JUDGMENT Amar Saran, J.
1. Criminal Capital Appeal No. 1037 has been preferred by Babloo @ Dori Lal against the judgment and order of the Addl. Sessions Judge, Court No. 4, Moradabad, dated 21.1.2004 in ST No. 763 of 2002 (State v. Mohar Singh and Ors.) convicting the appellant and sentencing him to death penalty under Section 302 IPC, to life imprisonment and a fine of Rs. 10,000/- under Section 364 IPC and 7 years' RI and a fine of Rs. 5,000/- under Section 201 IPC. In case of default of payment of fine, four years further imprisonment was awarded to the appellant. For confirmation of the sentence of death, Reference No. 16 of 2004 has been received from the learned Addl. Sessions Judge, Moradabad under Section 366(2) Cr.P.C. From the same judgment Crl. Appeal No. 1339 of 2004 has been preferred by appellant Mohar Singh and Criminal Appeal No. 415 of 2004 has been preferred by Roopa Kumhar and Kalyan Kumhar. Mohar Singh, Roopa and Kalyan have been sentenced to imprisonment for life under Section 302 IPC together with a fine of Rs. 10,000/-Under Section 364 IPC appellants Mohar Singh, Roopa and Kalyan have been sentenced to life imprisonment and a fine of Rs. 10,000/-. Under Section 201 IPC Mohar, Roopa and Kalyan have been sentenced to 3 years' RI and a fine of Rs. 5,000/-. In case of default of payment of fines, the appellants Mohar Singh, Roopa and Kalyan were to undergo 4 years' simple imprisonment.
2. The aforesaid appeals and criminal reference have been connected and are being disposed of together by the present judgment.
3. The prosecution case in a nutshell, as mentioned in the FIR, was that the daughter of Mohar Singh (son of Harish Chandra), Smt. Krishna, had come to the house of the informant in Kashipur along with her four years old son Kaku in connection with a marriage in the family. On 8.5.2002 at 4 pm Kaku disappeared from the house. A search was made for him by the informant and his relatives, but Kaku was not found anywhere. Prior to this on 6.5.2002 there was a theft in the workshop of the informant. The appellant, Mohar Singh, son of Om Prakash, and Babloo have been made accused by the informant Mohar Singh, son of Harish Chandra, for this theft. They had been apprehended and brass slabs had been recovered from them. Later, they had threatened to take revenge but on the persuasion of the Mohalla people and looking to the ages of the accused, the informant had not initiated any legal action against them and had let them off. When the appellant, Babloo, was questioned with some severity after the disappearance of Kaku, he confessed that he along with appellant Mohar Singh and appellants Roopa Kumhar and Kalyan Kumhar had jointly murdered Kaku and thrown his dead body in the Jayantipur nala where it was lying. On this information by Babloo, the informant and his relatives reached the spot indicated by Babloo. There they found the dead body of Kaku lying there. Thereafter the informant had come to the police station with Babloo. On the way he had met Nanliey and Kishan Lal, who told him that they saw the deceased child Kaku going along with the appellants Mohar Singh, Babloo @ Dori Lal, Roopa and Kalyan on 8.5.2002 at 5 pm. The informant lodged a written report of this incident on 10.5.2002 at 5 pm at P.S. Katghar, Moradabad. Head Constable Satish Chandra registered the case at crime No. 840 of 2002, under Sections 364, 302 and 201 IPC: State v. Mohar Singh and Ors. on the basis of the report on 10.5.2002 at 12.40 pm. At that time PW 5 SSI, P.K. Jain was present. He was also a signatory of the chik FIR (Ext. Ka 11) along with HC Satish Chandra. The details were entered by HC Satish Chandra in GD No. 24 on 10.5.2002 at 12.40 pm. PW 5, SSI P.K. Jain started investigation of this case and entered the chik FIR in the G.D. He, thereafter, reached the place of incident and on the pointing out of the informant he prepared the site plan (Ext. Ka 13) which was in his writing and signature. He also recorded the 161 Cr.P.C. statement of the informant and the witnesses. Prior to the preparation of the site plan he got the dead body of the deceased child taken out with assistance from some witnesses. It was taken into possession by the police. SI Suresh Singh and Inspector Kishan Lal conducted the inquest in the presence of PW 5, SSI, P.K. Jain. The SI Suresh Singh also prepared the necessary papers in connection with the inquest (Ext. Ka-3 to Ka 10). The dead body was handed over to CP Ram Lal and CP Gopal Singh for taking it for postmortem. Thereafter he submitted the chargesheet (Ext. Ka 14) against the appellants Mohar Singh, Roopa, Babloo @ Dori Lal and Kalyan. PW 4, Dr. V.K. Goel conducted the postmortem examination of the deceased Kaku, aged about 4 years, at 10.5.2002 at 3.30 pm at Police Hospital, Moradabad, and prepared a report (Ext. Ka 2). The dead body was of average built. Eyes and tongue were protruding out. Body was in a decomposed condition. Skin was peeling off and the nails and hairs had loosened. The following ante mortem injuries were seen on the dead body:
There was a linear abrasion mark at top of neck, 2 1/2 cm below chin and measuring 5 cm x 2 cm in size. There was subcutaneous haemorrhage below this mark in the tissue. There was fracture of the thyroid cartilage below the injury. The time of death was about 3 to 5 days. The internal organs were discomposing. According to the doctor, the cause of death was shock and asphyxia due to ante mortem injury. They were summer months and it was possible that the child had died between 5 to 6 pm on 8.5.2002 by having his neck pressed with some wooden stick. He had received 9 police papers along with the dead body which was in a sealed condition. He returned all the police papers after appending his signature and applying his seal along with his postmortem examination report.
4. Apart from these two formal witnesses, PW 4, Dr. V.K. Goel, who conducted the postmortem on the dead body of the deceased and SS1 P.K. Jain, PW 5, who was the investigating officer, three other witnesses have been examined by the prosecution. They are PW 1 Mohar Singh, the informant and grandfather of the deceased Kaku; PW 2 Kishan Lal who was a witness of last seen of the deceased along with the appellants and PW 3, Raj Kumar, who was a witness of extra-judicial confession by the appellants and some of their relatives.
5. PW 1, Mohar Singh, has deposed that brass used to be melted at his place for making slabs thereof. Babloo @ Dori Lal and Mohar Singh were working in his workshop. Two days prior to the incident there was a theft in his workshop. Some force was used to the appellants Mohar Singh and Babloo to get the slab recovered. Babloo used to work in his place whereas Mohar Singh was a friend of Babloo, hence he used to visit the workshop now and then. When the two Were beaten by the informant and others, they gave threats to the informant. However, he did not lodge any report, because he was dissuaded by the mohalla people looking to the ages of the appellants. The incident took place on 8.5.2002. His daughter was to be married. Consequently, the elder daughter had come to his place for the marriage. She was accompanied by her elder child Kaku @ Tej Prakash, aged about 5 years. Barat was to arrive of his daughter Bina and all the people were busy in connection with the marriage. At about 4-5 pm Kaku had got lost. He along with his family members and Mohalla people searched for Kaku but he could not be found. On 9.5.2002 they reached their house and on the basis of suspicion at about 8 pm. they apprehended Babloo. When they made enquiries from Babloo for 1 1/2 to 2 hours he kept making excuses but thereafter he confessed that they had murdered Kaku and then thrown the deadbody in the Jayantipur drain. After that he reached the Jayantipur nala with his relatives, Mohalla people and Babloo. There Babloo took out the dead body of Kaku. Babloo confessed that Mohar, Roopa and Kalyan caught hold of the child when he pressed his neck with a danda. They left the body at the spot and brought Babloo to the police station. At Sambhal crossing they met Kishan Lal to whom this witness disclosed that he was taking Babloo to the police station as he had murdered Kaku. Then Kishan Lal told him that he and Nanhey had seen Babloo taking Kaku along with him on 8.5.2002. At that time Roopa, Kalyan and Mohar Singh were also present. At that time Rajiv Gumbar arrived. Then Mohar Singh dictated the report to him and he took the report and Babloo to the police station thereafter. The motive for the murder of Kaku was enmity because of the accusation of the earlier theft against the appellants, Babloo and Mohar Singh. He claims to have identified the dead body of Kaku when the body was recovered.
6. PW 2, Kishan Lal, has deposed that he knew the four appellants who were present in Court. Babloo was also known as Dori. He also knew the informant Mohar Singh. The incident had taken place 8 months earlier, at about 4-5 pm. The appellants used to reside in the nearby Neta Colony behind the house of the informant. On the date of incident Mohar Singh's daughter was to be married. The marriage was performed at the Prabhat Dharamshala. He along with Nanhey were going on the lane of the residence of Mohar Singh at about 4 pm. There he saw Mohar and Babloo catching hold of Kaku and taking him along with them. When he went a little further he saw Roopa and Kalyan also following these persons. At that time they did not pay any much attention to these facts because Babloo used to work in the factory of Mohar Singh. So he thought that Babloo was taking the child Kaku @ Tej Prakash for a treat etc. On the third day when Mohar Singh had caught hold of Babloo and was taking him somewhere, he enquired as to what was the matter. He then told the informant Mohar Singh that he and Nanhey had seen Babloo and Mohar Singh, appellant, going along with Kaku whose hands they were holding. Roopa and Kalyan were following them. He saw Kaku, Babloo and the appellant Mohar Singh in the mohalla of the informant Mohar Singh. Kaku @ Tej Prakash was the son of Krishna, the elder daughter of the informant Mohar Singh. Krishna had come for the marriage of her yonger sister.
7. PW 3 Raj Kumar is a witness of extra-judicial confession. He deposed that after the incident the appellant Mohar Singh, his mama Ram Prakash, the appellant Roopa's mother Shanti Devi, who was also the sister of appellant Kalyan and Babloo @ Dori Lal's father Srikrishan came to his house on several occasions. They told Mohar Singh, that the informant, was close to him and he should help them reach a compromise with him. Whatever mistake they had done, they were apologetic for the same. All the four appellants were quite remorseful. The child who had died would not return. But he declined their request and said that he could not do anything in the matter.
8. The appellants were examined under Section 313 Cr.P.C. They denied the incident and simply stated that a wrong case had been foisted against them and the witnesses were all deposing as they were relations of the informant and out of enmity. However, only the appellant Babloo @ Dori Lal, has admitted that Mohar Singh was his friend, and that he had been made an accused two days prior to the present incident for another incident in the factory of Mohar Singh where the charge against him was of for stealing a brass bar. He further admitted that he and Mohar Singh had been beaten when they were apprehended for stealing the brass bar but they denied having given threats that they would take revenge. The appellants have not led any evidence in defence. As we found, the examination of the accused under Section 313 Cr.P.C. to be inadequate and incomplete, especially in view of the fact that certain important circumstances such as the witness Kishan Lal, PW 2, having seen the deceased child Kaku being caught hold of by Mohar Singh and Babloo in the informant Mohar Singh's lane and the two other accused Roopa and Kalyan were walking behind on the date of incident and another circumstance i.e. the extra-judicial confession by the accused and their relations before PW 3, Raj Kumar, had not been put to the accused, we directed on 11.4.05 that the case should be remanded to the sessions judge who should get the accused examined again and put to them all the incriminating circumstances that had not been put to them in the earlier Section 313 Cr.P.C. statement. This examination could be done by Sri N.A. Zaidi, who was then the Additional Sessions Judge, Court No. 4, Moradabad, and in case he was not available in Moradabad, the Sessions Judge was directed to further re-examine the accused either by himself or by any other competent Court. We had passed this order dated 11.4.05, overruling the objection of the learned Counsel for the appellant that such a direction would be impermissible and amount to filling up lacunae by the Court. We had held that this direction was being given to remedy an error committed by the trial Court in not putting all the incriminating circumstances which appeared in the evidence to the accused. No new evidence was being sought to be brought on record. Such a course was necessary in order to give a fair opportunity to enable the accused to explain all the incriminating circumstances, which appear against him. It would also prove fair to the prosecution, so that incriminating circumstances against the accused are not excluded from consideration by the Court, and the Court can arrive at a just decision of the case. Moreover as this was not an old criminal appeal of 1980 where the accused were languishing in jail for a long time, but it related to an incident dated 8.5.02 and a judgment of conviction dated 21.1.04, hence no prejudice would be caused to the accused, if the circumstances which were earlier not put to the accused, were now to be put to them. In pursuance of this direction, the accused were re-examined by the Sessions Judge, Moradabad, on 14.7.2005. The last seen evidence of PW 2 Kishan Lal and the extra-judicial confession of Raj Kumar, PW 3, were put to the accused who have simply denied the correctness of these two pieces of evidence. However, Babloo has stated in reply to the question as to whether he wanted to say anything, that the informant Mohar Singh had taken him from his house, given him a beating and forced him to confess and he was medically examined in the Jail Hospital. The appellant Babloo examined Kishan Lal, his father, as a defence witness on 21.7.2005. Kishan Lal (Babloo's father) claimed to know Raj Kumar and the witness Kishan Lal. He further stated that witness Kishan Lal was the real brother-in-law (Bahnoi) of the informant Mohar Singh. The witness Raj Kumar was the real Sarhu of the informant Mohar Singh. He denied ever having gone to meet Raj Kumar for the purpose of saving his son Babloo alias Dori Lal or of making any extra-judicial confession, regretting the mistake committed by him or his son and that Raj Kumar had given this false statement because he was a relation of the informant Mohar Singh.
9. We have heard Sri Rajesh Pathik and Sri H.C. Tewari on behalf the appellant Babloo @ Dori Lal, Sri V.P. Srivastava for the appellants Roopa and Kalyan and Sri R.K. Misra for the appellant Mohar Singh and the learned AGA.
10. It was contended by the learned Counsel for the appellant Babloo @ Dori Lal that as a matter of fact the deceased child appears to have fallen down in Jayanti Nala when he was playing and that the appellants have been falsely implicated. There was no motive to commit this offence. There is some contradiction about the date and time of apprehension of Babloo and recovery of the deceased child Kaku as in the evidence of PW 1 Mohar Singh it has been mentioned at one point that they arrested Babloo on 9.5.2002 at 8 am and he got the dead body recovered after he was interrogated for 1 1/2-2 hours whereas in the FIR it was mentioned that Babloo was apprehended on 10.5.2002 at 8 am, which was the date of the FIR and he got the dead body recovered on that date.
11. According to the autopsy which was conducted on 10.5.2002 at 3.30 pm the probable time since death was between 3 to 5 days, whereas the prosecution case had been that Kaku was done to death on 8.5.2002 as per the confessional statement. The important witness of last-seen PW 2 Kishan Lal could not be relied on as he was the brother-in-law (Bahnoi) of the informant Mohar Singh and he attended the marriage in the evening of 8.5.2005 in the house of Mohar Singh but he did not disclose about having last seen Kaku going along with Babloo and Mohar Singh and being followed by Roopa and Kalyan even when announcements were made on the loudspeaker about the disappearance. The last-seen evidence of Kishan Lal was not put to the appellants in the initial statement under Section 313 Cr.P.C. The extra-judicial confession made by the accused and their relatives to PW 3, Raj Kumar was not reliable and the Sessions Judge had not placed any reliance on the same. Some weaknesses of the investigation have also been pointed out such as the inquest and other papers not containing the names of the accused. The body of Kaku had been recovered independently, and not on the pointing put of Babloo. As Babloo had been subjected to beating, hence in any case no significance could be attached to the discovery under Section 27 of the Evidence Act. There has been non-production of some independent witnesses, such as Nanhey, who was also accompanying PW 2 Kishan Lal when he saw Babloo and others taking away the deceased Kaku. The accused Babloo was a person of tender age and an application has been moved for separation of his trial on the ground of minority.
12. The principles for appreciation in a case of circumstantial evidence have been aptly enunciated in Padala Verabira Reddy v. State of AP 1989 Supp (2) SCC 706, in paragraph 10, on pages 710-711, which we respectfully adopt. The principles laid down are as follows:
10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused:
the circumstances, taken cumulatively, should form 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 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 guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
13. Some cases referred to by the appellant Bablu's Counsel viz. Sharad Birdhi Chand Sarda v. State of Maharashtra AIR 1994 SC 162, Shivaji Saheb Rao Bobade v. State of Maharashtra , Dhananjoy Chatterjee v. State of West Bengal , and Laxman Naik v. State of West Bengal basically reiterate the aforesaid principles laid down in Padala Verabira Reddy's case (supra) that in a case of circumstantial evidence, the circumstances against the accused must be firmly established, the circumstances must irrefutably point towards the guilt of the accused, the chain of circumstances should in all human probability suggest that the accused alone had committed the crime, and the circumstances should only be consistent with the guilt of the accused and inconsistent with his innocence. Hence there is no need to burden this judgment with passages from those cases cited by the appellant's counsel. Applying the principles mentioned in the aforesaid cases to the facts of the present case, we may examine the contentions raised by the learned Counsel for the appellants.
14. The submission that the child had gone off somewhere to play and fell down into Jayanti nala on his own does not hold water. The deceased child Kaku, was only about 4 years in age. He was not likely to have ventured unescorted to the place where his dead body was found, which was at some distance from his house. Moreover, his ante-mortem injuries show that there was a linear abrasion mark on top of the neck about 2 1/2 cm below chin measuring 5 cm x 2 cm in size. There was subcutaneous haemorrhage below this mark in the tissue and fracture of thyroid cartilage above. The cause of death was shock and asphyxia due to ante mortem injury. Learned Counsel however tried to argue that the injury received by the injured was accidental. For this proposition he placed reliance on a passage at page 350 in Parikh's Text Book of Medical Jurisprudence and Toxicology: "In the dead, two types of errors are made by the inexperienced at autopsy. One is to report a fracture when not present and the other is to miss a fracture when present. Reporting a fracture when not present is due to mistaking normal joints as fracture and not specifically looking for ecchymosis in suspected area of fracture. Missing a fracture when present is due to hastypostmortem examination. It is necessary to feel the bone soon after reflection of the skin over the neck and to look specifically for ecchymosis. It must however be remembered that postmortem decomposition results in separation of joints of this bone and the cartilages of the windpipe and this may give an erroneous impression of a fracture." It may be noted that in the present case P.W. 4, Dr. V.K. Goyal has specifically noted that there was ecchymosis (subcutaneous haemorrhage) under the injury which was 2 l/2 cms below the chin on the upper part of the neck, and below this injury there was fracture of the thyroid cartilage. It is also not a case of separation of joints of bones due to postmortem decomposition mentioned in Parikh's text book. He has further stated that the fracture appeared to have taken place during life time, as ecchymosis was present in the nearby tissues. Furthermore this passage was not even put to the doctor, which is legally required if a party wishes to take advantage of a certain passage in a book of medical jurisprudence. There was even no suggestion to P.W. 4 Dr. V.K. Goyal that the death of the child was accidental and not homicidal. Therefore there is no foundation for the contentions that either the death was accidental and not homicidal, or that a fracture which was not present has been reported as a fracture, or that the fracture was the result of postmortem decomposition. Such an injury could only have been caused if the child was strangulated. It is, therefore, more likely that the four year old child was abducted by some familiar person who may have offered him some allurement and who appears to have thereafter murdered the child. As Babloo used to work in the factory of the child's grandfather, the informant Mohar Singh, he could be expected to be familiar with the child and he could have taken the child along with him by offering him some allurement.
15. If the death was homicidal and not accidental, as we have shown above, then the contention raised by the learned Counsel for the appellant that there was no motive for Babloo to commit this crime cannot be sustained. It is the clear case of the prosecution that Babloo used to work in the brass workshop of Mohar Singh, the informant, and he had stolen some brass slabs for which he had been apprehended along with Mohar Singh two days before the abduction of Kaku, i.e. on 6.5.2002. When Babloo and Mohar Singh had been beaten and the stolen brass slab had been recovered from them, they had issued a threat that they would take revenge later. This fact was clearly mentioned in the FIR as well as in the statement of PW 1 Mohar Singh, the informant. Also, Babloo has admitted in his initial 313 Cr.P.C. statement that he along with Mohar Singh had been caught for stealing the slab and has also admitted that he and Mohar Singh had been beaten for this act. He however denied, that he had issued any threat to take revenge against the informant in view of his having been apprehended and beaten. We also find that ordinarily no rank outsider will have any motive to kidnap and murder a 4 year old child, as this is not a case of demand for ransom, and therefore, in our opinion, as Babloo and Mohar Singh had been caught hold of and beaten two days prior to the present incident for stealing the brass slab from the factory of the informant, which had even been recovered from them, none else but they would have a motive to commit this heinous crime.
16. Nothing turns on the contradiction about the time of arrest of Babloo which has been mentioned as 9.5.2002 at 8 a.m. in the examination-in-chief of Mohar Singh, PW 1, and the fact that in the FIR the arrest of Babloo was shown on 10.5.2002. Obviously, this discrepancy is the result of some confusion when this witness's testimony was recorded in Court, and in any case nothing material turns on this minor contradiction. Significantly, no question has been put to this witness, PW 1, Mohar Singh in the cross-examination as to how this discrepancy had occurred. Without questioning a witness specifically about an omission or a contradiction in his testimony the accused cannot take any advantage of such a contradiction. In this connection the following passage in paragraphs 13 and 14 of State of U.P. v. Nahar Singh may be usefully perused:
13. It may be noted here that that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer io such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn clearly elucidates the principle underlying those provisions. It reads thus:
I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.
17. The accused can therefore not take advantage of such a discrepancy in the evidence unless it is put to the witness and he has been given an opportunity to explain the discrepancy. In any case this discrepancy was too minor in nature to affect the credibility of the prosecution case.
18. Likewise, nothing turns on the probable time of death which is shown to be 3 to 5 days prior to 10.5.2002 at 2.30 p.m. when the postmortem examination was conducted on the body of the deceased and the so-called discrepancy in the child having been abducted on 8.5.2002 at about 5 pm and having been murdered sometime thereafter. P.W. 4 Dr. P.K. Goyal has specifically mentioned in his examination in chief that the deceased child could have died at about 5 or 6 p.m. on 8.5.2002 due to pressure on his neck. It was a summer month when decomposition takes place rapidly. He has also noted that there was no sign of any decomposition on any part of the body. In any case a doctor's estimate as to time of death is only opinion evidence, and variations in the estimate do not significantly affect the prosecution case, (vide Ram Swaroop v. State of U.P. 2000 SCC (Cri)484, Jai Karan v. State of U.P. et al) . Also it is highly improbable that the 4 year old child Kaku would have disappeared on 7.5.02 or earlier and the little child would not have been missed. It may be possible that a grown up person disappears and for some time his absence is not noted, as people initially think that the grown up may have gone away somewhere voluntarily. If the child disappeared on 8.5.02 at about 5 p.m. as alleged, and his post mortem is conducted on 10.5.02 then the time of death cannot be three days or earlier.
19. In our opinion, the evidence of last seen of the deceased Kaku with the appellants, Babloo and Mohar Singh by PW 2, Kishan Lal, cannot be said to be unreliable simply because Kishan Lal did not make a disclosure about the evidence of last seen at the time of marriage, but only two days later when the informant had caught hold of the appellant Babloo and was taking him along to the police station for lodging the report on 10.5.2002. The submission of the appellant's Counsel was that PW 2, Kishan Lal, had attended the marriage of the informant, Mohar Singh's daughter in his house and yet he did not make any disclosure about having last seen Kakoo with the appellants, at the time of marriage even when information of disappearance of the child Kaku had been announced on a loud speaker which makes his subsequent disclosure at the time when the FIR was lodged suspect. It may be noted that in his cross-examination PW 2 Kishan Lal has specifically denied having attended the marriage in the house of the informant, Mohar Singh, as he stated that on the date of incident when he had seen Kaku at 5 p.m. going along with Babloo and Mohar Singh he had left for Amroha soon thereafter at 6 pm for the 'barsi' of his mother-in-law and that he returned from Amroha after 3 days. In that case he would not have had any opportunity to make an earlier disclosure to the informant as he might not have any information that the child Kaku was taken along with by the appellants Babloo and Mohar Singh for the purpose of kidnapping and murdering him. No doubt PW 1, the informant Mohar Singh, had stated that Kishan Lal had come for the marriage but that could be the result of some confusion as the informant Mohar Singh might have assumed that Kishan Lal, being his neighbour must have attended the ceremony. As Kishan Lal had gone away at 6 pm there is nothing abnormal if he had not heard or known about the loud speaker announcement of the child Kaku's disappearance. There is no reason for Kishan Lal to depose falsely against the appellants, Babloo and Mohar Singh simply because he was a neighbour of the informant, Mohar Singh, PW 1. No doubt it was argued by the learned Counsel that Kishan Lal was not only a neighbour, but the behnoi of Mohar Singh informant and he would ordinarily be expected to attend the marriage ceremony. In this connection it was pointed out that after re-examination of the accused under Section 313 Cr.P.C. by the trial Court on 14.7.05 in pursuance our order for re-examination of the accused, appellant Babloo had produced his father Kishan on 21.7.05 as a defence witness who stated that P.W. 2 Kishan Lal was a behnoi of the informanat Mohar Singh, hence it was contended that it was not likely that Kishan Lal would not have attended Mohar's daughter's marriage. But we think this allegation of close relationship of Mohar Singh informant with Kishan Lal is incorrect. Significantly informant P.W. 1 Mohar Singh only states that the relationship with Kishan Lal was because they were Mohallawalas and they would attend marriages in each other's families. No suggestion was given to this witness that Kishan Lal was his behnoi. Even to P.W. 2 Kishan Lal the suggestion was that informant Mohar Singh's sister was married in Amroha, to which place Kishan Lal's wife belonged. However Kishan Lal specifically denied the suggestion that Mohar Singh's behnoi Chandra was related to him or his wife's relations, or that his wife was the sister of Chandra. In such circumstances there is nothing inherently improbable in P.W. 2 Kishan Lal going away to Amroha at 6 p.m. on the fateful day to attend his mother-in-law's barsi after seeing the accused taking away Kaku, and not attending the marriage in the house of his neighbour Mohar Singh.
20. The objection that the evidence of last seen given by Kishan Lal was not put to the appellants under Section 313 Cr.P.C., has been removed as after the re-examination of these appellants on 14.7.2005 in pursuance of our order dated 11.4.2005 the last seen evidence of Kishan Lal has specifically been put to the appellants. But the appellants have done little more than to deny the correctness of this last seen evidence and it cannot be excluded from consideration only on the ground that it was not initially put to the appellants when the first 313 Cr.P.C. statement of the appellants were recorded on 25.11.2003.
21. Furthermore, his evidence of last seen together is corroborated by the circumstance that on the pointing out of Babloo the dead body of the deceased child Kaku was recovered from Jayanti Nala. It is noteworthy that the FIR which was lodged on 10.5.2002 at 12.40 pm has mentioned that Kishan Lal and Nanhey had disclosed that on 8.5.2002 at about 5 pm they had seen the appellants Babloo @ Dori Lal, Roopa and Kalyan taking the child Kaku along with them.
22. It was further argued that no value could be attached to the recovery of the body of the deceased child at the instance of the appellant Babloo as the disclosure was the consequence of a beating given by the informant to Babloo, hence this evidence became legally inadmissible. In this connection it was pointed out that PW 1 has stated that when Babloo was given a beating and force was used against him, then he disclosed where the dead body was lying and it was got recovered. In this connection reliance was placed by the learned A.G.A on an old Full Bench decision in the case of Emperor v. Misri 1909 ILR(XXXJ) 592, where the accused had got recovered certain ornaments of the deceased because she was given an inducement, while in police custody, that nothing would happen to her if she got the ornaments recovered. The Court held that whatever limitation would be placed on the admissibility of the evidence in view of the fetters contained in Sections 24 to 27 of the Evidence Act, the evidence of that accused, that she went to a particular place and got the ornaments recovered, was relevant to the conduct of the accused and was admissible under Section 8 or other preceding sections of the Indian Evidence Act. Significantly the appellant Babloo had pointed out the place where the dead body of Kaku was lying to the informant and not to the police. This evidence is relevant under Section 8 of the Evidence Act, as subsequent conduct of the accused, even without going into the question of the admissibility of the evidence under Section 27 of the Evidence Act. A similar question arose in Ramkishan v. Bombay State , that where certain properties had been recovered on the pointing out by the accused, but the investigating officer had failed to record and prove the statements of the accused, whether the evidence relating to the recoveries ought to have been excluded from consideration in view of Section 27 of the Evidence Act. The Court opined that even independently of the provisions of Section 27 of the Evidence Act, it would be possible to take into account the conduct of the accused, and thus the Apex Court observed in paragraph 23: "What was stated by the Investigating Officer, Hujur Ahmad Khan in the present case was that certain information was supplied to him by the accused 1 in consequence of which he took certain steps. He did not seek to prove that information or any part thereof in the evidence which he gave before the Court. Even when he said that Bahram dug out the tin box from the mud floor of a house at the instance of the accused 1 he did not seek to prove what that information was. The operation of Section 27 was therefore not attracted and 'prima facie' there was nothing to prevent that evidence being admitted against the accused 1. " Again in para 24 of this law report it is mentioned: "(24) The evidence of the police officer would no doubt go to show that the accused knew of the existence of the fact discovered in consequence of information given by him. But that would not necessarily show his direct connection with the offence. It would merely be a link in the chain of evidence which taken along with other pieces of evidence might go to establish his connection therewith. This circumstance would therefore be quite innocuous and evidence could certainly be given of that circumstance without attracting the operation of Section 27."
23. Recently in the case of State v. N.M.T. Joy Immaculate , it has been held by the Apex Court that even if it was assumed that an order granting police custody was illegal, the search and seizure under such an order does not become automatically vitiated. Paragraph 15 of the aforesaid report may be usefully extracted: 15. The law of evidence in our country is modeled on the rules of evidence which prevailed in English law. In Kurma v. R All ER 236, an accused was found in unlawful possession of some ammunition in a search conducted by two police officers who were not authorised under the law to carry out the search. The question was whether the evidence with regard to the unlawful possession of ammunition could be excluded on the ground that the evidence had been obtained on an unlawful search. The Privy Council stated the principle as under:
The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained.
(Emphasis added).
24. Moreover, to the specific question put to the appellant Babloo under Section 313 Cr.P.C. that it has come in evidence that on his pointing out the dead body of Kaku was got recovered, his reply was only of denial. There was no statement that the dead body had been recovered because of coercive measures applied to the accused or that it had been independently recovered and the recovery has falsely been fastened upon Babloo. In this connection in the case of State of Maharashtra v. Damu it has been observed that such a plain denial, without any effort to explain an incriminating circumstance which is put to an accused under Section 313 Cr.P.C is an additional link to the chain of circumstances against the accused. In paragraph 33 of the aforesaid law report it has been observed as under:
At the first blush, the approach of the High Court may appear to be sound. But when we considered the answer which A-2 Gurujt had given to the questions put to him under Section 313 of the Code regarding the said circumstance, he simply denied even the recovery of the "Kalash " as stated by PW 44, the investigating officer. When we know that there was blood on the pitcher it is for A-2 Gurujt to explain how it was there. But when he denied even the seizure of the pitcher, such a denial, in this context, is not inconsequential In another case, a similar denial was treated by this Court as sufficient to provide a "missing Link' to the chain of circumstances (State of Maharashtra v. Suresh (2000) 1 SCC 471.
(Emphasis added)
25. It has also been argued that there was some contradiction about the precise manner in which the body was recovered as the case of the informant Mohar Singh was that after the appellant Babloo was apprehended, he was strictly questioned whereupon he confessed to his crime along with the other accused and stated that the dead body was lying in the Jayanti Nala. Thereupon the informant and his relation reached the spot mentioned by Babloo where they found the dead body. At other points in his cross-examination Mohar Singh had stated that he reached the place indicated by Babloo in the Jayanti Nala along with his relation and Babloo and then Babloo got the dead body recovered, whereas, according to investigating officer, P.W. 5 SSI P.K. Jain, on reaching the spot he got the site-plan prepared on the pointing out of the informant. Before that he got the body of the deceased child recovered and it was taken into possession by the police. Thus, there is some doubt whether the dead body was actually taken out by Babloo or it was taken out through the instrumentality of the police. Even if it is assumed that it was the police who got the body taken out, and the appellant Babloo only had knowledge of the place of its disposal. In view of the law laid down above in Ram Kishan's case it would at least go to show that the accused knew of the existence of the fact discovered in consequence of information given by him, which would constitute a link in the chain of circumstances for establishing the complicity of the appellant Babloo in the crime.
26. Nothing much turns on the fact that another witness, who was accompanying PW 2, Kishan Lal when he saw the appellants going along with the child Kaku, namely, Nanhey, has not been examined in this case. It is provided under Section 134 of the Evidence Act that no particular number of witnesses are required to prove a particular fact, and it is the quality and not the quality of witnesses which is determinative of the question whether conviction can be safely based on the basis of the testimony of the witness(es) actually produced. We think that the evidence of Kishan Lal P.W. 2 of having last seen the appellants Babloo and Mohar Singh going along with the child whose body was later got recovered by Babloo from the Jayanti Nala can be safely relied on for recording the convictions of these two appellants.
27. It was submitted by the learned Counsel for the appellant that the chain of circumstances against the appellant Babloo was not complete and the conviction should not have been recorded on the basis of the circumstances present in the case. In this connection the learned Counsel has placed reliance on the following cases relating to circumstantial evidence where the accused were acquitted. These cases are State of Haryana v. Jugbir Singh and Anr. 2004 SCC (Cri) 126, Rahman v. State of U.P. AIR 1972 SC 110, State of Madhya Pradesh v. Sanjay Rai , Parmananda Pegu v. State of Assam 2004 SCC (Cri) 2081, Sudama Pandey and Ors.v. State of Bihar:2002 All JIC 280 and Tanviben Pankaj Kumar Divetia v. State of Gujrat. It is well settled that each case has to be decided on its own facts, and reference to precedents are made only for culling out the ratio decidendi in those cases. However as the cases have been cited by the learned Counsel we proceed to examine them. So far as the first case, State of Haryana v. Jugbir Singh and Anr. (supra) is concerned, the three circumstances against the appellant were (i) ransom note in the hand-writing of accused Jugbir, (ii) extra-judicial confession made by Jugbir before PW 10 and (iii) recovery of dead body on the basis of information given by Jugbir while in custody were all discarded. About the ransom note being in the hand-writing of the accused, it was held by the apex Court that the specimen hand-writing of the accused had been illegally obtained as the CJM had no power to issue a direction under Section 73 of the Evidence Act requiring the accused to give his signature at the stage of investigation as it could have been only taken during the pendency of the proceedings before the Court. Likewise, the extra-judicial confession before PW 10 was not relied on by the High Court as it was on record that the pressure was being exercised on the accused by taking him to different places to confess and nobody but PW 10 had spoken about the extra-judicial confession. So far as the recovery was concerned, it was held that there are unexplained contradictions about the place where the accused was arrested and the manner of recovery and the dead body was recovered on the basis of the information already available, hence Section 27 of the Evidence Act had no application.
28. In the second case, Rahman v. State of U.P. (supra), the Court disbelieved the two crucial pieces of evidence adduced in that case as to the presence of the appellant at the place of incident in the afternoon and, secondly, the fact of the appellant and the wife carrying the child inside their house in the evening and has held that merely because the appellant had absconded for nearly a month after that incident, was no conclusive proof of his guilt or of a guilty consciousness.
29. State of M.P. v. Sanjai Rai (supra) was an appeal against acquittal in which the apex Court observed that an order of acquittal strengthens the presumption of innocence of the accused and, therefore, is not to be interfered with where two views were possible on the evidence adduced, one as to the guilt and the other as to innocence of the accused. It was observed that if there were compelling and substantial reasons, then in order to avoid miscarriage of justice the Court could have interfered in an appeal against acquittal. However, the apex Court dismissed the special leave petition against the order of acquittal passed by the High Court observing that the findings of the High Court that immediately after the occurrence the respondent-accused and his father called the doctors, PW 1 and PW 2, and there was no motive for killing as the alleged demand for dowry was not established. Hence the trial Court itself had directed the acquittal of the accused persons under Section 304B IPC. The High Court also noted that there was no evidence of any strangulation which was alleged to have been done by the accused. The apex Court observed that no error had been committed by the High Court and there was no illegality or impropriety in its findings warranting interference by the Supreme Court.
30. Similarly, the case of Parmananda Pegu v. State of Assam (supra) is also distinguishable, as it was held that the only piece of evidence in that case, viz. the retracted extra-judicial confession, received no corroboration from any other source and it was also contradicted by the medical evidence as regards the death of the deceased which was an important aspect of the confession. There was no other evidence apart from the retracted extra-judicial confession in that case, whereas in the present case there is evidence of motive, last-seen and recovery of the child on the information given by the appellant. Hence, in our opinion, it is possible to record an order of conviction even without the aid of the extra-judicial confession.
31. In Sudama Pandey and Ors. Vs State of Bihar (supra) it was held that the proved facts were not wholly consistent with the guilt of the appellant as the various circumstances in the case were incapable of forming the chain inevitably pointing to the guilt of the accused and the facts of the case were even consistent with his innocence, hence the accused deserved to get benefit of doubt. The only evidence in that case was that the prosecution witness found the appellant in the vicinity of the place where the dead body was found. As the appellants belonged to the same village and if they were found sitting together or found walking along the road, that itself was no incriminating circumstance pointing to the guilt of the accused. The evidence that the appellants had teased the deceased was also not satisfactorily proved. Apart from this flimsy suspicion, there was no evidence to connect the appellant with the crime. No incriminating material such as weapons or bloodstained clothes worn by the appellants was discovered by the investigating officer.
32. In Tanviben Pankaj Kumar Divetia v. State of Gujarat (supra), it was held that the falsity of defence could not take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea could be considered as an additional circumstance only if the other evidence pointed towards the guilt of the accused. Suspicion should never be allowed to take the place of legal proof. It was held that the multiple injuries on the head, which were bone deep, and the injury on the eye of the accused could not be from a friendly hand. Even the infant of the accused, aged 6 months, had not suffered injury due to fall and it was not probable that the mother could have caused the injury to the six-month-old child along with injury to herself. In this background, it was held that the injuries to the accused and her infant child were caused by some third assailant as alleged by her and the appellants had not committed the murder of her mother-in-law.
33. So far as the extra judicial confession made by the accused and their relations to P.W. 3 Raj Kumar, is concerned, the learned Sessions Judge has noted that the evidence of extra-judicial confession to PW 3 Raj Kumar is suspect and unreliable. In law also extra-judicial confessions have been treated as weak pieces of evidence. P.W. 3 Raj Kumar has initially stated in his examination-in-chief that he knew the four appellants as well as the informant and his daughter Krishna whose child was murdered one year back. After the incident the appellant Mohar Singh, appellant Mohar Singh's mama Ram Prakash, Roopa's mother Shanti Devi who was appellant Kalyan's sister, Babloo's father Sri Krishna had gone to him. These persons had gone to him individually and in a group on several occasions. They told him to intercede on their behalf and to get the matter compromised as the dead child would not return, but he had declined help. In his cross-examination he admits that informant Mohar Singh was his 'mausa.' He later states in his cross-examination that all the four appellants had met him and told him that they were repentant for their crime Rupa, but later corrects himself that only Mohar, Roopa and Kalyan had confessed before him. Then he admits that it was for the first time in Court (and neither in his 161 Cr.P.C. statement or in his examination-in-chief) that he had mentioned that Roopa and Kalyan had come together and were repentant for their crime. He later states that apart from the three appellants, 4-6 other persons, who were Mohar Singh's mama, Bablu's father Kishan, Roop's mother Shanti had come to him. Mohar Singh and his mama had come together, the other's had come separately. We find that apart from appellant Mohar Singh who is said to have come together with his mama, so far as the other appellant are concerned in the examination in chief they were represented by Bablu's father Kishan, Smt. Shanti Devi who was Roopa's mother and Kalyan's sister. The evidence of extra-judicial confession cannot be given by some person other than the accused, and consequently the alleged extra-judicial confession on behalf of Babloo, Roopa and Kalyan have to be excluded from consideration. Babloo was already in custody, hence there was no question of his making any extra-judicial confession, and the evidence Kalyan and Roopa directly confession to Raj Kumar appears to be an after-thought, as it was absent in the 161 Cr.P.C. statement and examination-in-chief of P.W 3, Raj Kumar. However so far as the appellant Mohar Singh is concerned he is said to have gone to Raj Kumar to confess and to seek his help from the beginning, and the evidence of extra-judicial confession by Mohar Singh may be taken into consideration. As the witness was a nephew of the informant Mohar Singh, hence it is not unlikely that the appellant Mohar Singh and the relations of the other accused were repeatedly going to him seeking his help, but for the reasons mentioned above the evidence of extra-judicial confession against the accused other than Mohar Singh must be excluded from consideration.
34. It has also been contended that in the case diary the time of recording of the statements of the witnesses and the description and marks of identification of the witnesses was not mentioned. To this suggestion the I.O., P.W. 5 SSI P.K. Jain has replied that it is not routine to note these facts, and he denied the suggestion that the case diary was written later, and the G.D.
(Ext Ka 12) was not prepared at the time alleged, and that the FIR and G.D. were transcribed after the inquest. He admitted that in the challan lash (Ext Ka 13) the time of report is not mentioned. In the photo lash (Ext Ka 3) and in Exts.
Ka 4 to 8 the crime number and sections were mentioned but the opposite party in the case (i.e. the name of the accused) was not mentioned. He denied that the names of the accused were not mentioned in those papers because the names of the accused were not known by then. So far as this submission is concerned, there is no requirement in the inquest or the other papers apart from the FIR to mention the names of the accused or witnesses and this position has clearly been held in para 13 in the case of Amur Singh v. Balwinder Singh
13. In Khujji v. State of M.P.
this Court, after placing reliance upon the abovequoted decision, rejected the contention raised on behalf of the accused that the evidence of eyewitnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point of time. In Shakila Khader v. Nausheer Cama it was held that an inquest under Section 174 CrPC is concerned with establishing the cause of the death only. The High Court was, therefore, clearly in error in holding that as the facts about the occurrence were not mentioned in the inquest report, it would show that at least by the time the report was prepared the investigating officer was not sure of the facts of the case.
35. In any case, it has been laid down in a catena of decisions of the apex Court (Re: Ambika v. State (Delhi Administration) AIR 2000 SC 718, Dhananjai Singh v. State of Punjab , Dharmendrasinh v. State of Gujarat et al) that defects or and laches on part of the investigation officer cannot result in discarding the entire prosecution version, if the evidence is otherwise reliable. But the court has to be circumspect and cautious in evaluating the evidence. The evidence in this case has been adjudged in this light. In any case in the present case the alleged defects are of a very minor and technical nature, which can hardly impact on the prosecution case.
36. The last submission of the learned Counsel for the appellant is that the appellant Babloo was of tender age. It may be mentioned that in his 313 Cr.P.C.
statement Babloo has given his age to be 20 years on 25.11.2003. Therefore, as per his own statement, he would be 18 1/2 years on the date of the incident, hence he cannot get any benefit under the Juvenile Justice Act. Also, it appears that the application which was moved for separation of his trial on the ground of minority before the trial court did not find favour with the court and it appears to have been rejected. No challenge was made to that order of rejection.
The appellant, Babloo, had not even pleaded minority in his bail application and it was only pleaded by the appellant Mohar Singh. However, by the order dated 30.10.2002 Mohar Singh's medical examination for determination of his age by the CMO was directed by the Addl. District and Sessions Judge, Court No. 4, Moradabad. On radiological examination as per the report dated 8.11.2002 Mohar Singh's age was found to be about 19 years. Therefore, there is no force in the appellants' contention that he was a juvenile within the meaning of Juvenile Justice Act and he ought to have been dealt with under the provisions of that Act.
37. So far as the appellant Mohar Singh is concerned, he was represented by Sri R.K. Misra. He has substantially adopted the argument raised by Sri Rajesh Pathik and Sri H.C. Tewari on behalf of the appellant Babloo. However, apart from the plea of minority, which has not been found to be acceptable for the reasons mentioned above, it was argued that there was no evidence of recovery of the dead body at the instance of the appellant Mohar Singh as recovery had been effected at the instance of the appellant, Babloo alone. In our view, the fact that the recovery of the dead body was not effected at the instance of the appellant Mohar Singh, would not make much difference as according to PW 2 Kishan Lal, both Babloo and Mohar Singh had clearly been seen going along with the deceased child Kaku and both of them were holding the hands of Kaku who was going along with them but the appellants Kalyan and Roopa were walking behind them. Also, so far as the theft of the brass bar from the workshop of the informant Mohar Singh is concerned, both Baboo and the appellant Mohar Singh were implicated for this offence and they have been apprehended and beaten and they had threatened to take revenge later on. According to the informant, Mohar Singh, both Babloo and Mohar Singh had got the brass bar recovered. Furthermore, in his cross-examination PW 1 has specified that the brass bar was in possession of Mohar Singh. At that time Babloo was present and the bar was not retrieved from his possession. Therefore, in view of the clear statement of Mohar Singh that Babloo was involved in an earlier crime in which he was beaten along with Babloo and brass bar had been recovered from his possession thereafter, apart from the evidence of last seen, there is evidence of motive, and close association of Babloo and Mohar Singh who were jointly involved in the theft of the informant's brass bar, which was recovered from Mohar for which he was given a beating. As we have mentioned above the evidence of extra-judicial confession to P.W. 3 Raj Kumar can be read against appellant Mohar Singh. In view of the aforesaid pieces of evidence we think that the chain of circumstances against the appellant Mohar Singh is also complete and the prosecution has succeeded in establishing its case against this appellant also.
38. Sri V.P. Srivastava, who has represented the appellants Kalyan and Roopa, has submitted that so far as these two appellants are concerned, there is only the evidence of Kishan Lal that when Babloo and Mohar Singh were walking holding the hands of the child Kaku, these two appellants were walking behind them.
There was no other material such as motive, or complicity of these two appellants with the appellants Mohar Singh and Babloo for establishing their involvement in this offence. They were not involved in the earlier incident of theft of the brass bar for which the appellants Babloo and Mohar Singh were earlier caught and beaten, and who had a motive for taking revenge against the informant. We have already held that the evidence of extra-judicial confession cannot be relied upon so far as the appellants Roopa and Kalyan are concerned.
We therefore find force in the submission of the learned Counsel for appellants Kalyan and Roopa. In this view of the matter the evidence is too flimsy and insufficient for recording the conviction of these two appellants. According we think that the appellants Kalyan and Roopa have made out a case for acquittal.
39. The last issue which remains as to what should be the appropriate sentence for the appellants Babloo @ Dori Lal and Mohar Singh after convicting them. Babloo @ Dori Lal has been awarded death sentence under Section 302 IPC.
Considering the fact that the appellants Babloo @ Dori Lal was only about 18 years of age on the date of the incident, and being a young man he could have nursed a grievance although wholly unjustified, against the informant in whose factory he worked, in view of the admitted beating he had received for stealing the brass bar. Smarting with anger because of the beating in a momentary act of vengeance he appears to have abducted and murdered the 4 year old grand son of the complainant. In Bachan Singh v. State of Punjab two mitigating circumstances for commuting a sentence of death to a sentence of life imprisonment are that the offence was committed under the influence of extreme mental or emotional disturbance, and the age of the accused. It has come in evidence that it was on account of their young ages and in deference to the sentiments of the residents of the mohalla that the complainant had not handed over the appellant Babloo and Mohar to the police after the earlier theft. We also find that this abduction was not done for extracting some ransom from the complainant. In these circumstances we do not think that this was one of the rarest of rare cases where death sentence was the only option and the alternative of awarding life imprisonment was unquestionably foreclosed. Still looking to the brutality of the crime where a four year old child has been done to death, even if the appellant may have been smarting over the beating given to him by the complainant, we think that although this is a case where the sentence of death may be substituted with a sentence of imprisonment for life under Section 302 IPC. However we make it clear that the sentence of life imprisonment awarded to Babloo @ Dori Lal life imprisonment will run for a minimum actual period of imprisonment of 20 years, and only thereafter the State may consider his case for premature release or commutation etc. under its norms for remission and commutation of sentence. Such a direction has been issued by the apex Court in Prakash Dhaval Khairnar (Patil) v. State of Maharashtra and in Ram Anup Singh v. State of Bihar . We respectfully follow the same. In this connection it would be useful to quote paragraphs 22, 23 and 24 of Prakash Dhawal Khairnar (Patil) v. State of Maharashtra in extenso:
22. Learned Counsel for the appellant however submitted that this would not be a rarest of rare case so as to impose the death penalty. He submitted that because of long-standing dispute for partition of the properties, the incident occurred wherein the act was committed under total desperation.
Further, he submitted that the circumstantial evidence relied upon by the Court, even if are sufficient for convicting the accused, it is not safe enough to act upon such circumstances for putting out a life.
23. From the record, it is revealed that the accused Prakash Patil did not have any criminal tendency. He was working as Water Analyser (Sr.
Scientific Assistant). The facts and circumstances of the case reveal that he killed his brother, brother's wife and children because of frustration, as he was not partitioning the alleged joint property. No doubt, it is heinous and brutal crime but at the same time it will be difficult to hold that it is rarest of rare case. It is also difficult to hold that appellant is a menace to the society and there is no reason to believe that he 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. (Re: Om Prakash v.
State of Haryana ). Even A-2 in his confessional statement has stated that after the commission of the offence, he found tears in the eyes of his father, A-1. This may indicate that A-1 may repent for the rest of his life for commission of such ghastly act. However, at this stage, for imposing appropriate punishment, we would refer to the decision rendered by this Court in Shri Bhagwan v. State of Rajasthan wherein while reducing the death sentence to imprisonment for life, the Court considered Section 57 IPC and referred to the following observations in Dalbir Singh v. State of Punjab
14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad v. State of U.P. . Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the man's life, but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder." 24. The Court also observed that though under the relevant Rules a sentence for imprisonment for life is equated with a definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose. The Court, thereafter, directed that the accused shall not be released from prison unless he had served out at least 20 years of imprisonment including the period already undergone by the appellant. In this case also, considering the facts and circumstances, we set aside the death sentence and direct that for murders committed by him, he shall suffer imprisonment for life but he shall not be released unless he had served out at least 20 years of imprisonment including the period already undergone by him.
(Emphasis added).
40. In this view of the matter the appeals and criminal reference are decided as under:
(i) Criminal Appeal No. 1037 of 2004, preferred by Babloo @ Dori Lal is dismissed subject to the modification that the sentence of death awarded to the appellant Babloo under Section 302 IPC is reduced to a sentence of imprisonment for life, with the condition that the appellant Babloo @ Dori Lal will not be entitled to be released unless he has undergone an actual term of 20 years' imprisonment. Only thereafter, if at all, the State may consider his case for premature release or commutation under its norms for remission and commutation of sentence. The conviction of the appellant Babloo @ Dori Lal under the other provisions is upheld. He is in jail. He shall remain in jail to serve out the sentence awarded to him.
(ii) Criminal Reference No. 16 of 2004 for confirmation of the death sentence awarded to appellant Babloo @ Dori Lal is rejected.
(iii) Criminal Appeal No. 1339 of 2004 preferred by appellant Mohar Singh is dismissed and the conviction and sentence awarded to the appellant Mohar Singh under various provisions is upheld. He is in jail. He should serve out the sentence awarded to him.
(iv) Criminal Appeal No. 415 of 2004 preferred by Roopa and Kalyan is allowed. They are acquitted of the various provisions under which they have been convicted and sentenced by the trial Court. They are on bail. They need not surrender to their bail. Their bail bonds are cancelled and sureties discharged.