He further confirmed that when H
990 SUPREME COURT REPORTS [2012] 5 S.C.R.
A the sample on second time was received along with the letter
dated 25.1.2005, the same was preserved in ice separately
which they were able to test in their laboratory for finding out
the result. It has also come in his evidence that the collection
of samples, preservation of samples and transportation of
B samples if not carefully done, it may affect the result, but in the
case on hand the result reported by him was not based on
wrong facts. In the light of the said expert evidence of the J.uriior
Scientific Officer it is too late in the day for the appellant-
Sandeep to contend that improper preservation of the foetus
c would have resulted in a wrong report to the effect that the
accused Sandeep was found to be the biological father of the
foetus received from the deceased Jyoti. As the said
submission is not supported by any relevant material on record
and as the appellant was not able to substantiate the said
D argument with any other supporting material, we do not find any
substance in the said submission. The circumstance, namely,
the report of the DNA in having concluded that accused
Sandeep was the biological father of the recovered foetus of
Jyoti was one other relevant circumstance to prove the guilt of
the said accused.
E
35. There were certain other submissions made on behalf
of the appellants, namely, the seizure of materials from the car
were highly doubtful etc. We do not find any serious lacunae
pointed out in support of the said submissions. As rightly
F submitted on behalf of the learned senior counsel for the State,
the discrepancies were minor in character and we do not find
any serious infirmity based on the said discrepancies argued
on behalf of the accused/appellants. In the light of the above
conclusion, we find that the chain of circumstances alleged
G against the appellants was conclusively proved without any
missing link. We, therefore, do not find any scope to interfere
with the conviction arrived at against the appellants by the trial
Court as confirmed by the Division Bench of tl)e High Court.
36. We, therefore, do not find any scope to interfere with
H the sentence of life and other sentences imposed against
SANDEEP v. STATE OF U.P. 991
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
accused Shashi Bhushan under Section 302, IPC read with A
Section 34, IPC by the High Court and the other sentences
under Section 316 read with Section 34 IPC.
37. When we come to the question of sentence of death
as imposed by learned Sessions Judge, which was also 8
confirmed by the Division Bench as against the accused
Sandeep, the same will have to be examined in the light of the
principles laid down in the various decisions of this Court right
from Bachan Singh v. State of Punjab [1980 (2) SCC 684],
Machhi Singh v. State of Punjab [AIR 1983 SC 957], Swamy C
Shraddananda v. State of Kamataka [2008 (13) SCC 767],
Santosh Kumar Satishbushan Bariyar v. State of Maharashtra
(2009 (6) SCC 498], Mohd. Farooq Abdul Gafur v. State of
Maharashtra (2010 (14) SCC 641], Haresh Mohandas Rajput
v. State of Maharashtra (2011 (12) SCC 56], State of
Maharashtra v. Goraksha Ambaji Adsul (AIR 2011 SC 2689]. D
The principle of 'rarest of rare case' enunciated in Bachan
Singh(supra) has been restated and emphasized time and
again in the above referred to decisions. In order to appreciate
the principle in a nutshell, what is stated in Haresh Mohandas
Rajput (supra) can be usefully referred to which reads as E
under:-
"20. The rarest of rare case" comes when a convict would
be a menace and threat to the harmonious and peaceful
coexistence of the society. The-crime may be heinous or brutal F
but may not be in the category of "the rarest of the rare case".
There must be no reason to believe that the accused cannot
be reformed or rehabilitated and that he is likely to continue
criminal acts of violence as would constitute a continuing threat
to the society. The accused may be a menace to the society G
and would continue to be so, threatening its peaceful and
harmonious coexistence. The manner in which the crime is
committed must be such that it may result in intense and
extreme indignation of the community and shock the collective
conscience of the society. Where an accused does not act on
H
992 SUPREME COURT REPORTS [2012] 5 S.C.R.
A any spur-of-the- moment provocation and indulges himself in a
deliberately planned crime and meticulously executes it, the
death sentence may be the most appropriate punishment for
such a ghastly crime. The death sentence may be warranted
where the victims are innocent children and helpless women.
B Thus, in case the crime is committed in a most cruel and
inhuman manner which is an extremely brutal, grotesque
diabolical, revolting and dastardly manner, where his act affects
the entire moral fibre of the society e.g. crime committed for
power of political ambition or indulging in organized criminal
c activities, death sentence should be awarded." It is, therefore,
well-settled that awarding of life sentence is the rule, death is
an exception. The application of the 'rarest of rare case'
principle is dependant upon and differs from case to case.
However, the principles laid down earlier and restated in the
various decisions of this Court referred to above can be broadly
0
stated that in a deliberately planned crime, executed
meticulously in a diabolic manner, exhibiting inhuman conduct
in a ghastly manner touching the conscience of everyone and
thereby disturb the moral fibre of the society would call for
imposition of capital punishment in order to ensure that it acts
E as a deterrent. While we are convinced that the case of the
prosecution based on the evidence displayed, confirmed the
commission of offence by the appellants, without any iota of
doubt, we are of the considered opinion, that still the case does
not fall within the four corners ~f the principle of the 'rarest of
F the rare case'. However, considering the plight of the hapless
young lady, who fell a victim to the avaricious conduct and lust
of the appellant Sandeep, the manner in which the life of the
deceased was snatched away by causing multiple injuries all
over the body with all kinds of weapons, no leniency can be
G shown to the said appellant. In the decision reported in Swamy
Sharaddananda (supra) even while setting aside the sentence
of death penalty and awarding the life imprisonment, it was
explained that in order to serve ends of justice, the appellant
therein should not be released from the prison till the end of
H · his life. Likewise, in Ramraj v. State of Chhattisgarh [AIR 2010
SANDEEP v. STATE OF U.P. 993
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
SC 420] this Court, while setting aside the death sentence, A
directed that the appellant therein should serve a minimum
period of 20 years including the remissions and would not be
released on completion of 14 years of imprisonment.
38. Taking note of the above decision and also taking into 8
account the facts and circumstances of the case on hand, while
holding that the imposition of death sentence to the accused
Sandeep was not warranted and while awarding life
imprisonment we hold that accused Sandeep must serve a
minimum of 30 years in jail without remissions before C
consideration of his case for premature release.
39. Criminal Appeal No.1651/2009 and the Criminal
Reference No.19 of 2007 thus stand disposed of modifying the
punishments imposed on accused Sandeep as one for life and
he should undergo the said sentence of life for a fixed period D
of 30 years without any remission to be allowed. The Criminal
Appeal Nos.1425-26/201_ 1 of accused Shashi Bhushan stand
dismissed.
K.K.T. Appeals disposed of.
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