Holding

The circumstantial evidence established guilt beyond reasonable doubt and the death sentence is justified; the High Court's acquittal is set aside and the conviction with death sentence is restored.

Summary

Kheraj Ram, suspecting his wife's infidelity, murdered his wife, two daughters and his brother‑in‑law on the night of 10‑10‑1992. The trial court convicted him under Section 302 IPC and imposed death, relying on a series of circumstantial facts – motive, prior quarrels, his presence with the victims, an extra‑judicial confession, and blood‑stained items recovered. The Rajasthan High Court acquitted him, holding the circumstantial evidence insufficient and questioning the injuries he claimed. The Supreme Court held that the circumstances satisfied the established tests for circumstantial proof, unerringly pointing to the accused, and that the murder, being pre‑meditated, brutal and involving innocent children and a helpless woman, warranted death under the "rarest of rare" doctrine. Consequently, the High Court’s order was set aside, the conviction reinstated and the death sentence upheld.

Issues considered

The adequacy of the circumstantial evidence to sustain a conviction for murder under Section 302 IPC.
Whether the death sentence imposed complies with the requirements of Section 354(3) CrPC and the "rarest of rare" doctrine.
Whether the High Court erred in acquitting the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 354(3), s. 360, s. 361, s. 367(5)
Indian Evidence Act, 1872s. 172, s. 86, s. 87
Indian Penal Code, 1860s. 302, s. 307

Subjects

circumstantial evidencemurderdeath penaltyrarest of rareSection 302 IPCproportionalitysentencingconvictionappeal

Judgment

STATE OF RAJASTHAN A
v.
KHERAJRAM

-4"' AUGUST 22, 2003

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] B

Criminal trial:
Conviction-On basis of circumstantial evidence-Justification of-
Held: When all incriminating facts and circumstances are incompatible with c
the innocence of accused or guilt of any other person, inference of guilt
justified-Further, such circumstances are to be proved beyond reasonable
doubt-Penal Code, I 860-Evidence Act, I 872-Section 3.
Criminal law:
D
Sentencing-Death sentence-Award of-Principles-Discussed
. Determinatioq, of sentence-Principle of proportionality between crime
and punishment-Application of-Discussed
Penal Code, I 860:
E
Section 302-Murder-Conviction on basis of circumstantial
evidence-Justification of-Held: Since the circumstantial evidence rules out
the role of any other person and unerringly as well as inevitably points
towards guilt of accused, conviction by trial court justified and acquittal by
High Court set aside-Evidence Act, 1872.
F
Section 302-Murder of two innocent children, a helpless woman and
her brother-Death sentence-Imposition of-Justification-Held: Chain of
• events of circumstances leading to inevitable conclusion that act being
deliberately planned and meticulously executed, accused acting in most
cruel and inhuman manner, committing murder in extremely brutal, grotesque,
diabolical, revolting and dastardly manner and there being no remorse for
G
'' such gruesome act, death sentence imposed by trial court justified-Code of
Criminal Procedure, 1973-Section 354 (3).
Accused was convicted under Section 302 IPC and awarded death
sentence. According to the prosecution, respondent-accused suspected his wife
H
861
862 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A of infidelity and that she did not beget children through him. Their relations
were not cordial and they used to have frequent quarrels. As a result he
murdered her, his two in.nocent daughters and his brother-in-law at night.
.Accused then narrated the story regarding the commission of offence to PW-
9 and other persons who· came at the scene of occurrence on being called by
the accused, and when they came to his house the accused was smoking
B chilam. Further, on the night of occurrence accused and the victims slept in
the same house. Also he was last seen in the company of deceased persons in
his house. Prosecution witnesses heard the accused and his wife quarrelling
on the previous night. One of the prosecution witnesses lodged FIR.
Investigations were carried out Accused made extra-judicial confession before
C PW-12 and also on the information and at the instance of accused, blood-
stained dothi of accused, ju ti of the deceased and blood-stained kulhari were
recovered. Trial Court relied on the circumstantial evidence and convicted
the accused under Section 302 and imposed death sentence. State filed
reference for confirmation of death sentence. Accused also filed an appeal.
D High Court held that circumstances were not sufficient to prove the guilt of
the accused and acquitted the respondent-accused. Hence the present appeal.

Appellant-State contended that the circumstances highlighted and
established by the prosecution rule out involvement of any other person and
•
clearly establishes that the respondent was the author of the heinous crime.
E
Respondent-accused contended that lot of manipulation has been done;
and that there are other alleged inconsistencies and improbabilities.

Allowing the appeal, the Court

F HELD: 1. Where a case rests squarely on circumstantial evidence, the
inference of guilt can be justified only when all the incriminating facts and
circumstances are found to be incompatible with the innocence of the accused
or the guilt of any other person. The circumstances from which an inference
as to the guilt of the accused is drawn have to be proved beyond reasonable
doubt and have to be shown to be closely connected with the principal fact
G sought to be inferred from those circumstances. 1869-G-H; 870-A-BI

Hukam Singh v. State of Rajasthan, AIR 119771 SC 1063; Eradu and ··'
Ors. v. State of Hyderabad AIR 119561SC316; Earabhadrappa v. State of
Karnataka, AIR 119831SC446; State of UP. v. Sukhbasi and Ors., AIR (1985]
H SC 1224; Ba/winder Singh v. State of Punjab, AIR 11987) SC 350 and Ashok
Kumar Chatterjee v. State of MP., AIR 119891SC1890, relied on.
STATE OF RAJASTHAN v. KHERAJ RAM 863
Bhagat Ram v. State of Punjab, AIR (1954) SC 621; C. Chenga Reddy A
and Ors. v. State ofA.P., (1996] 10 SCC 193; Pada/a Veera Reddy v. State of
A.P. and Ors., AIR [1990) SC 79; Hanumant Govind Nargundkar and Anr. v.
State of Madhya Pradesh, AIR (1952) SC 343; State of U.P. v. Ashok Kumar
Srivastava, (1992) Crl. L.J. 1104 and Sharad Birdhichand Sarda v. State of
Maharashtra, AIR [1984) SC 1622, referred to.
B
Circumstantial Evidence by Sir Alfred Wills, referred to.
2.1. That the accused was last seen in the company of deceased persons
in his house and also he slept there, is not disputed. He went to PW-9's house
and told him about the assaults on his children, however, did not say anything
about the assaults on his wife and brother-in-law who were also assaulted and C
suffered death. Also, the claim that he sustained injury at the hal_!ds of
somebody was not stated to PW-9. On the contrary, for the first time he was
medically examined after about 12 days of the alleged date of occurrence.
(873-E-G)
2.2. High Court relied on the alleged injuries suffered by the accused D
and that the same was proved by the doctors. Therefore, the version given by
the accused was not false, confusing and without any plausible logic or sense
of reasons. The injuries were of very superficial nature .and self-infliction
was not ruled out. The story the accused concocted that some one did the
killings is hard to swallow. The killings were possible by one who was known
to the victims and who could have gained access without creating any stir or E
attracting anybody's attention, keeping in view the time and place of incident
Also it is not his case that more than one person. were involved, and/or that
he tried to resist the assaults. The plea that he had raised an alarm is hardly
credible. Further, there is no material describing the assailant as well as the
nature and manner of defence he tried to protect all or any of them and
sustained any injury in that process. This conduct is unnatural. The F
explanation offered about the sustaining of injuries is also hard to believe to
warrant acceptance. Further, the post-mortem report reveals four people were
attacked brutally and in a gruesome manner. The nature of injuries inflicted
and the manner and position the bodies were found on the cots show that a
person who was already inside the house, with a perfect plan and design would G
have so smartly and swiftly killed all of them without causing any flutter to
disturb any one of them, so as to either make them awake or even attempt to
escape. [873-G, H; 874-A-D)

2.3. In the examination under Section 313 Cr.P.C, the accused took
the stand that his brother was responsible for the crime which is contrary to H
864 SUPREME COURT REPORTS (2003) SUPP. 2 S.C.R.

A his stand during investigation. If in reality his brother was the assailant, there
is no reason as to why the accused who claimed to have seen the assailant but
not recognized him could not have spoken about him. Further, the conduct of
the accused in going to the house of PW-9 and giving out false news further
aggravate his guilt. (875-E-F)

B 2.4. The accused has t_ried to draw red-herrings to confuse and divert
attention of everyone including the investigating agencies from himself. One
of such futile attempts was to highlight the footprints. Merely because the
trial was not followed by the police, is really of no consequence. Investigating
Officer has clarified this aspect and justifiably explained the reasons as to
C why that was not considered necessary or possible. (875-G, HJ

2.5. The .evidence of PWS. 5 and 6 categorically states that whenever
accused came to his house, he used to quarrel with his wife. The murders
were not for any monetary gain and nothing was found or stated to have been
stolen. In that context, the said gruesome act should have been committed by
D somebody to wreck vengeance or settle score of some personal vendetta against
the whole family except the deceased. (876-C)

2.6. High Court held that the distance from which the witnesses claimed
to have heard the quarrel was too far a distance from where it was not possible
to hear whereas the witnesses stated not to have heard the quarrel from that
E distance. Another surmise made was that when quarrelling it was not expected
that the accused would talk in such a loud voice that the witnesses would hear
it from a distance. The quarrel was taking place at late night when obstruction
to sounds would be less and voice would normally carry to a greater distance
than during day time, in village particularly in the absence of bustling
F activities of a busy town. (876-D-FJ

2.7. High Court was not justified in discarding the evidence of PWs 5
and 6 holding that the words stated to have been used by the accused were not
similarly described and repeated by PWs 5 and 6 and different versions were
given about the exact words. Two rustic illiterate ladies while deposing are
G not expected to reproduce the words verbatim. Human mind is not a tape-
recorder that it would make a perfect reproduction later. On comparison there
is no substantial variance about the sum and substance of words used.
(876-F-H)

2.8. The circumstances highlighted by the prosecution completely rules
H out the role of any other person and unerringly as well as inevitably points
ST ATE OF RAJAS THAN v. KHERAJ RAM 865
towards guilt of accused, thus, the High Court erred in reversing the order A
of conviction by trial court. r877-A, BJ

3. While considering the question whether the case belongs to the rarest
of the rare category in which death sentence can be exercised 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 B
balance has to be struck between the aggravating and the mitigating
circamstances before the option is exercised. (881-B; 880-D)

Bachan Singh v. State of Punjab, [1980) 2 SCC 684; Machhi Singh v.
State ofPunjab, (1983) 3 SCC 470 and Ediga Anamma v. State ofA.P., (1974) C
4 sec 443, referred to.

3.1. The principle of proportion between crime and punishment is a
principle of just desert that serves as the foundation of every criminal
sentence that is justifiable. As a principle of criminal justice it is hardly less
familiar or less important than the principle that only the guilty ought to be D
punished. Indeed, the requirement that punishment not be disproportionately
great, which is a corollary of just desert, is dictated by the same principle

- that does not allow punishment of the innocent, for any punishment in excess
of what is deserved for the criminal conduct is punishment without guilt.
(882-E)
E
3.2. The criminal law adheres in general to the principle of
proportionality in prescribing liability according to the culpability of each
kind of criminal conduct. It ordinarily allows some significant discretion to
the Judge in arriving at a sentence in each case, presumably to permit
sentences that reflect more subtle considerations of culpability that are raised
by the special facts of each case. Judges in essence affirm that punishment F
ought always to fit the crime; yet in practice sentences are determined largely
.J by other considerations. Sometimes, it is the correctional needs of the
perpetrator that are offered to justify a sentence, or the desirability of keeping
him out of circulation, and even the traffic results of his crime. Inevitably,
these considerations cause a departure from just desert as the basis of G
punishment and create cases or apparent injustice that are serious widespread.
[882-F-H)

3.3. Proportion between crime and punishment is a goal respected in
principle, and in spite of errant notions, it remains a strong influence in the
determination of sentences. The practice of punishing all serious crimes with H
866 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A equal severity is now unknown in civilized societies, but such a radical
departure from the principle of proportionality has disappeared from the law
only in recent times. Even now a single grave infraction that is thought to
.call for uniformly drastic measure. Anything less than a penalty of greatest
severity for any serious crime is thought then to be a measure of toleration
that is unwarranted and unwise. But in fact quite apart from those
B considerations that make punishment unjustifiable when it is out of proportion
to the crime, uniformly disproportionate punishment has some very
undesirable practical consequences. [883-A-C]

4. In the instant case, the factual matrix as described by the prosecution
C and established by the evidence on record shows that the killings were
conceived and executed in crueland dia~lic manner. Accused did not act on
any spur of the moment provocation. It was deliberately planned and
meticulously executed. There was not even any remorse for such gruesome
act. On the contrary, after the killing the accused tried to divert attention
and used PW-9 as the cat's-paw. He went on taking diversive tactics to suit
D his purpose. The calmness, with which he smoked.'chilam' was an indication
of the fact that the gruesome act did not even arouse any human touch in him.
On the contrary, he.was satisfied with what he had done. In a given case, a
person having seen a ghastly crimia may act in a different way. That itself in
another case may not constitute.a suspi<:ious circumstance. But the entire
E chain of event and circumstances lead to the inevitable conclusion that the
accused acted in the most cruel a.nd inhuman manner and the murder was
committed in extremely brutal, grotesque, diabolical, revolting and dastardly
manner. The victims were two innocent children and a helpless woman.
Therefore, the death sentence imposed by the trial court is most appropriate.
[833-D-F)
F CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 830 of
1996.
,,
From the Judgment and Order dated 27.3.95 of the Rajasthan High Court
in D.B. Cr!. Murder Ref. No. 2/94 and D.B.Crl(Jail) A.No. 48.l of 1994.

G Manish Singhvi, Mrs. Bharati Upadhyay and V.N. Raghupathy for the
Appellant.

Doongar Singh and V.J. Franics for the Respondent

The Judgment of the Court was delivered by.

H ARIJIT PASAYAT, J. In the Shakespearian epic 'Othello' principal
STATEOFRAJASTHANv. KHERAJRAM[PASAYAT,J.] 867
cl)aracter Othello suspected his wife's fidelity because of the Machinations A
of villain Iago. The tragic consequences which followed have become literary
history.

In the present case, according to the prosecution, suspecting infidelity
on the part of his wife the respondent-accused Kheraj Ram had killed her, two
children and brother in law on 10.10.1992. The deceased persons namely, B
Amru (wife of the accused), Achla (brother-in-law of the accused) and
daughters Kesi and Meera were fatally assaulted and suffered homicidal
death. Law was set to motion by a First Information Report which was lodged
on l 0.10.1992 at about 7.30 a.m. and the alleged murders took place after mid-
night of9.l0.1992 i.e. around 2.00 a.m. on 10.10.1992. The informant was one C
Daula Ram who was examined as PW-I. He lodged the FIR on the basis of
what he had heard from Gaina Ram (PW-9). According to the prosecution, the
following is the factual background.

Accused woke up Gaina Rai (PW-9) around 2.00 a.m. on 10.10.1992
telling that some one had given beatings to his children. When Gaina Rai D
(PW-9) asked him who the person was and what type of clothes he was
wearing, the accused replied that he could not see his clothes but the person
had run away. The .accused told him that he was sleeping in the small room,
and when h~ came out and started making uproar hearing the said person run
away. On a query of the witness as to where the said person had gone,
accused replied he did not know. The accused then informed the witness that E
not only his children, but also his wife and brother-in-law had been beaten.
The witness went,,.to the dhani of accused. The accused went inside. From
the fencing line outside the dhani, the witness could see that Amru, Achla
and Kesi were lying on the cots, and Meera was crying in pain that she was
dying. The witness got" perplexed. He asked accused to remain present in the F
house and went to call the neighbours namely, Khartha and Khumbha. He
told them about what the accused had told them. Thereafter, the witness and
Khartha went to the house.ef Khumbha, who was also told about the incident.
Khartha and Khumbha were sent to the dhani of Kheraj, and the witness
called one Daula (PW-I) who was sleeping in the gudal of his house. He
disclosed what he had heard and seen to Daula and he and Daula went to G
the dhani of Kheraj where Khumba and Khartha were sitting outside. Thereafter,
the witness and Daula opened the back door and went inside and saw that
all the four persons were lying drenched with blood. Immediately they entered
inside, and found that except Meera, the rest three had died. He enquired from
Meera as to what had happened, but she could not speak. At that time Kheraj H
868 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A was smoking chilam in the courtyard. The witness came out and sent Daula
to lodge a report with the police. Subsequently, Meera also died. Then he sent
Khartha to call Lalla and Sadula (brother of the accused). After sunrise, they
searched for footprints, if any. Though they noticed footprints of a person
in the north side going to the dhani of Achla and returning from there, the
B footprints were of shoe-worn. The footprints were also present in the east of
the dhani. The accused used to blame the deceased Amru for her alleged
infidelity and was quarrelling with her. He was told by Kannu and Veero (PWs
5 and 6 respectively) that the accused and his wife had a quarrel in the night.
The police investigated into the allegations, and came to the conclusion that
accused was responsible for the four killings. Initially, a case was registered
C for commission of offences punishable under Section 302 and Section 307 of
the Indian Penal Code, 1860 (for short the 'IPC'), and subsequently, it was
modified to Section 302 IPC when all the four died.

The trial Court on consideration of the evidence led by the prosecution
found the accused guilty of offence punishable under Section 302 IPC.
D Considering the brutal nature of the killing death sentence was imposed.
Because of the requirement under Section 366 of the Code of Criminal Procedure,
1973 (for short the 'Cr.P.C. ') reference was made to the High Court of Rajasthan
for continuation of the death sentence. Accused also filed an appeal. Both
the death reference and the appeal were heard together and disposed of by
E the impugned judgment.

The High Court noted that the case was one which rested on
circumstantial evidence. According to the prosecution, the following were the
circumstances which unerringly pointed out the finger of guilt at the accused,
and having found the accused guilty, he was sentenced to death.
F The circumstances relied upon were as follows:

"(I) the motive with the ac:cused to commit the murder of his wife as
he felt that his wife was a lady of easy virtues and the two deceased
daughters were not born from his loin; and the relations between
deceased Smt. Amru and the accused appellant were not cordial and
G
they were quarrelling;

(2) PW5 Smt. Kannu and PW6 Smt. Veero had heard accused and
deceased Smt. Amru quarrelling on the previous night and the accused
was saying that the two daughters were not born from his Join and
deceased Amru had scattered the money to her friends and the parents;
H
STATEOFRAJASTHANv. KHERAJRAM[PASAYAT,J.) 869

(3) The accused gave false story regarding the commission of the A
offence to Gaina Ram and other persons who came at the scene of the
occurrence when they were called by the accused;

(4) The conduct of the accused in smoking the chilam at the time when
the other persons who were called by him, came to his house;
B
(5) The last seen of the accused in the company of the deceased
persons in his house;

(6) The extra-judicial confession made by the accused before PW12
Simratha Ram; and

(7) The recoveries of the blood-stained dhoti of the accused, the jooti C
of deceased Achla and the blood-stained kulhari on the information
and at the instance of the accused-appellant."

Some of the circumstances noted above were relied upon by the trial
Court and accordingly conviction was made and sentence was imposed. The D
High Court considered the above circumstances not to have been proved and
sufficient to prove the guilt of the accused and directed acquittal. Therefore,
the State of Rajasthan is in appeal before us.

Learned counsel appearing for the appellant-State submitted that though
the case is one which rests on circumstantial evidence, circumstances E
highlighted and established by the prosecution rule-out involvement of any
other person and clearly establishes that the respondent-accused was the
author of the heinous crime.

Learned counsel for the respondent-accused on the other hand submit:ed
that there has been lot of manipulations done such as suppressing the actual F
date of arrest of the respondent-accused, and the same is a suspicious
circumstance. Other alleged to be inconsistencies and improbabilities have
been highlighted by the High Court to justify the order of acquittal.

It has been consistently laid down by this Court that where a case rests
squarely on circumstantial evidence, the inference of guilt can be justified G
.... only when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of any other
person. See Hukam Singh v. State of Rajasthan, AIR ( 1977) SC 1063; Eradu
and Ors. v. State of Hyderabad, AIR (1956) SC 316; Earabhadrappa v. State
of Karnataka, AIR (1983) SC 446; State of UP. v. Sukhbasi and Ors., AIR H
870 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A 1985 SC 1224; Ba/winder Singh v. State of Punjab, AIR (1987) SC 350; Ashok
Kumar Chatterjee v. State of MP., AIR (I 989) SC 1890. The circumstances
from which an inference as to the guilt of the accused is drawn have to be
proved beyond reasonable doubt and have to be shown to be closely connected
with the principal fact sought to be inferred from those circumstances. In
B Bhagat Ram v. State ofPunjab AIR ( 1954) SC 621, it was laid down that where
the case depends upon the conclusion drawn from circumstances the
cumulative effect of the circumstances must be such as to negative the
innocence of the accused and bring the offences home beyond any reasonable
doubt.

C We may also make a reference to a decision of this Court in C. Chenga
Reddy and Ors. v. State of A.P., [1996] IO SCC 193, wherein it has been
observed thus:

"In a case based on circumstantial evidence, the settled law is that
the circumstances from which the conclusion of guilt is drawn should
D be fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances s.hould be complete and there should
be no gap left in the chain of evidence. Further the proved
circumstances must be consistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his innocence .... ".

E In Padala Veera Reddy v. State of A.P. and Ors., AIR (1990) SC 79, it
was laid down that when a case rests upon circumstantial evidence, such
evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established;
F
(2) those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused;
L
(3) the circumstances, taken cumulatively should forni. a chain so
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and none
G
else; and

(4) the circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than
that of the guilt of the accused and such evidence should not only
H be consistent with the guilt of the accused but should be inconsistent
STATE OF RAJAS THAN v. KHERAJ RAM [PASAY AT, J. ] 871
with his innocence. A
In State of U.P. v. Ashok Kumar Srivastava, (1992) Crl. L.J. 1104, it was
pointed out that great care must be taken in evaluating circumstantial evidence
and if the evidence relied on is reasonably capable of two inferences, the one
in favour of the accused must be accepted. It was also pointed out that the
circumstances relied upon must be found to have been fully established and B
the cumulative effect of all the facts so established must be consistent only
with the hypothesis of guilt.

Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence"
(Chapter VI) lays down the following rules specially to be observed in the
case of circumstantial evidence: "( l) the facts alleged as the basis of any legal C
inference must be clearly proved and beyond reasonable doubt connected
with the factum probandum; (2) the burden of proof is always on· the party
who asserts the existence of any fact, which infers legal accountability; (3)
in all cases, whether of direct or circumstantial evidence the best evidence
must be adduced which the nature of the case admits; (4) in order to justify D
the inference of guilt, the inculpatory facts must be incompatible with the
innocence of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt, (5) if there be any reasonable
doubt of the guilt of the accused, he is entitled as of right to be acquitted".

There is no doubt that conviction can be based solely on circumstantial E
evidence but it should be tested by the touch-stone of Jaw relating to
circumstantial evidence laid down by this Court as far back as in 1952.

In Hanumant Govind Nargundkar and Anr. v. State ofMadhya Pradesh,
AIR (1952) SC 343, wherein it was observed thus:
F
"It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of
guilt is to be drawn should be in the first instance be fully established
and all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the circumstances G
should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far
complete as .not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as
to show that within all human probability the act must have been done H
872 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A by the accused."

A reference may be made to a later decision in Sharad Birdhichand
Sarda v. State of Maharashtra, AIR (1984) SC 1622. Therein, while dealing
with circumstantial evidence, it has been held that onus was on the prosecution
to prove that the chain is complete and the infinnity of lacuna in prosecution
B cannot be cured by false defence or plea. The conditions precedent in the
words of this. Court, before conviction could be based on circumstantial
evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned must
c or should and not may be established;

(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they .should not
be explainable on any other hypothesis except that the accused is
guilty;
D
(3) the circumstances shoul.d be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to
be proved; and

E (5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion· consistent with the innocence
of the accused and must show that in all human probability the act
must have been done by the accused.

We find that one particular circumstance which is of great relevance has
F been very casually and in a cavalier fashion dealt with by the High Court i.e.
circumstance No.5. The High Court observed about this aspect as under:

"The next circumstance relied upon by the prosecution and believed
by the learned trial Court is that the accused gave false story to PW
9 Gaina Ram after the incident regarding the commission of the crime
G by some unknown person. The accused, after the incident, infonned
PW9 Gaina Ram that somebody had killed Smt. Amru, Achla Ram and
his two daughters Meera and Kesi and inflicted injuries to him, also.
The accused had injuries on his person, which is clear from the
statement of PWl3 Dr. Davendra Singh Choudhary, who examined the
H injuries of the accused after his arrest on 23. l 0.1992 and found five
STATEOFRAJASTHANv. KHERAJRAM[PASAYAT,J.] 873
injuries on his person. PW7 Smt. Saro has admitted in the cross- A
examination that the police was tracing the foot-prints and they had
disclosed to this witness that Smt. Amru has been killed by someone
and they were tracing the foot-prints. PW9 Gaina Ram has also admitted
that in the morning they followed the foot-prints of one person who
had gone towards the northern side of the dhani of Achla and he
cannot say that these foot-prints were of whom because he is not a B
tracer. PW14 Poona Ram has also admitted that the police along with
Chimanji came to his house following the footprh.ts. PW18 Jagga
Ram- the investigating officer has also admitted that he had followed
the footprints. When the footprints were available there and the
police tried to trace those footprints, it is surprising to note that the C
investigating officer did not take the moulds of the footprints in order
to establish conclusively the identity of the perpetrator of the crime.
From the facts and circumstances of the case and the evidence produced
by the prosecution, it is, therefore, clearly established that the accused
did not try to give any false explanation, rather on the other hand, the
investigating officer did not properly conduct the investigation and D
rest contended with implicating the accused with the crime instead of
making an impartial investigation. The accused himself had injuries on
his person and the same have been proved by PW13 Dr. Davinder
Singh Choudhary and therefore, it cannot be said that the version
given by the accused was false. The learned Additional Sessions E
Judge was, therefore, not justified in relying upon this circumstance
against the accused appellant."

Undisputedly, accused was last seen in the company of the deceased
persons in his house and also slept in that house. The accused does not
dispute this. He went to the house of Gaina Ram (PW-9) and told him about F
the assaults on his children. He claimed that he had also received injuries on
account of the assaults made by the assailants. Strangely, he did not say
anything about the assaults on his wife and brother-in-law who undisputedly
were also assaulted and suffered death at first to Gaina Ram (PW-9). The claim
that he sustained injury at the hands of somebody was not stated to Gaina
Ram (PW-9). On the contrary, for the first time he was medically examined after G
about 12 days of the alleged date of occurrence. In the cross-examination of
PW-9, the defence itself has brought out that the accused did not tell the
witness that he was also beaten by some one and/or that he was injured. The
High Court was greatly impressed by the alleged injuries suffered by the
accused. There is no material to show that he had sustained injuries during H
874 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A the course of assaults on his wife, children and brother-in-law. The injuries
were of very superficial nature and self-infliction was not ruled out. The story
the accused concocted that some one (and not some others) did the killings
is hard to swallow. The killings were possible by one who was known to the
victims and who could have gained access withouureating any stir or
attracting anybody's attention, keeping in view the.time and place of incident.
B The plea that he had raised an alarm is hardly credible. It is not his case that
more than one person were involved, and/or that he tried to resist the assaults.
Had he tried it, some serious injuries and not the superficial injuries would
have resulted. Though much was made by learned counsel appearing for the
respondent-accused of the alleged discrepancy of date of arrest, that is really
C of no consequence. If the accused sustained injuries during the assaults at
least he could have described the assailant as well as the nature and manner
of defence he tried to protect all or any of them. There is no material that the
accused tried to protect his wife, brother-in-law and children and sustained
any injury in that process. This conduct to say the least is unnatural. The
explanation offered about the sustaining of injuries is also hard to believe ~o
D warrant acceptance. Further, four people were brutally and in a gruesome
manner attacked, as the post-mortem report reveals. The nature of injuries
inflicted and the manner and position the bodies were found dead on the cots
would also go to show that a person who was already inside the house, with
a.perfect plan and design should have so smartly and swiftly killed all of them
E wi~out causing any flutter to disturb any one of them, so as to either make
them awake or even attempt to escape.

The High Court observed about this aspect as under:

"The next circumstance relied upon by the prosecution and believed
by the learned trial Court is that the accused gave false story to PW
F
9 Gaina Ram after the incident regarding the commission of the crime
by some unknown person. The accused, after the incident, informed
PW9 Gaina Ram that somebody had killed Smt. Amru, Achla Ram and
his two daughters Meera and Kesi and inflicted injuries to him, also.
The accused had injuries on his person, which is clear from the
G statement of PWI3 Dr. Davendra Singh Choudhary, who examined the
injuries of the accused after his arrest on 23.10.1992 and found five
injuries on his person. PW7 Smt. Saro has admitted in the cross-
examination that. the police was tracing the foot-prints and they had
disclosed to this witness that Smt. Amru has been killed by someone
and they were tracing the foot-prints. PW9 Gaina Ram has also admitted
H
STATE OF RAJASTHAN v. KHERAJ RAM [PASA YAT, J.] 875
that in the morning they followed the foot-prints of one person who A
had gone towards the northern side of the dhani of Achla and he
cannot say that these foot-prints were of whom because he is not a
tracer. PW14 Poona Ram has also admitted that the police along with
Chimanji came to his house following the footprints. PW18 Jagga
Ram- the investigating officer has also admitted that he had followed
the footprints. When the footprints were available there and the B
poJice tried to trace those footprints, it is surprising to note that the
investigating officer did not take the moulds of the footprints in order
to establish conclusively the identity of the perpetrator of the crime.
From the facts and circumstances of the case and the evidence produced
by the prosecution, it is, therefore, clearly established that the accused C
did not try to give any false explanation, rather on the other hand, the
investigating officer did not properly conduct the investigation and
rest contended with implicating the accused with the crime instead of
making an impartial investigation. The accused himself had injuries on
his person and the same have been proved by PWI3 Dr. Davinder
Singh Choudhary and therefore, it cannot be said that the version D
given by the accused was false. The learned Additional Sessions
Judge was, therefore, not justified in relying upon this circumstance
against the accused appellant."

To say the least, the observations of the High Court as extracted supra
are confusing and without any plausible logic or sense of reason. In the E
examination under Section 313 of the Code, the accused took the stand that
it was one Sadula, his brother who was responsible for the crime. This is
contrary to what was his stand during investigation. If in reality Sadula was
the assailant, there is no reason as to why the accused who claimed to have
seen the assailant but not recognized him could not have spoken about him. F
This is certainly a very vital factor. The conduct of the accused in going to
the house of Gaina Ram (PW-9) and giving out falsehood news further
aggravate the guilt pointing factors against the accused. In answering the last
question "Do you have to say anymore'', the accused has not even whispered
a word as to what he did to protect at least any one of the victims or what
type of resistance if any he offered or with what result. The accused has tried G
to draw red-herrings to confuse and divert attention of everyone including
the investigating agencies from himself. One of such futile attempts was to
highlight the footprints. Merely because the trial was not followed by the
police, that is really of no consequence. The Investigating Officer (PW-18)
has clarified this aspect and justifiably explained the reasons as to why that H
876 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A was not considered necessary or possible.
The evidence on record also fully establish the fact that accused
suspected chastity and fidelity of his wife and also doubted that she did not
beget the children through him. Though accused claimed to the contrary
which appear to be yet another pretence to exculpate himself, credible evidence
B of Kanu and Veero (PWs 5 and 6) cannot be overlooked. The former has
categorically stated about the frequent quarrels between the accused and his
•
wife. An interesting suggestion was given to this effect that when "altercation
was taking place in the night in the house of Kheraj Ram, then at the relevant
time he (Kheraj Ram) was not present inside his house". In the cross-
C examination of PW-6; defence has brought out that since the date of marriage
of accused up to the date of incident, whenever accused come to his house,
he used to quarrel with his wife. The murders were not for any monetary gain
and nothing was found or stated to have been stolen. In that context, the said
gruesome act should have been committed by somebody to wreck vengeance
or settle score of some personal vendetta against the whole family except the
D deceased.

The High Court proceeded on the basis as if the distance from which
these two witnesses claimed to have heard the quarrel was far too a distance
from where it was not possible to hear. The distance was stated to be about
1000 to 1500 ft. On a reading of the evidence of the two witnesses it is clear
E that they have not stated to have heard the quarrel from that distance.

There is another surmise made by the High Court that when quarrelling
it was not expected that the accused would talk in such a loud voice that the
witnesses would hear it from a distance. The quarrel was taking place at late
F night when obstruction to sounds would be less. At night, voice would
normally carry to a greater distance than during day time, in village particularly
in the absence of bustling activities of a busy town.

The High Court also attached vulnerability to the evidence of PWs 5
and 6 that the words stated to have been used by the accused were not
G similarly described and repeated by them, and different versions were given
about the exact words. On a comparison of the version regarding the exact
words, no substantial difference is discernible. Two rustic illiterate ladies
while deposing are not expected to reproduce the words verbatim. Had it been
so, the normal plea that it is parrot like would have been taken. Human mind
is not a tape-recorder that it would make a perfect reproduction later. There
H is no substantial variance about the sum and substance of words used. The
STATE OF RAJAS THAN v. KHERAJ RAM [PASA YAT, J. ] 877
High Court was not justified in discarding the evidence of PWs 5 and 6. A
Therefore, the circumstances highlighted by the prosecution present
the complete picture which completely rules out the role of any other person
and unerringly as well as inevitably point the finger at the accused and in that
view of the matter the trial Court was justified in convicting the accused and
consequently the High Court was in error in reversing the conviction. So far B
as conviction is concerned, High Court's judgment is set aside and that of
trial Court is restored.

The only other thing which needs consideration is whether death
sentence as awarded by trial Court is proper.
c
Section 302 IPC prescribes death or life imprisonment as the penalty for
murder. While doing so, the Code instructs the court as to its application. The
changes which the Code has undergone in the last three decades clearly
indicate that Parliament is taking note of contemporary criminological thought
and movement. It is not difficult to discern that in the Code, there is a definite
swing towards life imprisonment. Death sentence is ordinarily ruled ouf and
D
can only be imposed for "special reasons", as provided in Section 354(3).
There is another provision in the Code which also uses the significant
expression "special reason". It is Section 361. Section 360 of the 1973 Code
re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in
short "the old Code"). Section 361 which is a new provision in the Code E
makes it mandatory for the court to record "special reasons" for not applying
the provisions of Section 360. Section 361 thus casts a duty upon the court
to apply the provisions of Section 360 wherever it is possible to do so and
to state "special reasons" if it does not do so. In the context of Section 360,
the "special reasons" contemplated by Section 361 must be such as to compel
the court to hold that it is impossible to reform and rehabilitate the offender F
after examining the matter with due regard to the age, character and antecedents
of the offender and the circumstances in which the offence was committed.
This is some indication by the legislature that reforn1ation and rehabilitation
of offenders and not mere deterrence, are now among the foremost objects
of the administration of criminal justice in our country. Section 361 and G
Section 354(3) have both entered the statute-book at the same time and they
are part of the emerging picture of acceptance by the legislature of the new
trends in criminology. It would not, therefore, be wrong to assume that the
personality of the offender as revealed by his age, character, antecedents and
other circumstances and the tractability of the offender to reform must
H
878 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A necessarily play the most prominent role in determining the sentence to be
awarded. Special reasons must have some r.elation to these factors, Criminal
justice deals with complex human problems and diverse human beings. A
Judge has to balance the personality of the offender with the circumstances,
situations and the reactions and choose the appropriate sentence to be
imposed.
B
It should be borne in mind that before the amendment of Section 367(5)
of the old Code, by the Criminal Procedure Code (Amendment) Act, 1955 (26
of 1955) which came into force on 1.1.1956, on a conviction for an offence
punishable with death, if the court sentenced the accused to any punishment
C other than death, the reason why sentence of death was not passed had to
be stated in the judrment. After the amendment of Section 367(5) of the old
Code by Act,26 of 1955, it is not correct to hold that the normal penalty of
imprisonm~nt for life cannot be awarded in the absence of extenuating
circumstances Which reduce the gravity of the offence. The matter is left, after
the amendment; to the discretion of the court. The court must, however, take
D into account all the circumstances, and state its reasons for whichever of the
two sentences it imposes in its discretion. Therefore, the former rule that the
normal punishment for murder is death is no longer operative and it is now
within the discretion of the court to pass either of the two sentence.s prescribed
in this section; but whichever of the two sentences he passes, the Judge must
E give his reasons for imposing a particular sentence. The amendment of Section
367(5) of the old Code does not affect the law regulating punishment under
IPC. This amendment relates to procedure and now courts are no longer
required to elaborate the reasons for not awarding the death penalty; but they
cannot depart from sound judicial considerations preferring the lesser
punishment.
F
Section 354(3) of the Code marks a significant shift in the legislative
policy underlying the old Code as in force immediately before 1.4.1974,
according to which both the alternative sentences of death or imprisonment
for life provided for murder were normal sentences. Now, under Section 354(3)
of the Code the. normal punishment for murder is imprisonment for life and
G death penalty is an exception. The court is required to state the reasons for
the sentence awarded and in the case of death sentence "special reasons"
are required to be stated, that is to say, only special facts and circumstances
will warrant the passing of the death sentence. It is in the light of these
successive legislative changes in the Code that the judicial decisions prior to
H the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be
STATE OF RAJASTHAN v. KHERAJ RAM [PASA YAT, J.] 879
understood. A
This Court in Ediga Anamma v. State of A.P., [1974] 4 SCC 443 has
observed sec pp. 453-54, para 26.

"26. Let us crystallize the positive indicators against death sentence
under Indian law currently. Where the murderer is too young or too B
old, the clemency or penal justice helps him. Where the offender
suffers from socio-economic, psychic or penal compulsions insufficient
to attract a legal exception or to downgrade the crime into a lesser
one, judicial commutation is pennissible. Other general social pressures,
warranting judicial notice, with an extenuating impact may, in special
cases, induce the lesser penalty. Extraordinary features in the judicial C
process, such as that the death sentence has hung over the head of
the culprit excruciatingly long, may persuade the court to be
compassionate. Likewise, if others involved in the crime and similarly
situated have received the benefit of life imprisonment or if the offence
is only constructive, being under Section 302, read with Section 149, D
or again the accused has act~d sudcf'enly under another's instigation,
without premeditation, perhaps the court may humanely opt for life,
even like where a just cause or real suspicion of wifely infidelity
pushed the criminal into the crime. On the other hand, the weapons
used ~d the manner of their use, the horrendous features of the crime
and hapless, helpless state of the victim, and the like, steel the heart E
of the law for a sterner sentence. We cannot obviously feed into a
judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating society. A legal policy
on life or death cannot be left for ad hoc mood or individual predilection
and so we have sought to objectify to the extent possible, abandoning F
retributive ruthlessness, amending the deterrent creed and accenting
the trend against the extreme and irrevocable penalty of putting out
of life."
In Bachan Singh v. State of Punjab, [1980] 2 SCC 684 it has been
observed that: (SCC p. 751, para 209)
G
"A real and abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That ought
not to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed."

A balance sheet of aggravating and mitigating circumstances has to be H
880 SUPREME COUR'f REPORTS [2003] SUPP. 2 S.C.R.

A 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 the option is exercised. In order to
apply these guidelines, inter a/ia, the following questions may be asked and
answered, (a) is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death sentence?;
B and (b )_ are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?

Another decision which illuminatingly deals with the question of death
C sentence is Machhi Singh v. State of Punjab, [1983) 3 SCC 470.
In Machhi Singh, (supra) and Bachan Singh, (supra) cases the guidelines
which are to be kept in view when considering the question whether the case
belongs to the rarest of the rare category were indicated.

In Machhi Singh case, (supra) it was observed: (SCC p. 489, para 39)
D
"The following ,questions may be asked and answered as a test to
determine the 'rarest of the rare' case in which death sentence can be inflicted:-

(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
E sentence?

(b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage
to the mitigating circumstances which speak in favour of the offender?"

F 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: (SCC p. 489, para 38):-

"(i) The extreme penalty of death need not be inflicted eKcept in
gravest cases of extreme culpability.
G
(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'.

(iii) Life imprisonment is the rule and death sentence is an exception.
H Death sentence must be imposed only when life imprisonment appears
STATE OF RAJASTHAN v. KHERAJ RAM [PASA YAT,J.] 881

to be an altogether inadequate punishment having regard to the A
rele~ant circumstances of 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 circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances B
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 the
option is exercised."

In rarest of rare cases when collective conscience of the community is C
so shocked that it will expect the holders of the judicial power centre to inflict
death penalty irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty, death sentence can be awarded. The
community may entertain such sentiment in the following circumstances:

(I) When the murder is committed in an extremely brutal, grotesque, D
diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total
depravity and meanness; e.g. murder by hired assassin for money or
reward or a cold-blooded murder for gains of a person vis-a-vis whom E
the murderer is in a dominating position or in a position of trust, or
murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority
community etc., is committed not for personal reasons but in
circumstances which arouse social wrath, or in cases of 'bride burning' F
or· dowry deaths' or when murder is.committed in order to remarry for
the sake of extracting dowry once again or to marry another woman
on account of infatuation.

(4) When the crime is enormous in proportion. For instance when G
multiple murders, say of all or almost all the members of a family or
a large number of persons of a particular caste, comtnunity, or locality,
are committed.
(5) When the victim of murder is an innocent child, or a helpless
woman or old or infirm person or a person vis-a-vis whom the murderer
H
882 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A is in a dominating position or a public figure generally loved and·
respected by the community.

If upon taking an overall global view of all the circumstances in the light
of the aforesaid propositions and taking into account the answers to the
questions posed by way of the test for the rarest of rare cases, the
B circumstances of the case are such that death sentence is wru:ranted, the court
would proceed to do so.

A convict hovers between life and death when. the question of gravity
of the offence and award of adequate sentence comes up for consideration.
Mankind has shifted from the state of nature towards a civilized society and
C it is no longer the physical opinion of the majority that takes away the liberty
of a citizen by convicting him and making him suffer a sentence of imprisonment
Award of punishment following conviction at a trial in a system wedded 'fo
the rule of law is the outcome of cool deliberation in the court room after
adequate hearing is afforded to the parties; accusations are brought against
D the accused, the prosecuted is given an opportunity of meeting the accusations
by establishing his innocence. It is the outcome of cool deliberations and the
screening of the material by the informed man i.e. the Judge that leads to
determination of the /is.

The principle of proportion between crime and punishment is a principle
E of just desert that serves as the foundation of every criminal sentence that
is justifiable. As a principle of criminal justice it is hardly less familiar or less
important than the principle that only the guilty ought to be punished.
Indeed, the. requirement that punishment not be disproportionately great,
which is a corollary of just desert, is dictated by the same principle that does
F not allow punishment of the innocent, for any punishment in excess of what
is deserved for the criminal conduct is punishment without guilt.

The·criminal law adheres in general to the principle of proportionality
in prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in
G arriving at a sentence in each case, ·presumably to permit sentences that
reflect more subtle considerations of culpability that are raised by the special
facts of each case. Judges in essence affirm that punishment ought always
to fit the crime; yet in practice sentences are determined ·largely by other
considerations. Sometimes it is the correctional needs of the perpetrator that
are offered to justify a sentence. Sometimes the desirability of keeping him
H out of circulation, and sometimes even the traffic results of his crime. Inevitably
STATE OF RAJASTHAN v. KHERAJ RAM [PASA YAT, J.] 883

these considerations cause a departure from just desert as the basis of A
punishment and create cases ·of apparent injustice that are serious and
widespread.

Proportion between crime and punishment is a goal respected in principle;
and in spite of errant notions, it remains a strong influence in the determination
of sentences. The practice of punishing all serious crimes with equal severity B
is now unknown in civilized societies, but such a radical departure from the
principle of proportionality has disappeared from the law only in recent times.
Even now a single grave infraction that is thought to call for uniformly drastic
measures. Anything less than a penalty of greatest severity for any serious
crime is thought then to be a measure of toleration that is unwarranted and C
unwise. But in fact quite apart from those considerations that make punishment
unjustifiable when it is out of proportion to the crime, uniformly
disproportionate punishment has some very undesirable practical
consequences.

The factual matrix as described by the prosecution and established by D
the evidence on record shows the cruel and diabolic manner in which the
killings were conceived and executed. The accused did not act on any spur
of the moment provocation. It was deliberately planned and meticulously
executed. There was not even any remorse for such gruesome act. On the
contrary, after the killing the accused tried to divert attention and used PW-
9 as the cat's-paw. He went on taking diversive tactics to suit his purpose. E
The calmness with which he smoked 'chilam' was an indication of the fact
that the gruesome act did not even arouse any human touch in him. On the
contrary, he was satisfied with what he had done. In a given case, a person
having seen a ghastly crime may act in a different way. That itself in another
case may not constitute a suspicious circumstance. But when the entire chain F
of events and circumstances are comprehended, the inevitable conclusion is
that the accused acted in the most cruel and inhuman manner and the murder
was committed in extremely brutal, grotesque, diabolical, revolting and dastardly
manner. The victims were two innocent children and a helpless woman. Taking
note of these factors, the death sentence imposed by the Trial Court is most
appropriate. The respondent shall surrender to custody forthwith and serve G
out the sentence.
The appeal is allowed to the extent indicated.

N.J. Appeal allowed.