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Judgment
Per: Hon’ble Ravindra Maithani, J.
In Sessions Trial No. 247 of 2021, State v. Haider and another, by the impugned judgment and order dated 09.06.2025/12.06.2025, passed by the 1st Additional District and Sessions Judge, Roorkee, District Haridwar, the appellant Haider has been convicted under Section 302 IPC and has been awarded death sentence with a fine of Rs. 50,000/-, whereas the appellant Rehan alias Aris alias Rahil has been convicted under Section 302 read with 34 IPC and sentenced to imprisonment for life with a fine of Rs. 50,000/- and in default of payment of fine, to undergo additional imprisonment for a period of one year.
Criminal Reference No. 01 of 2025 has been instituted under Section 366 of the Code of Criminal Procedure, 1973 (“the Code”) for confirmation of death sentence as awarded to the appellant Haider.
Criminal Appeal No. 424 of 2025 has been preferred by the appellant Haider against his conviction and sentence, whereas Criminal Appeal No. 396 of 2025 has been preferred by the appellant Rehan alias Aris alias Rahil against his conviction and sentence.
Heard learned counsel for the parties and perused the record.
According to the prosecution case, on 24.04.2021, between 1-1:30 in the afternoon, when the deceased Nidhi alias Hansi was all alone in the house, suddenly the appellants Haider and Rehan alias Aris alias Rahil and one Shariq knocked at the door and as soon as the deceased Nidhi alias Hansi came at the gate, the appellants and Shariq slit her throat. Having heard the noise, nearby people gathered at the spot. Vinay, Ramavatar and others apprehended the appellant Haider at the spot and the appellant Rehan alias Aris alias Rahil and Shariq managed to escape. The deceased was taken to Hemant Hospital from where she was referred to Saharanpur. On the way to Saharanpur, she died. According to PW 1 Dinesh Singh, the informant, the deceased had revealed it to him and his mother that the appellants and Shariq committed the offence with her. She also revealed that it is the appellant Haider, who would harass her on telephone and would call her for meeting and when the deceased declined for it, the offence was committed.
PW 1 Dinesh Singh lodged the FIR, Ex. P-1, on 24.04.2021 at 07:30 p.m. at Police Station Gangnahar Roorkee, Haridwar, based on which chik FIR, Ex. P-10 was prepared and Case Crime No. 328 of 2021 under Sections 302, 34 IPC was registered against the appellants and Shariq. The extract of General Diary entry is Ex. P-11. It is the prosecution case that at the time of custody, the appellant Haider had confessed his guilt, which was recorded in General Diary Report No. 1 of 25.04.2021. The extract of it is Ex. P-22.
In fact, when the appellant Haider was apprehended by the neighbours at the place of incident, the police had also been informed. PW 9 SI Manoj Sirola arrested the appellant Haider at 03:10 p.m. He prepared the arrest memo, Ex. P-13. It records that from the pocket of the appellant Haider, blood stained cutter was also taken into custody. The blood stained clothes of the appellant Haider were also taken into custody, of which a recovery memo, Ex. P-14 was recorded. The appellant Rehan alias Aris alias Rahil and Shariq were also arrested on 25.04.2021, of which arrest memo, Ex. P-15 was prepared. When the appellant Haider was arrested, he also confessed his guilt. That was recorded in a memo by the police, which is Ex. P-20. The Investigating Officer also took into custody the blood stained and plain tiles from the place of incident, of which recovery memo Ex. P-21 was prepared.
The incident was recorded in a CCTV camera. The police took into custody the DVR of it and prepared a recovery memo, Ex. P-23. In fact, before taking into custody, the Investigating Officer has also noted as to what they had seen in the DVR. It will be discussed at a later stage. Inquest of the deceased was conducted on 24.04.2021. The inquest memo is Ex. P-2. The postmortem of the deceased was conducted, which is Ex. P-9. In the postmortem report, the following injuries were found on the person of the deceased:-
“(i)Stab wound 4 cm x 2 cm over right middle part of neck. Muscle deep. Depth 4 cm. Cut thyroid cartilage. Blood present in upper part of tracheal rings.
(ii)Clotted blood spot present over the face.”
There are other documents related to postmortem, which are sample seals, etc. They are Exs. P-3 to P-8. While taking the DVR into custody, a certificate under Section 65 B of the Indian Evidence Act, 1872 (“the Evidence Act”), Ex. P-18, was also obtained. The Investigating Officer prepared site plan, Ex. P-19. The Forensic Science Laboratory Report was also received, which are Ex. P-30 and Ex. P-32. The DNA obtained from the pants of the accused, shirt of the accused, top of the deceased and blood stained tiles was found from the same female woman source. On tiles’ examination, the blood stained tiles and plain tiles were found similar. The DVD that was taken into custody was also sent for examination at Forensic Science Laboratory, Chandigarh. The forensic science laboratory report along with a certificate under Section 65 B of the Evidence Act, was received, which are Ex. P-26 & 27, respectively.
After examination, the police submitted the charge sheet under Sections 302, 34 IPC against the appellants Haider and Rehan alias Aris alias Rahil, which is the basis of the case.
On 05.04.2022, the charge under Section 302 IPC was framed against the appellants.
In order to prove its case, the prosecution examined as many as 13 witnesses, namely, PW 1 Dinesh Singh, PW 2 Dheeraj, PW 3 Yogendra Singh, PW 4 Smt. Anita, PW 5 SI Preeti Tomar, PW 6 Dr. Virendra Kumar Nautiyal, PW 7 Vinay, PW 8 ASI Arun Kumar, PW 9 SI Manoj Sirola, PW 10 SI Naveen Purohit, PW 11 Manoj Kumar Rana, PW 12 Inspector Manoj Kumar Mainwal and PW 13 Inspector Amarjeet Singh.
After hearing the parties, the trial court convicted the appellant Haider under Section 302 IPC and the appellant Rehan alias Aris alias Rahil under Section 302 read with 34 IPC and sentenced as stated hereinbefore.
Learned counsel for the appellant Rehan alias Aris alias Rahil submits that PW 1 Dinesh Singh, is not an eye witness; PW 2 Dheeraj and PW 3 Yogendra Singh, have said nothing about this appellant; PW 4 Smt. Anita is also not an eye witness. She reached after the incident; PW7 Vinay, is also not an eye witness; appellant Rehan alias Aris alias Rahil was not arrested at the spot; he has no common intention to share with the appellant Haider; no eye witness has stated anything about the appellant Rehan alias Aris alias Rahil. Hence it is argued that the appellant Rehan alias Aris alias Rahil deserves to be acquitted of the charges leveled against him.
Learned counsel for the appellant Haider submits that PW12 Manoj Kumar Mainwal, took the DVR into custody, but the appellant Haider was not identified in the recording. He referred to Para 19 of the statement of PW12 Manoj Kumar Mainwal, wherein, this witness has stated that the other witnesses did identify the appellant Aris in the CCTV footage. It is also argued that the DVR that was taken into custody from the residence of PW11 Manoj Kumar Rana, was not sealed at the spot. It was sealed at the police station, and the DVR was kept at the police station on 25.04.2020. In reference to it, statements of PW11 Manoj Kumar Rana and PW12 Manoj Kumar Mainwal, are referred to. It is also argued that the contents of DVR were never proved. It was never run in the court, and it is not clear as to how the court has recorded about its description in the judgment.
Learned counsel for the appellant Haider has also raised the following points in his submission:-
The dying declaration, as alleged by the prosecution, is not reliable.
After the incident, the deceased could not have spoken due to the injuries. She could not have said as to who slit her throat. Reference has been made to Para No.34 of the statement of PW1 Dinesh Singh, wherein, he has stated that the deceased was in an unconscious stage.
According to PW12 Manoj Kumar Mainwal, he has taken the tiles into custody from outside the main gate. Reference has been made to the statement of PW12 Manoj Kumar Mainwal, at Para 40. Based on it, it is argued that it means that the place of incident was outside the gate.
The appellant Haider was arrested from his house in the evening of 24.04.2021. DW3 Sadakat Ali, the father of the appellant Haider, has stated so. Even in the post mortem report, the date is 23.04.2021. The deceased died on 23.04.2021, and the appellant was arrested on 24.04.2021. The arrest of the appellant Haider from the spot is not proved. It is also argued that, in fact, in the arrest memo, the crime number is recorded. Arrest was allegedly made on 24.04.2021 at 3:10 p.m., whereas the FIR was lodged at 7:30 p.m. on that date. Therefore, it is argued that it doubts the credibility of the prosecution case.
The Forensic Science Laboratory (“FSL”) report does not support the prosecution case. There was no blood on the clothes and the cutter. In the recovery memo, the colour of the handle of cutter is yellow, whereas in the FSL report, it is recorded as orange and black. In fact, reference has been made to the statement of PW7 Vinay, when in Para 5 of his statement, he has stated that the cutter was yellow in colour. It is possible that the blood that was detected on the clothes of the appellant Haider was his own blood. According to PW6 Dr. Virendra Kumar Nautiyal and PW 7 Vinay, the colour of the top of the deceased was grey, whereas in the FSL report, it is recorded as black and white top.
PW2 Dheeraj is not an eye witness. Had he been at the spot, he would have signed the arrest memo. He has not signed the arrest memo. PW2 Dheeraj does not say that he saw the appellant Haider using the weapon. He has not given any description of the weapon.
PW3 Yogendra Singh did not give his blood stained clothes to the Investigating Officer. It doubts his presence at the spot.
PW7 Vinay is the relative of the deceased. Hence his statement is not reliable.
Learned counsel for the appellant Haider also submits that, in fact, the prosecution has not been able to prove its case beyond reasonable doubt against the appellant Haider, and he deserves to be acquitted of charges leveled against him.
In support of his contention, learned counsel for the appellant Haider has placed reliance on the principles of law, as laid down by the Hon’ble Supreme Court in the cases of Raja Khan v. State of Chhattisgarh, (2025) 3 SCC 314, Mangesh v. State of Maharashtra, (2011) 2 SCC 123, and Mohd. Rafiq alias Kallu v. State of Madhya Pradesh, (2021) 10 SCC 706.
The case of Raja Khan (supra) was based on circumstantial evidence. A person was found missing, and his dead body was found subsequently floating in a pond. Under those facts and circumstances, the Hon’ble Supreme Court observed in Para
32 of the judgment that, “A bare perusal of the testimonies of the said witnesses raises serious doubts regarding the version of the prosecution with respect to the alleged disclosure made by the appellant-accused herein and the recoveries pursuant to such alleged disclosure.”
In the case of Mangesh (supra), the Hon’ble Supreme Court discussed the situation where an act may be said to be planned and in the heat of passion. In Para Nos. 13 and 14 of the judgment, the Hon’ble Supreme Court observed as follows:-
“13.The judgment cited by the learned counsel for the State, Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC 444, is quite distinguishable from the present case as in that case the knife-blow that caused death was given with full force and the single injury was found to be 12 cm deep. Even in that case the law has been laid down as under : (SCC p. 458, para 29)
“29.… The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.” This Court has reiterated the same view in Sridhar Bhuyan v. State of Orissa (2004) 11 SCC 395 and Gali Venkataiah v. State of A.P. (2007) 14 SCC 475.
14.It is not the case even in any of the dying declarations that the appellant had premeditated or preplanned his actions or was having any information prior to the incident that the deceased would be found with his sister Sandhya at the place of occurrence. Their meeting might have been taken by the appellant as temerity. Therefore, it is a clear-cut case of loss of self-control and in the heat of passion, the appellant caused injuries to Prashant (deceased). By no means, can it be held to be a case of premeditation.”
In the case of Mohd. Rafiq (supra) also, the question of applicability of Section 302 or 304 Part I or Part II IPC has been discussed by the Hon’ble Supreme Court, and in fact, the above principles of law, as laid down in the case of Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC 444, were followed.
In fact, it has also been argued that even if it is accepted that the appellant Haider did kill the deceased, it is not a case of culpable homicide amounting to murder. The action may not be termed as planned.
Mr. Arvind Vashistha, learned Amicus Curiae submits that the statement of PW1 Dinesh Singh is not reliable. In Para 29 of his statement, he has stated that he did not witness the incident. He straightway reached the hospital. Reference has been made to Para 29 of the statement of PW1 Dinesh Singh. It is also argued that according to PW1 Dinesh Singh, the deceased had become unconscious. Under such circumstances, she could not have given any dying declaration.
Learned Senior Counsel also raised the following points in his submission:-
PW2 Dheeraj is not a reliable witness. He could not reveal the measurement of the weapon. According to him, the weapon of offence was not sealed in his presence. Reference has been made to the statement of PW2 Dheeraj, at Para 53, and it is argued that PW2 Dheeraj is a witness of recovery memo. Therefore, it is argued that it doubts his credibility.
PW3 Yogendra Singh could not reveal the size of the weapon. He has not given the blood stained clothes to the police. Therefore, his presence is also doubtful.
The statement of PW4 Smt. Anita, with regard to the dying declaration of the deceased, is not reliable because the deceased was unconscious.
The doctor was not shown the weapon of offence.
No blood was detected on the paper cutter.
Learned Senior Counsel submits that, in fact, the prosecution has failed to prove the charges beyond reasonable doubt against the appellants Haider and Rehan alias Aris alias Rahil.
On the other hand, learned State Counsel submits that PW2 Dheeraj and PW3 Yogendra Singh are the eye witnesses. They are independent persons of locality. He also raised the following points in his submission:-
The CCTV footage supports the prosecution case. He referred to Ex. P23, by which the DVR from the residence of PW11 Manoj Kumar Rana was taken into custody, which also records the description as to what was seen in the CCTV footages.
The deceased made dying declaration immediately after the incident and witnesses have stated about it. It is reliable.
The appellant Haider was arrested on the spot. It was stated by PW9 SI Manoj Sirola, and his statement is supported by the statements of PW1 Dinesh Singh, PW2 Dheeraj, PW3 Yogendra Singh, PW4 Smt. Anita, and PW7 Vinay.
The FSL report supports the prosecution case. Though in the arrest memo, the FIR number is recorded, but it is recorded in the red ink, which clearly shows that it was subsequently recorded, and the witnesses and the author of the recovery memo were not asked about it. Therefore, it does not doubt the prosecution case.
The deceased died on 24.04.2021. PW6 Dr. Virendra Kumar Nautiyal, has stated so. Although, in the post mortem report, at one place, the date appears to be 23.04.2021, but it appears to be an error. PW6 Dr. Virendra Kumar Nautiyal, was not asked about the date on the post mortem report; all the contemporary documents with regard to the post mortem report, which are Ex. P3, Ex. P4, Ex. P5, Ex. P6, Ex. P7 and Ex. P8 prove that, in fact, the deceased died on 24.04.2021. Moreover, the post mortem report and the OPD register of the hospital record the details of the death of the deceased on 24.04.2021. Reference has been made to the statement of DW2 Aarif alias Rihan, wherein in Para 9, he states that the deceased died on 24.04.2021.
The colour of the cutter everywhere is mentioned as yellow. In the FSL report, it is written to be of a different color, but it does not make any difference. It is not a serious irregularity. The paper cutter was recovered at the spot. It was sent for forensic examination by the court. The seal was intact.
Learned State Counsel submits that the prosecution has been able to prove its case against the appellant Haider.
Before arguments are appreciated, it would be apt to examine as to what the witnesses have stated.
PW2 Dheeraj is the eye witness. According to him, on 24.04.2021, he had gone to collect his electric press in Gully No.15, Krishna Nagar, but the shop was closed. At about 1:15, in the afternoon, when he was returning to his home, his scooty stuck in a drainage. At that moment, he saw that near the house of PW1 Dinesh Singh, a boy was talking to the deceased Nidhi, and two boys were standing behind him at a distance of about two feet. The deceased was inside the gate, but her face was clearly visible. Suddenly, the boy, who was talking to the deceased Nidhi, entered into the house. The two boys, who were standing behind him upon hearing shrieks from the house of the deceased Nidhi, and also upon noticing the movement of this witness ran away. According to PW2 Dheeraj, upon hearing the shrieks of the deceased Nidhi, he reached at the house of the deceased and he saw that the boy, who was talking to the deceased Nidhi had gone inside the house. This witness called other labourers from his factory. They entered into the house and saw that the boy was sitting over the deceased and had pressed the mouth of the deceased Nidhi with his one hand, and had attacked her neck with a sharp edged weapon. The deceased Nidhi was bleeding from her neck. Upon seeing this witness and other persons, that boy released her. At that moment, according to this witness, the deceased Nidhi revealed that the boy was Haider, who has slit her throat. Many persons had gathered at the spot. That boy, appellant Haider, was locked in a room. Thereafter, the mother of the deceased and other family members came and took the deceased to hospital, and the appellant Haider was handed over to the police. This witness has identified the appellant Haider in the court.
PW3 Yogendra Singh is another eye witness. He has also stated that on the date of incident, PW2 Dheeraj, has told him that a boy had slapped a girl and took her inside the house. Thereafter, they went at the spot and entered into the house. They found that the boy was sitting over the deceased Nidhi. He was holding a paper cutter, and had pressed the mouth of the deceased. The deceased was bleeding from her neck. Thereafter, the girl ran inside the house. This witness came outside and the deceased followed him. At that moment, according to PW3 Yogendra Singh, that boy was locked in a room. Thereafter, the deceased was taken to hospital by her family members. This witness has stated that the deceased had revealed at that moment that it is the appellant Haider, who had slit her throat.
PW4 Smt. Anita is the mother of the deceased. She was informed about the incident by PW3 Yogendra Singh. She reached at the spot soon after the incident and saw that the throat of the deceased was slit. She was stained in blood. She was taken to hospital. The doctor referred her to Saharanpur. On the way to Saharanpur, according to this witness, the deceased revealed that the appellants Haider, Rehan alias Aris alias Rahil and one Shariq slit her throat, and the appellant Haider was harassing her for many days. According to PW4 Smt. Anita, on the way to Saharanpur, the deceased died. Thereafter, her inquest was prepared, of which PW4 Smt. Anita is also a witness.
PW1 Dinesh Singh also reached at the spot after the incident. According to him, when he reached at the spot, the appellant Haider was apprehended by the neighbours. The deceased was taken to Hemant Hospital, Roorkee, from where she was referred to Saharanpur. On the way to Saharanpur, the deceased revealed to this witness and her mother, who is PW4 Smt. Anita, that the appellants Haider, Rehan alias Aris alias Rahil and one Shariq had committed the offence with her. On the way, she died. This witness has proved the FIR, Ex. P1, and has stated that the appellant Haider was taken into custody by police, and a paper cutter was also recovered from him. The appellant Haider also confessed his guilt. This witness has stated that at the spot only, the recovery memo of the paper cutter was prepared, which was signed by this witness. PW1 Dinesh Singh is also a witness of inquest.
PW5 SI Preeti Tomar had sent the dead body for post mortem. She has prepared inquest Ex. P2 and also prepared documents relating to the inquest, which are Ex. P3 to Ex. P8.
PW6 Dr. Virendra Kumar Nautiyal has conducted the post mortem of the deceased on 24.04.2021. According to him, on that date, he found the following injuries on the person of the deceased:-
“i)Stabbed wound 4cm x 2cm x 4cm deep over right middle part of neck. Blood present over the neck.
ii) Clotted blood spots present over the face.”
According to PW6 Dr. Virendra Kumar Nautiyal, the deceased died due to ante mortem injuries and excessive bleeding. He has proved the post mortem report, Ex. P9.
PW7 Vinay is also a person who reached at the spot immediately after the incident. He is the maternal uncle of the deceased. According to him, on the date of incident, at about 1:00 p.m., he noticed a lot of crowd in front of the house of PW4 Smt. Anita. He reached there. He found that the boy, who was blood stained, was apprehended by local people. In the meantime, the police also reached, and the appellant Haider confessed his guilt at the spot. According to PW7 Vinay, the police had recorded the confessional statement of the deceased at the spot. They also prepared arrest memo and recovery of paper cutter at the spot, which this witness signed. PW7 Vinay is also a witness of recovery memo of tiles that were taken into custody by the police. This witness has stated that the dead body of the deceased was sealed. At the time of death, she had put on a grey colour top. He has also proved the articles, i.e. paper cutter, Ex. 1, and other articles Ex. 2 to 6, which include tiles, etc.
PW8 ASI Arun Kumar is the person who has recorded the chik FIR and its entry in the general diary.
PW9 SI Manoj Sirola reached at the spot after getting information of the killing of the deceased. According to him, the appellant Haider was apprehended by Ram Avtar, Vinay, Ranjeet, Dinesh Singh and others, and the appellant Haider had stated that he had slit the throat of the deceased. This witness has proved the arrest and information memo, Ex. P12 etc. This witness also prepared the recovery memo of paper cutter from the appellant Haider, of which recovery memo Ex. P13 was proved by this witness. He also prepared the recovery memo of the clothes of the appellant, Ex. P14. This witness has also proved the articles, which were seized by him.
PW10 SI Naveen Purohit has arrested the appellant Rehan alias Aris alias Rahil and one Shariq. He has proved those documents pertaining to arrest.
PW11 Manoj Kumar Rana is the person from whose house the police has taken the DVR. According to him, the police had kept the relevant video in a pen drive. He has proved the certificate of Section 65-B of the Evidence Act, which is Ex. P18.
PW12 Manoj Kumar Mainwal is the Investigating Officer. He prepared the site plan, Ex. P19, and recorded the confessional statement of the appellant Haider. PW12 Manoj Kumar Mainwal took into custody the blood stained and plain tiles, and prepared its recovery memo, Ex. P21. This witness has taken into custody the DVR from the residence of PW11 Manoj Kumar Rana. He prepared the recovery memo, Ex. P23, and also proved those articles.
PW13 Amarjeet Singh is the second Investigating Officer, who submitted the chargesheet against the appellants Haider and Rehan alias Aris alias Rahil, Ex. P24. He also proved various other articles.
After the prosecution evidence, the appellant Haider was examined under Section 313 of the Code. According to him, he has been falsely implicated. The appellant Rehan alias Aris alias Rahil was also examined under Section 313 of the Code. According to him, he has been falsely implicated. According to him, he along with a child in conflict with law joined the company of the appellant Haider. Therefore, he has been implicated.
In their defence, the appellants did examine 10 witnesses, namely, DW 1 Naushad Ali, DW 2 Aarif alias Rihan, DW 3 Sadakat Ali, DW 4 Hamja, DW 5 Aslam, DW 6 Joheb S/o Liyaqat, DW 7 Shakib, DW 8 Abdul Rahman, DW 9 Zuhaib S/o Jubair and DW 10 Haider Ali.
DW1 is Naushad Ali. He has stated that once the deceased had told him that her mother and a person, whom this witness had met, are not in good relationship. Therefore, this witness should make her mother understand the things.
DW2 is appellant Arif alias Rihan. He has stated that on 24.04.2021, he had taken lift from a person, who had dropped him at Krishna Nagar, Gully No.20. The lift, according to him, was given to him by the appellant Haider.
DW3 Sadakat Ali is the father of the appellant Haider. He also tells that the mother of the deceased had illicit relations with one Ram Avtar, due to which the deceased was puzzled and she had revealed it to this witness. According to him, the appellant Haider was arrested from his home.
DW4 Hamja has also stated that on 24.04.2021, in the evening at 5:00-6:00, the police took the appellant Haider from his house.
DW5 Aslam, DW6 Joheb S/o Liyaqat, DW7 Shakib, DW8 Abdul Rahman and DW9 Zuhaib S/o Jubair have also stated that the appellant Haider was arrested by the police in the evening of 24.04.2021.
DW10, Haider Ali is the appellant. He has admitted that he and the deceased were studying together in a coaching center. They were in talking terms. The deceased had revealed him that her mother has illicit relations with Ram Avtar, and had asked that he should speak to her mother. According to him, the appellant Haider visited the house of the deceased on 22.04.2021 at 10-11:00 a.m., and there, the deceased had told him that her mother is with Ram Avtar in a room. He also went there on the same day at 6:00 in the evening and gave her telephone, which he had got repaired. Next day, i.e. on 23.04.2021, according to DW10 appellant Haider, he went to Dehradun. A day thereafter, i.e. on 24.04.2021, when he called the deceased Nidhi, her telephone was switched off. He reached there at about 11:00-12:00 in the noon, and found that her gate was locked. Thereafter, he came out from there, and suddenly, two people told that the deceased has been killed on 23.04.2021, due to which the appellant Haider got scared and went to his house, and on that date, he was arrested by the police.
In Re: Appellant Rehan alias Aris alias Rahil
First and foremost, discussion shall be made with regard to the appellant Rehan. According to the prosecution case, on 24.04.2021 at 01:30 in the afternoon, the appellant Rehan along with Haider had killed the deceased Nidhi by slitting her throat. Learned counsel for the appellant Rehan has submitted that there is no evidence against the appellant Rehan.
PW 1 Dinesh Singh reached the spot after the incident. He is brother of the deceased. According to him, when the deceased was taken to Saharanpur, on the way, the deceased revealed that the appellant Haider along with the appellant Rehan had committed the offence with her. In para 7 of his statement, PW 1 Dinesh Singh has also stated that when the appellant Haider was apprehended at the spot, he revealed that he was accompanied by the appellant Rehan also. In fact, after the incident, according to PW 1 Dinesh Singh, the deceased was first taken to Hemant Hospital, Roorkee and thereafter taken to Saharanpur. In para 34 of his statement, PW 1 Dinesh Singh has stated that while taking the deceased to Saharanpur, she was unconscious. If the deceased was unconscious, while she was being taken to Saharanpur, how could she reveal that it is the appellant Rehan also, who assaulted her?
PW 2 Dheeraj, who is an eyewitness of the incident and PW 3 Yogendra Singh have not stated anything about the appellant Rehan.
PW 4 Smt. Anita is the mother of the deceased. She also has corroborated the statement of PW 1 Dinesh Singh and has stated that while taking the deceased to Saharanpur, she revealed that it is the appellant Rehan also, who assaulted her. But, as stated, PW 1 Dinesh Singh in para 34 has stated that while they were taking the deceased to Saharanpur, she was unconscious. Under those circumstances, how could it be believed that in an unconscious state the deceased revealed that it is the appellant Rehan also who assaulted her? This statement of the witnesses on this aspect also does not find corroboration from any other material with regard to the appellant Rehan.
There are two documents. One is Ex. P 22, General Diary entry of Police Station Gangnahar, Report No. 1 dated 25.04.2021, wherein the confessional statement of the appellant Haider is recorded. According to it, the appellant Haider had got the gate of the deceased opened with the help of the appellant Rehan also. There is another document, which is confessional statement, which was allegedly recorded when the appellant Haider was arrested at the spot. It is Ex. P 15. Both these confessional statements were recorded in the presence of the police. They cannot be read into evidence.
In the instant matter, the police has taken into custody the DVR near the place of the incident. It was never run in the court. At one stage, PW 12 Inspector Manoj Kumar Mainwal, the Investigating Officer, in para 19 of his statement, has stated that the DVR was run at the spot and the witnesses did identify the appellant Aris. Who has identified the appellant Aris? No one has stated about it. There is no document to that effect. There is no other material against the appellant Rehan.
In view of the available material, this Court is of the view that, in fact, the prosecution has not been able to prove the charges against the appellant Rehan and he is liable to be acquitted of the charges levelled against him. The court below has committed error while convicting and sentencing the appellant Rehan.
In Re: Appellant Haider
It is argued on behalf of the appellant Haider that the contents of the DVR have not been proved; it is not shown as to when it was run in the court; the DVR was not sealed on the spot and the appellant Haider was not identified in the CCTV footages.
On behalf of the State, it is argued that, in fact, the DVR was sent for forensic examination and it was found intact. The report of the Forensic Science Laboratory confirms that there was no tampering with the DVR.
In para 72 of the impugned judgment, the court has recorded the details of the DVR as to what was noticed in it, but it is not clear as to how the court could recognize from the CCTV footages as to what was happening there, because as such the details were not noted by any witness. Although the fact remains that on re-examination of PW 11 Manoj Kumar Rana, a pen drive was run in the court. But, what contents are there in the pen drive has not been noted while recording the statement of PW 11 Manoj Kumar Rana. Therefore, the contents without having been proved by any witness may not be recorded by the court, particularly when it is a case of identification of the person.
So far as the question of non-sealing of the DVR at the spot is concerned, PW 11 Manoj Kumar Rana, in para 9 and 14 of his statement, has stated that the police had taken the DVR in a bag and the next day at the police station, the documents were prepared. Can it make the evidence of DVR unreliable and uncreditworthy? The answer is in negative. The DVR was sent for forensic examination. The report of Forensic Science Laboratory is PW 26, which does not indicate that there was any tampering with the DVR.
PW 2 Dheeraj and PW 3 Yogendra Singh have stated about the incident. PW 2 Dheeraj is an eyewitness and a very natural witness. He had seen the appellant Haider talking to the deceased and entering inside the house and when this witness reached inside the house, he found that the appellant Haider had pressed the deceased, had muffled her mouth and had injured the deceased on her neck by a sharp edged weapon, which was bleeding and two companions of the appellant Haider had run away.
PW 12 Inspector Manoj Kumar Mainwal had taken the custody of the DVR from the house of PW 11 Manoj Kumar Rana. In para 8 of his statement, PW 11 Manoj Kumar Rana has stated that on the date of incident itself, the police had taken the DVR from his house and they had checked its recording. PW 12 Inspector Manoj Kumar Mainwal also, in para 3 of his statement, stated that they have perused the DVR footages and, in fact, it is recorded in Ex. P-23. It records the description as to what had happened on the date of incident. It fully corroborates and confirms the statement of PW 2 Dheeraj. To that extent, the contents of DVR, which is an electronic evidence corroborates the prosecution case. It corroborates the statements of PW 2 Dheeraj and PW 3 Yogendra Singh. Therefore, merely because the DVR was not sealed at the spot, it has no impact on the prosecution case. Of course, as stated, the other contents of the DVR, which was not run in the court may not be looked into the evidence, except Ex. P-23, which, as stated, corroborates the statements of PW 2 Dheeraj and PW 3 Yogendra Singh.
It is also argued that after the incident, the deceased could not have said that the appellant Haider assaulted her, because it is argued that PW 1 Dinesh Singh in para 34 of his statement has stated that the deceased was unconscious. This argument has less merit for acceptance.
PW 2 Dheeraj has stated that when he entered into the house of the deceased and the appellant Haider released the deceased, at that time the deceased had revealed that it is the appellant Haider, who has slit her neck. In para 4 of his statement, PW 2 Dheeraj has stated that at that time the deceased Nidhi was vomiting blood also. This statement is immediately after the incident. It is not that the deceased was unconscious immediately after the incident. PW 3 Yogendra Singh has also stated that when they reached in the house of the deceased, they had seen the appellant Haider there, who had muffled the mouth of the deceased. The deceased was bleeding from neck. When the deceased was released, she ran inside the room and thereafter she came out also. This much is further corroborated by Ex. P-23, recovery memo of the DVR, which records that after the incident, the deceased was seen coming out from the house while holding her neck. She was not unconscious then. So the first statement of the deceased that it is the appellant Haider, who slit her neck is proved by the statement of the witnesses, which is supported by the electronic evidence.
There is another dying declaration, which has been stated by PW 1 Dinesh Singh and PW 4 Smt. Anita, the mother of the deceased. According to them, when the deceased was taken to Saharapur, at that time she revealed that the appellant Haider along with his friends had committed the offence. This is so stated by PW 1 Dinesh Singh and PW 4 Smt. Anita in para 4 of their statements. It has already been mentioned that in para 34 of his statement, PW 1 Dinesh Singh has stated that the deceased was unconscious while she was being taken to Saharanpur. If it is so, this part of the statement of the witnesses may not be relied upon that while the deceased was being taken to Saharanpur, she revealed about the incident. But, beyond that, there is fact that immediately after the incident the deceased had revealed that it is the appellant Haider, who slit her neck and, in fact, PW 2 Dheeraj and PW 3 Yogendra Singh had seen the appellant Haider pressing the deceased while her neck was bleeding. Moreover, the fact remains that the appellant Haider was arrested at the spot.
It is also argued that the place of incident is not established because PW 12 Inspector Manoj Kumar Mainwal has stated in para 40 of his statement that blood stained tiles were taken from outside the main gate.
This argument has no force. PW 2 Dheeraj and PW 3 Yogendra Singh are eye witnesses. Both of them have categorically stated that the incident took place inside the house. PW 3 Yogendra Singh is categorical that after the incident, firstly the deceased went inside the room and thereafter she also came out. As stated, it is corroborated by the DVR recording, Ex. P-23. Further, the site plan supports it. The blood was on the tiles at three places, according to the site plan, which are B1, B2 and B3. Outside gate is B2. If tiles are taken from one spot, it does not doubt the place of incident. Place of incident is proved. The appellant Haider first managed to get the gate of the deceased opened with the help of two of his friends and he forcibly entered into the house of the deceased and attacked her. The deceased first went inside the room and thereafter came out. All those spots are well shown in the site plan, Ex. P-19, as proved by PW 12 Inspector Manoj Kumar Mainwal.
It is also argued that the deceased died on 23.04.2021 as recorded in the postmortem report and the appellant Haider was arrested from his home in the evening of 24.04.2021. He was not arrested from the spot, as arrest memo also records the FIR number, whereas the arrest was made at 03:10 p.m. and the FIR was lodged at 07:30 p.m. It is also argued that the prosecution has not established as to where the appellant Haider was kept in the night of 24.04.2021?
Learned counsel for the State has responded to it that the FIR number is recorded subsequently, which is quite visible in the original document. In fact, nothing was asked from the witnesses, who proved the arrest memo. The arrest is from the spot as proved by PW 1 Dinesh Singh, PW 2 Dheeraj, PW 3 Yogendra Singh, PW 7 Vinay and PW 9 Manoj Sirola. The date of incident is 24.04.2021 as has been stated by PW 6 Dr. Virendra Kumar Nautiyal. He has not been questioned about it. There are contemporary documents, which also prove that the death took place on 24.04.2021. Moreover, it is argued that DW 2 Aris has also admitted in para 9 of his statement that the deceased was killed on 24.04.2021.
In this context, learned counsel for the appellant Haider has referred to the postmortem report, wherein in the date column, there appears to be a date recorded as 23.04.2021, but it also appears to be 24.04.2021. Conclusively it cannot be said that it is 23.04.2021.
PW 6 Dr. Virendra Kumar Nautiyal has categorically stated that he conducted the postmortem on 24.04.2021 and prepared the postmortem report, Ex. P-9. This witness was not asked even a single question that the deceased died on 23.04.2021. Moreover, there are contemporary documents by which the dead body of the deceased was sent for postmortem report. They are Ex. P 3 to Ex. P 8. They all show that the deceased died on 24.04.2021. Even DW 2 Aris has also admitted it.
When these arguments were made, in fact, the Court summoned the postmortem register and emergency outpatient register of the concerned hospital, which admittedly show that the entry with regard to the death of the deceased was made on 24.04.2021. Thus, the prosecution has been able to prove beyond reasonable doubt that the deceased died on 24.04.2021.
The question is - as to whether the appellant Haider was arrested from the spot?
It is true that in the arrest memo, Ex. P 13, the FIR number is recorded. It is also true that the appellant Haider was arrested at 03:10 p.m. and the FIR was lodged at 07:30 p.m. The arrest memo was proved by PW 9 SI Manoj Sirola. According to him, when he reached the spot, many persons had already apprehended the appellant Haider. He was taken into custody. PW 9 SI Manoj Sirola was not asked even a single question as to how the arrest memo, Ex. P 13, records the crime number. The original document reveals that the crime number is recorded in red ink. Merely on this ground, it cannot be said that the appellant Haider was not apprehended from the spot. There are many witnesses, who have stated about it. PW 1 Dinesh Singh, PW 2 Dheeraj, eyewitness and PW 3 Yogendra Singh, and other eyewitness have stated that the appellant Haider was arrested at the spot. He was locked inside a room.
PW 7 Vinay is the person, who had apprehended the appellant Haider after the incident. He has also stated about it. Therefore, this Court is of the view that the appellant Haider was apprehended from the spot on 24.04.2021, when after slitting the throat of the deceased Nidhi, he was caught at the spot.
Arguments have been made on the aspect that FSL report does not support the prosecution case because there was no DNA on the clothes of the appellant Haider. There was no blood on the clothes, cutter and tiles and if there was any blood of the appellant Haider, it might be his own blood. Arguments have also been made with regard to the colour of the top of the deceased and the colour of the cutter. On the other hand, on behalf of the State, it is argued that the FSL report supports the prosecution case.
It is true that at some places it is stated that the colour of the cutter was yellow, whereas in the FSL report, Ex. P30, it records its colour as orange and black. This deviation in colour does not doubt either the FSL report or the prosecution case on this aspect. Similarly, with regard to the colour of the top, at some places, it is recorded as grey and in the FSL report, it is recorded as black and white. It also does not make any difference and does not doubt the prosecution case.
DNA was obtained from the pants and shirt of the appellant Haider and the top of the deceased and blood stained tiles. The FSL report shows that they are from single female source, which is of the deceased. Human blood was also detected on the pants, shirt of the appellant Haider. It is true that it is not proved as to whose blood was present on the pants, shirt of the appellant Haider, but that much proof is not required. The prosecution has proved its case beyond reasonable doubt. There was blood on the clothes of the deceased. Therefore, it cannot be said that FSL report does not support the prosecution case.
Arguments have been made with regard to reliability of PW1 Dinesh Singh and PW 2 Dheeraj. It is argued that PW 2 is not an eyewitness because had he been the eyewitness, he would have signed the arrest memo and would have stated about the weapon of offence. It is submitted that PW 1 Dinesh Singh in para 29 of his statement has stated that straightway, he went to hospital, therefore, he could not have been present at the place of incident.
It has been rebutted by the prosecution to argue that, in fact, PW 1 Dinesh Singh and PW 2 Dheeraj are totally reliable witness.
PW 1 Dinesh Singh has stated that after the incident, he reached at the spot and took the deceased to hospital. He also tells that the appellant Haider was apprehended at the spot. It is true that in para 29 of his statement, PW 1 Dinesh Singh has stated that the incident did not take place in his presence and he straightway went to hospital. But, on behalf of the prosecution, it is argued that this statement of PW 1 Dinesh Singh has to be read in continuity when in para 15 of his statement, this witness has stated that he did not go to the police station; he straightway went to hospital. In fact, the statement of PW 1 Dinesh Singh in para 29 may not be read in isolation. In para 15, he was asked did he go to police station, to which he denied and then said that straightway he went to hospital. PW 1 Dinesh Singh tells that the incident did not take place in his presence, but he reached soon after the incident. The statement of PW 1 Dinesh Singh is reliable.
In so far as PW 2 Dheeraj is concerned, if he is not a witness of arrest memo and if he did not say about the weapon of offence, it does not doubt his statement. In fact, this Court is of the view that the statement of PW 2 Dheeraj is totally reliable statement and, in fact, his statement alone is enough for conviction of the appellant Haider. Whatever arguments have been made on this aspect have less merit for acceptance.
It is also argued that PW 3 Yogendra Singh did not give his clothes to the Investigating Officer; it doubts his presence. In fact, in para 57 of his statement, PW 3 Yogendra Singh has stated that his clothes were stained in blood and he feigned ignorance as to whether he had given his clothes to the Investigating Officer or not. If the Investigation Officer had not taken those clothes into custody, it may be a defect in investigation, but now it does not doubt the credibility of the statement of PW 3 Yogendra Singh and the prosecution case.
It is also argued that PW 7 Vinay is the maternal uncle of the deceased. Merely because PW 7 Vinay is the maternal uncle of the deceased, it does not doubt the prosecution case. PW 7 Vinay has not given eyewitness account of the incident. He reached at the spot post incident. It is he, who also apprehended the appellant Haider. He signed the arrest memo. He is a very natural witness.
The credibility of the statement of PW 1 Dinesh Singh has further been assailed on the ground that, on the one hand, this witness is a witness of arrest memo, Ex. P13, according to which the appellant Haider was arrested at 03:10 p.m., on the other hand, he is a witness of inquest report, which was prepared at 03:00 p.m. It is argued that at such close time, this witness may not be present both the places.
To it, it is replied by the learned State Counsel that it was a Covid-19 period and the witnesses have not been confronted to it. The incident was reported to police station at 03:00 p.m. and that is what is reported in inquest report, Ex. P2. Thereafter, it was prepared and it might have taken some time to prepare the inquest report and thereafter it was signed by PW 1 Dinesh Singh. In fact, merely because the time of arrest is 03:10 p.m. and in the arrest memo PW 1 Dinesh Singh has signed, his presence may not be doubted on the ground that in the inquest report, which began at 03:00 p.m. he is also a signatory, particularly so when PW 1 Dinesh Singh has not been examined on this aspect.
In the instant case, the testimony of PW 2 Dheeraj is beyond any shadow of doubt. He is the most reliable witness. He has stated as to how the incident took place and as to how the appellant Haider was pressing the deceased and muffling her mouth when there was an injury on the neck of the deceased. The appellant Haider was apprehended at the spot. This is what PW 3 Yogendra Singh has stated.
As discussed hereinabove, the electronic evidence in terms of DVR, which was examined at the time when it was taken into custody, Ex. P-13, also supports the statements of these witnesses. There are witnesses, who reached the spot soon after the incident, which include PW 1 Dinesh Singh, PW 4 Smt. Anita and PW 7 Vinay. The testimony of these witnesses has been supported by the FSL report and medical evidence. Therefore, this Court is of the view that the prosecution has been able to prove beyond any reasonable doubt that on 24.04.2021, the appellant Haider killed the deceased by slitting her throat with sharp edged weapon. Therefore, this Court is of the view that the prosecution has been able to prove the charge under Section 302 IPC against the appellant Haider. Accordingly, the conviction of the appellant Haider under Section 302 IPC is affirmed.
The question of sentence gains importance.
The appellant Haider has been awarded death penalty. In fact, in a criminal case, one of the important tasks is to impose adequate sentence. When it comes to a choice between the death penalty and the imprisonment to life, there are multiple guidelines that have been laid down by the Hon’ble Supreme Court.
In the case of Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the Hon’ble Supreme Court cautioned that the Judges should never be bloodthirsty and further held that hanging of murderers has never been too good for them. In para 209 of its judgment in the case of Bachan Singh (supra), the Hon’ble Supreme Court observed as under:-
“209.There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. “We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.” Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy 96 outlined in Section 354 (3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. 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.”
In the subsequent decision in the case of Machhi Singh and others v. State of Punjab, (1983) 3 SCC 470, the Hon’ble Supreme Court followed the principles as laid down in the case of Bachan Singh (supra) and those principles have been summed up by the Hon’ble Supreme Court in paras 38 and 39 as follows:-
“38.In this background the guidelines indicated in Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] :
“(i)The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii)Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
(iii)Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant 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 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.
39.In order to apply these guidelines inter alia 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)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?”
The mitigating and aggravating circumstances are another criteria.
In the case of Ramnaresh and others v. Chhattisgarh, (2012) 4 SCC 257, the Hon’ble Supreme Court discussed the law as laid down in the cases of Bachan Singh (supra) and Machhi Singh (supra) and in para 76 detailed the circumstances, which may be termed as aggravating and mitigating circumstances. The Hon’ble Supreme Court observed as follows:-
“76.The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] and thereafter, in Machhi Singh [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] . The aforesaid judgments, primarily dissect these principles into two different compartments—one being the “aggravating circumstances” while the other being the “mitigating circumstances”. The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC.
Aggravating circumstances
(1)The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2)The offence was committed while the offender was engaged in the commission of another serious offence.
(3)The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4)The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5)Hired killings.
(6)The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7)The offence was committed by a person while in lawful custody.
(8)The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC.
(9)When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10)When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11)When murder is committed for a motive which evidences total depravity and meanness.
(12)When there is a cold-blooded murder without provocation.
(13)The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances
(1)The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2)The age of the accused is a relevant consideration but not a determinative factor by itself.
(3)The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4)The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5)The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6)Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.”
In the instant case, learned counsel for the appellant Haider, learned Amicus Curiae and the learned Senior Counsel appearing for the State are unanimous that it is not a rarest of rare case, which may warrant death sentence to the appellant Haider.
Having considered the entirety of facts in the instant case, the relationship between the appellant and the deceased and the manner in which the offence was committed, this Court is of the view that the instant case does not fall within the category of of rarest of rare case. Accordingly, this Court is of the view that the interest of justice will be served in case the appellant Haider is awarded imprisonment for life instead of death penalty.
Accordingly, the Court concludes as under:-
The appellant Rehan alias Aris alias Rahil is acquitted of the charge under Section 302 read with 34 IPC.
Criminal Appeal No. 396 of 2025 preferred by the appellant Rehan alias Aris alias Rahil is allowed.
The appellant Rehan alias Aris alias Rahil is in jail. Let he be set free forthwith, if not wanted in any other case. The appellant Rehan alias Aris alias Rahil shall furnish a personal bond and two reliable sureties, each of the like amount, to the satisfaction of the court concerned under Section 437 A of the Code within a period of month from his release.
The conviction of the appellant Haider under Section 302 IPC is upheld. However, the sentence of death penalty awarded to the appellant Haider is converted to that of life imprisonment. The fine imposed by the court below shall remain unaltered.
The judgment and order dated 09.06.2025/12.06.2025, passed by the 1st Additional District and Sessions Judge, Roorkee, District Haridwar is modified to the extent as aforesaid.
Criminal Appeal No. 424 of 2025 filed by the appellant Haider is partly allowed.
The Criminal Reference No. 01 of 2025 is answered in the above terms.